Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free
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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Comments:
I would think that in this case she could probably sue regardless. Just get a good lawyer.
Disgusting. Arbitration is a joke. Come to think of it, so is Haliburton.
Even if she had her day in court, that wouldn't result in the rapists going to jail.
The suit she filed was in Civil Court. The problem though, is that she'd already made a demand for arbitration under her employment agreement. KBR/Halliburton, made a motion to stay the suit pending the resolution of the arbitration. Her problem - you only get to file a proceeding in 1 forum. Her first attorney chose arbitration, probably for good reason. Now she wants a second opportunity to file somewhere else. That is forbidden under the Federal Rules of Civil Procedure.
The rapists will have to be indicted by the US Attorney. Contrary to some of the things I have read, they will not have immunity. They only have immunity in Iraqi courts, not US courts. They can and will be prosecuted if there is evidence sufficient to show a crime was committed. [Botched investigation aside].
There are plenty of reasons to hate binding arbitration clauses, but this is not one of them.
@dsean:
she could just claim that she wasn't properly represented and attempt to repudiate her request for BA.
Not like that would really work 100%, but it might.
@dsean: Contrary to some of the things I have read, they will not have immunity.
As much as I don't want to digress...Blackwater contracters are essentially immune to laws in Iraq so why wouldn't Halliburton rapist contractors?
Too bad no one brought up this case yesterday during the hearing on arbitration.
Awful as it is, it might be something like this that's needed in order to bring reform to mandatory arbitration. If the story gets enough traction, it could topple the whole thing.
@Hyland: Probably not, actually. There's no reason to believe that the arbitration request was improper, and in all likelihood, if she'd filed the complaint in a US Federal District Court initially, it would have been stayed pending arbitration under the AAA.
I think she'll actually be better off here in arbitration rather than in district court. The Rules of Evidence are less strict (i.e. hearsay can be heard if the arbitrator so chooses). And in a case like this, she's probably going to get a top-notch arbitrator (likely a former federal or state judge).
The ultimate problem I have with this story is that she's using the media to pressure KBR/Halliburton (possible the LEAST popular company in America) into a huge settlement. I certainly don't begrudge her a huge settlement, because if her allegations are true, she's gone through hell. 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.
There are no words for how wrong the entire thing is.
Why isn't she pressing charges in CRIMINAL court?
Can anyone explain the picture with the article? Did she appear on 20/20 all decked out with fancy hair, jewels and smiling? I smell a PR firm neverby.
People keep saying "method she's chosen"---as if she picked binding arbitration instead of a real trial. The whole point is that she did NOT choose it. Halliburton is perpetrating the same crap that brokerage firms do: when you sign their contract, you agree to binding arbitration. they will never tell you that, but you do. and it sucks. i should know. my dad was a lawyer who handled these cases all the time and it was very hard to get a finding for the consumer.
how many times have you signed an employment contract with binding arbitration in it? would you know what it was? would you care? who plans on having their co-works commit such an atrocity???
you're bummed she is using the media? i'm bummed she was traumatized for life and the company she works for is letting her twist in the wind. she is doing the best she can under the circumstances.
She's supposed to post a picture of herself after being raped and abused? So she can be humiliated all over again??? She's supposed to appear on tv looking tired and worn and poor? What is your point?
that photo isn't from the consumerist flikr pool??
@dsean: But ... that's exactly what happened with the OJ case. First he was tried in criminal court, then in civil court.
Can she go back to Iraq as a contractor and shoot their cocks off and be immune? Seems fair.
@sleze69:
Blackwater has a special deal with the US and Iraqi government. This doesn't cover KBR.
Binding arbitration does not cover this. This is not a dispute, this is a crime. No binding arbitration clause will protect a murder nor any other violent criminal. Otherwise a landlord could simply murder tenets that were complaining.
I'm not sure if us law applies to US citizens outside of our nations boarders. If it does then these guys are screwed, if not she may have to apply in Iraqi court. I have no idea if they would even hear this case.
@dsean:
That's probably true. I readily admit I'm not familiar with the facts of the case. One possibility that I can see is that if her contract with the company dictated the use of binding arbitration, she could claim that her initial arbitration request was based on a contract which might be found to be unconscionable. OORRR. She could claim that such a request for arbitration was made after the company claimed (maybe falsely) that she forfeited her rights to pursue a civil judgment.
Though I understand that the leeway to retract statements and claims is minimal, it is there.
"Let's hope so because we know arbitration is not going to give her justice."
Proof please.
@Buran: I think it's juridictional issues that encouraged the decision to go to MBA kangaroo court.
