[Congressional Record Volume 165, Number 150 (Wednesday, September 18, 2019)]
[House]
[Pages H7761-H7766]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING FOR CONSIDERATION OF H.R. 1423, FORCED ARBITRATION INJUSTICE
REPEAL ACT; WAIVING A REQUIREMENT OF CLAUSE 6(A) OF RULE XIII WITH
RESPECT TO CONSIDERATION OF CERTAIN RESOLUTIONS REPORTED FROM THE
COMMITTEE ON RULES; AND PROVIDING FOR CONSIDERATION OF MOTIONS TO
SUSPEND THE RULES
Mrs. TORRES of California. Mr. Speaker, by direction of the Committee
on Rules, I call up House Resolution 558 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 558
Resolved, That at any time after adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 1423) to amend title 9 of the United States
Code with respect to arbitration. The first reading of the
bill shall be dispensed with. All points of order against
consideration of the bill are waived. General debate shall be
confined to the bill and shall not exceed one hour equally
divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary. After general
debate the bill shall be considered for amendment under the
five-minute rule. In lieu of the amendment in the nature of a
substitute recommended by the Committee on the Judiciary now
printed in the bill, it shall be in order to consider as an
original bill for the purpose of amendment under the five-
minute rule an amendment in the nature of a substitute
consisting of the text of Rules Committee Print 116-32
modified by the amendment printed in part A of the report of
the Committee on Rules accompanying this resolution. That
amendment in the nature of a substitute shall be considered
as read. All points of order against that amendment in the
nature of a substitute are waived. No amendment to that
amendment in the nature of a substitute shall be in order
except those printed in part B of the report of the Committee
on Rules. Each such amendment may be offered only in the
order printed in the report, may be offered only by a Member
designated in the report, shall be considered as read, shall
be debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent,
shall not be subject to amendment, and shall not be subject
to a demand for division of the question in the House or in
the Committee of the Whole. All points of order against such
amendments are waived. At the conclusion of consideration of
the bill for amendment the Committee shall rise and report
the bill to the House with such amendments as may have been
adopted. Any Member may demand a separate vote in the House
on any amendment adopted in the Committee of the Whole to the
bill or to the amendment in the nature of a substitute made
in order as original text. The previous question shall be
considered as ordered on the bill and amendments thereto to
final passage without intervening motion except one motion to
recommit with or without instructions.
Sec. 2. The requirement of clause 6(a) of rule XIII for a
two-thirds vote to consider a report from the Committee on
Rules on the same day it is presented to the House is waived
with respect to any resolution reported through the
legislative day of September 20, 2019, relating to a measure
making or continuing appropriations for the fiscal year
ending September 30, 2020.
Sec. 3. It shall be in order at any time on the
legislative day of September 19, 2019, or September 20, 2019,
for the Speaker to entertain motions that the House suspend
the rules as though under clause 1 of rule XV. The Speaker or
her designee shall consult with the Minority Leader or his
designee on the designation of any matter for consideration
pursuant to this section.
The SPEAKER pro tempore (Mr. Cuellar). The gentlewoman from
California is recognized for 1 hour.
Mrs. TORRES of California. Mr. Speaker, for the purpose of debate
only, I yield the customary 30 minutes to the gentlewoman from Arizona
(Mrs. Lesko), pending which I yield myself such time as I may consume.
During consideration of this resolution, all time yielded is for the
purpose of debate only.
General Leave
Mrs. TORRES of California. Mr. Speaker, I ask unanimous consent that
all Members be given 5 legislative days to revise and extend their
remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from California?
There was no objection.
Mrs. TORRES of California. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, on Tuesday, the House Rules Committee met and reported a
rule, House Resolution 558, providing for consideration of H.R. 1423,
the FAIR Act, under a structured rule.
The rule provides for 1 hour of general debate equally divided and
controlled by the chair and ranking minority member of the Committee on
the Judiciary.
