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.

Comments

Great

[imamac]

Now I can cancel my contract with no fee...

Re:Great

[Drantin]

If they change the contract after the fact, it may no longer be binding...

Re:Great

[Tawnos]

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

Re:Great

[dimeglio]

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. You cannot make you sign away those rights, at least where I live.

Re:Great

[Sponge Bath]

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.

Re:Great

[nosferatu1001]

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.

Re:Great

[deathy_epl ccs]

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.

Re:Great

[QuoteMstr]

Sorry, I prefer the "unfettered capitalism" of the past -- at least, it was efficient and the same rules, however difficult, applied to everyone.

Unfettered capitalism inevitably leads to wealth concentration, and wealth concentration inevitably distorts the political system into favoring those with wealth. Even if you start out with the same rules applying to everyone, after a few decades, that's assuredly not the case anymore. Consider the big trusts of the 19th century, or the original AT&T, or the Teapot Dome scandal, or the more recent Department of the Interior Scandal, or own present-day financial system as described by Simon Johnson.

People like you, against all rational self-interest, argue in favor of those who currently hold the reins of power. People like you comprise the lunatic fringe that's historically impeded any attempt at breaking entrenched powers and enriching the life of the common person. In short, fuck you and the libertarian horse you ride in on.

Re:Great

[Anonymous Coward]

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.

Re:Great

[Goaway]

Ah yes, the good old "free markets are great because free markets are great" argument!

Re:Great

[blackraven14250]

In all reality, people need to see the middle ground. people like you (the parent) slam the corporations, and advocate for government, which will try to consolidate power. People like the grandparent say corporations will be good themselves, when in reality, they will consolidate power. You're both morons on your respective counts. The entire way we've even survived as a country is by playing the two interests against each other in our (the people's) favor. How else do you think people keep these massive entities under control?

Re:Great

[Hes Nikke]

I think you are confusing "Capitalism" with "Free Market." Like Fascism, Communism, Socialism, and may other isms, Capitalism is anything but free, hence the likes of AT&T.

Re:Great

[severoon]

What I can't understand is: why did they stop there? They could have gone on to say, you can never ever sue us, individual or otherwise, and you have no right to arbitration either. Their contract may as well be seven words followed by a dotted line:

ALL YOUR BASE ARE BELONG TO US.

x______________

Re:Great

[QuoteMstr]

In all reality, people need to see the middle ground.

Middle ground? The middle group between 'okay' and 'horrible' isn't 'good'. You have a point in the abstract. But right now, entrenched interests have far too much power to worry about whether we're being too hard on them.

Re:Great

[davester666]

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...

Re:Great

[quanticle]

Does that Act still apply even if the contract contains a clause allowing one party to change the contract at will? In other words, what if the contract contains language allowing for its own mutability.

Re:Great

[ErikZ]

"Unfettered capitalism inevitably leads to wealth concentration"

Which successful system doesn't? Once the winners get to the top of any system, it's in their self interest to stay there. It's best to deal with it after the fact, instead of placing down onerous rules that hamper everyone.

China, India, and Brazil aren't advancing due to their awesome social policies. That's capitalism baby.

Re:Great

[blackraven14250]

Actually, by "middle ground", I'm not talking about just getting into the "bad" category. It's more of a separate thing that allows both to exist. It's called "the people". The people make up both government AND corporations, and we have the power to do with them what we please. We did, and should continue to, play them against each other to make our lives better. I'm not advocating for not being hard on them both. Be hard on BOTH of them, rather than the one you choose to fight for. There's no reason for us to allow either to become too powerful. We gave both the government and corporations power with the intent to wield it and benefit ourselves. Everyone in this country either sides with government or corporations, which is completely countering the population's goals. Why not side with the people? Why not side with the only entity that can outright control everything we've created? This doesn't fall into the category of any adjective other than smart. If we didn't, and if we don't in the future, we're going to be fucked over by things we made to help us.

You don't let the two strongest types of entities that we've ever created work together. That's bad for the people.

There's nothing abstract about this. In fact, what you're talking about is really the point I was trying to get across to begin with. I hope I made that much, much clearer this time around.

Re:Great

[liquidsin]

same as if there was a clause allowing them to rape your mom. illegal clauses in contracts are unenforceable.

Re:Great

[Bigjeff5]

I love how all of your examples of "unfettered capitalism gone wrong" involve the US Government circumventing the market, it is pretty much the opposite of "unfettered capitalism". All of these issues were caused by Government involvment and regulation - the WORST example being Bell Systems, which received a government guaranteed monopoly on telephone infrastructure. The company was eventually split, bringing about the likes of AT&T and others (ComCast and Verizon came from this as well, though I believe they had different names at the time). The taxpayer funded infrastructure was almost certainly necessary, but the government sanctioned monopoly was the worst way to go about it. We still deal with the results of that interferance in market forces today.

