All posts by 37321609




When I was a boy in knickers, history was a story about events we saw around us, but there came a day when suddenly I saw that there was an unseen, unspoken, history of what was going on when we were not looking.

On that day, many decades ago, I was sitting in the dimly lit classroom of a parochial school when there was a knock on the door followed by the entry of the Principal, Sister Norbertine, a kind, dwarf-like German nun who had in tow a tall, lean youth, his head bent, looking straight ahead, walking in slow, hesitant steps, as if he was disabled. He seemed several years older than the rest of us. Sister Norbertine looked about and said, as if in explanation of his appearance, “This is Yuri Kirov, he’s from the Ukraine. He will be our guest for two days.” She directed him to the desk next to mine. I greeted him, hand extended. As he sat down, he looked not at but towards me, as if I were not there. He did not shake my hand.

At the end of the school day, Sister Norbertine signaled to me from the hallway and in a whisper asked me if “for the sake of Jesus” I would take care of Yuri who had suffered for Jesus in the Ukraine, she said. “What happened to him?” I asked. “I can’t say”, she said. “Is he from our neighborhood?” I asked. “He was sent by that Ukrainian Church on the West Side. Just do it for Jesus,” she said crankily, and glided away as nuns seem to do when they move.

I bent towards Yuri and told him that he would be eating with us tomorrow in the school’s cellar. He didn’t answer, and then suddenly said “Yes”, looking at me as if he knew something that I didn’t know.

The cellar was long and narrow, its walls covered with a paint that long ago had faded from white. Small electric bulbs gave off a weak light over a scarred, wooden table with wooden benches astride it. Fixed into the wall was a life size wooden crucifix from which hung the bleeding Christ. At lunch time the next day I took Yuri to the cellar. The class, in the main made up of Russian boys, thought Yuri weird, and so followed behind us.

When we were all settled, I turned to Yuri and told him that my father was Irish but my mother’s family were Ukrainian Cossacks. He stared at me and said nothing. I then asked him to tell us about himself, and that then we would eat the inevitable cabbage soup that the German nuns had prepared.

Yuri shot up, straight as a rod. With an imperious, almost laughably melodramatic look around the cellar, his hands at his waist, he began in a sing song voice, rapidly, as if a gun were being held against his head, to name his village, his farm’s location, its area, its age, every piece of machinery on it, its products, his horses, cows, pigs, chickens, and then his parents, brothers, sisters, uncles, aunts, cousins and then, without a sign, he stopped as if controlled by a turn table in the sky….and, looking at the ceiling directly above him, he yelled, not shouted, but yelled with all his might at the ceiling at the top of his voice.WHERE ARE THEY? DEAR AMERICAN COMRADES, WHERE ARE THEY! MILLIONS DEAD EVERYONE EVERY THING DEAD! AND IN YOUR PAPERS NOTHING! MILLIONS OF UKRAINIANS DEAD IN CRAZY STALIN LAND AND NOTHING IN YOUR TIMES PAPER! PEASANTS HANGING FROM TREES AT RAILROAD STATIONS, GRAVES IN CITY PARKS, TENS OF THOUSANDS OF PEASANT KIDS IN WAREHOUSES STARVING, LOCKED UP BY OGPU, PEOPLE HOLDING ON TO ONE ANOTHER’S BELTS FOR PIECES OF BREAD, LITTLE GIRL – LISTEN TO THIS – SHE WENT TO HEAD OF BREAD LINE AND WAS BEATEN TO DEATH BY THE BAKER!

Some boys began to laugh, nervously. One of them said, “Get this freak out of here! He’s nuts. Is this a joke?” But everyone was afraid to move. And then, Yuri strode over to the huge crucifix and leaning against it on his elbow, as if he was pretending, mockingly, to be a passing friend of the hanging Jesus, he whispered in Jesus’s ear, “Tell them what I saw in the barn, Jesus. Go ahead. Tell them about Aunt Sophie and what I saw. Tell them. Tell them! Go ahead, tell them how I was beaten after I ran yelling across the field and told my father what I saw and he ran to the barn and came back and grabbed me by my mouth and beat me to keep me quiet…..Tell them, Jesus, tell them I saw my aunt Sophie eating her dead baby! I SAW MY AUNT SOPHIE EATING HER DEAD BABY! I SAW MY AUNT SOPHIE EATING HER DEAD BABY! I SAW MY AUNT SOPIE EATING HER DEAD BABY!”