The rule also provides same day authority for a rule providing for
the consideration of a fiscal year 2020 CR and provides blank
suspension authority through the legislative day of Friday, September
20, 2019.
Mr. Speaker, 11 years ago, Kevin Ziober joined the United States Navy
Reserve. In his own words, he did so to ``help protect America's
liberties, freedoms, and security.''
From 2010 to 2012, Kevin worked diligently for a Federal contractor
in my home State of California, helping to grow the company from 18
employees to more than 90.
When he found out that he would be deployed in November of 2012, his
employer decorated the office with navy-color balloons and threw a
surprise party in his honor.
[[Page H7762]]
Unfortunately, the real surprise was delivered to him 30 minutes
after his party. Kevin was fired. His employer made it clear that his
job would not be waiting for him when he got back from his deployment.
I wonder what my colleagues would do if forced with the same
circumstance of choosing country over providing for their own families.
The Uniformed Services Employment and Reemployment Rights Act
protects his rights as a reservist to deploy and keep his job.
When Kevin returned from serving his country in 2014 and tried to
enforce this very right, his employer filed a motion to compel
arbitration, and it was granted.
Six months into his tenure with the company, Kevin had been required
to sign several documents as a condition of keeping his job. Those
documents included a forced arbitration clause, which meant that Kevin
would have no access to the Federal court system--no access. He would
lose his right to a jury trial, to any meaningful appeal, and to a
public or speedy proceeding of any kind.
Mr. Speaker, Kevin and the thousands of other Americans who have been
forced into arbitration proceedings are why we are here today. We are
here to ensure that Americans are not forced to unknowingly agree to
surrender their constitutional rights.
Under the present system, when corporations harm workers and
consumers, their cases are often funneled into the confidential quasi-
legal arbitration system.
When thousands of Californians were charged early termination fees
that were illegal under State law, DIRECTV responded by forcing
individual customers into arbitration.
What exactly are consumers supposed to do when it costs more to
pursue a case through arbitration than it would if they were looking to
recover a small amount?
Instead of victims fighting their cases together, big corporations
can get away with making millions illegally by harming average
Americans. By allowing forced arbitration and preventing class action
lawsuits, we incentivize this very bad behavior.
Mandatory arbitration has the potential to affect everyone. One story
that haunts me is that of Sister Irene Morissette.
When she was 84 years old, Sister Irene, an elderly Catholic nun,
moved to Chateau Vestavia, an assisted living facility outside of
Birmingham, Alabama. While living at this facility, she was brutally
raped at 84 years of age. The police found blood and semen on her bed
and her clothing.
The medical examiner documented bleeding and injuries that indicated
a rape had occurred, but after the police failed to bring a criminal
case, Irene's family attempted to bring a civil suit against Chateau
Vestavia. Instead of being able to pursue her case in court, she was
forced to arbitration. Irene, unknowingly, had signed a forced
arbitration clause buried in the documents required to live at the
facility.
The arbitrator decided that, despite the physical evidence of rape,
besides the blood and the semen on her clothing, the facility that was
charged with keeping her safe could not and would not be held
responsible.
Unfortunately, forced arbitration is common practice among large
chain nursing facilities. Ninety percent of these large facilities
require forced arbitration agreements.
Mr. Speaker, can you imagine trusting your loved one, your mom or a
grandma, to be cared for at one of these facilities and then finding
out that they have been brutally harmed and that you could not seek a
fair recourse, no justice?
These facilities argue that if you refuse to sign a forced
arbitration clause, you can just take your loved one, take your
business somewhere else, go. But that choice isn't a viable choice,
because the majority of these large facilities, as I stated, 90 percent
of these large facilities require you to sign an arbitration agreement.
{time} 1230
Many people don't have another option, at least not one if they want
to live close to their loved ones or in their home State. So, seniors
must sign away their right and be denied the opportunity to seek
justice, just like Sister Irene.
