How a Lawsuit Over Hot Coffee Helped Erode the 7th Amendment (2014)
priceonomics.com
priceonomics.com
Can you sue for wrongful termination if you get fired for refusing to sign such a waiver?
I've tried to make such arguments on behalf of terminated employees in federal district courts in the Fifth Circuit, but have not been successful to date.
But some courts have held that a demand to arbitrate or be fired, and then firing the employee for refusing to sign, is unlawful retaliation when there is a pending claim. See, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1267-1268 (11th Cir. Ala. 2008):
The main issue in this appeal is whether Bagby Elevator Company was entitled to a judgment as a matter of law against Greg Goldsmith's claim of retaliation when it is undisputed that Goldsmith's employment was terminated based on his refusal to sign a dispute resolution agreement that applied to his charge of racial discrimination pending with the Equal Employment Opportunity Commission. Bagby Elevator appeals a jury verdict that awarded compensatory and punitive damages to Goldsmith based on his complaint of both racial discrimination and retaliation. See 42 U.S.C. § 1981; 42 U.S.C. §§ 2000e-2000e-17. In Weeks v. Harden Manufacturing [1268] Corp., 291 F.3d 1307 (11th Cir. 2002), we ruled that a refusal to sign an arbitration agreement was not a protected activity that could support a claim of retaliation, but we did not address an employee's refusal to sign an agreement that applied to a pending charge of discrimination. Goldsmith was willing to execute an amended dispute resolution agreement that would not have applied to his pending charge, but Bagby Elevator insisted that Goldsmith sign an agreement that applied to the pending charge and fired him immediately after he refused to do so. We conclude that Bagby Elevator was not entitled to a judgment as a matter of law against Goldsmith's claim of retaliation because there was sufficient evidence of a causal relation between the filing of his pending charge and later termination. As a result, we need not decide any issue about the verdict regarding Goldsmith's alternative claim that he was terminated based on his race.
It seems unlikely, because the Supreme Court has ruled it's permissible for employers to compel employees to sign arbitration agreements as a condition of employment.
I mean honestly I think this is ideologically motivated just like the rash of decisions that have practically made it impossible to file a class action lawsuit by letting companies require their customers to use arbitration.
Unless you subscribe to the Marxist doctrine that every economic interaction is "really" a question of one party having power over the other, which is delusional like the rest of Marxism.
This is excellent. In fact, the patent office should require arbitration agreements which the patent office would oversee for any patent disputes. Maybe it would be a small step forward over the patent mess that exists now.
now getting that blurb in another paper likely requires packaging it in such a way that the word count is acceptable and the text is interesting. sadly as the count goes down the facts fall out.
For example, every time Trump tweets "i never said that" we need the context ("he did say that") or we're just guessing at the truth.
Their original article on this subject is at http://www.nytimes.com/1994/08/19/business/big-jury-award-fo....
Note how it doesn't lie to you. It's the "just the facts" approach people worship.
Arguably, if they had foreseen what that story would become in mainstream folklore, they would have wanted to add some graphic images etc. But I doubt anybody knew at the time how interested parties would instrumentalize this story.
Of course they meant a qualification to remind people that she lost the election.
(...which I think is quite far 'out there' with regards to examples of lies spread by the media. But maybe the NYT and I are wrong in assuming that everybody knows about President-elect by now.)
"Popular vote For Clinton 50.4% ... For Trump 49.6%"
Check the Wayback Machine for this page:
http://www.nytimes.com/interactive/2016/11/16/us/politics/10...
Then look at its accurate rewording now.
It wasn't until sometime after the 16th that it was accurately restated.
Perhaps the original edition can be found on the Wayback Machine, but this page was pointed out on HN at the time.
http://www.nytimes.com/1994/10/12/garden/coffee-tea-or-ouch....
On the other hand, this article from 1995 on lawsuits against restaurants, which also mentions it, is quite sympathetic to the restaurants:
http://www.nytimes.com/1995/03/12/weekinreview/the-nation-he...
But not unreasonably so, I think. There are two sides to every story.
Sure, but it goes both ways.
On one hand, companies are overly litigious for reasons described in the post. I've been frustrated at least once that I couldn't be part of a class action suit because there wasn't a recall for a design flaw costing me thousands; I knew however that a class action suit probably would've resulting in a small check at most.
On the other hand, there are law firms that advertise on television to get people to claim malpractice, etc. and "get money." And there are patent trolls that are purely exploiting.
I think it's fair to say there is a lot that could be done for reform.
The legal basis for outsourcing legal proceedings is a 1925
law passed by Congress specifying arbitration as an option
for “merchants” who agree to a private alternative.
The _real_ issues are,
1) What kinds of commerce are reachable? This bill passed in a time when the Federal Courts held a substantially narrower interpretation of Congress' powers over commerce. And even proponents of modern, so-called plain text interpretation usually admit that in some circumstances, especially involving constitutional issues of powers, you want to see a more clear articulation of an intent to extend power so broadly.
2) SCOTUS upended over half a century of settled precedent. First when it held that the FAA was enforceable in state courts applying state law, and again when it decided that state law defenses to enforceability (i.e. state-specific definitions of unconscionability) could not be used.
3) Deciding that state law defenses are not useable is ironic give the plain text limitation that arbitration agreements are enforceable "save upon any grounds that exist at law or in equity for the revocation of any contract". There's a sound argument that this exclusion doesn't capture state-based grounds. But that argument necessarily depends on the historical legal context--at the time the law couldn't have reached nearly as much commerce as SCOTUS allows today. And it wasn't until 1938 until Erie Railroad v. Tompkins exalted state law in choice of law matters.
