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Like Comcast, Google Fiber now forces customers into arbitration

arstechnica.com

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Re: Like Comcast, Google Fiber now forces customers into arbitration

#51

Post by koolba »

Natsu wrote: post #29
koolba wrote: post #23

Has any state attempted to ban arbitration clauses via popular vote/referendum? If so, would that even hold up in court and across state lines? Seems like the only way to deal with this crap as there's no incentive for corporations not to force customers into binding arbitration. If I was still running a large consumer focused corporation I'd insist on it as well.

Why ban it? Just make it so that when it's person vs. company, the person can choose the arbiter. Then they can't shop for a biased arbiter.

> Why ban it?

Because it prevents creating a class action to group together impacted customers. Individually it may not be worth it for a customer to proceed with a claim. En masse, there is an economy of scale.

Now I'm not in favor of frivolous lawsuits and these clauses are clearly intended as a defend against them, but if the response to that problem shouldn't be binding arbitration everywhere. It should be tort reform.

Re: Like Comcast, Google Fiber now forces customers into arbitration

#52

Post by chimeracoder »

arca_vorago wrote: post #43
TheMagicHorsey wrote: post #40

Arbitration clauses are allowed because in contracts the tradition is that the parties are allowed to create private rules that will govern their future transaction. You can also nominate the venue and laws that will apply to the contract, even if you don't arbitrate. The reasoning is that the contract is a bargained document between the parties, and if a party does not like the contract, they are not forced to enter…

The problem with this perspective is that it doesnt match reality. Consumers have not been taught how to properly negotiate and enter contracts, and companies creating the arbitration clauses almost always have the power to push back on changes until the consumer relents. I wash shocked when I ordered a test Dell Ubuntu machine, took the time to read the EULA/TOS, and was appaled at their terms, which included waivin…

First of all, remember that, just because it's in a contract, that doesn't mean it's enforceable. Plenty of contracts have legally nonenforceable clauses (or clauses which are questionably enforceable), which is why almost every contract also has a clause that says, 'if any part of this contract is deemed unenforceable or invalid, the remainder shall remain in effect'.

There are also other reasons that a clause might be legally enforceable in the general case, but still struck down in a particular suit given the context of the specific contract in question.

> We live in a society that has created a system in which you must have money to pursue legal recourse

Depends on what you mean by 'legal recourse'. You're welcome to, for example, go to small-claims court and have both sides represent themselves[0]. That's as close to free as you can get.

The problem is that legal recourse for large matters must cost money. You wouldn't want to go to trial for a large civil suit without a lawyer, because there's too much at stake for you to risk it by representing yourself. But lawyers cost money, because they have the opportunity costs of their own time to worry about.

And it's not like you can't get decent representation for free. You can get a lawyer on contingency, which basically means that you have to convince them that your case is solid enough that you're likely to win. In that case, you don't have to pay much (or anything) up-front.

[0] In some states, you cannot have a lawyer represent you in small-claims court - both sides must represent themselves.

Re: Like Comcast, Google Fiber now forces customers into arbitration

#53

Post by Spivak »

ocdtrekkie wrote: post #48
arca_vorago wrote: post #43

Earlier quoted context omitted.

The problem with this perspective is that it doesnt match reality. Consumers have not been taught how to properly negotiate and enter contracts, and companies creating the arbitration clauses almost always have the power to push back on changes until the consumer relents. I wash shocked when I ordered a test Dell Ubuntu machine, took the time to read the EULA/TOS, and was appaled at their terms, which included waivin…

In most cases, consumers have zero ability to negotiate contracts. You can't negotiate a EULA. You either accept it, or find a different product. And if some piece of software is vital to something or other else you need with no alternative, you don't even have much of a choice on whether or not to accept it.

And it's not as if the courts are blind to this fact, there are protections when there is a power imbalance and the contract is take it or leave it, but I doubt any of these protections will extend to private arbitrators.

Re: Like Comcast, Google Fiber now forces customers into arbitration

#54

Post by pdabbadabba »

arca_vorago wrote: post #43
TheMagicHorsey wrote: post #40

Arbitration clauses are allowed because in contracts the tradition is that the parties are allowed to create private rules that will govern their future transaction. You can also nominate the venue and laws that will apply to the contract, even if you don't arbitrate. The reasoning is that the contract is a bargained document between the parties, and if a party does not like the contract, they are not forced to enter…

The problem with this perspective is that it doesnt match reality. Consumers have not been taught how to properly negotiate and enter contracts, and companies creating the arbitration clauses almost always have the power to push back on changes until the consumer relents. I wash shocked when I ordered a test Dell Ubuntu machine, took the time to read the EULA/TOS, and was appaled at their terms, which included waivin…

I agree that GP's perspective doesn't match reality, but for a different reason. The reality is, I think, that consumers do not care what is in the EULAs they sign. And this isn't just due to ignorance, lack of resources, lack of bargaining power, or any of those things. (Note, that I'm not saying these issues don't exist--just that they aren't the actual reasons why most consumers sign EULAs.) It's because, for the average transaction, the likelihood (and magnitude) of any real dispute is regarded as so low that most people are OK signing pretty much anything. This, I'd venture, is almost always a rational decision from a consumer's perspective. but the problem is that these individual decisions can add up to more than the sum of their parts by insulating companies from the broader regulatory goals of certain privately enforceable laws (i.e., laws that an individual has to sue to enforce). The freedom-of-contract defense GP is giving doesn't properly come to grips with the fact that many legal claims serve purposes other than vindication of personal rights (or, more broadly, the right to bring any claim in court, especially class actions), and therefore should not be so easily waived.

