Jump to content
PRR 60

New Amtrak Arbitration Agreement

Recommended Posts

Amtrak has posted new Terms and Conditions, the sort of thing that most people just confirm reading with a click and then ignore.  One item included is a new requirement that all disputes with Amtrak be resolved through binding arbitration and not through courts.  I'm not an attorney, so I cannot make any expert comments on the extent of the requirement or its enforceability, but the wording makes it seem pretty all-encompassing and onerous.  It even appears you are, in theory, giving up your right to sue even for personal injury in an accident.

Here is the Amtrak notice:

Quote

 

January 6, 2019: We have consolidated travel-related and Amtrak Guest Rewards program terms and conditions.

These terms and conditions contain a binding Arbitration Agreement below. Please read the Arbitration Agreement carefully because it applies mutually to You and Amtrak and requires that you resolve claims and disputes with Amtrak on an individual basis through arbitration and not by way of court or jury trial. By purchasing a ticket for travel on Amtrak, You are agreeing to these terms and conditions and agreeing to the Arbitration Agreement. 

 

The full text of the Arbitration Agreement can be found HERE.  Would be interested in hearing from anyone who has a better legal handle on these kinds of agreements and what it all means in the real world.

Share this post


Link to post
Share on other sites
2 hours ago, PRR 60 said:

Would be interested in hearing from anyone who has a better legal handle on these kinds of agreements and what it all means in the real world. 

The legality of forfeiting inalienable rights through forced arbitration is largely settled thanks to multiple 5/4 Supreme Court rulings.

Share this post


Link to post
Share on other sites

Arbitration really isn’t as evil as people think.  It can be more expensive, since you have to pay the arbitrator.  But a court case can literally take years.

Sure, arbitration protects against completely insane jury awards.  But I’m fine with that.  Nobody should be getting $60 million for a stubbed toe.

Share this post


Link to post
Share on other sites
10 minutes ago, VTTrain said:

Arbitration really isn’t as evil as people think.  It can be more expensive, since you have to pay the arbitrator.  But a court case can literally take years. Sure, arbitration protects against completely insane jury awards.  But I’m fine with that.  Nobody should be getting $60 million for a stubbed toe.

Binding arbitration subverts our core legal system, erodes fundamental protections, removes incentives for responsible behavior, and protects the powerful from the weak.  If you're going bring up jury awards as the reason you support this please include the names of plaintiffs and defendants, dates and locations, and final disposition so the rest of us can review your claims in an objective manner.

Share this post


Link to post
Share on other sites
4 minutes ago, Devil's Advocate said:

  If you're going bring up jury awards as the reason you support this please include the names of plaintiffs and defendants, dates and locations, and final disposition so the rest of us can review your claims in an objective manner. 

I'm not saying I'm for or against binding arbitration, particularly in the case of gross negligence. I'm also not keen on the Class Action Waiver. However, this immediately comes to mind:

98(2/20/14) Delayed Jesup GA-CSX train strikes trespassers-Doctortown

 

Share this post


Link to post
Share on other sites
12 minutes ago, Devil's Advocate said:

Binding arbitration subverts our core legal system, erodes fundamental protections, removes incentives for responsible behavior, and protects the powerful from the weak.  If you're going bring up jury awards as the reason you support this please include the names of plaintiffs and defendants, dates and locations, and final disposition so the rest of us can review your claims in an objective manner.

The growing use of arbitration is partly an indictment of America’s courts. Rarely is it in either side’s interests to litigate for years and at great expense.  Arbitration, by contrast, is quick and flexible. It lets both sides choose procedural hoops they would forgo in return for a speedy resolution. A neutral third party then hears the evidence and makes a decision.  Arbitration is not without its flaws, but one thing is clear - it’s not nearly as black and white an issue as you suggest.  Anyone who has spent time doing both knows this.  

Share this post


Link to post
Share on other sites

Even though this was resolved and it was trespasser, it took 10 years to resolve:

Voltage turns man atop Acela into conductor

In this thread, PRR60 reminded us of another incident that lead to a  payout:

Quote

And he might win.

 

In 1990, an inebriated Princeton University student climbed onto a stored NJ Transit car at Princeton Junction in the middle of the night and came into contact with the overhead 12,000 volt catenary. He was severely and permanently injured. He sued NJ Transit, the university, and the establishments who assisted in him becoming drunk. The claims were settled for $5.7 million in 1995. An aftereffect of that case is the chainlink corral that now surrounds the stored NJ Transit cars used for the Dinky.

