EarthJustice had an interesting article about how the country’s biggest companies are preventing Americans from getting their day in court. Millions of consumers who interact with companies such as Amazon, Apple, Walmart, CVS, Best Buy and Coca-Cola cannot sue these corporate giants over anything, from fraud or personal injury to harassment or discrimination. Eighty-one of the 100 largest companies in the U.S. prohibit their customers from bringing seeking compensation for wrongdoing, according to a new study published in the University of California Davis Law Review.  A full 78 of these 100 companies also prevent consumers from banding together in a class action if they feel they’ve been wronged.

Hidden in the middle of these long terms and conditions documents are policies known as arbitration agreements. When people accept an arbitration agreement, they are giving up any right to bring a civil lawsuit against the company at any time.

“Arbitration agreements make it harder to hold companies accountable for wrongdoing,” says Imre Szalai, a law professor at Loyola University New Orleans and author of the new study. “It destroys our consumer rights.”

Arbitration is a private process that does not involve courts, judges or juries. There is no requirement to follow the same procedures that lawyers would in court, and there is no real appeals process, meaning the arbitrator’s decision is almost always final. There is also virtually no government oversight.

Studies have shown that very few consumers win in arbitration, and that when they do, they often get much less money than they would in court. Critics argue that arbitration takes power away from the consumer, and that its secretive nature makes it difficult to challenge companies’ bad behavior.

“The publicity makes a big difference. If it’s public what Amazon is doing, that can have a shaming effect, a deterrent effect,” says Szalai. “But if all these disputes are being heard in private arbitration, you lose some of those values from a public proceeding in court.”

With the large number of companies now using this tactic, Szalai estimates that more than 826 million individual consumer arbitration agreements exist in the U.S., more than two and a half times the country’s population. A majority of households are subject to these agreements, according to the study.

Szalai took his list of companies from the Fortune 100, and examined which companies have used arbitration agreements in connection with customers since 2010. Given how many of the largest retail companies use these agreements, the study found that at least a majority of online sales in the U.S. are now covered by arbitration agreements.

Arbitration has received increased attention over the last year or so as various tech companies have come under fire for imposing these policies on their employees and on consumers in cases of sexual assault. Last May, Uber and Lyft said they would stop requiring victims of sexual assault and harassment to pursue claims through arbitration, and in December those companies each saw pushback from thousands of drivers claiming the company prevented them from suing and then refused to pay the required fees to start their arbitration cases.

A slew of companies including Google, Facebook, Microsoft, Airbnb and eBay also announced last fall that they were ending their policies requiring employees to handle sexual harassment claims through arbitration. Just this month Google ended forced arbitration for all its employees.

But even as companies are starting to feel pressure to let their workers take disputes to court, this has largely not extended to their dealings with customers. Progress on the issue has been slow in Congress. Grassroots pressure like what Uber and Lyft faced may start to make a difference, Szalai says, but for now, millions of Americans have unknowingly given up their rights to publicly pursue claims against many of the companies they interact with on a daily basis.

“Every one of our rights are at risk if they’re being sent to these secret tribunals,” Szalai says. “All of your rights become meaningless if you can’t enforce them. And these tribunals are designed so you don’t have robust enforcement.”

 

 

 

What a surprise!  The Trump Administration and the Republicans are paying back one of their most significant donors; the nursing home industry lobbyists.  Kaiser Health News released a study showing that nursing facilities have seen their fines drop by more than 30% during the Trump administration.

The industry has been vocal demanding Trump to move away from penalizing providers for each day out of compliance with a regulation. Instead, facilities are issued a single fine for two-thirds of infractions. The average fine dropped from $41,260 to $28,405.

The report notes examples of preferential treatment for nursing homes including an 18-month moratorium on imposing monetary fines for most violations. Trump also revoked a rule that barred nursing homes from requiring residents to sign pre-dispute mandatory arbitration agreements.

Fines need to be large enough to change facility behavior,” said Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care, a nonprofit based in Washington. “When that’s not the case and the fine is inconsequential, care generally doesn’t improve.”

 

 

The Florida Bar is investigating Rep. Matt Gaetz (R-Fla.), who is licensed to practice law in the state, for his slanderous and incendiary tweet threatening Michael Cohen and attempting to intimidate him before his Congressional testimony. His comments may violate a federal statute against witness tampering and intimidation. He should be disbarred at the least.

He tweeted, “Hey @MichaelCohen212 — Do your wife & father-in-law know about your girlfriends? Maybe tonight would be a good time for that chat. I wonder if she’ll remain faithful when you’re in prison. She’s about to learn a lot.”

