That seems a rather harsh way to describe the 30 Republican senators who voted with Jeff Sessions (R-AL) against Al Franken’s proposal to deny defense contractors to outfits (such as KBR) that use binding-arbitration clauses to prevent being sued when some of their employees rape other employees. Â And of course we’re all really fair-minded here at the RBC, with not a partisan bone in our collective body.
So let me just throw this out as a challenge: Â can anyone name a good argument for voting against the Franken provision? Â Here’s a statement of the facts in the gang-rape case that KBR was able to duck responsibility for. Â And here’s a story with some quotes from Sessions.
The good news is that none of the Republican women voted with Sessions. Â The bad news is that three-quarters of the Republicans in the Senate did.
And someone in the White House needs to have a serious talk with the Secretary of Defense to remind him that there was an election last fall. Â I can understand the bureaucratic politics that led DoD to oppose the bill – after all, the people who gave all those contracts to Dick Cheney’s old company are mostly still in place – but this one needed some adult supervision, and Gates failed to provide it.
16 thoughts on ““Objectively pro-rape”?”
I don't see anything in either of those stories that says that KBR was able to avoid responsibility due to the presence of an arbitration clause. It is quite possible that she could win in arbitration, get an award, which is easily convertable into a judgment. You presume that because the claim had to be made in arbitration, that the company automatically won. Being a respondent in arbitration is no less getting "sued" than being a defendant in a lawsuit in court. Arbitration panels hear cases of sexual harassment and other serious matters all the time, particularly to my knowledge before FINRA (for the securities industry) and while there may be some grousing about the results, courts are also far from perfect. I would be interested to know whether she went to arbitration, what the result was, and which arbitral body administered the arbitration. Of course, she could only be required to arbitrate if she agreed to it to begin with, so maybe that was a bit of fine print that she should have considered, although its understandable.
Even if she didn't recover, these kind of cases are pretty weak against employers. Do you believe that Yale University is liable for that kid who killed the girl last month? Why?
I believe that your thinking may be colored by some idea that arbitration is always a bust for the claimant, but that remains to be seen. Here is an abstract of a paper on SSRN regarding FINRA arbitration, including the availability of punitive damages, which concludes that there is little difference between courts and arbitration panels:
Punitive Damages in Securities Arbitration: An Empirical Study
Stephen J. Choi
New York University – School of Law
Cornell University – School of Law
This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations, and that 9.1% of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We also test whether securities arbitration results in different punitive damages compared with litigation before juries and judges. The relation between punitive and compensatory awards did not differ substantially between the securities arbitrators’ data and data on juries available from periodic Civil Justice Surveys by the Bureau of Justice Statistics. The rate of punitive awards by arbitrators was higher than the overall rates for juries and judges and slightly lower than the rate of punitive awards by juries in cases lacking bodily injury.
If she were in court, it might be possible that on forum non conveniens grounds that the proper forum would be in Baghdad. Are you saying that she'd be better off in a Baghdad courtroom rather than before an arbitration panel?
Perhaps more to the point: why do you prefer court to arbitration? What's the difference in your mind?
My intuition is that plaintiffs lawyers prefer court to arbitration, even if they are about equally favorable to plaintiffs/claimants in the aggregate because the possibility of a blockbuster case in court is greater. If you lose in court, it tends to be quicker — on a motion to dismiss or summary judgment. Thus, the lawyer discovers much more quickly which cases are potential winners and which are losers. In arbitration, it's much more common for the case to go all the way through the hearing.
A good argument? They don't wanna! They ain't gonna! It's the party of "No we won't" Amazing that any Republicans voted for it. Maybe their wall is cracking.
It is a bit troubling that it is not retroactive. I suppose it will make good amunition in other jurisdictions but you can bet the Texas court's finding will end up in front of our pro-corp friends in the SCOTUS.
But bully for Al Franken!!! So much for all of his detractors' claims that he is "just" a light weight comic. Funny is the heart of the truth. Anyone who has read his books knows the guy has a clear head and does his homework. I hope he doesn't let concern about being percieved a unserious stop him from using his wit to cut through the BS. He is going to be a great senator.
One difference, in my mind, is that the public deserves to know what kinds of "misbehavior", to what degree, companies are willing to tolerate. Arbitration keeps that private.