 

A permanently injured person is a very sympathetic figure compared to nameless, faceless corporate defendants. Juries are human and have feelings. It's a fact of life that sets the bar very high for defending claims like this. Typically, the prudent move is to settle if a reasonable number can be reached. Sometimes that requires gritting your teeth knowing you are in the right, being right and winning can be two different things. Been there, done that. It's part of the cost of doing business. You can't take it personally.

I believe the years of litigation and costs of the process (not necessarily the awards) are the driving force behind this. It will also apply to those that do business  with or are employed by Amtrak.

Edited by Thirdrail7

Share this post


Link to post
Share on other sites
7 minutes ago, Thirdrail7 said:

 

I believe the years of litigation and costs of the process (not necessarily the awards) are the driving force behind this. It will also apply to those that do business  with or are employed by Amtrak.

Arbitration wouldn’t exist if courts were always the best option.  Years of litigation... What do they say about justice delayed?

Share this post


Link to post
Share on other sites
23 minutes ago, Thirdrail7 said:

I'm not saying I'm for or against binding arbitration, particularly in the case of gross negligence. I'm also not keen on the Class Action Waiver. However, this immediately comes to mind:

98(2/20/14) Delayed Jesup GA-CSX train strikes trespassers-Doctortown

I'm confused and I do not understand what this has to do with binding arbitration.  At what point do you envision CSX having entered into a contract with the family of Sarah Jones prior to her death?

 

21 minutes ago, VTTrain said:

The growing use of arbitration is partly an indictment of America’s courts. Rarely is it in either side’s interests to litigate for years and at great expense.  Arbitration, by contrast, is quick and flexible. It lets both sides choose procedural hoops they would forgo in return for a speedy resolution. A neutral third party then hears the evidence and makes a decision.  Arbitration is not without its flaws, but one thing is clear - it’s not nearly as black and white an issue as you suggest.  Anyone who has spent time doing both knows this.  

If binding arbitration is a neutrally beneficial proposition as you've implied then it should be offered as an opt-in provision that allows both sides to choose it of their own free will.  The problem comes from allowing business to force consumers and employees into accept binding arbitration whether they want it or not.  That is the problem.

 

12 minutes ago, Thirdrail7 said:

Even though this was resolved and it was trespasser, it took 10 years to resolve: Voltage turns man atop Acela into conductor In this thread, PRR60 reminded us of another incident that lead to a  payout: I believe the years of litigation and costs of the process (not necessarily the awards) are the driving force behind this. It will also apply to those that do business  with or are employed by Amtrak.

I never said our legal system is perfect or that it has no faults.  But if something is defective why not endeavor to cure it with a scalpel instead of bludgeon it to death with a sledgehammer?  There is no such thing as the perfect solution, but if we have to suffer some occasional fraud in order to ensure the people at the bottom can sometimes be protected from the people at the top I'm willing to accept that trade off.

Edited by Devil's Advocate

Share this post


Link to post
Share on other sites
1 minute ago, Devil's Advocate said:

 

If binding arbitration is an neutrally beneficial proposition as you've implied then it should be offered as an opt-in provision that allows both sides to choose it of their own free will.  The problem comes from allowing business to force consumers and employees into accept binding arbitration whether they want it or not.  That is the problem.

You don’t have to do business with Amtrak.  Nobody is being forced.  

Share this post


Link to post
Share on other sites
6 minutes ago, Devil's Advocate said:

I'm confused and I do not understand what this has to do with binding arbitration.  At what point do you envision CSX having entered into a contract with the family of Sarah Jones prior to her death?

I was responding to this:

37 minutes ago, Devil's Advocate said:

Binding arbitration subverts our core legal system, erodes fundamental protections, removes incentives for responsible behavior, and protects the powerful from the weak.  If you're going bring up jury awards as the reason you support this please include the names of plaintiffs and defendants, dates and locations, and final disposition so the rest of us can review your claims in an objective manner.

I took this as a general statement answering this general statement:

1 hour ago, VTTrain said:

Arbitration really isn’t as evil as people think.  It can be more expensive, since you have to pay the arbitrator.  But a court case can literally take years.

Sure, arbitration protects against completely insane jury awards.  But I’m fine with that.  Nobody should be getting $60 million for a stubbed toe.

So, I made a post showing an outrageous jury award and another post, showing how it took 10 years for a case to work its way through the court system...and these were trespassers!

Now, were you referring to specific, Amtrak jury awards?

