I represent Jamie Leigh Jones, the victim of a brutal attack by employees of Halliburton/KBR in Iraq in 2005. I am absolutely disgusted by Senator Cornyn’s explanation of his vote, which is fraught with disdain for trial lawyers, and shows little concern for the American working class person. I would like to respond to Senator Cornyn’s weak explanation on his vote against the Franken Amendment (denying government contracts to employers who force their employees to arbitration when they have been sexually assaulted, harassed, and/or raped. My responses are below, in red.
In response to the editorial by U.S. Sen. John Cornyn explaining his vote on the Franken amendment, by U.S. Sen. John Cornyn dated Oct 27, 2009 -- Todd Kelly - October 28, 2009
Senator Cornyn Writes:
The October 22nd column “What’s Up with John Cornyn?” regarding my vote on the Franken amendment omitted some important facts.
First, the Obama Administration also opposed this amendment, and for many of the same reasons that I did.
Are you saying, Senator, that these bans on arbitration do not go far enough (as the Obama administration did)? Because if that was true, then your comments about trial lawyers at the end of this press release are nothing more than gratuitous slander aimed at a profession you clearly do not understand. If you are not saying that the amendment fails to go far enough (which is pretty clear by the tenor of the rest of your responses), then what “reasons” are you referring to? You haven’t really answered the question, Senator.
Senator Cornyn Writes:
Second, the horrific rape allegations in Jamie Leigh Jones’ case were not subject to arbitration, so citing them as the reason for passing the Franken amendment is misleading.
While we would all like to bury our heads in the sand with you and believe that, it is simply not true. Halliburton and KBR have fought very hard to push Jamie’s case into arbitration, and there are many other victims of violent crime (including rape and sexual assault) in several jurisdictions who actually have been forced into arbitration under the exact contractual provision that Jamie has been fighting – for 4 years. Your premise here is, quite simply, blindly inaccurate.
Senator Cornyn Writes:
Third, the amendment had nothing to do with “protecting KBR employees from prosecution”—it dealt only with civil lawsuits for damages.
Actually, the amendment protects KBR (and other) employers from the secrecy of arbitration which, in large part, contributed in the creation of the environment that Jamie was thrown into in the summer of 2005 – leading to her rape and subsequent imprisonment. You see, without public scrutiny, there was no incentive for these conglomerates to change anything – they were making money and no one even knew of the atrocities – including Jamie. Therefore, while it may not protect KBR employees from prosecution, it could certainly protect them from rape.
Senator Cornyn Writes:
Fourth, the amendment was a blatant attempt to benefit trial lawyers by forcing employment discrimination suits into costly and prolonged court proceedings instead of arbitration. Arbitration greatly reduces litigation costs for employers and employees, while ensuring victims are fairly compensated by streamlining the litigation process and limiting lawyers’ fees.
This is a blatant display of ignorance regarding how trial lawyers are paid (not to mention how we are motivated). Just addressing the financial issues: first, the “costly and prolonged litigation” means that the trial lawyers will have to take on costly risks with their own financial resources to bring meritorious claims to trial and that the prolonged final result will cost the trial lawyers interest on that money (no cost to the litigants unless there is a successful outcome). Naturally, if arbitration were going to be a “fair” and quick resolution to these disputes, then the true “greedy” trial lawyer would simply take his contingency fee off of the arbitration award much sooner. He would spend less, he would get paid sooner, and since the award was just as fair as the jury would award – he would come out ahead (considering the time value of money). However, because arbitration is a sham that results in losses or greatly reduced “victories,” the so-called “greedy” trial lawyer has decided that he will risk his own personal assets, time and energy to seek justice at the courthouse. Limiting lawyers fees would be fine with us – so long as you are also willing to guarantee that there will be a fee. You fail to take into account that when trial lawyers lose they also do not get paid – not enough limit for you? Ever worked for years on a project only to be told at the end that you would not be paid? Trial lawyers take that risk in EVERY case.
“Ensuring victims are fairly compensated?!” WOW! That comment is almost as insulting as it is completely devoid of factual support. Arbitration, to the contrary is a virtual certainty that the victim will not see fair compensation. Victims lose nearly every time in arbitration. How does this “fairly” compensate them? The only jurisdiction that keeps track of such statistics (California) has shown that victims lose 82% of the time in arbitration. This is the only available empirical data. If you have other statistics about arbitration, Senator, you did not get them from a public (light of day) source – you got them from your deep pocketed supporters at Halliburton and KBR. There is certainly no incentive for those guys to “fudge the numbers,” is there?
Senator Cornyn Writes:
The amendment is about the 70,000 employment discrimination suits that are filed each year, not the handful of extreme and tragic cases cited by Sen. Franken and his benefactors in the trial bar – who have donated more than $1.2 million to his campaign. I believe that employers and employees should be allowed to agree to arbitrate these disputes – the trial lawyers don’t, and neither does Sen. Franken.
Employees who get legal advice do NOT agree to these arbitrations. They should be allowed to make agreements to arbitrate (after a dispute arises), but not forced to do so or be refused employment – that is the point. Quit couching this as an issue of free choice – there is nothing free about a choice between having no employment (or cell phone, or vehicle, or home…) or agreeing to the big businesses demand of arbitration. The parties are not on equal ground when this “agreement” is made. Furthermore, that is why corporations have these provisions signed up front (pre-dispute) with flowery language about efficiency, finality and confidentiality. Have you ever looked at how the English nobility defined the English Star Chamber? Have you ever considered that our Constitution was written to avoid those pitfalls? Have you ever even considered that your own children will have to live with the laws you make? Shame on you.
Senator Cornyn Writes:
I sympathize greatly with victims of rape, and have voted repeatedly to increase sentences for the perpetrators of such heinous crimes. Attempts to manipulate the tragic events in the Jones case to line the pockets of the trial lawyers are disgusting.
What about the companies who create their own micro-societies, and then fail to protect these victims? If arbitration had not been forced upon Halliburton/KBR employees in 2005, Jamie Jones would most likely have never been raped. It is why justice needs to be public – rather than private.
An arbitrator knows that they have only one party before them who will be a repeat customer, they know that ruling for the individual will result in their non-selection for future arbitration panels, they know that they will not get paid if they cannot arbitrate, they know that their rulings are not appealable – or even open to public scrutiny. They have a natural bias – even if they don’t want it.
Wake up, Senator! Arbitration, unless agreed to by the parties after the dispute arises and with equal access to the advice of counsel, is an antiquated evil that those of us who care about the United States Constitution cannot stand. I welcome you, Senator, to meet the people I represent and to open your eyes to the tragedy that your modern-day Star Chamber has created. Unless you are truly evil, the opening of your eyes will almost certainly change your view.