Heeding an arbitrator’s ruling to reinstate fired Portland officer Ronald Frashour, who shot and killed Aaron Campbell in 2010, would violate the U.S. Constitution, Oregon’s Constitution and Portland’s City Charter, attorneys for the city say.

The lawyers deployed their full arsenal of legal arguments for the first time in briefs filed this week. They’re defending Mayor Sam Adams’ unusual decision — under challenge from the police union — to buck the arbitrator’s reinstatement ruling in March.

Frashour shot Campbell in the back with an AR-15 rifle on Jan. 29, 2010, after Campbell had been struck with multiple beanbag-shotgun rounds and turned to run toward his girlfriend’s apartment building. Campbell was unarmed, but Frashour said he thought Campbell was reaching for a gun.

The mayor and Police Chef Mike Reese fired Frashour. But on March 30, Arbitrator Jane Wilkinson ordered the city to reinstate Frashour with lost wages, saying a reasonable officer could have concluded that Campbell “made motions that appeared to look like he was reaching for a gun.”

Adams decided not to follow the arbitrator’s ruling — a first involving an officer terminated for use of force. The Portland Police Association filed an Unfair Labor Practices complaint on Frashour’s behalf.

Overturning arbitrator rulings is an uphill battle.

The state Employment Relations Board focuses on whether the arbitrator’s decision forces a public employer to violate public policy set out in statutes or judicial decisions, not whether the employee’s conduct violates public policy.

The board uses a three-part test: Did the arbitrator find the employee guilty of misconduct? If so, did the arbitrator relieve the person of responsibility for the misconduct? And lastly, is there a clearly defined public policy that makes the award unenforceable?

Police union attorneys argue that the city will lose outright on the first question because the arbitrator found Frashour acted within bureau policy.

Portland attorneys Howard Rubin and Jennifer Nelson, hired by the city to defend Frashour’s firing, argue that the board’s focus is too narrow and Frashour’s use of deadly force was unreasonable and disproportionate to the circumstances he faced.

Frashour’s reinstatement, they said, would:

* Violate public policy, as defined in the U.S. Supreme Court case Graham v. Connor. That ruling said an officer’s use of force must be objectively reasonable based upon the totality of the circumstances at the time of the incident.

* Violate public policy as defined in the U.S. Constitution’s Fourth Amendment and Sec. 9 of the Oregon Constitution, which says no one should be subject to unreasonable arrest or seizure.

* Violate federal code that makes it unlawful for a government employee to engage in a pattern or practice that deprives persons of rights, privileges or protections under the U.S. Constitution.

* Conflict with Portland’s City Charter. The charter, the attorneys wrote, “allows the City to enforce through discipline the highest standard of efficiency and safety where use of deadly force is concerned, which is more stringent than the legal standard for criminal or civil liability.”

– Maxine Bernstein

Disputing: GUEST-POST | The US Consumer Finance Protection Bureau Announces Its Review of Mandatory Pre-dispute Arbitration Agreements www.karlbayer.com/blog/guest-post-the-us-consumer-finance-protection-bureau-announces-its-review-of-mandatory-pre-dispute-arbitration-agreements/

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Disputing: Arbitration and Mediation Legislative Update | April, 2012 www.karlbayer.com/blog/arbitration-and-mediation-legislative-update-april-2012/

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Imagine being sued but denied your basic right to have the allegations against you tried before a judge or jury.

That is the situation facing thousands of credit card customers and other consumers who are forced into mandatory arbitration by banks trying to collect on debts.

Arbitration is the use of a theoretically neutral person to resolve a dispute rather than using the courts. However, even though arbitrators who hear disputes are supposed to be impartial, evidence casts considerable doubt upon whether that is always the case.

A 2007 report by the group Public Citizen looking at arbitration cases in California found that over a four year period, arbitrators found in favor of credit card companies in a whopping 94 percent of the disputes handled by National Arbitration Forum. The same company stopped handling arbitration of consumer debt cases after it was sued by the Minnesota Attorney General and it became known that one of the companies who owned a stake in it helped create a debt collection operation and was affiliated with a now closed debt collection law firm.

In spite of the concerns about arbitration, in two recent decisions the U.S. Supreme Court has ruled in favor it. One decision blocked an attempt by some credit card holders to sue over hidden fees. The High Court Justices ruled that the binding arbitration clause of the credit cards required that any dispute be handled before an arbitrator. The other decision upheld the right of AT&T Mobility to force customers to settle disputes through arbitration.

Despite the Supreme Court rulings, it appears the debate over the use of mandatory arbitration clauses may not be over.

A study of credit card arbitration clauses is being done by the recently created Consumer Financial Protection Bureau (CFPB). The CFPB is an agency of the federal government created by President Barack Obama to regulate banks and consumer financial products.

