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Court Rules Against AT&T's Service Agreement

Soulskill posted about 6 years ago | from the now-get-to-work-on-those-eulas dept.

The Courts 97

The Seattle Post-Intelligencer is running a story about a recent ruling from the Washington State Supreme Court, which decided that AT&T's service agreement was not capable of waiving a customer's right to file a lawsuit against the company. The full opinion (PDF) is also available. From the conclusion: "AT&T's Consumer Services Agreement is substantively unconscionable and therefore unenforceable to the extent that it purports to waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees. ... Courts will not be easily deceived by attempts to unilaterally strip away consumer protections and remedies by efforts to cloak the waiver of important rights under an arbitration clause."

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haha (-1, Troll)

Anonymous Coward | about 6 years ago | (#24818921)

buttsecks

Comment Reader Agreement (5, Funny)

bigtallmofo (695287) | about 6 years ago | (#24818935)

By reading this comment, you agree to send me $50 via PayPal and let me sleep with your most attractive female relative over the age of 18. If you do not agree to these terms, do not read this comment.

Isn't AT&T's service agreement just as silly? The judge in the case appears to think so.

Re:Comment Reader Agreement (0, Funny)

Anonymous Coward | about 6 years ago | (#24818953)

On a day when part of our great nation's historic south is about to be flattened; when hundreds of poor folks are running for their lives without supplies, how dare you make levity at the expense of one of our country's most productive companies?

And to Slash Dot, shame on you for this for giving a platform to this anti-American propoganda at a time when we should be focussing our efforts on praying for our fellow citizens.

Re:Comment Reader Agreement (1)

DefenseEngineer (1277030) | about 6 years ago | (#24818985)

Huh? What article did you read?

Re:Comment Reader Agreement (1)

nawcom (941663) | about 6 years ago | (#24819533)

Heh, just laugh it off. That is how I take in the trolls of /. - and try not to get so defensive next time.</lamenickreference>

Re:Comment Reader Agreement (1)

thetartanavenger (1052920) | about 6 years ago | (#24820199)

I can't help but think it may have been this one [slashdot.org] or the same story on another site..

Re:Comment Reader Agreement (5, Funny)

sethstorm (512897) | about 6 years ago | (#24818977)

By reading this comment, you agree to send me $50 via PayPal and let me sleep with your most attractive female relative over the age of 18. If you do not agree to these terms, do not read this comment.

Two women show up for you to judge who's most attractive. As a part of that, they talk about a cup.

Re:Comment Reader Agreement (5, Funny)

Anonymous Coward | about 6 years ago | (#24819019)

quit
exit
^C^C^C
^Z :q!
^X^C
^D
Nooooooooooooooooooooooo!

Re:Comment Reader Agreement (2, Funny)

eknagy (1056622) | about 6 years ago | (#24819903)

Alt-F4 ?

Re:Comment Reader Agreement (4, Funny)

kohaku (797652) | about 6 years ago | (#24820337)

You must be new here.

Re:Comment Reader Agreement (1)

Arterion (941661) | about 6 years ago | (#24822089)

Apple-Q

Re:Comment Reader Agreement (0)

Anonymous Coward | about 6 years ago | (#24823601)

F10 - Y

Re:Comment Reader Agreement (0)

Anonymous Coward | about 6 years ago | (#24824895)

Since you are in a browser, I think what you are searching for is ^W.

Unfortunately, from your reaction I can see that you've already read the comment, and thus already agreed to it, so I'm afraid it's too late.

Re:Comment Reader Agreement (1)

rootooftheworld (1284968) | about 6 years ago | (#24828411)

Alt+SysRq+B?

Re:Comment Reader Agreement (1)

sakasune (772886) | more than 5 years ago | (#24864165)

quit exit ^C^C^C ^Z :q! ^X^C ^D Nooooooooooooooooooooooo!

Just nuke it from orbit - it's the only way to be sure!

Re:Comment Reader Agreement (2, Funny)

gardyloo (512791) | about 6 years ago | (#24819017)

Sigh... damnit.

    OK, Frank will be along soon. She's, erm... got a great personality.

    Good luck with that.

Re:Comment Reader Agreement (0)

Anonymous Coward | about 6 years ago | (#24819405)

Ok, but my granny is going to want to be on top...

Re:Comment Reader Agreement (1)

dontmakemethink (1186169) | about 6 years ago | (#24819695)

By reading this comment, you agree to send me $50 via PayPal and let me sleep with your most attractive female relative over the age of 18. If you do not agree to these terms, do not read this comment.

There will be a $500 fee for processing your claim, and my cousin will probably gladly sleep with you when she's a widowed grandmother.

Re:Comment Reader Agreement (0)

Anonymous Coward | about 6 years ago | (#24820267)

It's not silly at all. Where do I send my 50$?

good (0)

Anonymous Coward | about 6 years ago | (#24818961)

i do think this sets a good presidence for other contracts like that, would it also apply against eula's though

Re:good, how about better: precedence (2, Funny)

Herschel Cohen (568) | about 6 years ago | (#24819117)

which is not about a president.

Do not become over comfortable with an apparent rational judgment from a state court. On the national level this will probably be reversed with alacrity.

