Dracca Inc.
Dracca: Problems with the arbitration clause
Despite Dracca's claims that the presence of an arbitration clause on page 5 of its 16-page contract with consumers makes all lawsuits null and void, recent case law suggests there is considerable room for dispute regarding this statement for its Spanish-speaking consumers and also all consumers that purchased the offending product. For example in a recent Florida Supreme Court Roberto Basulto, et al. v. Hialeah Automotive, etc., et al., the court found the arbitration clauses "contained in various agreements signed by the Spanish-speaking petitioners relating to their purchase of a Dodge Caravan from a car dealership were unenforceable. The Florida Supreme Court upheld the trial court's ruling that the arbitration clauses could not be enforced because they were conflicting and unconscionable" particularly given the low level of English literacy of the consumers (Oppenheimer 2014). Arbitration clauses must be consistent, contain all essential terms and above all be fair, the court ruled. The Supreme Court of New Jersey also "refused to enforce a lawyer-client arbitration provision because it failed to include sufficiently detailed warnings to the client" in Atalese v. U.S. Legal Services Group, L.P (Ciolino 2014).
The agreement constructed by Dracca met none of the above-cited standards in either of these states, suggesting that case law is trending towards protecting consumer rights against companies that attempt to use complex legal language...
The Spanish-speaking consumers will likely prevail if this goes to court. From Dracca's perspective, offering a financial settlement before the bad publicity a trial would no doubt generate would be wise. Also, from an ethical standpoint, given that real harms were done to the consumer, using the arbitration clause to escape this responsibility is morally as well as legally questionable. The harms done to the consumer were considerable and a trial might very well be the most appropriate forum to decide the case.
Dracca's approach overall to the litigation process is morally inexcusable. In another instance, when children were harmed by the product (Pack-n-Play clasps), rather than being forthright about the fact that tampering by an indignant employee was the reason for the issue, Dracca instead attempted to conceal this fact. When such unethical behavior is revealed, particularly by a company responsible for personal care and child products, no one will be willing to buy from the company again if there is a cover-up. Dracca also has a moral obligation to make good upon its obligation to ensure consumers remain safe and are not hurt by its products. Although Dracca did not order Sue Hennings to tamper with the clasps, it is still responsible for her actions as she was an employee of the company when this occurred, and working on company property. Even though her actions were personally-motivated, Dracca is still responsible for instituting safety procedures to…
