On Page 5 of a credit card contract used by American Express, beneath an
explainer on interest rates and late fees, past the details about annual
membership, is a clause that most customers probably miss. If cardholders have
a problem with their account, American Express explains, the company “may elect
to resolve any claim by individual arbitration.”
Those nine
words are at the center of a far-reaching power play orchestrated by American
corporations, an investigation by The New York Times has found.By inserting individual arbitration clauses into a
soaring number of consumer and employment contracts, companies like American
Express devised a way to circumvent the courts and bar people from joining
together in class-action lawsuits, realistically the only tool citizens have to
fight illegal or deceitful business practices.
Over the last
few years, 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.
Among the class actions thrown out because of the clauses was one
brought by Time Warner customers over charges they said mysteriously appeared
on their bills and another against a travel booking website accused of
conspiring to fix hotel prices. A top executive at Goldman Sachs who sued on
behalf of bankers claiming sex discrimination was also blocked, as were
African-American employees at Taco Bell restaurants who said they were denied
promotions, forced to work the worst shifts and subjected to degrading
comments.
Some state judges have called the class-action bans a
“get out of jail free” card, because it is nearly impossible for one individual
to take on a corporation with vast resources.
Patricia Rowe of Greenville, S.C., learned this
firsthand when she initiated a class action against AT&T. Ms. Rowe, who was
challenging a $600 fee for canceling her phone service, was among more than 900
AT&T customers in three states who complained about excessive charges,
state records show. When the case was thrown out last year, she was forced to
give up and pay the $600. Fighting AT&T on her own in arbitration, she
said, would have cost far more.
By banning class actions, companies have essentially
disabled consumer challenges to practices like predatory lending, wage theft
and discrimination, court records show.
“This is among the most profound shifts in our legal
history,” William G. Young, a federal judge in Boston who was appointed by
President Ronald Reagan, said in an interview. “Ominously, business has a good
chance of opting out of the legal system altogether and misbehaving without
reproach.”
More than a
decade in the making, the move to block class actions was engineered by a Wall
Street-led coalition of credit card companies and retailers, according to
interviews with coalition members and court records. Strategizing from law
offices on Park Avenue and in Washington, members of the group came up with a
plan to insulate themselves from the costly lawsuits. Their work culminated in
two Supreme Court rulings, in 2011 and 2013, that enshrined the use of
class-action bans in contracts. The decisions drew little attention outside
legal circles, even though they upended decades of jurisprudence put in place
to protect consumers and employees.
One of the
players behind the scenes, The Times found, was John G. Roberts Jr., who as a
private lawyer representing Discover Bank unsuccessfully petitioned the Supreme
Court to hear a case involving class-action bans. By the time the Supreme Court
handed down its favorable decisions, he was the chief justice.
Corporations
said that class actions were not needed because arbitration enabled individuals
to resolve their grievances easily. But court and arbitration records show the
opposite has happened: Once blocked from going to court as a group, most people
dropped their claims entirely.
The Times
investigation was based on thousands of court records and interviews with
hundreds of lawyers, corporate executives, judges, arbitrators and plaintiffs
in 35 states.
Since no
government agency tracks class actions, The Times examined federal cases filed
between 2010 and 2014. Of 1,179 class actions that companies sought to push
into arbitration, judges ruled in their favor in four out of every five cases.
In 2014 alone,
judges upheld class-action bans in 134 out of 162 cases.
Some of the
lawsuits involved small banking fees, including one brought by Citibank
customers who said they were duped into buying insurance they were never
eligible to use. Fees like this, multiplied over millions of customers, amount
to billions of dollars in profits for companies.
The data provides only part of the picture, since it does not capture
the people who were dissuaded from filing class actions.
A spokeswoman for American Express said that over the
last few years, banking regulators have examined the company’s business
practices, largely obviating the need for class actions. The regulators “have
required significant remediations and large fines to address issues they found,
with very little loss in value to the consumer,” said the spokeswoman, Marina
H. Norville.
Law enforcement officials, though, say they have lost
an essential tool for uncovering patterns of corporate abuse. In a letter last
year to the Consumer Financial Protection Bureau, attorneys general in 16
states warned that “unlawful business practices” could flourish with the
proliferation of class-action bans.
