Source: ACMS Public Access
PRIVATIZED JUSTICE AS RUDDERLESS – JUDGE-LESS JUSTICE
The existence and effects of arbitration agreements cannot now be disputed. Both the state and federal courts have unanimously affirmed the applicability of arbitration clauses, the enforceability of arbitration clauses to the extent to which the system favors sending matters to arbitration. There has been much written both scholarly and newsworthy articles about the implementation of the Federal Arbitration Act and the implementation of the general concept of arbitration as a method of privatized justice.
I would estimate that a majority of the opinions on arbitration clauses address the entire unfairness of the implementation. The question is something as follows; how can these big businesses use arbitration clauses and shield themselves from judges, juries and the impact of class actions?
The answer appears to be rather simplistic; because they can. The system has given these entities an out. There is a loophole. The corporations have taken advantage of specific holdings of the court to reduce their liability, reduce their exposure to lawsuits and class actions. One cannot fault a corporation or any business or entity or individual from taking advantage of this particular law. It applies to everybody across the board and is intended to reduce the burden on the courts. It is based on the underlying concept that individuals and entities are free to contract their rights away. It is a free country? Individuals are free to bargain away whatever rights they want? This is America. This is a free country.
So I guess, inherently, I do not have a tremendous issue with the existence and implementation of arbitration laws as they are there are used by businesses to avoid the civil justice system. The results might be good the results might be bad but I think we are asking the wrong question.
I would submit that we are asking the wrong question. The question should be what is the social cost of arbitration? If we truly look at the cost of arbitration, the cost of privatized justice in terms of the rule of law and a social contract between us it would be difficult to understand how anybody would think that arbitration is a good thing. Honestly, I think the implementation of a wide scale base privatized justice, and the obliteration of open court system results in anarchy. This is the job of Judge NOT a lawyer to make decisions. Judges are our saving grace. Continue Reading
4th Circ. Refuses To Rethink Payday Loan Arbitration Ruling
Law360, New York (March 1, 2016, 5:25 PM ET) — The Fourth Circuit on Tuesday denied a bid by a Nevada collection agency with ties to a South Dakota tribe for rehearing of the court’s recent ruling that the company couldn’t arbitrate claims from a putative class of payday loan borrowers, despite the company’s claims the decision could lead to widespread invalidation of arbitration agreements.
A New Jersey jury on Thursday awarded $2.9 million to a class of surgical technology students who alleged Star Career Academy misrepresented their career prospects in the wake of a 2012 law that imposed stricter accreditation standards on the profession.
Opposition to the defendants attempt to force arbitration
Dear Judge xxxxx:
Please accept the following brief in lieu of a more formal brief thereof.
This litigation arises out of the plaintiff’s alleged refinance of two separate vehicles from the defendant, CAR DEALER. (See Exhibit A: Complaint, Count 1, paragraph 1). The vehicles involved were a 2010 Nissan Pathfinder and a 2010 Nissan Sentra, two separate vehicles, two separate transactions. (See Exhibit A). The plaintiff has alleged that these two separate and distinct transactions were subject to inappropriate conduct by the defendant and the plaintiff has sustained damages in each specific transaction.
The defendant relies upon the attached arbitration clause that states:
“The Parties, customer and dealer, identified below, hereinafter collectively *** agreed to settle by arbitration any claim, dispute or controversy, including all federal and state statutory or non-statutory claims that may arise out of the sale related to the finance and purchase and re lease of the vehicle identified below.” See Exhibit B, arbitration agreement At the bottom of the Arbitration Agreement, it lists the vehicle with the last five numbers in the vehicle identification number as 12984. It is apparent, that the Arbitration Agreement identified by the defendant applies to the plaintiff’s transaction for the used 2010 Nissan Sentra, vehicle identification no. 12984. Thus, as such, even if the Court were willing to assume there is a valid Arbitration Agreement and it is enforceable, the defendant should be bound by the terms of the agreement and have to arbitrate disputes related to the Nissan Sentra.
Arbitration agreements have become a commonplace occurrence in everyday American life. There are arbitration agreements and no most every agreement you sign. When you buy a car there’s an arbitration agreement when you buy an oven there is an arbitration agreement when you buy a vacuum there’s an arbitration agreement.
There has been attempt at the federal level to remove these arbitration agreements from consumer agreements, however to date that effort has been unsuccessful. What this means for the average customer is that you need to read your paperwork when you buy these consumer goods. You need to potentially cross out refused to agree to these arbitration agreements one before you take the product place in your car and go home.
It is imperative that you ask questions whether or not there’s an arbitration agreement and you must read all of your documentation to see if there’s an arbitration agreement. Because, ultimately if you do have a dispute you want to sue the manufacturer, you want to sue the store you’re going to be barred from suing them in Superior Court.
ARBITRATION AGREEMENTS ARE NOT AUTOMATICALLY ENFORCEABLE
What exactly does this mean? The enforcement of arbitration is by no means automatic. The court is mandated to conduct an analysis, based on ordinary contract principles, to determine if the clause itself is enforceable as a clause in a contract. NAACP v. Foulke Management 421 N.J.Super 404 (App.Div. 2011).
New Jersey Courts have determined that arbitration provisions should be examined on a case by case basis and may only be enforced if they contain the appropriate attributes. See Rockel v. Cherry Hill Dodge 368 N.J.Super. 577 (App.Div. 2004). See also Grass v. Associates First Capital Court 346 N.J. Super. 42, 52 (App. Div. 2001).