Rape Case Highlights Arbitration Debate

Jamie Leigh Jones i i

hide captionJamie Leigh Jones, in the foreground, and another former Halliburton employee, Tracy Barker, participated in a news conference on Capitol Hill in December 2007. Jones, who says she was raped repeatedly by co-workers, has become one of the nation's leading arbitration reform advocates.

Chip Somodevilla/Getty Images
Jamie Leigh Jones

Jamie Leigh Jones, in the foreground, and another former Halliburton employee, Tracy Barker, participated in a news conference on Capitol Hill in December 2007. Jones, who says she was raped repeatedly by co-workers, has become one of the nation's leading arbitration reform advocates.

Chip Somodevilla/Getty Images

The Arbitration Debate

Public Citizen, a nonprofit public interest group, has written a report called The Arbitration Debate Trap: How Opponents of Corporate Accountability Distort the Debate on Arbitration. The group has also explored how credit card companies and builders use arbitration. You can also read Public Citizen's Q&A about arbitration.

The arbitration industry has responded to Public Citizen's reports through the Institute for Legal Reform, which is affiliated with the U.S. Chamber of Commerce.

Jamie Leigh Jones was a 20-year-old Halliburton employee in 2005 when she was sent to work in Iraq. She'd been there just four days when she joined a small group of Halliburton firefighters outside her barracks at the end of the day. One of them gave her a drink. She took two sips, and Jones says that was the last thing she remembered.

"I woke up inside the barracks," she says. "It was actually inside my barrack room, and that's when I noticed I had been severely beaten and was actually naked."

Jones had been raped, repeatedly. By how many men, she's not sure. But she says one man was still naked and asleep in the room when she came to.

"Apparently, he knew he was beyond the reach of any jurisdiction, so he was still brazen enough to be there," she says.

Jones was escorted by security to the company clinic for a rape examination. When the rape kit examination was done, the evidence was turned over to Halliburton security.

The young woman's breasts were so badly mauled that she is permanently disfigured. It has been four years since the attack, and despite the physical and circumstantial evidence, the Department of Justice has declined to investigate.

Seeking Justice Through a Suit

Justice Department officials refused to explain or comment in any way to NPR about the case. Jones has decided that if she can't have her day in criminal court, she'll sue Halliburton and its former subsidiary, KBR, in civil court.

"I want corporate accountability," she says. "I was so brutalized that I'm going to have to remember this the rest of my life. And Halliburton was so uncompassionate that they even let the men work there, still, after I went home."

Heather Browne, director of communications at KBR, says that while the company can't speak to the facts since the case is ongoing, it denies any liability in the attack. And she argues that any dispute with Jones, even one involving charges of rape, must go to arbitration.

So Jones is now going to court seeking the right to sue. She has become one of the nation's leading arbitration reform advocates.

An Arbitration Culture

If Jones' case is remarkable, the fact that arbitration is involved is not. In the past 20 years it has become a dominant feature in the legal relationship between American corporations, their employees and their customers.

If you use credit cards, have a cell phone contract, bought a house from a builder or put your mother or father in a nursing home, you have very likely signed away your right to be heard in court if there's a problem. It's called pre-dispute mandatory binding arbitration.

Public Citizen's David Arkush, one of the country's leading researchers on arbitration, says many consumers have no clue as to the rights they're signing away.

"In the fine print of those contracts is a provision that says that they can never sue the company if they have a dispute," Arkush says." Instead they have to go a private, secret tribunal chosen by the company."

A Losing Record For Consumers

Arbitration is a closed, private process, often with little or no written record. But one state, California, changed its law to require that arbitration results be publicly recorded. Public Citizen staff reviewed 34,000 California cases, and Arkush says the results speak volumes.

"Overall, consumers lost 94 percent of the time," he says.

The arbitration industry disputes that number. But it does not disagree that corporations win more of the time. The disagreement is about whether this is evidence of bias or a reflection that corporations bring stronger cases.

Mike Kelly, spokesman for the National Arbitration Forum — one of the country's largest arbitration firms — says it's the latter.

"You're not going to bring a case that you're going to lose," he says. "Frankly, you're not going to bring a case that you think you have a chance to lose."

Kelly says the results would still be lopsided if these same cases went to court instead of arbitration. And Kelly says his arbitrators, which the NAF calls neutrals, are men and women without bias.

"What you're really doing is taking a shot at all those individual neutrals who are handling these cases," he says.

Rulings And Consequences

Elizabeth Bartholet was one of the NAF's arbitrators for a time. She's a law professor at Harvard and for two decades has moonlighted as a part-time arbitrator. The first 19 cases she arbitrated for the National Arbitration Forum were all credit card cases. She ruled each time for the credit card company.

Then, on the 20th case, she ruled for the consumer. After reviewing the evidence, Bartholet awarded the cardholder $48,000. And with that, her career as an NAF arbitrator was effectively over. She says she was stricken from her remaining cases.

"I called the NAF and spoke to the case manager, and she agreed the reason I was being removed was because I had ruled in this one case against the credit card company," Bartholet says.

The NAF says nothing improper was done, that companies and consumers alike are allowed to strike an arbitrator from a case. Bartholet counters that arbitrators know full well that if they rule against corporations too often, their income will dry up.

"NAF arbitrators are given a form where every line is filled out in terms of the amount it is suggested that you rule," she says. "And so all you need to do is fill in to the right [of that line] the exact same number. And then at the bottom, you total it up and they give the attorneys' fees number. And there's no indication that you should even write a one-sentence opinion."

Bartholet says nowadays, she will arbitrate only when both parties are roughly equal in power and enter into arbitration voluntarily.

Push For Reform

The Arbitration Fairness Act now before Congress would ban clauses that make arbitration mandatory for the resolution of disputes — restoring to consumers and employees the choice of taking their case to court.

Lisa Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, says that making arbitration voluntary will lead to its extinction.

She also says it will clog the courts with needless litigation. "It really is human nature," she says. "When people have an argument, they really want to fight it out. And the best place to fight it out is in court."

Correction June 18, 2009

Our story cited research by Public Citizen supporting arguments for changing the system of mandatory arbitration. We should have pointed out that Public Citizen is an advocacy and lobbying group that opposes mandatory arbitration.

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