What struck me the most about her story is why the arbitrator did not
rule in her favor. The arbitrator said that Sister Irene did not sound
upset enough in the audio recording to determine if she was really
raped. What does that mean? How many times have men been judge and jury
when deciding women didn't seem hurt enough, didn't fight back enough,
didn't wear the right clothing, didn't scream loud enough, or didn't
wear her own condom? Sister Irene was 84 years old, for God's sake.
What does it take to find responsibility in an act of violence against
an innocent nun?
I wonder how many other victims, who have been forced into
arbitration, have heard similar statements of doubt from private
arbitrators. The worst part is that we will never know. And why is
that? Because most arbitration proceedings are not public.
Nondisclosure agreements and gag orders often accompany mandatory
arbitration. The #MeToo movement taught us a valuable lesson about
nondisclosure agreements and forced arbitration. Without forced
arbitration, we could have stopped Bill O'Reilly or Roger Ailes from
assaulting women and spewing their hate on FOX News long ago. Doing
away with forced arbitration means more victims can share their stories
and prevent abusers from harming others.
What I hope these stories make clear is that arbitration, contrary to
claims of my colleagues, does not work for everyone. In fact, for most
Americans, it serves as a barrier to justice and a legal shield for
corporations. It is a system that deters defendants from seeking
justice and small payouts. It is a system that is fundamentally based
on tricking Americans into giving up their rights.
That is why H.R. 1423 is so critically important. This bill would
restore the rights of Americans by allowing them to make the choice for
themselves about whether arbitration is right for them. Ultimately,
that is what this bill is about: freedom to choose for every American.
If arbitration is the amazing system that my colleagues claim it is,
then Americans will flock to pursue their claims through it. But if
arbitration is, in fact, the barrier to justice that it appears to be
for so many Americans, then this bill will allow them to choose for
themselves how they want to pursue that justice. Voting for this rule
is a step towards fighting the special interests that oppress our
constituents.
Mr. Speaker, I reserve the balance of my time.
The SPEAKER pro tempore. The Chair would advise Members to not
traffic the well while another Member is under recognition.
Mrs. LESKO. Mr. Speaker, I thank Representative Torres for yielding
me the customary 30 minutes, and I yield myself such time as I may
consume.
Mr. Speaker, we all want to protect innocent people, we all want to
protect the little guy, and we all want to protect the elderly. That is
why I would remind my colleague that courts can and have overturned
unfair arbitration clauses, and, certainly, if criminal acts have been
done, criminal charges should be pursued.
Today, we consider a bill that disregards private contracts and
enriches the wealthiest trial attorneys. We consider a bill that my
Democrat colleagues intended to protect the American people, but really
it specifically carves out an application to labor unions. And why
would it do that? Because the labor unions and trial lawyers are the
Democrats' most ardent supporters and donors. We consider a bill that
will hurt businesses and the very consumers and employees it seeks to
protect.
The bill's proponents advance the idea that arbitration is unfair,
coercive, and harmful, but that is far from the truth. In fact, I would
like to read some of the things that the U.S. Supreme Court has said
about arbitration agreements in various cases. They have said: The
advantages of arbitration are many; it is usually cheaper and faster
than litigation, it can have simpler procedural and evidentiary rules;
it normally minimizes hostility and is less disruptive of ongoing and
future business dealings among the parties; it is often more flexible
in regard to scheduling of time and places of hearings and discovery
devices; and the
[[Page H7763]]
U.S. Supreme Court in multiple rulings also further recognized that the
informality of arbitral proceedings is itself desirable, reducing the
cost and increasing the speed of dispute and resolution. And in other
studies it has proven, over and over again in multiple studies, that
arbitration actually has better results for the small guy, for the
employee.
The bill's proponents advance the idea that arbitration is unfair,
coercive, and harmful. But again, I repeat, that is far from the truth.
Arbitration is an important option in our legal system. It allows us to
resolve disputes without costly litigation. It is easier, faster, and
cheaper.
