Forced Arbitration: Giving Up Our 7th Amendment Right

Day after day we are bombarded with articles, news stories, and debate surrounding our 2^nd Amendment rights.  But what about our 7^th Amendment rights?  This is our right to a trial by jury for corporate violations affecting consumers and employees, such as medical malpractice, discrimination, sexual harassment, fraud, theft, elder abuse, and wrongful death.

Over the course of the last 30 years and with the help of a major Supreme Court decision in 2011, Americans have slowly lost their right to a jury trial for corporate disputes. Today, large and small companies are using arbitration clauses buried in the fine print of contracts as a way to circumvent the courts and ban people from joining together in class-action lawsuits.  Recently, the New York Times published a 3-part, in-depth series on the rise of arbitration clauses and the erosion of employee rights, consumer rights, and our 7th Amendment rights.

Major companies like Netflix, AT&T, T-Mobile, Starbucks, as well as small local businesses, rental car companies and online retailers – to name a few, all have arbitration clauses buried in their contracts, which leave consumers and employees powerless against stipulations that are heavily tilted in the company’s favor.

In many cases, the fine print expressly prohibits the consumer or employee from suing in a court of law, names individual arbitration as the only method to resolve any disputes, and, at times, goes even further by naming a specific arbitration company that must be used. Oftentimes, the arbitrators hired to hear these cases view the company as their employer.  The arbitrators feel pressure to rule in favor of the company or risk losing future arbitration work.

So where is the corporate accountability? Where is the transparency?

It doesn’t exist. Arbitration hearings are private.   There is no judge, no jury, or right to an appeal.  The arbitrators don’t have to follow any specific laws.  And, most importantly, they don’t have to disclose the terms or conditions of the rulings.

We’ve all heard the saying, “beware of the fine print”.   This saying is more true now than ever before.  The problem is, we cannot escape the fine print.  It’s everywhere:  cell phone contracts, cable/satellite contracts, employment agreements, nursing home contracts, rental car agreements, and the list goes on.

As a concerned citizen, you can do something to protect the rights of employees, consumers and your right to a trial by jury:

• Educate yourself on forced arbitration
• Learn more about fair arbitration
• Urge members of congress to end forced arbitration
• Write a letter to the editor of your local newspaper about forced arbitration

Matt Casey is a partner with Casey & Devoti, a St. Louis-based personal injury law firm.  This article originally appeared in October 2015 on The Legal Examiner blog.