In October, the bureau outlined rules to prevent
financial firms from banning class actions. Almost immediately, the U.S.
Chamber of Commerce galvanized forces to stop the move.
Andrew J. Pincus, a law partner at Mayer Brown in
Washington who has represented companies that use arbitration, said class
actions yielded little relief for plaintiffs. “Arbitration provides a way for
people to hold companies accountable without spending a lot of money,” Mr.
Pincus said. “It’s a system that can work.”
Support for that assertion has been anecdotal, since
there is no central database of arbitrations. But by assembling records from
arbitration firms across the country, The Times found that between 2010 and
2014, only 505 consumers went to arbitration over a dispute of $2,500 or less.
Verizon, which has more than 125 million subscribers,
faced 65 consumer arbitrations in those five years, the data shows. Time Warner
Cable, which has 15 million customers, faced seven.
One federal judge remarked in an opinion that “only a
lunatic or a fanatic sues for $30.”
Daniel Dempsey of Tucson admits he might be both. He
has spent three years and $35,000 fighting Citibank in arbitration over a $125
late fee on his credit card. Mr. Dempsey, who previously worked in Citi’s
investment bank, said the erroneous charge ruined his credit score, and he
vowed to continue until he was awarded damages.
The odds are not in his favor. Roughly two-thirds of
consumers contesting credit card fraud, fees or costly loans received no
monetary awards in arbitration, according to The Times’s data.
The Supreme Court’s rulings amounted to a legal coup
for a group of corporate lawyers who figured out how to twin arbitration
clauses with class-action bans. The lawyers represented clients that had paid
billions of dollars to resolve class actions over the years. The lawsuits,
companies said, were driven by plaintiffs’ lawyers who stood to make millions
of dollars. They said they had no choice but to settle even those cases that
were without merit.
“These lawsuits were not about protecting consumers
but about plaintiffs’ lawyers,” said Duncan E. MacDonald, a former general
counsel for Citibank who was part of the group. “These were nuclear weapons
aimed at companies.”
Consumer advocates disagreed. A class action, they argued, allowed
people who lost small amounts of money to join together to seek relief. Others
exposed wrongdoing, including a case against auto dealers who charged minority
customers higher interest rates on car loans.
The consequences of arbitration clauses can be seen
far beyond the financial sector. Even lawsuits that would not have been brought
by a class have been forced out of the courts, according to the Times
investigation. Taking Wall Street’s lead, businesses — including obstetrics
practices, private schools and funeral homes — have employed arbitration
clauses to shield themselves from liability, interviews and arbitration and
court records show.
Thousands of cases brought by single plaintiffs over
fraud, wrongful death and rape are now being decided behind closed doors. And
the rules of arbitration largely favor companies, which can even steer cases to
friendly arbitrators, interviews and records show.
The sharp shift away from the civil justice system has
barely registered with Americans. F. Paul Bland Jr., the executive director of
Public Justice, a national consumer advocacy group, attributed this to the
tangle of bans placed inside clauses added to contracts that no one reads in
the first place.
“Corporations are allowed to strip people of their
constitutional right to go to court,” Mr. Bland said. “Imagine the reaction if
you took away people’s Second Amendment right to own a gun.”
A
POWERFUL COALITION FORMS
At Italian Colors, a small restaurant tucked in an
Oakland, Calif., strip mall, crayons and butcher paper adorn the tables, and a
giant bottle of wine signed by the regulars sits in the entryway.
The laid-back vibe matches that of the restaurant’s
owner and chef, Alan Carlson, who prides himself on running an establishment
that not only serves great food — one crowd-pleaser is the spaghetti Bolognese
— but also doesn’t take itself too seriously.
“I’ve been a ski bum, a line cook at a Greek diner and
owned restaurants, and it’s all been about having fun,” Mr. Carlson said.