Hours after he posted the message, Gaetz claimed that he did not “intend” to threaten President Trump’s lawyer.

“The Florida Bar is aware of the comments made in a tweet yesterday by Rep. Matt Gaetz, who is a Florida Bar member, and I can confirm we have opened an investigation,” spokeswoman Francine Andía Walker said in a statement to The Washington Post.

After the investigation, the bar will decide whether to file charges against Gaetz with the Florida Supreme Court, Walker said. “If rules have been violated, the Florida Bar will vigorously pursue appropriate discipline,” she said, declining to comment further.
Gaetz has a history of making inflammatory remarks and pushing crazy conspiracy theories.
Cohen testified and called Trump “a racist,” “a con man” and “a cheat” who had advance knowledge of the WikiLeaks plot to publish stolen emails from the Democratic National Committee.

Democrats in the U.S. House and Senate have unveiled legislation aimed at quashing the practice of forced arbitration.  Rep. Hank Johnson (D-GA) and Sen. Richard Blumenthal (D-CT) announced their Forced Arbitration Injustice Repeal (FAIR) Act. The bill would eliminate such arbitration clauses in all employment, consumer and civil rights cases, but allow individuals to agree to arbitration after a dispute occurs. The bill is supported by 147 cosponsors in the House and 35 in the Senate.

Forced arbitration agreements undermine our indelible constitutional right to trial by jury, benefiting powerful businesses at the expense of American consumers and workers,” Johnson said in a statement. “Americans with few choices in the marketplace may unknowingly cede their rights when they enter contracts to buy a home or a cellphone, place a loved one in a nursing home or start a new job. We must fight to defend our rights and re-empower consumers.”

Lawmakers planned to introduce or reintroduce other measures tied to specific industries, including the Fairness in Nursing Home Arbitration Act, HR Dive reported. The White House Office of Management and Budget has reportedly been reviewing that final rule, which would reverse a ban on pre-dispute arbitration clauses for nursing home operators, McKnight’s noted in February. A previous version of this reversal was met by opposition from both industry trade groups and resident advocates. However, the OMB is marching forward with the new rule, which it says “strengthens requirements regarding the transparency of arbitration agreements in LTC facilities.”

Yesterday, while the U.S. House of Representatives was debating the Paycheck Fairness Act, a bill to help end wage discrimination, Rep. Virginia Fox (R-VA) and House Republican leadership forced a vote on an amendment that would have capped attorney fees under the Fair Labor Standards Act.

After a short debate, during which Rep. Susan Wild (D-PA) fiercely defended trial lawyers, the House resoundingly voted down the amendment 236-191.  We encourage you to watch and share this video of Rep. Wild defending trial lawyers.

An Oregon woman claims that a nursing home’s neglect caused her mother additional health problems and deprived the woman of prescription medication.  The Oregonian/OregonLive reports the lawsuit filed by Laurie Jeandin seeks damages from Linda Vista Nursing and Rehab Center nursing home.

The suit claims 85-year-old Betty White was denied methadone for about two weeks and developed pressure ulcers and toenail fungus before her wrongful death in May 2017.

The suit also names the parent company, Vancouver, Washington-based Prestige Care as defendant. One employee has been indicted on seven felony charges of stealing medication.

 

Purdue Pharma is one of the biggest drug dealers in the world.  Victims of the opioid crisis have filed lawsuits against Purdue because of the aggressive and deceptive marketing of the dangerous and powerful addictive painkiller OxyContin. Numerous internal documents prove that the disregarded safety and addiction as it pursued massive profits from patients who became dependent on its products.

After the government cracked down on illicit prescribers and tried to address the flow of pills to the black market, those addicted to the painkillers turned to heroin.  Landau claims that Purdue and its OxyContin pills were not responsible for sparking the opioid crisis. The company paid $600 million in fines in 2007 as part of a federal case. Company executives also pleaded guilty to criminal charges after claiming the product was not as addictive as other opioids.

Craig Landau, Purdue Pharma’s chief executive, threatened to declare bankruptcy instead of compensating Americans they injured and killed with their unsafe products.  Landau, said in an interview with The Washington Post that the company has not yet decided whether to file bankruptcy, but he said it is something the company is weighing as it considers the impact of potential legal settlements or jury verdicts that could cost tens of billions of dollars.

Declaring bankruptcy could halt litigation against the company, bankruptcy lawyers said, and it can be more difficult for plaintiffs to secure judgments in bankruptcy court than in civil court.

