Susan Fowler files amicus briefs to challenge class action waivers | Hacker News Reader

Susan Fowler files amicus briefs to challenge class action waivers

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139 pointsmcone31 comments

I was surprised to see the headline because I thought I'd missed the part where she sued in a lower court, the part where the case was appealed multiple times, and the part where the Supreme Court accepted the case.

Nope, should have realized it was a clickbait title. She's just filing amicus briefs, which is almost never considered newsworthy.

Edit: Title has been updated, thanks!

> just filing amicus briefs, which is almost never considered newsworthy

While the title is rather misleading and I'd encourage the mods to change it, it's quite common for amicus briefs by groups (or, occasionally, individuals, though most relevant briefs are written by companies) known to HN to be on the front page. When the EFF or ACLU files amicus briefs on topics like the TPP or privacy-related cases, they commonly hit the top 10.

Binding arbitration is a common topic on HN, so it makes perfect sense to me that an amicus brief on a SCOTUS case about binding arbitration would be newsworthy.

This is hugely important. It's wrong that companies can force people to give up their democratic rights in order to take a job.

Besides the class action waiver which so blatantly violates the NLRA, an NLRB administrative law judge recently ruled that Uber's arbitration agreement is defective in another way: it is likely to be interpreted as prohibiting employees from filing NLRB charges. The ALJ decision is at https://apps.nlrb.gov/link/document.aspx/09031d458249405c.

Susan Fowler: a hero the Valley doesn't deserve, but one it sorely needs.

Unfortunately, this is unlikely to succeed. The court, especially under Roberts who is a fan of arbitration, has ruled in favor of arbitration clauses recently.

I fear that you're right. It seems so blatantly obvious that employees collectively litigating employment-related claims is a "concerted activity for mutual aid or protection," and thus class action waivers do violate the NLRA. (So why is this even a dispute? Because conservatives.)

Wasn't Roberts one of the attorneys involved in formulating the current binding arbitration strategy that's being used to suppress consumer lawsuits?

I think I read that in the giant investigative piece about arbitration in the NYT.

Yes, according to https://www.nytimes.com/2015/11/01/business/dealbook/arbitra...:

> One of the players behind the scenes, The Times found, was John G. Roberts Jr., who as a private lawyer representing Discover Bank unsuccessfully petitioned the Supreme Court to hear a case involving class-action bans. By the time the Supreme Court handed down its favorable decisions, he was the chief justice.

I hate going into the political realm, but next time someone says "both parties are the same", point out how many of these Republican appointed judges are completely against workers' rights.

Agreed. In addition to judicial decisions, Obama's NLRB has issued several common-sense and worked-friendly decisions over the past several years. The Republican member(s), which were a minority but soon will be the majority, always dissent, using tortured "logic" to justify a position that is inevitably biased towards the employer. When NLRB decisions voted upon party lines are reviewed in court, they have a higher chance of being upheld by Democrat-appointed judges.

The Republican members are there to represent management.

In my country, arbitration is NOT legally binding. That said, the court ruling is often the same but much more onerous costly and time consuming. Thus arbitration rulings are accepted 9 out of 10 times.

The ability to take it to court keeps arbitration fair. Without that stick the carrot of simpler faster rulings wouldn't taste as sweet for long.

Which country would that be? As far as I know majority of the countries are signatories of New York Convention [1] which makes arbitration binding.

1. https://en.wikipedia.org/wiki/Convention_on_the_Recognition_...

>which makes arbitration binding

That is AFAIK for international arbitrations, does not affect "domestic" ones.

"Collective litigation — when meritorious — usually results in settlement negotiations (or bargaining), a “collective” settlement agreement, an improvement in working conditions, and a reduction of industrial strife"

I think they mistyped "an improvement in working conditions" when they meant "lawyers taking most of the payments and the class getting next to nothing" in typical class actions

Something has got to change if we want the industry to change. This may be unlikely to succeed, but change has to start somewhere.

saw this on BBC today

Uber drama fails to hurt its business, figures suggest http://www.bbc.com/news/technology-41032868

As a society, we have to decide - do we allow economic pressure to be used to make people give up their fundamental rights?

I don't think there is any fundamental right to sue private parties in the US. If you find it, please post about it.

First, as a non-lawyer, I would say that it is implied by the Seventh Amendment. Second, your premise is flawed, as according to the Ninth Amendment, there can be fundamental rights that are not explicitly listed.

Included in the 1st amendment: http://www.firstamendmentcenter.org/right-to-sue/

Section 1983.

The bill of rights merely lists some rights that you already have even without the bill of rights. They are called natural rights -- in fact the bill is a limit on government, not a grant to the people from government.

That being said, the constitution has established an independent judiciary which has little limit to what matters it can opine. You have a right to petition that judiciary. You're somewhat correct in that you don't have a right for them to listen.

> That being said, the constitution has established an independent judiciary which has little limit to what matters it can opine.

I don't think that's actually true. IANAL, but IIRC the jurisdiction of the federal judiciary is quite limited compared to that of the states.

There is no "we" unless there is unanimous decision. And practically it is not possible for nation states. You may suggest "As a society, majority have to decide.. " if you are a believer of Democracy.

Edit: I know this may sound just technicality, I just dislike use of "we" in politics.

>As a society, we have to decide

Do you mean current decisions were made by an entity outside of the society

There were no current decisions - such contracts are relatively new, and few laws were passed explicitly for or against them - mostly against, but were struck down by the Supreme Court.

And it does not follow that a decision made by an entity inside the society, was made by the society as a whole, or that it has any sort of majority support, even if it is law. By that logic, you could argue that we, as a society, decided that one-click shopping is worthy of patent protection, and that it should be illegal do unlock your own phone.

As a society, we also have to decide if being able to file a class action suit is a fundamental right or merely a non-fundamental optional mechanism for vindicating other rights, fundamental and otherwise.

The US has already decided that the right to sue is fundamental: http://www.firstamendmentcenter.org/right-to-sue/

Such waivers limit this right. I struggle to imagine an ideology that thinks giving up a fundamental right is wrong, but limiting it is ok. Given how rarely arbitration courts rule against the one who selected them, the difference between limiting and forfeiting the right entirely is slim to none.

I think the way they justify it is that the waiver is "voluntary," e.g. you have to agree to it in a contract.

I personally wouldn't have a problem with that if the contract terms were negotiated by two sophisticated parties. However, the reality is that these contracts are often pro-forma and and "signed" without negotiation in the context of great disparities in power and sophistication. IMHO, the latter is troubling and shouldn't be allowed. There should be a whitelist of a limited number of types of terms that can be included in a pro-forma contract like these, and binding arbitration shouldn't be one of them.

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