The Democrat Thread

[Jenksismyhero]

If you signed that AT&T contract, you can and did sign that right away since you have to go through individual arbitration to resolve any disputes and you can appeal that decision, but you can't file a new suit in court. You're barred from filing a suit in court, either individual or class.

 

Just because you keep saying this (wrongly) doesn't make it true:

 

"The revised agreement provides that customers may initiate dispute proceedings by completing a one-page Notice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submissions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more-over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500minimum recovery and twice the amount of the claimant’s attorney’s fees."

[StrangeSox]

Ok, shouldn't have used AT&T there. You're still focusing on this one particular contract and refusing to acknowledge the plethora of contracts that do have mandatory arbitration.

[StrangeSox]

And the agreement still barred class action in any forum.

[StrangeSox]

The amicus brief filed on behalf of several states (including IL) seems to disagree with Scalia's interpretation of the contract:

http://www.americanbar.org/content/dam/aba...uthcheckdam.pdf

 

See the Statement, Section 2, which lays out the facts of the case as requiring arbitration first and then settling any disputes that arise from that in court. So you still must go through arbitration first, you cannot first file a claim in court and you're never allowed to file a class action.

[StrangeSox]

From the brief, which gets the point I've been making:

Finally, although petitioner would eliminate consumer class actions altogether, these suits are an effective supplement to government efforts to protect consumers against fraud and sharp dealing. Both federal and state consumer-protection laws openly encourage class actions, as a means of furnishing individual relief, notifying vitims who otherwise might not know they have been injured, and deterring wrongdoing. The efforts of "private attorneys general" are especially valuable in this era of state budget cuts and limited resources, and petitioner's attempt to do away with consumer class actions is a further affront to the States' interests.

 

[NorthSideSox72]

Ok, shouldn't have used AT&T there. You're still focusing on this one particular contract and refusing to acknowledge the plethora of contracts that do have mandatory arbitration.

 

 

And the agreement still barred class action in any forum.

 

You just aren't correct here. As is clearly stated in the decision, there is still a method for claims in the court system. You cannot, even in some huge end user agreement, completely block the ability to seek remedy in the civil courts.

 

[StrangeSox]

Yes, you can block the ability to seek remedy in the civil courts. That is what these mandatory arbitration clauses do, and that's what the FAA does.

 

If you couldn't block remedy in the civil courts, this whole case would be a non-issue because the Concepcions would simply file a civil judicial class suit. That's what this entire case was about--California's Discover Bank rule allowed the courts to strike down the mandatory arbitration agreement because it imposed a ban on class action. Once the arbitration agreement was out of place, the Concepcions could file judicial suit. However, because the SCOTUS ruled that California cannot strike down the mandatory arbitration agreement because of a ban on class action, the Concepcions cannot file a judicial suit. The matter must be resolved through individual arbitration and they can only appeal that decision to judicial courts for a review of unfair treatment.

[StrangeSox]

You just aren't correct here. As is clearly stated in the decision, there is still a method for claims in the court system. You cannot, even in some huge end user agreement, completely block the ability to seek remedy in the civil courts.

 

And as seen in the various amicus briefs, Scalia's depiction of the facts of the case was misleading. The Concepcions had to go through arbitration first.

 

edit: here's a pdf from a consumer advocacy group detailing mandatory arbitration. A dispute can still enter the judicial system, but only to challenge the arbitration clause (like this case), appeal an arbitration decision (because arbitration has no appellate court system) or compel discovery. You can't start the process there, and it's very, very unlikely that a court will overturn an arbitration decision.

 

http://www.citizenadvocacycenter.org/Broch...ionBrochure.pdf

Edited April 28, 2011 by StrangeSox

[Balta1701]

In a seeming reversal of policy, it appears the ICE has stopped planned deportations of DREAM Act kids.

[StrangeSox]

"Just for the record" -- an interesting analysis of the performance of Democrat and Republican Presidents on the economy and federal budget from 1962-2001

[BigSqwert]

[StrangeSox]

Superman threatens to renounce US citizenship

[StrangeSox]

Interesting analysis of AT&T v Concepcion.

 

I'll again note that every single thing I have read regarding this case, sans Scalia's description, points to mandatory arbitration and AT&T blocking the filing of any civil suit.

[Jenksismyhero]

Interesting analysis of AT&T v Concepcion.

 

I'll again note that every single thing I have read regarding this case, sans Scalia's description, points to mandatory arbitration and AT&T blocking the filing of any civil suit.

 

I'll take the summary of Supreme Court Justices and their highly qualified staff who, you know, actually look at the records produced and listen to the arguments presented before them, over the summary of a blogger or reporter.

 

Not to mention that this summary you cite doesn't even address what the actual agreement contains.

 

Edit: Although I'll admit this isn't just any blogger, and it appears he reviewed the oral arguments. But still, I have yet to see anyone actually say Scalia's summary of the agreement was flat out wrong.