Comrades, my dear comrades, I’ll bet you didn’t see that in your glorious newspapers!

And with that, Yuri sat down, his seizure over. Reaching for his spoon he wiped it against his sleeve and ate his cabbage soup as if it was his last meal.

We didn’t know what to do. And so we watched him, without moving, without touching our soup, without uttering a word.

When he finished, he crossed himself, rose, and trudged up the cellar steps and disappeared in the peaceful quiet of the tenements of the Lower East Side. We never saw Yuri again.

A Ukrainian priest came to bless the cellar the next day. When we asked his reason as he cast holy water on the crucifix, tables, and walls, and particularly where Yuri had sat, he said nothing except that Stalin had starved several million Ukrainians to death because he wanted their farms. In a flash, I realized why the Ukrainian Church had sent Yuri to a school filled with Russian children.

In four months, Germany would invade Poland and an unending, catastrophic tsunami of human blood, eventually called World War II, would begin, having long been hiding in a little cove of unspoken history where no one had been looking.

Sister Philomena 1937


Sister Philomena

by Harry Reynolds

I stand at the window and watch the snow fall.

I am eight in the third grade in a Catholic school in a slum with crazy Sister Philomena and God all around in a dark land of prayer, guilt, daily Masses, a bleeding Christ crucified above the blackboard, the fear of having my face slapped or my hands beaten with a ruler held by Sister Philomena, souls screaming in Purgatory in a print over her head, Hell behind every closet door ready to break out with the Devil reaching for me as his daily catch. It is 1937.

I walk through life heedlessly innocent to a dangerous degree of the malice in the world. I am thankful for the privilege of sitting next to the hot belly of a coal stove in winter, protected from the murderous winter wind trying to get through the newspapers stuck under the hallway doors and in the tops and sides of the old windows through which I can see, across the park, the tiny lights in the surrounding snow shrouded tenements.

And then there’s Confession. I have to confess my sins come Saturday to an old priest sitting in a dark box, he on the other side of a grill, me on my sinful knees – God knowing it all, why do I have to tell this priest anything – he seems asleep, and has bad breath.

But if I don’t tell him everything, the confession is bad, I commit sacrilege by taking communion, and if I don’t take communion at least once a year, then it’s into Hell I go, for it’s a law that thing about communion once a year, break that and it’s the Devil inhaling my breath one night as I lay asleep in my bed in our cold water flat on the top floor of the tenement on Avenue B next to St Brigid’s Church across from Tompkins Square Park.

Yes, it seems that everything in life is connected and if I knew the spot where I could pull out the plug everything would disappear.

If, I thought, my mother dies and I don’t go to that school every day and smell Sister Philomena’s body bent over my shoulder, looking for ink spots on my paper that would make her grab it and rip it up, if my mother dies and I don’t have to go to Mass every morning except Saturday and watch the priest do the same thing over and over again, if I kept on sleeping in my bed and no one noticed that an ambulance came and took me to Bellevue Hospital where those parents of Mickey Rooney in the movies would take me secretly from Bellevue to Judy Garland in their snowbound house in Westchester far from Avenue B, then I could pull out that plug and whenever I wanted I could buy a thirty-five cent corned beef on club, with mustard, at Katz’s on Houston Street, and everything wouldn’t be connected anymore, especially Sister Philomena, who would be dead.

