Jamie Leigh Jones, Tracy Barker, & “Halliburton” IV

Bizarro-Overlawyered, the Huffington Post, Alternet, and others on the Left continue to bang this drum with completely false accounts of the law and facts in their campaign to deprive consumers of the choice of mandatory arbitration: “The notion that sexual assault cannot be tried as a criminal matter but has to be arbitrated in secret arbitration and treated as a labor dispute is simply beyond belief.”

Beyond belief indeed. Let’s count the lies of commission and omission:

  • Whether a private civil claim against Halliburton or KBR is required to be arbitrated has nothing to do with whether the Department of Justice decides to criminally prosecute for sexual assault. The DOJ can try this as a criminal matter, but have chosen not to. That may be a scandal on its own, but not one having to do with arbitration clauses.
  • The arbitration clause does not prohibit Barker from bringing civil suit against her alleged rapist (and, indeed, her case continues in the proper federal district court venue).
  • The arbitration clause does not require the arbitration to be “secret.” (By the way, in December, I wrote to Jamie Leigh Jones’s attorney, Todd Kelly, and offered to publicize his arbitration briefs documenting Jones’s original summary judgment claims before he tried a second bite at the apple in court. Still no response over six weeks later.) The arbitration is only as secret as the participants want it to be.
  • And, oh, by the way, for all the claims that one can’t get justice in arbitration? Today the New York Times reports that two women who claimed sexual assault, Mary Beth Kineston and Pamela Jones, won their arbitration cases against KBR. If they’d brought civil suits, they’d still be litigating. Yet somehow, not once in all the months of controversy on the issue did any news reporter mention this non-trivial fact as the slurs against arbitration were repeated over and over.

Let’s not confuse issues. Sexual assault and rape are criminal acts, and should be prosecuted criminally. To the extent KBR was responsible for the very plausible allegations of creating an environment of sexual harassment by its employees and failing to respond to hostile environment claims, they should be civilly liable in the forum contractually agreed to. But either of these issues has nothing to do with the third issue, the availability of mandatory arbitration as an option in contracts.

Earlier: Jamie Leigh Jones (Dec. 12-16), Jamie Leigh Jones (Dec. 20), Jamie Leigh Jones (Dec. 21); see also Overlawyered’s arbitration section.


  • Deprive consumers of a right to mandatory arbitration? Aren’t you being misleading here? There’s nothing stopping corporations offering both arbitration and a court of law to their customers. This isn’t at threat, and neither is arbitration.

    What is the issue is forcing people into arbitrations, especially arbitrations with larger corporations, such as KBR. People should be allowed to choose. Or don’t you agree that people have the right to choose?

    You’re also misleading in your statement about Barker bringing suit against the person who raped her. In this specific instance, the issue has to do with her right to bring a civil suit in a court of law against KBR.

    As for privacy of the proceedings, if this case had happened in a court of law, I could easily find all the documentation associated with it, without having to ask anyone’s permission. I notice that you didn’t ask KBR to publish their documents associated with this arbitration. Why not ask KBR for their copies of what little documentation there is?

    As for whether the women would still be in litigation in the court system, perhaps, perhaps not. A court system does have more rigorous proceedings, which do take more time. But that’s because the courts are required to ensure that all points of law are met, and all involved parties are given an equal opportunity to be heard.

    Justice takes time.

    As for the women “winning” these arbitration proceedings, you seem to think that winning is equivalent to getting a cash award. These women also wanted to be heard, to have their day in court. To hold KBR responsible, and ensure that what happened to them didn’t happen to other women.

    They may have won in arbitration, but did they really win? Was justice served? Unlikely.

    If arbitration is so fair, and so unbiased, and so cheap, why would we need to have mandatory arbitration clauses? Wouldn’t people voluntarily choose arbitration if it were the better option?

    Yet, these women fought arbitration, went to court to try to assert their Constitutional rights to a trial in front of a jury of their peers. Doesn’t strike me that “mandatory arbitration” is something consumers want.

  • […] those interested in an update on the Tracy Barker case, where litigation lobby activists falsely stated that an arbitration agreement prevented her […]