@Freedomboy: I'm totally there with you on that one. "Eye for an eye" is a very fitting and successful deterrent in cases of rape.
@Optimus: Err ... by "eye for an eye" I meant it in every sense of the phrase. She was raped by a group of men. Each of those men should suffer the same as punishment.
Cruel and unusual? Wouldn't you say the same of the crime itself?
@dsean: You are seriously mad that she is using the media to bring attention to this story? Reading this [pajamasmedia.com] it sounds like she tried to go through the proper channels and she got stonewalled. It seems to me that until the day before the 20/20 segment was set to air they didn't have any forward progress in the case, but because of it AUSU decided they should meet with her. Do you think that was a coincidence? I'm willing to bet that if she didn't, nothing would have happened, and no one would know of the atrocities going on over there, by our own people.
@dsean: I respect your opinion, but I disagree. I feel that you are just saying that because you weren't involved in this. Admittedly, neither have I. But, just for argument's sake, let's just say you and I, in separate, but identical circumstances had undergone the same thing that lady allegedly went through.
Would you be sitting in a box, happy to be mandated to take the situtation through arbitration, happy to be praying that the arbitrator will "play fair," even though there's next to no reasons or incentives for them to do so? Wouldn't you contact the media regarding the threats made to you and an atrocious situation that's very likely to otherwise slip by undetected if things run its course? For me, the answer is no on both counts, there's a tolerant, but fine line for this and it got crossed. Furthermore, wouldn't you be pissed if the offending party gets their way, they can get away with ruining my livelihood, personal life and professional life without any repercussions on their side? Talk about having nothing to lose! Finally, I don't buy the top-notch arbitrator argument. They are FORMER judges and aside from personality points, they are no longer legally bound to the same federal/state standards.
If you can honestly and genuinely answer "no" to all of them, to each his own. But, you should consider moving to a country where there's no semblance of law and order, you might feel more at home there especially if you become a victim while living there.
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This situation is really f*cked up. I hope she can get some form of justice where it's due, provided that she's telling the whole truth and nothing but the whole truth.
@ El Guapo: What on earth do you even know about Halliburton other than it was a liberal buzz word? Nothing would be the answer... I suspect you may go look up on the web something now and try to post it... Obviously this is a heinous act if true, but please cut the BS re Halliburton, etc...
It wouldn't be nice for HER, but it could be nice for everyone else if she has to bang her head against the binding arbitration brick wall a few times while the spotlight is still on her. I can think of no better way to bring legislative attention to the issue.
@Hossofcourse: So rape victims aren't allowed to look nice? I think that's just how she like to dress/look, even before the attack. Case and point: she had breast implants (one of which was *ruptured* during the attack, but that's beside the point). But to me, it only proves that she looks the way she does because she wants to - not because she's trying to "look good" for the cameras. Which kinda makes me wonder...if she's high-maintenance by nature, why did she go to Iraq in the first place? What was her job? I'm pretty high-maintenance myself and I can't even stand camping. Forget about a hostile desert country! I just wonder...why did she go?
@azntg:
Okay, I'm not really sure what your argument is.
You seem to be making 2 separate arguments, and I apologize if I am mischaraterizing. First, you seem to be arguing that arbitration in an inferior forum to the formal courts. I think this is mistaken for several reasons. A) The costs are dramatically lower for all parties (this is especially important given that her attorney is likely on a contingency basis and costs come off the top); B) There is judicial review of the findings of the arbitrator. While it is difficult to overcome an arbitration decision (the standard is manifest disregard), it does offer some protection to all claimants; and C) Arbitrations typically are much faster than the Courts. This case could easily take 2+ years before it ends up before a judge, and possibly a LOT longer if KBR's lawyers are aggressive in their discovery. Any arbitration will likely be concluded within the next year. That's a significant value to both parties.
Second, you seem to be arguing that arbitrators are somehow inferior. In this, I think you are truly wrong. Most of the time, they are practicing attorneys who are former judges. They depend on their reputation for their income. They are unlikely to be swayed by the passions or powers of either party. Additionally, in every arbitration agreement I have seen, each party nominates a slate of arbitrators and they mutually decide who will serve. If that fails, then the AAA will choose an impartial arbitrator. Their qualifications are generally impeccable, and often, they have special knowlegde of the situation (i.e. in this case, an arbitrator who specializes in sexual harrassment issues might be perfect since that's the claim against the employer).
As for the "repercussions" - they are the same in or out of a formal court. If her claim has merit, then KBR will pay her damages. This case would be unlikely to make it to trial in a formal court, so the real question is the amount that she will be paid.
The alleged attackers will face criminal prosecution (I believe that the District of D.C. has been nominated to handle all crimes arising out of US conduct in Iraq).
