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A new weapon in arbitration: sheer volume

nytimes.com

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Re: A new weapon in arbitration: sheer volume

#201

Post by Whinner »

caseysoftware wrote: post #75
Animats wrote: post #28

Oh, it's even worse than that for companies. The 9th and 10th circuits have both agreed that if the defense refuses to pay for arbitration, plaintiff can go to court. They're no longer barred from suing at that point. Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small…

Either way, they end up having to fight on a thousand little battlefields all over the place and likely do not have the interest or ability to fight each and every one. This is the sort of thing that can tie up legal teams for years and drain reserves in no time. I was involved in a mass-arbitration last year. The NDA bars any details from being released for 2 years but in the meantime, we can say we reached "a resol…

When are the 2 years up? i'd be interested in hearing the details

Re: A new weapon in arbitration: sheer volume

#202

Post by KarlKemp »

marcus_holmes wrote: post #194
nabla9 wrote: post #190

Earlier quoted context omitted.

The US stands alone in consumer arbitration. In most countries consumer arbitration is either heavily regulated, or non binding. In EU pre-dispute binding consumer arbitration clauses are considered unfair terms. American Exceptionalism in Consumer Arbitration https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265556

Thanks for this. I'm curious: I live in Germany. Is YC/HN's arbitration clause enforceable against me? Can I take them to court in Germany?

It’s complicated...

I would suspect (not a lawyer) that the main issue will be jurisdiction.

As a consumer in the EU, jurisdiction in matters with commercial entities is the consumer’s place of residence. But HN/YC isn’t in the EU, and I don’t think there are any legal agreements b/w the EU and USA that are relevant here. Free trade agreements tend to include such issues, but TTIP’s well-known fate means this is left to the parties to specify in any contract.

Then, there’s a difference b/w HN and YC. HN’s relationship to users is that of a commercial entity to consumers. But YC investing in your startup isn’t. Consumer protections would not apply even if YC were in the EU.

To summarize: yes, the arbitration clause, at least of YC, would apply to the same extend as if you were a US citizen.

Re: A new weapon in arbitration: sheer volume

#203

Post by ClumsyPilot »

anonymousab wrote: post #167
sfifs wrote: post #139

Earlier quoted context omitted.

No longer binding if the company breachs the arbitration clause. They're going to be sued if the issue is real.

It seems simple enough for a binding arbitration clause to simply require the plaintiff to pay, and to tack on additional clauses to indemnify the corporate party.

As much as they might dream of becoming legally invulnerable, I think even in US thats illegal.

Re: A new weapon in arbitration: sheer volume

#204

Post by KarlKemp »

caro_douglos wrote: post #181
piker wrote: post #169

Earlier quoted context omitted.

IAAL and banking on a court voiding a contract provision is tenuous. "adhesion contracts" in the form of website TOS, click-throughs, etc. are upheld by courts.

Are there any firms you can recommend that specialize in fighting TOS? Is it similar to criminal defense or PI where an attorney seeks out the case and will then take a large fee if they win?

In Europe, or at least Germany, there are consumer protection initiatives that have standing to sue in such cases. They sometimes take up individuals’ cases, and even take companies to court preemptively for onerous ToS. Mobile phone companies have been hit by such lawsuits quite a few times. Similarly, there’s an environmental group that has forced several large German cities to implement (partial) bans of diesel cars based on EU pollution limits being repeatedly being broken.

The concept of class-action lawsuits isn’t as relevant here, and there is no such concept as “punitive damages”. The best you can hope for is a court order granting you whatever Igor is in dispute plus any actual damages.

Lawyers’ fees and court costs are also awarded to the winner by default, with a sliding scale for such fees based on the value in dispute. You can sometimes find a lawyer who will take your case if they are optimistic as to your chances, but of the cases I know, this mostly happens when the lawyer also has some ideological interest in it (say privacy or labor law).

There is insurance you can buy that will cover legal costs, but you will need to convince them of your chances in any litigation that you want to initiate (as opposed to being sued). There are also a number of non-profits that offer legal services for specific issues, typically in exchange for yearly fees: unions, tenants’ organisation, and even dog owners’ or RC airplane clubs.

