“Halliburton”, gang rape, and fear of arbitration: the Jamie Leigh Jones case

by Ted Frank on December 12, 2007

(Update, December 16: And welcome, Consumerist readers. For more on the anti-consumer campaign against arbitration, see the Overlawyered arbitration section. Consumerist’s headline “Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free” is entirely false. Aside from the fact that it does not appear the alleged rapists worked for Halliburton, the issue of whether Jones is contractually obligated to arbitrate her employment dispute with her employer is entirely unrelated to whether the government underinvestigated a criminal complaint against rapists. They are two entirely separate issues. It’s not the first time that Consumerist has reprinted misleading arguments against arbitration—a shame, because mandatory binding arbitration helps consumers, and Consumerist should care more about consumers than the trial lawyers who are lobbying for an anti-consumer law.)

In February 2006, Jamie Leigh Jones filed an arbitration complaint, complaining that, for her administrative assistant job with KBR in the Iraq Green Zone, she was placed in an all-male dorm for living arrangements, and a co-worker sexually assaulted her. (KBR says the co-worker claimed the sex was consensual, though Jones claims physical injuries, such as burst breast implants and torn pectoral muscles, that are plainly not consistent with consensual sex. The EEOC’s Letter of Determination credited the allegation of sexual assault.)

Fifteen months later, after extensive discovery in the arbitration, Jones, who lives in Houston, and whose lawyer is based in Houston, and who worked for KBR in Houston, sued KBR and a bunch of other entities (including Halliburton, for whom she never worked, and the United States), in federal court in Beaumont, Texas. The claims were suddenly of much more outrageous conduct: the original allegation of a single he-said/she-said sexual assault was now an allegation of gang rape by several unknown John Doe rapists who worked as firemen (though she did make a claim of multiple rape to the EEOC, though it is unclear when that claim was made); she claims that after she reported the rape, “Halliburton locked her in a container” (the EEOC found that KBR provided immediate medical treatment and safety and shipped her home immediately) and she threw in an allegation that a “sexual favor” she provided a supervisor in Houston was the result of improper “influence.” (But she no longer makes the implausible claim that she was living in an all-male dorm in Iraq.)

The US got the claim dismissed quickly (Jones hasn’t yet followed the appropriate administrative claims procedure); the case was transferred back to Houston where it belonged (the trial lawyer’s ludicrous brief in opposition didn’t help). But the fact that the defendants are pointing out that the lawsuit over a pending arbitration violates 28 U.S.C. § 1927 and are asking for the court to mandate only one single proceeding in arbitration rather than a multiplicity of parallel proceedings, is now being treated as a cause célèbre by the left-wing blogosphere in its campaign against the contractual freedom to arbitrate. (Note that two elements explicitly designed to arouse the ire and inflame the passions of the left—Halliburton and gang-rape—only came about after Jones switched attorneys.)

The Public Citizen blog complains that “the allegations of corporate and governmental misconduct will never see the light of day” in arbitration. Which is absurd:

1) For crying out loud, her case is on 20/20, which, as is its ken, happily unquestioningly gives the plaintiffs’ opening statement in handy manipulative video newsertainment form without mentioning any of the counterevidence. That sort of widespread publicity is hardly the lack of “light of day.” (Update, Dec. 15: the KBR arbitration procedure provides a transcript without confidentiality restrictions, permitting exactly the same publicity as an open court proceeding.)
2) If the government fails to offer Jones an adequate settlement for their alleged bungling of the criminal investigation, she has recourse under the Federal Tort Claims Act against the federal government—though she likely will not have any more recourse against them than any other criminal victim does when the government fails to protect them against crime or prosecute the criminal.
3) If the court system is about having recourse for injuries, she has that recourse. The judicial system is not for public storytelling; if you want to send a message, use Western Union (or ABC News, as the case may be).

20/20 repeats the meaningless claim that “In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it”—meaningless because (1) it doesn’t include the cases that settle before arbitration with a favorable result to the employee and (2) there’s no comparison with how well such employees would do in the far more expensive forum of litigation (where the vast majority of employees lose at trial as well). (Update, Dec. 16: KBR (which is not Halliburton) says that 96% of employee claims settle before they get to an arbitrator.)

20/20 also adds the claim (absent in the arbitration and in the otherwise-lurid civil complaint) that Jones was threatened that she would be fired if she sought medical treatment.


