A woman who filed a civil lawsuit against Halliburton for being the victim of a gang rape by her coworkers in Iraq will have her day in court, kangaroo court, thanks to the mandatory binding arbitration clause in her employment contract. Jamie Leigh Jones says she was drugged and raped by her fellow workers, then imprisoned inside a shipping container and left without food or water until the US embassy came to rescue after the State Department got calls from her father. She says she was told she would be fired if she sought medical treatment.
Mandatory arbitration means that all disputes are handled by an extra-judicial arbitration firm whose fees are paid for by the corporations and there’s zero appeals. One study found that arbitration firms rule against consumers 95% of the time. Now, this is just a civil case, and with the media attention surrounding her story, there will probably be action by the Justice Department to press criminal charges. Let’s hope so because we know arbitration is not going to give her justice.
CNN legal analyst: Alleged Halliburton rapists may go free [Raw Story](Thanks to Tino!)
RELATED
“Halliburton”, gang rape, and fear of arbitration: the Jamie Leigh Jones case [Overlawyered]
KBR Statements and memo regarding rape allegations [ABC]
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@Buran: Don’t misunderstand me. I agree with you 100%.
On the other hand, her lawyer probably thought that since the crime was committed (and thus jurisdiction) in a region of the world that sentences rape victims rather than rapists, she was better off taking the MBA kangaroo court + publicity = justice route.
It’s interesting how MBA, (RI|MP)AA litigation, Universal Default, and Net Neutrality have been all but ignored for a while just to have them all show up in the news (finally) at roughly the same time. If I were a conspiracy theorist (which I am), I’d say this is almost an organized assault on those who are against consumer control. And it seems extremely non-partisan (or at least anti-Republicrat).
Does this really belong on Consumerist? I mean, I see the nexus, mandatory binding arbitration, but isn’t this story a stretch for a consumer-oriented website?
@LyricalGangster:
Well, if it ends up affecting mandatory binding arbitration, it won’t be.
If it doesn’t, well, they don’t have to keep following it. But if it does, they can’t go back and pretend they were following it all along.
@dsean:
I must disagree with your take on the virtues of arbitration. Arbitration *is* an inferior forum. It’s cheaper than civil court, but that’s about all it has going for it — unless you have the kind of interests that make arbitration’s incentive structure work for you.
Even when an arbitration agreement provides that the parties split the cost of the arbitrator, it is always the corporate entity who holds the power. Why? Corporations are the ONLY regular customers for arbitration firms, and for individual arbitrators (who are basically paid on a “commission” basis). A company like Ford Motor Co. might have hundreds of cases in arbitration each year. Not only does Ford hold the power as to which arbitration firm it will do business with (the firm is usually specified in the contract, which of course is always drafted by the corporation) — but it also has the ability to seek and reject individual arbitrators with whom it has had prior experience.
By contrast, Joe Schmoe will probably only sue Ford (or anyone else) once in his lifetime. Not only does the arbitration firm not give a crap about keeping his “business” (he never chose the firm in the first place), but Mr. Schmoe is at a logistical disadvantage because he has no inside information or prior experience with any of the arbitrators. So, when he gets a list of 6 proposed arbitrators, they’ll all look the same to him.
I once read an article from a retired state supreme court justice who had agreed to serve as an arbitrator for one of the big firms. His first case was individual consumer vs. large corporation. He made the “mistake” of ruling in the consumer’s favor, and was never offered another case again — despite his eminent credentials.
@JustRunTheDamnBallBillick.: The common law doctrine of respondeat superior means that if an employee commits a civil wrong against a third party, the employer may be held liable for the employee’s actions if those actions were committed somehow within the scope of employment.
@camille_javal: Note: I am not passing an opinion one way or the other on this case, or Halliburton’s appropriate level of responsibility.
@Freedomboy: “Can she go back to Iraq as a contractor and shoot their cocks off and be immune? Seems fair.”
All in favor of Freedomboy’s motion, say “aye.”
AYE!
@dsean:
“But I hate the fact that she’s using the media to pressure the defendants rather than using the mechanism she’s chosen for resolution.”
I don’t see how you could envision it any other way, especially when she’s up against organizations as fierce, powerful and corrupt as our major defense contractors.
The fact is, even if her case were proceeding in a legitimate court, she would *still* need to rely heavily on media attention. In the American legal system, resources are everything, period. Given the sheer size the defendants, this woman would be clinically insane to dare sue them *without* playing the media.
It’s a well-known and unavoidable fact of asymmetric warfare: you have to play to your advantages (in this case, she’s pretty and sympathetic). The defendants have gobs of money and armies of lawyers. She can’t compete with that directly.
@Buran: The government, state or federal, has to press charges in criminal court. Individuals can report a crime, but the prosecutor presses charges.
She was drugged so no she can’t tell you the names of her rapists. The rape kit proved she was raped and it mysterious “disappear”.