Securities arbitration is something of a special case, because both sides are typically well funded. A better model here would be the record of individual-vs-company arbitration, where 90-plus percent in favor of the company has been quoted, along with statements by arbiters that finding for individuals leads to loss of assignments.
What opened KBR up to sanction in this case, it should be noted, was not just the failure to provide adequate security that led to the rape and imprisonment, but the subsequent threats and retaliation by management against the victim. This record makes it rather unlikely that the company would cooperate with an arbitration procedure in a way that could lead to a good outcome.
But more generally, the government pretty much can impose whatever non-unconstitutional requirements it chooses on contractors; if they don't like the rules, they can simply refrain from bidding. That's the way the free market works, isn't it? (So you would have to make the argument that KBR, Lockheed et al would cease bidding in order to argue against the bill…)
The Obama administration's Department of Defense opposed this giveaway to trial lawyers, the only group in the country that is opposed to arbitration. Is the Obama administration objectively pro-rape?
Someone needs to have a talk with Mark and remind him that Secretary Gates was chosen for his position by President Obama.
"…the only group in the country that is opposed to arbitration"
Maybe the collected data would differ, but a million anecdotes have arbitrators favoring the powerful, and companies which force arbitration often get to choose which arbitrators to hire.
Let's say that the plaintiff never filed suit because she immediately got an ample out of court settlement that included a confidentiality provision. Doesn't that also keep it private? Are you telling me she'd you'd prevent the plaintiff from making that promise?
Whether in arbitration or court there are certain cases where plaintiffs or claimants retain counsel on a contingency basis, as this is how our system solves the problem of funding. It doesn't look like this plaintiff had any trouble hiring counsel. My understanding of those 90% pro company numbers is that they come from consumer arbitrations before organizations such as the National Arbitration Forum, not where you have what is apparently a serious tort case as you have here. As to those "pro company" numbers, while I would concede that perhaps those type of arbitrations are less than ideal, do you have any doubt that the vast majority of consumers actually owe the debts alleged by credit card companies and the like? Do you have any idea what the comparable percentage is in ordinary debt collection cases in small claims court?
Different arbitration forums offer different means of choosing the arbitrators. If its too one sides, it can be thrown out as it was in a case involving Hooters. Surely, in FINRA, if there is any incentive to favor the repeat players it exists there – how many cases is Merrill Lynch going to have versus some pensioner who was wiped out by his stockbroker? Yet, it seems that the imperical results are defensible.
As I said before, , my intuition is that court is favored by Plaintiff's lawyers because what my intuition tells me are the likelihoood of extreme results — sometimes headline grabbing verdicts, but also, importantly, losses on dispositive motions. In arbitration you might be less likely to walk away completely emptyhanded, but you're also forced to litigate the little or weak case all the way through.
== Being a respondent in arbitration is no less getting “sued” than being a defendant in a lawsuit in court. ==
Yes, it is less than getting sued. First, in a lawsuit, the discovery and testimony would be largely, if not entirely, public. Second, a jury, subject to questioning before being seated, gets to decide liability and damages, not a single individual arbiter whose biases and prejudices are unknown and untested in any meaningful way. Third, your definition of "responsibility" is pretty narrow. In arbitration, information about the incident can be hidden from the public, so there is no public acknowledgment of responsibility as there is with a lawsuit – like with a settlement, the arbiter will likely allow the company to deny liability while paying a settlement amount, even assuming the victim wins. "Being held 'responsible'" is not the same as "being held 'liable.'"
As for the claim that this is similar to the Yale incident, yes Yale should be held liable if they engaged in negligent hiring or oversight, something that can only be reasonably found through discovery and litigation. The same is true of this company: if they knew or had reason to know that they were hiring individuals who would engage in gang rapes, took no precautions to protect their employees from workplace violence, or took actions after the incident that enhanced the injury (which they apparently did), then yes they should be held liable. Imagine if Yale upon discovering a still living student who had been assaulted by a fellow worker held her in a lab animal containment area, denied treatment for stab wounds, and covered up for the employee committing the assault. Damn tootin' they would be liable.
This suggests that your analysis is "colored" by bias much more than Kleiman's.
From what's written here, I don't know who's liable (or prevented from) being sued by whom.
I would hope those who were raped could bring suits regarding to a hostile workplace environment against the employed AND against the individual perpetrators.
That said, I am appreciative of the civil discource in the comments. Small but positive sign of progress.
