I think that this has already been discussed in a comment thread or two, but today (a) The New York Times reminded us that it can do essential, truly top-notch journalism and (b) exposed truly grotesque practices within a “justice” system that offers scant justice to anyone that doesn’t sport “Inc.” as a last name:
Encore and rival debt buyers are using the courts to sue consumers and collect debt, then preventing those same consumers from using the courts to challenge the companies’ tactics. Consumer lawyers said this strategy was the legal equivalent of debt collectors having their cake and eating it, too.
The use of arbitration by the companies is the latest frontier in a legal strategy orchestrated by corporations in recent years. By insertingarbitration clauses into the fine print of consumer contracts, they have found a way to block access to the courts and ban class-action lawsuits, the only realistic way to bring a case against a deep-pocketed corporation.
Their strategy traces to a pair of Supreme Court decisions in 2011 and 2013 that enshrined the use of class-action bans in arbitration clauses.
The result, The New York Times found in an investigation last month, is that banks, car dealers, online retailers, cellphone service providers and scores of other companies have insulated themselves from challenges to illegal or deceptive business practices. Once a class action was dismantled, court and arbitration records showed, few if any of the individual plaintiffs pursued arbitration.
Bottom feeders buy old debt. They sue to collect. Doesn’t matter if the debt is too old legally to collect. Doesn’t matter if the sharks don’t have proper documentation. Doesn’t matter if they string up little old ladies by their big toes. (Hyperbole alert).
Crappy judges at the trial court level, insulated — guided — by crappy justices with robes, lifetime appointments, and no moral compasses whatsoever, make sure the Man gets his cash:
In the cases that The Times examined, judges routinely sided with debt collectors on forcing the disputes into arbitration.
In Mr. Cain’s case, Midland Funding, the unit of Encore Capital, persevered despite originally lacking a copy of a Citibank arbitration agreement they said he signed in 2003. Instead, the debt collector presented as evidence a Citibank contract that one of Encore’s lawyers signed when he opened an account.
In Mississippi, Midland Funding won a court judgment to compel Wanda Thompson to pay more than $4,700 on a debt that was too old to be collected under state law, court records show.
When Ms. Thompson filed a class-action suit on behalf of other state residents, Encore invoked an arbitration clause to have the lawsuit dismissed. Ms. Thompson’s lawyers argued that the company had clearly chosen court over arbitration when it sued her to collect the debt. By going to court, the lawyers said, Encore waived its right to compel arbitration.
Unpersuaded, the judge ruled that Encore’s lawsuit to collect the debt was separate from Ms. Thompson’s case accusing the company of violating the law.
I can’t put into words my revulsion for the people who steal from the weakest in our system, except to note that my loathing of those who enable these pen-armed robbers is far greater. The GOP hopes most people will be too scared of Syrians, gun-grabbers, and the Kenyan in the White House to notice who’s doing what to whom. There’s an opening here for our side — and an obligation to take it.
Image: Rembrandt van Rijn, Christ driving the money changers from the temple, 1626.
Corner Stone
There’s a shotgun for that!
Rashi
Off topic but….So even understanding that Trump is virtually all theater all the time, his latest comments about Clinton using the bathroom and her being schlonged seem to suggest he wants out, that he’s trying to disqualify himself, no? And the latest poll that shows Trump at 28% and Cruz at 24%, is that not a big drop for Trump who was at 35% and higher in some recent polls?
JPL
Tom, I’m so glad to see you post on this topic and the only solution is to vote for democrats. That’s not much of a solution but it’s a start.
JPL
@Rashi: nope.. same poll had him at 27 percent so it’s an increase of a percentage point. The big difference is Cruz. Together the two assholes have a large chunk of the repubs which is scary.
kdaug
@JPL: Usury is still forbidden in that old dusty book, no?
Take it to them on their principles. (Might have to remind them what they are).