Somewhat of a libertarian, Mr. Carlson said he used to
associate big lawsuits with “ambulance chasers.” But that was before he needed
one.
In 2003, he sued American Express on behalf of small
businesses over steep processing fees. The fees — 30 percent higher than Visa’s
or MasterCard’s — were hurting profits, but the restaurants could not afford to
turn away diners who used American Express corporate cards.
It was a classic antitrust case: A big company was
accused of using its monopoly power to charge unfair prices. But as Italian
Colors v. American Express wended its way through the courts over the next 10 years,
it became something far more momentous.
When the case was filed, the alliance of corporate
interests, including credit card companies, national retailers and carmakers,
had already been strategizing on how to eliminate class actions.
The effort was led by a lawyer at Ballard Spahr, a
Philadelphia firm that represented big banks. The only thing the lawyer, Alan
S. Kaplinsky, had in common with Mr. Carlson was a first name. Laser-focused
and admirably relentless, Mr. Kaplinsky preferred his polo shirts buttoned up
and tucked in.
Among his clients were Alabama money lenders accused of duping customers
into taking out credit cards. Settlements were costly; trying the cases in
front of sympathetic juries was worse.
Mr. Kaplinsky was searching for solutions when he
remembered helping, as a young lawyer, a mutual savings and loan association
draft an arbitration clause, he said in an interview. Banks could take it a
step further, he thought, by writing class-action bans into the clauses.
“Clients were telling me they were getting killed by
frivolous lawsuits and asking me what on earth could be done about it,” Mr.
Kaplinsky said.
He soon joined forces with lawyers at WilmerHale, a
firm that had represented big banks. The group invited corporate legal teams in
July 1999 to the law firm’s New York offices to strategize about arbitration.
Attendees included representatives from Bank of
America, Chase, Citigroup, Discover, Sears, Toyota and General Electric. At a
subsequent teleconference, participants dialed in remotely using an
easy-to-remember code: a-r-b-i-t-r-a-t-i-o-n.
Details of the meetings, and of more than a dozen
others over the next three years, were culled from court records filed in a
federal lawsuit in Manhattan and corroborated in interviews with lawyers who
attended.
The records and interviews show that lawyers for the
companies talked about arbitration clauses as a means to an end. The goal was
to kill class actions and send plaintiffs’ lawyers to the “employment lines.”
Of the companies participating, only American Express
and First USA had adopted an arbitration clause banning class actions; months
later, Discover Bank added its own. By the time the meetings concluded, many of
the companies had followed suit.
To keep track of whether judges upheld or rejected the
class-action bans, Mr. Kaplinsky set up a scorecard. In the positive column
were courts in Pennsylvania and Georgia, which upheld a clause used by some
companies that gave consumers a small window to opt out of arbitration.
On the negative side were courts in California and one
in Massachusetts, which struck down a class-action waiver in a Comcast cable
contract. The judge found that the ban would shield the company “even in cases
where it has violated the law.”
Many judges across the country did not object to
companies’ requiring consumers to use arbitration. But they bridled at
preventing those consumers from banding together to bring a case. State law guaranteed citizens a means to defend their
rights, and contracts that tried to take that away were “unconscionable,” many
judges said. In other words, class-action bans were unfair.
PETITIONING
THE HIGHEST COURT
The push by Mr. Kaplinsky’s group coincided with the
Chamber of Commerce’s own campaign against class actions, which they called a
scourge on companies.
In particular, the chamber pointed to an Illinois
judge who had ordered Philip Morris to pay more than $10 billion for playing
down risks associated with light cigarettes.
At the other end of the spectrum, the chamber also
criticized so-called coupon lawsuits that generated big paydays for lawyers and
little money for consumers. In one, against a television manufacturer accused
of selling sets with fuzzy pictures, plaintiffs each received $25 or $50
coupons while their lawyers collected $22 million.
“It’s not like the class-action system is a land of
milk and honey,” said Matthew Webb, a senior vice president at the Institute
for Legal Reform, a chamber affiliate.
