TorteDeForm

Kia Franklin

Follow up to KBR Rape Case

A follow up to the KBR/Halliburton horror. Jamie Leigh Jones is not the only one. What 20/20 calls "a story of sexual brutality, corporate indifference, and government inaction."

Ms. Jones said: "I've been waiting for justice for two years."

On Alternet:

The notion that sexual assault cannot be tried as a criminal matter but has to be arbitrated in secret arbitration and treated as a labor dispute is simply beyond belief. But then again, defending democracy by making a mockery of it is what Halliburton/KBR is all about.

The Alternet Story, with 20/20 video, can be accessed here.

Kia Franklin: Author Bio | Other Posts
Posted at 5:33 PM, Feb 08, 2008 in
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Comments

That's remarkably dishonest, since (1) the arbitration clause has nothing to do with whether the DOJ decides to criminally prosecute the rape allegation; (2) the arbitration clause does not prohibit Barker from bringing civil suit against her alleged rapist; and (3) the arbitration clause does not require the arbitration to be "secret."

So basically, every single fact you quoted was an out-and-out lie. But obviously the truth won't do when it comes to legislating away consumer's right to choose mandatory arbitration clauses.

Posted by: Ted | February 9, 2008 1:56 AM

Kia: Were it not for the loving critics of the lawyer profession, would you have any readers?

You are a hopeless, clueless, left wing ideologue. Yet, I commend your courage and rhetorical skill in facing these attacks without resorting to censorship nor to cry-baby shunning.

Posted by: Supremacy Claus | February 9, 2008 11:23 PM

Kia: No sovereign immunity for government contractors, so rules 9th Circuit.

http://www.law.com/jsp/article.jsp?id=1202469648827

The federal government may still choose to intervene, even after a verdict or settlement, and block, on foreign policy grounds.

Posted by: Supremacy Claus | February 11, 2008 8:41 AM

Ted, talk about misleading. Tell me something: does the arbitration agreement allow Ms. Barker to bring suit against KBR for disregarding her safety, as well as her complaints regarding sexual harassment? For people women into positions of risk, harassment, and danger, and disregarding their complaints? For losing medical results, complaints, etc?

You specifically use the words 'her rapist', when you know the issue is has to do with KBR, not the specific individual. The individual should be tried as a criminal. KBR, on the other hand, put women into these positions knowing that they faced risk of harassment or rape, disregarded their complaints, abetted the harassment, and then tried to cover it all up. Now, you're so familiar with arbitration and this case, answer me this: can Ms. Barker bring a civil suit against KBR? Can it?

You don't have to answer, because we all know what you're going to say. No, she cannot. Why? Because KBR is invoking the arbitration process for this event.

So much for accusing others of 'lies'.

Now, tell me something else. If the arbitration is so open and fair, and if Ms. Barker doesn't want to use arbitration but prefers the court, then why wouldn't KBR accede to this? After all, if the process is as equally fair and unbiased, and open, for both parties, why wouldn't KBR just say, OK, we'll use the court system, not arbitration?

The statement I really loved the most: consumer's right to mandatory arbitration. What a silly statement to make. If arbitration was so good, consumers would pick arbitration voluntarily when it comes to a dispute. All the companies have to do is tell people, "Look if you have a problem, you can take it to the courts, but you can also use arbitration. We think it's cheaper, and easier, and better, but it's your choice."

Why is it that companies like KBR do this, though? After all, wouldn't this give consumers the right to choose? Arbitration or the court system?

Why mandatory arbitration? Isn't it because no consumer in their right mind would pick arbitration when it comes to an individual against a corporation like KBR? Because arbitration was originally intended for two corporate organizations of equal standing to resolve their differences?

Now, what was that about lies again? I missed that. What do they call it in lawyer speak? Something about errors of omission or something like that? I'm not a lawyer, I don't know how to say a word like "lie" when I really mean, "things I don't like to hear".

I won't even get into arbitration and you so-called "secret" statement, and the fact that the arbitrator's reasoning leading to a decision doesn't become a matter of record. Or the fact that what is or is not disclosed is based more on the whim of the arbitrator than law.

As for only critics reading Kia, I beg leave to dispute such an assertion.

Posted by: Shelley | February 13, 2008 11:38 AM

"Tell me something: does the arbitration agreement allow Ms. Barker to bring suit against KBR for disregarding her safety, as well as her complaints regarding sexual harassment?"

Yes. Not only that, but two women have already won arbitrations against KBR for similar claims -- if they were in civil court, they'd still be litigating. Not that you'll ever hear that on this blog. What was that you were saying about lies of omission?

