Click Like? You May Have Given Up the Right To Sue

sandbagger (654585) writes "The New York Times reports that General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, or 'join' it in social media communities. Who'd have imagined that clicking like requires a EULA?"

Comments

The power of EULAs only goes so far

[kruach aum]

They could also write in that if I click 'like' on a cereal facebook page I would have to kill myself, but that doesn't make it legally binding.

Re:The power of EULAs only goes so far

[Anonymous Brave Guy]

Indeed. Good luck arguing in court that someone gave up their right to sue. The legal profession tends to be awfully sceptical of such measures, and none more so than judges. While it might stand up if, for example, all parties agreed to use some reasonable form of binding arbitration instead, it's hard to imagine the big company would get anywhere against the little customer under these conditions.

Re:The power of EULAs only goes so far

[nblender]

so would that make you a cereal killer?

Re:The power of EULAs only goes so far

[tompaulco]

Indeed. Good luck arguing in court that someone gave up their right to sue. The legal profession tends to be awfully sceptical of such measures, and none more so than judges. While it might stand up if, for example, all parties agreed to use some reasonable form of binding arbitration instead, it's hard to imagine the big company would get anywhere against the little customer under these conditions.

Like locks on a door, this is only to deter the casual litigant. It wouldn't stand up in court, but if someone was to express an interest in suing, GM would reply with "you signed a document saying you wouldn't", and that would be good enough for 99% of the brainless slugs.

Re:The power of EULAs only goes so far

[Anonymous Coward]

...GM would reply with "you signed a document saying you wouldn't", and that would be good enough for 99% of the brainless slugs.

How is clicking Like akin to "signing a document"?
Does clicking Like make a EULA popup for you to read?
Does it even notify you that you agree to it's terms on some webpage?
They would have to argue that anyone clicking like on anything would assume that they agree to something, which I don't think will hold up.

What wonderful customer relations.
You click "Like" and they respond with "Fuck You!"

Possibly Worse Than That

[CanHasDIY]

General Mills... has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, or 'join' it in social media communities

It might even be worse than that, according to an interview I heard on NPR earlier - the language of General Mills' new terms appears to include merely purchasing any of their products as a method of forcing you to waive your right to sue.

Of course, they also said one could "opt-out" by sending an email to the company... Anybody got a list of everybody's email addresses?

"Everybody" as in, every-fucking-body.

Re:Possibly Worse Than That

[Anonymous Coward]

Little did they know that there is a EULA that comes along with my purchase. If they sell me a product, they are agreeing to a long list of provisions which they are free to look up on my Web site.

Re:Possibly Worse Than That

[Em Adespoton]

This is actually a really good idea -- someone should create the OpenEULA -- a license agreement that individuals can sign on to, that indicates what conditions apply when a vendor accepts their payment. An organization that hosts the OpenEULA could even do things like get a credit card with the logo and references to the agreement on it, to make it completely legit (if the vendor accepts the card, they accept the liability should they breach the card's contract).

Anyone up for kicking this off?

Re:Possibly Worse Than That

[VortexCortex]

Little did they know that there is a EULA that comes along with my purchase. If they sell me a product, they are agreeing to a long list of provisions which they are free to look up on my Web site.

I did that for HTTP. You'll find our binding agreement in your server logs. In the HTTP user agent header:

(By continuing to transmit information via this TCP connection beyond these HTPP headers you and the business you act in behalf of [hereafter, "you"] agree to grant the user of this connection [hereafter, "me" or "I"] an unlimited, world wide and royalty free copyright for the use and redistribution of said information for any purpose including but not limited to satire or public display, and agree that any portion of an agreement concerning waiving of my legal rights made via this connection is null and void including but not limited to agreements concerning arbitration; By accepting these terms you also acknowledge and agree that these terms supersede any further agreement you or I may enter into via this connection, and that the partial voiding of agreements will be accepted as a contractual exception regardless of statements to the contrary in further terms agreed to by you or I via this connection. If you do not agree to the terms of using this connection you must terminate the connection immediately. If you do not or can not agree to these terms you do not have permission to continue sending information to me via this connection, and continuing your transmission will be in violation of the Computer Fraud and Abuse Act.)

You can add such a clause simply by using any of the various User-Agent switchers for your favorite browser.

Re:Possibly Worse Than That

[BarefootClown]

Contracts have to be negotiated and signed by two parties to be valid. You have to have an opportunity to modify the terms before exchanging money. Buying commodities doesn't meet that standard. Neither do post-purchase EULAs.

This is patently untrue, on many points.

First, there is generally no requirement that contracts be signed, or even in writing. A very few types of contracts are governed by the Statute of Frauds, which specifies that there must be a writing signed by the party against whom a term is being used. The specifics vary from jurisdiction to jurisdiction, but the linked Wikipedia article is reasonably representative. Outside the Statute of Frauds, there's nothing wrong with an unsigned, or even oral, contract.

Second, you do not have to have the opportunity to modify terms period, let alone before exchanging money. Terms may be offered on a "take it or leave it" basis; the Uniform Commercial Code, section 2-207 provides for how negotiation happens, and expressly includes an option to forbid any alternate terms. At common law, the principle is the same: there need not be an opportunity to make a counteroffer.

In this context, it would be entirely unreasonable for us to assume that respondents -- or any other cruise passenger -- would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line.

Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)

As to "before exchanging money," it is very common for terms to be left open at the time of acceptance and tender:

Transactions in which the exchange of money precedes the communication of detailed terms are common. Consider the purchase of insurance. The buyer goes to an agent, who explains the essentials (amount of coverage, number of years) and remits the premium to the home office, which sends back a policy. On the district judge's understanding, the terms of the policy are irrelevant because the insured paid before receiving them. Yet the device of payment, often with a "binder" (so that the insurance takes effect immediately even though the home office reserves the right to withdraw coverage later), in advance of the policy, serves buyers' interests by accelerating effectiveness and reducing transactions costs. Or consider the purchase of an airline ticket. The traveler calls the carrier or an agent, is quoted a price, reserves a seat, pays, and gets a ticket, in that order. The ticket contains elaborate terms, which the traveler can reject by canceling the reservation.

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
The ProCD opinion also cited to Carnival.

I cite specifically to ProCD because it was a post-purchase EULA case, and it directly contradicts you.

In short, every single point you made is precisely and exactly wrong.

Re:Possibly Worse Than That

[zippthorne]

...What you're probably thinking of is "ignorance of the law is no excuse"...

Which is it's own level of BS when you think about it. It's predicated on the idea that you're responsible for making yourself aware of the law, so that you won't violate it in ignorance. But today's body of law is so great that I'm not sure it's possible for a person to read it all within a single lifetime, let alone piece together all of the cross links and understand everything that applies to you.

The authors and passers of the law bear some responsibility for violations when the law is so verbose and numerous as to be an impediment to understanding.

Re:Possibly Worse Than That

[s.petry]

But today's body of law is so great that I'm not sure it's possible for a person to read it all within a single lifetime, let alone piece together all of the cross links and understand everything that applies to you.

2,567 hours just to read the US Federal Tax law, which is 120% of a work year if your full time job was to read that Law. And just think of your joy when you find out next year laws are changed (not amended) and grows at a frightening rate. 26,300 pages in 1984, to 54,846 by 2003, to 67,204 in 2007, and 73,954 today. Reference.

we've already had rulings that click-through fails

[swschrad]

and this ought to cement it. nobody reads that stuff. not even the lawyers. Microsoft was forced to allow refunds. some other cases ruled that click-through terms may be invalid for some claims. keep on keeping on, and if General Mills wants to waste lawyers generating snarky comments all over the public space, have at it. you will lose face.

My Notice to General Mills

[PaddyM]

IANAL, but can I send them this? Note that I would include my name and birth year per their legal requirements if I decide to send it.

Any attempt to contact me via phone, email, or newspaper, constitutes acceptance of these legal terms. Any coupons for products produced by your company that are sent to me without my explicit request or that show up in an advertisement on the internet confirm your agreement to these terms.

I do not agree to binding arbitration. I do not agree to any terms which General Mills has proscribed. I hereby agree to ignore any response, and only to send bills in the amount of $100,000.00 to General Mills if I receive a response. If I currently have any existing customer relationship with General Mills I hereby declare that relationship null and void. Any coupons from General Mills which arrive in my mailbox or in my email will result in a $10,000.00 per coupon recycling charge.

ANY attempt to reply to my email will cost General Mills $100,000.00. There are no exceptions. If you disagree, if you think these terms are unfair, the only acceptable way to avoid payment of these terms that I have proscribed is to change your legal terms: http://generalmills.com/Legal_... to something compatible with US Constitutional law.

Again, I am not bound by your legal terms. If your legal team finds some way that I am inadvertently bound by your legal terms (e.g. member of a particular website, that I was not aware was owned by General Mills), then General Mills owes me $100,000.00 and is required to remove me from that website at its own expense. If after that removal, you find that I'm still somehow related to General Mills in anyway, that will be another $100,000.00. So get it right the first time! Because I explicitly requested not to be bound by your legal terms and this notice serves as a record of that statement per your own legal terms.

Re:My Notice to General Mills

[Nidi62]

Private companies are NOT bound, in any possible way, by the Constitution or the Bill of Rights...

So....they are allowed to quarter troops in my home?

This isn't news...

[Ziggitz]

Until we hear about this actually holding up in court, which I highly doubt it will. Large companies are preemptively covering their asses in any way they can by flinging shit against the wall and seeing what sticks. I imagine that they've done this in several other ways that also wouldn't be likely to stand up in court, but if any one method does, then the payoff is huge so it makes sense to do it.

Re:so?

[Penguinisto]

They don't pay as much for for preferential treatment as the other guys. Their only need for lobbying is to ensure farm subsidies are as high as possible to force down the market price for grain.

Actually, the best way to force prices for grain downwards is to *remove* government subsidies, since most of them go towards paying farmers to limit their harvest output, thereby keeping per-bushel prices high.

Same with any other non-processed food item - dump the subsidies, and farmers will have to increase production to make up for it. This in turn will force prices down for those food items.

Small claims court

[Anonymous Coward]

I think small claims court is an under utilized weapon that we have. Everyone wants to sue big. We need a lot of people to start nickle and dime these companies in small claims court. In my state it costs $35 and claims could be up to $3000. The company can send only one person and it cannot be a lawyer. We can file in our local towns and they would have to travel there. Odds are, they will settle.