Once a state or federal judge certifies plaintiffs as
a class, the suits are often unstoppable, the chamber has said — even if no one
has been harmed. It has also said that plaintiffs’ lawyers have brought cases
in jurisdictions that were known to be friendly to class actions.
The chamber scored a victory when Congress passed the
Class Action Fairness Act in 2005, which allowed companies to move cases into
federal court and out of state courts considered hostile to corporate
defendants.
Brian T. Fitzpatrick, a former clerk to Justice
Antonin Scalia who teaches law at Vanderbilt University, said criticizing class
actions for small awards was misleading. By their very nature, the lawsuits are
intended to help large groups of people get back small individual amounts, Mr.
Fitzpatrick said.
“Without a class action, if someone loses $500, they
will not be able to do anything about it,” he said.
Walter Hackett, who worked as a banker until 2007,
said the real threat was cases that force companies to abandon lucrative
billing practices.
“When banks
make mistakes or do bad things, they tend to do them many times and to many
people,” said Mr. Hackett, who switched sides and became a consumer lawyer.
With state courts still blocking their efforts, Mr.
Kaplinsky’s group focused on getting a case to the Supreme Court.
Success hinged on the justices’ applying the Federal
Arbitration Act, a dusty 1925 law that formalized the use of arbitration for
disagreements between businesses. Since the mid-1980s, the court had expanded
the scope of the law to cover a range of disputes between companies and their
employees and customers.
In fact, when Congress passed the act, lawmakers
specifically emphasized that it was meant for businesses. Some raised concerns
that companies would one day twist the law to impose arbitration on their
workers, according to minutes from a congressional hearing.
The Supreme Court had never taken a case that centered
on whether the Federal Arbitration Act allowed plaintiffs to form a class
action.
A lawsuit in California’s courts looked promising. The
defendant, Discover Bank, was accused of charging unfair fees. A lower court
upheld the bank’s class-action ban, but the state’s Court of Appeals negated
it, accusing Discover of trying to grant itself a “license to push the
boundaries of good business practices to their furthest limits.”
Discover, one of the companies involved with Mr.
Kaplinsky’s group, then petitioned the Supreme Court to intervene. Representing
the company was John G. Roberts Jr., at the time a prominent corporate defense
lawyer.
With much at stake, Mr. Kaplinsky said, he spoke with
Mr. Roberts and offered input on the brief Mr. Roberts was drafting to the
Supreme Court. “He was a really nice guy,” Mr. Kaplinsky said.
In the subsequent petition, Mr. Roberts wrote that the California
appeals court had overstepped its bounds in violation of the Federal
Arbitration Act. Allowing consumers to bring a case as a class, he wrote, would
violate the “core purpose of the Arbitration Act: to enforce arbitration
agreements according to their terms.”
In essence, companies were using the law to push
disputes out of court, and then imposing conditions that made it impossible to
pursue those disputes in arbitration.
The Supreme Court declined to take up the case.
A VICTORY FOR CORPORATIONS
Determined, businesses sweetened the terms of
arbitration to try to tempt the Supreme Court to wade into the fray, according
to interviews. A clause drafted for AT&T, for example, promised to award
certain customers who prevailed in arbitration at least $7,500 and to pay them
double their legal fees.
In 2010, the Supreme Court agreed to hear a case. In
AT&T v. Concepcion, customers said the company had promised them a free
phone if they signed up for service, and then charged them $30.22 anyway.
Once again, the ruling involved the California courts
and their rejection of a class-action ban as “unconscionable.” By then, Mr.
Roberts was chief justice.
Lawyers for both sides focused on the power of state
courts.
Mr. Pincus, the Mayer Brown partner, represented
AT&T and said that the Federal Arbitration Act superseded state law. In his
main argument, Mr. Pincus accused state courts of making up special rules to
discriminate against arbitration.
Deepak Gupta, who at age 34 was already known as a
skilled appellate lawyer, worked for the plaintiffs. Mr. Gupta countered that
the state courts should be free to enforce their own laws.
