Mandatory Consumer Arbitration, Possible Friend, Not Foe For Consumers

The past few years have seen a series of scorning headlines, dismissing any value for consumers with mandatory arbitration.   I wrote about some corporation’s over-reaching, and unreasonable imposition of arbitration upon an unknowing customer, namely General Mills website arbitration statement.  The binding arbitration movement, is in reality, a move by corporations to silence consumers and avoid, drawn out, embarassing and costly litigation.   However, not all is bad in arbitration for the consumer.  To understand the positives, let’s look at the negative hype.

Opponents to mandatory consumer arbitration argue that the consumer:

  1. cannot negotiate the agreement that contains the binding arbitration clause
  2. is forced to give up their right to their day in court
  3. is silenced through the confidentiality clause
  4. cannot form a class action lawsuit to more efficiently bring claims and change corporate misconduct
  5. cannot afford arbitration
  6. will not have a fair process, and will not obtain justice
  7. have no right to an appeal

Yet, all is not lost in arbitration for the consumer.  In fact, much can be gained.  

[Read more...]

The Facts of AT&T v. Concepcion

Why are we seeing more in the news about consumer arbitration?  It started with the U.S. Supreme Court’s decision in AT&T v. Concepcion, 131 S. Ct. 1740 (2011), that AT&T’s arbitration clause in its cell phone service agreement with customer COncepcion was fair and that the Federal Arbitration Act (FAA) of 1925 overrode Concepcion’s attempt at pursuing a class action lawsuit.

So what is the uproar about?  Would Concepcion’s arbitration with AT&T really be that bad?  Here are the facts of the case taken directly from the court opinion.

Facts:

  1. Vincenzo Concepcion was a customer with AT&T since 2002.
  2. the service agreement contained a clause that provided:
    • customers may initiate dispute proceedings by completing a one-page Notice of Dispute form available on AT & T’s Web site.
    • AT & T may then offer to settle the claim
    • if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT & T’s Web site.  Terms of arbitration process are as follows:
      • AT & T must pay all costs for nonfrivolous claims;
      • Arbitration must take place in the county in which the customer is billed;
      • claims of $10,000 or less, the customer may attend in person, by telephone, or by written submissions;
      •  either party may bring a claim in small claims court in lieu of arbitration;
      • and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages.
    •  AT & T cannot seek reimbursement of its attorney’s fees, and, in the event that a customer receives an arbitration award greater than AT & T’s last written settlement offer, requires AT & T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.
  3. Concepcion saw an AT&T advertisement for a free phone.  He went to a store to get it, and was told to pay the sales tax of $30.22 on the value of the phone.
  4. In 2006, Concepcion hired a lawyer and filed a lawsuit (which cost well over the amount in controversy, as today, the filing fee is $400) to pursue litigation over $30.22 and make allegations of false and deceptive advertising.
  5. AT&T tried to enforce its arbitration agreement, stating it was fair.  The court found the arbitration clause was not fair.
  6. AT&T appealled to the Supreme Court of the U.S. and won.

 

Had Concepcion filed a Notice of Dispute in 2006, he may have received his $30.22 already.  Or, if AT&T failed to settle, then Concepcion could have initiated arbitration, and an arbitrator would possibly have ordered AT&T to reimburse Concepcion the sales tax.  Or, he arbitrator may have found that AT&T did not act illegally by charging the sales tax, and would have ordered AT&T to pay nothing.

 

 

2015 Forecast: Self-Driving Cars, Changing Lives and Laws

It is cute, approachable, comfortable, some say it will be the safest and fastest transport option on the road, and does all the work for you.  What is there not to like?  The Google self-driving car, or, generally, the self-driving car (have we come up with an acronym for it yet? – perhaps “SDC”?) is highly-anticipated, and an unavoidable addition to our lives.

Yet, with any new technology, it takes time to adjust.  But that adjustment time is getting shorter and shorter.

Let’s consider the history’s latest technology advances. For example, the Automatic Teller Machines (“ATMs”).  They were introduced to the public in the 1970s under a signficant marketing campaign to lure the attention and garner the trust of customers.

Now, can you imagine life without an ATM?

How about, cell phones.  Call anyone, from anywhere there is a signal.  Laptops.   Social networks.   Email.  iPads.  Hybrid electric cars.  Tesla electric cars.  Renewable energy solar panels. Google glasses.

Everything is targeted about being more efficient, connected and/or sustainable.

Children are getting iPads and cell phones at younger and younger ages.  This generation, named Generation Z, is what will make this self-driving car a success.  And this success will change everything we know about everything on the road.

