New Amtrak Arbitration Agreement

[flitcraft]

Amtrak is not covered under the Federal Tort Claims Act; there are several cases that establish that Amtrak is not a federal agency.  (I know some of the attorneys representing victims from the  Cascades crash; they are convinced that precedents bar application of the FTCA.  What is less clear is the degree to which the Federal Railway Safety Act may preempt state tort law.)

But back to the main topic here--arbitration. The  existence of mandatory arbitration in consumer  contracts is a classic case of market failure.  Take cable tv, for example. Every cable company requires binding arbitration, so there's no ability to choose for consumers.  Well, of course, there's always satellite tv... oh, wait, they require arbitration, too.  Okay, so I'll cut the cord and get Netflix...ah, nuts, they require arbitration. So does Hulu.  In fact, the entire industry does. And it is just one of many industries where consumers have no choice. Read the fine print in almost any service or product you buy and, you've lost your constitutional right to access the courts. These arbitration clauses can be amazingly comprehensive, taking away your right to sue even for intentional misconduct such as fraud, theft, and assault. 

The irony is that many corporations are now insisting on one-way arbitration clauses--you, the buyer is limited to arbitration, they, the seller, retains the right to choose arbitration or court action if they prefer. If arbitration is so efficient and wonderful, why do you think corporations are so anxious to preserve their right to trial in court and to extinguish yours?  Food for thought...

 

[VTTrain]

Is Amtrak covered under the Federal Tort Claims Act as a Federal Government owned enterprise? If so, that arbitration agreement would presumably only pertain to torts that are not covered under the Act.

No, they are not.  

https://www.leagle.com/decision/19821097540fsupp55711025

 

[TJGagliardo]

No, they are not.

https://www.leagle.com/decision/19821097540fsupp55711025

There is a time and place for everything including arbitration. That said the Amtrak arbitration clause is likely to be enforceable, as have been many one-way arbitration agreements requiring one to surrender rights to access federal and state courts. Here is what you surrender under the Amtrak arbitration agreement -- right to sue in federal or state court, right to a jury trial, right to review by a court of appeals and the right to join others in a collective or class action even though your claims arise from the same act or omission.

Here is a link to the American Arbitration Association rules, referred to in the Amtrak agreement:
https://www.adr.org/sites/default/files/Consumer%20Rules.pdf[URL]https://www.adr.org/sites/default/files/Consumer%20Rules.pdf[/URL]

And here's a link to one of the bills in Congress to end forced arbitration:

https://www.congress.gov/bill/116th...-04-15|114|1000\"+AND+billIsReserved:\"N\""]}

If you vote in Kentucky, particularly if you have supported or still do support the Senate Majority Leader, contact him and urge debate and a vote on this bill. Good luck.

 

[Thirdrail7]

It looks as though this provision has caught the attention of Congress. We'll see if they intervene.

Amtrak’s new ticket rules won’t let passengers sue in a crash

The change is bringing objections from consumer advocates, who note that it covers scenarios ranging from ordinary ticketing complaints up to wrongful death, and even includes minors who had the tickets purchased for them. And it could soon get Congress' attention.

The language has flown under the radar so far, but may burst into view when the House Transportation Committee holds a hearing on Amtrak next week.

"It is one of the most anti-consumer and passenger clauses I've ever seen,” said Julia Duncan, senior director for government affairs at the American Association for Justice, which represents trial lawyers.

Duncan said Amtrak's arbitration clause is unusually broad and detailed, noting that the policy describes a wide array of possible incidents that would have to go to arbitration. "Most forced arbitration clauses do not go into much detail about what they cover," she said.

The change has already caught the attention of at least one member of Congress: Sen. Richard Blumenthal (D-Conn.), who said his office is looking into the issue.

"There’s no reason why consumer complaints about Amtrak should involve mandatory arbitration. Consumers might wish to have arbitration … but they shouldn’t be forced to," Blumenthal said. He sits on the Senate Commerce Committee, which oversees Amtrak.[/url]

 

[jis]

At least I am working on trying to get Congress to act. Airlines don't get arbitration. Nor should Amtrak.

