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A new weapon in arbitration: sheer volume

nytimes.com

51–60 of 250 posts

Re: A new weapon in arbitration: sheer volume

#51
post #28

Oh, it's even worse than that for companies. The 9th and 10th circuits have both agreed that if the defense refuses to pay for arbitration, plaintiff can go to court. They're no longer barred from suing at that point. Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small…

This is interesting. Are they only allowed to sue to force going to arbitration, or is the situation opened to allow a lawsuit for whatever the original dispute was?

Re: A new weapon in arbitration: sheer volume

#52
post #10

Earlier quoted context omitted.

In cases where the arbitration clause is already in place, and the arbitrations have been filed, that would likely be difficult to do, as a result of the Alsup ruling. Where the arbitrations haven't begun yet, there's certainly some scope for attempting to neutralize this, by changing provider or terms. Interestingly, there's a potential conflict-of-interest brewing [1] around whether DoorDash's lawyers were so tight…

Also the way cases will be brought seems like it would create perverse incentives on the rulings. > The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.

> Also the way cases will be brought seems like it would create perverse incentives on the rulings.

> > The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers.

Very much so! And this seems to be why Alsup wanted the discovery documents made public, so people could draw their own conclusions on the lack of independence of the CPR.

I must confess I don't like the whole model of arbitration, as it feels full of perverse incentives to begin with - an arbitrator gets selected, so one that finds against the big company too often won't be getting much work!

Re: A new weapon in arbitration: sheer volume

#53
post #39
post #27

Earlier quoted context omitted.

Most of the bad reputation is deserved. Most US unions are horrible organizations. There are still some good unions, just not many. That doesn't make the concept of a union bad. They worked much better 50 years ago, even. It's a great concept, but the implementation got corrupted over the years. I don't think we'll fix unions' reputations without first fixing unions. And we really need more unions and more credible u…

Are you sure it was the union which forced the district not to remote teach? I live in an area where teachers are not unionized and the teachers are still getting paid and not teaching. The school district has signed contracts with the teachers which doesn't have any terms which stop payment because the schools close during the year and the district is not requiring remote learning because of equal access issues.

> doesn't have any terms which stop payment because the schools close during the year

And so they shouldn't! In many (most?) US states, the public schools are unconditionally funded by the state based on student enrollment figures. Cutting teacher pay during a closure under such a system would be a purely greedy move.

Re: A new weapon in arbitration: sheer volume

#54

I wonder why the issue of being able to waive away your rights - forced arbitration, non-competes, severance packages etc. never come up at the presidential campaign stage. Seems like this is pervasive enough to affect pretty much everyone. Or am I misunderstanding something here ?

I think because the issue seems too theoretical to most people. I'm betting that most people have never felt a negative impact from forced arbitration clauses, or non-compete agreements. Anecdotally, I've never once felt the need to take a company to court, only to be stymied by an arbitration clause. Nor have I been prevented from getting hired due to a non-compete. And I don't think I know anyone who has. I'm not s…

speaking from my personal experience, I've seen non-competes being pretty pervasive outside tech and some states like CA or MA, I've had competitors flat out refuse to proceed with an interview because I had a non-compete. whether it is enforceable is a different question but it does reduce opportunities.

Like you said, it's probably not what the majority of people are experiencing.

Re: A new weapon in arbitration: sheer volume

#55

Earlier quoted context omitted.

Saying that arbitration agreements are signing away your rights is analogous to saying that joining a union means signing away your rights, because it often entails agreeing to only work at union jobs (you're "signing away your rights" to work for non-union employers). Yes, you're engaging in a contract that limits your options but you're not relinquishing any actual rights. Just like how a union can condition employ…

Two differences that I see: A union is designed to protect your rights, forced arbitration is designed to limit your rights. Arbitration clauses are so ubiquitous that it would be almost impossible to operate in modern society while refusing to sign them.

A union may protect your rights, but they do ask for some in return - often the ability to work at non-union jobs. The point is, you're still "signing away your rights". You're agreeing that you won't do certain things that are within your right to do, as a condition to employment.

Arbitration is ubiquitous because even at the cost of hundreds of dollars per hour arbitration is a lot cheaper and faster than going to court. And if people don't like the results of arbitration, there's still the option of claiming impartial arbitration and filing a lawsuit anyway. Companies that have arbitration agreements still get sued.