Arbitration is well accepted and available to those who wish not to
bring their disputes before Federal or State courts. It is a way to
avoid the inflexibility, delays, and expenses of litigation. In fact,
an employee can often set times better with arbitration than they do
with a court hearing. It is especially useful in consumer disputes,
which typically involve smaller claims.
Aside from benefits in cost and time, studies show that the results
of arbitration are as good, or often better results than one would get
in court.
To be fair, I don't believe that arbitration is always appropriate.
For example, I, personally, do not agree with mandatory binding
arbitration in situations involving sexual assault. I would be willing
to work across the aisle with my Democratic colleagues on a tailored
bill addressing the issue of sexual assault, but this bill is way too
wide and targets arbitration across the board.
This bill would shut some Americans out of the justice system.
Eliminating arbitration means that Americans, who can't afford
courtroom lawyers' fees, may never receive justice. Allowing only those
who can afford attorneys to obtain justice is not justice.
While shutting out some Americans from the justice system, this bill
gives a massive handout to trial lawyers, who will greatly benefit from
the huge increase in litigation costs. Money-hungry trial lawyers
benefit from this bill, not everyday consumers and employees.
In fact, an amendment that was offered in Rules last night by
Congressman Sensenbrenner, who has been here for years and studied this
topic, would have said, okay, arbitration stays in place, the status
quo. But there is an option. If the trial lawyer can tell the consumer,
the client, how much money it is going to cost to take it to court--and
that is reasonable, and he had different ways that you would determine
if the trial attorney fees were reasonable--then you can go ahead. My
Democrat colleagues in the Rules committee rejected that amendment, a
reasonable amendment.
I believe if this bill passes, we will see a rise in class action
lawsuits and the abuse that comes from it. The rampant abuse in class
action lawsuits is why companies have chosen mandatory binding
arbitrations in the first place. If mandatory binding agreements are
invalidated, there will be substantially more class action abuses.
Mr. Speaker, arbitration is beneficial. It saves time and money for
both parties, and achieves just as good, if not better, outcomes for
those involved.
Mr. Speaker, I urge opposition to the rule, and I reserve the balance
of my time.
Mrs. TORRES of California. Mr. Speaker, I yield 5 minutes to the
gentleman from Pennsylvania (Mr. Cartwright).
Mr. CARTWRIGHT. Mr. Speaker, I want to talk a little bit today about
accountability. Accountability is something we teach our children. Let
me burden you with a short story.
About 20 years ago, I am sitting in my kitchen. I think it was a
Saturday morning. My son, Mattie, who is 4 years old, was in the middle
of the kitchen floor and dropped a plate. It landed at his feet. He was
wearing shoes. He looked up at me, I looked at him, and he said to me,
Dad, I didn't do it.
Well, it is a funny story and it is cute, but the point is that you
teach your children about accountability. You teach them to accept
responsibility, to make things right that they have done wrong, and to
move on with their lives.
My wife, Marion, and I have two boys, and we like to say we have done
a marvelous job teaching them about accountability and taking proper
responsibility.
But there is a poison in this country. There is a pestilence that has
been occurring for at least a couple of generations. I want to say it
started with the Watergate era back in the seventies, when people
didn't want to take accountability and they didn't want to take
responsibility. You heard phrases come up like ``plausible
deniability.''
And then we went on into the corporate world and we had the Enron
scandal. Rather than taking accountability and responsibility, standing
up and admitting what they did and making it right, no, what did they
do? They were shredding the documents as fast as they could shred them.
It is routine in this country now for people in positions of power
and responsibility to say, ``mistakes were made,'' not ``I messed up.''
``Mistakes were made.'' It is a pestilence in this country to deny
accountability and responsibility. It is unacceptable.
