REPOST: When mandatory arbitration replaces litigation, consumers lose

Paul Samakow argues for litigation and against required arbitration procedures for employer, consumer, and civil rights disputes as he shares details on why a proposed legislation that would eliminate mandatory arbitration would bring fairness back to consumer and employee rights cases. Read about it here:


Legislation that would eliminate required arbitration for employee, consumer and civil rights disputes was proposed last month. It should be passed.  Congress must act to restore fairness.

Big business and corporate money, along with a corporate friendly Supreme Court, have been enough in the past to defeat efforts to bring fairness back to the arena of routine consumer and employee rights. Unfortunately, the same thing is likely to happen again, and the Arbitration Fairness Act of 2013 that has been introduced in the House (and a similar bill in the Senate) will likely fail.

As the law exists now, you do not have the right to file a lawsuit for many consumer and employee and civil rights complaints. In these situations, the law requires you to submit to binding arbitration. Binding means no further review, no other options, no going to court.

If the arbitration process were neutral, independent and not connected to corporate purse strings, it might not be so bad. Unfortunately, in most consumer, employment and civil rights cases, the likelihood of the “little guy” prevailing is almost zero.

The existing law of our land, the Federal Arbitration Act, has been interpreted by the pro-big business Supreme Court and thus gives businesses a significant advantage in resolving disputes with us. We are forced into binding arbitration, and the Court says this is legal.  Legislation is needed to turn back the clock and restore fairness.

Most contracts we sign with big business today include mandatory arbitration clauses. These include contracts for cell phones, credit cards, mom’s or dad’s nursing home, and even on-line user agreements. Thus, when presented with these contracts, where the arbitration clauses are in fine print and often in difficult-to-understand legalese, we routinely sign, and thus, we “voluntarily” give up the right to file a lawsuit if there are problems.

The same thing happens in routine employment civil rights matters. Most big business or large corporation employee handbooks state that the employee cannot sue their employers, and that they must submit to a binding arbitration process for almost any issue.

The arbitration process is usually secretive and it is far from independent. Hearings are closed, unlike what you see in courtrooms across America or even on television. There is no appeal or next level review.

Arbitration panels are overwhelmingly funded by big business. Thus, to assure they keep getting the work, arbitrators almost always rule in favor of the business. They understand that decisions against the business will result in their firms not being used again.

When we lose access to the courts, corporations are effectively given a license to steal. Our ability to seek justice in the courts, even when up against the most powerful corporate interests, is an essential part of our democracy.

Here are selected portions of the proposed legislation:

Section 2:  Findings:

(3) Most consumers and employees have little or no meaningful choice whether to submit their claims to arbitration. Often, consumers and employees are not even aware that they have given up their rights.

(4) Mandatory arbitration undermines the development of public law because there is inadequate transparency and inadequate judicial review of arbitrators’ decisions.

Section 4:  Definitions:

(2) civil rights dispute means a dispute—

(A) arising under—

(i) the Constitution of the United States or the constitution of a State; or
(ii) a Federal
or State statute that prohibits discrimination on the basis of race, sex, disability,
religion, national origin…in education, employment, credit, housing, public
accommodations and facilities, [or] voting….

(3) consumer dispute means a dispute between an individual who seeks or acquires
real or personal property, services (including services relating to securities and other
investments), money, or credit for personal, family, or household purposes….

(4) employment dispute means a dispute between an employer and employee arising
out of the relationship….

Sec. 402. Validity and enforceability

(a) In General- Notwithstanding any other provision of this title, no pre-dispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.

This legislation broadly defines “employment dispute,” and in it “consumer dispute” is defined broadly enough to include a wide range of legal conflicts. If passed, this bill would eliminate arbitration as the required course of action for employee claims – as well as those brought by consumers – unless all parties agreed to arbitration once the dispute was identified.

U.S. Representative Hank Johnson (D-GA) and Senator Al Franken (D-MN) introduced this needed legislation. Johnson said in so doing that “forced arbitration clauses undermine our indelible Constitutional right to take our disputes to court.”