So, the only examples you have of capitalism failing are all at the hands of government interferance, and you want to use that as proof the government needs to be more involved? What are you, stupid? That's the same logic that bails out a tanking company and then gets upset about shareholders rewarding CEOs million dollar bonuses for saving their bottom line.

The common person's life is most enriched when they have the most opportunity to succeed. Communism has shown that when the government controls and owns everything, the common person has the least opportunity to succeed. Look at Soviet Russia before it collapsed or communist China before they began introducing more capitalism to their system, 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, and now they are becoming the dominant economic power in the world, yet you could hardly call it a free country. Anarchy is just about as bad, the only thing that may make it better than communism is the fact that at least you have a chance (if a slim one) to rise out of nothing to succeed.

What the government SHOULD be doing is attempting to make the market as free as possible for the individual. This requires some regulation and control, but the goal should not be to make it fair to everybody (that's impossible, in any system), but to create the most individual freedom without inhibiting another individual's freedom. The -only- economic system that can do that is a capitalist system. Socialism looks good on paper, but the further you try to push it the worse it gets. Capitalism is much easier to predict and control, though you can see the results of poor government regulation in the recent crisis as well. Dig into the root causes of the market crash, and you'll see quite a lot of government involvement in unbalancing the market. All in the interest of "enriching the life of the common person". I bet all those people who were recently forclosed on feel real enriched thanks to the government programs that allowed them to buy houses they could not afford.

In otherwords, quit reading the bullshit of a bum who'd rather complain about his station in life than work to improve it (aka, Carl Marx) and open your eyes to what really happened, and what continues to happen to further fuck over the "common person". Under the current leadership (Bush and Congress included), we have the super-rich who are too big to fail, and the lower class who are too small to succeed.

Go ahead, try and get some bailout money for yourself, you'll see what I mean. Too small to matter, that's what the "common person" is to Obama, Congress, and hell the rest of the US Government.

Re:Great

[Mozk]

I think you are confusing him with somebody who gives a shit.

Everybody on here spews bullshit about socialism, capitalism, free markets, etc. Arguing actual facts on here is irrelevant when we must debate the definitions of terms that have multiple meanings in various contexts.

Re:Great

[Rand310]

It is actually a critical and fundamental pillar of capitalism that the participants be well informed (read Friedman and others). Academically, if the consumer is so bogged down in misinformation or overinformation that they are not well informed than the assumptions that allow capitalism to work so well break down - and the results can no longer be considered the product of a capitalistic market.

Re:Great

[Bigjeff5]

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.

Re:Great

[mysidia]

A clause like that would be so one-sided that attorneys could probably bring a case and claim that the "lawsuit immunity" makes it an unconscionable contract, or makes the document an illegal contract (since it denies a party of their right to avail themselves of legal remedies against breach).

When the courts see something like that, they are likely to take a punitive stance against the maker for contriving such a one-sided agreement and claiming its a reasonable contract. E.g. Other terms they want to be enforceable are more likely to get stricken too.

If the whole thing gets found to be an illegal contract it can't be enforced against the consumer. So for example, if the suit was to avoid having to pay a termination fee, such terms might ultimately result in summary judgement against ATT.

The maker of a contract generally wants severability to be utilized, so if one term is unenforcable, the rest of the agreement stays in full force. But if they're so blatant as to say "YOU CANT EVER SUE us," the courts may be prone to simply ignore it and throw the whole thing out.

Re:Great

[mysidia]

How about if the contract says: "You also agree to the terms at http://somedomain.example.com/terms.php?t=3528905325 incorporated herein by reference." ?

Where, of course, the terms at the URL are constantly being changed. And you only know what they originally said, if you printed them and kept a printout (which 90% of people won't do) ?

Oh yes, and every 6 months they'll send you a letter by post that says "The terms of service at this URL have been updated. By continuing to use the service, you agree to the changes. Reply to this message or call us to cancel service if you do not agree to the new terms."

But they won't tell you what the changes are, or even keep record of what/when they changed things. So you have to manually print and re-read the entire thing every 6 months if you want to keep up on the updates.

Re:Great

[Rob the Bold]

The people make up both government AND corporations, and we have the power to do with them what we please. We did, and should continue to, play them against each other to make our lives better.

This is Milo Minderbinder's "we all own shares in the syndicate" philosophy from Catch-22, a parable about Capitalism. The American and German governments were at war with each other, but both contracted with and for the "syndicate". So if you were asked to bomb your own country's assets, it was because the syndicate contracted for it. And since everyone owned shares in the syndicate, it was to his own benefit to bomb his country's own stuff.

In the book, as in real life, while everyone does own some share of the "syndicate", the vast majority of the shares are in the hands of the few. Like the guys in the planes contracted to be shot down by their own "side", it's not the large shareholders that will be asked to make the sacrifice for the good of everyone.