But wait. Should I have killed off Sister Philomena just because, balding and pot-bellied in age, I am watching the monotonous fall of snow on Bradley Road? Americans say they love realism (of course they are lying, they love realism as an entertainment) and if they love realism shouldn’t they receive dollops of it even if only in a local weekly newspaper? The truth is that on other occasions, particularly when speaking before bar association groups, I have wheeled out Sister Philomena as the third grade teacher who turned my life around by instilling in me the desire to excel as a student. Of course my motive to study was in part prideful but deep down in my heart it was to save me from an attack by this nun who represented the Pope. As a lawyer I have never drafted an agreement without her shadow enveiling the paper that had invisible ink spots made by my invisible dip pen. Whenever and wherever I stand in public I stand with the rigidity of a German officer in memory of Sister Philomena’s order of German nuns who punished slouchers with a slap from behind at the back of a head. Waste not, want not was tattooed across Sister Philomena’s forehead, and in self-defense across mine in larger letters. Every sheet of paper that we used had to be used on both sides so that in the fifth grade I took a test on the back of a sheet the front of which had the third-grade scrawl of Thomas, my younger, black sheep brother. We were fed lunch every school day by the Sisters for a dollar a week. Huge helpings of chopped meat, boiled potatoes, German cabbage, beans and so on, were laid across our plates with the two-fold warnings that as we ate we should remember that our parents were digging ditches or cleaning floors or unloading the tween decks of ships for that dollar a week and that there were millions – yes, millions – of children who looked just like us who were starving in India and China thinking of that very food on our plates. Sister Philomena said, as we ate, that these thoughts should make us humble, a thought that I kept in mind as I walked in winter to the cold water flat that Charles Dickens had thoughtfully provided for my arrival. Last, and the greatest gift from Sister Philomena, was the gift of memory, the gift instilled by the sheer fear of failing to recite each and every word, including punctuation, exactly as they were found in our old, dreary text books, smudged by the hands of other prisoners who had passed before Sister Philomena’s half-closed eyes as she looked down on us when one by one we recited from memory in fright the paragraphs assigned by her for memorization the prior night.

So, good and gentle folk, I’ll turn Sister Philomena in her wheel chair and walk towards stage left where I’ll keep her behind the curtain in a sepia toned memory cell, waiting for another snow fall.

The Sad, Unknowable, Case of Charles Rangel

   By Harry Reynolds                     


This is the sad, but unknowable, case of Charles Rangel found, so to speak, in the records of the New York State Office of Court Administration.


In April, 2014, Chinatown lawyer Stanley L. Chin, in his eighties,  was suspended from the practice of law by the Appellate Division, First Department, for failing to register biannually since 1982 when the registration system was established. The Judiciary Law states that “Noncompliance by an attorney with the provisions of this section and the rules promulgated hereunder shall constitute conduct prejudicial to the administration of justice and shall  be referred to the appropriate appellate division of the supreme court for disciplinary action.” 




Registration involves the payment of a $375 fee, proof of the completion of 24 continuing legal education credits, and, most significantly, the affirmation that the attorney  has observed during the prior two years regulations concerning the lawful keeping of records of moneys received from and paid out on behalf of one’s clients. In substance, every attorney affirms, among other things,  that he has not stolen money from his clients. Lie about that matter  and one faces a criminal  charge, not to mention the triggering of tax evasion prosecutions.




When in April I read the Court’s Chin opinion, I recalled that in 2007 Harlem Congressman Charles Rangel was the subject of an inquiry by me of Jonathan Lippman, Chief Administrative Judge of the Office of Court Administration, for I did not find Rangel in the list of registered attorneys.  The Office of Court Administration surprisingly answered,  among other things,  that Rangel had failed to register for twenty-five years, an Olympic leap by any measure.




The Office of Court Administration thereafter resolved the matter not by referring Rangel  to the Court, in accordance with the Judiciary Law, but  by registering him presumably after his giving what must have been to the innocent ear  an incredible  explanation, for his guilt was clear and, like Mr Chin, he had no legal defense. By keeping the Rangel matter within the Office of Court Administration, it effectively kept the matter secret for it was regarded administratively as its confidential work, beyond the reach of public inquiry. Indeed, the public would never learn of what the Office of Court Administration had done.


