Lieff Cabraser Civil Justice Blog
Forced Arbitration Dangers

New York Times’ Seminal Expose of the Dangers and Rights Erosion of Forced Arbitration Continues

The New York Times continues its extraordinary series on forced arbitration in the U.S. and how contracts mandating arbitration in place of a hearing in a courtroom are stripping us of our most basic rights. The most recent piece, “Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?” addresses the plight of a family whose matriarch was murdered in her nursing home by her patient-roomate, but who cannot get justice or any accountability by the nursing home.

“Elizabeth Barrow celebrated her 100th birthday at a backyard gathering with her son and three grandchildren in the coastal Massachusetts town where she raised her family and cooked lunches in a school cafeteria. A month later, in September 2009, Mrs. Barrow was found dead at a local nursing home, strangled and suffocated, with a plastic shopping bag over her head. The killer, the police said, was her 97-year-old roommate.”

The family contends the nursing home has evaded justice because of its forced arbitration agreement, despite its formal records indicating that Ms. Barrow’s roommate was “at risk to harm herself or others.” The Barrow family is barred from taking the nursing home to court because the nursing home contract contained a clause forcing any dispute — even one involving murder — into private arbitration, where there is no judge or jury and the proceedings are entirely hidden from public scrutiny.

The Times makes the overarching context clear:

“Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.”

The article goes on to note that regulators are concerned in particular because “the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families.” In the 4-year period leading up to 2014 alone, the Times found records on hundreds of cases of elder abuse, neglect, and wrongful death that ended up buried in private arbitration.

These private arbitration contracts act to remove an individual’s fundamental right to sue a wrongdoer in public court, and their imposition across every industry is growing at unprecendented rates. Readers are urged to give the Times’ entire Forced Arbitration series a careful review.