5:30 p.m. eastern on c-span.org or c-span now free mobile video app and later at 11:00 p.m. eastern on c-span we will feature highlights from the evening including the prime minister's white house arrival and toast given at the dinner. watch the white house state dinner on wednesday on the c-span networks. >> on wednesda homeland security sectary alejandro markas is on capitol hill to testy on the predent's 2025 budget request for his department and take questions on immigration policies and the u.s. souther border. he's appearing before both changers of congress starting with the house appropriation subcommittee at0:00 a.m. eastern and then in the afternoon a senate appropriation subcommittee will hear testimony at 2:30 p.m. eastern. watch live coverage of both hearings on c-span 3 on our free mobile app, c-span now or online at c-span.org. >> next we will hear testimony on the impact of forced

arbitration clauses on workers and their inability to seek legal recourse. witnesses include gretchen carlson, former fox news anchor who spoke about sexual harassment fight with the network and nurse who talked about age discrimination. the hearing runs an hour and 40 minutes. [inaudible conversations]

>> >> please proceed. >> so what is i forced arbitration? >> you're giving up your right to take a dispute to court. this is a constitutional right you have and you're giving it up even before you know that there's a dispute. >> arbitration clauses are s typically buried in the fine print of a product manual or website, most people don't even realize they are green to them. >> has hardly ever left the garage, there was an engine problem the dealer first failed and then refused to fix then found to his dismay binding arbitration and couldn't sue. >> i didn't know what an arbitration agreement was. i was beside myself that we lost our right to court. >> i'm lieutenant commander in the navy reserves and federal

employer fired due to my deployment of afghanistan and later force today arbitrate when i came home. inla november 2012i received orders to deploy to afghanistan for 12 months. on the last day of work my colleagues created me with standing ovation at noon bob held surprise party in my honor. 4:45 the same afternoon i was call intoed a meeting in the hr department where i was fired and told my position would not be available after my deployment. >> if i didn't signed arbitration there was no opportunity for me to maintain or continue with the job. i had to give myself a pep talk to go to work every day. forced arbitration is pervasive.

it affects more than 60 millioni workers, estimated 825 million consumer arbitration arguments were enforced in 2018, number that undoubtedly has gone up since then. if you've acted cell phone or bought a mattress, television, countless products, you likely agree to arbitrate any future disputes with the manufacturer or service provider. don't be embarrassed if you're learning that you like i will waived your constitutional right to bring your client in court. all of, quote, agree to force arbitration when they click the button or check that box accepting terms of service. we may have no idea we are agreeing to this process when we sign up.

the process is overseen by arbitrators and can be bias and want to ensure steady pipeline of future work. the problems are compounded by mithe secretive nature of the process. no where was this combination more pronounced in cases than sexual assault and sexual harassment. for years predators like graduate preyed upon women without fear because they are their employees -- pardon me employers behind proceed to go sweep the abuse under the rug. thankfully that's no longer the case. brave survivors like gretchen carlson with us today, thank you for joining us step forward to break the cycle of abuse. as a result of her unrelenting advocacy in this committee's determination to do something on a bipartisan basis, the ending forced arbitration of sexual assaultsi and sexual harassment was sign intoed law by president biden in march of 2022.

as the name suggests the law prohibits forced arbitration in cases of sexual assault and sexual harassment, we will hear from witness joan grace, forced arbitration is use today cover illegal age discrimination on the issue, the senator from south carolina. i want to thank ranking member working on usng on a bipartisanf select today's witnesses and before i turn microphone over to senator graham i want to congratulate south carolina and iowa for terrific basketball experience for the next two weeks. >> senator graham, thank you, it was a heck of a ball game,

caitlin clark was phenomenal college athlete. personally i'm glad she's going to the pros. she beat us last year. so what are we trying to do here? to level playing field.tr when you go to work with somebody you sign employment contract take it or live it and most require mandatory arbitration, biding arbitrations. i think most americans believe that you shouldn't sign away your rights to have your day in court. d that's just too personally important and we passed the law to say you cannot require through binding arbitration and employment contract you cannot

tennessee the employee their day in court and mrs. carlson was instrumental in that. now we have the protecting older americans act. what's that all about? a lot of people are discriminated in the workplace in my view because of their age because it's just so much cheap tore have younger employee and we have seen that, articles about cvs and other companies that routinely engage in these kinds of practices where an older employee is under as lotf scrutiny and a lot of harassment and the next thing you know they're terminated. so what i want to do is to make sure that if you feel like you've been discriminated based on your age that you can have your day in court. still the burden is on you to prove you were, the company or the individual involved will have plenty of testifieses but i just think forced arbitration in

that situation doesn't serve the public interest and i hope after this hearing we can have a vote on protecting older americans act that would do away with binding arbitration and employment contracts and finally, arbitration is okay if you're in seeking advice, investment, business trying to, you know, go get some advice for investment. it's a business relationship, two companies want to agree to arbitration. there's a level playing field, that's not my problem. there is plenty of space in the american economy for arbitration but what we've seen is these employment contracts pretty much written to the advantage of the employer and areas like sexual harassment, age discrimination and a few other areas has gotten out d of hand and i want to levl the playing field so thank you for having this hearing.

