Thursday, May 28, 2009

Swimming For Longevity

We all know that regular exercise is good for a healthy heart, but did you know that swimming is even better for you than walking or jogging?

Not much research has been done on the health benefits of swimming, but two recently published studies show that this form of exercise may be the best.

One study involving nearly 46,000 people measured blood pressure, cholesterol levels and energy output. Not surprisingly swimmers and runners had the best numbers for cardiovascular health.

The other study measured death rates among 40,547 men, ages 20 to 90 over a 13 year period. Only 2% of swimmers died, compared with 8% of runners, 9% of walkers and 11% of non-exercisers. Pretty impressive, wouldn’t you say?

It’s something to think about in case you are interested in a long, healthy life.

Tuesday, May 26, 2009

The Mighty Mandatory Arbitration Clause

Many commercial and consumer contracts these days include a provision waiving the right to a jury trial and many even waive the right to bring a lawsuit and require that any disagreement be decided by arbitration.

When I bought my condo five years ago one of the provisions in the contract was that I could never ask for a jury if I got into a dispute with the developer. It wasn’t that the developer was a mean guy; in fact he is very nice and I have not had any reason to have a disagreement with him. It’s just that he hired a business-oriented law firm to draw up his papers, and the lawyers do what lawyers always do: they think up every conceivable way to give maximum protection to their clients. Juries can be unpredictable, and judges’ decisions are considered more reliable for business.

Arbitration is a process by which people (or companies) resolve disputes by referral to a neutral person, often a retired judge or a lawyer or someone with particular expertise in the field, who takes the evidence presented by both sides and decides what the resolution will be. This procedure is much quicker and much less expensive than going through a trial in the courts.

The trouble is that the arbitrator must be agreed upon by both sides. This is bad news for consumers, because any arbitrator who decides in favor of a consumer and against a company will be unlikely to be hired to decide any cases involving that company in the future. The consumer will generally not be in a position to find out about an arbitrator’s previous rulings, so the company has the advantage, and arbitrators generally tend to favor companies.

An even worse evil of these mandatory arbitration clauses, though, is that consumers are barred from being a part of a class action. This means that the consumer with a legitimate gripe against a big company will have no way to get any relief unless the value of the claim is enough to warrant hiring a lawyer and pressing the claim through an arbitration process. In other words, if a person gets cheated out of ten dollars (or $50 or $100 for that matter), it would make no sense to press this complaint, because the cost of pursuing it would be greater than the amount of the claim. It is only through class actions that companies can be held responsible for wrongs which amount to only a small amount for the individual claimant, but may amount to millions of dollars of illegal profit if there are many people who are affected.

Courts have generally upheld the validity of mandatory arbitration clauses, but some have found them unenforceable, and there is a move to try to enact legislation to make them invalid.

This is getting a little bit on the techy side of the law, but I thought you might like to know about this. It’s something to look out for, although you usually don’t have much choice when asked to sign a document with a bank or a big company.

Wednesday, May 6, 2009


Blogging? We’ll give it a try. Yesterday I read about a case which was decided in the First Circuit Court of Appeals in Boston in which the court decided that a woman has a case for a discrimination claim. I thought that this was really a big stretch to see anything that the employer had done wrong, but it seems that the federal courts lately have been just bending over backward to find some reason, any reason or just imaginary reasons, for finding that an employer is liable to pay money damages to any employee or former employee who brings a claim after being fired or having been passed over for a promotion.

Here are the facts, so see if you don’t agree that the court went a bit overboard on this one: two women who held jobs at the same level in a company both applied for a promotion to fill a vacant position. The person who later claimed discrimination had been with the company longer and had higher performance ratings than the other woman. Each had children at home, the claimant four including triplets who were six years old, and the other applicant two children aged 9 and 14. The two applicants were interviewed by three supervisors, all women, who decided that the other woman interviewed better and gave her the job. Later, the supervisor who had made the final decision and did not even know at the time of the decision that the claimant had triplets, told the claimant that, “It was nothing that you did or did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” Based on these facts the court found that the claimant had a valid case of discrimination based on sex-based stereotypes about the child care responsibilities of working mothers.

Am I crazy or what? It is getting just about impossible for an employer (and these rules apply to small businesses as well as large corporations) to let anyone go or to deny a promotion without facing the prospect of being sued.

So there you go. Another few minutes wasted. Stay loose, and I will get back to you as soon as I think of another frivolous topic for you to waste your time on.