It goes without saying that any criminal assault should be prosecuted to the full extent of the law. I haven’t seen any support for the contention that there is a loophole that leaves an American contractor’s attack on an American outside the scope of criminal prosecution, as some blogs have claimed. The Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261 ff., permits prosecutions of criminal acts committed by defense contractors working with troops overseas, and there has been a child porn and an attempted rape prosecution under this law for crimes committed in Iraq. The loophole in the news applies to contractors working overseas with the State Department.

People with legitimate claims usually don’t have lawyers trying so desperately to forum-shop that they file amateurish briefs like this, and Jones loses a ton of credibility with me over that. At a minimum, Jones’s story has changed over time, and has gotten considerably more lurid.

The original allegations are bad enough, and, if true, actionable. If the implant rupture and other physical injuries are true, I’m inclined to believe that she was raped, perhaps even gang raped. (Machismo environments like fraternity houses and athletes’ dorms are responsible for a disproportionate number of gang rapes, which is why the Duke Lacrosse allegations had so much weight in the early going.) I’m inclined to believe that there was a hostile work environment, and that it was possible that KBR was not doing enough to correct that problem. I’m not currently inclined to believe that the criminal action was the employer’s fault, unless the employee in question had shown signs of criminal behavior while working for KBR. And it is entirely consistent with what I know about government if Jones’s allegation that the government botched the criminal investigation is true.

Of course, more facts could come to light that change my mind in either direction. There’s already been a lot of discovery, but Jones’s papers in court seem to focus on me-too evidence (that should eventually be held to be inadmissible) rather than evidence related to Jones. I’d love to see the pending motions for summary judgment in the arbitration that led Jones to file a second lawsuit.

And one hopes Jones realizes that she’s being used by attorneys who are pursuing their own agenda to promote the litigation lobby’s pet anti-consumer/pro-lawyer legislation. The shenanigans of bringing a second lawsuit and suing the irrelevant Halliburton are not helping her case if she has a legitimate one.

Here is the EEOC Letter of Determination. Bill Childs provides many other court documents. A typical unskeptical adoption of the Public Citizen line can be found at Jezebel and many other blogs. Some Republican partisans are even more skeptical than I am. A more nuanced discussion is at Amber Taylor’s blog and Ben Domenech. (And welcome Malkin readers.)

Update: There is a Jamie Jones Foundation; its chronology omits the arbitration claim Jones filed in 2006. The “take action” page makes clear the ulterior motives of lobbying for a Congressional ban on arbitration clauses—though the arbitration clause has nothing to do with bringing any rapists to justice.

A bipartisan Congressional investigation into the Justice Department’s criminal investigation is now in the works (h/t Marsh), so we should see some answers about why there were no prosecutions.

Update 2: Pajamas Media notes that portions of Jamie’s website contradict the ABC story and the civil lawsuit allegations:

May 3, 2007- I was told by the state department that my rape kit was missing. The state department had previously ensured both of my parents that the rape kit had made it back to Washington before I even arrived back to the US . I had my mom call the state department to refresh their memories.

May 4, 2007- The rape kit was found, however the pictures of the bruises and the doctor’s notes from that day were still (and are currently) missing.

May 7, 2007- I was told to sign a release form so that the state department agent assigned to my case could try and recover the lost pictures and doctor’s notes, by giving the signed medical release form to the hospital that I went to in Baghdad and to the doctor that performed the rape kit.

Update, Dec. 15: KBR responds.

{ 10 comments }

1 Anonymous Attorney 12.12.07 at 10:48 am

Hey! It’s a reverse Paula Jones!

2 Mahlon 12.12.07 at 11:58 am

I post with reference to Plaintiff’s memo contra change of venue. I speak not to the merits of the base argument, i.e. whether venue was proper in Beaumont, but to your characterization of the brief as amateurish. If the venue provision is as straight forward as cited in Plaintiff’s brief, I don’t see the problem.

Frankly, I like this type of response. The brief addresses the other side of “ugly-lawyering” – the one this cite seldom addresses – that of defense counsel spending time and money on petty procedural matters. Haliburton’s counsel is whining. Whining about driving a little further, about paper documents which will never be shared in paper form, about injustice – when such is not the case. Plaintiff’s counsel simply calls them on it. And I think he did so well.

It’s not like the Plaintiff filed the case in San Antonio, where, if the venue provision is as liberal as it appears, he could have.