Response to techsupporter, HN isn't letting me make a new comment:

> This is not accurate. Almost every mandatory binding arbitration clause of substance includes wording that the arbitrator's decision is final and cannot be appealed.

There is nothing to stop you from appealing anyway. The fact that you're trying to seek an outcome different from the result of private arbitration does increase the chances that the courts will decide to reject your case. It onus on the plaintiff to prove that arbitration was not done correctly.

There are good observations to be made about the impartiality of arbiters - it's companies that are usually the ones paying for their services, and so it's not hard to image that this creates a conflict of interest. But a company that can force arbitration, and then use an arbiter that had agreed to dismiss all complaints is not correct - the kind of scenario you lay out is exactly the reason why you can sue even after agreeing to arbitration.

Re: A new weapon in arbitration: sheer volume

#56
post #13

As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining? Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there? Are we just lucky here, like with universal health care?

Unions have suffered from a bad reputation in the United States over the past few decades. Some of it is deserved BTW; some big unions were/are corrupted and some were connected with organized crime. Even more innocently, unions have been quite conservative; as jobs and technology changed some were very resistant and fought modernization (requiring people who were not needed to be around). But a lot of it also stems…

It has to be said that most employers are corrupt in the US too, non-compete, arbitration, weird ways of paying salaries, generalized surveillance of employees, brutal layoffs, Gag orders in exchange for severance, etc.

Re: A new weapon in arbitration: sheer volume

#57
post #13

As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining? Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there? Are we just lucky here, like with universal health care?

Unions have suffered from a bad reputation in the United States over the past few decades. Some of it is deserved BTW; some big unions were/are corrupted and some were connected with organized crime. Even more innocently, unions have been quite conservative; as jobs and technology changed some were very resistant and fought modernization (requiring people who were not needed to be around). But a lot of it also stems…

Having a 2nd hand experience with Hollywood Unions, there are so many outdated rules that make filming a nightmare. If you're producing a union film then you need to hire people for certain jobs and you're not allowed to do those jobs yourself even if it would make everything go smoother. If you don't abide by union rules then you're not eligible for certain awards or screenings.

I had another experience in college where the TA union put up barriers for undergraduate students who weren't TAs to apply for university teaching opportunities. Any discussions or office hours must be held in the presence of a TA and if your schedule didn't work out then tough luck.

Re: A new weapon in arbitration: sheer volume

#58

This seems like fantastic news -- if class action suits aren't allowed, then technology now makes it easier to file "cookie cutter" arbitration suits at such low cost that it effectively acts like a small class-action suit anyways. But I'm worried companies will be able to respond in a way that neutralizes it -- tweaking arbitration terms somehow. I hope not, though. It is absolutely necessary that we hold companies…

It seems like an easy tweak to nullify this strategy is to invalidate automated arbitration claims.

Even without this tweak, if a company saw a huge increase in "cookie cutter" arbitration suits they could probably just not respond to these suits and hope that the majority of complainants aren't willing to go to court. A cookie cutter suit likely indicates a low-effort action, not likely to be followed up with a lawsuit. How many of the 6,000 DoorDash claims would have gone to court if DD just didn't respond? At $1,500 per claim even if dozens or a couple hundred went to court DoorDash may have still have saved money.

Re: A new weapon in arbitration: sheer volume

#59

As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining? Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there? Are we just lucky here, like with universal health care?

Not sure why you got downvoted for simply raising valid questions,but here we are. I am a European as well,lived in 4 different countries in Europe and they were all so much different. Americans could have whatever they want, including free higher education, healthcare and strong employment laws.The country is rich enough to be able to support it. However, the culture of the country is different and that culture righ…

> A very good example of this is the tipping system ... So all the stakeholders are happy.

As a recent example in my state, a local establishment raised wages, raised prices, and strictly disallowed tips. I thought it was a great idea, but apparently sales fell and there were complaints from both wait staff and customers. They promptly switched back.

> Which one is better?

Honestly? The European one IMO because it actively prevents the exploitation of workers.

Re: A new weapon in arbitration: sheer volume

#60

This strategy does result in increased upfront costs for companies. But this sort pile-on strategy seems like it could be countered with arbitration agreements that aren't subject to any sort of timeline, or arbitration agreements that preclude use of automated complaint filing systems. Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond…

It will still be far less expensive for the filer per-complaint, than for the company total. I’m also not sure that you can prove an automated complaint is distinctly different than a manual one.
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