Re:Great

[cbraescu1]

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.

Re:Great

[dave87656]

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.

Re:Great

[T Murphy]

AT&T might just be trying to make people give up, or at worst follow the rules. It doesn't matter whether the contract is enforceable if few enough (no one?) test it.

Re:Great

[metacell]

I agree with everything except the last clause - "the results can no longer be considered the product of a capitalistic market". It's an example of the "no true scotsman" argument.

If a capitalistic market fails because people are badly informed or misinformed, it's still a capitalistic market, and we have to accept that capitalistic markets don't work well under all circumstances.

Re:Great

[Eskarel]

The problem is that "winner" has multiple definitions, and not all of them are nice.

Unfettered by any law, the "winner" is usually chosen by the law of the jungle. They're usually the guys with the largest body count, and, generally speaking, they're not nice people. It's not really all that good for society to have them be the "winner", and it's sure as hell not good for the people who are the "loser", which in all reality is the vast majority of us.

This leaves us wanting to change the winner. Now you've really only got two ways to change the winner. Either you remove the current winner from the game and let the game pick another winner, who will basically be the same as the previous winner, OR you change the rules.

Those of us who favor more regulation basically want to change the rules so we can change the winner. Sometimes when people want to do that it's because they want the winner to be themselves, but sometimes it's because they want a situation wherein the winner doesn't make the losers life so terrible.

That's what civilization is really about, trying to control who wins so that the people who lose don't lose as badly. Despite what everyone tends to believe, the average person has far more power today than they have ever had in the entire history of our species. It's not uniform throughout the world, but it's certainly better overall pretty much everywhere.

The reason people think that this is not the case is that, because the average person covers a lot more kinds of people than it used to, they personally have less power. If you are an educated, white, western male, you have less power than you did 50 years ago, because we're sharing that power with a lot more people than you used to have to share it with. That's not necessarily a bad thing.

Re:Great

[bdsesq]

They want you to think you have no rights and cant do anything.
Just like the signs in parking garages "Owner is not responsible for......"
In fact they are responsible. They just want you to think you can't sue them.

Re:Great

[mpe]

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.

Re:Great

[mpe]

But if they're so blatant as to say "YOU CANT EVER SUE us," the courts may be prone to simply ignore it and throw the whole thing out.

Even in the absence of a law voiding such clauses in contracts if you were to sue on the basis of a beach of contract the defendent would have a tough time using that claim in court. If the judge had a good sense of humor he/she might treat the case as uncontested.

Re:Great

[slack_justyb]

House Resolution 1020 is a bill that will address this kind of forceful arbitration. However, the bill is currently in committee and if people do not get the members of this committee to move this resolution to a floor vote, then this is all pretty moot. Please take a look at the members of the House Committee on the Judiciary. If one of the members is your Representative, write them. Otherwise this thing will most surely die in committee since this is not the most pressing matter on the public's mind.

If your Representative is not listed as a member of the House Committee on the Judiciary but you live in the same state as a member of the House Committee on the Judiciary. Write your Representative to urge the member to move the bill to the floor, so that your Representative can get a chance to help you out. Usually, members of the same state know each other pretty well and talk to each other about broad topics that affect the state as a whole.

If you live in a state that has no members on the committee. Check to see if your Representative or a Representative from your state co-sponsored the bill. If so, make your case using that point; if not, write your Representative asking why they did not co-sponsor the bill and make your point about how not having legal recourse affects you and your community in general.

Always remember one big point when you write your Representative...Always make sure you make it entirely clear what it is you expect your Representative to do, and make sure it is within their power to do so. If you just tell them about HR 1020 and that they should support it, then all you are going to get back as a reply is, 'their sorry but it must make it out of committee before they can do anything about it, but if it does make it to the floor they'll be sure to consider it carefully. Yours truly, Rep. Blah Blah Blah (X-Your state).'

Re:Great

[PitaBred]

What annoys me more are the signs on the backs of dump trucks that say that they're not responsible for broken windshields. Especially considering that there are multiple laws requiring that cargo be properly secured.

Re:Great

[StikyPad]

I believe that would actually be *bluffing*, not calling a bluff.

Re:Great

[Eskarel]

The free market doesn't exist the way you think it does, it can't because the free market is ALWAYS subject to external non free forces. One guy with a gun can set the price of any object to zero. A seller can lie to you about what they're selling, contaminate what you're buying, or any number of other things.

Regulation is just the rule of law applied in a specific circumstance, and if you think that because all of a sudden I'm selling you something or buying something from you that I'm no longer a human with all the general faults that humans have which require all the other laws we have, then you're an idiot.

We need laws to stop people from killing people, and we need laws to stop businesses from killing people. We need laws to stop people from stealing from people, we need laws to stop businesses stealing from people. Businesses are made up of people, and they're just as likely to be dishonest scum sucking weasels as any crack addict you might find in a dark alley. Perhaps even more likely since that crack addict has to kill you with his bare hands, whereas the CEO only has to sign a piece of paper.

