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Amazon Payment Adds "No Class Action" Language To Terms of Service
wbr1 writes "I just received an email from Amazon Payments, the Amazon competitor to PayPal, stating among other things, that they were changing and simplifying their policies. It should be no surprise then, that similar to what PayPal and many others have already done, they have added language removing the right to class action lawsuits. See specifically section 11.3 (edited for brevity): '1.3 Disputes. Any dispute or claim relating in any way to your visit to the Site or Seller Central or to products or services sold or distributed by us or through the Site or Seller Central (including without limitation the Service) will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement... ... You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration you and we each waive any right to a jury trial. You and we also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.' This is becoming more and more common, and while the end user normally doesn't make out well in a class-action suit, large settlements do provide a punishment and deterrent to corporations that abuse their power. The question becomes, what do we do to fix this so that consumers are truly protected?"
That would make them unenforceable. I'd actually say we need to make the people who suggest such options to be prosecuted as attempting to corrupt the influence and sanctity of the courts, but I doubt that'll happen.
Heck, if the Constitution didn't make it a legal right, they'd probably try to remove that access. Yet another example of how the Constitution needs a bit of rewriting to deal with the problems of the day.
Not that we'll ever stop every attempt to weasel around it, but we can try to smack down a few.
Also the first person who mentions Stella Liebeck can suck it.
I've never understood why people use Paypal. All I ever hear is how horrible they are. Are credit cards so difficult to use?
I've received several class action post-cards or emails over the past several years. They always go in the trash (real or virtual). Most of them are for some imagined offense that a company has committed, and amount to little more than a shakedown by some law firm trying to make a quick buck. I'm sure there are legitimate class actions, I've just never seen any that have benefitted me.
Taking guns away from the 99% gives the 1% 100% of the power.
Hope that a judge deems otherwise, since you may as well agree to sacrifice your second child and 5 goats to use their service if they can do this...
As someone mentioned in a similar story (credit to whoever they are) you don''t get such shackles with in-store purchase unless there's ongoing payments!
subject says it all.
Before everyone jumps to conclusions,
Class action lawsuits are nice for the law firms that pursue them, but rarely do much for the people that are part of the class.
I've been involved in several in my life and never saw more than a few bucks.
As a matter of fact, you usually have to specifically ask to be REMOVED from the class or be assumed to be a part of it. Kind of like being automatically opted-in instead of automatically being opted-out. And after you are opted-in, you lose any right to sue them on your own.
Change the law to make this kind of clause unenforceable.
Oh, wait. That's hard work. We might even have to persuade other people that it's a good idea.
I have a better idea -- why don't we not do anything, and then later complain that the legal system is broken. That's much easier.
The question becomes, what do we do to fix this so that consumers are truly protected?"
Congresss needs to step in and clarify. Either just git rid of the class action (and replace it with what?) or confirm that all consumers have a class action right, no matter the language of the contract.
Even more far out, would be arbitration reform. Instead of arbitrators being hired by the companies that have a stake in the outcome, make the companies pay into a pool for each instance of arbitration they are called to. The arbitrator for a specific dispute would be pulled randomly from a pool of trained arbitrators. The could be industry specific pools, or just train the arbitrators in contract law. Of course if I were such an arbitrator, I'd throw out any contract over N pages. (Unless both parties had actual input into the contract)
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
Congress never intended pre-dispute binding arbitration clauses to apply to consumer contracts under the FAA but business-friendly courts have interpreted the law that way. Congress just needs to amend the FAA so that pre-dispute binding arbitration is not binding in consumer contracts, as well as prohibiting the requirement that consumers waive their right to class-action and jury trial pre-dispute.
It would also help if Congress gave the CFPA or some other pro-consumer leaning agency oversight of private arbitration companies because right now they have a massive conflict of interest since their customers are the big businesses that count on them ruling in their favor more often than courts would in consumer cases.
If you force people to live in a world without effective legal remedy, instead, you will see extralegal remedies being taken instead.
The music and video industries, with their resistance to digital distribution, have effectively entrenched piracy as a permanent competitor for a time period long past it had any claim of moral acceptance - because it's become easy and habitual.
