Imagine you sign a contract for a cell phone. You agree to pay $50 per month. At the end of the month you get your bill and it’s $200 instead of the agreed upon amount. Now, imagine you’re one of 10,000 customers that the phone company has done this to. You meet with a lawyer, you form a class and sue the phone company. A class action lawsuit is born.
Not so fast, says the phone company, you signed a contract. In the contract is an arbitration agreement. We can’t go to court, we must go to arbitration. And, by the way, there are no class actions in arbitration. You must proceed on your own. If you lose, you pay for your own legal fee plus the fees of the phone company. Sound fair?
The New York Times has published a three part series about forced arbitration clauses in consumer contracts. These clauses, slipped into contracts ranging from cell phones to nursing, strip a consumer from their ability to sue or form a class action. Instead, consumers are forced to arbitrate their cases.
I’ve written before about the dangers of forced arbitration. (See Class Dismissed: Concepcion and the End of Class Arbitration). Over the last few years, as the New York Times reports “it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.”
Corporations are increasingly filing – and winning – legal motions to force plaintiffs in federal class actions out of the courts and into private arbitration hearings. In arbitration, plaintiffs must pursue claims as individuals and in private proceedings. The problem is that most damages are very low, often less than $100, while legal fees remain sky high. The Economic Policy Institute Explains:
Giving up the constitutionally protected right to sue in state or federal court is a big deal and is often the result of ignorance and deceit: millions of people have no idea the clauses are there in the fine print of contract provisions written in legalese that few individuals ever read or comprehend. They don’t find out they’ve lost their rights until they need them.
Individuals give up not just their right to go to court but all protections regarding the venue of any hearing their claim will receive (for example, the agreement might require arbitration in a city a thousand miles away). They might give up certain remedies and the right to appeal even if the arbitrator gets the law completely wrong, and give up the essential right to join with other victims to file a class action, especially important when each claim is small and no single individual could rationally pay to hire a lawyer and bring a lawsuit for such a small sum.
The myth is that arbitration is preferable because it allows individuals to resolve their grievances easily, quickly, and cheaply. In fact, arbitration can be more expensive for a plaintiff than a civil suit because instead of a small filing fee in court, the plaintiff will have to pay half of the arbitrator’s fee, or sometimes all of it if the arbitration clause includes a “loser pays” provision. Legal fees can be ruinous, and the Times story relates the case of a woman who owes $200,000 in attorney fees after losing a case in which her former employer allegedly destroyed evidence.
With businesses using forced arbitration, consumers are unwittingly giving up their right to sue in a traditional forum – the court room. As was the case in AT&T v. Concepcion. In AT&T v. Concepcion, customers said the company had promised them a free phone if they signed up for service, and then, when they didn’t get the free phone, charged them $30.22 for it anyway. While these damages may seem trivial, multiplied by the number of consumers affected, the damages would be significant as a class.
Forced to arbitrate as an individual over the $30 fee, the costs of arbitration and the risks of losing and paying legal fees for both sides, outweigh the benefits of proceeding through the process and remedying the wrong.
The costs associated with arbitration are too high and the risks too great for consumers to proceed and get the justice they deserve. For example, the data on consumer arbitration obtained by The Times shows that Sprint, a company with more than 57 million subscribers, faced only six arbitrations between 2010 and 2014.
Forced arbitration clauses are just another tool to prevent access to the courts and whittle away the rights of consumers.