@cindel: mysteriously
She should go work for Blackwater. Open fire on those S.O.B.’s!
@ whomever was looking for proof that arbitration would not work- consider this: in addition to numerous studies that suggest in mandatory binding arbitration, the companies come out on top 85%-95% of the time, the simple structure of the whole arbitration system shows that it is designed to favor the more powerful parties. Halliburton/KBR and other companies hire arbitration agencies like the AAA or the NAF to run arbitration in consumer and employee disputes. The arbitrators want repeat business, so they generally give their CUSTOMERS (these large firms) what they want. I heard of one case where a former attorney had handled numerous arbitration disputes for companies like Gateway, HP and other, always finding for the company. After finding for the consumer on ONE occasion, he was NEVER hired again. The whole system is flawed. Hopefully this poor girl can get the whole BA clause declared unconscionable, or else maybe get KBR equitably estopped from using it if their alleged complacence in that matter is shown to be true.
@camille_javal:
Respondeat superior, and indeed all forms of vicarious liability, stop at the point where there is an intervening criminal act by the employee. If the action that lead to damage (in this case, the rape) is outside the scope of the tortfeasor’s employment, then it is also difficult, though not impossible, to impose vicarious liability.
That is why if you read her complaint, she is suing her employer for sexual harrassment and not the rape itself. [She claims that the hostile environment ultimately resulted in the rape and should therefore be considered for the purpose of consequential and punitive damages, but the rape itself does not form an independent basis of a tor against KBR]. She is suing the individuals she alleges rape her in an individual capacity.
@mfw:
Look at the commentary by Ted Olsen on Overlawyered.com. That statistic that you cite is flawed for a number of reasons. First, it excludes all cases that settle. Second, it lacks context. As Olsen points out, that 85% number is roughly equivalent to what plaintiffs receive in the formal courts.
Binding arbitration clauses as part of employment agreements are not unconscionable. To be unconscionable, you have to look at the clause itself in the context of the entire contract. In employment contracts, it is considered that an employee received something in return for limiting their ability to go to court (i.e. a job and salary).
Clearly, if what she is alleging is true, then the actions of the individuals are unconsionable, but that does not mean that the contract clause itself is unconscionable.
@modena:
There are two issues that you present that need to be disentangled. The first is the notion of repeat players in the arbitration arena. The second is the incentives of the arbitrators.
There are certainly forums where repeat players wield too much power in arbitrations. The typical example is credit card arbitrations. In those cases, the plaintiff-consumer never sees the arbitrator at all. The entire decision is made on the basis of written submissions. In those cases, it is incredibly difficult for a consumer to prevail, precisely because of the institutional power that the companies hold. However, that is entirely different from an employer-employee arbitration. In these cases, the employee is represented by counsel who will insist upon a hearing before an arbitrator. Also, employers are typically not repeat players in the same way that credit card companies are. CC companies file thousands, if not hundreds of thousands, of arbitrations per year. An employer could not exist if they were forced to constantly defend arbitrations against current and former employees.
That does tie into the second issue – arbitrator incentives. When there are a few huge players, as in the credit card industry, then those players have the ability to influence outcomes in a way that we should not permit. They can do that precisely in the way you suggest – “rule against me and I’ll never hire you again.” [In fact, the case of the former judge that's been cited in this discussion relates to a credit card arbitration, not an employment arbitration]. However, because of the mulititude of employers out there, impartiality is a higher value. No employee attorney will agree to an arbitrator who is known to be biased (remember, in these cases both parties can veto the arbitrator).
As for trying the case in the media, I think you and I will have to disagree. I understand the point that it is one of the few areas where she CAN put pressure on KBR, but I think that is seperate from whether or not she SHOULD. I think it demeans the system and should be considered unacceptable, but I understand that it has become common practice.
This really bothers me. I feel for her and all, but it occurs to me that US courts have ZERO standing here. The crime was outside of the US. What happens outside the US can be tried in a US court? No. This sets a dangerous president.
Uh, OK, I just understood why my boss won’t let me set foot in the Middle East. I thought it was just mild chauvinism, but it appears to be justified. I had never heard of this case, but I bet anything he had. (No, I don’t work for Halliburton… but I do work in the oil industry as a trainer.)
@jwissick:
They were in a United States controlled area in a foreign country, so that gives them jurisdiction.
Also, most federal criminal laws apply to crimes against U.S. citizens who are abroad. So, hypothetically, if you were travelling in Brazil and were murdered or something, the U.S. would have a basis for jurisdiction against the criminal. This actually goes back a very long way in legal history (both English and Roman) to the principle that a ruler/king should not be deprived of his vassals when they travel from his lands. Somewhat arcane, but virtually every country recognizes the principle (well, western country anyhow, I can’t speak for others).
