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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

#221

Post by mindslight »

wtallis wrote: post #144
mycall wrote: post #109

Earlier quoted context omitted.

I'm sure corporations will fight tooth and nail to equate mass-arbitration with class-action. Very interesting how this might play out.

I don't see how there could be any viable argument toward that equivalence. Class action lawsuits are special in that most of the plaintiffs don't have to lift a finger while a small number of plaintiffs and their lawyers prosecute the case on behalf of everyone who doesn't opt out. Mass arbitration still requires each plaintiff to individually prove their case. Companies cannot write contracts that say you can only…

I always wondered about the possibility of a legal automation company that would opt people out of a given class action, wait for the class action outcome, and then file individual claims for everyone who opted out. Much better than receiving a gift card for $2.83 or whatever.

I suppose the court fees would be prohibitive, unless you had a strong case and could make the defendant pay them. The math could work out for the right cases though. Back in the day, I remember a class action lawsuit over Philips CD burners that just resulted in something like a $200 coupon off a new Philips CD burner. Basically a useless piece of paper unless you wanted to give the company another $300, but if that could have been made into cash...

Re: A new weapon in arbitration: sheer volume

#222

Post by mindslight »

matheusmoreira wrote: post #213
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 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…

It's because the USian view has come to see rights as axiomatic primitives to be layered on top of rather than context-free qualitative assertions. This is regressive due to complexity-induced contradiction, but here we are. It's similar to how with Turing completeness you can implement a low level interpreter on top of a high level language, eschewing the high level language's fancy constructs.

Re: A new weapon in arbitration: sheer volume

#223

Post by jellicle »

omginternets wrote: post #215
jellicle wrote: post #210

Earlier quoted context omitted.

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.

We started off the thread with "these TOS are dubious, they can be ruled unconscionable..."

They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or whatever. Your use of the service shows your agreement.

Re: A new weapon in arbitration: sheer volume

#224

Post by kwhitefoot »

harimau777 wrote: post #48
manfredo wrote: post #44

Earlier quoted context omitted.

Saying that arbitration agreements are signing away your rights is analogous to saying that joining a union means signing away your rights, because it often entails agreeing to only work at union jobs (you're "signing away your rights" to work for non-union employers). Yes, you're engaging in a contract that limits your options but you're not relinquishing any actual rights. Just like how a union can condition employ…

Two differences that I see: A union is designed to protect your rights, forced arbitration is designed to limit your rights. Arbitration clauses are so ubiquitous that it would be almost impossible to operate in modern society while refusing to sign them.

> so ubiquitous that it would be almost impossible to operate in modern society

In "modern _US_ society".

Re: A new weapon in arbitration: sheer volume

#226

Post by lisper »

jellicle wrote: post #223
omginternets wrote: post #215

Earlier quoted context omitted.

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.

We started off the thread with "these TOS are dubious, they can be ruled unconscionable..." They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or…

> Your use of the service shows your agreement.

No, that is not necessarily true. If I put in my ToS that by using my site you agree to (say) my installing malware on your machine that will allow me to go into your bank account and take as much money as I want, that will (almost certainly) not be enforceable.

Re: A new weapon in arbitration: sheer volume

#227

Post by omginternets »

jellicle wrote: post #223
omginternets wrote: post #215

Earlier quoted context omitted.

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.

We started off the thread with "these TOS are dubious, they can be ruled unconscionable..." They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or…

You're correct IFF the TOS constitute a valid contract. Contracts can be invalid for a number of reasons, including "one party wasn't made aware they were entering a contract".

>Yes, your click on "I agree to the TOS" is binding on you

There is no such button in this particular case.

>no, no one cares that you were closing your eyes or crossing your fingers or whatever.

This is a straw man. Nobody is claiming this.

>Your use of the service shows your agreement.

That very much depends.

Re: A new weapon in arbitration: sheer volume

#228

Post by mycall »

wtallis wrote: post #144
mycall wrote: post #109

Earlier quoted context omitted.

I'm sure corporations will fight tooth and nail to equate mass-arbitration with class-action. Very interesting how this might play out.

I don't see how there could be any viable argument toward that equivalence. Class action lawsuits are special in that most of the plaintiffs don't have to lift a finger while a small number of plaintiffs and their lawyers prosecute the case on behalf of everyone who doesn't opt out. Mass arbitration still requires each plaintiff to individually prove their case. Companies cannot write contracts that say you can only…

I'm thinking new laws would be manufactured to make that equivalence. You know, to help poor old corporations.

Re: A new weapon in arbitration: sheer volume

#229

Post by cryptonector »

matheusmoreira wrote: post #213
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 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…

Well, anyone can ask you to renounce certain rights, and you can even agree, and courts can (and for certain rights have) rule that you cannot waive those rights. Even if there's a right that is well known you cannot renounced, you can be asked to renounce it, and you can agree to do so, and still not lose the right.

Arbitration can't completely remove access to the courts -- it can (and does) make it harder to get there. Case law for this sort of thing is always evolving, and so is statutory law. It's entirely possible for the courts to modify arbitration sufficiently to make the playing field more even.

Re: A new weapon in arbitration: sheer volume

#230

Post by Reelin »

dathinab wrote: post #200
Reelin wrote: post #45

Earlier quoted context omitted.

> any company working "in favor" of the government but not "for it" could very well restrict free speech I don't follow what you're trying to say here? A private company can do as it pleases because an employee's speech could conflict with its business interests. In some cases, other federal, state, or local laws offer additional protections to the employee (ex California provides very strong protections for employee…

Facebook could decide that LGBTQ+ people are offensive and strongly restrict theire free speech even for non LGBTQ+ topics (sure there are other regulations to prevent this, but they have much less tooth). That you have to handle consequences when you insult someone or you IDK openly call for the murder of all ... People that's a different matter I didn't intend to go into.

> that's a different matter I didn't intend to go into

I don't think you can avoid it though.

What if I personally choose not to associate with people I view as activists? Surely that's my right? What if I start a small business that's very up front about refusing clients who are activists? What if Facebook were to ban the accounts of known activists?

Who gets to set the criteria that determine if a topic or group is protected, what constitutes an insult, etc? Who do these rules apply to - only the largest of businesses or even to individuals? How do you balance such rules against the freedom to choose not to associate with someone? How do you avoid situations in which such rules would constitute a form of forced speech?

If you tell Facebook (using your example) that they have to allow speech on their own platform that they don't agree with, then you had better have a very clear, comprehensive, and unambiguous set of legal tests to apply because you're opening an absolutely enormous can of worms. Worse, Facebook is the _easy_ case because you can construct a reasonably convincing argument that the large public cloud providers have intentionally made themselves a sort of public commons (albeit a strange privately owned and operated one). As you look at progressively smaller businesses that serve fewer customers and have more competition, such an argument begins to break down.

I can see the reasoning that a forum (ex Reddit) or web host (ex Cloudflare) is a platform provider and should be required to be neutral, similar to the DMCA Safe Harbor provisions. But I can also see legitimate concerns arising if (for example) YouTube was forced to host videos that they felt tarnished their brand or (for example) Reddit had been legally prevented from banning /r/watchpeopledie.

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