Who knows? Maybe Amtrak will try to blacklist me for holding such a position publicly.

 

[Trogdor]

Who knows? Maybe Amtrak will try to blacklist me for holding such a position publicly.

If they do, you could take them to arbitration over it.

 

[Anderson]

It's a tangential topic, but I do think the government just needs to step in and create (in so many words) an "arbitration bench" as part of the federal judiciary and just totally preempt the AAA/BBB as venues for mandatory arbitration.

 

[PVD]

The Federal Court approach has been the use of Magistrate Judges in the District Courts and Special Masters in the Bankruptcy Courts to handle settlement conferences and oversee agreements.....Courts and Congress have been very supportive of arbitration agreements (even very one sided ones) and it is more than likely that most of us are already party to a number of them. For a quasi government organization to go that route is pretty sad. Hopefully it will be pre empted by Congress.

 

[me_little_me]

When I am elected president, I promise the following changes:
No mandatory arbitration unless it is between equals (person - person, small business - small business, big company - big company)
Any attorney fighting that change or trying to put words into a contract to get around it is immediately deported with no access to the courts.
Punitive damages allowed but all such amounts go to the government and attorneys do not get a percentage of it.

 

[jis]

When I am elected president, I promise the following changes:
No mandatory arbitration unless it is between equals (person - person, small business - small business, big company - big company)
Any attorney fighting that change or trying to put words into a contract to get around it is immediately deported with no access to the courts.
Punitive damages allowed but all such amounts go to the government and attorneys do not get a percentage of it.

ROTFL!

 

[neroden]

It was pretty bad timing for Amtrak to put in a blatantly-abusive mandatory arbitration agreement, when the House is ready to ban mandatory arbitration in the consumer context entirely! Someone at Amtrak doesn't understand politics, and it's Richard Anderson.

 

[Barb Stout]

When I am elected president, I promise the following changes:
No mandatory arbitration unless it is between equals (person - person, small business - small business, big company - big company)
Any attorney fighting that change or trying to put words into a contract to get around it is immediately deported with no access to the courts.
Punitive damages allowed but all such amounts go to the government and attorneys do not get a percentage of it.

Just another piece of evidence that we need a laugh icon.

 

[PaTrainFan]

Wow. Anderson is beginning to actually get under Congress' skin, about forced arbitration and job cuts anyway. And he's getting testy. Not smart.

https://www.rollcall.com/news/210103-2

 

[Thirdrail7]

Wow. Anderson is beginning to actually get under Congress' skin, about forced arbitration and job cuts anyway. And he's getting testy. Not smart.

I guess you can do this when you can walk away any time you want.....with a large bonus. However, this doesn't look good:

Lawmakers’ questions about the policy spurred an angry reaction from Amtrak’s top executive during the Wednesday hearing.

Rep. Stephen F. Lynch, D-Mass. grilled Amtrak President and CEO Richard Anderson sharply about the policy, questioning whether such forced arbitration clauses created a disincentive for rigorous safety precautions “because it limits the rights of individual injured passengers or workers.”

“To ride on Amtrak, they’ve got to accept mandatory arbitration,” Lynch said. “They don’t have a choice. You can’t renegotiate what’s on the back of the ticket.”

Anderson argued that railroad workers are also subject to binding arbitration under federal law.

But Lynch said the comparisons weren’t appropriate. “These are passengers,” he said.

The two spoke over each other, with Anderson at one point asking, “are you going to let me finish?” and Lynch replying, “I’m not sure.” Anderson pushed the microphone away, checking his watch and phone in reply.

However, the company will be stuck with the consequences long after he's gone.

Lawmakers are also in the process of writing the next surface transportation bill, which creates policy for Amtrak. On Wednesday, Lipinski hinted that any legislation surrounding the forced arbitration policy might be addressed through that bill.