Regulation is necessary, it always has been and it always will be. The question up for debate has always really been, which regulations are appropriate and which regulations are inappropriate. There are certainly bad regulations, but there are also good ones.

You also have to remember that when certain actions are taken, like pouring toxic waste into a river, certain costs are incurred. The company doesn't incur those costs, the people living by that river do. As a representative of the people living by that river, the government is quite right in stopping the company from pouring that waste in.

That's a rather simplistic example of course, but the principle is the same. The free market does not make flawed people less flawed. The free market relies fundamentally on the rule of law for it to function(most specifically the legal protection of property). The idea that an individual is subject to the law, but that a group of individuals should not be is a logical fallacy. Therefor law needs to apply to corporations, and that's what regulation is.

Sounds like a great opportunity

[palegray.net]

... for a class-action lawsuit over their attempt at preventing class-action lawsuits.

Re:Sounds like a great opportunity

[greatica]

I'll patent this idea first and then all your class action lawsuit moneys are belong to me!

Re:Sounds like a great opportunity

[SBFCOblivion]

I agree. Years ago PayPal had this in their terms of service. In addition they had a stipulation that you could only sue them in their home state, which I now I forget.

At the time people were having bogus charges taken out of their accounts, we'll say $100, and because you couldn't form a class action it wasn't worth the money to sue them independently.

Some people did get together and sue them over not being able to form a class action and it was ruled that their TOS weren't fair or some such.

I could go dig through my old Cyberlaw book if anyone is interested but I can't remember the specifics off the top of my head.

Only in a thoroughly corrupt society

[QuoteMstr]

Only in a thoroughly corrupt society can big corporations get away with saying "you can't sue me because I don't agree to be sued", while other big corporations win judgments against common people for thousands of times the actual damages. I thought only sovereign nations were supposed to be able to just decline a lawsuit.

Re:Only in a thoroughly corrupt society

[palegray.net]

This will not hold water in the courts. Don't panic.

Re:Only in a thoroughly corrupt society

[ScrewMaster]

Only in a thoroughly corrupt society can big corporations get away with saying "you can't sue me because I don't agree to be sued", while other big corporations win judgments against common people for thousands of times the actual damages. I thought only sovereign nations were supposed to be able to just decline a lawsuit.

It's called "Corporate Government".

Mussolini defined it as "corporatism."

Re:Only in a thoroughly corrupt society

[ScrewMaster]

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.

Re:Only in a thoroughly corrupt society

[TubeSteak]

Only in a thoroughly corrupt society can big corporations get away with saying "you can't sue me because I don't agree to be sued",

You can (or can't) sue a company based on your State's laws.
Just because AT&T puts it in the contract doesn't make it enforceable.
If your State allows a ToS to ban class actions, change your laws.

Re:Only in a thoroughly corrupt society

[QuoteMstr]

My point is that there is something terribly wrong when laws allow companies to decline liability via a standard form contract. The practice obviously favors large corporate interests over ordinary people. When companies large enough to have legal departments start to be dominant force shaping policy, we know we're the sick man of the world.

Re:Only in a thoroughly corrupt society

[palegray.net]

Stuff like this won't make it any harder to bring suit. In many jurisdictions, the law has specific prohibitions against the validity of this kind of blanket clause in contracts.

Re:Only in a thoroughly corrupt society

[Anonymous Coward]

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.

When AT&T said more bars, that's not quite what I had in mind.

Re:Only in a thoroughly corrupt society

[Orion Blastar]

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.

Re:Only in a thoroughly corrupt society

[QuoteMstr]

consumer

I hate this word. The word just reeks of passivism, acceptance, and defeat. With apologies to George Orwell, all a consumer does is choose which color of corporate boot is stamping on his face forever.

I prefer the word "citizen".

Re:Only in a thoroughly corrupt society

[moxley]

That is a good point you make. We have institutionalized corruption in America - and it has evolved with a diabolical incrementalism, and its not like it has just happened at random, via some fucked up legal natural selection.

Things never seem to get better for the average person, and if they do, it's one step forward and two steps back. ...I wish there was a way to do an end run around all of this bullshit and get some sort of protection for the common people....Like, a contract with government that defines our rights and protects them, makes clear that they are inherent and not granted by man, and in order to work properly it would have to make clear that it alone is the highest law of the land.......ehhh

  The exclusivity deals are a part of this - AT&T is what it is right now because of the Iphone, without that they wouldn't have the market share they do...I have to say that I think it's time for mass resistance to this kind of shit. All of this kind of stuff is why I think, instead of feeling bad, a lot of people actually feel great when they download corporate copyrighted material, or reverse engineer their handsets or do whatever it is they want to do with their technology...it's the only way a lot of people feel like they can fuck these assholes back for once.