>> thank you senator graham. we both agree on the four witnesses and now introduce gretchen carlson. no stranger to the committee, vocal advocate for women's rights, curving the abuse of forced arbitration and nondisclosure agreements. 2016 sexual harassment lawsuit against roger ales, advocate for a ban on nda's and forced arbitration and employment contracts. marianne gilles, law professor at cardozo school of law. specializes in class action and aggregate litigation and written extensively on arbitration previously testified before committee welcome back. víctor schwartz, served as law

professor and dean of the university of cincinnati college of law before his current position he's previously testified before the committee and we welcome him. joanne grace of colombia ohio has served community and a variety of nursing homes since 1976 including as floor nurse, supervisor, manager and the director of nursing services, thanks for joining us today. i'm going swear in the witnesses and each will have five minutes for opening statement and the five minute rounds for each senator. i ask the witnesses to please rise.. >> raise your right hand. do you solemnly swear -- all

right, thank you. ms. carlson, your first. >> thank you so much. thank you for the opportunity to testify about my experience with forced arbitration and the work i'm doing to make workplace safer in america. in 2016i found the courage to sue one of the most powerful men in the world former fox news chair and ceo roger ailes for sexual harassment. toughest decision of my life but after they fired me i said to myself, if i don't do it, who will. my story certainly made headlines but it could have been easily been swept under the rug like countless others because of the forced arbitration clause under my contract. no one start a new job expecting harassment. i know i didn't and few people can walk away from a job because of the fine print. i don't care who you are, most people have no idea what forced arbitration means. in my case it showed up in my last contract with fox. i was told not to worry because it was, quote, becoming the way

of the world. ie could not have imagined how true that would prove to be. employees have no idea that signing on the dotted line accepting a forced arbitration clause can strip them of the rights for future justice. back then i could have never known that my story would help propel congress to start examining forced arbitration in a meaningful way. thanks to other courageous women to the members of this committee and to other champions in congress hailing from both sides of the aisle survivors of sexual misconduct can now seek justice. witnessing the president sign the ending forced arbitration of sexual assault and sexual harassment act two years ago was one of the proudest moments of myud life. courage is contagious and this new law is having significant impact. christian, bartender at country club alleged she was harassed by multiple members was able to bring lawsuit against her employer last year and employer tried to stilloy silence her by

filing motion cocompel arbitration, the request was denied because of the new law. a judge in texas also decline today grant blaze media motion to dismiss last year after employee sidney watson alleged sexual harassment in the workplace. watson's case can also continue in court thanks to these new la. well, i feelaw endless gratitude towards this committee for restoring the rights of sexual misconduct survivors like these. i'm not sure than ever before that all americans deserve this right. it's why i'm a champion of the new bipartisan forced arbitration bill, protecting older americans act cosponsored by senators graham and gillibrand with chair durbin and senator grassley too. thank you, senator booker for endingras discrimination act, these bills give americans a choice about whether or how to seek accountability, a choice that should not be made by

companies or the government. you will hear from joanne about age discrimination in a moment but let me tell you about two former tesla employees jasmín wilson, they reported racist behavior at their rafael tesla's plant, graph ity that read kkk and the n word but no action was taken when they went to hr and they were forced into arbitration. stephanie weavers grandmother went missing at a nursing home after beinge left unattended and when the home called her to come look for her grandmother she found her grandmother's dismembered body had beenra eatn by an al -- alligator in the canearby pond. in both cases forced arbitration eliminates justice, something

must be terribly wrong with our system. w for the nay sayers out there, the u.s. chamber claimed all hell would break loose if you let women file assault and harassment cases in court. there would be a slew of new cases and companies would go out of business but none of that has happened. instead, survivors are simply being empowered with a choice. after my story at fox news, a close friend said to me, gretchen something good is going to comeme of this. at the time i couldn't see but something great has come of all of this. thank you for holding this hearing and i hope when you consider the horrible stories currently being allow today flourish within the secrecy of forced arbitration you will agree that all americans deserve this choice. >> thank you. >> thank you for stepping up. america is better because you had the courage to step up and say things which were painful, thank you again. >> thank you.

>> professor gilles. >> chairman durbin, ranking member graham. distinguished members of the senate judiciary committee thank you for invite manager toe speak today about the harmful effects of forcedab arbitration clauses that are imposed on all of us in take it or leave it contracts that chunk cases out of public courts and into secret one-on-one arbitration. and i say all of us because as we sit here today in this room everybody in this room is subject to a forced arbitration clause, nerve this country is subject to a forced arbitration clause in some aspect of their life. forced arbitration take the power,on agency away from each f us and hands it over to powerful

corporations. whether they be consumer protection antitrust, privacy or discrimination laws. because forced arbitration essentially replaces the laws that this body enacts with private legislation written by corporations into the fine print of contracts that nobody reads and nobody can negotiate. one way of grasping the enormity of the problem we've come to talk to you about today is to consider recent cases where there was no forced arbitration clause in effectre and to think about the injustices that would still be happening if those cases had been blocked by forced arbitration. i think we've all heard about the a massive antitrust case brought against the real estate industry which recently resulted ines a jury verdict in favor of home purchasers and a settlement that promises to change the way americans buy homes by reducing

commissions and opening up competition among agents. most --since we've been talking about the protecting older american acts i want to tell you about another case in 201 - a group of hewlett-packard employees sued alleging the company violated the ada by terminating them because of their age. now about 140 of the laid off workers signed releases that included forced arbitration clauses while another 320 refused to sign. those arb free workers were allowed to continue in court where last week the judge agree today settlement $18 million. the highest ever recovered in age discrimination suit while the workers who had the

misfortune of signing releases with forced arbitration clauses are out of luck, that makes no sense. sometimes long-standing policies and practices. it denies all of us the ability to know what's going on in the marketplace and in the workplace. and for what, w why has this unjust regime of forced arbitration develop. well, it's not because as the chamber would tell us that it's because forced arbitration is cheaper, faster or easier, that's not it. if it were companies wouldn't have to force us to do it, right, we would want to do it. ouinstead companies impose force

arbitration, i think the evidence of this true motivation is now glaringly obvious in recent phenomena of arbitration in which victims simultaneously filed thousands of individually arbitrations and make good on their contractual promises to pay the cost of arbitrating large numbers of single file claims. no surprise i think that just about every company hit with the mass arbitration has gone running to court seeking relief from their own contracts. also no surprise the chamber of commerce characterize as extortion meanwhile federal judges have called it poetic justice. here is the point, however -- whatever you think about mass arbs, the resistance that these companies have to individually arbitrating these cases after unilaterally forcing these provisions on the workers and

consumers make clear that forced arbitration was never about r fairness or efficiency but abt suppressing worker and consumer cases. >> thank you. today is april 9th and i just mentioned one personal note. it was my dad's birthday. there's a lot of miss and truths about arbitration but a couple of things that i wanted to mention because i had minister name albert and taught me something not in context is pretext and you to put arbitration and context with litigation which i know about. i've lived it for 50 years and i do write a casebook that a lot

of people have seen. the cost of arbitration is far less than litigation. we have data that show that. it is much cheaper. there is in litigation a lot of delay. i mean, real delay. it may take a year, more than a year till your case is heard where with arbitration you get heard right away and that's an important, an important thing. claimants benefit because it's simpler. you do not have to go to court. after disease nothing is worse than being in litigation and i know what it is on both sides. you don't have to go to court, you don't have to disrupt your family and that is a definite benefit becausebe you work on yr own time.