This site has a more lawyerly approach to the whole thing- [www.overlawyered.com]
But it does raise the question if the story of the rape is getting worse and worse as it is retold. It also has extensive links.
Well, this whole thing stinks. Anyone that violates a female should be executed. That aside, the US had better get to the bottom of this fast and quit fumbling around. But seeing as it's been 2 years since the incident and Halliburton has said the the suspects are no longer with the company (meaning they've cleaned their hands of the problem? WTF?) , it may be longer still.
@Buran: YOU can't press criminal charges. In some cases of a clear-cut crime with many witnesses, the cops will ask the victim if they want to "press charges." For example if there is a protest in the parking lot of the store you own, and they won't leave when asked, the cops may ask the owner if he actually wants to "press charges" or simply wants to reach an agreement with the protesters to leave. Actually pressing charges is something done by the local district attorney, state attorney general, or federal attorney general (done by a subordinate of course, but the power rests with those individuals fundamentally.)
When the cops ask "do you want to press charges?" it usually indicates that if you don't want to pursue it, they will drop it. But they can and often do choose to drop it on their own, and excepting the people listed above and their subordinates, nobody can actually press criminal charges against another person in the US.
No, IANAL, but I'm closely related to a NYC assistant district attorney.
@tbartley:
Damn, I wrote a longer response, but my browser crashed.
My point in regards to the media is generally that she harms the entire process by trying to take claims out of a tribunal and into a public opinion arena. I'll also admit that it makes me somewhat skeptical of her claims when the media sensationalizes them (and the fact that she's already optioned her story makes me pause).
If Ms. Jones would be so kind as to let us know the NAMES of the guys who did this perhaps things will work themselves out
@sleze69: "Too bad no one brought up this case yesterday during the hearing on arbitration."
I thought it was, from what I read of the liveblog:
"10:35: Holy sh*t! The woman who was raped in Iraq and accused Halliburton of covering up her case is trying to sue the company in federal court. She is now being told that she must submit to mandatory binding arbitration."
How many more get raped while the arbitration wheel slowly turns here?
Profit cost plus based contractors doing military work are the worst use of PUBLIC FUNDS ever thought up. They are training to become a national law force here at home you know. Why else are tasers so common now and why else is the Taser maker demo'ing a version to be shot from a shotgun [read pump action repeating shotgun]with no need for the single use version, .....crowd control??
Nah, couldn't be that.
Funny how that works out.
i'd just murder the rapists and claim insanity. that's justice.
At least it didn't happen in Iran, where she'd be sentenced to a severe whipping for being in the path of all those peni.
Two corrections:
1, I don't mean to make light of her situation, and 2, I meant Saudi Arabia.
At least two Congresspeople are speaking out about this case. What that means, I dunno, but DC is talking about it, at least.
Maybe GW will step in and do something for this poor girl?
Maybe we shouldnt get worked up about it, since shehas changed her story repeatedly, and is suing people who have nothing to do with her. Read the piece on Overlawyered about this.
@JustRunTheDamnBallBillick.: Im not saying she wasnt raped, as it appears she obviously was, but Im not sure how Halliburton and the State Dept. are liable for something they had no control over.
@lincolnparadox: I'm gonna let that obvious opening for a GW/Clinton joke slide, as I don't wish to anger the Republicrats in the room.
@JustRunTheDamnBallBillick.: From the sounds of it, they are liable for the attempted cover up and threats against the victim.
I wonder if there is multiple potential jurisdictions that could take the CRIMINAL lead on this. Correct me if I'm wrong, but the DA can bring charges in the place where the crime is committed (let's just say federal court for arguments sake since this was Iraq) as well as where the jurisdiction of the victim (her home state court)? Man, I should have paid more attention in l&@ school...
@JustRunTheDamnBallBillick.: Companies are often found liable for the actions of their employees through numerous legal theories. Agency comes immediately to mind. Sure, agency theory might not work if they were acting outside the scope of their employment, but how about straight up negligence? You can't hire a pedophile sex offender as a kindergarden teacher for a reason...
The point is: We don't know all the facts, but there are numerous theories that result in employers paying through the nose for the insane (or illegal) actions of their employees.
@Optimus: How exactly does the government have obligations to use monkey court if a crime has been committed? The government signed no contract agreeing to MBA. A crime is a crime.
Wow.
But the summary is right about the criminal case being able to proceed.
I would bet STRONGLY that a good lawyer could prove standing and jurisdiction in order to at least make a court claim that the BA clause in the contract is unconscionable. Once that is the case, you could proceed w/ a civil case.