The Judiciary Law and the regulations of the Office of Court Administration compelled the sending of Rangel’s  serious  violation  to the Court.  The Office of Court Administration does not have any judicial powers. It does not have the power to forgive, waive, or determine the measure of discipline. That was the business of the Court to be performed publically. If that were so, why was the Rangel matter disposed of  in the Office of Court Administration?



If we assume that the Rangel matter had been referred to the Court, and that the Court would have treated Rangel as in last April it had treated Chin, Rangel would have been suspended with the prospect of further election remote. Instead, the Office of Court Administration’s disposition of Rangel not only left the public totally ignorant of the reasons for its determination, for the procedure it followed was one which draws a veil of administrative secrecy over why and who  had done it, but it left the public with a sense of wonder, so suspect does it seem when held up to the light. 


            What do you say to Mr Chin as he suffers suspension from the bar while  Congressman Rangel, guilty of the same conduct, fox trots up the street whistling?


            Is this not a case into which there should be at least  the feigning of an inquiry by an appropriate body?


Scarsdale’s Middle-finger in Cuomo’s Face?

Alphonso David
Office of the Governor
Dear Mr David:

In my letter to you of April 9, 2014, I quoted the report of Inspector Okpokpo that stated that on February 28, 2014 he had been informed by the management staff of the Village of Scarsdale that the condition of the roadway at issue involved only “some potholes along the roadway”. That description of the roadway was both untrue and consistent with the hostile attitude of the Village Manager towards the Labor Department, as shown by the events preceding February 28th.

On February 10th, 2014, Michael Paglialonga, Associate Attorney to Commissioner Rivera, before whom my complaint was pending, had advised Village Manager Gatta to “address the issues raised” by me concerning the unsafe condition of the library roadway. (See, Paglialonga letter of February 10th, 2014 attached. )

On February 19th, 2014, Village Manager Gatta gave Mr Paglialonga what is universally recognized as a middle-finger response to Mr Paglialonga and Commissioner Rivera. (See, attached, my two February 19th letters to Paglialonga and Gatta.)

Mr Gatta’s middle-finger of February 19th was still pointed at Mr Paglialonga 9 days later on February 28th when, in my opinion, the false description of the roadway was given to the Inspector.

Within the past week or so, to the astonishment of the Library employees and the residents of Scarsdale, Mr Gatta has been laying cement left and right on the length and width of the roadway whose condition he has concealed from the Labor Department at great risk to the men, women, and children of Scarsdale. When it came to disclosing the truth to Mr Paglialonga in answer to my charges about the unsafe roadway, Gatta withheld his hand and gave Mr Paglialonga his middle-finger.

The lesson is plain: You can game the Labor Law and the Penal Law by doing years later what you should have done years earlier. Rely on it: government employees will look at Gatta’s and the Mayor’s cover up with all of that cement and approvingly overlook the governmental immorality that lay underneath it, yet at a moral cost that involves all of us, for the lack of a firm governmental moral will that involves cement and roads will be there in all its negative strength when the issue is changing zoning to integrate our middle class brothers and sisters.

What has happened in Scarsdale should be criticized by Governor Cuomo’s administration in proof of his readiness to micro-manage local governments who take comfort in their belief that local governance is beyond his attention.

I thank you, Mr David, for the attention that you will give this matter.

Harry Reynolds

Lying Low in Scarsdale


                                              April 9, 2014

Alphonso David                                                                                                                                 State of New York                                                                                                                              Executive Chamber                                                                                                                         Albany, New York 12224

 Dear Mr David:

         In connection with your letter of March 28, 2014, I submit facts relevant to the Scarsdale Public Library matter in which you are inquiring on behalf of Governor Cuomo.

          The “Intervention Form” executed by Inspector Benachi Okpokpo recites that on February 28, 2014 he walked around “the roadway leading to the Village library and interviewed “both management staff at the Village Hall and library employees. The interviews revealed that there were some potholes along the roadway to the library which was (sic) brought to the attention of the management at which point a local contractor was hired to temporarily repair the potholes until the weather temperature was consistent enough to allow for proper repaving of the roadway. The contractor patched the potholes but subsequent snow falls and plowing of the road caused a few of the potholes to re-appear. At this time no violations found (sic).”