Even better: how about PRECEDENT??? (1)

Jane Q. Public (1010737) | about 6 years ago | (#24822227)

Use the correct word, please.

What about California? (0)

Anonymous Coward | about 6 years ago | (#24818995)

Seems to me we just signed the same damn thing, no choice if you wanted to keep your phone.

Re:What about California? (0)

Anonymous Coward | about 6 years ago | (#24819195)

I did some digging, couldn't find the original contract, but I specifically remember the language "waiving the right to a trial by jury" in it, and it was about 18-20 pages IIRC.

Found a link here [democratic...ground.com] And although my phone is not a wireless and I can't count the god damn pages, cause I can't find them I see similar wording in wireless contracts [att.com]

The contract I got said something like "CONTRACT FOR EXISTING AT&T SERVICES (W/ARBITRATION) INSIDE" And it was a lot of pages, and it said if I do nothing, then that was supposed to be my agreement with it.

It really pisses me off I can't find this now. But I guess the law doesn't give a fuck about being pissed off.

Road to overturn (4, Interesting)

idiotnot (302133) | about 6 years ago | (#24818997)

As the FTA mentions, these arbitration clauses are widely-used elsewhere. AT&T will appeal to federal court, and win.

This really is an activists' decision -- modern legal theory is far more supportive of arbitration than the class action process. Many states don't even have class action anymore. They're a racket; only the head, and the attorneys make money.

Re:Road to overturn (5, Informative)

mr_matticus (928346) | about 6 years ago | (#24819075)

These arbitration clauses are also widely-overturned. This is hardly news--courts have been striking them down left and right for a decade now. Binding arbitration agreements are among the most common provisions stricken from agreements, including EULAs (in fact, it's the most common violation stricken down in software licenses).

The basic premise is that choosing ADR should be preserved as an option, but waiving your rights to contest actions in order to get service is wrong. It is. It has little to do with class actions--it's about litigating your individual grievances with the company.

Contrary to the editorializing in the summary, however, it has nothing to do with anything other than the fact that binding arbitration is disfavored as a lopsided provision offering no advantage to the customer.

Re:Road to overturn (-1, Flamebait)

Anonymous Coward | about 6 years ago | (#24819279)

Yeah, that may very well be that courts are turning them over, but I think everyone ought to step back and look at the bigger picture here.

Motherfuckers are snooping on our data, and preventing us from communicating, albeit slowly over time, a missing newsgroup here, a port blocked there, a service contract here, a new limitation there.

Now look, these fascist corporations are organized, they have to be, but WE are not organized, and if we don't want the future to be a fucking giant ebay with "Buy it Now" buttons we better speak the fuck up and SOON.

Don't let this shit go like the fucking Constitution did. This is not a fucking EULA in a software, this is a fucking CHANGE to your existing rules whether you give a fuck or not, it's FORCED on you, by not paying attention you have agreed.

Now you little cellphone users don't get it cause you don't even fucking KNOW what a copper line is! Prior to your little fucking mobile radios that are radiating everything, including your stupid fucking brains, some of us had a real fucking phone, that is wired up in a twisted pair. Now suddenly in 2008 after paying for that goddamn phone for 40+ years we have
"Given up our motherfucking right to trial?!"

I Don't fucking think so.

No amount of , " OH bla bla bla this is no big deal." is going to be enough. You show ignorance and stupidity not to mention total disregard for our Constitution and our Country itself to play this down. Either that or your a cyber warrior for AT&T.

Every one of these messages that play this down are full of shit.

YOU DO NOT GIVE UP YOUR RIGHT TO TRIAL!

Get that in your fucking heads!

Bad summary... (4, Informative)

Theaetetus (590071) | about 6 years ago | (#24819371)

These arbitration clauses are also widely-overturned. This is hardly news--courts have been striking them down left and right for a decade now. Binding arbitration agreements are among the most common provisions stricken from agreements, including EULAs (in fact, it's the most common violation stricken down in software licenses).

The basic premise is that choosing ADR should be preserved as an option, but waiving your rights to contest actions in order to get service is wrong. It is. It has little to do with class actions--it's about litigating your individual grievances with the company.

Contrary to the editorializing in the summary, however, it has nothing to do with anything other than the fact that binding arbitration is disfavored as a lopsided provision offering no advantage to the customer.

Binding arbitration clauses can be fine, even in adhesionary contracts, and the court even mentions this:

We emphasize that these provisions have nothing to do with arbitration. Arbitrators supervise class actions, conduct open hearings, apply appropriate statutes of limitations, and award compensatory and punitive damages, as well as attorney fees, where appropriate.

The issue is where they are substantively unconscionable, as here, where ATT has also stricken out the availability of class actions:

A&T's Consumer Services Agreement is substantively unconscionable and therefore unenforceable to the extent that it purports to waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees.

Because any party's foreseeable claims would be very small, by removing the ability to file a class action, ATT was essentially immunizing themselves from suits - no lawyer is going to take a case, even on contingency, that's worth only $10 or $15... But if it's $10 or $15 to fifty-thousand customers, now you're talking.