Re: Like Comcast, Google Fiber now forces customers into arbitration

#55

Post by spriggan3 »

arca_vorago wrote: post #43
TheMagicHorsey wrote: post #40

Arbitration clauses are allowed because in contracts the tradition is that the parties are allowed to create private rules that will govern their future transaction. You can also nominate the venue and laws that will apply to the contract, even if you don't arbitrate. The reasoning is that the contract is a bargained document between the parties, and if a party does not like the contract, they are not forced to enter…

The problem with this perspective is that it doesnt match reality. Consumers have not been taught how to properly negotiate and enter contracts, and companies creating the arbitration clauses almost always have the power to push back on changes until the consumer relents. I wash shocked when I ordered a test Dell Ubuntu machine, took the time to read the EULA/TOS, and was appaled at their terms, which included waivin…

> Consumers have not been taught how to properly negotiate and enter contracts,

Did you negotiate your ISP contract ? you can't negotiate if every ISP have the same policies.

Re: Like Comcast, Google Fiber now forces customers into arbitration

#56

Post by pdabbadabba »

mmanfrin wrote: post #26
lucb1e wrote: post #19

Serious question: how is this legal? I can't imagine I could make someone sign a form that he waives his right to sue me and then shoot him, right? Assuming he doesn't die and it's him, not the government, that prosecutes/sues me.

https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc... 5 to 4 decision, along the same lines as you'd assume.

Not exactly. This opinion only decided that an arbitration clause can disallow class-wide arbitration. The real answer to GP's question is the Federal Arbitration Act (which, by the way, was also the statutory basis for Concepcion): https://en.wikipedia.org/wiki/Federal_Arbitration_Act

Re: Like Comcast, Google Fiber now forces customers into arbitration

#57

Post by deadowl »

ocdtrekkie wrote: post #38
heroprotagonist wrote: post #15

Earlier quoted context omitted.

Beyond that, your other options will also usually include arbitration clauses. If it's a deal-breaker for choosing Google, it'll be a deal-breaker for choosing anyone else.

That's a fair point. As the article's title points out, Comcast does the same.

Does FairPoint?

Re: Like Comcast, Google Fiber now forces customers into arbitration

#58

Post by twoodfin »

rayiner wrote: post #17
twoodfin wrote: post #12

Earlier quoted context omitted.

To clarify this excellent comment: Corporations can donate to political campaigns and the organizations running them. What they can't do is donate directly to candidates running for office.

Corporations cannot donate to campaigns either. What they can do is donate to Super PACs that make independent expenditures to support particular candidates.

Campaigns for office are a subset of all political campaigns.

Post-Citizens United, corporations can engage in or financially support any political campaigning they like in whatever form, as long as they don't make financial or in-kind contributions to the electoral campaigns of individual candidates. They don't need to form a PAC to do so.

https://en.wikipedia.org/wiki/Citizens_United_v._FEC#Super_P...

Re: Like Comcast, Google Fiber now forces customers into arbitration

#59

Post by ocdtrekkie »

deadowl wrote: post #57
ocdtrekkie wrote: post #38

Earlier quoted context omitted.

That's a fair point. As the article's title points out, Comcast does the same.

Does FairPoint?

http://www.fairpoint.com/document/Residential_HSI_Terms_of_S...

This document, found via a quick search, doesn't seem to contain the word "arbitration".

Re: Like Comcast, Google Fiber now forces customers into arbitration

#60

Post by kevincox »

Vraxx wrote: post #49
lucb1e wrote: post #39

Earlier quoted context omitted.

> you could legally have someone sign a contract waiving [t]his right [...] However, the contract would be unenforceable I understand I can write any nonsense and sign it, probably because of freedom of expression or something. My point was whether that contract would be enforceable. If such a thing wasn't enforceable Google and others wouldn't be putting it in their contracts.

Not necessarily true. You have to challenge it to find out if it's enforceable in many scenarios, and it might act as a deterrent as well. Even a widely known unenforceable clause can deter someone who doesn't previously know that it is unenforceable from doing the action that the clause prohibits. So I can definitely see plenty of reasons to include these types of things in a contract. Plus, what does it cost them t…

Yes, unenforceable clauses in a contract can be used as a game of chicken.

  Customer: You can't enforce that clause.
  Google:   Yes we can.
  Customer: Nuh uh!
  Google:   Want to go to court to find out?
  Customer: ...
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