I doubt this will happen here, but I expect that they will chip away at more and more rights in an unreasonable manner to further their own profit, and then we'll see a mass of illegal action of some kind or another until the equilibrium is restored - even if they retain the right, they'll fear to exercise it.
Without class actions, how can a company be punished for, for example, cheating a million people out of $10 each?
I suppose that the government could step in, but a class action has the advantage of providing a market-based solution to the problem. A greedy law firm can determine that the payoff will be profitable, and then invest their own resources to punish the offender. The fear of being on the receiving end of a suit helps keep big corporations in line, and this explains why they hate them so much.
Since there is no way congress is going to fix this when lobbied by the public we need to amend our political system in the following ways: : 1.) Stipulate that use of public airwaves by a licensed television station requires that the licensee provide access to the public airwaves for a reasonable amount of time. In this way we can provide access for advertising to public officials without requiring legislatures to sell their soul to gain access to what is basically a public right of way. 2) Make it illegal for congressman to be lobbied by people who are not from their district and they do not represent. Providing dinners / gifts by corporations or individuals to congressmen by people they do not represent should be the new definition of bribery. 3) Eliminate the integration of republican and democratic parties into the local election system. For example, the public voting machines and facilities should not be provided to private political organization. This should MOST DEFINITELY not be done for free. I am done with the republcian and democrat organizations wasting millions of taxpayer dollars for their own private ends. In this way, primaries need to be revised. Most explicitly, party allegiance should not be a factor for qualification for running in a primary election. This system disenfranchises independent voters. Maybe a few years after these things have been done we will have a congress that will pass laws that are for the benefit of the people, and they might just pass a law providing for the protection of consumers.
... big businesses that count on them ruling in their favor more often than courts would in consumer cases.
AFAIK, it's not just "more often", it's like greater than 90% of the time.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
Paypal is exquisitely convenient to use for eBay purchases, and eBay is roundly superior to most other online shopping.
That's not to say that Paypal doesn't have its faults - it's like having an employee who will do things for you, but can't be trusted with anything important or valuable. If you give the employee a bunch of cash, he'll keep it and won't give it back.
Or alternately, it's like skating on a pond where you know the ice is unsafe at one end, but you don't readily know where the boundary is.
It would be nice if Paypal had a customer-oriented business model. Heck, even obeying banking regulations would be an improvement, but for some reason they decided that the utility and convenience of eBay and Paypal are so great that they can afford to be predatory and run their business under the "cost accounting" model. That's the one where an immediate gain in value (like siezing the money in your Paypal account) is worth more than the calculated value of keeping you as a customer.
Paypal is fine so long as you don't trust it. Make all paypal purchase payments through a credit card (which *does* have a customer-oriented business model), don't let Paypal keep any amount of cash, don't give it the keys to valuable resources such as your bank account or in-depth personal information, and it's fine.
Using Paypal is like trying to tame a feral dog: always be prepared for an attack.
But they do nothing for the consumer. It's a market solution that benefits lawyers and encourages them to pursue frivolous class actions.
They pay-out to the consumer is a $3 off coupon and a pat on the back.
There should be financial punishments for corporations who harm vast swaths of consumers, but I'm not sure class action lawsuits were the solution.
Actually just need to get rid of one of the Supreme Court judges that ruled class action bars as constitutional. These really shouldn't be allowed under existing law.
*EOM*
Evolution: love it or leave it
If you don't like the terms of the agreement, you do not have to abide by it. Simply don't do business with your supplier. That wasn't hard to understand.
Maybe I'm missing something, since I've never had to go through arbitration (or small claims court). But couldn't a lawyer/firm put together a kit to show you what you needed to do to take these cases to small claims court, or even requesting arbitration? Do companies have a time limit for arbitration? I could only imagine if a law firm did a "class" action style sign up for these kits, and charged people a small amount of money for it (generic kit, couple hours, sell it for like $10 even) that it would cost these companies a large sum of money to respond to all of them.
No class action. Arbitration instead of court. Can corporations put terms in contracts that force people to give up their rights as citizens? Has this ever been tested in court?
Imma sue those bastards. Who's with me?