So, again, this decision does not say all arbitration clauses are unconscionable, and even goes out of its way to say they could be fine... but only "could" be fine - the issue is what other clauses are present.

Try again. (2, Insightful)

mr_matticus (928346) | about 6 years ago | (#24823409)

Binding arbitration clauses can be fine, even in adhesionary contracts, and the court even mentions this:

No. The court mentions that there is nothing wrong with arbitration. Binding arbitration, where the right to bring suit is summarily waived, is and has been subject to the court's disdain for quite a while.

Any situation in which forced arbitration is a non-negotiated requirement of an agreement, which tends to disproportionately favor one side over the other, is evaluated quite carefully.

There is nothing wrong with arbitration. Courts love it when parties go to mediation and arbitration, because it gets them out of their hair. On the other hand, when it is loaded into an adhesive contract and puts the Offeree in a situation where they have lost their right to take action without having any foreseeable benefit to doing so. This is especially true in certain classes of agreements, like rental agreements, employment contracts, and service agreements, like we have here.

There's a whole litany of cases on the subject. These types of agreements utilize the unequal bargaining power to enact an unconscionable waiver of rights.

So, again, this decision does not say all arbitration clauses are unconscionable, and even goes out of its way to say they could be fine... but only "could" be fine - the issue is what other clauses are present.

Arbitration clause != binding arbitration clause without option to bring suit. As I've already said, both in this post and the earlier one, preserving arbitration as an option is important, but forcing it in a non-negotiated contract is very commonly unconscionable and has been part of the consumer rights movement of the past decade.

Tried, and succeeded. (3, Insightful)

Theaetetus (590071) | about 6 years ago | (#24824503)

Binding arbitration clauses can be fine, even in adhesionary contracts, and the court even mentions this:

No. The court mentions that there is nothing wrong with arbitration. Binding arbitration, where the right to bring suit is summarily waived, is and has been subject to the court's disdain for quite a while.

Quite a while?
Such as Graham v. Scissor-Tail, Inc., 623 P.2d 165, where the California Supreme Court said in 1981 that binding arbitration clauses are enforceable, as long as they're not substantively unconscionable (in that case, the arbitrator was the defendant's board of directors).
Or Armendariz v. Foundation Health, 6 P.3d 669, where the California Supreme Court restated in 2000 specifically that mandatory arbitration clauses were not unconscionable in a contract, where the arbitration was fair and impartial.
Or Henningsen v. Bloomfield Motors, 32 N.J. 358, where the New Jersey Supreme Court (lest you think I was California-biased) said that adhesionary contracts, such as those with binding arbitration provisions, can be just fine.
Or Carnival Cruise Lines v. Shute, 499. U.S. 585, where even SCOTUS said, yes, mandatory arbitration clauses with impartial arbiters are not unconscionable.

Have you found a single case in which any court said that binding arbitration is unconscionable on its face, without requiring any substantive unconscionability?

'cause if you have, the American Arbitration Association might be interested.

Any situation in which forced arbitration is a non-negotiated requirement of an agreement, which tends to disproportionately favor one side over the other, is evaluated quite carefully.

There is nothing wrong with arbitration. Courts love it when parties go to mediation and arbitration, because it gets them out of their hair. On the other hand, when it is loaded into an adhesive contract and puts the Offeree in a situation where they have lost their right to take action without having any foreseeable benefit to doing so. This is especially true in certain classes of agreements, like rental agreements, employment contracts, and service agreements, like we have here.

Yes, but what you're missing is that there needs to both procedural unconscionability - an adhesionary contract, for instance - and substantive unconscionability. Otherwise, it's perfectly fine, due to the freedom to contract.

I can make a horribly unconscionable contract, with full knowledge and understanding of my rights... Courts won't protect me, because though the agreement is unfair, I entered into it freely and with full knowledge (see Lucy v. Zehmer).
I can also sign a boilerplate contract, with no ability to negotiate, take it or leave it, and if the contract isn't substantively unfair, it's binding (see many of the above references).

There's a whole litany of cases on the subject. These types of agreements utilize the unequal bargaining power to enact an unconscionable waiver of rights.

You missed the requirement of the unconscionable waiver of rights. Binding arbitration isn't necessarily unconscionable.

Arbitration clause != binding arbitration clause without option to bring suit. As I've already said, both in this post and the earlier one, preserving arbitration as an option is important, but forcing it in a non-negotiated contract is very commonly unconscionable and has been part of the consumer rights movement of the past decade.

And, as you've said earlier and here, you're wrong. Arbitration, even binding arbitration without option to bring suit, has been upheld by SCOTUS. The issue is that the arbitration must be unfair, too, not merely the fact that you're forced into it.

(4 cases with cites... your turn)

Re:Tried, and succeeded. (1)

mr_matticus (928346) | about 6 years ago | (#24827303)

You seem to be saying exactly what I am saying, taking exception with regard to some fabricated version of reality.

Consider Armendariz (your inconsistent citation format and examples plainly indicate your use of Wikipedia for examples, and really poor use of them, at that)--an employment case finding an unconscionable contract of adhesion due to the unequal bargaining power.

Consider also your own use of Graham v. Scissor-Tail, Inc., where the unequal bargaining power and lack of any reasonable benefit to the Offeree made the clause unconscionable.