Re:Only in a thoroughly corrupt society

[shadowofwind]

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.

Right. A few years ago when my wife sued PayPal to recover $1200 they stole from her, the judge threw it out both on grounds of wrong jurisdiction and that the PayPal contract says they can't be sued. The fact that PayPal just flat took the money and repeatedly lied about even having it, did not outweigh the fine print in the PayPal user agreement in the mind of that particular judge. (This was back before eBay bought PayPal, and their internal policies may have been more corrupt then.) Fortunately, PayPal did promptly give the money back (with no explanation) when a state Attorney General inquired about the case. So the system isn't completely broken, and the outcome was right. And at least the lawsuit forced PayPal to pay a lawyer for a few hours to show up in court. But the point is the bogus clause in the user agreement did stop the lawsuit in this case. (The jurisdiction question was a separate issue - there was some contradictory guidance about what state to sue in since the theft occurred online.)

Re:Only in a thoroughly corrupt society

[Repossessed]

That depends on the state. I know New York allows this.

Re:Only in a thoroughly corrupt society

[Bigjeff5]

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.

Re:Only in a thoroughly corrupt society

[swv3752]

Oh great. You can quit, and maybe get a job somewhere else with the same type of contracts. Having the choice between eating a shit sandwich and a shit wrap, still means you are eating shit and flour.

Re:Only in a thoroughly corrupt society

[winwar]

"$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 it doesn't. Sure, you can take it to federal court. But you would either have to be a moron or willing to spend serious time and money to make a point. Great if you have the time and money...

"No doubt when your AG found out and started poking around PayPal's lawyers began shitting bricks, hence the reimbursement."

I doubt they panicked. One person is an annoyance. One AG looking to make a name for themselves can be REALLY annoying. What would really cost them money is being regulated like a bank.

Re:Only in a thoroughly corrupt society

[metacell]

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.

Re:Only in a thoroughly corrupt society

[dkleinsc]

See, you don't understand: the people of the United States aren't "citizens" anymore, they're "consumers", "homeowners", "taxpayers", and "workers". They only matter insofar as they engage in economic transactions that benefit the wealthy and powerful.

Re: phirst post!

[jamstar7]

Sure you can. Just write that into a binding contract that both parties agree to.

Really?

[QuoteMstr]

What further evidence do we need that "sanctity of contract" should not be the most important principle in a legal system?

Re: phirst post!

[Shin-LaC]

Contracts are weaker than the law. If your contract has terms that are forbidden by law, those terms are void (and possibly the entire contract, and you might be liable for punitive damages).

Of course, I have no idea if US law has such provisions against attempts to forbid class actions.

We don't have to care.

[symbolset]

We're the phone company.

Aren't they required to honour the original?

[MartinSchou]

Aren't they, as cosigners, required to honour the original contract?

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?

I'm fairly certain you couldn't do it the other way around.

"AT&T? Hi, I'm just calling you to tell you, that I've faxed over the new terms of our contract, stipulating that I get to spank your CEO in public every Saturday afternoon. You can either sign it or release me from my contract. Yours truly $name."

Somehow I think that'd just be ignored by AT&T and the courts alike.

EULAs

[stagg]

This is very reminiscent of lengthy, legally binding EULAs on software and webpages that the average consumer doesn't read or understand.

Re: phirst post!

[Tubal-Cain]

That works fine in non-monopolistic markets. When AT&T is your only choice for DSL, however...

Re:Next step

[ktandaeo]

That would make them a homeowners association.

Hey guys...

[RabidMoose]

...I know nobody ever reads TFA, but there doesn't actually seem to be one here. Just a link to the company's website, and two articles to provide context to the non-existent article.

Re:Hey guys...

[stagg]

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.

Re:Hey guys...

[stagg]

"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.

Re:Hey guys...

[fatalwall]

Also if you go on the site there is no date stamp telling you when the contract was last updated. The date stamp leaves me rather displeased with ATT though as i should not have to guess when it was last updated

Re:Hey guys...

[Anonymous Coward]

I can't speak to any other state than MA and even then only as a self-researcher.

There are many occurrences in our laws of the phrase, "... held to be against public policy and void ...," and I can't imagine that a non-sue clause would hold water here.

One might even cite as precedent, the very specific law that bans such clauses in Landlord-Tenant cases.

How can requiring arbitration...

[introspekt.i]

...take away consumers right to class action lawsuits? I thought requiring arbitration was one of those things like signing a waiver from liability, it gives the illusion of some legal protection, but it's not always the case? IANAL Please advise/inform if you know.

Wow, this is serious

[dada21]

I find this repulsive because AT&T services are something that should be considered a life necessity. Since AT&T is the only business that provides these services, consumers have no choice where to get this required need to sustain their lives.