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
Don't shop there.
I don't buy stuff from any store I don't like, it's called personal choice.
I rarely read replies, it's my opinion and if you thought about your opinion a little more, I'm OK with that.
Generally, the only people who profit from the class action suits are the lawyers.
The two rules for success are:
1) Never tell them everything you know.
The government already steps in by providing courts with the power to enforce their judgements.
You punish companies by introducing loser-pays, or loser-pays-up-to-the-value-of-their-own-costs. Settling a class-action over 1,000,000 people swizzed out of $10 will be nothing compared to settling 10,000 cases with individuals, each with its own costs bill.
FGD 135
As others have pointed out the main benficiaries of class action law suits are the lawyers -- who make a lot of money out of them. Many law makers (Parliament/Senate/Congress/...) were lawyers when younger and will remain good friends with those who are still lawyers.They are not going to see their old profession or friends suffer: they will pass legislation to stop these sorts of clauses.
Cynical ? Moi ?
"don't like it -> don't use them" - what if you WANT to use them, and they are acting unethically [and potentially legally dubiously, depending on the result of legal action over it]? Not buying from them / using their services alone does nothing to RESOLVE that problem, Sherlock.
Class action lawsuits were invented by lawyers for lawyers. I agree that we need some other solution to punish companies that harm consumers.
I've been mistaken. You're probably heading to China, not Russia.
And it needs to be taken to court and struck down. Before people just accept it and move on.
---- Booth was a patriot ----
According to the Supreme Court in AT&T Mobility v. Concepcion, the term to ban class actions in a EULA or other non-negotiated agreement is actually valid. As such the term is getting added into every EULA during the re-writing process since the benefits are overwhelming (basically preventing a normal consumer from every suing you for fault since they could never recover enough to make it worth while) and the costs are nothing.
But they do nothing for the consumer.
Sure they do. The threat of a class action suit acts as a deterrent for potential abuse. Without the deterrent, corporations are more likely to try to engage in unethical or illegal behavior if they think it'll make them a buck.
--Jeremy
Jesus was a liberal
Normally if a contract contains something that is not legal, the whole contract can become void. So even if they put this in, how can this be legal?
If they put in their contract that they will now be the legal guardians of your children, that would not make it so. At least I hope.
Saying:Yeah, but you signed, does not make illegal contracts legal. I doubt it is possible to take away that kind of rights by signing a contract. I am using signing and not even 'clicking on ok'
Don't fight for your country, if your country does not fight for you.
Binding users into a contract that takes away their rights to litigate is just plain wrong. Class-action or not. If I don't like something Amazon has done with my privacy, history, purchasing info, whatever I should have every tool available to slap the shit out of them in court. Simply saying "Oh Hai, yeah that class action thing paypal did? We're doing it too so... lol.. fuck you. Love, Amazon" seems to me is just side-stepping the law in case they do something nefarious. Intentional or not.
I can totally see how Amazon might be worried a bunch of patent-troll lawyers might band together on a class action and sue them for selling Android devices with "Rectangles and Rounded Corners" or something just as douchey but then the focus should be on changing those f*cked up patent laws, not pissing on the consumer. Amazon, put your effort into patent reform if you're really worred about the latter. Don't screw the customer.
Join the Slashcott! Feb 10 thru Feb 17!
(basically preventing a normal consumer from every suing you for fault since they could never recover enough to make it worth while)
In the UK, where there isn't really such a thing as a class action, what is done is that the plaintiffs get together, select a case, or a few cases which are good examples of the group and then everybody supports those people to sue. Once they win, the others can point to the first win as evidence in their own cases and so are pretty much guaranteed a cheap win. This means companies are almost forced to settle and certainly end up with huge costs if they don't.
Why doesn't the same thing work in the US?
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
So, what should we do? How petitioning for the revocation of their corporate charter and other property rights? Use the RICO and asset forfeiture rules that we use on people for mere drug possession. It would cost the public very little while the companies would be bleeding more money into their legal departments.
“He’s not deformed, he’s just drunk!”
What if I do like the contract, but they break it? Then I go to court to resolve the matter. Oh, wait I can't, I have to go to arbitration, where the result is already determined against me.