Nothing you have said contradicts anything I have said.

Re:Tried, and succeeded. (1)

Theaetetus (590071) | about 6 years ago | (#24829323)

Consider Armendariz (your inconsistent citation format and examples plainly indicate your use of Wikipedia for examples, and really poor use of them, at that)--an employment case finding an unconscionable contract of adhesion due to the unequal bargaining power.

Consider also your own use of Graham v. Scissor-Tail, Inc., where the unequal bargaining power and lack of any reasonable benefit to the Offeree made the clause unconscionable.

Nothing you have said contradicts anything I have said.

Nope, wrong on both. The first one was adhesionary, but that's not what made it invalid. What made it invalid was that the employees were bound to arbitration and the employer wasn't.

And in Graham, there was plenty of benefit to him - reduced prices, for instance. What made it unconscionable was that the mandatory arbitration provision specified Scissor-Tail's board of directors as the arbitrators.

Again, what you've missed is that in order for a contract to be invalid for unconscionability, there needs to be both procedural and substantive issues. Just procedural unconscionability alone, such as an adhesionary contract with perfectly reasonable binding arbitration, is not invalid.

Also, Wiki, dude? Seriously? Try Westlaw. The "inconsistent citation format" is because they're coming from different Reporters. It's okay, you'll understand when you finish your first year.

Re:Tried, and succeeded. (1)

mr_matticus (928346) | about 6 years ago | (#24835395)

The first one was adhesionary, but that's not what made it invalid.

No shit.

Here's what you don't seem to be able to grasp about the process.

1. A binding arbitration clause in an adhesive contract is presumptively biased in favor of the Offeror.
2. Adhesive contracts ipso facto satisfy procedural unconscionability where the term in question is not essential to the benefit of the bargain.
3. Where the arbitration clause was not highlighted as a feature of an agreement, it constitutes surprise.
4. Where an arbitration clause unilaterally strips the Offeree of a right to contest the contract by waiving the right to file suit or to have access to an impartial forum to hear grievances, they are generally viewed as unconscionable, per the Walker-Thomas rule: "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party [and characterized by] a gross inequality of bargaining power." 350 F. 2d 445, 449 (1965).

What made it unconscionable was that the mandatory arbitration provision specified Scissor-Tail's board of directors as the arbitrators.

That would be the lack of benefit. Lower prices weren't a benefit--they were an excuse.

Offering arbitration and capping damages are ways to cut costs. Offering arbitration that is neither fair nor impartial does not cut costs, though. It cuts costs for the seller, while effectively eliminating any right to contest of the buyer.

Again, what you've missed is that in order for a contract to be invalid for unconscionability, there needs to be both procedural and substantive issues. Just procedural unconscionability alone, such as an adhesionary contract with perfectly reasonable binding arbitration, is not invalid.

What you're continuing to miss is that I never said otherwise.

The "inconsistent citation format" is because they're coming from different Reporters.

That's what's inconsistent. You should always use the official reporter for your citations. Had you actually used Westlaw, you would have come up with 28 Cal.3d 807 and 24 Cal 4th 83.

Perhaps when you actually graduate from law school, you'll be able to synthesize properly instead of taking on imagined slights. Were you actually a lawyer, these things might have been more clear. An adhesive contract is all you need for the procedural "element", if you are going to follow Leff and try to find both, when in fact, either can satisfy the gravamen for unconscionability, and attempts to shoehorn both result in a vacuous analysis, as in Industrialease.

Re:Tried, and succeeded. (1)

Theaetetus (590071) | about 6 years ago | (#24836501)

1. A binding arbitration clause in an adhesive contract is presumptively biased in favor of the Offeror.
2. Adhesive contracts ipso facto satisfy procedural unconscionability where the term in question is not essential to the benefit of the bargain.

Which is exactly what I said. Reading comprehension isn't your strong suit, is it.

You seem to keep focusing on procedural unconscionability. Yes, Sparky, an adhesionary contract is procedurally unconscionable. I've been saying that from the start. You know what, though? It's not necessarily invalid.

The "inconsistent citation format" is because they're coming from different Reporters.

That's what's inconsistent. You should always use the official reporter for your citations. Had you actually used Westlaw, you would have come up with 28 Cal.3d 807 and 24 Cal 4th 83.

You don't think the Pacific Reporters are good cites? I'm sure West is crushed. Simply crushed.
Tell you what... Take your Bluebook, flip it open to any good page, and shove it up your ass.

Re:Tried, and succeeded. (1)

mr_matticus (928346) | about 6 years ago | (#24837635)

Which is exactly what I said. Reading comprehension isn't your strong suit, is it.

Actually, it seems yours is the issue again. I haven't been saying anything different from the beginning, but at least three times now you're drawing a distinction where none exists.

There is no need to quantify procedural/substantive unconscionability, unless your only familiarity with it is as a law student working out of some horseshit secondary source. You don't need both, and since the procedural element is not a concern, your bizarre insistence on repeating the "you need both" pile of manure is misplaced at best. The two steps are factors, not elements, and as I've been saying all along, the adhesive contract would fill any judge's desire to find procedural unconscionability, rendering it moot. The substantive issue, the waiver of rights without negotiation, is the operative portion.

