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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...
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)
The term to be familiar with is "materially adverse change in the contract."
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.
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.
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!
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
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"