If a contract isn't enforceable by law than it isn't a contract anymore. It is a bundle of official looking lies with no weight. Such a thing is unconscionable. It violates the very foundation of market based societies of law, and is tantamount to fraud.
Yet another example of how the Constitution needs a bit of rewriting to deal with the problems of the day.
You seriously want our current politicians... democrat or republican... to do a bit of "rewriting" of the constitution? You're fucking nutz.
That is true – but there is still room for improvement. Under the current system with high costs and large variable awards you get Lawsuit Lotto - file frivolous lawsuits until you lucky number arrives. On the other hand, legitimate suits with low payouts are ignored.
What you want the system to do is to quickly and consistently decided lawsuits – with damages high enough to compensate the victims, be a deterrent to future mischief – but not so high as to deter innovation.
So out of those 1M people cheated of $10, you expect 1% of them to take the time, effort, and money to sue the company for that $10 back? You do realize that even small claims court requires paying a filing fee (around $20-40) just to file, right? So even if you win, you've gained... $-10 or so. And you lose a day's worth of PTO.
A smart company would realize that and make sure the amount they cheat people out of is always going to be less than the filing fee. Sure there'll be a few who do so out of principle, but you can bet the numbers would be way less than 1%. And hell, you don't even have to do anything - just wait for the default judgement, pay up and cheat a few more people to pay for it all. Or just bill those people again and let them fight it all out again in small claims. Lose another half day of work and dollars.
And yes, the company just does... nothing. No expensive person has to show up in court (default judgement is fine). Cost to you - time and money, cost to the company - nothing - it's pure profit that they'll probably extract from you next month when you'll be too tired to keep fighting it.
Here's a great law review article written by Jean Sternlight of UNLV's Boyd School of Law discussing the impact of the recent case--AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011)--that paved the way for companies like Paypal and Amazon to impose arbitral class action waivers in their consumer contracts.
As others may have pointed out, the most effective (and direct) remedial measure here would involve amendment by Congress of the Federal Arbitration Act. Partisanship and regulatory capture by big business may render this option unworkable for now. In that case, changing the composition of the high court justices, coupled with nationwide reports of the deleterious effects of the Concepcion decision, could allow for SCOTUS to agree to hear a similar case in which Concepcion's holding could be narrowed or abrogated.
For all of you non-lawyers who have not followed Supreme Court caselaw on arbitration, the fault lies with the Federal Arbitration Act. https://en.wikipedia.org/wiki/Federal_Arbitration_Act In short, the Supreme Court has repeatedly ruled that that Act has such a strong presumption for the validity of an arbitration clause that it is impossible to wiggle out of it. The next emerging threat is going to be binding arbitration in employment contracts. It already is inserted in many employment contracts, and the only protection at the moment is being offered by the NLRB. See, e.g., http://www.natlawreview.com/article/nlrb-throws-cold-water-mandatory-arbitration-provisions-prohibiting-class-actions-em
Class actions aside (which seem to be non-existent in UK, or at least uncommon), a EULA or contract cannot override the law of the land in the UK.
I don't know whether it's illegal for companies to try to do that, but it's certainly invalid in the eyes of the law. In fact there's a standard clause that seems to be required in agreements made in the UK, which I expect is mandatory because it's so common or universal: "Nothing in this agreement overrides your statutory rights."
I guess the US is different, but Amazon UK will not be free to bypass the law here.
No longer true. I (among many) received payment exceeding $1,000 this year from a Honda class action lawsuit, in which air conditioner compressors died at astonishingly high rates.
Class action lawsuits the vast majority of the time are complete scams. Legalized scams, but still scams.
Most class action lawsuits are just drummed up by lawyers to increase their noteriety and to get a higher % fee. Lawyers LOVE class actions because they get a certain % of the final judges fine. Thats why you see lawyers on tv constantly with commercials saying "Oh did you take tylenol in the past 78 years because of a headache but it didnt cure the headache? Then you are entitled to money for blah blah blah blah". They do those commericals to get as many people as possible to join the case because it means more money for them. So they get extra money plus winning a case against a huge company is something they can brag about and in turn will get other people coming to them to represent them against another big company and they get their name in the news. Very very very few class action suits are actually for the good of something.