The CFPB has launched a public inquiry to find out how consumers are affected by arbitration. Consumers are being asked about: the prevalence of arbitration clauses in financial products and services; what claims consumers bring in arbitration against financial service companies; if claims are brought by financial service companies against consumers in arbitration; how consumers and companies are affected by arbitration; how consumers and companies are affected by arbitration clauses outside of actual arbitration.

Exactly how the information the CFPB collects will ultimately be used is not known. But there is speculation the agency could tighten the reins on the use of arbitration.

A recent article in L.A. Times (http://www.latimes.com/business/la-fi-lazarus-20120501,0,1556559.column) quotes three attorneys as having the opinion the financial reform bill giving the CFPB the power to study arbitration also empowers the agency to potentially ban arbitration clauses for some contracts.

The Dodd-Frank Act states the CFPB, “may prohibit or impose limitations” on arbitration clauses if the agency concludes this is in the public interest and would protect consumers, according to the L.A. Times article.

CFPB officials have not stated what the agency intends to do with the information it gathers, other than saying it wants to find out what the impact arbitration clauses have is and whether action is needed.

“Arbitration clauses are found in many contracts for consumer financial productions,” CFPB Director Richard Cordray is quoted as saying in a press release. “We want to learn how arbitration clauses affect consumers, and how effective arbitration is in resolving consumers’ issues. This inquiry will help the Bureau assess whether rules are needed to protect consumers.”

The CFPB’s request for information can be found at: http://files.consumerfinance.gov/f/201204_cfpb_rfi_predispute-arbitration-agreements.pdf

Responses to the CFPB’s request for public input on arbitration must be submitted by June 23, 2012.

The Dalian International Shipping Court of Arbitration has been officially established in the Dalian Shipping Exchange Market on April 26, 2012 in Dalian, a port city of northeast China’s Liaoning province.
Li Jingrui, vice-secretary of the Dalian Municipal Party Committee, and Xiao Shengfeng, member of the Standing Committee of the Dalian Municipal Party Committee and first deputy mayor of Dalian, attended the opening ceremony.
The Dalian International Shipping Court of Arbitration serves as a professional institution dealing with disputes that occur in sea shipping, logistics, maritime affairs and commerce, and port construction at home and abroad. Co-founded by the Dalian Arbitration Committee and the Dalian Port Bureau, it will provide support to the building and development of the Dalian Northeast Asian International Shipping Center.
Since October 2003, the CPC Central Committee and the State Council have proposed to build Dalian as an important international shipping center in northeast Asia by making fully use of the port advantages in northeast China.
Dalian has made efforts to accelerate the process when the Development Plan of the Liaoning Coastal Economic Zone was raised as a national strategy. The establishment of the arbitration court is necessary for the development of the market economy as well as for Dalian’s modern shipping service.
Arbitration is a way to resolve civil and commercial disputes and is widely adopted globally. As an international practice, it is also a dispute settlement body confirmed by the law. The particularity in shipping disputes and shipping arbitration’s unique strengths such as its convenience, flexibility, specialization, confidentiality and low cost in dealing with disputes mean that shipping arbitration can develop in a sustainable manner.
Source: China Daily

The U.S. Consumer Financial Protection Bureau is launching an investigation into financial product contract clauses that keep disputes out of the justice system.

Arbitration clauses in such contracts require consumers to use alternative dispute resolution through a third party organization, thus revoking their right to sue. The CFPB investigation will include a study on the prevalence of arbitration clauses, what types of claims are brought to arbitration and how the “technique” impacts both companies and consumers.

Public Citizen, a consumer advocate group, published a report in 2007 that shows such arbitration clauses in contracts held by California consumers tilt the scales in favor of financial institutions more than 90 percent of the time. The organization is building an online gallery of corporations that include “pre-dispute arbitration clauses” in their contracts, found at http://www.citizen.org/rigged-justice-rogues-gallery.

The CFPB, formed in compliance with the Dodd-Frank Wall Street Reform Act of 2010, is tasked to explore the financial services industry’s use of arbitration clauses and to regulate the activity by limiting or stopping the practice altogether.

Arbitration made headlines this time last year, when the Supreme Court upheld mandatory arbitration clauses in consumer contract like cell phone agreements. In reaction, Democratic Sens. Richard Blumenthal and Al Franken, and Rep. Hank Johnson, brought forward the Arbitration Fairness Act in May 2011.

The legislation, which would reverse much of the ruling, has yet to be referred to committee.

As part of its investigation, the CFPB is asking the public to submit comments. Comments may be given over the phone at (855) 411-2371 or submitted online http://www.consumerfinance.gov.

Published on May 2, 2012 09:28AM under News

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