arbitration

You Should Know: Top Safety and Justice Stories of 2016

Are you making all those lists and checking them twice? Gifts? Holiday cards? Party invitations? New Year’s resolutions? Well, here’s one more for you courtesy of the American civil justice system: safer products and services.

This past year we’ve been following several stories of dangerous products or unfair practices that threaten the health, safety and legal rights of all Americans. Think exploding batteries, lead-laced drinking water, forced arbitration or faulty medical devices, for example. 

But thanks to the courage of citizens like you and the power of the civil justice system, we are holding accountable many of those who put profit over public well-being. And that’s a list we can all be proud of, as these stories so richly illustrate.

1. Faulty Medical Devices: Recalls Double

According the the FDA, medical device recalls doubled from 2003 to 2012, and new data shows that the numbers keep climbing. While the FDA approves medical devices before release, they do not do any testing and instead rely on the manufacturers to provide accurate and comprehensive testing data.

Two St. Jude Medical defibrillators recalled due to battery defects.

Two St. Jude Medical defibrillators recalled due to battery defects.

Two examples of faulty medical devices now on the market include the Essure birth control coil and the St. Jude defibrillator. The FDA has received over 10,000 complaints from women suffering painful side effects due to the Essure birth control device. Countless lawsuits against Essure’s manufacturer, Bayer, have sprung up across the country. Rep. Mike Fitzpatrick (R-PA) has since introduced a bill to pull Essure off the market. Meanwhile, more than 400,000 defibrillation devices made by St. Jude Medical were the subject of a recent recall due to a faulty battery. To learn more about medical device recalls, click here.

2. Forced Arbitration: Sign a Contract, Lose Your Rights

There’s always a holiday gift year that’s a dud. Maybe you’ve received an ugly sweater three times too big or a candle that smells so terrible it gives you a headache. Unfortunately, many corporations are now giving you those ugly sweaters (and forcing you to wear them), hiding “forced arbitration” clauses in consumer and employment contracts.

This loophole prohibits Americans from taking companies to court and instead forces them into secretive arbitrations, which are typically stacked in favor of the company. An investigation by The New York Times has focused renewed scrutiny on the harm caused by forced arbitrations in claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death. You can join others in petitioning Congress to ban forced arbitration right here.

3. Flint, Michigan: Lead in Water Sickens Thousands

Lead found in the Flint water supply has poisoned thousands, including 27,000 children.

Lead found in the Flint water supply has poisoned thousands, including 27,000 children.

Residents of Flint, Michigan, were exposed to dangerous levels of lead in their drinking water ever since a decision was made to switch the source of the city water supply from Lake Huron to the Flint River.

Dr. Mona Hanna-Attisha, a young pediatrician known affectionately in Flint as Dr. Mona, discovered the problem when she noted an increase in the symptoms of lead poisoning in her young patients. Knowing that it was her moral and ethical duty to share her discovery with the public as soon as possible, Dr. Mona held a press conference. Michigan officials and lawmakers denounced her findings at first, only to relent when Dr. Mona wouldn’t back down. Dr. Mona continues to lead the recovery efforts.

4. Concussions and Brain Disease: NFL Settles Lawsuit

If you’re a movie fan, you probably saw the film Concussion, starring Will Smith. This movie is based on the true story of Dr. Bennet Omalu and his discovery of chronic traumatic encephalopathy in NFL players. CTE is a disease of the brain tissue and is caused by repetitive brain trauma. CTE is associated with dementia, aggression, memory loss and depression.

Subsequent research has prompted athletic organizations to make concussion prevention and recovery a priority. This includes many “When in Doubt, Sit Them Out” laws, which mandate that any youth athlete suspected of suffering a concussion be cleared by a medical professional before returning to practice or competition. Earlier this year an appeals court upheld a settlement by the NFL with former players, setting aside almost $1 billion for medical care due to repeated head trauma. Since this lawsuit, head injuries have decreased for NFL athletes.

5. Asbestos: Still a Widespread Hazard

Asbestos may seem like a thing of the past, but any building built in the United States before 1981 is presumed to contain asbestos. And in fact, asbestos-related diseases still kill about 15,000 Americans a year. Even though asbestos is known to be extremely dangerous, the substance has not been banned in the United States. President Obama recently signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bipartisan bill that strengthens ways to regulate and restrict chemical substances. Because of this bill, the EPA can officially work to ban asbestos in the U.S. 