the amount youbm receive in litigation is not less than you would in arbitration or the reverse, not at all and i mention the disruption that occurs with your life in litigation. it's just not good and then getting an attorney, employment cases, it's almost impossible to aget a plaintiff's attorney toy unless the contingency fee is very, very substantial, 200,000-dollar case you're not going to get a plaintiff's attorney unless he or she wants to volunteer not on the contingency fee system and it's proper they end up getting a hundred dollars an hour and they don't want that, so you can't get an attorney and all you've got is arbitration itself. there are a lot of things said

about predispute arbitration and there can be debates about it. in most instances it's really not forced. if you want to buy a phone, a lot of the phone companies require you to sign on arbitration agreement, not all. therear often is an alternativer you can say, i don't want to do it at all. sometimes the -- it's small print and big long contract but if it's too varied and it can't be seen, courts will deem that unconscionable, they have thet power to do and if the agreement has things that are just improper, state courts hold them unimproper under unconsciousability about confidence. you can tell any public official about yournt agreement, you can

tell them the result, gag orders restrictively struck down by courts and since this committee has held hearings, it's been helpful because more state courts are doing that. that is anea important thing. some people say we will do it post arbitration, post dispute, that doesn't work because each side triespo to rig it in its on way and t businesses don't prevl at a greater risk at a greater length with arbitration versus a litigation and i'd be very happy to take your questions. i see the orange light and for 50 years i have never gone beyond the orange light so i'm e kept it up. >> well, you're the first witness who can say that, thank you very much, professor. at this point, ms. grace. >> chairman durbin, ranking

graham and distinguished committee members, it is truly an honor to be here. thank you for giving me the opportunity to tell my story on how i was wrongfully terminated because of my age and how my former employer is using forced arbitration to steal my rights, my voice and even my dignity. i started my career as a registered nurse in 1976. i've dedicated my whole life to others. after working hard after 50 years as supervisor, manager and a director, my healthcare system was acquired by steward health system. shortly thereafter i became a patient advocate. i loved being a patient advocate because it allowed me to speak up when a patient wasn't being heard. this is the same purpose for which i'm here today, to speak to those who are being silenced with forced arbitration.

.. .. just to embarrass me. mr. bite discrimination. you know what hr told me? they called me an old warrior, joanne you are an old warrior. old. old. why would hr representative feels so abrasion and shameless as to outright call me old to my face. what i was out of work with covid, stewart posted his supervisor job online.

job description made it very clear to me that it was by position, just a different title. two days after i returned to work one position was quote reduced you. one position, it was mine. because my position illegally needed to be filled the hospital hired for the supervisor position someone in their 20s who did not even meet that minimum experience requirements for supervisor. mite reduction was a lie to force me out. i was devastated. getting rid of more experienced nurses like myself the hospital is putting patient safety at risk i hired an attorney to sue stewart for age discrimination. it's not about the money. i love being a nurse. i want to protect other nurses and keep patients safe. i hope my lawsuit can effectuate that change. stewart moved to higher mite

lawsuit by forcing us into arbitration agreement into an arbitration agreement. never signed any forced arbitration agreement. they, my employer pointed to my name onn an xl list as having attended a training about arbitration. i did not even attend that training for the said by continuing to work after that trading session, i lost my right to hold them accountable in court. that wickedness did not stop there. this so-called force arbitration agreement further rigs this process by allowing me only to call one witness from stewart and limits me too calling on, and asking for 25 documents. in court i could depose the director of nursing, the hr representative, those decision-makers and all of the witnesses that witness my age discrimination. in force and binding arbitration

i can only call one witness. they claim this agreement allows the employer to pick the pool of potential arbitrators. which is mainly defense oriented attorneys. this means that a defense oriented attorney is going to isdecide my case. if i somehow make it through this a rigged process and when,o one will know and no change can ever happen. as long as congress allows companies to sweep accountabilityty under the rug, they will continue to do just that. i hope you now understand why and hr representative felt so brazen and shameless to call me old. the ability to use force arbitration empowers companies to violate the law while hurting nurses and patients. as more older americans remain in the workforce, our rights need to be r protected. older workers should not be forced into retirement nor into

forced arbitration. chairman durbin, ranking member lindsey graham, committee members, thank you for listening to how allowing forced arbitration has really destroyed my dignity. legislation is needed to end this practice and i'm happy to answer any questions that you may have. >> miss grace thank you for being here. i'll be half of the institution filled with seasoned warriors, we stand shoulder to shoulder with you in this effort. and thank you for telling your story for all of the country to hear. it is a very important. i take it from what you said you never signed, checked a box or in any way indicated that you were partar of any forced arbitration agreement? >> and no i did not. and in fact as part of management at the director level, through part of stewart health acquisition, i saw other people go who are older.

