Category: Legal, Laws, and Regs

I had hoped to be finished with the book by now, and also have resolved the issue I’ve had with the National Arbitration Forum, which euphemistically calls itself “The FORUM”.

Unfortunately the book isn’t finished, but should be next week. I wish I could say the same with NAF, but they have, despite the fact that I’ve shown that no arbitration agreement exists between me and the claimant and the claimant actually committed perjury–as demonstrated in the papers the claimant filed–the arbitrator, Robert Angstead a lawyer in Jefferson City, ruled in favor of the claimant for an amount beyond what the claimant asked: over 40,000 dollars. I’m assuming the many thousands more was the costs that NAF tacked on for their ‘affordable’ arbitration process. It doesn’t represent what the claimant actually paid for this process: yet another way to make a buck.

How arbitration works, as established by the Federal Arbitration Act (FAA), and supported by decisions in the Supreme Court, as well as state law and local court decisions, is that an arbitration agreement is like a written contract. Though the arbitrator rules on the overall contract, the arbitration agreement itself is severable from the contract and its validity is decided in a court of law. In other words, the courts decide on the substantive elements of the arbitration agreement, while the arbitrator can rule on the procedural elements (the arbitration procedure).

In this case, there wasn’t even a contract, much less an arbitration agreement between me and the claimant. The company who filed the claim provided an arbitration clause, copied, word for word, from the suggested wording provided by the National Arbitration Forum. In addition, the company wasn’t even an original party to the so-called agreement. When I asked them to show a full arbitration agreement between me and the original company, as well as some proof that they had a right to claim it for themselves, they provided a copy of an agreement that was a) for a different company and b) had grossly different wording from the original clause, and c) didn’t even name NAF as the arbitration company.

When I asked it to provide proof that it had inherited this agreement, they provided a document that not only did not provide this proof, it contradicted their original claim, signed under threat of perjury. Oh, and I believe that the signature on the original claim was a copy made from a signature of a person who is no longer even with the company. So much for the wording about ‘personally reviewing’ the claim under threat of perjury.

I pointed out to NAF that the company had not only committed perjury, it also hadn’t filed the proper papers in violation of NAF’s own procedure–deliberating excluding all of the wording about my rights to discovery during the process–and that the point was moot anyway, because I disputed the existence of the arbitration agreement and it was then up to the courts to decide if one existed.

NAF, though, which operates under a pseudo legal immunity, doesn’t feel that it needs to support a) the law, or b) it’s own procedures. If it did follow the law, or its own procedures, or even gave more than a cursory glance to the evidence, it risked antagonizing a company that files hundreds, thousands of these claims and is worth a whole lot more money than I am. Yes, wasn’t arbitration supposed to be between parties on equal footing? You don’t seriously believe that, do you?

NAF continued with the arbitration procedure, and not only did the arbitrator rule against me, he and the company actually wrote a falsehood in the ruling: making statements that were not true, and which I have proof were not true. They definitely did not, according to the award, follow the “substantive law” in this decision.

What does this have to do with any of you?

Do you have a credit card? You have an arbitration agreement with the company who issued it. Signed a mortgage? Ditto the bank or mortgage company. Had a home built? Bought a car. Yup, car company agreement. Got treated at the doctor’s? Notice that fine print about the arbitration clause? Bought a computer online? You should hear the Dell computer buyers who got screwed because of the arbitration agreement Dell uses. So does Gateway. Most companies that provide online purchases of larger equipment now have arbitration clauses hidden somewhere in their sites. You buy, you arbitrate.

Have a phone? Guess what. How about cable?

Had your identity stolen and charges rang up in your name? Think you’re protected by law? Think again: companies have used arbitration to attempt to collect debts incurred through the use of a stolen identity. That’s one for the OpenID folks, eh?

If you take a new job now, check the employee agreement: there’s a very good chance you’ll find an arbitration clause. If you end up being discriminated against because of disability or sex, you won’t be able to have your day in court. No, you’ll be at NAF’s or AAA’s or JAMs tender mercies. Tell me: how much are you worth? I bet not as much as your employer.

Did you know that arbitration even trumps civil rights and the work of the Equal Opportunity Commission? From the article just linked:

“Thanks to mandatory arbitration, the securities industry is still a field dominated by white men,” Ireland said. “Women and people of color are forced to work in offices where managers have little fear of, or respect for, civil rights laws because they are essentially immune.”