“Mandatory arbitration can be a huge disadvantage to consumers, often limiting their ability to have any meaningful legal recourse when they are wronged,” Sen. Franken said. “I’ve reintroduced the Arbitration Fairness Act to ensure that consumers maintain their right to their day in court when they are cheated.”

The Supreme Court, an ally of big business and corporate interests over the last several years, has helped those interests in several holdings and in so doing has further eroded consumers’ rights. In one case, Stolt-Nielsen v. Animal Feeds International, 2010, the Court upheld as valid required arbitration agreements for class action claims. In another, AT&T Mobility LLC v. Concepcion, 2011, the Court held that arbitration agreements may ban class actions even when such a ban was expressly prohibited by state law.

These holdings seriously harmed consumers’ rights and served to further protect corporations from accountability. Class actions were designed to allow many individuals with similar claims, too small in nature or dollars to prosecute by themselves, to join together to try to right a common and recurring wrong. By stripping the class from the right to file a unified lawsuit, requiring instead arbitration, the little guy is once again kept down and effectively never heard from.

The existing law, the Federal Arbitration Act (FAA), was originally passed to make sure that the courts enforced commercial arbitration agreements, that is, between companies, not between companies and consumers. The Supreme Court’s rulings allow big business and corporate America to insulate themselves from liability in small one-by-one cases and in attempted larger, what-would-have-been class action claims.

Because of the rulings by the Supreme Court that interpret the Act in an expansive anti-consumer fashion, Congress must act in order to restore fairness.

Representative Johnson and Senator Franken have been consistent advocates for the little guy. In 2009 Sen. Franken passed legislation with bipartisan support that restricted funding to defense contractors who committed employees to mandatory binding arbitration in cases of sexual assault and other civil rights violations. Rep. Johnson, a longtime advocate of workers’ and consumer rights, first introduced the Arbitration Fairness Act in 2007.

Their proposed legislation would change the FAA by:

1. Invalidating agreements that require arbitration in employment, consumer or civil rights disputes;
2. Restoring the rights of workers and consumers by allowing them to seek justice in the courts (and court process is open and transparent, so all of the world can see and decide if claims and defenses are legal, valid and reasonable);
3. Protecting the intent of the Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act, and more.
Let your elected officials know that the current state of the law in this country regarding mandatory arbitration needs significant change.


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REPOST: Self defense and stand your ground laws

What is the Stand Your Ground law? Read about it from this HG.org article.

Image Source: thinkprogress.org

The Trayvon Martin case in Florida has received national attention on the Stand Your Ground law and now many states that have the Stand Your Ground law in place are looking at their current legislation regarding the Stand Your Ground law. However, the Stand Your Ground law has a rational basis and dates years back. This is a discussion on investigating self defense cases under the Stand Your Ground statutes.

Many states have some form of "Castle Doctrine" or "Stand Your Ground" law in place. These states are Alabama, Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming have adopted Castle Doctrine statutes, and other states (Iowa, Virginia, and Washington) have considered "Stand Your Ground" laws of their own.

While critics have rationalized the "Stand Your Ground" law as "shoot first" that is not the case. Many experienced criminal attorneys do not understand the "Stand Your Ground" law and many of their clients have plead guilty when the case could have been justified under Stand Your Ground. Self-defense and Stand Your Ground is nothing new. The Supreme Court of the United States ruled in Beard v. U.S. (158 U.S. 550 (1895)) that a man who was "on his premises" when he came under attack and "...did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm...was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground." Justice Oliver Wendell Holmes, Jr. declared in Brown v. United States (1921) (256 U.S. 335, 343 (16 May 1921)), a case that upheld the "no duty to retreat" maxim, that "detached reflection cannot be demanded in the presence of an uplifted knife". More than half of the states in the United States have adopted the Castle doctrine, stating that a person has no duty to retreat when their home is attacked. Some states go a step further, removing the duty of retreat from other locations. "Stand Your Ground", "Line In The Sand" or "No Duty To Retreat" laws thus state that a person has no duty or other requirement to abandon a place in which he has a right to be, or to give up ground to an assailant. Under such laws, there is no duty to retreat from anywhere the defender may legally be. Other restrictions may still exist; such as when in public, a person must be carrying firearms in a legal manner, whether concealed or openly.