Human-error is the leading cause of automobile collisions, not manufacturer defect.  Consequently, laws trying to protect distracted and irresponsible drivers, are not working.  The law against texting while driving is ineffective, as are drunk driving laws.  Rear-end collisions, distracted driving, super-urbanization and pollution are taking over the planet.   We all know the problems.  We crave solutions, safety, sustainability and reliability.

The future with Google’s self-driving cars is nearing. [Read more...]

General Motors Knew of Ignition Switch Defect

Some things never change.  Even with increased U.S. automobile regulations and a “more litigious culture,” U.S. consumers continue to drive in death traps.  In the 1970s, it was revealed that Ford knew that its Pinto exploded upon rear-ending, but continued to produce them, and avoid implementing the $11 safety solution.  Similarly, this year, it was revealed that General Motors had knowledge of the deadly potential of its vehicles, but continued to produce them for over the past decade.

This year, GM has recalled 8.4 million vehicles, mostly due to a faulty ignition switch in the following vehicles:  1997-2005 Chevrolet Malibu, 1998-2002 Oldsmobile Intrique, 1999-2005 Pontiac Grand Am and 2003-14 Cadillac CTS.  

2005 Pontiac Gran Am, recalled

Knowledge of the defective ignition switch goes back to 2001.  The first reported death caused by a defective ignition switch was in 2005.  At least 13 deaths have been reported, to-date, with the potential for hundreds of more, where causation was possibly unknown.

Following the Ford crisis of the 1970s and the exploding Firestone SUV tire in 2000, Congress passed a law in 2000 requiring automakers to report to National Highway Traffic & Safety Administration (“NHTSA”) any claims they received blaming defects for injuries or deaths, so the government would not have to rely only on consumer reports.    This law was called Transportation Recall Enhancement, Accountability and Documentation (“TREAD”) and is part of the National Traffic and Motor Vehicle Safety Act of 1966, codified at 49 U.S.C. §§ 30101-30170.  NHTSA also has the ability to dig deeper into any of those claims by then doing a death inquiry — asking the automaker for documentation of each car accident and an assessment of the circumstances leading to each crash.

However, in this case, GM withheld this information from regulators at the NHTSA and in product liability litigation discovery responses.

A law is only as strong and effective as its application and enforcement.

With savvy corporate legal defense and hiding of information from regulators, and corporations’ sole objective being to increase profits, when can consumers fully trust a brand for its safety?  The issue really underscores the importance of the saying, buyer beware.  

If you have been injured by a recalled vehicle, you may have a product liability claim.  Some states have a two-year statute of limitations from the date of injury to bring a lawsuit, others have up to three years.   Feel free to contact product liability lawyer, Alexandra Filutowski, for a consultation.

Copyright 2014 The Filutowski Law Firm, PLLC. Disclaimer: This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued.

“Liking” Binds You To Arbitration, Says General Mills

Feeling lucky with your Lucky Charms, or tricked by those Trix?   Cereal company, General Mills (GM), is Kixing your right to sue the brand.

If you use a coupon, like the brand, or in some other way, get a benefit from the brand, GM says you cannot sue it.  Any dispute you have must be resolved over email negotiation and binding arbitration.

GM’s new legal terms and conditions

Today, GM states at the top of its website the following:

We’ve updated our Privacy Policy. Please note we also have new Legal Terms which require all disputes related to the purchase or use of any General Mills product or service to be resolved through binding arbitration. For more information on these changes, please click here.

When you click “click here,” the additional Legal Terms, include:

• New provisions relating to any disputes. These new provisions contain an agreement to resolve any and all disputes you may have with General Mills or any of its affiliated companies or brands contain through informal negotiations and, if these negotiations fail, through binding arbitration.  This includes disputes related to the purchase or use of any General Mills product or service.  All arbitrations will be conducted on an individual basis; you may not arbitrate as a member of a class. Claims may not be brought in court (with the limited exception of small claims court in certain circumstances), nor may you participate in any class action litigation. (See Section 3, “Binding Arbitration.”)

[Read more...]

Graco Stroller Recall Leads to New Product Safety Standard

Litigation and product recalls can improve product safety standards for the protection of future consumers.

In 2010, the Consumer Product Safety Commission (CPSC) recalled 2 million Graco strollers after several reports of infant deaths caused by entrapment and asphyxiation.

Yesterday, ABC National News broadcast a report done by Consumer Reports   Consumer Reports did a story on the recalled Graco stroller and the loss of 7-month old Bobby.  This firm represents the estate of Bobby in Knipper v. Graco Childrens’ Products in New York.  This year, the CPSC adopted a mandatory safety standard for strollers.

