Arbitration clauses in business contracts deprive the
public of open trials
Justice for Sale, Part Three: The War on Consumer
Class Actions
By: Will Carless
Voice of San Diego
May 28, 2013
The article above got the following response from Stutz Artiano
Shinoff & Holtz attorney Omar Passons.
Omar Passons
May 28, 2013
I almost don't know where to begin. A 3-part series and you dedicate 3 sentences in
the final part of the series to the opposing view? Wow. $30.22 is enough to buy
food for almost a week, so it's nothing to shake a stick at. But the ATT Mobility case
is the paradigmatic example of why we need class action reform. You left out that
the Concepcions only had to fill out a 1-page form to have their issues heard. And
you left out that their MINIMUM recovery if they were right on their $30 claim as
$7500. And you left out that they had the option to pursue their $30 claim in small
claims court, where there are no lawyers and the judges are very relaxed with the
rules, if they didn't want arbitration. You also left out that class action cases can
very easily cost more than $100,000 before you even address whether anyone did
anything wrong. The "liability" portion of a class action doesn't even really get going
until a judge certifies a class. I get it, your a journalist, not a lawyer, but as I
mentioned previously there are plenty of lawyers around town who would give you a
more fair picture. Or, for that matter, call any in-house lawyer for any large
company. Or better, call the CFO. These cases are huge sources of awards for
attorneys, not so much for the little guy or woman you claim is being so wronged by
class waivers. Your article also fails to acknowledge that there is no requirement
that people actually have been wronged to bring a class action suit. They just need
a few plaintiffs to be willing to stand in as the named plaintiffs and then a very
expensive fishing expedition can begin to attempt to find people who are actually
wronged.
And put all this aside for a moment. The whole reason class actions exist is to
create a way to make people whole when there is no incentive for them to bring the
suit on their own. Here, where the barrier to getting your rights vindicated is a
one-page form and a telephone call, there is almost no fear of it not being worth
someone's time to file. In fact, with a recovery of more than 1000 times their actual
harm I'm surprised everyone who bought an AT&T phone didn't try to use their
more than generous dispute resolution procedure. I'm not even a particular
supporter of the system of arbitration, it is frequently patently unfair. But this
journalism isn't even an attempt to give people enough information to make an
informed decision about the topic.
Maura Larkins comment
May 28, 2013
Omar,
I found that I disagreed with a number of your statements. Here are those
statements with my responses:
"$30.22 is enough to buy food for almost a week, so it's nothing to shake a stick at."
[Maura Larkins' response: Most people, particularly the people to whom the $30.22
is most critical, do not have the time and/or skill to pursue these issues.]
But the ATT Mobility case is the paradigmatic example of why we need class action
reform.
["Paradigmatic"? Why didn't you just say it's a good example? And are you really
sure that there is only one paradigmatic example? I doubt that very much. I'm sure
many people consider other examples to be more significant in arbitration reform.]
You left out that the Concepcions only had to fill out a 1-page form to have their
issues heard.
[That's just the start, Omar. Then they have to deal with the big corporation for
heaven knows how long.]
And you left out that their MINIMUM recovery if they were right on their $30 claim
as $7500.
[Since when did arbitration decisions depend on who was "right"? Did you look at
the graphic in part 2 of this series? No matter how right the Concepcions might be,
they are almost certainly going to lose.]
And you left out that they had the option to pursue their $30 claim in small claims
court, where there are no lawyers and the judges are very relaxed with the rules, if
they didn't want arbitration.
[That would require serving a subpoena on a huge corporation (AT&T) after they
discover who is AT&T's agent for service. Then AT&T's lawyers would probably
contest everything, including whether service was proper. Then the Concepcions
would have to prepare documentation and arguments and go to court. And that still
wouldn't guarantee that the judge would side with the little guys against a big
corporation.]
You also left out that class action cases can very easily cost more than $100,000
before you even address whether anyone did anything wrong.
[That's why you need a big class of people, Omar. So that the payoff will be bigger
than the cost.]
The "liability" portion of a class action doesn't even really get going until a judge
certifies a class. I get it, your [sic] a journalist, not a lawyer, but as I mentioned
previously there are plenty of lawyers around town who would give you a more
fair picture.
[Don't be patronizing. I think Will got a very fair picture of the situation. And I think
there are plenty of lawyers around town who would be happy to give Will an unfair
picture.]
Or, for that matter, call any in-house lawyer for any large company. Or better, call
the CFO.
[We already know AT&T's position. It's in the case pleadings, and in the Supreme
Court decision. It's the OTHER side of the story that we need, and Will did a good
job on that.]
These cases are huge sources of awards for attorneys, not so much for the little
guy or woman you claim is being so wronged by class waivers.
[But the little guy usually can't represent himself effectively. That's why we need
lawyers who will represent consumers and make sure that the powerful respect the
legal rights of the powerless. Plaintiff lawyers wouldn't have to work so many hours
and collect so much pay if there weren't lawyers on the other side being paid big
bucks to come up with one reason after another to slow down the case.]