Edited by Thirdrail7

Share this post


Link to post
Share on other sites
7 minutes ago, VTTrain said:

You don’t have to do business with Amtrak.  Nobody is being forced.  

I guess you've already given up on pretending forced arbitration is neutral or beneficial for consumers and employees.  Glad we could get that out of the way and boil your position down to a frivolous technicality.

 

3 minutes ago, Thirdrail7 said:

I was responding to this: I took this as a general statement answering this general statement: So, I made a post showing an outrageous jury award and another post, showing how it took 10 years for a case to work its way through the court system...and these were trespassers! Now, were you referring to specific, Amtrak jury awards?

Stop and take a deep breath before reading the rest of my reply.  Your example has nothing whatsoever to do with binding arbitration.  There is no contract from which binding arbitration could be enforced.  If you want to talk about tort reform then by all means please start a new thread in which to do so.

Share this post


Link to post
Share on other sites
25 minutes ago, Devil's Advocate said:

I guess you've already given up on pretending forced arbitration is neutral or beneficial for consumers and employees.  Glad we could get that out of the way and boil your position down to a frivolous technicality

Please read what I have actually said and not what you WANT me to have said.  I have not yet offered my opinion on whether or not a mandatory arbitration clause is generally in the consumer’s best interests.  Rather, I have stated that arbitration itself is not as evil as people tend to think - and especially as you appear to think. That’s all.

Now that we have that clear, I will tell you where I stand on this particular clause.  I want Amtrak to be a viable, healthy company.  If avoiding years of litigation and the wild swings of jury verdicts makes them more viable and healthy, I can live with that.  This is especially true because I would likely choose arbitration over litigation anyway.  So for me, personally, it’s not a big deal.

You get to make your own choice.  If you don’t like it, then don’t take the train.  If enough consumers feel the way you do Amtrak will have to adjust.  This is how a free market works.

 

 

Edited by VTTrain

Share this post


Link to post
Share on other sites

In general I am opposed to mandatory consumer arbitration for a bunch of reasons including that decisions are private and not eligible for appeal. But as far as I know, the airlines all do this in their conditions of carriage, as do lots of other companies including Uber and Lyft, and lots of tech firms. If the courts allow it (which they currently do) and their competitors do it (which they do), from a business perspective one might argue it seems foolish not to.

It’s up to policymakers to change the laws, and some members of Congress as well as the previous administration have all tried to put limits on arbitration in different contexts, with mixed success. In a different political environment I would not be surprised if this decision attracted heat because public agencies do not get to arbitrate, but a private corporation receiving taxpayer dollars apparently does.

Share this post


Link to post
Share on other sites
1 hour ago, Devil's Advocate said:

Stop and take a deep breath before reading the rest of my reply.  Your example has nothing whatsoever to do with binding arbitration.  There is no contract from which binding arbitration could be enforced.  If you want to talk about tort reform then by all means please start a new thread in which to do so.

Just to find out how confused I am, can everyone just take a peek at this tidbit from Amtrak Pays Millions for Others' Fatal Errors

Quote

But those arguments do not sway Angelica Palank, who received the $63.8 million payment after her husband, Paul, a police officer, was among eight people killed in the South Carolina crash in 1991. A faulty CSX track switch caused the accident.

Ms. Palank said she gave eight years of her life to legal warfare against CSX. After raising her two children alone, suffering depression and enrolling in law school so she could better understand the case, she believed that justice had finally been done after the judge in her case upheld the jury verdict, calling CSX's carelessness and greed "the functional equivalent of manslaughter." She believed that CSX, chastened, might not misbehave in the future.

But several weeks ago, a Times reporter told her, for the first time, that the money she received by wire transfer had not come from CSX, but rather from Amtrak.

Under the new terms, specifically this portion:

Quote

Amtrak and Customer (on behalf of yourself and any individuals for whom you purchase tickets, including, without limitation, family members, minor passengers, colleagues and companions (collectively “You” or “Your”) AGREE that this Arbitration Agreement applies, without limitation, to claims Amtrak may have against You and claims You may have against Amtrak and any affiliates or related entities, or against any party to which Amtrak owes indemnity (which party may also enforce this Agreement), including without limitation any host railroad, based upon or related to: these Terms and Conditions, breach of contract, tort claims, common law claims, Your relationship with Amtrak, tickets, services and accommodations provided by Amtrak, carriage on Amtrak trains and equipment, any personal injuries (including, but not limited to, claims for negligence, gross negligence, physical impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment, expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages arising out of or related to any personal injury), and any claims for discrimination and failure to accommodate, shall be decided by a single arbitrator through binding arbitration and not by a judge or jury.