6. Exploding Devices: Faulty Lithium-Ion Batteries

Over 1 million Samsung Galaxy Note 7 phones have been recalled due to defective and explosive batteries.

Over 1 million Samsung Galaxy Note 7 phones have been recalled due to defective and explosive batteries.

From e-cigarettes to hoverboards to smartphones, reports continue of everyday devices posing an unsafe explosion hazard. The culprit is lithium-ion batteries, which include unstable and flammable liquids. When improperly made devices include these batteries, the liquid can overheat and burst through the battery, igniting the device itself. These explosions have caused burns as well as property damage from subsequent fires. The Consumer Product Safety Commission (CPSC) recently issued a recall of all 1 million Samsung Galaxy Note 7 phones, including replacement models thought to fix the problem. 

7. Prescription Drug Addiction: A National Epidemic

Prescription opiate deaths have quadrupled since 1999, killing an estimated 165,000 Americans. During the same time period, profits recorded by the drug companies that manufacture prescription painkillers have also skyrocketed. Meanwhile, a coalition of opioid manufacturers and their lobbyists have fought legislative measures introduced to stem the tide of overdose deaths.

8. Dangerous Toys: Still on Store Shelves

Nearly 260,000 kids visit emergency rooms each year for toy-related injuries, according to the CPSC. And sadly, 11 children under the age of 15 died while playing with toys in 2015. [Download report] The most common injuries include poisoning, choking, ingesting magnets or falling from riding toys. While regulators, safety advocates and the parents of injured children have succeeded in ridding store shelves of many unsafe toys, too many still get through. Learn more.

This article appeared in our December 2016 "You Should Know" e-newsletter.

You Should Know: Justice Served Awards 2016

People Who Make a Difference

The 2016 Justice Served Awards honor each of these nominees for their commitment to a safer, more just America. Tell us which story moves you the most (see our nominating criteria below), and we’ll enter you into a drawing for a free subscription to Consumer Reports.

Hero Doctor Wouldn’t Back Down

Dr. Mona Hanna-Attisha continues to  lead the fight  for kids suffering from lead poisoning in Flint, Mich.

Dr. Mona Hanna-Attisha continues to lead the fight for kids suffering from lead poisoning in Flint, Mich.

Today we all know that the ill-fated decision to switch the water supply in Flint, Mich., from Lake Huron to the Flint River to save a few bucks in the state budget caused dangerously high levels of lead in local drinking water. But if not for Dr. Mona Hanna-Attisha, a passionate young pediatrician at Hurley Medical Center, the threat of lead poisoning – especially to the children of Flint – might never have been uncovered.

Dr. Hanna-Attisha, or Dr. Mona as she is affectionately known in Flint, knew something was wrong when she started seeing a marked increase in rashes and hair loss in her little patients. She and her team analyzed hundreds of hospital records and found that the toddlers of Flint were suffering from extremely high lead levels in their blood. Knowing that it was her moral and ethical duty to share her research with the public as soon as possible, Dr. Mona held a press conference. But instead of taking action, state and local officials spent a week denouncing her findings and attacking her character before finally admitting she was right. Two weeks later, Flint’s water supply was switched back to Lake Huron, and an entire nation soon learned about this scandal.

Sen. Al Franken Fights for Your Day in Court

Senator Al Franken is leading legislative efforts to ban mandatory arbitration.

Senator Al Franken is leading legislative efforts to ban mandatory arbitration.

Senator Al Franken (Minn.) has spent years trying to protect Americans from “forced arbitration” clauses, which he calls “an attack on the constitutional rights of all U.S. citizens.” These legal loopholes are increasingly found in consumer and employment contracts, mandating that disputes must be settled by binding arbitration rather than in court. Because these arbitrations are closed to the public and the arbitrators are often handpicked by the company, consumers and employees almost always lose and have no right of appeal. These clauses increasingly prohibit class action lawsuits as well, eliminating another powerful tool used by consumers to hold corporations accountable.

