The Supreme Court shafted consumers and employees this week in its decision in American Express Co. v. Italian Colors Restaurant by taking away their best weapon for forcing companies to treat them fairly.
This hurts you.
Say your credit card charged you a $45 late payment fee even though you paid on time. Suing the company over $45 is insane — you would rack up many times that amount in your first consultation with a lawyer.
What if more money is at stake? Say the multinational company you work for routinely pays you your regular $10 per hour wage for overtime work instead of paying time and a half, which would be $15 per hour. Again, suing is a losing proposition financially. Say it happened over the course of three years, you worked 50 weeks and took off two unpaid weeks per year, and you worked an average of five hours overtime each week, for a total of 750 hours. Your employer paid your straight wage of $10 per hour, so it stiffed you for $5 per overtime hour, which comes out to $3,750. If your lawyer charges $250 per hour, for just her first 15 hours of work — which isn’t anywhere near enough time to prepare for a trial — your lawyer will charge you that same $3,750.
Consumers and employees solved this problem by banding together to bring class actions. When 15,000 credit card customers pull together to sue the company for its wrongful $45 late fees, the case is suddenly worth $675,000. When 50,000 of the multinational’s employees pool their claims for unpaid overtime, their total loss is $1,875,000. Now hiring a lawyer is financially feasible.
Countless corporations have faced class actions like these and have paid dearly for taking advantage of individuals. Fed up, they devised a way to close the courthouse doors to these cases and force individuals to sue one by one. Their solution is called mandatory arbitration.
Technically you agree to give up your right to go to court or to bring an arbitration when you sign up for a credit card, a cellular plan, or, often, when you sign documents to start a job. It’s in the small print that you never read. To find an example I went to the website for my Visa card, but to get a copy of the agreement I signed I had to place a request and wait for up to 30 days for the bank to send me a copy, even though I signed the damn thing.
Fortunately, lawyer that I am, I still have a hard copy in my filing cabinet. Here’s what it says, with the irrelevant parts removed:
You and we agree that either you or we may, at either party’s sole election, require that any Claim be resolved by binding arbitration.
At this point it switches to all caps bold:
IF YOU OR WE ELECT ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, INCLUDING THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION. THE FEES ASSOCIATED WITH ARBITRATION MAY BE HIGHER THAN THE FEES ASSOCIATED WITH COURT PROCEEDINGS.
In English, that means that if you sue the bank, it can force you to try the claim in arbitration, where it will be decided by private individuals who are paid to arbitrate, not by appointed judges. What’s more, it may be more expensive to try your claim in arbitration than before a court, and you may have fewer rights: in court you could force the bank to hand over all the documents relevant to your case, and your lawyer could depose bank executives to find out what they know before a trial. In arbitration you probably won’t get a lot of that information.
But you signed over more than your right to go to court. The final blow is that you will have to try your claim alone. No class actions, no pooling of claims. You are on your own with your claim of $45 or $3,750.
In other words, you have will have little choice but to suck it up. If a big corporation steals your money you can’t get it back. And on June 20th, that is what the Supreme Court okayed. As Supreme Court Justice Elena Kagan wrote in her dissent, the Court basically told you “too darn bad.”
Don’t like it? Fortunately there is something you can do about it. Congress is considering a bill called the Arbitration Fairness Act, which would make it impossible to require anyone to take a case to arbitration if it involved an employment dispute, a civil rights dispute, a consumer dispute, or an antitrust dispute. That would mean that people with unfair late fees or unpaid wage claims, along with discrimination and other kinds of claims, could go to court and could participate in a class action. The Arbitration Fairness Act would effectively wipe this Supreme Court decision off the books.
To tell your Congressional representatives to vote for the Arbitration Fairness Act, please sign our petition.
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