The question is: What do we do to bring back accountability to the
American culture? Well, the FAIR Act makes a big step in that
direction. It invalidates forced arbitration clauses: the ones that
show up in the boiler plate of the contracts that consumers sign with
every agreement we have with a big corporation. It shows up in the fine
print. And if you take the time to read it, it is not debatable, it is
not negotiable. You have to sign it or else you have to not get the
contract, not get the account.
{time} 1245
Mr. Speaker, if you look at those contracts, it makes you waive your
constitutional right, as Congresswoman Torres just said.
We have a constitutional right to go to court to settle our disputes.
Our Founding Fathers and people in the American Revolution fought and
died for that constitutional right.
Mr. Speaker, with the stroke of a pen, you are allowed to give this
away, even though it is in the fine print. Instead, you have to go to a
rigged and secret arbitration process that the corporations control and
usually win. It also means you can't band together with other
claimants.
Think of what that means, Mr. Speaker. It means if you have an
account with a big corporation and they decided to charge an extra $500
for the year, even though that is in violation of the contract, and it
may be in violation of State law, who is going to bring a case for
$500? A lawyer won't take that case. These clauses prohibit banding
together in class actions and doing the cases together.
What does the upshot of that mean? It means that these corporations
that do it act with impunity. They are immunized from accountability.
They can do anything that they want without having to account for it in
court.
This is a license to steal. It is wrong, and it goes against the
American ideal of responsibility and accountability, what we try to
teach our children. This is not something that really applies to small
businesses. It applies to big corporations.
Eighty-one out of the Fortune 100 corporations use these forced
arbitration clauses, and almost nobody goes to arbitration under them.
Take Amazon Prime, for example. They have 101 million subscribers to
Amazon Prime. In the last 5 years, there have been only 15
arbitrations. That is because it just doesn't make sense. The economics
don't work. If you can't band together and do it as a class action,
then it doesn't work.
Class actions keep American corporations accountable and responsible.
That is why we don't want to shut them down.
My friend from across the aisle, the gentlewoman from Arizona, just
said that this bill shuts some people out of the justice system and
that it is an important option. It is not an option. That is the point
of this bill. It is mandatory. It is forced. They don't have a choice.
They go into a secret and rigged system.
Vote for the FAIR Act. I thank the gentlewoman, Mrs. Torres, for
yielding.
Mrs. LESKO. Mr. Speaker, I yield myself such time as I may consume.
I would also like to expand on several studies that have been done on
this
[[Page H7764]]
issue throughout the years. One is the Searle study, another one done
by the Consumer Financial Protection Bureau, and another one done by
the U.S. Chamber Institute for Legal Reform. In all of these studies
with different cases, it was found that employees were three times more
likely to win in arbitration than in court. Employees, on average, won
twice the amount of money through arbitration. In this U.S. Chamber
Institute for Legal Reform report, it specifically said the employee
won in arbitration an average of $520,630 versus in court, where the
average was $269,885.
It also said arbitration disputes were resolved faster, on average:
569 days for arbitration; litigation, 665 days. Both seem long to me.
Mr. Speaker, 79 percent of arbitration cases were filed by employees
who made less than $100,000.
What I am saying is, let's not throw out the baby with the bathwater.
Arbitration has worked. It has worked for years. It has proven
repeatedly that it is more cost-effective. In the cases of these
studies, the employees actually got awarded more than they did, on
average, when they went to court.
Let's not forget all of those people who have used trial attorneys.
Mr. Speaker, you hear it over and over again, where the attorneys got
all the money and the victims got hardly anything.
Mr. Speaker, I reserve the balance of my time.
Mrs. TORRES of California. Mr. Speaker, I yield myself such time as I
may consume.
When Wells Fargo opened up 3.5 million fake accounts, including
178,972 from Arizona, Wells Fargo tried, since 2013, to use forced
arbitration to block lawsuits, including a class-action case. These
people were charged excess overdraft fees when their accounts were not
overdrawn.
As it relates to labor, there are 60.1 million workers who make up a
majority of nonunion private-sector employees who are subject to forced
arbitration clauses. These employees are told that if they want the job
or want to keep their current job, they must sign away their right to
their day in court and submit to forced arbitration agreements.