The simple fact remains that binding arbitration clauses are disfavored in agreements in rental contracts, employment contracts, and service agreements because they are unilateral imposition of surprising terms that remove rights one does not expect to surrender in the course of bargaining.

That is not to say that binding agreements must be unconscionable or that they can never be included in an agreement.

Yes, Sparky, an adhesionary contract is procedurally unconscionable

Not necessarily.

It satisfies the procedural factor for courts inclined to look for one in ruling on the presence of unconscionability. That does not make adhesive contracts unconscionable.

You don't think the Pacific Reporters are good cites?

Nope. They're parallel cites. Always use the official reporters when giving authority, or at the very least be consistent. Rookie mistake.

While you're flapping about, here are a few other tips: rhetorical questions still end in question marks ("Is it."), 'reporter' is not a proper noun and should not be arbitrarily capitalized, and continuations of thoughts on the other side of ellipses are not capitalized because they're not new sentences ("what... Take").

Anger is unprofessional.

Re:Tried, and succeeded. (1)

Theaetetus (590071) | about 6 years ago | (#24842207)

You don't need both, and since the procedural element is not a concern, your bizarre insistence on repeating the "you need both" pile of manure is misplaced at best.

No, you most certainly need both, and your analysis below is wrong:

the adhesive contract would fill any judge's desire to find procedural unconscionability, rendering it moot. The substantive issue, the waiver of rights without negotiation, is the operative portion.

See that phrase "without negotiation"? Why are you considering that to be a substantive issue? That is the procedural issue, and you're getting them confused in a silly effort to find all adhesion contracts invalid.

The simple fact remains that binding arbitration clauses are disfavored in agreements in rental contracts, employment contracts, and service agreements because they are unilateral imposition of surprising terms that remove rights one does not expect to surrender in the course of bargaining.

And as I pointed out several posts back, this is just wrong. Binding arbitration clauses have been upheld by SCOTUS in Shute and others. You really should review some of the material I cited rather than just complaining that I used the Pacific Reporter (which is capitalized).

Adhesion contracts with mandatory arbitration clauses are not necessarily invalid. Arbitration is not necessarily substantively unconscionable, it depends on the specific details of the arbitration. If it's fair and impartial, there is nothing unconscionable about the contract, particularly if the other party is likewise bound to mandatory arbitration.

Again, last try, then I give up on you... I've given you four cites. Can you cite a single case that speaks to the proposition that: "There is no need to quantify procedural/substantive unconscionability" and "you don't need both" or that "the waiver of rights without negotiation," which most people would claim is a procedural issue is actually a substantive issue?

Re:Tried, and succeeded. (1)

mr_matticus (928346) | about 6 years ago | (#24849811)

No, you most certainly need both

No, you don't. The analysis was split, as I've said, for judges and jurisdictions that follow Leff's analysis. It is not binding, certainly not in California, and not most other places. You have provided no citation for your bizarre insistence on turning categorical factors into elements.

Perhaps you haven't gotten that far in law school yet.

See that phrase "without negotiation"? Why are you considering that to be a substantive issue?

Because it goes to the surprise--if it is point out to you, even if it is not negotiated, it's permissible. If it is hidden in a contract where one does not expect it, it bolsters a finding of unconscionability.

It's not the procedure of negotiation that's important, but rather, the disclosure of terms--without negotiation or notice, there is a failure of mutual assent.

and you're getting them confused in a silly effort to find all adhesion contracts invalid.

No. You're getting confused in some weird alternate reality that has spanned days now. I have made no statement about the validity of adhesive contracts--most of them are valid, and my prior posts on Slashdot have backed that up.

It's your lack of precision that seems to be tripping you up.

rather than just complaining that I used the Pacific Reporter (which is capitalized).

Pacific Reporter is capitalized. This, however, is what I was talking about: "they're coming from different Reporters." The correct phrase is 'they're coming from different reporters'. See the difference? If that's not a complete summation of exactly your problem, I don't know what is. You're just not paying attention, and you're taking exception to things you assume, without paying attention to the structure or context of the argument, which has lead to this moronic objection of yours.

Binding arbitration clauses have been upheld by SCOTUS in Shute and others

No. In Shute, it was a forum selection clause. The arbitration was optional. Shute, furthermore, was explicitly couched in the lowering of ticket prices as a result of only needing to handle disputes in one location--a significant administrative cost for an international cruise line and a reasonable desire not to be haled into courts of dozens of different nations. It is also worth noting that because Shute did not, in fact, offer any analysis of the lower fares, it is not commonly followed on that point, but more on its findings of commercial reasonableness. Further, I have never stated that it was impossible to insert a binding arbitration clause in these agreements. Perhaps you should go back to the very beginning: I said they were disfavored, and subject to a much higher level of scrutiny. You have yet to provide any contrary authority.

. I've given you four cites.

No. You've given cases, and a mistaken understanding of each of them. None of them supports your finding of elemental procedural + substantive unconscionability, and none of them contests my original assertion that they are disfavored in rental, employment, and service agreements as abuses of unequal bargaining power.

