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Given that nobody reads these things anyway, how enforceable are they? People just click 'Accept' and continue doing whatever they want.
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I would expect that if you send the opt-out mail that will weaken your standing in court. Everything you give the other side makes the other side stronger and gives them more vectors to argue and attack. For example they can use it to argue that sending an opt-out mails indicates that you have read the clause. It also indicates that you have read the TOS in general. It also indicates that you agreed to the rest of th…
Quite simply, if you fail to opt out, you will have almost no chance at all of successfully fighting the arbitration agreement. Period. The Supreme Court precedent leaves little room for dispute on this point. So yes, everyone should follow the instructions and opt out.
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Seems absurd to me. Companies could claim they put whatever they want in that text and the burden of proof would lie with the end user.
> Seems absurd to me. i'm really interested; what do you think the alternative is? would you be happier if you had to mail in a signed copy of the contract?
If mandatory arbitration is allowed, the right to sue does not exist. You cannot have one but not the other.
Lawyers willing to opine: > 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. Is this exact thing what's being considered in some of the more recent Supreme Court cases…
Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive.
The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrate individually (no state law, etc, was at issue here), and the answer is "yes, they are enforceable". This is not surprising, these kinds of straight policy arguments rarely are winners in court. A state law would instead be a preemption issue.
It's one thing to say "you must arbitrate", which is clearly covered by the Federal Arbitration Act. That is why state laws that attempt to ban such clauses are preempted.
However, there is nothing that i'm aware in that act (though admittedly, it's been a while since i looked at the act), that preempts state laws prescribing the form of arbitration.
Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear.
Again, it's been a while, but when they were first preempted, states mostly did not have such laws on the books (IE they found required arbitration to be against public policy, and that was preempted by the FAA. They did not have laws that said that banning class arbitration to be against public policy)
Of course, if someone knows of a part of the FAA that explicitly allows prescribing the form of arbitration, then yeah, everyone is gonna lose.
Funny story: most of the places that pushed so hard for required arbitration had clearly not thought through the consequences. They still haven't, AFAICT.
I remember having lunch with one of the counsel at EBay and some other companies about a year after the original supreme court ruling on class actions, and he was very happy they could require arbitration (they got a lot of nuisance suits, to be fair to them), and asked me why Google didn't require arbitration (Note: I'm not legal counsel for Google, i haven't been involved in Google's TOS in years, blah blah blah)
I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration.
I suggested that was probably a bad bet. I still believe it to be a bad bet. (It hasn't changed a lot because the other side of this is still fighting to the death instead of considering new business models. They are very much not used to dealing in volume)
Good luck to apply it internationaly...
Given that nobody reads these things anyway, how enforceable are they? People just click 'Accept' and continue doing whatever they want.
Very enforceable. You clicked accept, you accepted. If you didn't read it, that's on you. According to the American Bar Association's wording on "Best Practices for Ensuring Enforceability" [0] > There is a check-box that users must click adjacent to an affirmation similar to, “By clicking on the box, you are indicating that you have read and agree to the Terms of Use”; > The webpage is designed so that if the user d…
EULA / TOS click wrap and shrink wrap licenses make a mockery of contract law out of convenience, transferring effectively what was supposed to be a reasonable agreement between two identified and informed parties and making it a completely one sided agreement dictated to one party, which nobody has actually identified until a claim arises.
The alternative is to not have license agreements. License agreements just end up including terms that companies wish they could change about the law but can’t. So instead of having to get politicians to ban reverse engineering, they just include it in their license. Instead of having to get policiticans to ban or limit class action lawsuits, they just force you out of the courts.
Earlier quoted context omitted.
I would expect that if you send the opt-out mail that will weaken your standing in court. Everything you give the other side makes the other side stronger and gives them more vectors to argue and attack. For example they can use it to argue that sending an opt-out mails indicates that you have read the clause. It also indicates that you have read the TOS in general. It also indicates that you agreed to the rest of th…
Maybe someone could start a service that automatically opts them out from arbitration clauses. Extra nice if it will send snail mail for the TOSes that require snail mail opt out.
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IANAL, but as far as I understand this is grey area and some courts/judges will see something like this differently, because there is a set of rules that courts find irrelevant whether you put them in your terms or not. For example, you can agree to the terms where point 1.2.3 says "you agree that our employee can break into your house in the middle of the night and strangle you to death". The mere explanation "they…
Unfortunately, the GOP Supreme Court has made these arbitration agreements nearly bulletproof. What you've written makes a lot of sense and is how it should be, but judges now have very little leeway in not enforcing arbitration agreements. See AT&T Mobility v. Concepcion ( https://www.supremecourt.gov/opinions/10pdf/09-893.pdf ) and Amex v. Italian Colors ( https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf…
However, Amex is not about whether a class action arbitration waiver is enforceable in the face of a state law holding them unconscionable.
Instead, Amex is about whether a class action arbitration waiver is enforceable in the face of it just being "too expensive" to arbitrate individually. There was no state law at issue. Just a straight policy argument.
The answer to that is quite clearly "yes, it's enforceable". But the opinion goes to great pains to say such waivers are a matter of contract law, which is very traditionally the role of the states. Hence my assumption is that if a state did say that, as a matter of contract law, class action arbitration bans are against public policy, it would be a matter of preemption, and i can't see why the state would lose on the law (though they may lose anyway given the current court makeup)