Your article also fails to acknowledge that there is no requirement that people
actually have been wronged to bring a class action suit. They just need a few
plaintiffs to be willing to stand in as the named plaintiffs and then a very expensive
fishing expedition can begin to attempt to find people who are actually wronged.
[We all know what planet we're on, Omar. Yes, people make false claims all the
time. Big corporations are among the worst offenders, making claims that they are
owed money when they are not owed anything at all. And surely you believe that it
is a good thing to find people who have been wronged.]
Here, where the barrier to getting your rights vindicated is a one-page form and a
telephone call, there is almost no fear of it not being worth someone's time to
file...In fact, with a recovery of more than 1000 times their actual harm I'm
surprised everyone who bought an AT&T phone didn't try to use their more
than generous dispute resolution procedure.
[You know very well that you have to do a lot more than fill out one page and make
a phone call to get your rights vindicated. And you must have a lot of time on your
hands, Omar. Most people go to bed every night wishing they had had time to do
things plenty more important than trying to get $30.22 back from AT&T. If this
surprises you, Omar, then you must walk around in a continual state of shock as
you observe the incomprehensible behavior of the ordinary people you meet. But I
get the feeling that you rarely find the actions of corporations to be anything other
than completely reasonable.]
Deposition of Ray
Artiano by the author
of this website (with
Dan Shinoff acting as
Artiano's counsel)
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Omar T. Passons
Stutz Artiano Shinoff & Holtz
website
downloaded June 2, 2013
Special Counsel
Construction, Land Use/Real
Estate, General Tort Litigation
Omar Passons focuses on
construction law, land use and
general tort litigation with an
emphasis on public agency
related matters. Prior to joining
Stutz Artiano, Mr. Passons
worked as a Deputy Attorney for
the State of California,
Department of Transportation
(CalTrans), where his practice
ranged from heavy construction
highway projects to inverse
condemnation and successfully
defending against premises
liability claims. Mr. Passons has
also represented clients before
various municipal bodies across
San Diego County. He received
his law degree from George
Mason University School of Law
(J.D. 2005).
Prior to practicing law, Mr.
Passons worked as a Health
Policy Analyst with the United
States Department of Health and
Human Services in Washington,
D.C., where he evaluated the
success of federal programs
under the Government
Performance and Results Act. He
received his Master’s Degree in
Public Health from the University
of Arizona in 2000.
Mr. Passons is a member of the
San Diego County Bar
Association’s
Construction and Land Use
Law sections and is a member
of the Enright Inn of Court. He
serves on the Homeless Women’
s Services Advisory Committee,
the San Diego Unified School
District Advisory Committee
on Utilization of Excess
School Property and was
formerly on the Board of the
Directors of the Southeastern
Development Corporation
(SEDC).
He is actively involved in the
community of North Park in San
Diego, where he is a member of
the Board of Directors of the
North Park Community
Association and the Greater
North Park Planning Committee.
Mr. Passons interest and
commitment to civic involvement
stretches over two decades,
when as a participant in
American Legion’s Boys’ Nation
program (1992) he learned
about our federal system of
government firsthand in the
nation’s capital. Mr. Passons has
been a passionate mentor and
advocate for youth in three
states throughout his
professional career.
Honors/Affiliations
Member, Enright Inn of Court
Member, San Diego County Bar
Association
President-Elect, Earl B Gilliam
Bar Association
Member, San Diego Lawyers Club
Member, Greater San Diego
Business Association
Board of Directors - Workforce
Investment Board, San Diego
Workforce Partnership
Member, San Diego La Raza
Lawyers Association
Civic Involvement
Member, SDUSD Advisory
Committee on Utilization of
Excess School Property
Board of Directors, North Park
Community Association
Member, Greater North Park
Planning Committee
Women’s Homeless Advisory
Committee
Attorney Omar Passons
Guards detail sexual
harassing prison
from hell
Female officers say
inmates did unspeakable
acts of sex harassment,
and brass ignored it.
Irin Carmon
Salon.com
Jun 7, 2013
White v. Federal
Correctional Complex in
Coleman, Fla
... according to a rare
class-action lawsuit
filed by White and
over 200 of her
fellow correctional
officers, management
[at the Federal
Correctional Complex in
Coleman, Fla] wasn’t
particularly interested in
putting a stop to it.
When female correctional
officers would file complaints
about, for example, an
inmate masturbating in front
of them or making rape
threats, the complaints
would either get downgraded
to a lesser charge or
actually shredded. In at least
one case, a captain told a
woman she had filed too
many complaints.
...Class-action sexual
harassment lawsuits are
extremely unusual. It’s hard
to get any kind of class-
action lawsuit certified in the
current employer-friendly
business climate —
particularly in the wake of
the Supreme Court’s
decision that female Wal-
Mart employees suing for
sex discrimination didn’t
qualify as a class — and
sexual harassment lawsuits
in particular require showing
both widespread behavior
and widespread harm. But
the situation at Coleman
was so systemically
egregious that an
administrative judge
ruled in April that the
Coleman case could go
forward as a class. Even
more surprisingly, the
Department of Justice,
which operates the
federal Bureau of
Prisons, agreed to accept
the class certification
without appealing it...