Re: A new weapon in arbitration: sheer volume

#205

Post by avs733 »

e8u3h3jeue wrote: post #147
avs733 wrote: post #124

Earlier quoted context omitted.

The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules. They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are. The jurisprudence, to the limited extent I und…

>(and lets be clear...they are vendors not a system of justice) This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.

that is an absolutely fair critique of my word choice. Totally agree, and I'm usually the person making that comment.

Re: A new weapon in arbitration: sheer volume

#206

Post by wsy »

marcus_holmes wrote: post #194
nabla9 wrote: post #190

Earlier quoted context omitted.

The US stands alone in consumer arbitration. In most countries consumer arbitration is either heavily regulated, or non binding. In EU pre-dispute binding consumer arbitration clauses are considered unfair terms. American Exceptionalism in Consumer Arbitration https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265556

Thanks for this. I'm curious: I live in Germany. Is YC/HN's arbitration clause enforceable against me? Can I take them to court in Germany?

Also not a lawyer. To be covered by Germany's consumer protection law, you need show that you are end consumer of a commercial product or service. I don't see how that would apply to YC/HN.

If you could pull that part off, I think you could take YC to court in Germany, and even achieve a favorable judgement. However, I don't see any way how you could enforce the outcome, except if YC has assets in Germany.

Re: A new weapon in arbitration: sheer volume

#207

Post by whatshisface »

e8u3h3jeue wrote: post #147
avs733 wrote: post #124

Earlier quoted context omitted.

The arbitration vendors (and lets be clear...they are vendors not a system of justice) could and probably should write this into their rules. They rely on the appearance of fairness to enable corporations to use their services against consumers/employees. If they aren't careful there is a risk of the courts increasingly observing how tipped the scales of arbitration are. The jurisprudence, to the limited extent I und…

>(and lets be clear...they are vendors not a system of justice) This is misleading, neither America nor any other country has a justice system. Justice is often a goal of the legal system but it is not a direct attribute of the system.

To be fair, the "justice system" is a commonly accepted name for the legal system, in the same way that you would call it the "Department of Defense" or the "Department for Health and Social Care."

Re: A new weapon in arbitration: sheer volume

#208

Post by alexfromapex »

nabla9 wrote: post #190
surround wrote: post #152

Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/

The US stands alone in consumer arbitration. In most countries consumer arbitration is either heavily regulated, or non binding. In EU pre-dispute binding consumer arbitration clauses are considered unfair terms. American Exceptionalism in Consumer Arbitration https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265556

The US government should’ve stepped in a long time ago and made arbitration optional for essential services. If I’m opposed to entering an arbitration agreement, what recourse do I have?

Re: A new weapon in arbitration: sheer volume

#209

Post by PaulHoule »

alteria wrote: post #173
surround wrote: post #152

Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/

It seems like every mundane service these days either has added binding arbitration, or requires it on sign up. Anyone from Pornhub/various adult sites to Blue Apron all want you to waive away your rights. Even more troubling is binding-arbitration and class-action waivers for employment. They suppress cases of systematic mistreatment and allow issues to be swept under the rug, even more so than they are already.

If you running a "real" business frequently you have to get customers to sign waivers to get insurance.

For instance, if you want to get insurance for a riding academy, they will want you to get all your riders to sign a contract that disclaims all liability, put up a big ugly sign about it, all that.

Re: A new weapon in arbitration: sheer volume

#210

Post by jellicle »

nabla9 wrote: post #191
lisper wrote: post #166

Earlier quoted context omitted.

IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally bi…

The US has binding consumer arbitration. In the US those are not empty clauses, despite the fact that they break many legal principles https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...

Nabla is correct and the prior two commenters are wrong. Although many people think that arbitration clauses are unenforceable, in fact they are completely and totally enforceable under US law in every state. When you take your [service] to court, it will get kicked out immediately and your dispute will be adjudicated by an arbitrator usually chosen by and paid by the [service], and that will be the extent of the justice available to you.

https://en.wikipedia.org/wiki/Federal_Arbitration_Act

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