“We thought we had a fighting chance if we argued the
case was about the importance of states’ rights,” Mr. Gupta said in an
interview.
Sitting in the gallery during opening arguments, Mr.
Kaplinsky had a different take on the Roberts court, which seemed to favor
arbitration. “We were pretty sure we had his vote,” Mr. Kaplinsky said.
When the court ruled 5-4 in favor of AT&T, it
largely skipped over Mr. Pincus’s central argument.
“Requiring the availability of classwide arbitration,”
Justice Scalia wrote for the majority, “interferes with fundamental attributes
of arbitration.” The main purpose of the Federal Arbitration Act, he wrote, “is
to ensure the enforcement of arbitration agreements according to their terms.”
It was essentially the same argument Mr. Roberts had
made as a lawyer in the Discover case.
With the Supreme Court marginalizing state law, the
only option left for consumer advocates was to use a federal law to fight back.
Enter Mr. Carlson, the owner of Italian Colors, who
was still fighting with American Express. After the company won the first
round, Mr. Carlson’s lawyers appealed, saying the class-action ban prevented
merchants from exercising their federal rights to fight a monopoly.
“In a contest between just me — a restaurant in
Oakland — and American Express, who do you think wins?” Mr. Carlson said.
Individually, none of the merchants could pay for a
case that could cost more than $1 million in expert analysis alone.
The United States Court of Appeals for the Second
Circuit, which included Sonia M. Sotomayor, ruled in the plaintiffs’ favor in
2009.
American Express appealed again, and the case
ultimately went to the Supreme Court. By the time the court heard it, in 2013,
Ms. Sotomayor was a justice and recused herself.
The case centered on the Sherman Act, a muscular
antitrust law that empowered citizens to take on monopolistic entities.
Conservatives and liberals on previous Supreme Courts had consistently found
that Americans should be guaranteed a way to exercise that right.
On June 20, 2013, the justices abandoned the precedent
and ruled in favor of American Express.
Arbitration clauses could outlaw class actions, the
court said, even if a class action was the only realistic way to bring a case.
“The antitrust laws do not guarantee an affordable procedural path to the
vindication of every claim,” Justice Scalia wrote.
Within hours, critics from across the political
spectrum registered their disbelief on legal blogs. “No one thinks they got it
right,” Judge Young of Boston wrote later in a decision.
The most withering criticism came from Justice Elena
Kagan, who wrote the dissenting opinion. “The monopolist gets to use its
monopoly power to insist on a contract effectively depriving its victims of all
legal recourse,” she wrote. She went on to say that her colleagues in the
majority were effectively telling those victims, “Too darn bad.”
Back in Oakland, Mr. Carlson got the news from his
lawyer. The restaurateur said he had no choice but to continue accepting
American Express. About a third of his customers use it, including many who run
up bigger tabs because the cards are tied to expense accounts.
Mr. Carlson did make one change, though. He added a special bourbon
cocktail to the menu. “I call it the Scalia,” he said. “It’s bitter and tough
to swallow.”
A CLAUSE FOR ALL OCCASIONS
Signs posted in a theater in Los Angeles and a
hamburger joint in East Texas informed guests that, simply by walking in, they
had agreed to arbitration. Consumer contracts with Amazon, Netflix,
Travelocity, eBay and DirecTV now contain arbitration clauses. Even Ashley Madison,
the online site for adulterers, requires that clients agree to them.
It is virtually impossible to rent a car without
signing an agreement like Budget’s, which reads, “Arbitration, No Class
Actions.” The same goes for purchasing just about anything online, which makes
adding the clauses even easier.
The “birth of a thousand clauses,” as one corporate
lawyer put it, has caught millions of Americans by surprise.
James Pendergast had no idea he had agreed to
arbitration until a class-action suit he filed on behalf of Sprint customers in
Miami was thrown out of court. They had sued the company after noticing that
their monthly bills contained roaming charges incurred in their homes.