But really how can you complain? If you dont like the terms of agreement then dont use the service. Its that simple. No one is forcing you to agree to them, it isnt a service that you mandated by federal law to use, it isnt a service you cant live your life without, its purely just a luxury service created to make a task easier with them than with others so if you dont like it THEN DONT FUCKING AGREE TO IT.
So I approve of any company that puts a clause in to save themselves from damaging, pointless, often fradulent class action suits because they need to protect themselves. Sure a few would be legit but you know what if you have to sacrifice just a customers by adding this in to save yourself from the millions who would rip you off given the chance then its worth it to them and I can completely understand why.
(basically preventing a normal consumer from every suing you for fault since they could never recover enough to make it worth while
You've never actually read one of these arbitration clauses, have you?
Here's PayPal's
https://cms.paypal.com/us/cgi-bin/?cmd=_render-content&content_ID=ua/upcoming_policies_full
We will pay the initial filing fee to commence arbitration and any arbitration hearing that you attend shall take place in the federal judicial district of your residence.
Here's Amazon's
http://www.amazon.com/gp/help/customer/display.html/?nodeId=508088
We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
In business contracts, the arbitration clause has been standard for years (decade+)... and it usually says something equivalent to: loser pays all arbitration costs and attorney's fees.
So if you have a legitimate claim, then you can file for arbitration, and the corporation will not only have to pay your claim, but all of the money you spent to bring the suit. This is more than you would get in court (where there is no "loser pays" clause).
No, I suggested no such thing, I merely suggested that the Constitution is not able to deal with the problems of the day.
This does also include our current politicians, but I didn't want to digress into every fault I find with our political system, so I merely pointed out that the instant grievance here was one of many.
the last bit applies to the business contracts I was referring to. Obviously, PayPal and Amazon do not have a loser pays clause... which is why I included what they actually say in quotes.
(IANAL). The UK uses the English rule loser-pays costs system. Thus, if you're sure that you're going to win, you don't need to worry too much about attorneys' fees. If you have a case that will clearly result in a judgement of £10,000 and will cost £50,000 per side to litigate, then the defendant is going to end up out £110,000, and you'll end up getting £10,000.
The US, unlike almost every other country in the world, uses the American rule, where each party pays their own attorneys' fees regardless of outcome. Thus, if you have a case that will clearly result in a judgement of $10,000 and will cost $50,000 per side to litigate, the defendant will end up paying $60,000, but you'll end up losing $40,000. To make matters more difficult, this means that a defendant under threat of numerous small suits can intentionally make the litigation as expensive as possible for both sides: while it makes it more expensive for them, it makes it so that the plaintiffs will end up losing money on the case even if successful.
Small claims can help somewhat, as it doesn't allow attorneys, but even so, there are costs involved for the plaintiff. Thus, if a company cheats a few hundred thousand people out of $50 each, none of those people have any recourse in the courts that won't cost them much more than they'll gain.
Except the Company gets to decide who does the arbitration. And since the Company deals with them far more often than any individual does the company has the advantage.
It's like pro wrestling. You could be the better wrestler but if I get to pick the ref I will win.
Amazon and PayPal use large, well known arbitration associations. Amazon uses the AAA
http://en.wikipedia.org/wiki/American_Arbitration_Association
The AAA does not itself arbitrate disputes, but provides administrative support to arbitrations before a single arbitrator or a panel of three arbitrators.
The arbitrators are chosen in accordance with the parties' agreement or, if the parties do not agree otherwise, in accordance with the AAA rules. Under its rules, the AAA may appoint an arbitrator in some circumstances, for example, where the parties cannot agree on an arbitrator or a party fails to exercise its right to appoint an arbitrator.
In other words, although Amazon chooses the arbitration association, it does not choose the arbitrator who will actually decide the case.
Also, what you are saying (misconduct) is a violation of the laws regulating arbitration, and would be grounds for a court to overturn the arbitrators decision and/or allow the party to pursue the case in court.