After a young woman working for a defense contractor was allegedly gang-raped by coworkers, Sen. Franken successfully added an amendment to an appropriations bill banning the U.S. military from doing business with companies that include mandatory arbitration clauses in employee contracts. Since then, Sen. Franken has authored legislation, including the Arbitration Fairness Act of 2015 to make forced arbitration a thing of the past. This proposed law states that “no pre-dispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute or civil rights dispute.”

Volkswagen Lied to Customers While Polluting the Environment

Dan Carder and his small band of researchers brought Volkswagen to its knees.

Dan Carder and his small band of researchers brought Volkswagen to its knees.

Dan Carder, director of the West Virginia University Center for Alternative Fuels Engines and Emissions, knows his field of study isn’t very exciting. His research team is often overlooked and underfunded. But when the Center was commissioned to test emissions from diesel cars, the results upended Volkswagen and eventually put Carder on Time magazine’s list of the 100 most influential people in the world.

It all started in 2012 when the Center received a $50,000 grant from the International Council on Clean Transportation for an on-road test of diesel emissions standards. Volkswagen boldly claimed its diesel cars were both environmentally friendly and fuel efficient, but test after test showed that the numbers didn’t match up. In fact, Volkswagen diesels were emitting up to 35 times the safe amount of nitrous oxide gases. Eventually the company fessed up that more than 11 million vehicles were equipped with software designed to cheat on emissions tests. Since then, Volkswagen has recalled 700,000 vehicles in the United States alone and must spend more than $15 billion in settlement claims to buy back or repair the affected vehicles.

Mother Who Lost Daughter to Cyberbullying Speaks Out for Compassion

Tina Meier with pictures of her daughter Megan.

Tina Meier with pictures of her daughter Megan.

Life was looking up for Megan Meier after years spent struggling with depression and attention deficit disorder. She had just started eighth grade at a new school, had joined the volleyball team and would have her braces off soon. She also began chatting online with a boy named Josh Evans, who wanted to be her friend. Weeks later he turned on her, and soon hundreds of cruel messages about Megan were posted on a bulletin. Josh’s last message said that everyone hated Megan and that the world would be better off without her. That night Megan committed suicide. Six weeks after Megan died, her mother Tina learned that Josh never existed. His account was set up by a neighbor on their block and her daughter, a former friend of Megan’s.

Tina Meier created the Megan Meier Foundation to fight for her daughter’s legacy. The Foundation’s mission is to “Promote awareness, education, and positive change in response to issues surrounding bullying, cyberbullying and suicide.” Today Tina travels around the country, speaking to students, educators, administrators, parents, counselors, law enforcement officers and other professionals about the dangers of cyberbullying. Tina hopes that she can empower young people to celebrate individuality and accept others in order to make a kinder and safer world.

Justice Served Awards Nominating Criteria

The Justice Served Awards celebrate the stories of injured people and their families who decide to make a difference in protecting the health, safety and legal rights of others. Once a year, we ask our readers to read these remarkable stories and tell us which one touches them most, and why. Winners are chosen based on their efforts to:

  • Uncover negligence or other irresponsible behavior by organizations that put their interests ahead of the public interest;
  • Prompt government action by shedding new light on defective products, services or other practices;
  • Trigger manufacturing and quality assurance practices that lead to safer products and services; and
  • Increase public awareness that helps prevent additional injuries and protect an individual’s right to civil justice in a court of law.

 This article appeared in our August 2016 "You Should Know" e-newsletter. 

You Should Know: Forced Arbitration Is Forced Injustice

Tia’s employment case against Circuit City was thrown out of court even though her boss sexually harassed her for months, once even exposing his genitals. Javier lost his job when he was deployed overseas despite federal laws protecting employment for members of the armed services. Alan and other small business owners were told they couldn’t take American Express to court for charging exorbitant exchange rates. Marjorie, Roberta, Richard, Dean, Frances, Beulah, Horace and Mary all suffered terribly and died from nursing home neglect, yet their families were not able to sue the nursing home companies.

How could injustices like these be allowed to exist in America where everyone has the right to take wrongdoers to court? It’s called forced arbitration, and you or a loved one may be next to lose your rights.

Harassed, Assaulted and Then Dismissed

Tia was sexually harassed by her boss at Circuit City for months. Her  story here.

Tia was sexually harassed by her boss at Circuit City for months. Her story here.