What we really need is another option than AT&T, so that when we are given the contract to sign, we can just say "no" and go to a competitor with a less stringent contract.

That will be the day, friends, when the first competitor to AT&T arrives and gives us an option.

Oh, wait...

"Pray I do not alter it any further ..."

[pentalive]

(including for existing contracts) from the summary

I love how they change the contract after you have agreed to it.

Re:"Pray I do not alter it any further ..."

[Brian Gordon]

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.

Re:"Pray I do not alter it any further ..."

[Skye16]

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.

Re:"Pray I do not alter it any further ..."

[Archangel Michael]

I love how they change the contract after you have agreed to it.

Send in a notice with your next payment of your bill, that you've revised the contract additionally, and include provisions that the next time they change the contract, they owe you all payments previously remitted on your part, or something equally absurd. Make sure that you include that acceptance of payment constitutes agreement to the new terms and conditions. If they would like to cancel your account that they have 15 days to notify you of that cancelation of the account, and you are not liable for the terms of the previous contract, since they started renegotiations of the terms of the contract.

ALL it takes is being able to play the same stupid games they play, only play them better.

there's a reasonable chance this is not enforcable

[hedrick]

A number of cases like this have gone through the court. Often enforcement is at the State level, but several state courts have indicated that terms like this are not enforceable.

I'm pretty certain this has been the case for ages

[Mister Xiado]

The problem is, the morons who are only going with AT&T because they simply MUST have an iPhone are the same type of idiots who won't read their bills, much less the contract before signing it. Did you know that if you call AT&T to complain about minute overages and data use charges, your service can be terminated without notice, immediately? I can assure you that it won't unless you start making threats over the phone, but it's in the damn contract, in which the only fine print is the names of the cities on the coverage map.

Re: phirst post!

[Anonymous Coward]

From what I understand they don't have the right to limit all complaints to arbitration, but the contract is there to make people THINK they have given up the the right to sue.

This clause is likely no different.

Keep an eye on H.R. 1020

[e9th]

H.R. 1020 is an attempt to put some reasonable limits on mandatory arbitration. It's not doing too well, but write your congressman.

Re: phirst post!

[node 3]

Sure you can. Just write that into a binding contract that both parties agree to.

Um, that's kinda the point nonewmsgs was making. Can you make such a contract that is actually binding? Just because a contract has been understood and agreed to by all parties does not make it binding.

Re:Surprised?

[93 Escort Wagon]

I already canceled my AT&T service over their use of warrantless surveillance, their censoring of Pearl Jam, their blocking of web sites, and their influencing of American Idol voting outcomes. There are alternatives out there, and AT&T will only be able to continue doing stuff like this as long as people keep doing business with them.

Let me get this straight - you place "influencing of American Idol voting" on par with "warrantless surveillance"?

Is the link correct?

[wrencherd]

The link in the post above points here:

http://www.businessweek.com/magazine/content/08_24/b4088072611398_page_2.htm

Is that the correct article? That one seems to be about bank issued credit cards--was this intended?

is this legal? certainly not ETHICAL

[v1]

There are a lot of specific examples of where you can't just dump in certain exemptions into your TOS and wash your hands of liability. I'm surprised this isn't one of them.

I don't see why it's legal in a generic sense to be able to surrender your rights to legal action as a TOS.

The Free Market Punishes Consumers Again

[MarkvW]

This is a great reason for public-owned internet services. Once they get monopoly power, you feel the business end of their business.

Re:The Free Market Punishes Consumers Again

[Aladrin]

It's not a free market. There are government controls that prevent it from being a free market, like allowing people/corporations to own certain frequencies of radio waves.

Re:The Free Market Punishes Consumers Again

[Macrat]

Or when corporations run the government.

Monopoly on DSL != monopoly on Internet access

[tepples]

When AT&T is your only choice for DSL, however...

...then you switch to cable.

Re:Monopoly on DSL != monopoly on Internet access

[MadnessASAP]

Yes, It's like going to prison and having the choice of being raped ever night by either Bubba OR Mo, you have 2 great choices for your raping preference, you should feel blessed to live in a country that will allow you the freedom to choose who will violate your asshole.

Re:Monopoly on DSL != monopoly on Internet access

[Foobar of Borg]

Yes, It's like going to prison and having the choice of being raped ever night by either Bubba OR Mo, you have 2 great choices for your raping preference, you should feel blessed to live in a country that will allow you the freedom to choose who will violate your asshole.

You have also done a very good job of describing our two party political system. ^_^

Re: phirst post!

[GoodNicksAreTaken]

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.

Re:Nothing beats the government

[node 3]

How exactly is that outrageous? The MTA might change their terms, and they will make an effort to let people know about it in various ways, although probably not by sending out mail to every MTA Fast Lane participant?

Oh! The horrors!