          Significantly, the Inspector’s report does not disclose what he saw when he walked “around the roadway”. His description of it depends wholly on Village management staff at the Village Hall and undescribed library employees. He was told that there were some potholes along the roadway which were temporarily patched by a contractor. The snow and plowing undid a few of the patched potholes.

          More significantly, the Village management staff apparently did not provide the inspector with a copy of my January 31, 2014 letter to the inspector’s office which states that in September, 2014 I had filed with the Village, pursuant to law, a notice of the dangerous and unsafe condition that notoriously had existed for years  in the rapidly deteriorating roadway, that in October  the Village Manager’s office misled me by letter to believe that the dangerous condition of the roadway had been corrected, and that thereafter, on December 3rd,  I visited the roadway and saw that nothing had been done to change its grossly unsafe condition of which I took about 33 photographs copies of which were given to the Scarsdale Inquirer. The road was as unsafe as it was on September 13th, the date of the notice of defect received by the Village. My offering of copies of those photographs to the Village Mayor was met by silence. Should you desire to see them I will send the set of photographs to you. If they prove anything, they prove that the inspector was led by the Village staff up the yellow brick road. If the inspector had read my complaint in the January 31st letter on file in his office, he would have seen that it alleged my possession of the 33 photographs showing the defective condition of the road. He could have compared the photographs to the roadway described by the Village staff. Further, I believe that the Village records may contain  claims  by two library employees of personal injuries sustained by them in their use of the library road. If that is so, the inspector might have learned of them had he inquired of the village management or indeed of the library employees.

          What was the condition of the library road on December 9 when the Village Manager emailed the Mayor concerning it? The Village management staff did not show that letter to the Inspector. In it the Village Manager stated to the Mayor, “We paved it about 10 years ago, but it is in bad shape now.”, surely a hands down entrant for the understatement of the century.

          Last, the Village management staff did not disclose to the Inspector the history of this wrestling match with a Village Board that consciously endangered its residents for a substantial period solely to withhold the payment of its cost until the adoption of the next budget. Thus my above letter of January 31, 2014 to the inspector’s office stated (Italics added):

“The Board’s and Village Manager’s subsequent answers to my written protest against the unsafe work condition of the librarians and their assistants is that these workers must await the Spring when a new budget may be adopted, this the answer from those who for years have knowingly failed to provide in their budgets for the correction of the scandalously   deteriorating condition of the roadway. However, the duty of the Village to make the road safe is an immediate one. The duty is absolute and unconditional. It is not discretionary. The Labor Law of New York knows of no delay when life or limbs are at stake.”

As that letter of January 31st painstakingly pointed out, there is an issue of criminality in the Board’s making of that choice. I enclose a copy of the January 31st letter.

          I thank Governor Cuomo for his interest in a matter small compared to his major concerns. The roadway is small, the library employees who supported my claims are not numerous, and the legal issues will not fix the public’s attention. Yet, Governor Cuomo has seen to it that an inquiry should be made into whether what occurred here in a small village reflected a standard of governance with which he is becoming identified.


Scarsdale Leads OSHA Inspector up a Yellow Brick Road



December 22, 2013

 Commissioner Peter M. Rivera                                                                                                                                               New York State Department  Labor                                                                                                                                       State Office Campus Building 12, Room 506
Albany, NY 12240

Dear Commissioner Rivera:

                        Pursuant to General Municipal Law § 50-g and Village Law § 4-402(g), a notice of defect was filed with the Village Clerk of Scarsdale on September 13, 2013, informing the Village of the dangerous, defective and unsafe condition that has notoriously existed for years in the rapidly deteriorating roadway located at and abutting the Scarsdale Public Library at 54 Olmsted Road,  the only village road that  extends to the entrance of the library.

            By a letter of October 25, 2013, from the Village Manager’s Office, I was led to believe that the unsafe condition of the roadway described in the September 13th notice of defect had been corrected. 