My understanding is that all of these systems have some rules intended to make sure that the arbitrator has some claim to independence. But despite this, the arbitrators depend on repeat business, and the firms that "independently" arrange arbitration are selected by the big companies whose contracts mandate disputes be taken to arbitration. Arbitrators cannot help but be aware that if they develop a reputation for ruling against the companies they become less likely to be hired to arbitrate future disputes, and arbitration providers whose arbitrators too often rule against the big companies know that when the arbitration contract is renewed it's likely to go to a different provider. In other words, the incentives all work to reward arbitrators who side with the powerful.
And note: this isn't just some companies you've heard of having disputes with people you've never met – it's almost certainly you, as well. It's extremely likely that you've signed some service agreement, some rental contract, and/or some software license that sharply limits your rights to go to court in the event a dispute arises.
Did I really write "imperical"? D'oh!
Arbitration providers like the American Arbitration Association do not have contracts with the parties to the arbitration agreements. Rather, the agreement between the company and the person designates the organization which will offer you a list of arbitrators from its panels.
The Franken bill has nothing to do with consumer arbitration, which is a different kettle of fish, and which a different bill is pending to address that question.
While there may be some repeat player bias, this can be to some extent mitigated by the fact that it is not individual claimants who select the arbitrators. Rather, it is the claimant's lawyers. Thus, to the extent that lawyers specialize in claimant's cases (as some do) these lawyers become repeat players themselves and provides mitigation of the effects.
I won't deny that some companies in the consumer context use arbitration clauses or forum selection clauses as a ploy to increase transaction costs to discourage claims. Those concerns are completely separate, from the instant case. Given a big enough case, the transaction costs diminish as a factor in barring claims. And assuming the truth of the Plaintiff's allegations, the potential damages are much greater than any transaction costs imposed.
I read the case which states that the Plaintiff's original lawyer filed a claim in arbitration in 2006, then switched lawyers. The second lawyer filed a court case and chose to litigate the issue of whether the claim was subject to the arbitration clause — and won, which was upheld on the appeal. The prevailing ground — the one advanced by the plaintiff — was that the allegations did not "relate to" her employment. There was no claim that the arbitral forum was inherently unfair. The plaintiff did not prevail on her claim that the Texas arbitration law prohibited arbitration claims for personal injuries, but that would be pretty clearly pre-empted by the Federal Arbitration Act as she is in federal court.
By the way, federal judges aren't exactly Michael Moore clones themselves. And furthermore, it appears that the EEOC made only two findings: (1) that the plaintiff had been sexually assaulted, and (2) that the investigation by KBR was inadequate. I don't know if those add up to liability.
The real shame in this is that there is no jurisdictional authority to impose criminal penalties or even investigate. The Bushies made sure of that. No local authority, no military authority. That's why these yahoos thought they could get away with this atrocity. Who investigated to determine the facts in this case? Was it KBR? Obviously if parts of the rape kid 'mysteriously disapeared' the chain of evidence has been irrepairably compromised.
The truth is that this is just one more piece of the Frankestien Monster of chaos intentionally created by the Bush administration to wreck the ability of the US govenment to function. That photo of Karl Rove thumbing his nose and sticking out his tongue like a bratty nine year old comes to mind. I know that sounds petty but that really is the sad root of this mess. Spoiled children of privilege were allowed to treat our national honor like their own personal rumpus room. The results were inevetable.
"Arbitration providers like the American Arbitration Association do not have contracts with the parties to the arbitration agreements. Rather, the agreement between the company and the person designates the organization which will offer you a list of arbitrators from its panels. "
Oh, gee, the company gets to chose the list. What was that Tammany Hall saying? "I don't care who does the electin', so long as I do the nominating."
"While there may be some repeat player bias, this can be to some extent mitigated by the fact that it is not individual claimants who select the arbitrators. Rather, it is the claimant’s lawyers. Thus, to the extent that lawyers specialize in claimant’s cases (as some do) these lawyers become repeat players themselves and provides mitigation of the effects."
Which is contradicted by your first paragraph.
== . . . it appears that the EEOC made only two findings: (1) that the plaintiff had been sexually assaulted, and (2) that the investigation by KBR was inadequate. I don’t know if those add up to liability. ==
It is not the EEOC's function to determine negligent hiring issues or whether the company's actions in "jailing" their employee violated her rights or was tortious, so this is irrelevant to the issue of arbitration vs litigation and a disingenuous diversion of the debate.
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