Interestingly, now Purdue is attempting to make money off the opioid crisis by developing a drug to reverse opioid overdoses.

The company’s initiatives include providing millions of dollars to support the creation of an over-the-counter naloxone spray and training law enforcement to administer the drug; supporting education on the proper storage and disposal of prescription opioids; and conducting research into non-opioid painkillers.

A prominent front-page story in the New York Times confirms that rural nursing homes are closing across the country.  The report notes that more than 440 rural nursing homes have either closed or merged the past decade, citing data from the Cowles Research Group. Often, that has forced frail nursing home residents with few options into facilities that are miles away from friends and family.

“If nursing homes shut down in rural areas, there is no place for residents to go,” she told McKnight’s. “The workforce issues faced by all our members across the country are magnified in rural and frontier areas where the working-age population is declining, the aging population is growing, and health and long-term care resources are few and far between. In so many of these communities, after young people graduate from college, few want to go back home.”

She said the trade group, whose members include not-for-profit nursing facilities, is pushing several legislative changes to help rural providers. Those include exploring the feasibility of amending the Rural Health Care Connectivity act of 2016 to include home health providers, and supporting the reintroduction of the CONNECT for Health Act, which would expand Medicare coverage to telehealth services, “which are especially crucial to high-quality health and long-term care in rural areas.”

She added that LeadingAge continues to work with stakeholders and CMS to implement provisions of the CHRONIC Care Act, aimed at expanding Medicare coverage of telehealth tech in Medicare Advantage and accountable care organizations.

Rural

The US Senate Committee on Finance recently held a hearing to discuss reports of abuse and neglect in nursing homes nationwide and what can be done to protect those of all ages at risk of abuse.  The testimony from experts, advocates, and families of neglected residents were powerful and alarming. Among nursing homes, an exclusive CNN investigation in 2017 found that the federal government has cited more than 1,000 for mishandling or failing to prevent alleged cases of sex abuse, including rape and assault, at their facilities between 2013 and 2016

“My final memories of my mother’s life now include watching her bang uncontrollably on her private parts for days after the rape, with tears rolling down her eyes, apparently trying to tell me what had been done to her but unable to speak due to her disease,” Fischer said in the hearing, referring to her mother’s Alzheimer’s disease.

Dr. Kate Goodrich, director of the Center for Clinical Standards and Quality at the Centers for Medicare & Medicaid Services, appeared. Lawmakers pressed Goodrich on what has been done and what more could be done to ensure quality at facilities.  Goodrich claimed without reference to any evidence that “We do have expectations for nursing facilities for having the appropriate staffing for their patient population, and we survey for that on a regular basis.”

At the hearing, New Jersey Sen. Bob Menendez said in response, “I think there’s a gulf between the expectations and the reality in several of these instances and we look forward to working with you to bridge the gulf.”

Mark Kosieradzki, a Minnesota attorney who has represented a number of victims and their families, including the Fischer family, said he has seen the number of nursing home abuse cases rise within his own practice.
“The number of calls we get are increasing. The severity of some of the problems we’re seeing is increasing. Whether more people are calling because there’s a greater awareness in the community or whether there’s more problems, I guess it would be nice if we had information from [the Centers for Medicare and Medicaid Services] about that, but the fact of the matter is, we’ll get six to eight calls a day in our law firm,” Kosieradzki said.
“Certainly, there’s good nursing homes out there, but there’s also nursing homes that are focused on their profits as opposed to the care they’re giving, and that’s what we try to focus on to change,” he said.
Despite the litany of abuses detailed in government reports, there is no comprehensive national data on how many cases of sexual abuse have been reported in facilities housing the elderly.

The State reported that the skeleton of an assisted living resident was recently found.  The skeletal remains of Susan McGirt were found near railroad tracks.  The resident was last seen walking away from the assisted living facility in July.  Although a Silver Alert was issued for McGirt on July 4, 2018, there was no trace of the missing 55-year-old woman, according to WPDE.

Mary Wesson said her mother “suffered from mental health conditions, including bipolar disorder and paranoid schizophrenia,” according to WNCN.  After she walked away from the facility, her husband, Robert McGirt, said “it seems like she just disappeared from the face of the Earth,” per WBTW.

For weeks after her disappearance, sheriff’s deputies searched for Susan McGirt — on foot and in a helicopter — and her family offered a reward for information leading to her return, WPDE reported.

“I would rather be planning a funeral than to have to go to bed at night not knowing where she’s at,” Wesson said in July, according to WBTW. “We have no idea where our mother is, and a family just ain’t a family without a mother.”