Edited April 29, 2011 by Jenksismybitch

[StrangeSox]

Someone should alert the courts that mandatory arbitration doesn't exist!

 

Think about it, if they could simply file a suit in court, they would have and this entire thing would be a non-issue. Your argument that these agreements do not compel arbitration makes no sense. The various amicus briefs, also prepared by lawyers and their highly qualified staffs, put this plainly, not just a "blogger or reporter," even if that particular blog is by a Cornell Law professor.

 

Just google for "mandatory arbitration" or "forced arbitration" and keep trying to say you can file suit and avoid arbitration with these sorts of agreements.

[Balta1701]

Just google for "mandatory arbitration" or "forced arbitration" and keep trying to say you can file suit and avoid arbitration with these sorts of agreements.

Sir, seriously, do the Googling yourself and find the support if you're the one making an argument.

[StrangeSox]

Edit: Although I'll admit this isn't just any blogger, and it appears he reviewed the oral arguments. But still, I have yet to see anyone actually say Scalia's summary of the agreement was flat out wrong.

 

I'm not saying that he was flat-out wrong, just that it was either misleading or perhaps poorly worded.

 

The Concepcions felt they were defrauded. Rather than go through an individual arbitration, they elected to file suit and challenge the arbitration agreement itself as unconscionable. Note that it wasn't an either/or option, but that they had to first get the arbitration agreement voided. They challenged on the grounds that the agreement restricted any class action, and California found that to be unconscionable. AT&T argued that that law is against the FAA and that they must go through the arbitration process, as agree in the contract.

 

It would be nice if I could find the actual contract somewhere, but perhaps the wording of the 9th circuit will suffice to illustrate that these agreements force you to go to arbitration instead of the judicial system.

 

http://www.ca9.uscourts.gov/datastore/opin...27/08-56394.pdf

 

 

The phone company demanded the plaintiffs’ claims be submitted to individual arbitration, pointing to the arbitration clause of the written agreement, which arbitration clause requires arbitration, but bars class actions. Because this is an action invoking diversity of citizenship jurisdiction, the plaintiff-subscribers point to California contract law, which they claim renders both the arbitration clause and the class action waiver unconscionable, hence, unenforceable.

 

Regardless, as Dorf points out, the specific provisions and how consumer-friendly this specific agreement was are irrelevant to this decision.

[StrangeSox]

Sir, seriously, do the Googling yourself and find the support if you're the one making an argument.

 

I've repeatedly posted links to amicus briefs, quotes from the various States in support of the Concepcions, and a guide from a pro-consumer group explaining mandatory arbitration and what it means.

 

I've been met with "nuh uh" and "well Scalia phrased it this way, so It Must Be So."

[Balta1701]

I've repeatedly posted links to amicus briefs, quotes from the various States in support of the Concepcions, and a guide from a pro-consumer group explaining mandatory arbitration and what it means.

 

I've been met with "nuh uh" and "well Scalia phrased it this way, so It Must Be So."

I know the feeling. But saying "Do the googling!" isn't an adequate response.

[StrangeSox]

I know the feeling. But saying "Do the googling!" isn't an adequate response.

 

At this point? Yeah, it is, because I've supported my claim thoroughly.

[StrangeSox]

btw, here's where I'm pulling the documents from:

 

http://www.scotusblog.com/case-files/cases...y-v-concepcion/

[StrangeSox]

AT&T's current Arbitration Agreement!

 

(1) AT&T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:

claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;

claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);

claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

claims that may arise after the termination of this Agreement.

References to “AT&T,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services or equipment under this or prior Agreements between us.

 

Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.

 

You waive the right to trial by jury or to participate in a class action regardless of the forum.

[StrangeSox]

A paper examining arbitration clauses

 

I can't find the date, but it does include this example from an AT&T agreement:

This section provides for resolution of disputes through final and binding arbitration before a neutral

arbitrator instead of in a court by a judge or a jury or through a class action. By enrolling in or

paying for these services, you agree to the prices, charges, terms and conditions in this agreement.

If you do not agree to the prices, charges, terms and conditions do not use the services and cancel

the services immediately by calling AT&T.

 

[Jenksismyhero]

AT&T's current Arbitration Agreement!

 

 

 

You waive the right to trial by jury or to participate in a class action regardless of the forum.

 

So what exactly does this mean:

 

Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.

 

You're confusing mandatory arbitration (you have to attempt arbitration first before going to court) and binding arbitration (the arbitrator's judgment is the final word and you cannot file suit to get a different judgment).

 

Pretty sure from the beginning we've conceded that these agreements can force you to arbitrate first. My contention was that you keep claiming that they've blocked access to the courts. That's not true.

 

Moreover, I like that I cited Scalia's summary of the agreement, which for 2 pages you claimed was inaccurate, and then you cite the actual agreement that is pretty much word for word what Scalia said. So what's your beef with that again?

[Jenksismyhero]

At this point? Yeah, it is, because I've supported my claim thoroughly.

 

no you haven't.