The Stand Your Ground law is not an automatic defense. The claim of self-defense under Stand Your Ground must meet the rules of evidence to have some basis. The threat must be imminent and it must be immediate. Our job as professional investigators is to gather facts surrounding the case, seek video surveillance where the act took place, locate witnesses (if any), take statements, obtain video and photographs of where the act has taken place, collect the background of the defendant that is claiming self-defense as well as a background of the aggressor. If the evidence matches the claim of self-defense under Stand Your Ground, chances are the prosecutor will consider the act justifiable under the law. In the Tayvon Martin case as reported in the media, the evidence did not match the statement given by George Zimmerman, the defendant that claimed self-defense under Stand Your Ground.

It's well settled that law enforcement is not constitutionally obligated to protect any individual citizen unless a "special relationship" exists. Warren v. District of Columbia (444 A.2d. 1, D.C. Ct. of Ap. 1981). So, the logic behind self-defense and Stand Your Ground is that you have a right to defend yourself whenever you are in a permissible location, not just your residence or property. It is also well settled that an aggressor cannot claim self-defense under Stand Your Ground. It's important to note that once the facts and evidence are gathered on a claim of self-defense and Stand Your Ground and a defendant, or potential defendant satisfies the prerequisites that he/she was not the aggressor, was in a legal permissible place, and the evidence and facts substantiate a valid claim of self-defense under Stand Your Ground, then a very heavy burden is placed on the prosecutor to prove that it was not self-defense under Stand Your Ground. Many prosecutors, as well as defense attorneys, will try and convince their clients that they should have walked away or they cannot claim self-defense except on your own property and that is certainly not correct. The statutes are very clear and nearly all statutes have a "no duty to retreat" clause meaning a jury cannot consider that a defendant could have retreated from an encounter against an aggressor and the statues further the self-defense by stating "any place that is permissible" meaning that the defendant was not trespassing, etc.

Still, statutes go further as in the self-defense of others. If a bystander is witnessing someone being attacked then that witness is allowed to use reasonable force, including deadly, if he or she reasonably believes that the person being attacked is in danger of serious bodily harm or death. While the Stand Your Ground statutes are very clear and date back under United States Federal Case law to 1895, attorneys and legal scholars still find it difficult to interpret self-defense and Stand Your Ground statutes. For instance, one such law uses the terminology "A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force." Some attorneys and prosecutors have interpreted this section to mean that "equal" force can be used and not deadly force. That is a misinterpretation because it is in the same clause as "no duty to retreat." The legislative history behind such a clause states "force with force" meaning "no duty to retreat" or "Stand Your Ground." It would be illogical to expect an individual to defend themselves with a knife (especially if that person only has a gun) and the aggressor has a knife. The proper interpretation is if you fear serious bodily injury or death, you may use reasonable force, including deadly force to defend yourself. It does not matter if the aggressor has a knife or baseball bat and you have a gun. Self-defense and Stand Your Ground statutes, clearly written, not overbroad or vague, are still misinterpreted. These are complex cases that require professional investigators with a background in criminal defense and very experienced attorneys in criminal law. Most individuals that are arrested that have claimed self-defense under the Stand Your Ground statute will go through a preliminary examination and usually, at this stage, the charges are dismissed. However, some prosecutors prefer to allow a trial and a jury to decide if the defendant's actions were initiated through self-defense under Stand Your Ground. The evidence must match the facts of the case. Any discrepancy in the evidence or facts could lead to a murder or manslaughter trial. A full background of the defendant and the aggressor must be conducted first and foremost. The defendant's past must be scrutinized and examined thoroughly to determine if there is a history of violence. The same background must be conducted on the aggressor and facts must be established leading up to the incident.