In contrast, the collective bargaining process includes protections
that are unavailable to many nonunion workers, such as rejecting unfair
employment terms. In collective bargaining, both the company and the
union are represented by counsel and can agree on arbitration before
the dispute arises to an informed and transparent basis.
The collective bargaining process can also involve agreement over
other important protections, such as truly neutral arbitrators, better
procedures, and transparent decisionmaking.
Mr. Speaker, I yield 3 minutes to the gentleman from Maryland (Mr.
Raskin), a distinguished member of the Rules Committee.
Mr. RASKIN. Mr. Speaker, have our colleagues across the aisle
forgotten that the right to a jury trial was as essential a cause of
the American Revolution as was representative democracy and the denial
of voting rights itself?
John Adams said: ``Representative government and trial by jury are
the heart and the lungs of liberty. Without them, we have no other
fortification against being ridden like horses, fleeced like sheep,
worked like cattle, and fed and clothed like swine and hounds.'
The massive suppression of trial by jury rights by British
authorities was a critical cause of our Revolution. One of the charges
that Thomas Jefferson leveled against the British in the Declaration of
Independence was ``depriving us in many cases of the benefits of trial
by jury.''
Now, today, we have not a foreign king and government trying to
impose a closed Star Chamber on the American people but certain large
corporations chartered by the States that seek to divest consumers and
employees of their sacred trial by jury and due process rights by
conditioning their employment or their market agreements on relegating
them to closed-door binding arbitration sessions where all of their
rights are vanquished and the whole process, from start to finish, is
skewed in favor of the corporations that control and design the
proceedings.
This legislation, the FAIR Act, vindicates the most essential rights
of the American people.
Amazingly, the GOP floor leader admits that forcing victims of sexual
harassment into compulsory arbitration proceedings is unfair and agrees
with us that they should not be forced into compulsory arbitration. She
would like us to strip everything else out of the bill and boil it down
to that.
If it is not fair for victims of sexual harassment to be forced into
forced arbitration, why is it fair for victims of racial harassment,
consumer fraud, wrongful termination, or any of the other causes of
action that she would exclude from the legislation?
I am glad that the gentlewoman agrees with us on the importance of
not subjecting victims of sexual harassment to closed-door Star Chamber
proceedings, but this concession from the minority gives away the whole
game. If it is unfair to coerce them, it is unfair to coerce everyone
else, too.
The key to understanding this legislation is that any consumer or
employee who wants to enter into binding arbitration with a corporation
can do so and is perfectly free to do so after a conflict has arisen,
but it should not be compelled as a condition of employment, purchase,
or rental, essentially elevating the power of corporations that have
been chartered by the government over the essential constitutional
rights of the people.
Mrs. LESKO. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, sometimes I don't understand why my Democratic
colleagues put forward certain bills and not other bills, and this is
not a bill that--I don't know about my colleagues, but I haven't had a
lot of constituents talk to me about this bill and the need for it.
In fact, I have in front of me a recent poll that was done. It was
conducted in March 2019. There were 1,000 registered voters who were
polled. In that poll, it asked: ``Is arbitration viewed much more
favorably than both class-action and individual lawsuits?''
On this, it said in all cases that arbitration was viewed more
favorably by our constituents than individual lawsuits.
It goes on to break this down among Republicans, independents, and
Democrats. In this case, Republicans thought that arbitration was a
better format by 47 percent; independents, 36 percent; and half and
half, another 36 percent. Democrats thought arbitration was better than
going to court, 44 percent, and then another 34 percent added to 10
percent. Our constituents--and I may not be reading this right because
it is in black and white instead of color. I will show it to the
gentlewoman later.
If you add the two together, it clearly shows that Republicans,
independents, and Democrats favor arbitration over going to court, and
it is probably because of cases like this.