See my Overlawyered posts on the subject.

Posted by: Ted | February 13, 2008 3:34 PM

Obfuscation doesn't work for me. I asked if the women could bring suit, in a court of law. They could not. They were given that choice.

Doesn't matter what happened in the arbitration. That's not what I asked. I asked if they could have taken this to a court of law.

And have you thought that there may have been benefit to a longer trial? More information exposed? More lessons learned? More truth revealed? All we have now with this arbitration is a result. We don't have the truth.

Posted by: Shelley | February 13, 2008 7:36 PM

Pardon, correction: they were _not_ given the choice to have a jury trial. A choice that people in the past fought for, and died for.

Posted by: Shelley | February 13, 2008 7:39 PM

Ted, if these cases were tried in Federal court, I would know exactly how to get access to all the documentation associated with the cases. This would include all the depositions, written submissions, opinions, judge rulings, and so on.

You offered to publish, what summaries of the findings of the arbitrator? Does this include cross examination of any of the people involved? Witness testimony? Rulings? What does it include? You offered to publish it. Publish it. Let's see how arbitration documentation stacks up to a court of law.

Posted by: Shelley | February 13, 2008 7:59 PM

Kia is selectively refusing to publish my comments. If you want to have answers to your questions, go to Overlawyered (where all of these questions were answered before you asked them).

Posted by: Ted | February 13, 2008 10:31 PM

I tried leaving comments at your site, but you don't publish them. Any of them. I just appreciate Kia giving me a chance to finally challenge you on your deliberate misstatements and obfuscations.

The answer to my question is that no, there isn't the document trail in arbitration as there is with a court of law. Any publication of any information, what little there is, occurs at the whim of the arbitrator and, typically, the preferences of the corporation who insists on these mockeries of justice.

What was it someone said in defense of arbitration about the people in America wanting privacy? I find it unlikely that women who take these stories to MSNBC and Larry King would balk at a public trial. In fact, these women want the stories to come out, both to protect others like themselves and because they are so frustrated and angry at being shut up by KBR.

"their campaign to deprive consumers of the choice of mandatory arbitration..." Boggles, every time I read that statement. Oh yes, people want mandatory arbitration so much, they have to be forced by the courts into accepting it.

This statement does demonstrate, though, how you hard you had to dig to find some way to turn this into a fight for the people. I am amazed, both by that statement and your assumption that most people who read your weblog are dumb as bricks.

You're not particularly adept at this sort of thing, are you?

Posted by: Shelley | February 14, 2008 6:58 AM

Oops, I checked and you did let a comment through, Ted. My apologies, and I'll repeat most of my arguments over in your post.

Posted by: Shelley | February 14, 2008 8:17 AM

Ted: if there's a problem with your comments being published, email me instead of assuming that I have the time or desire to selectively publish/hide your comments. I have neither. I do and will continue to post any comments that further the dialogue. I only don't publish comments if they are patently offensive or if I receive a substantial number of reader complaints to that effect.

Geez.

Posted by: Kia | February 14, 2008 11:12 AM

Kia: I'll believe you when my comment to the "How to Fool a Jury (Is It Insurance Fraud?)" appears.

You have the right to publish or not publish whatever comments you want. I have the right to think it's a waste of my time to continue to comment here when none of the supporters of legislation to eliminate consumer choice can explain why, if consumers don't want mandatory arbitration, legislation is needed to achieve that result. No one is stopping you from starting a business that offers a credit card without a mandatory arbitration clause.

Posted by: Ted | February 14, 2008 1:59 PM

"'their campaign to deprive consumers of the choice of mandatory arbitration...' Boggles, every time I read that statement. Oh yes, people want mandatory arbitration so much, they have to be forced by the courts into accepting it."


I don't understand why this is so boggling. What's at issue is whether consumers can choose to bind themselves to arbitration in he first instance. It's perfectly reasonable to assume that some consumers would like to bind themselves to arbitration in exchange for the cost-savings that vendors/employers/etc. could grant in exchange.

I think part of the problem is that you're only analyzing the issue *after* the dispute has arisen. Of course a consumer disputing a contract does not want to be bound by its terms after the dispute arises and must be "forced into court" for the contract to be enforced. The issue is whether the consumer *should have had the ability to bind himself in the first place.* Arguably that's a choice consumers should retain.

Posted by: Joel Smith | February 14, 2008 7:17 PM

"No one is stopping you from starting a business that offers a credit card without a mandatory arbitration clause." Are you serious? There's a serious power dynamic going on that you refuse to recognize. People don't have those sorts of resources. The people who do have those sorts of resources have an interest in keeping things the way they are so as to retain their wealth. For you not to recognize that, to imply that consumers should just go form a credit card company, is simply ridiculous.

