Arguing that BNSF Railway had no right to stay court proceedings in favor of its federal motion to compel arbitration for deaths and injuries arising from a train derailment, CCL President Robert S. Peck urged the trial court in Chariton County, Missouri that BNSF's claim that the plaintiffs had agreed to arbitration was factually incorrect, that the arbitration agreement was unconstitutional because of its source, that the agreement, if valid, could not apply to the wrongful death claimants, and that BNSF had waived any right to arbitration through its participation in proceedings in the court.

      The dispute arises out of a June 27, 2022 derailment that occurred when Amtrak Train 4, known as the Southwest Chief, traveling from Los Angeles to Chicago, struck a dump truck near Mendon, Missouri. BNSF operated the train for Amtrak and claimed the benefit of an Amtrak pop up that occurs when purchasing tickets online that requires a potential passenger to agree to mandatory arbitration for any disputes resulting from the ticket purchase or travel.

      After injured passengers and survivors of the passengers killed filed their state court lawsuits, BNSF waited three months, participating in the state court case, before seeking a stay of proceedings and filing an action to compel arbitration in federal court against the plaintiffs. In court, Peck explained that because Amtrak is a government agency and not a private party, it is obligated to comply with the Constitution, where plaintiffs have a right of access to the courts and a right to trial by jury. The government cannot require a person to waive those rights in order to participate in government services, which the mandatory arbitration provision seeks to do. It is therefore null and void and cannot be claimed by BNSF.

      In addition, if there were a valid arbitration agreement, participating in court proceedings, deciding that it did not like the direction the case was going, and then invoking arbitration constitutes a waiver of any arbitration rights, because a party cannot game the system to find a more favorable venue for its case.

      Furthermore, Peck explained that tickets on the train were purchased in a variety of ways. Some may have used Amtrak's website with the arbitration pop-up, but other tickets were purchased at a ticket window where no arbitration agreement is revealed or agreed to, at travel agencies that do not convey the arbitration agreement such as AAA, and on behalf of others where the purchaser was not authorized to agree to arbitration as the traveler's agent in order to purchase the ticket. 

    Finally, Peck argued that, under Missouri law, a wrongful death case is not a derivative action, so that even if the decedent had agreed to arbitration, she could not bind those with survival claims, which is a wholly different cause of action than a personal injury claim. 

    The court took the matter under advisement, but asked the parties for supplemental briefs on the waiver issue.

     On the same day, making similar arguments, a brief authored by CCL was filed by co-counsel Davis Bethune & Jones LLC in the federal court in St. Louis, opposing BNSF's preliminary injunction motion.