            On December 3rd, 2013, I visited the roadway and saw that nothing was done to change its grossly unsafe condition of which I took about 33 photographs. The road was as unsafe as it was on September 13th, the date of the notice of defect received by the Village. The Board of Trustees, who by law possess and control the Village’s roads, would not tolerate in front of the Village Hall a roadway as unsafe as that in front of the library, yet that is the condition in which the librarians and their assistants are made to work, for the only means of access into the library, by day or more dangerously at night, is by walking across the road in front of it.

            The Board’s and Village Manager’s subsequent answers to my protest against the outrageously unsafe work condition of the librarians and their assistants is that these workers must await the Spring when a new budget may be voted on and the road newly paved,  a heartless answer from those who for years have knowingly failed to deal with the notoriously  deteriorating condition of the roadway.

            The Board’s and Village Manager’s answers that the library workers  must run the risk of substantial injury or death  until a budget may be voted on is as illegal as one can imagine, for the duty of the Village to make the road safe is an immediate one. The duty is not a discretionary one. Morally considered it is repugnant coming as it does from one of the wealthiest communities in the United States to hardworking women  probably hesitant to speak out and thus in some way endanger their employment.


                                                   Labor Law § 200

                        The failure of the Village to correct the condition of its roadway justifies this complaint to the Attorney General and the Commissioner of the New York State Department of Labor that the Village has violated, and continues to violate, Labor Law  § 200 by failing to provide the employees of the library with a safe place in which to work by compelling them to walk over the defective, unsafe roadway as their sole means of access to their work in the  library . See, Zito v. Occidental Chem. Corp., 259 AD 2d 1015 (4th Dept. 1999), leave to appeal dismissed, 93 NY 2d 999; cf., Moore v. Suburban Fuel Oil Service, Inc., 22 AD2d 827 (2d Dept. 1964), order  aff’d, 16 NY2d 647 (1965).

            Labor Law § 200(2) provides, in effect, that if any area to which the Labor Law applies is in a dangerous condition, the labor commissioner may post a notice in such area which shall  “prohibit further work in or occupancy of such area until the dangerous condition is corrected*** ”. Further, Labor Law § 200(3) provides that the Attorney General may institute a proceeding to enjoin further work or occupancy of that area. Accordingly, if the Village fails to provide the required safe work place for the librarians, the closing of the library is well within the reach of the Labor Law.         

                                             Penal Law §§ 15.o5(4), 125.10, 195(2)

            The  refusal to make the roadway safe arguably makes the Board and Village Manager chargeable at this time with the violation of Penal Law § 195 (2) which provides that a public servant is guilty of official misconduct, punishable by a term of one year, when, “with intent to obtain a benefit or deprive another person of a benefit, he knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”

            The Board and the Village Manager have the factual knowledge and the lawful duty which, together with evidence of injury or loss of life traceable to the dangerous condition of the roadway, would put them at risk to prosecution for assault with criminal negligence (Penal Law § 15.05(4)) and assault with recklessness, to say nothing of the felonies of criminally negligent homicide (Penal Law § 125.10) and second degree reckless manslaughter.

            In defense against the criminal charges, it is insufficient , except in an asylum, to assert, as the Village Manager has done, that the correction of the road’s unsafe condition should await the adoption in the Spring of the next budget, presumably when the softer earth  can more readily accept the burial of children or their parents or the librarians who fell on the library road in the Winter.


                                                          Harold Reynolds
Attorney at Law
Scarsdale, NY


Letter to Japan Today , a noteworthy publication in Japan, from Harry Reynolds, Attorney at Law         

My Dear Innocent Japanese Brothers

We in the United States have sent you Donald Duck as our ambassador to your country. She describes herself as a practicing attorney though she never practiced a day as a lawyer. Indeed, she is registered as a lawyer in New York City at an address of a design business owned by her husband. Professionals in our diplomatic service have derided her appointment. Every responsible journalist in the United States regards her as an intellectual invalid whose command of English ranges from zero to minus zero. When proposed as an ambassador to your country, she was on the verge of being suspended from the practice of law for having repeatedly failed to register as an attorney, a simple process that required, among other things, her affirming under oath that she had not, as an attorney, unlawfully  taken the property of any person. Her sole, in your face claim, to any public office, including her ambassadorship to Japan, is that she is the daughter of an assassinated President and hence has key to any position to which she arrogantly deems herself entitled.

