Our Rights, Our Future

NCRCR Interview Series: AT&T Mobility v. Concepción

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Suzette Malveaux of Catholic University of America about the AT&T Mobility v. Concepción case on class action arbitration in California. Listen in as they discuss the significant impact this ruling may have on our access to justice, civil rights and consumer protections.

Despite the Fine Print, the Courts in Washington State Are Open!

By Paula Z. Segal

When you buy a computer or any other complicated piece of consumer electronics, you also receive a bundle of infinitesimally small print type, that many of us all too often skip reading. Some of that small print is written specifically to protect the companies from you: a future, frustrated version of you, who might decide to sue the company for selling a defective product.

Kristin Cariedo bought a new Dell laptop for $1300. Catherine Candler paid $1700 for hers. Neither computer worked the way it was supposed to. Ms. Cariedo and Ms. Candler wanted to sue Dell to get their money back but the fine print that accompanied their laptops said that by simply buying and keeping the computers, Ms. Cariedo and Ms. Candler and all other consumers buying Dells laptops waived their right to ever sue Dell. Dell had written an “agreement” that said that any disputes between consumers and Dell were to be settled through arbitration by a private arbitrator that Dell had selected (the National Arbitration Forum); Dell also said that no class actions were permitted, meaning that consumers could not get together to bring Dell to court for selling defective products. The “agreement” that Ms. Cariedo and Ms. Candler had entered into with Dell when they bought their computers was designed to keep them out of court.

The National Arbitration Forum (NAF), the arbitrator that Dell chose, turned out to not be a neutral arbitrator; rather, it turned out to be intimately tied to the country’s largest debt collection firms, which profit directly from deciding cases against consumers. A House of Representatives investigation report on NAF documented its abuses, and lawsuits have been filed against NAF nationwide. The Center for Responsible Lending issued a report calling NAF’s neutrality into question in May 2009, and finding that NAF decisions tend to favor companies – like Dell – that give them business. In the midst of all this controversy, NAF stopped accepting consumer arbitrations in July 2009.

On October 26, 2009, the highest court in Washington State, where Ms. Cariedo and Ms. Candler brought their case against Dell, ruled that the mandatory arbitration agreement written into the fine print of their computer purchase agreements could not be enforced because NAF, the arbitrator, was not available. The court refused to appoint a different arbitrator.

The Washington court also said that the provision prohibiting class action lawsuits could not be enforced. Class actions are important because they allow individual consumers to use their collective resources to hire experts to testify at trial. In consumer cases, where the amount at stake is usually the price of the purchased item, the expense added by hiring an expert makes the lawsuit unreasonable to fund. When the expense is shared by many consumers of similarly defective products, the lawsuit becomes possible.

Now Ms. Cariedo, Ms. Candler and everyone else who purchased defective computers from Dell can go to court to ask for their money back (at least in Washington State). They can come together in a class action to bring the best case possible against Dell and other corporations selling defective products. This ruling, opening the courts to consumers despite the fine print designed by companies to keep them out, recognizes that consumers’ ability to sue is crucial to preventing widespread misconduct by corporations.

Paula Z. Segal is a second year student at City University of New York School of Law and a Haywood Burns Fellow in Civil and Human Rights. Before law school, she taught English to Speakers of Other Languages and continues to develop materials for ESOL instructors to connect language and life skills. She is also working with the New York Civil Liberties Union to reduce the school to prison pipeline and coordinates the CUNY Street Law Team, which brings the law to New York City high school students and community groups. For more on the school to prison pipeline, go to http://www.nyclu.org/issues/youth-and-student-rights.

Halliburton/KBR Employee Still Has No Access to the Courts

In light of the Franken Amendment currently pending in Congress, we thought it timely to re-post our earlier commentary on Jamie Leigh Jones' lack of access to the justice system. When first accepting employment with KBR/Halliburton, Jones had been forced to sign a mandatory arbitration clause which has now left her unable to pursue accountability for having been raped on the job.

Read Halliburton/KBR Employee Has No Access to the Courts.

Another KBR Rape Victim Steps Forward

ABC News reports that another KBR/Halliburton rape victim has come forward. Dawn Leamon is scheduled to testify today before Congress that she was raped earlier this year by a U.S. soldier and a KBR colleague. Mrs. Leamon is the latest of three courageous women to come forward and demand that her employer be held accountable.

Lawyers Can Lose Rights, Too

Joining the ranks of Halliburton and Hooters, the law firm Kirkland & Ellis will force its associates to sign mandatory binding arbitration agreements as a condition of continued employment. Mandatory binding arbitration is an extrajudicial perversion of justice that substitutes open court with private tribunals that shield proceedings from scrutiny or appeal. Arbitration has spread like a festering cancer, latching onto employment agreements, cellphone contracts, and even medical waivers. Let's look at Kirkland & Ellis' proposal, starting with their absurdly hypocritical critique of litigation.