they sent arbitration paperwork. at the end when they were terminated and in return for some kind of a monetary agreement that they can receive, it was not -- i never signed that it would never advocate for anyone to sign that. >> this is a legendary moment in my life. now i have discovered a man who is the author a book -- make a textbook i purchase in law school in georgetown quite a few years ago. i was impressed not only with the content by the weight of that book. i carried it around all year trying to learn from it. and i salute you for being the co-author of one ofhe the most famous legal textbooks in america. i am glad to learn you did this. may i ask you, following up on

the question with mr. gray super. >> owned a thank you sir. i can say one thing about that book that you may not know. if you put on the floor in your kitchen you can reach the top shelf. a lot of people do not know that.lo [laughter] lexus good practicalow advice. recently a company called roku which is a streaming service updated is dispute resolution terms. i pulled out the contract which they offered to people who want their services. despite not providing a description of what terms change the company would not allowed to continue using a roku device to stream your favorite shows lsu agreed to the terms of this contract. assuming a user took time to read them, they are pretty simple. they say any disputes between us, meaning the consumer and the company, will be cited by binding arbitration meeting would both give up the right to go to court.

let's wal' through what it takes to opt out of that provision in the contract. you cannot opt out by e-mail. instead you have 30 days to mail a letter to roku's general counsel. the letterr must include the nae of each person opting out of their contact information, the specific roku product, models owned, the software in the products, the services that issued the e-mail address used to set up your roku account. and if applicable a copies of the purchase receipt. opt out notices submit any other way including e-mail are considered ineffective. when you hear miss grace experience where they are trying to impute or infer she signed up for arbitration and see the rigmarole you have to go through to get out of it, mr. schwartz g that thiss is a contract that should be honored? >> i'm sorry sir. could you repeat the question

please? >> is a long question i'm asking about the roku company that has forced arbitration agreement and to opt out of it you need to send an elaborate number of communication specified in a hemanner that they accept. you've heard miss grace sitting next you're talking about she went through where it was inferred she signed this agreement. could you comment on that aspect of forced arbitration? >> i think some people call force, and that situation with age, there should be an opt out. age situations are different than your regular purchase of a product. it's carefully drawn rules should regulate such contracts.

andra in fact, in general i woud say this is an area having federal regulation of the arbitration agreements is a sound step to do. rather than live it to the whim of state courts. some of the agreements may be unfair. they may be unfair with miss grace. but it is very hard to do that in the abstract without specific knowledge of the specific contract. of having regulation at the level like age, military, nursing homes. senator graham? cook said is the regulatory scheme will see where that takes

us. miss grace, did you find it more of aof common practice the older you got the more scrutiny you are under in terms of your employer? >> i did sir in the prior hospital system i was at. >> the seller of the person to take your job? >> much less. they hired by experience. my salary was as aal patient advocate $38 an hour. which is good money for a nurse. the supervisor probably took on my job, probably was making 25. >> professor in the age discrimination area, is it one of the common themes that

replacing an older employer with a younger employer saves money? >> yes because they believe, it's been a long time belief in healthcare for cooks i'm sorry i was talking to a professor. i am directing to the professor i'm sorry. >> i'm going to continue with what joiner just told us. yes, they get younger workers can come in more cheaply. seniority each promotion get you more and more money. if you can get rid of those expensive older experienced workers and call it a worker reshuffle and a higher younger workers with less experience you can do so more cheaply. >> the idea of going to court the burden is still on the plaintiff, right? >> oh my gosh, yes. let's not pretend getting rid of forced arbitration means everyone's going to walk into court and get a check once they

walk into court. has h tremendous amounts of toos for federal judges to use the cases before that are valid. and they use them on a daily basis. >> think rule 11 is one of those tools, right? >> is one of those tools would o wouldthink was something scott arrived. rule eight tells us you have to be able to plead your case in a way that shows it's there. that's it meaningful rule through rule 12 b6 the opportunity to represent his clients by seeking to dismiss claims they think lack legal merit. the ton of stuff lawyers and judges do to ensure the system of laws just forget all of that forget all the cases. i think that's the real problem

here. >> indicated she could only call one witness in the arbitration setting, is that common? >> i'm sorry you're so skinny? >> yes. the arbitral providers limit discovery for that's one of the ways they can promise they isrepeat clients they will not have to spend very much money and not have many other corporate executives had to sit down for depositions. yes, my understanding is very tight limits on discovery. >> thank you. protecting older americans act i hope the committee will take it up and we can pass it. mr. schwartz your id about some federal guidelines in this area it makes some sense to me. i would like to continue this discussion. there is a place for arbitration. i'm not against arbitration as a general concept. i think the idea of leveling the

playing field in the services you seek matter. the more sophisticated the service the more it leveled the playing field would be in my view. so at the end of the day basic consumer engagements we need to make sure people are not left out to dry. when it comes to sexual harassment, age discrimination omand other they need to have their day in court. generally speaking, having arbitration is a good thing. it is cheaper. it is more efficient. does not render justice. as it were looking for is to try to find that balance. >> thank you, senator graham. satterwhite house? >> thank you veryor much. and thank you all for being here and for supporting this important cause. the chairman mentioned the important role of the seventh amendment just as part of our constitution.

you can go well back before the seventh amendment to blackstone commentaries speaking about how the jewelry, the glory of the english legal system, which we inherited, have the benefit of being a bastion against influence of the powerful and citizens i would say forces. most powerful and wealthy influences tend to be corporate. and you can see the reason why corporate america would like to get out from the jury system. it is the place where you cannot fix things. you can come to congress favorite treatment in the oval office. you go to jail for jury

tampering. you see over and over again cases in which an honest courtroom has been the solution to lies, and to bullying they were protected in the political space. so there is a lot going on when the supreme court tries to disable they can seize it. and shunt them to binding arbitration. professor willis set this has had particular impact in the area of the high volume, low dollar frauds. that it really only economically answerable by class actions. could you talk a little bit about how the power to take away enforcement citizens into mandatory arbitration of the

corporations to get away low dollar high volumeud fraud. >> this is the very reason we aree here. they found in the study of forced arbitration most arbitration provisions combine a class-action band. the idea is we would prefer these companies say not to be responsible or accountable as you describe it, senator, small plaintiff injuries. we spread the pain around to lots and lots of individual americans. most are not going to individually arbitrate those claims is simply not worth it to sdo so. >> let's say you add a fake 15-dollar fee on to all of your customers bills. you might get calls complaining which case you reverse it.