In fact, the Consumer Financial Protection Bureau found numerous
problems in its study to be associated with reliance on class-action
lawsuits for recovery on consumer claims. In addition, class-action
lawsuits also have presented other problems, including scandal
involving fabricated testimony bought and sold to support false claims.
For example, multiple renowned class-action lawyers have been exposed
and convicted of such behavior. One of them, William Lerach of Milberg
Weiss, told The Wall Street Journal that illegal kickbacks to people
recruited to file class-action lawsuits is an industry practice. He and
fellow trial lawyer Melvyn Weiss engineered a $250 million criminal
scheme to pay people to sue companies, lied about it in court, and
became Federal prisoners.
Another of American's most prominent trial lawyers, Richard Scruggs
of Mississippi, pled guilty in March 2018 to bribing a State judge to
obtain more legal fees.
I have already talked about how the U.S. Supreme Court, through
multiple cases, has said that arbitration is a good practice, better in
many cases than going to court. I have already talked about multiple
studies that have studied the analysis between arbitration and court;
that employees, on average, get awarded more money through arbitration
than going to court; and that it helps employees and employers with
flexibility of scheduling of time instead of going to court.
[[Page H7765]]
This has been a practice that has worked successfully for many years,
and this is such a broad stroke that my Democratic colleagues are
doing.
I continue to oppose it, and I reserve the balance of my time.
{time} 1300
Mrs. TORRES of California. Mr. Speaker, I would like to inquire first
from my colleague if she is prepared to close.
Mrs. LESKO. Mr. Speaker, I am.
Mrs. TORRES of California. Mr. Speaker, I reserve the balance of my
time.
Mrs. LESKO. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, if we defeat the previous question, I will offer an
amendment to the rule to ensure that, if you like your contract, you
can keep your contract. My amendment would make this bill apply only
prospectively, because in this bill it is retroactive unless the
consumer chooses otherwise.
Americans enter into agreements with one another with the assumption
that the law will not change the deal they made. This amendment would
ensure that, if you like your contract and you are the small guy, you
can keep your contract.
Mr. Speaker, I ask unanimous consent to insert the text of my
amendment in the Record, along with extraneous material, immediately
prior to the vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentlewoman from Arizona?
There was no objection.
Mrs. LESKO. Mr. Speaker, in closing, this bill will impose costly
litigation on employees and consumers since arbitration offers a
faster, cheaper, and easier way to resolve disputes. It also freezes
out Americans who can't afford expensive lawyer fees from our justice
system.
We should not be considering a bill that promotes injustice and
inequality in our system. This bill is nothing but a giveaway to
wealthy trial lawyers.
Mr. Speaker, I urge ``no'' on the previous question, ``no'' on the
underlying measure, and I yield back the balance of my time.
Mrs. TORRES of California. Mr. Speaker, I yield myself the balance of
my time.
Before I conclude, I would like to start by thanking Mr. Johnson and
Mr. Nadler for bringing this critical piece of legislation to the
floor.
Mr. Speaker, my colleagues have repeatedly argued that this
legislation is for trial lawyers. Let me tell you about Allen.
Allen tried to hold American Express accountable for high swipe fees
in a class action lawsuit with other small businesses. Instead, he was
forced to go at it alone in arbitration, where he quickly found out
that, even if he won his case, he would lose because it would cost much
more to bring his claim than he could hope to ever recover. Allen lost
his case after appealing all the way to the Supreme Court.
Recently, some very large companies like Walgreens, CVS, and Safeway
have taken American Express to trial over the very same issue. The
difference here is that they are large enough to have been able to
negotiate contracts without forced arbitration clauses.
I have heard it said that the FAIR Act is bad for small businesses.
It is quite the opposite. Corporate America claims the FAIR Act outlaws
all arbitration clauses. That is simply not true. The FAIR Act does not
apply to business-to-business arbitrations.