The cost of arbitration was far more than the $20
charges Mr. Pendergast was contesting. And his lawyer, Douglas F. Eaton,
advised him that winning would require high-tech experts at a six-figure bill.
If he lost, Mr. Pendergast might even have to pay for
Sprint’s lawyers. “Why would anyone risk that?” Mr. Eaton said.
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.
“Just imagine how many customers Sprint can take money
from because of arbitration,” Mr. Pendergast said.
Sprint declined to comment.
Few industries more keenly understood the potential of
arbitration clauses than financial firms. A particularly bruising set of
lawsuits starting in 2009 revealed an accounting device that more than a dozen
banks employed on debit card transactions. Customers accused the banks of
deducting big payments like monthly rent before taking out smaller charges like
those for a pack of gum — even if the customer bought the gum first.
Changing the order of transactions, the lawsuits said,
allowed the banks to increase the number of times they could charge overdraft
fees, typically $35 a pop. Forced into court, the banks settled the cases for
more than $1 billion.
At least seven of the banks in the overdraft cases
have since added arbitration clauses, The Times found.
A lot is at stake. Since regulations prompted by the
2008 financial crisis crimped profits from trading and other risky activities,
revenue from fees has become crucial to banks’ profits.
Together, the three largest banks in the country —
JPMorgan Chase, Bank of America and Wells Fargo — made more than $1 billion
through overdraft fees in the first three months of 2015, according to the
Federal Deposit Insurance Corporation.
In interviews, corporate executives and defense
lawyers predicted that consumers would use arbitration once it became more
familiar. They added that people could also get relief in small claims court,
an option often not covered by arbitration clauses. But much like arbitration,
few people go to small claims court, according to court data and interviews
with judges.
While many companies also include an opt-out provision
on arbitration — typically between 30 and 45 days — few consumers take
advantage of it because they do not realize they have signed a clause to begin
with, or do not understand its consequences, according to interviews with
lawyers and plaintiffs.
Companies noted in interviews that arbitration incentivized
them to resolve many customer disputes informally.
Matthew Kilgore, of Rohnert Park, Calif., had no such
luck.
A bread truck driver, Mr. Kilgore had dreamed of being
a helicopter pilot ever since his father, who was in the Navy, took him to an
air show when he was a child.
At 28, after his first daughter was born, he enrolled
at Silver State Helicopters, a for-profit school in Oakland, taking out a
$55,950 loan from Key Bank to pay for the program.
Less than halfway into training, Mr. Kilgore got a call from his flight
instructor, who said Silver State was bankrupt. In disbelief, he drove to
Oakland the next day to find the school’s doors padlocked.
Key Bank and Student Loan Xpress, the school’s
preferred lenders, demanded that students pay back their loans for degrees they
never received. About 2,700 students, including Mr. Kilgore, joined in class
actions against the two lenders, accusing them of ignoring financial signs that
the school was in trouble.
Student Loan Xpress, whose contracts did not have an
arbitration clause, agreed to settle and forgave more than $100 million in
student loans. Key Bank, whose contracts did, used the clause to get Mr.
Kilgore’s lawsuit dismissed in 2013.
Key Bank declined to comment on Mr. Kilgore’s case,
but said the bank had forgiven a portion of many students’ loans.
Mr. Kilgore has not been able to pay back his loan,
which with interest has swelled to $110,000. With his credit ruined, he and his
wife cannot buy a house and he has abandoned his dream of becoming a pilot.
“It’s the worst decision I ever made,” he said.
BARGAINING POWER FADES
A hunter whose trophies are mounted on the walls of
his chambers in Philadelphia’s federal courthouse, Judge Berle M. Schiller
prefers to use a bow to catch his prey. He has stalked deer through the
Pennsylvania woods, tracked caribou in Quebec and pursued fleet-footed impala
through South Africa.
Hunting with
a rifle is “not a fair fight,” said Judge Schiller, 71, who applies the same
philosophy to his courtroom. Or at least he did until December 2013, when he
had to rule on a lawsuit against the owner of 39 Applebee’s restaurants in
Pennsylvania.