and the others to build them but no one. he appeared it's not worth anybody go hire a lawyer and litigate over $15 fee for them. if you have $2 million customers that's $30 million.: by the adopters of rule 231966 decided there needed to be a procedural pathway to allow small dollar claims into the court system. otherwise corporations could run roughshod over all of our rights. most of us would never even notice the 15-dollar overcharge. it is really important to see that right now companies could be doing so many things. so many illegal things along the edges that are simply falling through the legal cracks.al class actions are impossible to bring. forced arbitration causes and

effect. >> compared to the elaborate and well-developed procedural and substantive provisions that make sure a courtroom is fair house it worked out in arbitration chambers? >> is a complicate a question. i will give you a few bullet points. first off, and i want to disagree with my esteemed colleague victor schwartz, arbitration fees are higher than court fees. they are just higher. arbitrators are paid a daily rate of about $1,002,000. the arbitral provider is picked by the very company the worker or the consumer is complaining about part i want most of you in this room are lawyers. imagine if you could just pick your judge. the repeat player should not surprise us. there is, as you mention comments in the white house

clauses you see prohibit collective action. any form of collective which means for most people is not viable. we talked about this with ms. grayson. in other attempts to obtain incident. they do not apply the evidentiary rules. very limited appellate rights. or talk about systems that were created by companies. look exactly like what the company would create separate assists inn the projects them bt doesn't protect the rest of us. >> i would add when i was attorney general one of my attorney general colleagues brought an action against when these arbitration offices and cause them to shut down because they had been so crooked in their manipulation of the outcomes against the individuals and in favor ineffective corporate clients. there's a long record here ith

appreciate your attention to this matter. >> thank you, senator. senator cotton? >> thank you all for appearing today. i haver. a series of questions going to ask you to establish a baseline facts about arbitration presents a professor mentioned you by name for disagreement would you like to respond? the disagreement with you that arbitration i think she said arbitration fees are higher than court fees? >> i will submit the rules of the arbitration association. it's not more than $300. there is a one way fee sharing if you win the arbitration all of your fees are reimbursed for it i will submit the rules to the committee. i'll be happy to send a copy to the ms. brooklyn chic look at the rules of the american arbitration. >> that's $300 a day? >> and know it's an immediate fee and i will submit the rules to theat committee. the rules do notl live.

people can speculate them. take a look at them. >> thank you but i want to go to the questions iwi have to establish the baseline facts. the pointe of having a court system is people who have been wrong can have a fair and efficient system here and decide their claims, correct? cook state and federal courts are backlogged and overburdened in a matter of cases right now? >> yes they are before their cover they are backed up announcement 18 months until he could have your case heard. meanwhile you have medical expenses. you have situations you cannot work. arbitration can be heard much morere quickly. >> is it true arbitration is typically faster resolving those claims and takings in those claims the court system? >> it's much much faster. i want to mention something

about class-action. this committee should look into help class actions are used. in many situations the lawyers end up with quite a bit of money. and theth members of the class don't. i see this every year. their willingness and frankly defense lawyers settle because they were to get word of the case. the one to get the benefits are the lawyers and not the victims who are supposed to be helped in the class. so this committee looks at different things. class action should have the original use of rule 23 not be abused by. >> plaintiff said arbitration can recover the same kinds of damages they would get in a court. >> will submit information that is true. stanford study shows the amount of damages don't vary between

arbitration and courts. >> academic studies show the amount of recovery does not vary is not materially different from a court in arbitration? what stanford study which is respectable shows that. >> isth true arbitration is more flexible than the court system? for example arbitration can occur anytime, anywhere that's convenient for both parties rather than courtroom on the judge's schedule? >> are people with regular jobs it is much better. with people with families. dragged into court is no fun. this can be done at a nearby place or people live. at a time that is convenient for their job. who to appreciate that? were they can claim arbitration, get a lawyer, get discovery coming at relevant materials to the claim? >> is costly and disruptive of one's life. that is for sure.

i followed that for years. i do not wanto to be the wrong side of that one. >> talk about nda nondisclosure agreements or secrecy agreements. just to be clear that is correct but nondisclosure agreements they use in litigation when you settle a a case. her results of arbitration. >> my time is almost up. it sounds like from your testimony that claimant's tenure just as well as they do in courtship. they can make their own decision whether they publicize or talk about their claims.

and that in general they can do better based on your earlier testability rules who was in court versus the court. >> and a practical reason. it is important to remember that many of these disputes t today u can't get a lawyer. so an employee who has a case is $100,000 lots of luck for them getting a lawyer. the system does not provide an adequate reward to the plaintiff lawyerr. fee is either arbitratn or nothing. it's not comparing it to the court. may might point and a testimony by think it's important to be in the record. >> this is why the supreme court has acknowledged federal law and policy is generally been favorable towards arbitration going back almost 100 years now. >> surprisingly it's an area where the court is been in agreement. [laughter] they find each other quite a bit. the respect of the federal arbitration act.

>> thank you. click center klobuchar? >> thank you very much senator durbin and thank you to the witnesses today. i welcome and i'm going to focus my questions today on antitrust. mr. schwartz i wrote out a book they can help you with that get to the topst shelf. i'm going to ask ms. gillis questions on this front. because i think it's important thing that has not been touched on yet. i am chair of that subcommittee. work with center at lee on this extensively as well as senator grassley. i am concerned some of the forest arbitrations are frustrating the purpose of our antitrust laws. like a noted during our hearing one of the hearings on the topic in 2019 i was and still am

disappointed to see the supreme court allowed american express to force arbitration even though doing so would make it difficult to enforce the law. in her dissent in the case, justice kagan wrote the forced arbitration provision in the employee's contract with american express and violated the sherman antitrust act by depriving parties of a chance to challenge alleged monopolistic conduct. meanwhile large companies were able to negotiate better fees are arbitration clauses that smaller companies who artist willus force into arbitration clauses. youou testified, thank you bothn 2019 and in your testimony today that forced arbitration interferes with antitrust and other laws it. could you elaborate on that? >> thank you, senator. i am happy to. at that hearing you might

remember alan carlson the chef owner of italian colored restaurant they named plaintiff testified. it is a striking piece of testimony. he told us that other companies walgreens, cvs, safe we were able to take american express to trial because of course they have a tremendous amount of market power. the americanav express could not find those large companies to force arbitration clauses. it did so for all small businesses but including his restaurant which meant he could not hold american express responsible for the alleged antitrust violations. who think about small businesses as we all do all of the time small businesses to a tremendous amount for this country. one of the things they do is enforce laws. just like consumers and workers do. they are often at the front lines enforcing antitrust laws.