Schlemazel
I am going to put up a kickstarter for my automated guillotine system. It will have a turn table setup the offender will be held in place on his or her tray on the lazy susan that will turn to bring the next subject to the blade. The tray will be pushed forward so the neck is under the blade while the blade is being raise. Once in place, the blade will fall quickly cleanly separating the head from the rest of the waste material. The head will fall onto a conveyor that takes it to the incinerator. The tray will move clock-wise one place delivering the next subject to the blade and the previous subject’s tray will tilt & dump the waste material onto the conveyor to the incinerator. readying the tray for the next subject. There will be 8 trays on the round table and I believe it will handle 6 subjects a minute. If we can raise $50,000 I can produce the first working system and subsequent copies will be produced on a subscription basis.
$100 donation gets you a seat in “knitters row” on a day of your choice
$500 gets you a dedicated seat in “knitters row”
$1000 gets you a dedicated seat and you get to name a minutes worth of subjects of your choice – if your first choice is already taken you are allowed to name subjects until a minutes worth is found.
$5000, seat and you get to name 5 minutes worth of subjects.
$10000 seat an hours worth of subjects and the name of your choice in a brass plaque on the head of the blade.
Warren Terra
I rather wish the NYT had made this less about debt collectors – Mandatory Arbitration is a growing blight on our society, it’s been found to be legally watertight, and it’s a real blow to the little guy who doesn’t hire arbitrators by the gross.
Similarly the death of the class action, which is tied to but not limited to Mandatory Arbitration. A lot of other legal decisions and new laws have crippled the class action route to reparative justice.
But while the NYT‘s focus on debt collectors may make this more of a tearjerker, it also makes it primarily a story about Other People – people unlike most of its readership.
Omnes Omnibus
@Schlemazel: Isn’t it more or less a larger version of this?
raven
Schlemazel
@efgoldman:
After the initial rush I am going to donate selection packages to BJ to auction off as a fund raiser. Looking for ideas, it could be a “name the subject of your choice” or it could be “how much am I bid for [fill in the blank with a name] which do you think would bring in the most bucks? JC could send any surplus to the animal shelter.
burnspbesq
As through this world you travel,
You’ll meet some funny men,
Some rob you with a six-gun,
And some with a fountain pen.
–Woody Guthrie, “Pretty Boy Floyd”
Bill
Wouldn’t know. Gave up reading it.
Zinsky
Schlemazel – I hope you set up this device outside the corporate offices of FoxNews and do in the lot of them, from Rupert Murdoch down to the janitor. The world would be a better place.
Schlemazel
@Omnes Omnibus:
DAY-am! maybe I need a redesign – head down insertion with a spinning horizontal blade instead of the vertical one. I think we could hit maybe 10-12 a minute at in this configuration! Maybe you could consult for a fee.
JPL
@raven: Finally Trump admits that he’s an ignorant asshole who will just say words without meaning against his opponent. He’s the smart one, right?
burnspbesq
@Warren Terra:
What he said. Crappy policy, but once you take the first bite out of the apple–i.e., accept that Congress intended the Federal Arbitration Act to pre-empt inconsistent state laws–all of the Supreme Court case law follows more or less inevitably..
Omnes Omnibus
@Schlemazel: I’m a philanthropist.
Iowa Old Lady
@raven:
Schlemazel
@Zinsky:
Actually, My first model would go right between the bear and the bull over on Wall. But It would be just a short drag (about 4 miles I would guess) from their offices.
It could be a very festive parade with balloons and garbage throwing
Schlemazel
@Iowa Old Lady:
yeah, we went through the looking glass some time ago
Schlemazel
@Omnes Omnibus:
You collect stamps?
Omnes Omnibus
@Schlemazel: I draw blood.
schrodinger's cat
Wow what’s next? Debtors prisons?
schrodinger's cat
Questioning Kitteh has questions, does you has answers?
schrodinger's cat
@Omnes Omnibus: Lestat? Or Vlad?
Omnes Omnibus
@schrodinger’s cat: Why does everyone always go straight to vampire?
Ruckus
@Schlemazel:
I can weld and do machine work. And for worthwhile projects like this one I work cheap.
Ruckus
@schrodinger’s cat:
Well if you look at places like Ferguson, MO debtor prison is already here.
On a note about arb clauses and debt. Pay cash. Do without if you can at all until you can pay cash. It takes their shitty contracts out of play. Fuck the money lenders. Now for those other contracts, like cell phone, etc, elect good Democrats and get the laws changed to protect those who don’t have enough cash to fuck over their customers. Or, don’t purchase their products. And tell them why.
schrodinger's cat
@Omnes Omnibus: Because they are mysterious and sexy. The other option is mosquito.