San Diego Magazine's 50
People to Watch in 2012
Omar Passons
Manning & Kass
As community activism goes, few
other spots have boomed like
North Park: art walks, new
restaurants, squabbles over too
many bars, urban cyclists darting
around every corner, new families
buying old houses, and issues
with the local public school. As a
board member of the North Park
Neighborhood Association
Passons is on the inside track in
the colorful, burgeoning nabe. As
an attorney, he's focused on civil
litigation in public works. And
though he supports Todd Gloria
and Nathan Fletcher in 2012, his
recent tweets from public, civic
meetings, have us thinking he has
a future in local politics.
His Twitter bio says it all: Attorney,
foodie, craft-beer fan, and
committed to better, safer,
friendlier neighborhoods.
Manning & Kass, Ellrod,
Ramirez, Trester LLP
Manning & Kass, Ellrod, Ramirez,
Trester LLP is an innovative, A/V-
rated law firm. Founded in 1994,
the firm has grown to more than
140+ attorneys in five cities and
two states. The firm’s growth
parallels our philosophy of a
dynamic, hard working aggressive
and diverse firm that operates as
a tight team. Focusing on case
area specialization and a team
approach, Manning & Kass
delivers the highest level of legal
service in a timely and cost-
effective manner. Regardless of
size, each client is assigned a
carefully chosen team of
attorneys who are dedicated to
their needs and best suited for
the case. Manning & Kass
believes that clients should deal
with a small group of attorneys
with big firm resources behind
them, rather than spreading their
cases to the first available
attorney.
Manning & Kass, Ellrod, Ramirez,
Trester LLP is a member of The
Harmonie Group, an affiliation of
independent law firms throughout
the United States, Mexico and the
UK, and Canada (through
Canadian Litigation Counsel.
Super Lawyers
Partners Scott Davenport, Tony
Ellrod, Jim Gibbons, Steve
Manning, Missy O'Linn, Gene
Ramirez, Steve Renick, Fred
Trester, Darin Wessel,
and Dave Wilson were recently
named "Southern California Super
Lawyers" for 2010. Only five
percent of lawyers in Southern
California are recognized
each year.
The relevance of community involvement for legal
professionals
by Rebecca Smith,
Director of Community Engagement for
The Eastridge Group of Staffing Companies
San Diego Source (Daily Transcript)
November 25, 2013
Employee engagement and professional development are closely linked to
community involvement. Omar Passons definitely lives that reality. Besides his work
as an attorney with Stutz Artiano Shinoff & Holtz in San Diego, Passons serves on
various boards throughout the region. He is also known for founding the “Craft
Brew Debates,” a speaker series focused on important civic issues.
Why do you choose to serve the community through these organizations?
This decision varies based on the organization. I feel strongly that my being in a
position to help is reason to do so – because many people can't help. I also believe
these organizations are useful for each other, so I can serve as a bridge between
them. For example, training efforts of the San Diego Workforce Partnership and
employment needs of homeless women at Rachel's Women's Center can both be
served, as I can connect the two organizations. As an attorney, I bring a specific
perspective and skillset to this work, because my career requires a certain type of
analysis. As a member of the San Diego community, I can help more people enjoy
the benefits our region has to offer.
How and when did you get started with board service?
I started in my immediate neighborhood as a way to help improve quality of life
issues and to use my skills as a land use and construction attorney for developers
and public entities to shape land use decisions at the local level.
How do you balance these commitments with your “day job?”
My firm has been very committed to the San Diego community for 30 years, and
our attorneys embrace the ideals my service represents.
Also, I don't sleep much.
Omar Passons is an attorney with Stutz Artiano Shinoff & Holtz and serves on
various boards throughout the region. Courtesy photo
What advice would you give to other legal professionals who want to get more
involved in the community?
Choose something you enjoy or care about to get involved in and it will be easier to
stay with it. Business opportunities come regardless of what area you choose, as
people see that you are honest, skilled and dependable.
Omar Passons was recently named the President of the Earl B. Gilliam Bar
Association of San Diego County. He serves on the Board of Directors for the
United Way of San Diego County, the North Park Community Association and the
Lambda Archives of San Diego. He is a member of the San Diego Workforce
Investment Board. Passons is on the Catholic Charities Homeless Women's
Services Advisory Committee and the Leadership Council of San Diego Foundation
Center for Civic Engagement.
Maura Larkins' note: Clearly,
Mr. Passons' community
involvement has nothing at
all to do with
self-aggrandizement,
although I must admit that is
a very large portrait of Mr.
Passons gazing imperiously
into the distance. What is he
seeing? Perhaps a world
that includes few legal
protections for the little guy.
Wait. Isn't that the world we
already live in? Perhaps he
is seeing a world with even
fewer legal protections for
the underdog.