These details matter because if you try to debate the Federal Arbitration Act with knowledgeable defenders you lose all credibility by repeating falsehoods like the author did. We really need change in this regard: 1) stop so-called tort reform, and 2) fix SCOTUS' error in applying the FAA so broadly. It helps if people stick to facts.
Many conservatives love the FAA; and many conservatives love so-called tort reform. But the inevitable outcome of both these things will be centralization of consumer protection in federal government agencies. A modern democracy simply won't stand-by while corporations cheat and injure people. The question is, which system do you want:
1) One that is decentralized, relatively equitable (1000 years of careful balancing of interests between plaintiff and defendant), and with more freedom for states to experiment, or
2) One that is centralized in a few government regulatory bodies, where the little guy will almost always get screwed, and businesses are subject to the whims of each passing administration on major issues, turning every major business dispute into a political issue.
The latter is what you get when you take away the ability for people to seek out individualized justice in the courts. And the outcome will not (and is not) good for anybody.
This is essentially a religious belief.
But note that what change the electorate gets might not be very effective. It might be just barely adequate, or it might just obscure the problem. And that's my point: conservatives are taking away the tools to seek out justice. Liberals are replacing some of those tools, but the newer tools suck. They'll not only be less effective in protecting consumers, but they're likely to be even more stifling to business. Everybody will be worse off.
Regulatory agencies are worse for business because unlike courts, regulatory agencies can _prevent_ businesses from innovating on the pretense of consumer protection. While as a general matter courts can only respond to manifest harm.
Because regulatory agencies don't and cannot provide individualized justice, when they work well to protect consumers they do so by being overly protective. Usually it's beneficial to society to let businesses take more risk as long as they can compensate those people who are harmed. I'm not saying regulatory agencies are always a bad idea, just that vesting the power in consumers to sue on their own behalf, and relying on them to do so, is a much more powerful mechanism for correcting bad behavior than people think. It's administratively inefficient in many respects, but at least it's uncoupled from politics and more directly tied to manifest harms. I think in real economic terms it's less costly for society.
I don't share your optimism.
Less obvious examples are the increasing role of, and the public's increasing reliance upon, the FCC and FTC in arbitrating consumer disputes. This is happening because the federal government has been monopolizing for itself regulation of industry by pre-empting state law and, in the case of the FAA, preventing class-action civil suits.
It might be two-steps backwards, one-step ahead. But both conservatives and liberals in both Congress and SCOTUS are centralizing control in the Federal government. Conservatives because they think it's better for business, liberals because they think having watchdog agencies are always a good thing. And both because they don't trust state governments. And both are wrong. Or, at least, the intentional and unintentional centralization is not necessary to their aims, and likely to result in a worse mess for everybody.
I am from Europe and to be honest I don't have much experience with US legal system. But what I watch from news and stuff, it is a utility to force people, out of court settlements or guilty pleas. What I see is going on a jury trial is a probabilistic decision. You would most likely settle out of court for your Expected Value at jury trial.
I strongly feel this should not be what justice should be.
Why so hostile?
Not everyone who reads HN is from an imperial or customary units country. The inline conversion provides context for those readers, in addition to being a natural form of speech, the same way you might say "60 meters? That's like 200 feet! How can they hold their breath that deep?".
I really don't think GP was lording primary school math skills over the HN populace.
Also, 180 degrees is considered standard serving temperature for coffee according to the Specialty Coffee Association of America. Starbucks, Dunkin Donuts, and a host of companies serve at this temperature as well. While some might complain this is still too hot, I would not say that mcdonald's serves it's coffee UNUSUALLY hot.
It's as if I served you a plate of lutefisk after the "soaking in lye" stage but before the "soak in water to get rid of the lye" stage.
Edit: oh, and that serving it that way was corporate policy and that there had been hundreds of prior problems, some also involving injuries. I suspect the "corporate policy" part was a big factor in the punitive damages portion of the case which was based on 2 days of coffee sales.
Then, to cut costs, McDonalds raised the temperature of their coffee without telling people what it could do. I personally lost the ability to taste anything after taking one sip. Came back after a day or two but no coffee has ever done that. Then, this woman gets third degree burns from something she expects to hurt and make her skin red at worst.
That's nothing even a smart person or coffee junkie should expect to happen. It's unusual. That's because it was a dangerous thing McDonalds did to squeeze more money out of their operation. The danger damaged people who couldn't see it coming. They should pay for it.
How does raising the temperature of coffee cut costs?
Profit went up with most people taking damage thinking they couldn't win against legal team of a giant. They just put in complaints instead of lawsuits. The suit that won got watered down a lot on appeal. The marketing team combined with the media, which makes a fortune on McDonalds ads, turned her into a laughing stock. McDonalds added a warning or something afterward but the cost-benefit analysis was good enough to justify all of it.
The coffee was hot enough to cause full thickness ("3rd degree") burns. It remained hot enough to cause these burns after they left the restaurant, and after a short drive.
Warning labels do not work - if warning labels worked no-one would ever get a speeding ticket. A warning label on the side of coffee is ignored by the people making it and the people drinking it.
A jury looked at the facts of this case and decided McDonalds was negligent and that the woman deserved punitive damages.
Although, if you hate this lawsuit, most of them (and they continue to happen, McDonalds didn't change the temperature of their coffee after the case) get thrown out of courts.