The class
action was brought by a former waiter on behalf of other low-wage employees.
The waiter, Charles Walton, said Applebee’s made workers sweep floors, stock
silverware, scrub booths and empty trash cans, but did not pay them a fair wage
for the extra tasks. The Applebee’s employees, who relied on tips, often ended
up making less than minimum wage. Employment lawyers said these practices were
widespread in the restaurant industry.
The Rose
Group, which owned the restaurants, defended its practices and urged Judge
Schiller to dismiss the lawsuit since Mr. Walton signed an employee contract
that included “a mutual promise to resolve claims by binding arbitration.”
The request
troubled Judge Schiller. “It is just these kinds of cases where it’s important
to have a jury,” he said.
Applebee’s
franchises, run by different owners, have faced similar class actions in
Alabama, Florida, Illinois, Kentucky, Missouri, New York, South Carolina and
Rhode Island.
In 2014,
Ronnie Del Toro brought a case while working as a waiter in the Bronx. Once
again, Applebee’s sought to have it thrown out.
In the
meantime, Mr. Del Toro said the restaurant’s owner and two hulking men,
including one who went by “Big Drew,” confronted him on the job. They warned
him to “stop being a little bitch” and withdraw his lawsuit, according to an
application for a restraining order that Mr. Del Toro filed in a Bronx court.
“I didn’t
wait to hear anymore,” said Mr. Del Toro, who moved to Brooklyn and got the
restraining order.
Apple-Metro
Inc., which owns the Bronx Applebee’s, did not return requests for comment.
Mr. Del Toro
now works at P.F. Chang’s, another restaurant chain. He had to sign an
employment contract with an arbitration clause to get the job.
Class-action
bans are also widely included in the employment policies of retailers,
including Macy’s, Kmart and Sears.
Even some
N.F.L. cheerleaders have had to agree to them. When a group of cheerleaders
sued the Oakland Raiders over working conditions, they discovered that Roger
Goodell, the N.F.L. commissioner, would preside over the arbitration. The
Raiders later agreed to use someone else.
The use of
class-action bans is spreading far beyond low-wage industries to Silicon Valley
and Wall Street, where banks like Goldman Sachs require some executives to sign
contracts containing the clauses.
Civil rights
experts worry that discriminatory labor practices will go unchecked as class
actions disappear.
Cases
brought by African-American employees against Nike in 2003 and Walgreens in
2005, for example, led the companies to change their policies. The drug company
Novartis paid $175 million to settle a class action brought by female employees
over promotions and pay.
Jenny Yang,
chairwoman of the Equal Employment Opportunity Commission, said arbitration
allowed “root causes” to persist. Part of the problem, Ms. Yang said, is that
arbitration keeps any discussion of discriminatory practices hidden from other
workers “who might be experiencing the same thing.”
The point
was not lost on Judge Schiller in Philadelphia, who has handled many employment
cases in his 15 years on the bench. Once an arbitrator himself for disputes
between companies, the judge said he had nothing against the forum, as long as
both sides wanted to go.
Among
thousands of employees at Applebee’s franchises, only four took the company to
arbitration between 2010 and 2014, according to The Times’s review of
arbitration data.
When lawyers
for Applebee’s argued before Judge Schiller to have the lawsuit thrown out,
they assured him that Mr. Walton, who brought the suit, could have turned down
the job and not agreed to the arbitration clause.
Judge
Schiller was not persuaded. “To suggest that he had bargaining power because he
could wait tables elsewhere ignores reality,” the judge wrote in court papers.
The Applebee’s workers, the judge wrote, must “chew on a distasteful dilemma”
of whether to “give up certain rights or give up the job.”
Despite his
own objections, Judge Schiller said he was bound by the Supreme Court
decisions. In his ruling, he noted the “lamentable” state of legal affairs and
dismissed the case.
With no
other option, Mr. Walton took his case to arbitration. In April, he lost.
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