Passengers and their survivors won a $265 million court settlement with Amtrak after a 2015 derailment in Philadelphia killed eight people and injured hundreds more.
But if such a crash happened today, the victims would not be able to sue. That’s because of a clause the passenger rail line quietly added to its ticket purchases in January, which forces disputes into arbitration with no right to go before a judge or jury.
The change is bringing objections from consumer advocates, who note that it covers scenarios ranging from ordinary ticketing complaints up to wrongful death, and even includes minors who had the tickets purchased for them. And it could soon get Congress’ attention.
The language has flown under the radar so far, but may burst into view when the House Transportation Committee holds a hearing on Amtrak next week.
“It is one of the most anti-consumer and passenger clauses I’ve ever seen,” said Julia Duncan, senior director for government affairs at the American Association for Justice, which represents trial lawyers.
Duncan said Amtrak’s arbitration clause is unusually broad and detailed, noting that the policy describes a wide array of possible incidents that would have to go to arbitration. “Most forced arbitration clauses do not go into much detail about what they cover,” she said.
Airlines are prohibited by law from using mandatory arbitration, but Duncan said it’s prevalent across other transportation sectors including bus travel, rideshare and cruise lines.
Amtrak spokesperson Kimberly Woods said the clause was added to resolve customer claims more efficiently. She said it won’t affect most customer complaints, which are settled directly with the railroad.
The change has already caught the attention of at least one member of Congress: Sen. Richard Blumenthal (D-Conn.), who said his office is looking into the issue.
“There’s no reason why consumer complaints about Amtrak should involve mandatory arbitration. Consumers might wish to have arbitration … but they shouldn’t be forced to,” Blumenthal said. He sits on the Senate Commerce Committee, which oversees Amtrak.
Consumer advocates say forced arbitration in general hurts customers and takes away their rights.
Consumers and workers in all types of disputes fare “terribly on the whole in the forced arbitration system, because it doesn’t have any of the protections that having access to public accountability through a judge or jury process would,” Duncan said. It can also be harder for them to navigate than the court system, shields information from public disclosure, and often leads to worse monetary outcomes, she said.
David C. Cook, a lawyer who represented the plaintiffs in the Philadelphia settlement, said the Amtrak language goes “far beyond a customary contract where there is negotiation.”
Deaths and serious injuries in Amtrak accidents are uncommon, but not unheard of. The Philadelphia crash — in which the train’s engineer pushed its speed to 106 mph on a curve rated for 50 mph — was the deadliest in decades, but not the only recent example. In February 2018, 116 passengers were injured in a South Carolina collision between an Amtrak train and a CSX freight train. A 2017 derailment in Washington state, in which a speeding Amtrak train careened off a bridge and onto a highway, killed three passengers and injured dozens of others.
“The question of whether or not cases of catastrophic injury or death belong in arbitration is a really important policy question,” said Duncan.
But Amtrak’s policy also discourages passengers from making formal complaints about small violations, argued Financial Times economic editor Brendan Greeley earlier this year, including “indignities and fees small enough that it wouldn’t be worth it for any single person to dispute alone.” And passengers checking the box on Amtrak’s ticketing website also agree not to band together to file a class action lawsuit, according to the language.
But passengers bothered by the arbitration clause can do little about it. According to the Rail Passengers Association, which says it expressed concern with Amtrak over the change, passengers could go to federal court and try to prove that federal law bars their particular claim from arbitration. But AAJ’s Duncan said victory in that kind of claim is rare. And the agreement says any challenge of the validity or enforceability would itself be settled by an arbitrator and not a court.
The only other alternative is for travelers to not ride Amtrak.
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