Tia thought she was taking a step forward when she became a manager-in-training at electronics giant Circuit City. Instead she endured months of sexual harassment by her boss, who at one point exposed his genitals to her. He was also captured on video grabbing Tia’s hand and parading her around the store as she tried to escape.

But the worst was yet to come. When Tia filed a sexual harassment claim against the chain, her lawsuit was thrown out of court because of a legal time bomb in her employment contract called a forced arbitration clause. Circuit City went out of business while Tia was in arbitration and her case was dropped.

A “Get Out of Jail Free” Card for Corporations

Dean Cole’s family tried holding a Minnesota nursing home accountable in court after he died of neglect, but they were forced into arbitration where the truth was hidden from the public. His  story here .

Dean Cole’s family tried holding a Minnesota nursing home accountable in court after he died of neglect, but they were forced into arbitration where the truth was hidden from the public. His story here.

Tia is among a growing number of Americans learning about forced arbitration clauses the hard way. Thousands of businesses, from credit card companies, banks and investment firms to cell phone providers, schools and nursing homes, are inserting legalese into employment contracts and service agreements called “forced,” “binding” or “mandatory arbitration.” When something goes wrong – and in some cases terribly wrong – the customer, renter, homeowner, resident, patient, employee, etc., is forced into arbitration. And that’s when the bomb goes off!

Individuals almost always lose to businesses in arbitration (97 percent of the time according to a 2007 Public Citizen report) because arbitrators are hired and hand picked by the offending businesses. Decisions from the arbitration proceedings are secret, and there is no appeal. Most forced arbitration clauses also include a ban on class-action lawsuits as well, preventing consumers from joining forces to fight wrongdoing. A recent investigative series by the New York Times called forced arbitration “a far-reaching power play orchestrated by American corporations,” and quoted state judges who called it a “get out of jail free” card.

A Short But Disturbing History

The use of forced arbitration clauses is a relatively new tactic developed by a Wall Street-led coalition of credit card companies and retailers. Their goal, according to interviews with coalition members and court records, was simple: find a way to legally insulate businesses from lawsuits. Consumers and advocacy groups eventually cried foul and challenged the use of forced arbitration clauses and the ban on class-action lawsuits. But in 2011 and again in 2013, the U.S. Supreme Court upheld forced arbitration. With the floodgates now open, the use of forced arbitration clauses exploded far beyond the financial services industry and is now found in everything from daycare and dog sitting services to cable television and funeral homes.

How Do You Fight Back?

You can learn how to identify arbitration clauses before you sign a contract or click the little box next to “I agree to these terms and conditions.” You can then take your business elsewhere. However, this option isn’t always practical if you want cell phone service, for example, or need a new job. Your other option is to support efforts by some lawmakers, government agencies and consumer advocacy groups to stem the tide of forced arbitration. Here’s a few:

  • The Consumer Financial Protection Bureau (CFPB) is a government agency that protects consumer rights in the financial services industry. The CFPB recently announced a proposed rule that would ban class-action waivers in service contracts for credit cards, checking accounts and other financial services. Right now the CFPB wants to hear from the public on this proposal. Go here to add your comments and support the ban on these restrictive waivers.
     
  • The Centers for Medicare and Medicaid Services (CMS) is also working on a similar provision, which would forbid mandatory arbitration clauses in nursing home contracts.
     
  • The Department of Education has recently announced it’s considering a proposal that would prohibit colleges from including mandatory arbitration clauses in their enrollment contracts with students.
     
  • U.S. Sen. Al Franken (D-Minn.) and U.S. Rep. Hank Johnson (D-Ga.) have introduced the Arbitration Fairness Act, which would do away with forced arbitration clauses in contracts that ban class-action in employment, consumer, antitrust or civil rights disputes. To voice your support of this legislation, sign our petition at Take Justice Back.

 This article appeared in our May 2016 "You Should Know" e-newsletter. 

You Should Know: America’s 2015 Top Safety and Justice Stories

It was a busy year for those who fight for the health, safety and legal rights of all Americans. While this short list is by no means exhaustive, here are some of the top stories we were watching in 2015:

1. Forced Arbitration Is Forced Injustice

Many Americans are signing away their right to a day in court.

Many Americans are signing away their right to a day in court.