Don't know how it compares, but in the US what happens in practice is:
"Holy shit, we're going to lose --offer a settlement" -- at any point in the process.
Thus, at any point the loser is free to say "I can throw another million dollars of appeals in, and your settlement will not be increased"
vs
"I will settle for $400k with you, if you sign this nondisclosure and drop the case".
In order to win a public victory, you actually have to take a financial loss.
Pretty much everything goes unsettled and undecided, although it might get arbitrarly close to decision.
But they should be prepared to respond to 10000000 different cases of arbitration (which naturally will not be followed in due time because of the quantity of processes), and after that, defend themselves in court.
The tables are turned, because on most places, there is small claims courts, which are cheap and you can even represent yourself with the help of the court on that. You just need to have a sensible case and be based on proper statues of law.
With crowd-sourcing setting up websites on "how to sue company x for 'individual class action'", companies will think again before allowing this kind of cases to be trialed individually.
If i had a company with one million potential cases, i think i would prefer that my company to be sued in just one place, one case.
But, like they say... in America... be American... (trial happy at that)...
I find it funny that in US you are allowed to demand to others to waive their rights.
Interesting liberty concept...
"corrupt the influence and sanctity of the courts"
Oh, ho ho ho. The courts corrupted their own sanctity long ago. Don't labor under any illusions.
"Any dispute...will be resolved by binding arbitration"
Doesn't that mean that, if you are unhappy with their services, you can seize their real property and they can't call the police?
I'd love to go back in time and punch Taney in the guts, but that's not going to happen.
Because the lawsuits are invariably settled out of court just before the court date and with the requirement that the settlement terms remain confidential.
The Supreme Court has already ruled that it is up to the arbitrator to determine whether forcing arbitration is unconscionable.
When one works for a company now, there are arbitration and no class action clauses in your employee hiring agreement and employee handbook to prevent a group of old people or racial classes from sueing the company. The company wants to deal with each individually as long it takes in court or arbitration until you loose and they win!
However, there was a case where a big company I worked for had to put out a new employee handbook change that stated what the exception to this forced arbitration and class action suit limitation. They only thing that can excerpt this company policy is federal law on discrimination. One can not sign their right away to sue based on discrimination since it would be contrary to federal law that is currently on the books and the Supreme Court must abide by this law. They can't ignore it. Thus, the loophole to every signed arbiration and class action clause is to sue based on discrimination and let the courts decide who is wrong - at least you'll get your fair day in court.
The only other way is to get congress to modify the law to disallow arbitration and class action clauses such that the Supreme court will have to abide by it and not automatically side with business.
The other term for arbitration courts is what is called a Kangaroo court. I wonder if anyone sued and proved that the court was stacked against them from the outset. Does this mean if the arbirator is licensed that one can sue them for malpractice of their license?
That clogs up the court system. The point of a class action is they get sued once and it's done with as far as the court is concerned, unless they fail to abide by the judgment terms.
> "The question becomes, what do we do to fix this so that consumers are truly protected?
Well, the obvious solution is to fix the US court system, where almost any case can be brought against a company or an individual, often even with barely any basis in law. It is much too lucrative to sue, and thus that right gets abused left and right.
So, tighten up the court system so that it becomes more about upholding established law rather than entertaining suits from attorneys who just happen to have found some interpretation of some law (or anything close enough) that they could argue to have a case against someone.
Is this realistic? Of course not. Ever since the notion of 'common sense' has been abolished in favour of law, anything even remotely sensible has become impossible. The courts now get to deal with lawsuits about stuff that should be common sense, and at the same time attorneys refuse quite obvious cases because they feel it cannot be won because despite 'common sense' there isn't enough hard evidence to show that someone was truly at fault. It's pretty much impossible to change (1) the court system, (2) the legislation, and (3) people's desire to seek monetary gain at the expense of others...
Going down hill since 1834...
Michael J. Ryan - tracker1.info
Considering how divided the two main parties are, not much chance that they would be able to, even if they tried. I don't know the exact procedure but likely it'll involve things like having a 2/3 majority.