While critics will verbalize that the Stand Your Ground has flaws, they will not idealize the good parts of laws like Stand Your Ground. For instance, should you allow an attacker to kill you while you are not allowed to defend yourself? Should you stand helplessly by watching your neighbor or a woman in a parking lot be assaulted while you are not allowed by law to assist? If we are to accept the critics' version that Stand Your Ground laws should be repealed, then law abiding citizens will have no recourse to protect themselves. It is not a "license to kill" but a fundamental right to defend your person, your property and if necessary, your neighbor or another person. Again, common sense dictates, and critics will not tell you that the Stand Your Ground affirmative defense is not automatic. The facts and evidence must match the incident and a full investigation must be commenced to determine if the incident is self-defense under Stand Your Ground. A good investigation will determine the facts and that is the best safeguard you can have in place to be sure that someone is not getting away with murder by using the Stand Your Ground law as a shield.

Therefore, there are safeguards in place to ensure that criminals do not kill someone in cold blood and claim self-defense under Stand Your Ground. Is it perfect? No it is not, but no law is perfect; but the Stand Your Ground statutes allow a person to justifiably defend themselves without fear of being arrested for having to defend themselves or another person. There is logic behind the Stand Your Ground law and dates back to 1895. We as citizens must have right to defend ourselves against an attacker and if Stand Your Ground laws are repealed, then we are at the mercy of an attacker.

Evan Granowitz is a California-based litigator. For more law-related updates, visit this Facebook page.

Congressman proposes 2-year ban on bills about Internet

This CNN.com article talks about a congressman’s proposition of a two-year ban on all new federal legislation concerning the Internet.

 

(CNN) -- In an unusual step, a U.S. congressman is proposing a two-year ban on all new federal legislation regulating the Internet. Rep. Darrell Issa, a Republican from California who has been an advocate for Internet freedoms, has posted online a draft of his legislation, the Internet American Moratorium Act of 2012. The bill would "create a two-year moratorium on any new laws, rules or regulations governing the Internet."

Issa first posted the complete text of the bill Monday on Project Madison, the nickname for a crowdsourcing platform that allows citizens to amend individual passages of legislation by adding or striking language. On Tuesday, he posted a link to the bill on Reddit, the social news site, where users quickly voted it to the top.

"Together, we can make Washington take a break from messing w/ the Internet," Issa said on Reddit, where he also invited users to suggest changes to the proposed bill. He said he will begin taking questions about it from Reddit users at 10:30 a.m. ET Wednesday.

Issa is one of the more tech-fluent members of Congress and was an outspoken critic of the Stop Online Piracy Act, which would have penalized websites that host pirated content. That bill died this year amid near-unanimous opposition from the technology industry.

Initial reaction on Reddit to his proposed moratorium was mixed. Some users were confused about what point Issa was trying to make, while others saw the move as a stunt.

"I have a problem with legislation that preemptively ties your hands for years at a time. You can't know what the internet or society will look like in six months, let alone two years, and making it harder to respond to emerging threats or opportunities is an abdication of your responsibilities as a member of Congress," wrote one Reddit user. "This just seems to me to be more cheap political theater, along the lines of Grover Norquist's 'We will never ever ever raise taxes for any reason' pledge."

"The answer is NOT to ban new regulation. We need regulation," another said. "But, I don't believe ANYBODY in Congress has the vocabulary, is intelligent in knowing how the internet or computers work, or has the foresight to put current trends and future technologies together in a context to create those new regulation that protect the internet and it's users/consumers." Issa's Reddit post had drawn more than 900 comments by late Tuesday afternoon. Leslie Horn, writing for Gizmodo, also dismissed Issa's idea.

"Open internet? That's a good thing. But a law that keeps congress from governing? That's not a good thing -- the internet is a big place, and the language of this law is very broad," she wrote. "As it stands now, IAMA is just a discussion draft, meaning it will be a very long time before it's even close to a vote. And while we're for an open internet, a blanket ban is a bad idea. Let's think about this one a little more, Rep. Issa."

When asked why the congressman introduced the bill, a spokesman for Issa told CNN, "After SOPA and PIPA (the Senate's similar Protect Intellectual Property Act), it became very clear that we needed a cooling-off period to figure out a better way to create policy that impacts Internet users, job creators and all Americans."

The spokesman, who asked not to be named, declined further comment Tuesday.  


Source: http://www.cnn.com/2012/11/27/tech/web/issa-reddit-internet-bill/index.html?iref=allsearch