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AT&T Makes Its Terms of Service Even Worse, To Discourage Lawsuits
techmuse writes "AT&T has changed its terms of service (including for existing contracts) to prevent class action suits. Note that you are already required to submit your case to arbitration, a forum in which consumers are often at a substantial disadvantage. Now you must go up against AT&T alone." This post on David Farber's mailing list provides a bit of context as well.
Sure you can. Just write that into a binding contract that both parties agree to.
Understanding the scope of the problem is the first step on the path to true panic.
That works fine in non-monopolistic markets. When AT&T is your only choice for DSL, however...
http://my.att.net/csbellsouth/s/s.dll?spage=cg/legal/att.htm&leg=tos A quick google search shows that it's in the updated TOS on their webpage already.
This will not hold water in the courts. Don't panic.
Probably not. The problem is that it raises the bar, and makes it that much harder to actually get to court. I presume that's the whole idea.
The higher the technology, the sharper that two-edged sword.
"Notwithstanding the foregoing, either party may bring an individual action in small claims court. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AT&T ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ARBITRATION CLAIMS. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement." I assume this is the part being referenced.
If they change the contract after the fact, it may no longer be binding...
Actio personalis moritur cum persona. (Dead men don't sue)
H.R. 1020 is an attempt to put some reasonable limits on mandatory arbitration. It's not doing too well, but write your congressman.
But there are differences here. For example, as loathsome as you may find them, Verizon Wireless actually specifically allows VOIP over their 3G service.
The term to be familiar with is "materially adverse change in the contract."
Most cable/wireless/anylargecorporation "user agreements" state that the provider can change the terms at whim. In this case the whim is an addition ocular penetration clause that allows them to skull fuck you and charge for the privilege. Such is the blessing of unfettered capitalism.
Except that, in the UK at least, the Unfair Contract Terms Act requires that you give an option to end the contract if the terms are changed and you do not agree to them. Unilateral changes to contracts voids the contract, as you have lost the meeting of minds.
...because of crap like this.... ...because of their secret rooms.. ...because they spied on Americans' emails... ...because they provided the NSA with a database of American's phone calls... ...because they used their influence to lobby Congress to retroactively get immunity and hide their activities... ...because of their former CEO's stated views on Network Neutrality...
I'm telling everyone I know to switch to T-Mobile. I get great 3G reception, they will actually unlock my phone after a couple months, they have great customer support (in my experience), visual voicemail, and they support Android. $25/a month for unlimited internet...
I have NO affiliation with T-Mobile aside from using them for a couple years, and I would invite criticism of them so people can make an informed decision. I'm just sayin... in MHO an iPhone isn't worth AT&T. For anyone on the fence, Android is actually pretty damn great.
Yeah, but the clauses that say they can change the terms on their whim have repeatedly failed to stand up in court because they are against the law. Those are there for people who don't know better and won't get a lawyer involved if they think they are screwed already.
That's easy. You call them and say "I never agreed to these terms. Tear up my contract." After you're discharged from the contract you pay your bill.
No, just cancel. It's not a catch 22, there's a very simple out for you. They can't even charge you an ETF if they change the contract midway through its term.
State law in Montana forbids waiving your right to a lawsuit and forcing you in to arbitration. I only know this because I was assisting my mom, a lawyer, with finding a phone at Verizon to take to Europe and when they had her sign their agreement she pointedly told the person behind the counter, "You know this isn't legal in Montana!" I assume other states have similar provisions on the books.
Welcome to the age of the EULA and TOS agreements that limit our freedoms and rights as a consumer.
Ordinarily if they violated the US Constitution they would have been thrown out by our founding fathers. But the USA is no longer a Democracy or Republic but a Corportism where Corporations rule and use lobbyists and lawyers to get away with whatever they want so they can earn more profits.