Most corporate terms of services have similar clauses, although the lack requirement for written notification isn't always included, there are many situations where it is. In fact, the only examples where I recall receiving terms changes via mail these days are from financial institutions, which makes me think it's most likely a legal requirement. Everyone else pretty much just tells you to keep your eye on some web page somewhere.

Contract buggy blue, no suing back!

[Arancaytar]

Forgive my non-lawyer ignorance, but can you actually forbid someone from suing you? As a retroactive clause in a contract, even?

"By downloading this pirated video off BitTorrent, you have implicitly agreed to forfeit any and all options of initiating a lawsuit for copyright infringement."

Wonder if that would work.

Hint: Probably not. :P

Re: phirst post!

[jeepien]

Likely this is more to discourage people who don't know any better from filing a class action suit, but it won't prevent them.

In fact, since this change affects every AT&T customer, this just may be a perfect cause FOR a class action suit.

Already tried, already failed

[Todd Knarr]

AT&T/Cingular already tried these terms with their cel-phone service. They failed.

Huh?

[compro01]

Didn't Comcast already get it's ass handed to them in court over similar terms?

You're looking at this all wrong!

[wbren]

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 is a big win for the consumer. We can finally rest assured that AT&T cannot enter into a class action against its consumers.

You might laugh, but this is AT&T we're talking about. To quote Angels in the Outfield: "It could happen."

Re:Torn.

[QuoteMstr]

But on the other hand, no one really benefits from class action suits except the lawyers.

What's the alternative? To let companies get away with violations of the law until the DOJ gets around to prosecuting them?

We all benefit when antisocial corporate actions are discouraged, even if we're not all made whole. Your argument is actually a reason for better class-action procedures, not a reason to dismiss the entire concept.

Re: phirst post!

[blackraven14250]

What if the class action is a federal suit?

Good. Fewer class-action suits helps the public

[Kohath]

Class action lawsuits are almost always a complete abuse of the legal system. They deliver huge multi-million dollar profits to lawyers. The "class" of plaintiffs usually gets a coupon or something worth less than $5. And the rest of us innocent people who just want phone service (or whatever) are forced to pay an extra de facto "tax" to cover the costs of the huge payout to the lawyers -- lawyers who are essentially free riders, who produced exactly nothing of practical value in return for the money they've taken.

In theory, class-action lawsuits protect consumers. But the current system harms consumers much, much more than it helps us.

Re:Good. Fewer class-action suits helps the public

[QuoteMstr]

Class action lawsuits could be improved, sure, but even in their present form, they discourage companies from performing certain actions, and that itself as value.

Re:Good. Fewer class-action suits helps the public

[piojo]

By your argument, monetary fines would be pointless, too. But it's still a punishment to the company in question--if they have to raise their prices to make up the difference, maybe more customers will go to a competitor (I think ATT has at least one competitor in most places).

Re:Good. Fewer class-action suits helps the public

[lilrobbie]

I'm interested as to which western nations don't allow class actions? The other point of interest is that this is a case where selling in a single place that allows class actions would essentially force the relevant company to try and avoid risk of these (i.e., release safe products) in all locations they sell at.

Basically, the only way to prove your assertion that evidence is lacking is to demonstrate that companies selling products ONLY in nations/places that don't allow class-action suits are releasing MORE defective/dangerous products compared to companies selling in at least one location that allows class-action suits. I'd draw a pretty venn diagram, but I'm afraid of how nerdy that might make this discussion seem!

Again, only in america.

[unity100]

putting terms into contracts that prevent/prohibit constitutional usage of rights by citizens ...

i never heard this thing in any other country, except african countries that are run by dictatorships. BUT, somehow, corporations do this in america, and not only they do not get their ass fined by constitutional courts, but also get away with it and even win cases.

please, noone give the 'great american system' bullshit to anyone, anymore. that kind of crap is unheard of. you dont have a fucking system, only something that enables big ass money holders to crample individuals and citizens.

Re:Again, only in america.

[freedom_india]

I agree with you.
Andrew jackson and Woodrow Wilson would be turning in their graves, while JP Morgan would be clapping.
In India, the reserve bank forced banks to cross-accept debit cards in their ATMs without surcharges. Naturally banks balked at this, but the reserve bank simply bulldozed over them. Now i can use any bank's card on ANY ATM without any surcharge. What's more the Reserve bank has forced them to put this on display in all of their ATMs.
Secondly, the local telephone companies wanted the ability to trash a consumer's credit score based on his telephone bill payment. The courts refused it.
Indian laws specifically make the corporate veil invisible in many criminal cases. So there are no "settlements" here. The CEO is prosecuted and jailed. No golden parachute crap, no evading responsibility.
My contract with my 16Mbps broadband provider specifically states that for every day the service is out, the company prorates the rental amount and credits my account with the money. Similarly iam free to use torrents, or any other crap. No restrictions.
if the speed goes below 12Mbps, the company of forced to charge me only for that plan rates.
Of course the company didn't like these terms: tough luck. The LAW and courts included this clause by force.
Preventing access to courts by arbitration is prohibited by law. Our Supreme court once thundered against this and put the CEO in jail for this.