If forum shopping is permitted by legislation, then the Plaintiff gets to choose where to file.

Of course, if the venue issue is not as simple as Plaintiff would have us believe, then all bets are off. I just wish you would take your blinders off to the abuses of defense counsel. After all, they’re trial lawyers, too.

3 J 12.12.07 at 12:27 pm

Thanks for the most objective analysis I’ve seen on this. A few thoughts:

Plaintiff apparently resides in CA, not Houston.

I think your post underestimates the extent to which a Plaintiff’s lawyer can undermine an individual’s legitimate claims through sheer incompetence and/or credibility-destroying sensationalism.

Adding Halliburton as a Defendant doesn’t seem clearly ridiculous considering potential corporate veil issues, the possibility that some John Does may have been Halliburton employees, etc… (Listing every KBR entity, on the other hand, is absurd).

Re: the ‘locked in a container’ allegation—In the Complaint she alleges that she was placed in a trailer with a bed, bath, etc…, but (the horror!) no phone or TV. This seems to be entirely appropriate—they couldn’t very well send her back to the barracks where she claims to have been raped.

In a case like this, any discovery limits in arbitration will likely be negligible. The only practical effects of arbitration are that filings won’t be immediately (or possibly ever) public, potential damages (i.e., settlement value) will be limited by the absence of a jury (the reason plaintiffs’ lawyers hate arbitration), and appellate review is limited (arguably a bigger concern for employers than employees).

4 Ted 12.12.07 at 3:13 pm

Mahlon: As I noted, the venue motion was granted, and the case was transferred to the Southern District. A plaintiff’s forum choice gets no deference when there is no reason to file the case in that forum. I stand by my characterization. See also the defendants’ brief.

5 jkoerner 12.12.07 at 5:35 pm

I agree with Ted. The plaintiff basically argues against a forum non conviens motion by saying that the plaintiff did choose a proper forum. Of course, that is not in dispute, the defense agrees with that point in its motion. The D just says everyone would be better off in the Southern District, and from the facts given, the defense appears to be right.

The response was childish and perhaps even a bit misleading as to what the law actually holds.

6 Brooks Schuelke 12.12.07 at 5:37 pm

I think you short-change the plaintiff’s response. From looking at the docs, it appears that Beaumont was an acceptable choice. Having the court move the case to Houston based on convenience of the parties doesn’t make the original choice wrong or ridiculous. In fact, you can certainly understand how it might be ridiculous to file a motion to transfer based on convenience knowing the lay of the land. Depending on where you’re driving from, Houston and Beaumont are probably an hour to an hour and a half from one another. Going to Beaumont for the random hearing is not a huge inconvenience for any of the parties.

Thanks, and keep up the good dialogue.

7 SLEZE 12.16.07 at 10:51 am

“because arbitration helps consumers, and Consumerist should care more about consumers than the trial lawyers who are lobbying for an anti-consumer law.)”

I think the Consumerist agrees that arbitration definately has a place in the world but does binding MANDATORY arbitration help consumers? When the arbitration “judges” stop getting arbitration work if they ever find in favor of the consumer, I think that implies an unfair advantage to the business over the consumer.

8 Ted 12.16.07 at 10:56 am

I’ve clarified the sentence: mandatory binding arbitration helps consumers. It’s not true that arbitrators stop getting arbitration work if they legitimately find in favor of the consumer: indeed, consumers in contested cases win more often in arbitration than they do in jury trials.

9 SLEZE 12.16.07 at 11:15 am

” It’s not true that arbitrators stop getting arbitration work if they legitimately find in favor of the consumer: indeed, consumers in contested cases win more often in arbitration than they do in jury trials.”

Both of those statements conflict with articles I have read time and time again. So are you wrong or is the entire lefty-blogosphere wrong?

10 Ted 12.16.07 at 11:37 am

The entire lefty-blogosphere is repeating the identical bogus arbitration statistics we refuted months ago. Lenders prevail against debtors in court 96% to 99% of the time. Consumers actually have more protections in arbitration: if a consumer fails to respond to a court notice, the court can issue a default judgment. In an arbitration, the arbitrator cannot simply issue a default, but has to consider the evidence.

Rather than simply parrot the misleading arguments Public Citizen puts out, why not look at the sources we cite in the multiple posts linked to from the article?

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