There exists even Employment Contract Agreements that are basically slavery, and companies can easily get away with them and treat employees as slaves. If the employee refuses to be treated as a slave, there are "No Fault" employment laws that says they can be fired for no reason, and then they are blackballed by other corporations so nobody will want to hire that "troublemaker" and then they become homeless or died from lack of food and health care.
Remember, Slashdot does not have a -1 disagree moderation, and no, troll, flamebait, and overrated are not substitutes.
This is true- but under U.S. common law, a modification to a contract for services requires consideration (i.e., a new benefit to the non-modifying party or a new detriment to the modifying party). Some requirements of contract law may not be waived by the terms of the contract. What the original poster is talking about is a "materially adverse change" to a contract. While PHONECOMPANY may reserve its right to modify the contract, it cannot force you to accept the new contract terms. Where the changes to the terms are "materially adverse" (price/substantive rights are material) you typically have a right to withdraw from the contract with none of the penalties ("liquidated damages") that were part of the original contract. Those liquidated damages (cancelation fees) represent the value that they lose when you violate the terms of the contract, and must be reasonable.
Note that in some states, Mediation (non-binding) may be required by law. Arbitration may not be waivable. In almost all states, you cannot be forced to waive substantive legal rights (such as the right to sue for breach of contract in a court of law). Additionally, you may be protected by consumer rights acts (deceptive trade practice acts) which are a whole other story. Under deceptive trade practice acts, you are typically able to sue for damages when false statements were made which induced you to enter into the contract. So if the PHONECOMPANY salesman says "we will never change these terms," then the terms change, you may be entitled to relief (this is just a simple example at hand).
Capitalism is not unfettered, you have substantive rights under common contract law. But "poor service" is generally not a material breach of a contract, which means you are not entitled to relief or to back out of the contract. Not giving you a new, cheap phone when you lose your phone, is typically not a breach of contract at all etc.
AT&T/Cingular already tried these terms with their cel-phone service. They failed.
I recall another major telephone and/or cable company that added this 'you must use arbitration' clause to their contracts, and then they were sued and the judge ruled it infringed the individuals rights. Here's one ruling I found using google:
http://www.consumeraffairs.com/news04/2006/12/arbitration_challenges.html
And an interesting article on more recent 'arbitration' law:
http://consumer-law.lawyers.com/Consumer-Contracts-Mandatory-Arbitration-Clauses.html
I guess AT&T is hoping to get 'grandfathered' in...
Sleep your way to a whiter smile...date a dentist!
> If your State allows a ToS to ban class actions, change your laws.
I'd love to, but I'm pretty sure that AT&T uses the money it extorts via unfair and unconscionable contracts like this to pay lobbyists to ensure that my congersscritters allow them to screw us.
same as if there was a clause allowing them to rape your mom. illegal clauses in contracts are unenforceable.
do not read this line twice.
Also bear in mind that consideration does not have to be large, it just has to exist. The common example is the single peppercorn - it is enough to qualify as consideration. Size does not matter, it simply must be aggreed upon by both parties, and it cannot be nothing - you can't have a contract where you agree to pay $20 per month without receiving anything in return, you must receive something, even if it is only a peppercorn.
Poor service is not enough to be breach of contract if they are fulfilling the elements of the contract, only at a lower quality than expected. Unless of course, you've dictated the quality as an element of the consideration.
So if the PHONECOMPANY salesman says "we will never change these terms," then the terms change, you may be entitled to relief (this is just a simple example at hand).
The salesman does not need to say the terms will never change, a contract is not valid in the US if the terms have been changed but not agreed to by both parties. That is a federal statute, state law cannot override it, and if they try to force you into arbitration you can flip them the bird and sue for breach of contract. You might even have a shot at suing the state if they push it too much (and of course, you are actually protected by the federal statute). State laws are trumped by federal laws in every case, so state mandated arbitration does not apply when a federal statute is being broken.
Attempting to change your contract without your consent definitely falls under federal contract law. You cannot sign away your rights, and state laws cannot restrict or eliminate rights granted under federal law.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Can't speak to DSL but back in the day there was some flaky (X.25) CSUs out there that would start having problems and get fixed, temporarily anyway, by running a line test. The reason was that the test required putting them into loop back mode and then switching them back which reset the connection.