The clause is unenforceable. It has been established time and again that a person cannot sign his rights away with a contract. Whether there is an actual contract, or a TOS, a verbal agreement, or whatever - if you otherwise qualify as a member of a class that sues the company, then you remain qualified despite the language in the contract.
The only useful (or useless) purpose of the language is to confuse people who might qualify as part of a class. If people don't believe they qualify, then they may not pursue and enforce their rights.
"Windows is like the faint smell of piss in a subway: it's there, and there's nothing you can do about it." - Charlie Br
What does a constitution have to do with contract law? That's not what a constitution is for. This is contract law related.
The issue is much simpler: what you need is either an amendment to the law that allows the right to class action trials to be waived in a contract, or the creation of a law that forbids waiving such rights. Whatever applicable.
When accusing someone of breaking a contract, in how far are you yourself still bound by the terms of that contract?
If you buy say a mobile phone plan, and they overcharge/miscalculate/whatever: that's not necessarily a breach of that contract. The exact pricing terms are usually separate, if only so they can be changed without having to change the service contract itself. Yet if they say cancel your service without sufficient notice or your agreement, that'd be a direct breach of contract.
Seems like corporations want it both ways. They want the terms of service to have binding effect on the end user, but then they don't want the terms of service challenged to be deemed unbinding when they are challenged. Arbitration is something that unions use to obtain a middle ground even when there is none. Same here, corporations want a middle ground when in fact the policies are unjust/untenable. Hence we need something to make these types of agreements unconscionable without a person having to do two things: 1. Sue to get rid of the validity of the agreement - cost $$$ and then after they win 2. Actually try the agreement on its merits. Anyways if corporations are so against the law, why do they have packs of lawyers that sue individuals and other companies when their interest is threatened?
Society use your Sciences
Yet if they say cancel your service without sufficient notice or your agreement, that'd be a direct breach of contract.
Except that every cellphone contract these days makes it clear that the provider can terminate the contract at any time for any reason or no reason without consequence. However, if the consumer chooses to terminate the contract early they must pay a fee. That is the definition of pure evil when it comes to contracts.
boycott
A million pissed off customers suing the company. Simultaneously. In a million small claims courts.
There are multiple solutions to this problem:
1) as suggested before, loser pays all court costs. setting the rip-off value below the court costs would help far less. (still people don't want to go through all the mess of a court case)
2) The justice system could create a system so that if more than x similar cases (3 for example) are brought against one company, a prosecutor steps in and starts examining the company. Warrants are served and the company has to fork over details of all customers affected by their rip-off scam.
Then the prosecutor takes the company to court for two things: a) reimbursement of all customers
b) criminal neglect if after those first few cases, the company didn't do anything to try to fix things for all their customers. This should yield (minor) prison time for the people that could have done so.
3) on general: shareholders, stockholders, boards of directors, upper management, all of them need to be held personally liable for much more than what currently is possible. After all, it is THEIR company that is doing bad stuff and they support it.
The UK has certain exceptions to the looser-pays rule. IANAL so I can't say exactly what these circumstances are. I do remember one libel case where the plaintiff was awarded 1p and not costs.
That's not how tort law is meant to work though. The idea is that if there's a disagreement, you can get the legal system to settle things, and restore the injured party to where he should be.
If the behaviour is illegal then it shouldn't be up to private citizens to get justice when there's a justice system that's meant to do this.
In the UK you can't sign-away your legal rights.
Signing an EULA or credit agreement etc that for example stipulated you accepted a one month warranty instead of the term of the legal mandated minimum warranty would be unenforceable. Not worth the paper it was written on.
You could sign an agreement to follow a certain process; written complaint to arbitration to court action. Just make sure there is a time limit on each step. You don't want an arbitration process that runs for fifty years before you move onto court action. (Actually, an arbitration process that ran for fifty years or any unreasonable amount of time would be disallowed.)
What it comes down to is: Is the use of class action law suits a "Right" for citizens of the USA?
Have you ever looked at the chances of winning these?
Statistics are a bit hard to find sometimes - there's a lot of obvious shilling out there, and my code doesn't take THAT long to compile - but a quick search showed fo Credit Card companies, strangely, they had a 94% win rate.
