Slashdot Mirror
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 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.
Accepting credit cards is difficult. Accepting Paypal (or Amazon payments) is very easy.
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)
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.
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.
Whether a binding arbitration clause is valid depends on the province's consumer protection laws.
No-class-action clauses have been found invalid in BC and Ontario, in the cases Seidel v. Telus Communications and Griffin v. Dell Canada respectively.
I don't believe there have been cases on this regarding any other provinces' laws.
upon the advice of my lawyer, i have no sig at this time
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 ?
Which will hold for only so long, corporations are going to be applying this to everything. Eventually you will be unable to buy from anywhere or use anything without being forced to give up your rights to the courts.
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
Usually the contracts have clause stating that a void clause doesn't make the whole contract void.
(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();
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.
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.
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.
(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.