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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

#211

Post by admax88q »

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/

> If you’ve created an account on HN, you’ve agreed to arbitration.

Thats is not true. I just tried creating an account, there isnt even even a mention of any terms of service.

Re: A new weapon in arbitration: sheer volume

#212

Post by jpambrun »

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

In Canada we had the Douez v. Facebook supreme court case that, from my understanding, made forum selection clauses in consumer contracts unenforceable.

Re: A new weapon in arbitration: sheer volume

#213

Post by matheusmoreira »

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 fact arbitration is a standard clause in every contract or terms of service proves it benefits nobody but the business. It's all about making consumers renounce their right to proper legal recourse. Why can corporations make people renounce their rights to begin with? Why even give people rights when every company will put a clause in their contracts that says "oh those are nice but please leave them at the door before doing business with us" ? It makes no sense.

Re: A new weapon in arbitration: sheer volume

#214

Post by lisper »

jellicle wrote: post #210
nabla9 wrote: post #191

Earlier quoted context omitted.

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 jus…

I didn't say that arbitration clauses are unenforceable. They are enforceable. In fact, one of the references I cited explicitly spelled that out in painful personal detail. What I said was that merely publishing ToS on your web site does not constitute a binding contract. If you don't have a binding contract, then nothing in the ToS is enforceable.

Re: A new weapon in arbitration: sheer volume

#215

Post by omginternets »

jellicle wrote: post #210
nabla9 wrote: post #191

Earlier quoted context omitted.

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 jus…

Hang on, I think y'all are talking past each other. The claim (as I've understood it) is:

1. Binding Arbitration is enforceable.

2. Binding Arbitration clauses fall under contract law.

3. By virtue of point 2, Binding Arbitration clauses require a Meeting of the Minds in order to be valid and enforceable.

I think you're attacking a straw man.

Re: A new weapon in arbitration: sheer volume

#216

Post by pauljurczak »

alexfromapex wrote: post #208
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

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?

The US government had stepped in a long time ago and sided with big business as it almost always does. Abandon any hope that they will make a significant move against so called "free market".

Re: A new weapon in arbitration: sheer volume

#217

Post by zero_intp »

bbarn wrote: post #68
nraynaud wrote: post #56

Earlier quoted context omitted.

It has to be said that most employers are corrupt in the US too, non-compete, arbitration, weird ways of paying salaries, generalized surveillance of employees, brutal layoffs, Gag orders in exchange for severance, etc.

You forgot "Flex PTO"

as a salaried worker I refuse to participate in flex PTO, it's not how the labor laws are written. I work for a significant part of the day and have a legitimate reason to stop, I do not submit any leave requests.

My company recently granted an extra 40 hours of COVID PTO to use for flex, which is nice, but they could just stop trying to work around labor laws.

Re: A new weapon in arbitration: sheer volume

#218

Post by TheCoelacanth »

arbitraryacct wrote: post #183
TheCoelacanth wrote: post #95

Earlier quoted context omitted.

That seems unfairly stacked in favor of the defense. If they refuse to pay for the arbitration, that should be the same as if they just refuse to show up to court, i.e. default judgement in favor of the plaintiff.

Arbitration is extremely disruptive. If someone takes you to arbitration, you pay $1k non-refundable, simply because they want to take you to court. If you do end up in court, it's another $20k just for JAMS fees. Again, non-refundable, doesn't matter if you win or lose. So if someone is trying to take you to arbitration over less than $20k, it really doesn't matter AT ALL if they are right or not, it makes sense to…

Should have thought of that before you added a mandatory arbitration clause to your contracts.

Re: A new weapon in arbitration: sheer volume

#219

Post by surround »

admax88q wrote: post #211
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/

> If you’ve created an account on HN, you’ve agreed to arbitration. Thats is not true. I just tried creating an account, there isnt even even a mention of any terms of service.

The “Legal” link at the bottom of the website points to Y Combinator’s TOS.

> Welcome to the Y Combinator website (including all subdomains, the “Site”)

> This Site provides, among other things... forums for discussions about topics relevant to startups

> THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.

It’s odd that there isn’t any mention of the TOS upon registration. Does this mean they could potentially be non-enforceable?

Re: A new weapon in arbitration: sheer volume

#220

Post by admax88q »

surround wrote: post #219
admax88q wrote: post #211

Earlier quoted context omitted.

> If you’ve created an account on HN, you’ve agreed to arbitration. Thats is not true. I just tried creating an account, there isnt even even a mention of any terms of service.

The “Legal” link at the bottom of the website points to Y Combinator’s TOS. > Welcome to the Y Combinator website (including all subdomains, the “Site”) > This Site provides, among other things... forums for discussions about topics relevant to startups > THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBIT…

I highly doubt its enforceable. I can't try to enforce a ToS against you if I never even asked you to agree to it, or even _informed_ you that such a ToS exist.

EDIT: Did some random googling about enforceability of terms of service. In a case discussed here[1] the ToS were deemed unenforceable based upon in part the lack of assent to the terms.

> [A]cceptance need not be express, but where it is not, there must be evidence that the offeree knew or should have known of the terms and understood that acceptance of the benefit would be construed by the offeror as an agreement to be bound. . .That is not the case here. The plaintiffs were never put on inquiry notice of the arbitration provision, and their continued credit-card payments, which were auto-debited from their credit cards, were too passive for any reasonable fact-finder to conclude that they manifested a subjective understanding of the existence of the arbitration and other emailed provisions and an intent to be bound by them in exchange for the continued benefits [membership] offered.

In the HN case I would argue that there is no evidence that anyone creating a HN account knows or can be expected to know that there are ToS related to that account creation that they are agreeing to, as there is no mention of them in the complete registration process.

[1] - https://www.forbes.com/sites/oliverherzfeld/2013/01/22/are-w...

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