because they are victims of antitrust violation of anticompetitive behavior which is what that case was all about. >> exactly. >> we are seeing more consolidation in such a big way. we are seeing issues as we all know with the tech companies. unfortunately been stagnant here about changing the antitrust laws. we've got a number of bills through committee and i appreciate the chairman's leadership on them. they are all bipartisan, every single one of them. but they are sitting there. we had one victory at the end of 2022 to get more funding for the agencies given these huge cases. especiallyly involving facebook, apple, amazon, and google. we goo merger fees which is estimated to be 50 million less merger fees.

and then we passed it in the money disappears and for the first time in 25 years did not go to the antitrust division after an attempt was made to delay them. what is this whole story about? it's pretty outrageous and i promise it's going to change in the future, but it's also about the importance of private enforcement of the antitrust laws and i want to make a case for that, but i do want to end up with ms. carlson who i've known for quite a while and asking about what you said in your testimony that the law we passed, and i think my colleaguesin for their leadershp about ending the first arbitration of sexual assault and harassment becoming law in december of 2022 and you stated it is already making a significant impact in the lives of countless survivors.

can you describe in more detail the positive effects of this law? >> thank you, senator klobuchar. it's great to see you from our great state of minnesota. i mentioned a bartender at a prestigious country club who was harassed by multiple members allegedly as well as by a security guard and still employers are trying to force victims of sexual misconduct intoal arbitration because the onus is upon the employee to discuss and that they do not have to go to arbitration. i've not specifically spoken to her but i've spoken to women every day who says the company is trying to force me into arbitration and i say they can't do that anymore. so a case they went to the judge, they filed the motion and the judge denied it because of this ground breaking the law that had passed. a judge in texas recently tried

to get a motion to dismiss who alleged harassment over a span of time and that was also denied because of the law. so what i've found over the last two years is the biggest and at the most important thing after passing the law is to educate people about it because companies probably are not going to willingly tell you that you no longer have to be forced into arbitration for sexual misconduct and this is why it is so important to passed the act because it is my goal to be able to protect all human rights violations that have been including senatoror booker's bil with regards to race discrimination and forced arbitration and any other protected class. after my experience and what i had to go through and mr. schwartz, nobody would have ever known about my story if i had been forced into arbitration.

nobody. and we arguably wouldn't be in the me to movement if that hadn't. that isn't a compelling story enough to understand what happens with the secrecy of forced arbitration, i don't know what is but it's time to do it for other people who are having their human rights violated at work and are being shoved into secrecy. >> thank you. >> senator blackburn. >> thank you, mr. chairman and to each of you for being here today and for this hearing. i am so pleased that you mentioned the ending forced arbitration of sexual assault and harassment. that is something senator joe legrand and i put a good deal of time into. it was a strong bipartisan effort, and it is something that was needed. i fully appreciate what it's

like to be a female in a man's world, and i had great experiences whether it was the southwestern company or people that i did contract work for. i know not everybody has that. so making certain when we are not going to be isolated and had the ability to tell her story and to achieve what they feel like is justice is something that is important and of course we just thank you for the work you did onse that bill and also the speak out act and the fact that those efforts have been invaluable. i do think though as i sit here and look at this issue i agree that there is a place and a role

and as he went through his questioningug with you all, i kw that it has been used as a beneficial tool to be certain that you don't get trapped in lengthy and costly litigation, so i am appreciative of that and i have to say as we look at very carefully at this, i am not in favorfa of expanding this prohibition on arbitration beyond the unique context that we found with the sexual assault and harassment. so while i'm glad that we prohibited the first arbitration agreements in those limited circumstances, i think we have to be very careful and we look at something that would expand

these prohibitions. and i am so pleased that we've had the opportunity to hear from you all and to have this discussion today. i agree with you that education when it comes to sexual harassment and education to employees on the prohibition and opportunity that they have for that self protection is something that's important. so thank you for being here. >> thank you, senator. >> thank you for having the hearing. after the supreme court's decisions that pretty much said arbitration clauses are okay and the arbitration act would be,

would have basically the force of law whichar it was, but i wod like to ask is that how your name iss pronounced? >> yes it is. is it to counsel with your clients to have arbitration clauses in the employment contracts to cover just about every dispute that could arise? >> i think so. i tell my students about. that you should make sure you've put in the first arbitration clause and that is a statement against interest but i do believe that at this point the biggest way for corporations to immunize themselves from all legal liability. >> and this is why we find ourselves describing certain kinds of complaints and allegations that should be treatedll differently and not he forced arbitration applicable to

them which i think is maybe not quite the way to go because in the case of sexual assault, these are instances where it is difficult as we have heard from ms. carson and thank you for your advocacy and leadership to bring to light and how difficult it is for people who experience sexual harassment to come forward and thereal are many otr instances where it is very difficult for people to come forth to launch their complaints. are there other instances that we think they make it very difficult for complainants to either come forward for example in the instance of hate crimes within the workplace? if there's forced arbitration it