Umm… so Halliburton is not satisfied by just raping the country’s budget… they have to rape their workers as well…
@dsean: why is this wrong? corporation use the media to their advantage all the time. They buy ad time, make public service announcements, [www.halliburton.com]
Normal people can’t afford to buy ad time on major networks so the only thing that she has of value is her story. If her story is such that it is found to be true or at least very credible then why shouldn’t she speak to which ever reporter will listen to her.
@chargernj: I think there’s a difference between saying it’s “wrong” and saying it undermines the institutions. I’m not making a moral judgment or claim, I’m making an institutional claim. In my ideal world, a neutral arbiter of facts would release an impartial finding of facts that she could then trumpet and take to the media. Even sell her story then. What I think is problematic is that she’s trumpeting unproven allegations of the most reprehensible conduct out there. If her claims are true, then she should use her story to cast even more negative light on KBR.
I guess my point boils down to your “if/then” question. IF her story is found to be true, THEN should take advantage of every opportunity to speak out. She hasn’t tested her story yet in front of a neutral party. She’s doing the THEN before the IF, and that’s what I find troubling.
[the wording may be a bit confusing, so I apologize if I'm unclear, but I'm finding it difficult to write it in a more precise way]
@dsean:
I understand the distinction you’re making between routinized “mass-market” arbitrations (such as credit cards) vs. arbitrations that are less frequent and more factually distinct. The latter are less subject to abuse; I’d agree.
However, I think the overall incentives on the arbitration industry are powerful enough that big corporate interests will generally carry the day, even if a particular corporation doesn’t stand to have a large number of a particular type of arbitrations. That is, arbitration firms know who their clientele is, and that knowledge is reflected in whom they choose to employ. So, I believe that a list of 6 employment law experts provided by AAA is, more often than not, going to provide a very good forum to an employer defendant no matter which arbitrator is chosen.
(Without discussing any particulars, I can say that I’ve had to assist in identifying arbitrators who are likely to side with corporate clients — I have never had any difficulty in doing so, even when dealing with more “reputable” firms such as AAA.)
* * *
As far as leveraging the media, I can appreciate your desire for an “ideal world,” but certainly you must acknowledge that we don’t live in one. I think it’s naive to suggest that a particular Plaintiff throw herself upon the altar and be the only side to play “fair,” just to pay tribute to a vision of a justice system that doesn’t exist. If Halliburton decides to dig in its heels and defend itself, you can bet it won’t restrict itself to the confines of proper civil litigation. No, it will barrage the Plaintiff with frivolous motions, it will hire scores of private investigators, it will leak damaging personal information about the Plaintiff to the press, and if all else fails — it will go to Congress and seek protection. (Look at the telecom lawsuits!)
Yeesh.
Here’s the way it is:
Rape is one of a class of crimes where the victim does not need to request prosecution in order to have the case prosecuted. Arbitration has absolutely no impact on the legal status of a rape, just as binding arbitration couldn’t be used to shield them for murder.
It is up to the Justice Department to prosecute this case, regardless of what happens during the arbitration. Even if the alleged rapists are found innocent of the charges by the arbitrator, that finding has absolutely no bearing on the courts in a criminal case.
@smitty1123: I found this really interesting article with proof. It’s called “Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free”
And it can be found here: [consumerist.com]
Seriously, people. READ THE OP
Two points of information (and that’s all they are; I still think this is a horrible crime):
1. The “container” is not what you think. Apparently they’re completely finished, furnished, etc as private apartments. It’s actually better to get one of the “containers” than the barracks-style dorms. She apparently felt she shouldn’t/couldn’t leave, which IS bad, but we’re not talking an empty box of metal; they’re just used as shells to create a fairly decent apartment (source is a few random soldiers who’ve seen them; I’ve also seen plans online for doing the same thing here, to make some cheap housing).
2. Since she worked for a contractor outside the country, she’s on foreign soil and can only work within their rules. The Iraqis OUGHT to be investigating this story, etc, but unfortunately, it’s them or a civil suit. American law just isn’t applicable. Another reason they pay outrageously high salaries to folks working overseas.
As I said, just points of information.
Well, this is what happens when you vote Republican…women get gang-raped and beaten first and fired later, well okay, maybe just sexually harassed and fired here in the states…but you see their core “Christian” values at work universally…
Let’s hear Ann Coulter and Bill O’Reilly defend this one…
I hope she hires Gloria Allred.
Only a democrat would turn the abuse and rape of a women into a cheap political shot. Anyone with a sense of justice knows this is wrong. Where is NOW or any of the “women” groups that wholeheartedly support the dems when women come forward to complain about Dems? Nowhere. NOW can’t even take a friggin stand on the women who was gang raped in Saudi Arabia and then sentenced to 200 lashes b/c its so tied to pc that it would be wrong to speak negatively to muslims. Give me a break, get off of dailykos and join the rest of here in the real world.