The best society money can buy.

[Anonymous Coward]

> 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.

Re: phirst post!

[Ihmhi]

So you're telling me that this might not be legally binding?

Re:Don't buy the product.

[oDDmON oUT]

"If you do not like the contract, do not do business with AT&T. You've got a choice."

That depends. I know plenty of folks who are effectively locked into AT&T for "high speed" internet because:

• They live in an area not serviced by cable.
• The topography of the area they live in precludes LOS wireless access.
• They live in an area which has a dead zone effectively negating using "air cards" from another provider.
• The copper serving their area makes satellite an exercise in pain.
• Some combination of, or all of, the above.

So "choice" suddenly becomes a whole hell of a lot less easy...unless by choice you mean selling the family stead and moving into the city/burbs just to feed the coffers of the telcos to get HSI.

Re:Nothing beats the government

[mi]

And this is why I would *NEVER* give the MTA or any other similar organization free will to ...

You are getting off-topic. The reason I posted this example was to preemptively counter inevitable lamentations, how "unfettered capitalism" (of AT&T) is bad, and how "public policy needs to protect private business from its own excesses" (quote from Barney Frank — "my" congressman).

This uncontested absurdity of yesterday is already an acceptable slogan of today. Accepted "by degrees, by precedent, by implication, by erosion, by default, by dint of constant pressure on one side and constant retreat on the other — until the day when they are suddenly declared to be the country's official ideology," — to continue Ayn's Rand's quotation.

So, here was the example of the government agency being the worst offender — by far... And yet, people want to keep trying — be it health-care (woa-woa, flamebait!), car-making, or cellular service provision, why do the idiots think, that getting the government take over an industry is going to improve anything?

Unenforceable - The SCOTUS has already decided.

[Anonymous Coward]

I thought that the U.S. Supreme Court had already decided that AT&T couldn't force people to use arbitration [sfgate.com]?

Isn't AT&T just putting these things into their terms of service to prevent people who don't already know their rights from exercising those rights?

Creating terms of service which contain legally-unenforceable clauses should be illegal. Attempting to confuse people out of their rights is unconscionable, and AT&T should be forced to immediately create and distribute TOS not specifically mandating arbitration.

But because of their previous abuse of TOS, it would be good if their new TOS were mandated to include articles outlining that users do have the legal right to sue them and do have the legal right to participate in class-action lawsuits. This would discourage such abuses in the future, both abuses by AT&T and by other companies which may want to use similar misleading tactics.

Re:Speaking of Class-Action Suits

[Yaur]

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.

Re:Nothing beats the government

[WillyWanker]

Because in many instances the "public" option is superior and/or significantly less expensive than the private option.

In instances where consumers are being raped blind in the name of corporate profits, a government-run non-profit option is by far superior; it often supplies equivalent services (sometimes better) at a fraction of the cost.

Now this is not true in every area. Just most.

And this is exactly why corporate America, the GOP, and their buddies at Fox News so vehemently oppose any and all government run programs. Not because they are ineffecient and inferior, but just the opposite, and it ends the gravy train of unfettered corporate industries that line their pockets with billions dollars every year, at our expense.

I am a lawyer, and under California law...

[Anonymous Coward]

... courts have specifically held that you can't contractually waive the right to bring or participate in class actions for things like cell phone contracts, where the lawsuits probably aren't financially worth bringing one at a time. For two cases discussing this, see

• Shroyer v. New Cingular Wireless Servs., 498 F.3d 976, 983 (9th Cir. 2007), available at http://www.ca9.uscourts.gov/datastore/opinions/2007/08/17/0655964.pdf
• Discover Bank v. Superior Court, 36 Cal. 4th 148, 162-63, 30 Cal. Rptr. 3d 76, 113 P.3d 1100 (2005) available at http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/36/148.html (login required)

I'm not sure how it works in other states.

Re:no, the term to be familiar with is "material"

[xigxag]

Material here doesn't relate to an item ("physical matter") but to "something that matters," i.e.something of consequence. In other words, if the adverse terms have no actual impact (let's say they increase the fee for text messages from five cents to ten cents but you're already on the unlimited text message plan for the life of the contract -- that's adverse, but it has no material impact upon you) you might not be able to get out of the contract. But if they demonstrably matter, even if it's something that shouldn't affect you unless you are a nutjob (unlimited text messages goes from "unlimited" to "may be limited at carrier's discretion to 9999 per month") then you should be able to opt out.

Comcast was not part of the Bell breakup

[Fallen Kell]

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.

Re: phirst post!

[compro01]

Schwartz v. Comcast also found to be invalid in Pennsylvania. And I believe it's also invalid in Washington and California.