could be retaliation. there are various things that could happen. i lead an effort to pass the hate crimes act realizing they are difficult to be reported. so if anyone wants to weigh in on other examples of behaviors where forced arbitration shouldn't be applied. >> i will, senator. thank you. i think it boils down to the fact that people don't have the right to decide for themselves what's best for them. when you have forced arbitration, the decision has been made for you and the word is forced. if it is so great why is it forced upon you? every study shows the majority when they are explained, when they understand what arbitration is, they disagree with it because they want to be able to make the choice for themselves. whether or not they choose to

seek accountability or not they at least want to have that choice. >> who selects, or the chair of the panel who makes those decisions? >> the company does. the company writes the rules in a way that is most beneficial to them, which is what we should expect. >> what if they get to select their own arbitrators and would that make the process fair? >> i don't think it would because companies like the american association for arbitration featured the

platforms they know who the right arbitrators are so the power and balance continues if we have a system where there is choice. i want to give you one example. an nfl coach tried to bring arbitration along with a number of other coaches who were fired alleging race discrimination. and not surprising, the nfl

arbitration clause says roger goodell, the commissioner of the nfl. how could he be unbiased and essentially what we are seeing across the board. i think you did revisit it when you amended the statute to add 100-year-old statute can withstand some tinkering so i congratulate you for that.

essentially amendments that it does not apply the first arbitration for workers and small businesses. >> we've been picking different parts of behavior so it's time statute.t the >> i'm so grateful for the panel into the conversation that has been had today. i've always had this reverence for the american justice system and its ideals and its values and the principles we put forth when we travel the world and see how the rights and protections believed in and the simple idea that justice should be a place where it's balanced and what a lot of my career has been about in a low income black and brown

communities seeing unfortunately the reality is better justice in america if you are rich and guilty van if you are poor and innocent. then comes the area of employment law and seeing how the power of corporations has grown so dramatically. advocating and fighting for things that would protect the corporate power. it's been extraordinary. the work done has been two years ending the first arbitration and sexual assault has transformed

the culture of the work. what might be justice for one person in the discrimination suit affects millions of people in terms of what is a healthy culture and all of the naysayers who say that this is going to result in the clogging of courts and dragging out the disputes will find it cheaper to create cultures that are nourishing and nurturing not just to their bottom line but the employees

and correcting the cultures and allowingki them to continue ando this to me has been exciting to see this change. the fact that you've said basically you are not going to stop until we achieve the same rights for workers who face discrimination based on race, age, disability, gender and sexual orientation in other words forget all these lines it's just justice, a matter of having justice. the examples of race discrimination that are so similar to the stories of other areas are stunning to me. the stories that i heard for example havete been shocking and everybody that believes in the

basic virtues and basic human decency. to have this change and to be in the trenches working to make sure it's affecting all workers. >> thank you. i believe i don't believe it was to add adjudicate the human rights violation. it was for small business disputes if i knocked over my neighbor's fence and we are talking about 300 bucks, let's go to arbitration. but not when somebody is racially discriminated against or assaulted at work or let it go like joann because she to be seasoned. you brought up a really interesting point i want to echo which is part of my hope in passing such landmark legislation that it would change

the culture as well and you know why that happens? because the power pendulum is like this with forced l arbitration. this person knows now and so does this person that you can't be forced into silence with forced arbitration. the behavior may also stop. this is the most gratifying part of thehe experiences knowing we might start to change culture as well as changing walls. changing culture in the most hyper political time is more difficult than passing bipartisan legislation.

if there are hundreds of thousands of americans still dealing with this and for us as a senate to parse out but i was hoping you could end for a second and say what would it have meant to you to have the choiceo to decide. >> first i think having worked as long as i did in a particular field, you develop -- >> could you make sure your microphone is turned on and in front of you. >> if you work in a field as long as i have in one field you develop a trust in your corporation and organization that they will do right by you. you've given your whole life to

them and when you find out that is not the case, i think i want the right to say to older americans you've got to make sure they are not going to do the same thing to you that they have done to me of not allowing me to speak because i think that employees everywhere that deserve the right to vote and make their own, to have their own representative or to give their voice can't do it because we are old, older and we can't do it ourselves. we need to have the help.

that's when they offer arbitration and it's a means not to change anything better to hide everything. if there's fairness on behalf of the corporation as i've been faithful to them, why would they do that to me, they wouldn't. it would be more even. i can understand that they might think it's more efficient to have somebody they can pay $25 an hour but particularly in fields like nursing you get what you pay for. the older person often has the wisdom, knowledge a younger

person can't possibly have yet. it takes years of experience to develop that. it reflects to their safety and their health, so we affect a lot of things. i don't have a voice to say this isn't fair and other people seem to know it isn't fair. they taught me to work hard and taught me everything about america was wonderful. my mother was an immigrant from russia poland. so to say now the justice system can tie our hands behind our back and we are not allowed to speak and they take our voice

away that isn't america anymore and i want to see that come back and if we can start as they started, i think they've given their lives for this country, for their community, further corporation and they deserve to have an even playing field back. thank you, mr. chairman. i don't know if i've testified before this committee. but i've talked to you about supporting my legislation into the house judiciary. >> i believe i did it twice, in person before covid. >> i thought you came before the senate judiciary. >> i've been waiting and

watching. >> i appreciate your tenacity but it makes a point you're still trying to accomplish what you set out to accomplish and there hasn't been any progress, so i'm wondering for people making employment decisions you need to know whether or not a firm requires the arbitration or not you don't have the right to the certain employment contract because the employer gets to set the terms. that is the reality of it. but there've been abuses particularly ive think in age ad sexual misconduct. how do we not just have this hearing six years ago and fall short of arbitration which i think is a useful tool.