 

Unfortunately, infant injuries and deaths caused by strollers are more common than one may guess.  In 2011, approximately 12,900 children under the age of five were treated in emergency rooms for injuries, mostly falls or strangulation.  On average, one child dies each year from stroller-related injuries according to data from 2007-2009.

[Read more...]

Giving the Gift of Peace of Mind, At A Discount

 

Wow, another year has flown by!  This year my firm added estate planning to its practice. In my personal injury work, I see how the lives of individuals and families are disrupted by a split second.  It is important to plan our personal finances and family affairs for the “worst case scenario.”  My firm is currently offering simple will packages for a discount price through 12/31/13.

The will package includes three parts:

  1. Will – a legal document that specifies how your residual estate  (e.g., value of your 401k, savings, prized personal belongings,  minus your debts) are distributed upon your death.   You can also specify the guardianship of your children and pets and online social media accounts, emails and digital photos;
  2. Power of Attorney – details who can make financial decisions on your behalf when you become mentally incapacitated; and
  3. Medical Directive – specifies how you will be medically treated when you are physically incapacitated from an accident or during your end-of-life stage

Pricing:

Regularly $400.  Now: $350.

For more information, visit FAQs on Wills.

I look forward to helping you with your estate planning needs.

Happy Holidays,

Alexandra Filutowski

 

A Lesson on Generosity From Past Attorney and Philanthropist

Three organizations in Seattle have something grand to be thankful for: generous charitable donations from Seattle attorney Jack MacDonald.   Children’s Hospital, The Salvation Army and the University of Washington School of Law received a total of $187m from the estate of Mr. MacDonald. Mr. MacDonald accrued a large wealth over his 98 years, yet lived modestly, taking the bus, wearing worn out clothing and living simply. He worked for the Veterans Administration for nearly 40 years.  Although retired, he still challenged his mind with his passion for investing in the stock market and reading the daily newspapers. Mr. MacDonald’s philanthropy  is the largest private donation in the history of Washington State. He leaves a legacy and sets an example for all of us.  Lessons we can learn from Mr. MacDonald: 1. Less can be more.  While Mr. MacDonald had less belongings, he lived a full, happy life and was able to give opportunity to those in need at three great organizations in Seattle. 2. Planning is imperative for peace of mind.  If you have a special someone in your life, family, children or other dependents, you should have some life-planning documents drafted to protect those you love.  Visit our estate planning page to learn more.

Lessons From Celebrities’ Poor Estate Planning

Celebrities who pass leave us with a memory of their talent, yet, sometimes also a lesson from the public chaos involving their estates.  A Forbes article highlights some lessons learned from celebrities.

Take for example, Sonny Bono died in a skiing accident at age 62 without a will.  His ex-wife and child from out of wedlock made claims.

Lesson: Get a will drafted when you have kin and an ex.

Jimmi Hendrix died at age 27 without  a will.  His brother, with whom he was close, received nothing under intestate laws.

Lesson: Get a will drafted when you have a family member, who under intestate laws, would not receive the bulk of your estate.

Stieg Larsson, famous author of The Girl With the Dragon Tattoo, died, leaving his longtime girlfriend of 32 years.

Lesson: Get a will drafted when you are unmarried and want your partner to receive your estate.

The estate of Marlon Brando, Godfather actor, was contested by a woman.  She eventually settled with the executor’s of the estate.

Lesson: State your intentions, clearly, in writing in a will to decrease chances of your will being contested.

Princess Diana wrote her intentions with the distribution of some personal trinkets in a letter.  The intended recipients only received a small amount of what Di wrote in her letter.

Lesson: Get a will or living trust properly drafted by an attorney to ensure your intended distribution of personal belongings are carried out properly.

Copyright 2013 The Filutowski Law Firm, PLLC. Disclaimer: This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued.

 

 

 

“Selfie” In Dictionary, What About Privacy?

With over 1.1 billion Facebook users, nearly 555 million Twitter users, and a secret number of users of the growing Tumblr, social media is a global network of unhindered self-promotion that led the Oxford dictionary to adding the word “selfie.”

“a photograph that one has taken of oneself, typically with a smartphone or webcam and uploaded to a social media website”

With instant, public postings of one’s observations (such as   comedian Kyle Ayers’ live tweeting a couple’s breakup), feelings and activities, which may involve unsuspecting third-parties in a selfie or social media post, the boundaries of individual privacy are shrinking.

 

 

What is privacy?  Googling “define: privacy” comes up with this definition:

the state or condition of being free from being observed or disturbed by other people.

Yet, with social media tools and smartphones, society is falling subject to an unstoppable global paparazzi for the sake of instant entertainment.

[Read more...]