This  award would not qualify for binding arbitration because SHE was not a passenger on the train and not subject to binding arbitration.

However, if her husband had survived, he would be unable to sue Amtrak, CSX (as host) or any other entity that Amtrak owes indemnity (CSX is covered in two places) even though the host was deemed negligent and their actions "borderline criminal" . He would enter binding arbitration under the terms of agreement and the outcome would be legally binding.

Is this close or am I still on the tort reform trail??

Edited by Thirdrail7

Share this post


Link to post
Share on other sites
3 hours ago, VTTrain said:

Please read what I have actually said and not what you WANT me to have said.  I have not yet offered my opinion on whether or not a mandatory arbitration clause is generally in the consumer’s best interests.  Rather, I have stated that arbitration itself is not as evil as people tend to think - and especially as you appear to think.

I never said that arbitration itself was "evil."  I even indicated that I would have little problem with it if the option was available for passengers to opt in/out as their position and situation dictated.  Your decision to repeatedly reference this emotional buzzword is beginning to look intentionally manipulative.

 

3 hours ago, VTTrain said:

I want Amtrak to be a viable, healthy company.  If avoiding years of litigation and the wild swings of jury verdicts makes them more viable and healthy, I can live with that.  This is especially true because I would likely choose arbitration over litigation anyway.  So for me, personally, it’s not a big deal. You get to make your own choice.  If you don’t like it, then don’t take the train.  If enough consumers feel the way you do Amtrak will have to adjust.  This is how a free market works.

Nigeria is how a (mostly) free market works.  American legislators and regulators write more (enforceable) market restrictions in a single year than you could read in a lifetime.  The US hasn't had anything close to a free market in generations.  Therefore the decision is not about whether to have a free or regulated market; it's about who and what should be the beneficiary of our regulations.  One thing I've learned from all my years of riding the rails and reading our forum is that many people depend on Amtrak as their primary means of travel.  The reasons for this vary it's not always as simple and easy as choosing another option.  In my view Amtrak's primary liability is the massive network imbalance that puts them at a severe disadvantage with regard to reciprocal indemnity agreements.  This is an issue that has little if any chance of being materially impacted by forcing arbitration on Amtrak's passengers.

Edited by Devil's Advocate

Share this post


Link to post
Share on other sites

The overwhelming majority of Amtrak passengers have a choice.  

That said, we will just have to agree to disagree on the underlying issue.  I have neither the time nor the energy to rebut what I could - starting with your pedantic discussion of a free market when you clearly understood the point I was making.  (That the government does not, by fiat, force individual consumers to ride on Amtrak.)

If and when you are ready to dispense with the pedantry I’m happy to pick the discussion back up.

Edited by VTTrain

Share this post


Link to post
Share on other sites

What bothers me most is that the person running the arbitration (the "judge"), its their job.   The have a great financial incentive to make a finding that will result in getting hired to do another case in the near future.   That means they would lean towards the "big guy" since the "little guy" will probably never have the need to re-hire the adjudicator again.

Share this post


Link to post
Share on other sites

Yes how do you go about getting a impartial arbitration.  Lawyers file cases in a certain courthouse try to get favorably judges.  How do you get fair arbitrator?

Edited by Just-Thinking-51

Share this post


Link to post
Share on other sites

It’s definitely a challenge.  Frankly, it’s my only hesitation with arbitration.  You really have to do your homework.   

Share this post


Link to post
Share on other sites
9 hours ago, Cho Cho Charlie said:

What bothers me most is that the person running the arbitration (the "judge"), its their job.   The have a great financial incentive to make a finding that will result in getting hired to do another case in the near future.   That means they would lean towards the "big guy" since the "little guy" will probably never have the need to re-hire the adjudicator again.

Bingo!  You got it.!

Share this post


Link to post
Share on other sites

I have nothing against parties who voluntarily and mutually opt for arbitration. But I believe that any mandatory arbitration provision, or anything like the "shrink wrap" legal agreements found on software and in the fine print on web sites, violates the implicit requirement for fair dealing in any contract, which cannot be waived by any party.

Share this post


Link to post
Share on other sites

Is Amtrak covered under the Federal Tort Claims Act as a Federal Government owned enterprise? If so, that arbitration agreement would presumably only pertain to torts that are not covered under the Act.

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Recently Browsing   0 members

    No registered users viewing this page.

×