how can we really of some of the pressure to right the wrongs that have occurred under this system and fall short of what many colleagues on the other side of the aisle want to achieve? with gag orders the state courts led by the chairman of the committee have ruled unconscionable and i think that is important. people should be able to discuss the results of their arbitration if they disagree with them as a matter of basic free speech in

our country. there are certain isolated areas and i suggest to the chair and ranking member the committee consider regulatory matters to address the specific areas where there is a problem which has been so carefully advocated by ms. carlson. i hate to use the phrase throw the baby out with the bathwater but i think it's important in this committee to try to contradict yourself at least once. we don't justt have the same hearing over and over again. consider regulation of these agreements because for the most part, they are helpful. they are cheaper, faster and i

know the litigation systems. it's the only alternative and it isn't cruel but the committee by looking carefully. i believe passed at this prologue unless there is a seachange you're always going to have to have a bipartisan agreement on this and that's why things are falling short. count me in as one of the people who actually want to get to what i think is a fair treatment. i think there are a lot of merits and to throw them out would be throwing the baby out with the bathwater. but the one thing i can say about the committee leadership

they bring forth very sympathetic cases and i get that. how anyone could say that that is an acceptable outcome i guess somebody could, i couldn't but i don't like, i've got few skills. one of them is a good memory and all we are doing is covering ground we've covered before. thank you for your preparation. i would like to find a way we make progress so that ms. carlson can do other things then spend time of year unless s she wants to report on it again. we will reach out to you but i do want to be a part of a group that makes progress that provides some answer for the egregious examples that have been exhibited here but not just a change in the way businesses use arbitration far more often then situations are being

discussed today. >> i said earlier lots of times its client, money but i'm not testifying for any client, not being paid, i'm at a stage in life where i would like to be a little bit more helpful. >> we will tap in on your expertise as long as you don't bill me. >> thank you, senator tillis. >> thank you mr. chair and thank you to all the witnesses here. there's been so much here today that has grabbed both my imagination and a source of incredible frustration but also tapped into a number of experiences i've had across my career. it's such a pleasure to hear you use the phrase collective action as someone who spent 20 years in the labor movement, another tool

that we have to give a voice to workers is that of unions and in this space there also is an arbitration process. it's in the arbitration process that gives voice and to the point that you made it equalizes the voices and power of employers and employees through their chosen organization of representatives or union. every experience of union arbitration that i've had there's t a jointly chosen pane, not an association that gave a fit of names to consider every instance that a worker's workersgrievance or case went to arbitration, the union and the employer had to agree on who was

going to be the panel of arbitrators. everyone had the ability to let eliminate a name from that mutually chosen list so i do believe that there is a framework here in terms of how we can utilize b and get the bet benefits from arbitration and we have to look to some of the models we've created. i'm not here to say that it is the only answer, but we do have models of fairness that we can call upon. it struck me in your testimony the reference to tesla workers who have been and a number of my colleagues have been working to support their unionization and choicer that they are making to choose to form a union and we

all know that there are certain categories that today the labor laws don't allow to unionize, so as i was listening and reading the testimony, one of the things i was curious about has been referenced here you have been relentless and commanded that you arear not going to quit. there's the category of workers that have available to them the tool of unionization and there's the category of workers who only by antiquated walls are traditionally excluded. what are some of the recommended evolved tools, content burglary tools that you would suggest that this committee andd the senate take up to advance the protection of human rights that you are so dedicated to?

>> my strategy t has been to tae a bite of the apple for each protected class because as the senator mentioned it has to be bipartisan and it should be because we are talking about human rights violations so that has been a strategy and it's why i'm moving forward with the protecting older americans act and i support senator booker's bill as well. but for me, giving workers choice not being forced into arbitration is what this is all about. you suddenly give them the option of being able to have a voice and trust me a lot of them will not choose to speak it because ii can tell you from personal experience it isn't fun to come forward and as the professor has also spoken about this morning, it is hard to prove your case and so most of these cases are extremely relevant and sound if they get

to court so that disproves the notion that we were going to have a slurry of cases when the act -- i need to get the acronym from you. what do you call it? that's even harder. anyway that's why i keep coming back to if you give workers choice and their own liberty to make their own decisions, that to me is the fairest way to do this and if you want to make arbitration an option which it still is under the law then they it but i wouldn't recommend it. >> one last question if i could, you talked about in your testimony about how forest arbitration exacerbates economic inequality in a country. another gift of the labor movement and unionization is

greater pay equity but it seems that in this space of forest arbitration, we continue to see those at least according to the data that you've made reference to greater economic inequality in this space. so i'm curious, i wanted to ask a question out of curiosity is there any further information or greater detail you can reveal about what the data shows relative to forest arbitration particularly on women workers and workers of color to try to pair the conversation response that was given? >> of course, and i appreciate the question. more data is always better so we should do more studies but the studies show women and minorities tend to work in fields where forest arbitration

is employed far more often than other fields so that's one good a bit of evidence. we also take a sort of historical vieww and there've been studies that take a historic view and the truth is women and minorities are the least likely to bring claims in court even before forest arbitration like the fear of retaliation, the intimidation that comes with being the person who's bringing the claim have often silenced women and minorities. and i think we just have to be aware that poor people in this country, they pulled into the corners and all sorts of ways and those are sharp corners and they don't necessarily know who to go to and how to get representation, how to get advice and so many times they can't afford to quit their job and find something else and even if they did, everybody's doing

it. everybody's forcing you into arbitration so i do think and i wrote this in my testimony, for those of us that are really concerned about the rising levels of inequality, forest arbitration is just one additional tool that enables that to continue to grow. >> thank you mr. chair. >> thank you, senator. i listened to the defense forest arbitration and what i heard, i wrote down the words, it's easier, it's cheaper, faster, just as fair as court. if that is all true, why is it forest?if if the employee of the person thinks it is such a good idea why not just make it an option? basically we are not going to take away your constitutional rights under the seventh amendment, it's your right, so the argument about arbitration

tebeing a much better outcome maybe in some cases, i don't know but by and large it should bet made by the worker by that citizen. i think that is so fundamental andon basic. thanks for coming back into official capacity and for telling your story. you're going to inspire us to have another hearing may be even federal law. maybe you will be able to point to something that changed america because you took the time to speak up and stand up. you might get written questions from members. if you do please return them as quickly as you can. the meeting of the committee stands adjourned. >> thank youou mr. chair.

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