Do you really think that the arbitrators do NOT know who pays their paychecks?
Maybe there should be a law that follows on the the old Chinese(?) proverb, "Once is happenstance, twice is circumstance, thrice is enemy action", a three strikes law for coporations/businesses. You take the company to small claims court once, win. They try it again next month, you go again and win. If they try the same thing (in general) a third time, you get the right as an individual to large damages (Thousands of dollars) damages and the right to publicise your win. Also, since a third strike judgement has been made against the company, anyone else with the same complaint can come forward to any small claims court in the country and also receive large damages on their second strike case. I know that class action suits are also preferred by the courts because they consolidate many smaller cases into a single big one, thereby using less resources. Once a company has had its third strike it's liable to start defending against claims in court which would bog the system down... I'm open to idead on how to fix this. I'd say that once the company has lost a certain number of second strike cases, all new cases get lumped into a class action, regardless of language of contract, i.e. making the right to join a class action suit inalienable. The flip side is that a class action suit cannot be started until the company loses a third strike case and multiple second strike cases (say 15 or so), assuming the amounts are small enough for it to fall within the jurisdiction of the small claims court. If the amounts are large enough (I'm thinking smallish class actions of maybe 30~100 people where the damages amount to several thousand dollars or more each) then class action should always be an option.
One counter argument to this might be that companies could make damned sure they never screw the same person three times. But since in most cases the screwing is automated, they'll probably end up paying more trying to keep track of can still be screwed that it won't be worth their while. Also, if they do keep track of this, it clearly demonstrates *intent*.
Basically the idea is that systematic abuse/infraction must be established. There is an incentive to the little guy to go in to court and fight small abuses, because of the reasonable personal payoff on the third strike, which will make the non-defense of a claim costly to the company. This incentive is removed as the number of cases increases enough to force a class action suit. Also, if it really is a once off infraction, the company doesn't get nailed for something it didn't do. And finally, lawyers can't start frivilous class action suits.
Well, they probably can, they ALWAYS find a way...
but a quick search showed fo Credit Card companies, strangely, they had a 94% win rate.
[citation needed]
Here's an actual citation about consumer and employee win rates in arbitration:
http://overlawyered.com/2007/12/consumer-and-employee-win-rates-in-arbitration/
186 arbitration claims involving employment disputes in the securities industry. The data showed that employee claimants prevailed 46% of the time in arbitration compared to 34% in federal court. The median monetary award amount was slightly higher in arbitration, and the median time from filing to judgment was 16.5 months in arbitration compared to 25 months in litigation. ...
noted that employees prevailed over employers in 63% of employment arbitration cases filed with the American Arbitration Association between 1993 and 1995. To compare, only 14.9% of employees who brought cases to federal district court in 1994 prevailed in their litigation. The average duration of an arbitrated claim was 8.6 months, compared to 2.5 years in litigation. ...
California data shows that when consumers bring arbitration claims against businesses, the consumers prevail in 65.5% of cases that reach a decision. To compare, buyer plaintiffs litigating contract claims in the 75 largest American counties prevailed 61.5% of the time overall, and 60.9% of the time in cases decided by bench trials. When businesses bring arbitration claims against California consumers, the businesses prevail in 77.7% of cases that reach a decision. To compare, seller plaintiffs litigating contract cases in the largest 75 counties prevail 76.8% of the time overall and 78.9% of the time in cases decided by bench trial.
Real facts are so much more interesting than made up facts... don't you think?
Your right as an American citizen.
It is an illegal contract is it not.
Terms like this and mandatory arbitration clauses should be illegal. It's a very slippery slope to when people can forgo their legal rights, and we're already slipped too far.
" shareholders...need to be held personally liable "
What a way to kill the whole stock market. Would you ever invest in a company you didn't fully understand every business practice if you could be liable for its wrongdoing?
Ninjas don't carry tic tacs
If it involve spending more money and reducing our freedoms, I'd assume a quick and decisive consensus.
Declaring yourself exempt from the law of the land in a contract should not ever actually exempt one from the law of the land. That the American judiciary has actually made these kinds of rulings is absolutely shameful and a real black eye to Americans.