On the other hand, I've already given you the complete Walker-Thomas rule, pointed you toward Industrialease, and corrected your use of at least three of your four citations.

If that's not enough, though, consider Roberts v. Smith Barney, 653 F. Supp. 406 (1986). (Unconscionability in binding arbitration with adhesive contracts occurs where there is a lack of choice or notice and terms are unreasonably favorable to one party).

See also David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd., 923 F.2d 245 (1991): "For an arbitration provision to be stricken as a contract of adhesion there must be a showing of " 'unfairness, undue oppression, or unconscionability'" Id. at 249. A binding arbitration clause providing no benefit in an adhesive contract is unenforceable.

There's always Finkle, too: "It will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive, unconscionable or against public policy."

Now, let's put your weird notion of unconscionability to bed, too:
"The principle that a court may refuse to enforce a contract that is unfair or oppressive because of procedural abuses during contract formation or because of overreaching contractual terms, esp. terms that are unreasonably favorable to one party while precluding meaningful choice for the other party." Black's, 8th.

"Most cases of unconscionability involve a combination of procedural and substantive unconscionability, as it is generally agreed that if more of one is present, then less of the other is required." --Farnsworth, emphasis added. If you have sufficient unconscionability in one or the other, the second is simply not required. Here, when the term itself is so biased and surprising, there is little need to consider the procedure used to reach that already-unconscionable result, but even if you were so inclined, the adhesive nature of the agreement will satisfy that. That is not to say that adhesive contracts are procedurally unconscionable themselves, merely that even that 10% hint will satisfy just about any Leff judge, while the majority won't do an analysis at all.

Re:Road to overturn (0)

Anonymous Coward | about 6 years ago | (#24819655)

The basic premise is that choosing ADR should be preserved as an option, but waiving your rights to contest actions in order to get service is wrong.

I guess this is the part I have trouble with. I know it's typical for consumer contracts to go way beyond what's legally possible (the basic idea that you cannot sign away your legal rights & responsibilities; that contracts cannot replace or remove laws). As such they're generally seen as filled with mere noise to intimidate the ignorant, and the savvy consumer will know they still have the protection of state & federal laws if it is necessary to go to court.

What I don't get is why such blatant misrepresentation is allowed. AT&T is not allowed to lie to you in advertising -- why are they allowed to lie to you in a service agreement?

Obviously these contracts are poured over in detail by legal departments when created. Obviously it is known these contracts are making claims that are not legally supportable -- that they blatantly conflict with the law of the land.

What's good about "arbitration"? (2)

mi (197448) | about 6 years ago | (#24819825)

The basic premise is that choosing ADR should be preserved as an option

What's so good about arbitration at all? I know, they seem like a better implementation of a court-system, which is quite bloated and awfully expensive. But the arbiters are not judges, usually have little legal experience, and aren't from the Judiciary.

What's wrong with courts needs to be fixed, instead of simply deciding cases outside of them.

Before some comes in blasting "corporate greed" or some such, let's remind, that the Government is an even worse offender in this area. To argue with IRS in real court, for example, you have to pay what they want you to pay first. Taking your traffic citation to a real judge is impossible in some locales — in NYC your only redress is "traffic court", which is part of the city government — the Executive, rather than Judiciary.

Anywhere, where the Executive branch is empowered to license certain activities (be that driving, or plumbing, or serving liquor), they are also empowered to take the license away, because somehow we've swallowed the line, that these activities are a privilege, not a right (inalienable)... And a privilege can be revoked without bothering with courts — leaving you with the "burden of proof", if you can file a court-case at all. And, as the above example shows, the Executive may even decide to set up its own court system for certain types of cases.

I wish, all of these special arrangements got stricken out for good along with binding arbitrages between private parties...

Re:What's good about "arbitration"? (1)

nomadic (141991) | about 6 years ago | (#24822781)

What's so good about arbitration at all? I know, they seem like a better implementation of a court-system, which is quite bloated and awfully expensive. But the arbiters are not judges, usually have little legal experience, and aren't from the Judiciary.

Huh? Every arbitrator I know has extensive legal experience; they're usually lawyers and/or judges with substantial careers behind them. I remember going through an arbitrator list sent by the American Arbitration Association last year and except for a single forensic accountant (with significant experience in the law), everyone on the list was an experienced attorney.

Re:What's good about "arbitration"? (1)

mi (197448) | about 6 years ago | (#24824143)

Every arbitrator I know has extensive legal experience

In the field of financial arbitrage, at least one of the "judges" is a financial expert, not a legal one... Subject-matter experts are needed in courts often, but they don't decide there...

Let me rephrase the question. Do we want multiple justice systems? A resounding "No". But, if we don't, we must get rid of the "arbitration" (at least, of the "binding" kind) least it competes with the main judiciary, that ought to be the one and only...

Re:What's good about "arbitration"? (1)

Theaetetus (590071) | about 6 years ago | (#24825331)

What's so good about arbitration at all? I know, they seem like a better implementation of a court-system, which is quite bloated and awfully expensive. But the arbiters are not judges, usually have little legal experience, and aren't from the Judiciary.

Slight exception, not affecting your major point: many arbiters are lawyers, or at least have JDs.

