The Fine Print: Delaying Justice For All

The following is not legal advice. Please contact Alexander Bachuwa if you have questions or claims regarding consumer arbitration. 

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Victim: Hello, I would like to report a robbery. My stuff has been stolen from me.

Dispatcher: ‎Have you given the robber a chance to return your property?

Victim: …

Dispatcher: I’m sorry but we can’t help you until you wait 45 days for the criminal to make it right.

Corporations have done a tremendous job of creating an obstacle course in order to deny consumers justice. From hiding the terms and conditions for dispute resolution on its website to not providing contact information for the legal department, companies are masters of avoiding liability. Have a claim against Enterprise Rent-A-Car? Good luck trying to find out how to file a claim. Shut down by Capital One, all the best trying to figure out where to file a claim.

Assuming the consumer survives the gauntlet of hurdles cunningly placed to thwart meritorious claims, the consumer may encounter this curious provision, “You and [INSERT COMPANY NAME] agree to make attempts to resolve the dispute prior to commencing an arbitration. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you may commence an arbitration proceeding. If there is not a resolution within the forty-five (45) days of receipt of the Notice of Dispute, [INSERT COMPANY NAME] will pay for the arbitration including the consumer’s filing fee.”

The notice of dispute requirement is mind-boggling because the consumer has spent months trying to find a resolution before considering legal action. More time passing does little, if anything, to resolve the problem. After the notice period has expired, these are the likely outcomes:

  1. The company denies any wrongdoing and the arbitration, which would have already been underway, ‎finally proceeds forward.

In a dispute with American Express for failing to honor a sign up bonus, the company requested 30 days before commencing an arbitration proceeding because it claimed that, ‎”Investigating this matter would take some time as the company’s records are stored in a variety of departments.‎” In my client’s case, the grace period came and went without an amicable resolution.

  1. The company denies any wrongdoing and offers a nominal amount to settle the case so long as the client is sworn to secrecy.

In a claim against eBay for fraudulent gift cards, eBay denied any wrongdoing and refunded the loss to the client. In exchange, the client had to sign a confidentiality agreement.

  1. The company, without notice, reimburses the client the funds directly into his or her account, effectively making the claim moot as the client can no longer show a loss.

In a dispute with StubHub which incorrectly charged the client, a seller of tickets, for not fulfilling the order, I sent a notice of dispute on behalf of my client. Magically, within weeks of sending that letter, the client’s account was credited. Satisfied with the adjustment, the consumer dropped the claim despite StubHub’s questionable behavior.

  1. The company admits fault and offers to reimburse the ‎consumer for the amount incorrectly charged.

Wireless providers like Sprint and cable providers like Comcast are notorious for incorrectly billing a consumer’s account. When the consumer catches the error, the provider credits the account for the overbilling, hoping that this action settles the issue.

Like the example in the introduction, each of these outcomes is ridiculous in its own right. The first outcome is frustrating because the client’s patience proves futile as the company rarely resolves the problem during the moratorium on filing. In the second outcome, the company prevents the result from going public which does not help countless others who have the same or similar problems. The third outcome is a cunning maneuver by the corporation because crediting the consumer’s account essentially nullifies the claim. The fourth outcome is the most absurd. Just like a defendant in a robbery case cannot argue that he returned the merchandise after he was caught, a company cannot simply give back  the money improperly taken and argue that it did nothing wrong.

Based on these experiences, I now forgo the bogus ‘notice of dispute’ requirement. Instead, I pay the filing fee on behalf of my client, initiate the arbitration claim immediately, and advise my client not to speak to the corporation directly. This strategy has proven to be much more effective than a strongly worded letter that does nothing to curb a company’s egregious behavior.

 

About Alex Bachuwa

Alexander Bachuwa is a New York attorney who focuses on consumer protection. He is also a BoardingArea blogger. Contact Alex at through his website at bachuwalaw.com and visit thepointsoflife.com

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  1. Great article Alex! I have a question about claim notices. Many include the phrase “intend to file within 30 days” which makes it sound like you turn into a pumpkin on day 31 and forgo the right to arbitrate. Since the goal is to give the corp time to respond, shouldn’t it read “intend to file on or after 30 days?”

    And how do you get the corp to pay? Do you pay upfront and get reimbursed (sounds risky) or is there an option when initiating to say they’re covering it?

    • I’m a little confused about the first paragraph. I believe, if we are talking about the same thing, that companies require you to give them 30 days to clear up the matter. That’s why you have to send them the ‘intend to file’ document. On day 31, you can file and they’re supposed to pay for it.

      In my experience, I have found that 30, 45, 100 days comes and goes and the claim either gets ignored, a nonsense amount is given, the company denies any wrongdoing, and we are right where we started. That’s why I defy their ‘requirement’, pay the filing fee myself, and get on with it. They can come back with some legal posturing that I didn’t follow procedure and challenge the arbitration but I welcome that because I have a strong argument for why the ‘intend to arbitrate’ nonsense language is a ploy to delay justice.

        • You can submit it to the AAA or JAMS on day 31 and it should not be an issue. It’s weird that it tells you to submit it before day 30. Usually, their ‘rule’ is that you have to wait 30 days and the on day 31 you are allowed to submit it and they’ll pay your filing fee.

          As I wrote, what are they doing in those 30 days that they did not do in the past 100 days when you were calling in and complaining!

  2. when there is compulsary arbitration, are the arbitrators fair? They get chosen by the company, I think, so they have an incentive to rule in favor of the company if they want the fees that come with future cases. Is there any truth to this?

    Secondly, does the consumer ever get stuck with the arbitration fee?

    Thank you

    • So there was a NY Times article, Arbitration Everywhere, Stacking the Deck of Justice, https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html?_r=1, that makes consumer arbitration look like a bad deal for consumers. Indeed, many lawyers believe that the system is rigged. I even heard (no numbers to present to you) that the record for companies vs consumers is disproportionately higher for companies. This could be due to a number of factors. Some will say it’s rigged in favor of the corporate giants. Based on my experience, I disagree. Some conspirators will say that companies want this perception to remain so that consumers don’t bother filing arbitration. Nobody knows for sure. What I do know is that sound claims deserve to be heard and if the claimant loses, then the facts and decision should be made public so that we have real data points to present to your legislator.

      Arbitration clauses are becoming increasingly burdensome on the consumer. There are arbitration clauses that say that the consumer is ultimately responsible for the fees if it can be shown that the claim is frivolous. (see http://frequentmiler.boardingarea.com/2016/12/29/sorry-ebay-claim-not-frivolous/) Because of confidentiality agreements, it’s hard to know how many times a consumer has had to pay the fee. It has not happened to any of my clients yet because i do not take cases that are, in my legal opinion, frivolous. That is not to say that it will not happen because an arbitrator can rule anyway he or she she’s fit but if it is a toss up then the case usually settles.

      The legal answer for all of this is, ‘it depends’.

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