             If I were Chinese and intent on asserting rights to a fly zone over waters near Japan, I would make every effort to challenge Donald Duck to discuss those issues in a televised conference, one that   American and Japanese  citizens can witness while throwing up uncontrollably.

Harry Reynolds,  Scarsdale, NY

Harold Reynolds: Death of the class action in AMERICAN EXPRESS v. ITALIAN COLORS

        Histories are often made by events which, slow in the making, pass by us when we are not looking and later stun us by the magnitude of their meaning. The sunny day of June 20th,  2013, was such a day, the place the Supreme Court, and the occasion Justice Scalia’s report of the opinion in American Express v Italian Colors,  a case involving credit cards, arbitration claims,  the waiver of class actions, and the Sherman Act, enough to draw into a deep sleep any workman passing the courthouse.  He would not suspect that Justice Scalia was changing the ground rules of our society by in effect protecting corporations from the detection of their violation of federal statutes.  

          It was the work of a corporate attorney never to draft an arbitration clause without positioning the arbitration clause, like a chess piece, next to a class action waiver. In the attorney’s tool kit, the deceptive adhesion contract was the rope, the arbitration itself lay in waiting, and the class action waiver was the knot in the rope, all this in a democracy boastful of a free market for its unemployed who are rarely informed of the arbitration clause nestled in the printed employment form that they, out of work, gratefully sign. House counsel took care to include the class action waiver, for without it his CEO’s fate in a class action could be that of  dancing across a floor 24/7 with a one-legged flamenco dancer.                                                                                                                                                                                                                    

          On the other side of the dance floor was the class action lawyer whose ideal was the pot of gold awarded not to the members of the class, who commonly hold low-value claims, but to him whose take, so to speak, depends  on the aggregate number of the members of the class. He sometimes thinks himself, on the way to the bank, as a  private prosecutor, a quasi-attorney general, shadow of the old time Pinkerton agent acting in the public interest. However, if he presses weak claims in class actions, the renouned Judge Richard Posner entertains a different fantasy about him.  Judge Posner, a soft spoken realist, sees a class action alleging weak claims as an attempt to blackmail defendants into the Hobson’s choice of either settling or rolling the dice.

          And rare is the class action lawyer who wants for members of a class. Consider how arbitration clauses have sprung up:

          By 1991, more employees were covered by arbitration clauses than by collective bargaining agreements. Arbitration clauses were thoughtfully included by employers in personnel manuals, lenders put them in credit card agreements,  nurses tendered them in hospital medical consent forms, like wild weeds they sprouted in purchase agreements and service contracts.

          By 2003, nearly one quarter of private nonunion workers were subject to arbitration systems  imposed as a condition of employment.

          By 2009, 75 percent of major consumer transactions were subject to mandatory binding arbitration.                                                                                                     

          In 2010, arbitration was mandatory in agreements of the 4 largest cell phone companies, 5 out of the 8 largest cable companies, 6 out of 9 major credit card companies, and 2 out of 4 national retail banks. All required the waiver of the right to bring a class action.

          By 2011, 93% of the most prominent firms in the credit and financial services industries had arbitration clauses in their employment contracts.

          By 2012, more than 50% of the largest retail banks and credit unions had arbitration agreements for individual checking account customers.

          If the class action lawyer feels a debt to anyone it is to the genius who thought to take arbitration from the courts who  disliked  it, and to enshrine it in the Federal Arbitration Act (FAA) where it  must have been greeted as if it were a bride. What greater gift for the tired businessman than the knowledge that, if a dispute involves a contract with an arbitration clause, the Federal Arbitration Act provides that the court must stay litigation so that the dispute can go to arbitration and, after the arbitration is completed, the Act gives extremely limited power to the courts to review the award no matter how erroneous it might be.