What's wrong with courts needs to be fixed, instead of simply deciding cases outside of them.

True 'nuff.

... I wish, all of these special arrangements got stricken out for good along with binding arbitrages between private parties...

Only thing is, binding arbitration has a few good points... Limited to times where the arbitration doesn't favor one party over the other of course, binding arbitration allows a party to essentially front-load their risk. By saying, "in the event of a dispute, we'll limit our payout to X", a company can factor the potential for X payouts into the price, reducing the overall cost of their product. While this doesn't cover all eventualities, it can cover a large majority. Binding arbitration can thereby reduce the overall cost to individual consumers.

The key is making sure that it's not unfair, one giant company exerting their influence against individuals. But the law already provides for that - if the binding arbitration clause is substantively unfair, it's invalid. Everyone can win.

Re:What's good about "arbitration"? (1)

mi (197448) | about 6 years ago | (#24831983)

By saying, "in the event of a dispute, we'll limit our payout to X", a company can factor the potential for X payouts into the price

There is no reason, the same clause can't be respected by a real court — in fact, a lot of non-arbitration contracts and service agreements talk about any compensation being limited to the amounts actually paid by the customer at some point.

And if a court finds it unenforceable and/or unfair, then either the court is wrong (and needs fixing), or so it should be. This, in itself, is not an argument for arbitration...

Re:Road to overturn (0)

Anonymous Coward | about 6 years ago | (#24819265)

Many states don't even have class action anymore. They're a racket; only the head, and the attorneys make money.

That's bullshit. Class action exists for an excellent reason: when an entire class of people (say, telephone company customers) are screwed in a light-weight way across the board (to the order of, say, $1 per month), the company stands to gain hundreds of millions while customers have no reasonable recourse.

Class actions allow for a company to be penalized for ripping off its customers en-masse. A company's attempts to curb class actions are merely a strategy so that they can unfairly nickel-and-dime customers without recourse.

Class action isn't about "making money" - it's about penalizing companies that blatantly rip off their customers in such a way that it make it impossible for the customer to discover recourse on an individual level.

Re:Road to overturn (1, Insightful)

Anonymous Coward | about 6 years ago | (#24819475)

Class actions are often the only way some people can afford the attorney's fees to bring suit. The winners may end up giving half of their spoils to the lawyers, but the losers still lose.

Arbitration is a pay-per-judgment scheme. An arbitrator will be more likely to side with the party that will most likely hire him again in the future, which would be the big company.

Re:Road to overturn (2, Insightful)

Attila Dimedici (1036002) | about 6 years ago | (#24820675)

As the FTA mentions, these arbitration clauses are widely-used elsewhere. AT&T will appeal to federal court, and win.

No, they won't. This was a state case filed on the basis of the laws of Washington state. Federal courts have no jurisdiction.

You didn't READ the decision, did you? (1)

Jane Q. Public (1010737) | about 6 years ago | (#24822193)

It was solidly supported by law. Other similar actions have NOT been overturned in Federal Court. I doubt very much that a Federal court would even agree that there are grounds for appeal.

Re:Road to overturn (1)

schwaang (667808) | about 6 years ago | (#24823155)

And even if they win in Federal court, the contract will still be unconscionable to any reasonable human being.

The California version of this contract change has bold screaming letters that say I have to hold NSAT&T harmless for any invasion of my privacy on their part. And why does AT&T feel the need to reserve the option to *break the law* without consequences?

If I don't cancel my phone service this agreement kicks automatically on Oct. 1. Given that my local government has handed monopoly rights to the copper wires to AT&T, I don't actually have many realistic options if I want to maintain a landline, which is still a practical necessity for most of us in modern life.

Re:Road to overturn (1)

slash.duncan (1103465) | about 6 years ago | (#24825721)

The California version of this contract change has bold screaming letters that say I have to hold NSAT&T harmless for any invasion of my privacy on their part. And why does AT&T feel the need to reserve the option to *break the law* without consequences?

They're CYAing for future versions of the warrantless wiretapping should they lose on that, plus "pretexting".

Slimy dogs!

If I don't cancel my phone service this agreement kicks automatically on Oct. 1. Given that my local government has handed monopoly rights to the copper wires to AT&T, I don't actually have many realistic options if I want to maintain a landline, which is still a practical necessity for most of us in modern life.

I'm not sure how it's still a necessity. Many have cell phones today and can depend on them. Others (me) have VoIP and cut the traditional telco landline when I got it. The one may be more expensive but can go wherever you do, while the other one isn't quite as portable but is /much/ less costly, with /way/ more features. Many have both of the above.

Yes, I'd call some sort of remote voice communication a practical general necessity now days, but it can take many forms beyond the traditional land line. In fact, I was reading recently that for young people especially (and this was referring to mainline young people, not tech-heads, altho arguably most young people today would have been yesteryear's tech-heads), a landline is now often considered optional. Cellphones are displacing them to the degree that it's causing problems for opinion polls and the like, since people tend to be far more sensitive (in part due to receiver-pays, here in the US) about calls to their cell than to their landline. It's the cellphone that's almost mandatory, now.