Many of these arbitration agreements are to prevent or circumvent class action lawsuits. What this means is if a car company puts out a defective car and people get hurt and killed because of it, they, or their relatives, can’t file a class action lawsuit against the car company. They have to take it to arbitration. Companies like NAF who do not follow the law, and don’t even make a pretense of doing so.

How many times in a consumer arbitration case does the consumer win, rather than the corporation? I’d have to look up my figures again, but I believe it is less than 2% of the time.

I will, of course, file a motion to vacate this award. Even in this state which favors arbitration, I should be able to get this award vacated–there absolutely no support for this decision, or the fact that they continued with arbitration in violation of the law. I also plan on suing the company that initiated this process because they’ve committed fraud in their arbitration filing. But I really want to take on NAF. Why? Because no one, and no company, no organization, is above the law in this land. Since NAF attends conferences specifically to recruit companies such as the one that filed the complaint against me, and these companies invariably win with NAF operating in complete impunity with its quasi-judicial legal immunity, I believe this demonstrates that NAF is complicit in this fraudulent effort to bypass my legal protections. They certainly didn’t follow the law as they market on their site.

Luckily I can file suit against NAF and the other company in Missouri rather than NAF’s own home state of Minnesota, as NAF just hired the wife of the governor of Minnesota, Mary Pawlenty as the company’s chief counsel. Talk about getting the politicians on your side.

Arbitration: The way for equal parties to resolve their differences in a civilized manner. And it’s affordable, too. Yeah, right, and if you believe that, have I got a credit card company for you.

I was asked in comments associated with the post on Judge Dierker, what’s the harm in someone saying something offensive.

Read the original story in the Riverfront Times about the woman and the case that forms the basis for the first chapter in Judge Dierker’s book.

Then tell me: do you see harm?

I have long been brought up to a belief that tolerance is a virtue, not a vice or a vise. Evidently, not all people have this same belief. The irony of the situation is, of course, that if I truly believe in tolerance, then I must also be tolerant of the intolerant.

I must admit that at times this stretches my capacity for tolerance to the maximum, but I hope that I refrain from harassing the intolerant too much. Refrain, that is, until faced with situations where I feel the intolerant can exercise power over others, and then I’m afraid I must set aside my tolerance of the intolerant and practice a little of what they preach.

Such is the case with the story in St. Louis Today, about the release this week of a book by a sitting Missouri judge, Robert Dierker, titled Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault.

This is a man who currently sits as judge in the 22nd district court of the city of St. Louis. He hears both criminal and civil cases, including civil cases based on discrimination and sexual harassment. Keep this mind as you read this excerpt from the first chapter of the book:

In 1998, a case came before me in which a woman alleged that the male defendant, who apparently had been her employer, had inflicted emotional distress based on alleged sexual harassment. The defendant’s alleged harassment involved making sexual advances and touching the plaintiff (in a manner that stopped well short of actual sexual assault). The plaintiff had previously litigated a claim of employment discrimination based on the same course of conduct of the defendant, and lost. So now she was recasting the claims, in part to avoid the statute of limi- tations that now barred the employment claims.

I carefully researched the law of Missouri to see whether the plaintiff’s theories were defensible as a matter of law. As pleaded, they were not, I concluded. I had law clerks do independent research on the matter, and they confirmed my own view of Missouri law. At the time the case came before me, Missouri law on “sexual harassment” as infliction of emotional distress was sparse; it seemed the plaintiff wanted to import certain theories of federal employment law regarding “sexual harassment” into Missouri common law.

Having reached a conclusion based on impartial examination of the law, I wrote an opinion dismissing the woman’s claim of infliction of emotional distress, but giving the plaintiff an opportunity to revise her claim to meet what I thought were proper legal standards.

In that opinion, I felt obliged to sound an alarm about the threat that radical feminist sexual harassment theories pose to common sense and common law, especially because such views could easily lead to fictitious claims and vexatious suits. I was blunt in my criticism of radical feminist views of sexual harassment law. “The question before this Court,” I wrote, “is whether a wholesale extension of notions of ‘sexual harassment’ into tort law is warranted, without direction from the people through the [legislature]. The Court concludes that the common law does not enact Cardinal Newman’s definition of a gentleman, nor [feminist scholar] Catharine MacKinnon’s vapid maunderings, and that Plaintiff’s petition at present fails to state a claim.”

I concluded my opinion by observing the danger of imposing liability based solely on speech. “[T]he sexual harassment police,” I wrote, “seem oblivious to the First Amendment as they eagerly enlist the courts as censors of words and literature in the workplace.” More specifically, I noted that it seems clear to everyone “except for the denizens of the cloud cuckooland of radical feminism” that no court had ever held a sexual advance to be actionable in and of itself.