I agree wholeheartedly that consumers should have a choice as to whether or not they arbitrate claims. But in the current climate they have no such choice. It's not like the consumer shows up with her highlighter and contract lawyer, and the ceo of the business sits on the other end with theirs, and they bargain through the terms of the agreement. The consumer's choice is between not getting a credit card or other service, and geting one with a bma clause. If choice is really the concern, then they should be able to choose post-dispute what forum they'll go to.

Finally, remember, that we aren't just talking about credit cards. We're talking about employment claims, health care-related claims, all sorts of different services. This is a huge problem, as this sexual assault case demonstrates.

Posted by: Kia Franklin | February 15, 2008 8:40 AM

Ted: I'm not concerned with whether or not you believe me-- I'm not arguing with you, I'm telling you how I operate the comments section of this blog. At any rate I did check the comments section and your comment was unpublished. This is the first I've seen of the comment but I've fixed it and it should be up now. This has happened with other comments in the past and I'm not sure why. Next time an email will suffice, no false accusations necessary.

Posted by: Kia | February 15, 2008 8:46 AM

"It's not like the consumer shows up with her highlighter and contract lawyer, and the ceo of the business sits on the other end with theirs, and they bargain through the terms of the agreement."

Ok, well why not make THAT the proposed law? You could require an attorney consultation, or that vendors simultaneously offer a contract without the arbitration clause.

I just don't understand why we have to throw the baby out with the bathwater and deny EVERYONE's ability to bind themselves to arbitration *pre-dispute* in an effort to protect the bargaining power victims or those with less-than-ideal knowledge.

Posted by: Joel Smith | February 15, 2008 2:02 PM

joel, the way you phrase the question is interesting--why do we have to deny everyone's ability to bind themselves to pre-dispute arbitration agreements? thing is, people don't really HAVE the ability to bind themselves, corporations have the ability to bind people, to these agreements.

people, of course, can sign or not sign in agreement, but the prevalence of these agreements across industries makes it essentially a choice between agreeing to the contract or not using a particular good or service. try to get a cell phone without one of these bma provisions in there. unless u live in one of a few tiny rural towns in our country, good luck. although if you kno of a large carrier that doesn't require this, please let me know and i'll give them kudos.

individual people on the consumer-side of the contract aren't the ones setting these terms, corporations are. taking away corporations' ability to impose these agreements does not eliminate the option of arbitration all together. people would still be free to choose arbitration rather than court if they believe this is what's best for them. so nothing is being denied to people by removing the option of strong-arming from this contract relationship.

Posted by: Kia | February 15, 2008 4:45 PM

"[T]he prevalence of these agreements across industries makes it essentially a choice between agreeing to the contract or not using a particular good or service."

But the remedy proposed in my last post solves this problem. If we design legislation that, for example, requires a cell-phone provider to offer two contracts, one with the arbitration provision and one without, we can eliminate the adhesive-nature of the contract while still preserving, for those who want it, the option of committing themsevles to arbitraton pre-dispute.

"[N]othing is being denied to people by removing the option of strong-arming from this contract relationship."

That's not true -- people who want to bind themselves to arbitration before a dispute has arisen can no longer do so. They may want to do so, for example, if in exchange the vendor passes the cost-savings on to them.

Another reason prohibiting people from binding themselves to arbitration before a dispute has arisen: it hurts the poorest amongst us. Prohibiting such will inevitably cause the price of consumer goods to rise, because companies (or their insurance carriers) are now assuming a greater risk and need a greater profit margin to enter the business. A $20 increase in the cost of a cell-phone may not seem much to you or I, but it's an economic reality that some citizens -- the most impovershed amongst us -- will be priced out of the market.

Posted by: Joel Smith | February 15, 2008 10:45 PM

Joel, you need not go so far as to create with-and-without contracts. All you really have to do is unbundle the pre-dispute mandatory arbitration agreement into a separate document with a bonus, discount, or rebate associated (the inverse of the usual extended warranty on consumer goods, or matching a voluntary 401k contribution).

The thing is, if the market was really working to preserve consumer choice, some corporations would already have tried this, and there would be competition among companies not just in the size of the rebate/discount/bonus, but among the exact terms as well (time limitations on the pre-dispute agreement, for example).

When *every* corporation bundles their offerings and compensation with similar pre-dispute mandatory arbitration clauses in nearly identical ways, something else is going on, and this is especially troubling in markets that don't have meaningful competition.

Posted by: Michael R. Bernstein | February 17, 2008 4:17 PM