          Prior to American Express, the Supreme Court found in 2011 that  the Arbitration Act favored the enforcement of class waivers in arbitration agreements. AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1750-51 (2011). On the other hand, class action lawers took comfort from the conviction that the court had in 1985 in the Mitsubishi Motors case  provided a way around that wall in  the so called “ vindication principle” which barred an arbitration clause if it prevented the vindication of federal statutory rights. Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)

          In American Express, retail merchants signed contracts that provided that they must accept both AmEx  charge and credit cards. The contracts contained arbitration clauses coupled with class action waivers. In their class action, the merchants claimed that AmEx violated the Sherman Act by the use of its monopoly power in the credit card market to force the merchants into an unlawful tying arrangement involving the credit and charge cards. As for their waiver, they argued that the waiver prevented them from asserting federal antitrust claims the individual litigation of which was prohibitively expensive. The district court sustained the waiver but the Second Circuit reversed, holding a class action the economical route for the merchants to proceed in the light of recent rulings of the Supreme Court.

          In reversing with what was probably unconcealed enthusiasm, Scalia, J., when finished with his autopsy, left little of the class action for use in arbitrations, a result foreshadowed by his opinion in AT&T Mobility LL.C. v. Concepcion, 131 S.Ct.1740 (1211). He upheld the class action waiver because (1) there was no congressional command requiring the rejection of the waiver, (2) proof was lacking that Congress approved Rule 23 as an entitlement of class proceedings for the vindication of statutory rights, (3) the respondents individually, but not as a class, had their rights to secure the vindication of their federal rights, and (4) as for the respondents lack of money to pay for the  prosecuting of their individual antitrust claims, Justice Scalia ice-skated away with the  statement that “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim”, words right out of Dickens. Indeed, right out of the courthouse window went the “vindication principle”.

          Justice Scalia did not address the fact that, on the papers before him, there was arguable proof that American Express may have been in criminal violation of the Sherman Act and that the consequence of the court’s opinion, in effect, was the protection of American Express from the inquiry and  overhauling that the class action lawyers would have given it. Reading the opinion, one is left with a sense of shame, a sense of having witnessed something wrongful.

          In dissent, Justice Kagan to no avail unsuccessfully argued primarily that the arbitration clause, by barring a class action by the respondent merchants, prevented the effective vindication of federal statutory rights.

          However much one may imagine attempts to evade American Express,  it ultimately   falls to Congress to say whether and in what contexts it favors contractual freedom in arbitration agreements over the private enforcement of federal statutes or, to put it more pointedly, whether it has the moral will to resist the pressure of moneyed interests over the public welfare, for business interests are active even now in our wonderful Capitol to resist changes in the law of arbitration. They must have read with relief Justice Scalia’s scuttling of the vindication principle. 

          What do scholars foresee in American Express? They see “the destruction of protection for collective action that has been at the heart of the labor laws for over sixty years. It will require employees and consumers to arbitrate their federal statutory rights even when, to paraphrase Justice Kagan, they have been given an adhesive contract that effectively deprived them of all legal recourse.” Stone, Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law, 61 UCLA L. Rev. Disc. 164, 179 (2013) [Upon which I drew for the data concerning the widespread use of arbitration agreements, supra.]

          Having delivered the bad news, here is the good news:

          Section 1028 of the Dodd-Frank Act requires the Consumer Financial Protection Bureau to report to Congress concerning the use of arbitration in consumer transactions and to “prohibit or impose conditions or   limitations on the use of…arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers”. Should the agency issue regulations prohibiting the use of class action waivers in consumer financial products, the law that now favors  the enforcement of class waivers in arbitration agreements  would be flipped for those contracts over which the Consumer Financial Protection Bureau has direct authority. However, if the Consumer Financial Protection Bureau bans class action waivers in consumer financial contracts, its rule will apply, pursuant to a grandfather clause, only to contracts entered  into more than 180 days after the rule is issued. During that period, the sun will be blotted out by crisply printed class action waivers.

Harold Reynolds, Attorney at Law, Scarsdale, NY 
November 18, 2013