As the Thanksgiving travel season gets underway, those using Amtrak may want to add “read the fine print” to their to-do list.
That’s because the national passenger rail line in January made changes to the arbitration clause located in its terms and conditions, effectively barring customers from filing lawsuits against it and forcing disputes into arbitration.
Amtrak’s decision went largely unnoticed until a Nov. 8 Politico report brought the change to light. Days later, the U.S. House of Representatives’ Transportation Committee Subcommittee on Railroads, Pipelines and Hazardous Materials held a hearing.
In October 2016, Amtrak reached a $265 million settlement with passengers and family members who filed lawsuits after a 2015 derailment in Philadelphia that killed eight and injured more than 200 others. A Washington state federal jury in September awarded $17 million to victims injured in a 2017 Amtrak derailment in Tacoma, Wash.
Some local plaintiff’s attorneys with experience in rail accidents say Amtrak’s move violates the Seventh Amendment, but the best way to resolve the issue may be through legislation.
Michael K. Demetrio, a partner at Corboy & Demetrio, does not believe the clause could survive a legal challenge.
He said there were several statements in the agreement that gave him great pause, including its ability to take rights away from minors and the rights of an estate as well as disregarding the statute that specifically allows plaintiffs to file disputes in cases against Amtrak in federal court.
“I would never at face value look at this and say, ‘Gee, OK I’ll go along with the arbitration,’” he said.
Robert A. Clifford, founder and senior partner of Clifford Law Offices, said one of the most distressing parts about this is the public, especially those who frequent Amtrak, never got a say on the changes.
“Here we have another instance of a national transportation company in the dark of night and out of the limelight engaging in a practice that undermines the rights of the traveling public,” Clifford said, whose office represented the plaintiffs who received the $17 million award.
Antonio M. Romanucci, president of the Illinois Trial Lawyers Association and a member of the American Association for Justice, said he has never seen terms so detailed, onerous and clearly violative of someone’s rights.
Romanucci is also concerned the changes could make the transportation company less accountable for safety “if they know they are not going to be liable for real damages if they cause harm.”
Romanucci said action will likely have to come from Congress, pointing to the Forced Arbitration Injustice Repeal Act as a possible solution — which the House of Representatives passed Sept. 20.
The FAIR Act would make a predispute arbitration agreement invalid or unenforceable if it involves an employment, consumer, antitrust or civil rights dispute.
The bill, which still needs to pass the Senate, has been referred to the Senate Judiciary Committee.
U.S. Rep. Daniel Lipinski, D-Ill., who chairs the railroads, pipelines and hazardous materials subcommittee, said in an emailed statement that he is exploring avenues to force Amtrak to remove the clause from its terms of service.
“Amtrak’s forced arbitration policy is very concerning to me because of the limits it places on the legal rights of passengers,” Lipinski said. “Based on our preliminary review this may need to be addressed legislatively. The safety of America’s rail passengers will always be my top priority. If Amtrak or any other rail service puts their passengers in danger, they need to be held accountable.”
Bruce R. Pfaff, a partner at Pfaff, Gill & Ports Ltd., said in his experience the arbitration system is “horribly unfair, expensive and slow.”
For example, Pfaff has represented clients involved in crashes with underinsured motorists and the arbitration process has gone on for nearly three years. Had the cases been heard by a judge, his clients would have saved time and money.
“It’s not like you can go to court and say, ‘Make these arbitrators hear the case more quickly,’” he said.