You should have gone to the AG first, and sued after. $1200 is well above the $500 required to be considered a felony, and that doesn't go to piddly small claims court, that goes to federal court. No doubt when your AG found out and started poking around PayPal's lawyers began shitting bricks, hence the reimbursement.
Now, that judge was obviously a dumbass, and if you had opportunity to vote on her re-appointment (I don't think you normally do for local courts) I hope you voted no.
For breach of contract (NOT THEFT!) the jurisdiction is often pre-determined when it involves inter-state commerce, and that IS enforceable.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
Frankly I agree with most of what you said above, with only one correction:
Russia had 0% unemployment but 1/3 of the country could not afford a loaf of bread per day. Even if they could afford it, the supply always ran out. China caught things before it got that bad,
The Chinese went *much* worse than the Russians (including the Stalin-induced famine in Ukraine in the '30s, mostly due to the bizarre era of the so-called "Great Leap Forward", the second five-year plan that started in 1958.
Catalin Braescu
Ofaly.com
No system is perfect. And free markets only work if they are free and there is sufficient competition. In "capitalism" it is the job of the government to ensure competition, but, that idea got pretty hammered in a recent administration, which felt it was the job of government to make sure campagne contributors can maintain their monopolies.
I'm not sure how it works in other states.
Comcast did not come from the split up of AT&T (otherwise I would own lot more share of Comcast). The split went to the "Baby Bells", which were Ameritech, Bell Atlantic, Bell South, NYNEX, Pacific Telesis, Southwestern Bell, and US WEST being created. AT&T still existed after the breakup as well. Verizon was formed when Bell Atlantic merged with Ameritech. Southwestern Bell, eventually changed their name to SBC, who later bought Pacific Telesis, and later then bought AT&T Corp (and changed the name from SBC to AT&T Inc since AT&T carried the bigger name, even though it was the loser of the takeover), and finally purchase Bell South.
So recap, AT&T, split to 8 companies, then years later when the government stopped their regulation and allowed free market forces to dictate, those 8 phone companies consolidated into 3 companies, AT&T Inc, Verizon, and Qwest (Qwest formed from US WEST). Don't be surprised when further consolidation occurs. The only good thing going right now is that Verizon is primarily located on the north east, and Qwest is obviously in the mid-west/western side of the country with AT&T covering the entire middle and southern portions of the country. Verizon and Qwest are less likely to merge due to this large physical separation.
We were all warned a long time ago that MS products sucked, remember the Magic 8 Ball said, "Outlook not so good"
Hm, I don't think that was the grandparent's point. Under Mussolini, Italy became highly dependent upon Germany. The dictator himself became a puppet in the hands of the German government, and much of his own population saw him as a traitor. By the end of WWII, Mussolini and his lover were captured, shot and hanged by their ankles by a gas station to have their corpses desecrated by the public.
As a consumer you might have right above and beyond whatever is in the contract. They cannot put a clause, for example, that goes against any laws.
They can, however clauses are null and void. It isn't unknown for companies, especially large companies, to put clauses they know full well are unenforcable in contracts to call people's bluff.
Someone else wrote "great, now I can get out of my contract for free", but are you really required to rip up the contract you already have? That they won't renew the existing contract is fine, but ... telling you to rip the one you have up?
They don't tell you to cancel your contract. If you write to them that you do not accept the new terms, they will either continue the contract on the old terms or cancel the contract.
You can either sign it or release me from my contract.
That's not how it works. You'd have to write: "Your continued rendering of services constitutes acceptance of these terms". You should also include terms that make them pay for the privilege of getting spanked, and pay even more if the CEO is unavailable for any reason.
Schwartz v. Comcast also found to be invalid in Pennsylvania. And I believe it's also invalid in Washington and California.
upon the advice of my lawyer, i have no sig at this time