The bill protects workers, consumers, and small businesses with
antitrust cases. Companies like Walmart or Exxon are not protected from
forced arbitration under the FAIR Act.
I could share many more of these stories, but our time here is
limited.
It shocks me that my colleague is so opposed to fair representation
when our Founding Fathers recognized the importance of access to legal
counsel, and every day on this very floor we pledge ``with liberty and
justice for all''--for all.
I do agree with my colleagues, Mr. Speaker, that the biggest special
interest at play here is the corporations that want to protect their
top executives who sexually assault their employees; the cable
companies who charge illegal fees, making millions in profits; the
credit card companies that charge exorbitant fees, crippling small
businesses; and many others that use forced arbitration to escape
justice.
There are plenty of special interests that are fighting to keep using
this broken system, and my colleague has tried to flip that narrative
to make it seem as if the underdog will be hurt by this legislation--
the underdog of billionaires. Nothing could be further from the truth.
Let's not forget whom this bill is for. This bill is about fighting
for veterans like Kevin, for our loved ones in nursing homes like
Sister Irene, for small businessowners and every other victim of forced
arbitration.
Mr. Speaker, we have tossed around a lot of legal terms in this
debate, but at its core, this bill is about justice.
In conclusion, I would like to tell about a horrific experience
suffered by a customer of Massage Envy in L.A. County.
Lilly was sexually assaulted by a therapist, and after the assault,
Lilly tried and tried to cancel her membership to this service, but the
company repeatedly put roadblocks in her way. A year and a half later,
she downloaded the Massage Envy app on her phone to cancel her
membership. Hidden in the fine print of the app was a forced
arbitration clause. Lilly filed a lawsuit.
Like hundreds of other women who have been assaulted, now Massage
Envy is using forced arbitration to prevent Lilly from getting justice,
attempting to force her and other women into arbitration to keep it a
secret. Years later, she still has not seen an outcome.
By isolating survivors of sexual assault, wage theft, and
discrimination and denying them the leverage of class action suits, we
discourage other victims from coming forward. While the victims wait in
limbo, navigating a potentially rigged arbitration system, their
perpetrators are free to continue to rape, to continue to steal, and to
continue their bad behavior.
Forced arbitration is bad for workers, small businesses, and
consumers, and this bill is about giving Americans a chance to fight
against powerful special interests.
Mr. Speaker, as my colleagues consider this legislation, I ask you:
Will we continue to silence victims, or will we give them the freedom
to make their own choice to fight against the injustice that they have
suffered?
Mr. Speaker, I urge a ``yes'' vote on the rule and a ``yes'' vote on
the previous question.
The material previously referred to by Mrs. Lesko is as follows
Amendment to House Resolution 558
At the end of the resolution, add the following:
Sec. 4. Notwithstanding any other provision of this
resolution, the amendment printed in section 5 shall be in
order as though printed as the last amendment in part B of
the report of the Committee on Rules accompanying this
resolution if offered by Representative Lesko of Arizona or a
designee. That amendment shall be debatable for 10 minutes
equally divided and controlled by the proponent and an
opponent.
Sec. 5. The amendment referred to in section 4 is as
follows:
At the end of section 401 of chapter 4 of title 9 of the
United States Code, as added by section 3 of the bill, add
the following:
``(7) the term `solicited party' means a contracting party
asked to agree to a predispute arbitration agreement or to a
predispute joint-action waiver; and
``(8) the term `soliciting party' means a contracting party
who asked a solicited party to agree to a predispute
arbitration agreement or to a predispute joint-action
waiver.''.
In section 402(a) of chapter 4 of title 9 of the United
States Code, as added by section 3 of the bill, insert
``unless the solicited party seeks to enforce such
agreement, or such waiver, against the soliciting party and
the agreement or waiver was agreed to before the date of
enactment of this Act'' before the period at the end.
Mrs. TORRES of California. Mr. Speaker, I yield back the balance of
my time, and I move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mrs. LESKO. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
[[Page H7766]]
____________________