There’s a legal land mine buried deep in thousands of consumer and employment contracts called a “forced arbitration” clause that threatens our right to hold major corporations accountable for wrongdoing. This loophole prohibits Americans from taking companies to court and instead forces them into secretive arbitrations, which are typically stacked in favor of the company. An investigation by The New York Times has focused renewed scrutiny on the harm caused by forced arbitrations in claims of medical malpractice, sexual harassment, hate crimes, discrimination, theft, fraud, elder abuse and wrongful death. You can join others in petitioning Congress to ban forced arbitration right here.

2. Food That Sickens Rather Than Nourishes

Major cases of food contamination at Chipotle Mexican Grill and Blue Bell Ice Cream this year illustrate the growing problem of foodborne illness. According to a new report from the American Association for Justice, 48 million people fall sick, 128,000 are hospitalized and at least 3,000 die each year from foodborne illnesses. Questionable production techniques and cost-saving measures, combined with weak state and federal oversight, threaten to make the situation worse. Litigation helps shed light on dangerous practices and hits companies back hard with large financial penalties and damaged reputations.

3. Cost Savings Creates Deadly Defect in Guardrails

Trinity Industries installed 220,000 guardrails throughout the country that may spear cars on impact.

Trinity Industries installed 220,000 guardrails throughout the country that may spear cars on impact.

Trinity Industries modified its highway guardrails to save money but instead created a deadly hazard, all of which didn’t come to light until it was sued by a whistleblower and those who suffered injuries as a result of the defect. Rather than slow down a vehicle when impacted, the Trinity guardrails spear through the passenger compartment. A federal judge recently ordered the company to pay $663 million in penalties for concealing the design modification from federal officials. At least 14 lawsuits blame the guardrails for causing injuries in crashes, including five deaths, according to The New York Times.

4. Exploding Airbags Seriously Injure Motorists

Airbags made by Takata and installed in vehicles from 12 different automakers can explode when deployed, injuring or even killing occupants. A report published in The New York Times alleges that Takata knew of the defects for years but failed to take action. Since then the National Highway Traffic Safety Administration (NHTSA) has recalled 19 million vehicles in the United States, fined Takata for failing to cooperate with its investigation and handed down a record civil penalty of $200 million.

5. New Regulations Protect Nursing Home Residents

Proposed regulations would improve nursing home safety.

Proposed regulations would improve nursing home safety.

The federal watchdog for nursing home safety has proposed sweeping new regulations designed to improve patient care and safety for more than 1.5 million Americans living in long-term care facilities. Such regulations are long overdue, according to patient safety advocates, family members and nursing home lawyers, who report numerous cases of abuse and neglect. If the regulations are finalized, “unnecessary hospital re-admissions and infections would be reduced, quality care increased and safety measures strengthened,” according to the Centers for Medicare & Medicaid Services.

6. VW Trumps GM as Most Untrustworthy Car Maker

The scandal at Volkswagen over rigged emissions in more than 11 million cars worldwide reminds Americans once again that car manufacturers are often willing to jeopardize the health and safety of consumers to protect their profits. News of the VW scam comes just over a year after GM admitted it had covered up a defect in an ignition switch that has been blamed for at least 124 crash deaths. Both companies might have gotten away with their misconduct if not for a wrongful death lawsuit (in the case of GM) or a chance discovery by a small research team at West Virginia University (in the case of VW). Meanwhile, some in Congress are considering a bill that would bail out VW: learn more and tell Congress to vote no here.

7. Defective Products Create “House of Horrors”

Toxic drywall, failing sprinklers, leaking windows and even bursting toilets ... these are just a few of the defective and dangerous products that are featured in the “House of Horrors,” an informative infographic from the American Association for Justice. Each case demonstrates how consumers have fought back against shoddy manufacturers through class-action lawsuits, a right that is threatened by forced arbitration clauses as discussed above.

8. Toys Still Injuring Kids

Nearly 260,000 kids visit emergency rooms each year for toy-related injuries, according to the Consumer Product Safety Commission. And sadly, 11 children under the age of 12 died while playing with toys in 2014. The most common injuries include poisoning, choking, ingesting magnets or falling from riding toys. While regulators, safety advocates and the parents of injured children have succeeded in ridding store shelves of many unsafe toys, too many still get through. Learn more.

 This article appeared in our December 2015 "You Should Know" e-newsletter.