May 10, 2013

Arbitration Fairness Act of 2013 Introduced in Congress

by Levin & Perconti

The fight to preserve everyone’s ability to make a case in front of a judge or jury continues. In the nursing home context, following elder abuse or neglect, one of the biggest impediments to that right is the use of confusing and unfair mandatory arbitration clauses in nursing home admission contracts.

There have been many legal battles over this issue in recent years. Some of those arguments occur in courtrooms while others are taking place in legislative halls. The recent court battles usually involve more detailed issues about contract principles--who signed, who is bound, and whether or not many factors in the creation of the contract violated fairness principles. In general, state and federal courts have upheld these agreements on occasion but also found that under certain circumstances they can be thrown out.

The fight at the legislative level is usually more sweeping, involving proposed laws that would affect many different cases. For example, this week a new federal law was proposed in Congress known as the Arbitration Fairness Act of 2013. As discussed by the American Association for Justice, the new law seeks to end the abusive practice of so many large corporations, including nursing home conglomerates, that seek to insulate themselves from legal accountability with forced arbitration. As the AAJ summarized, the law is critically needed, because when it comes to arbitration, “The process is secretive, costly and rigged so that corporations cannot be held accountable. By removing access to justice, it grants corporations a license to steal and violate the law.”

The Proposed Legislation
The Arbitration Fairness Act would end these practices. Specifically, the law bars the use of forced arbitration in all consumer, employment, civil rights, and anti-trust cases. Arbitration could still be pursued in these cases but only if it is actually voluntarily entered into by the parties--not in take-it-or-leave it situations clouded in fine print.

The law was introduced in the Senate by MN Senator Al Franken and in the House by GA Rep. Hank Johnson. So far 17 other Senators and 22 House members have signed on as co-sponsors.

However, considering the party split in Congress, the actual passage of the law faces an uphill battle. While it likely has a better chance of making it out of the Senate, it would take surprising changes for the full House to consider and pass the bill. Similar legislation has been introduced in recent years without passage. But that does not mean that the measure this year should not be promoted. The more information we share with other community members about the dangers and the need for arbitration reform, the better.

Protect Your Rights
The Chicago nursing home abuse lawyers at our firm urge all Illinois residents to be vigilant about the documents signed upon admission. If you are presented with a mandatory arbitration agreements, refuse to sign it. Considering the frequency with which neglect occurs and the severe harm that it may cause, it is never a good idea to give up you or your loved one’s right to a fair legal hearing via the traditional process.

For help understanding any of these issues following your own experience with elder abuse, please contact the nursing home neglect lawyers at our firm at any time.

See Other Blog Posts:

Nursing Home Industry Continues to Insulate Itself from Civil Accountability

U.S. Supreme Court Will Not Overrule Illinois Nursing Home Arbitration Case