One of Cranky Greg's favorite reads is the editorial page of the Wall Street Journal. But today, Cranky Greg damn near fell out his chair laughing at the bullshit that was written by an attorney, Christine Varney, a partner at Hogan and Hartson LLP. (Hogan and Hartson is a big-ass law firm that represents Big Business.)
Ms. Varney wrote a piece entitled: Arbitration Works Better Than Lawsuits.
In her article, Ms. Varney complains about The Arbitration Fairness Act of 2007, which is currently being studied by Congress. According to the Congressional Research Service, the proposed law does the following:
Declares that no predispute arbitration agreement shall be valid or
enforceable if it requires arbitration of: (1) an employment, consumer,
or franchise dispute, or (2) a dispute arising under any statute
intended to protect civil rights or to regulate contracts or
transactions between parties of unequal bargaining power.
Declares,
further, that the validity or enforceability of an agreement to
arbitrate shall be determined by a court, under federal law, rather
than an arbitrator, irrespective of whether the party resisting
arbitration challenges the arbitration agreement specifically or in
conjunction with other terms of the contract containing such agreement.
Ms Varney makes many ridiculous claims in her attack on this bill, which is merely designed to forbid most mandatory arbitration "agreements" and give consumers access to the courts.
The first thing she does is invoke the progeny of Satan himself: Plaintiffs' Lawyers! Horrors!
She says that access to the courts is "a bad deal for consumers." She says that the bill is based on the wrong assumption that litigation benefits consumers while arbitration does not. She argues that arbitration is long-established, successful method for resolving disputes without having to go to court. She says it can help consumers resolve disputes with Big Business without the high costs and legal fees of a full-blown lawsuit.
That is simply ridiculous. First of all, arbitration may be a long-established method of resolving cases, but so are courts. Most cases filed in court do not go to trial. Most are settled at mediation or are dismissed. Furthermore, courts have been around a lot longer than arbitration procedures. Concerning the delay and expense of fighting Big Business, that is usually the fault of Big Business itself! Most of them stonewall discovery, file motions after motions after motions, and employ other delaying tactics designed to wear-out the plaintiff, both emotionally and financially. The guy who gets screwed by the credit card company is not the one creating all the expense and delays in court.
Ms. Varney then makes the preposterous claim that arbitration actually helps level the playing field between consumers and big businesses!! Why does Big Business support arbitration, if it levels the playing field between it and consumers? Because Big Business knows arbitration takes the fact-finding out of the purview of citizens and places it into the hands of arbitrators bought and paid for by Big Business. It is just silly to think that Big Business wants to level the playing field for the consumer. If that's the case, why all the fine print in all of the ridiculously long agreements with credit cards, cell phones and damn near everything else? That language is not there to protect you, Mr. and Ms. Consumer! Big Business doesn't pay its attorneys to help the consumer. Trust old Cranky Greg on that one!
Ms. Varney says that without arbitration, consumers will have no redress because lawyers won't take their cases because there is not enough money. Then why does Ms. Varney make such a production at the start of her article about those mean old plaintiffs' attorneys who don't like mandatory arbitration because it keeps their "big dollar disputes" out of the courtroom?
She then goes on to say that arbitration is good for consumers, and she admits that Big Business often pays for all of the costs associated with arbitration. Duh! Of course they do! They pay for the arbitrators! What are the arbitrators going to do? Rule in favor of consumers?
Don't be naive. Most arbitrators are bought and paid for by Big Business. Don't kid yourself.
Ms. Varney then cites studies that she says prove that consumers are the winners with mandatory arbitration. The first study she cites is from....guess who?.....The American Arbitration Association!!!
Cranky Greg is not kidding! She actually refers to that "study" conducted by an association that depends on mandatory arbitration for its very own survival!!!
Does anyone really think the alleged "study" is accurate? And impartial?
She then refers to another study by the National Workrights Instutute which, she says, showed that consumers prevailed in 63% of cases brought in arbitration, as opposed to only 43% of cases filed in court. Cranky Greg looked to see if this is accurate, and found that the National Workrights Institute says arbitration agreements should be OPTIONAL and not mandatory. Varney argues for mandatory arbitration. Ms. Varney, obviously, doesn't let the facts get in the way of her analysis.
Remember, all this bill is designed to do is to prohibit most mandatory arbitration clauses: it does not say that parties cannot agree on their own to submit their disputes to arbitration.
Cranky Greg actually likes arbitration, but detests mandatory arbitration. If arbitration is such a good deal for the consumer, then there needn't be any mandatory arbitration clauses since consumers would be flocking to arbitrate. But that is simply not the case.
Ms. Varney hopes to confuse the reader and to distract the reader from the real purpose of the bill - which is to prevent Big Business from locking consumers out of the courthouse and resolving their disputes in a system that is controlled by Big Business.
Ms. Varney should be ashamed of herself for presuming that her readers are stupid and for twisting the facts. That is despicable behavior from an attorney who should know better.