This is a man who goes on to write that there is nothing wrong with your boss or co-worker hitting on you, asking for sexual favors on the job, as long as they don’t hold up your promotion or decrease your pay because you said no. Now, I have to ask the women reading this: how would you like to work in an environment where you’re faced with sexual innuendo, unwanted advances, and ‘non-sexually assaulting’ touch on a day to day basis? That casual hand on the knee during a meeting, or caress on the cheek? Repeated requests to “Go out for me for a drink after work”, or “I really want to fuck you, bad”?

I’ll ask the men: how would you like to see your mothers, wives, sisters, daughters, and friends treated in this way?

As one weblog, Pub Def noted, it’s interesting to note how publication of this book was held up until after the recent election. Dierker defends himself saying that the voters moved to keep him on the seat and therefore we cannot have problems with his viewpoints or actions.

Judge retention is based on a spot in a ballot with a question: retain this person or not? Remaining on the bench based on this is nothing more than the action of a typical lazy voting public that does not research each judge’s actions, but can’t resist responding to every item on the ballot. It is not a vote of confidence: it is a vote of automation.

If the judge believes he is saying nothing wrong, one would think he would have promoted this book before the election, rather than after.

When one also considers the favorable, almost worshipful review of the book by the St. Louis chapter of the Council of Conservative Citizens–a group with indirect links to the KKK and other white supremacists organizations–you won’t be surprised to read that the judge questions decisions based on affirmative action, desegregation, as well as the 14th Amendment (the one granting equal justice to all under the Constitution. Stupid forefathers for ruining a good thing for the white boys, anyway.)

Leaving aside the fact that it’s OK for the boys to make sexual slurs and unwanted advances on women at work (because such is protected by the First Amendment you see), how do we react when we read about the tyranny of tolerance? How can a judge remain seated on the bench who believes that tolerance is a tyranny practiced on judges so that they can’t freely treat law as they would really prefer to treat law? The judge’s victims in his first chapter are women, but this same ‘tyranny of tolerance’ must also apply to blacks for their race and the Jewish and atheist, equally, for their beliefs.

From the excerpt, this book seems less an exposure of a ‘liberal’ (read that, fair and nondiscriminatory) judicial bias, and more a plaint by a man passed over, chastised, and fretting that he won’t have his say. Such deep seated bias cannot not impact on his judgments, leaving anything he’s ruled on open for both appeal and endless rounds of debate. He’s exposed the Missouri judicial system to ridicule and embarrassment. As noted at The Carpetbagger Report:

Naturally, lawyers in St. Louis have already noted that they could cite the book in demanding recusals on issues involving women, liberals, or the ACLU, because he’s made clear that he’s not impartial and has already made up his mind about these Americans he perceives as enemies.

Dierker, of course, disagrees, and argued, “Conservative judges are much more likely to know where their biases are and how to draw the line.”

Does that make any sense? A judge writes a book-length diatribe against Americans he doesn’t like, but can maintain his impartiality because he knows where his biases are? Will that inspire confidence in the courtroom?

I’m sure he’ll eventually have to leave the bench–I imagine he’s counting on it to make him more of a celebrity–but not before doing great damage to how the Missouri courts are perceived, both within and without the state. I’m also sure that he’ll enjoy a lucrative run with this book, be feted and celebrated in the grossest conservative circles, before ultimately spending the rest of his days, happily dispensing his own brand of squalid bias and hateful fear as yet another conservative talk show host on Fox.

I thought that now would be a good time to recommend two legal weblogs associated with consumer law, credit, and bankruptcy:

Consumer Law & Policy Blog

Credit Slips

We focus so much on DRM and copyright in weblogs that we forget that consumer law probably has far more impact on us, and far less public exposure.

Another related weblog is Ross’ Arbitration Blog, which covers the growing proliferation of mandatory arbitration clauses, and lack of accountability in the arbitration process. In particular he points to a LA Times article on arbitration that discusses some of the concerns associated with the increasing use of arbitration for any non-criminal court activity. (Sorry, free registration required for this article.)

A more pungent discussion on the current state of arbitration can be found in the article: Arbitration and the Godless Bloodsuckers, by a former state supreme justice of West Virginia. Richard Neely really lets loose with both barrels. PDF of actual article and be forewarned, it’s a large document.