Omnes Omnibus
FWIW in a state that has strong consumer protection laws, there is often a provision in the statute that obviates the arbitration clause. Walker has not yet gotten around to completely gutting that here in WI. I have used the consumer statute to force cases to be heard in court and in state.
Omnes Omnibus
@schrodinger’s cat: I could be a ninja.
Baud
@Omnes Omnibus: How’d you avoid FAA preemption?
BillinGlendaleCA
@Baud: Don’t fly.
Debbie
@raven:
His people need to hand out Trump dictionaries at each rally so everyone will understand what it is he’s saying.
Baud
@BillinGlendaleCA: Good advice. People like candidates who campaign by bus.
NotMax
Baud
@Debbie:
YOOGE. adj. A exclamatory modifier typically uttered by men with small penises who seek to project a false sense of importance.
NotMax
@Omnes Omnibus
Or one of the Four Bikemen of the Apocalypse.
Heliopause
Seems to me that if everybody at every level of a system can be described this way then you’ve got a problem with the system and not the people populating it.
Redshift
@Rashi:
First, never put much stock in one poll, especially if it shows a big shift; it can always turn out to be an outlier.
Second, the theory that Trump is trying to say something so outrageous that he’ll be out of the race has been suggested before, and there’s no more evidence now. An explanation that seems to better fit the evidence is that any time there’s a hint of Trump dropping in the polls or getting less media attention, he ups the ante by saying something even more outrageous than before, so everyone starts talking about him again.
Ruckus
@Heliopause:
The people populating the system are the one’s making the system into shit. And that includes all the ones you mentioned and some more I’m sure. Like those demanding an oversized return on their investment.
When the Madoff investment scandal broke the local paper had a story about 4 or 5 people in Marin county who lost everything and were going to lose their multi million $ houses and although I couldn’t laugh at them I sure as hell couldn’t feel sorry for them. The Madoff’s and the corps that are screwing everyone and the people demanding this deserve everything bad that is possible to happen to them.
Omnes Omnibus
@Baud: No one argued it. Call it malpractice on their side, but I’ve managed to make it work twice.
Calouste
@Redshift: Also what has happened over the last two months or so is that Carson’s support has more or less collapsed from the low twenties to the high single digits. About half of that support has gone to Cruz, who is now looking better in the polls, but the other half has gone to Trump, who on average has gone from the low thirties to the high thirties. And importantly, virtually none of that support has gone to the “establishment” candidates, who are still polling under 30% combined. If Trump is going to lose support, it’s going to go to Cruz. At which point, most likely, Trump will go medieval on Cruz’s ass.
Pogonip
@Schlemazel: I like it but I think the carcasses should go for medical research. Since they did nothing constructive in their lives, they can make it up in death.
Rashi
@JPL: So the poll that had him at 41% (the Monmouth?) or 35% was for New Hampshire maybe? I know I saw those numbers.
@Redshift: Yeah, that’s been offered and it may be right, but it does appear at times that he’s trying to flame out, at least in the long run.
PurpleGirl
@schrodinger’s cat: I love the kitteh picture.
BubbaDave
@Pogonip:
Organ donation.
chopper
@raven:
when I said “Hillary got the deep dicking all women long for” that wasn’t sexist at all.
Paul in KY
@Iowa Old Lady: Had just been thinking of that quote!
Paul in KY
@Omnes Omnibus: I’m sure he & his minions have their eye on it.
low-tech cyclist
@burnspbesq:
Truer words were never spoken.
I’ve got a great idea that the Dems could push here: if one party to a contract or other agreement containing a binding arbitration clause has a net worth or stock valuation, whichever is higher, of at least 100 times that of the other party to the contract, the arbitration clause is null and void as it applies to the party of lesser worth.
Even that idea, turned into legislation, wouldn’t have a prayer of getting through this Congress. But it would point out that these clauses are about big fish beating up on little fish, and highlight the fact that big fish beating up on little fish is what the GOP is all about as well.
Sasha
@Warren Terra: They’ve already had a multipiece article on the subject, including its use as de facto Christian sharia:nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html