 

[jis]

Lipinski also seems to be putting together a movement to take the management of CUS away from Amtrak. Of course funding for it remains an issue whether through Amtrak or some other channel.

I remain convinced that it was a mistake to foist all the infrastructure onto Amtrak in 1976. It diverted attention of Amtrak from its primary mission of running trains for a national network, and the struggle continues. Result of Congressional apathy and laziness back then.

 

[railiner]

Was it really “foisted” onto Amtrak?
I was under the impression that Amtrak really wanted to own the NEC, CUS, and other infrastructure, in part to achieve “cred” with the freight railroads, as a “real” railroad...

 

[jis]

I am not aware of any bureaucracy that does not want to own more irrespective of whether it makes sense or not. The relevant question is should a company created as a train operating company be also made in charge of a complex piece of infrastructure? Would it have made sense to give Greyhound the responsibility for rebuilding and operating a run down highway system?

Or should a proper separate organization been created to handle all infrastructure issues. If we had done the latter we would not be having the argument about NEC infrastructure costs in the context of LD operations. We would have that discussion limited to the train operations only as some are trying to narrow it down to and repeatedly failing. And the band plays on.

 

[Mystic River Dragon]

From the article above (post #38):
"The two spoke over each other, with Anderson at one point asking, “are you going to let me finish?” and Lynch replying, “I’m not sure.” Anderson pushed the microphone away, checking his watch and phone in reply."

No matter how heated an argument gets, to check your watch and phone during it is the height of crass and impolite tastelessness--it implies that those two things are more important than the other person, and that the other person might as well not even be there. Doesn't Anderson have any sense of decorum at all? Or is he simply completely socially inept? (I could accept the social awkwardness of the second--many people are shy, after all--much more than the rudeness of the first.)

 

[jis]

He often acts like an entitled brat. This is not the first time, so it is probably reasonable to surmise that that is his style and not just a one off huff.

 

[railiner]

To be fair, Lynch replying that he might not let Anderson finish, is not exactly polite either. Not hearing the exchange, I really can’t judge....

 

[jis]

To be fair, Lynch replying that he might not let Anderson finish, is not exactly polite either. Not hearing the exchange, I really can’t judge....

I watched the whole thing. My impression is that the Congressman has limited time and he controls the use of his time. Anyone else should yield to him when he is speaking. Anderson was for a time speaking while the Congressman was speaking. When he finally got around to asking for permission to speak the Congressman chose to not give his time to Anderson and proceeded to make whatever point he was making. That is the general protocol. But then what would I know? Afterall I have only spent several hundreds hours participating in and chairing meetings governed by Robert’s Rules of Order. [emoji57]

 

[me_little_me]

He often acts like an entitled brat. This is not the first time, so it is probably reasonable to surmise that that is his style and not just a one off huff.

As President, Anderson has plenty of examples to follow. The other president, so many congresspersons, so many senators.

 

[me_little_me]

Just another piece of evidence that we need a laugh icon.

So who's laughing? I'm making my plans now. I expect to implement them in 28 years for my hundredth birthday. I'll be dictator for life but the lawyers won't have time to organize a counter-empire because I'll soon be gone.

 

[jis]

This is how you fix Amtrak or any other company that wants arbitration... basically mount what amounts to a denial of service attack and have them foot the bill for the arbitration as they are supposed to. Judges seem to be unsympathetic to their plight...

https://www.nytimes.com/2020/04/06/business/arbitration-overload.html

 

[ehbowen]

You don’t have to do business with Amtrak. Nobody is being forced.

And? If you have a need...dying relative, say...to travel from Malta, Montana to Maysville, Kentucky and for either physical or financial reasons you are unable to operate a car, what real choice do you have? There is a reason why railroads (and airlines, and bus lines, and the U. S. Mail & parcel shipping companies) are considered a public service.

Edit To Add: Sorry, when I clicked on the link for the thread I was taken to that post and I neglected to note that it was from five months ago. My apologies.