OTOH, if voice-piggyback-DSL is your only >dialup Internet option... and with more people considering decent Internet connectivity mandatory... but even then, one doesn't /have/ to use that voice line, and some don't.

Re:Road to overturn (1)

Atario (673917) | about 6 years ago | (#24827979)

Many states don't even have class action anymore. They're a racket; only the head, and the attorneys make money.

The point of class action lawsuits is not to make thousands of plaintiffs rich. It's to punish the defendant for wrongdoing.

The legal Death Star just blew up (4, Funny)

davidwr (791652) | about 6 years ago | (#24818999)

Thank you Judge Skywalker.

Re:The legal Death Star just blew up (3, Funny)

mfnickster (182520) | about 6 years ago | (#24819983)

"What good is a judgment if you ain't around to collect it? Besides, attacking that corporation ain't my idea of courage, kid. It's more like... suicide."

Right to Contract (4, Insightful)

Detritus (11846) | about 6 years ago | (#24819145)

The modern abuse of arbitration clauses reminds me of the "right to contract" cases. Contracts are often little more than legal cudgels, designed to exploit the difference in power between the two parties to the benefit of stronger party. The arbitration system is a perversion of justice and should be eliminated.

Re:Right to Contract (5, Insightful)

nomadic (141991) | about 6 years ago | (#24819253)

Arbitration was designed to be used between businesses; when it's done that way it can actually be a superior alternative to court. It's when it's applied to adhesion contracts with consumers that it get unfair.

Re:Right to Contract (1)

shmlco (594907) | about 6 years ago | (#24821229)

A contract spells out, in very specific terms, what's expected of both sides in an agreement. Or are you saying that two people or businesses should ignore them, enter into agreements based on vague promises and a handshake, and then let things devolve to a he said/she said battle when one side or the other feels dissatisfied or disgruntled?

If you think the terms of a contract are unfair then negotiate them. And if you can't or won't, then don't sign them.

This doesn't work (1)

StarKruzr (74642) | about 6 years ago | (#24824481)

If you think the terms of a contract are unfair then negotiate them. And if you can't or won't, then don't sign them.

unless EVERYONE thinks and works in this way. And the fact of the matter is most people are too ignorant to do so, crippling the minority who are not.

This is how corporatism has gotten as far as it has in the United States and abroad.

Re:Right to Contract (1)

Detritus (11846) | about 6 years ago | (#24825705)

Negotiation isn't an option when everyone just says "take it or leave it", and everyone is offering the same terms. I've seen this many times, where all the vendors in a given market segment have nearly identical contract terms, usually as hostile as the law will allow towards the customer. It's not in their interest to make an exception for a customer.

Re:Right to Contract (1)

Tuoqui (1091447) | about 6 years ago | (#24834519)

Easy just take a marker and scratch out the portions you dont like. If they give you the service after that then they've agreed to your modified contract the same as if you just sign it and they give you the service. Not reading over contracts can work both ways you know.

Wait a second... (1)

gcnaddict (841664) | about 6 years ago | (#24819231)

So does this mean any service agreement which contains a very limiting arbitration clause is essentially fucked?

This could be handy.

Re:Wait a second... (0)

Anonymous Coward | about 6 years ago | (#24819301)

No, because most have a survivability clause. What that means is that for most agreements, declaring part of it unenforceable only affects that part of it - the rest of the agreement is still in effect.

Re:Wait a second... (1)

m.ducharme (1082683) | about 6 years ago | (#24819333)

Unless the ruling judge strikes that too. Judges get pissy about being told they can't do stuff.

Re:Wait a second... (0)

Anonymous Coward | about 6 years ago | (#24819855)

Er..no. Courts act in accordance with the law. They dont't just strike things out of contracts because they get "pissy" about something. They need a solid legal reason.

The court held that the Dispute Resolution section was substantively unconscionable.

They then considered whether only to strike the clauses which were unconscionable, or to strike the whole section. They rules that, in this case, the problem bits were too intertwined to be extricated without rewriting the rest of the section. So they struck the whole section.

Then the court considered whether the rest of the contract should be stricken or not. The court ruled that there was no legal reason to strike the rest of the contract, because the other sections were not challenged as unconscionable, and the existance of a surviability clause indicated the contract was intended to survive having a section struck down.

POTENTIALLY... (1)

Jane Q. Public (1010737) | about 6 years ago | (#24822337)

It depends on the state law. As mentioned in the decision, the requirement of arbitration would probably have been upheld in New York state, which does not have a state law invalidating such in cases like this (another way in which New York sucks).

However, in general, the more states that rule this way, the more likely that similar policies will be adopted by other states.

score 1 for common sense (4, Insightful)

DragonTHC (208439) | about 6 years ago | (#24819249)

You cannot sign away your rights. They're guaranteed.

AT&T's clause is unconstitutional as are every similar company's clauses.

The right to bring legal action cannot be signed away. That's like saying that these companies are above the law.

Next to be tested in court, the clause stating "we reserve the right to change the terms of this contract at any time without notice".

If the terms are flexible, it's not a contract. It's like signing a blank check and something we aren't doing.

Re:score 1 for common sense (3, Insightful)

Courageous (228506) | about 6 years ago | (#24819555)

Next to be tested in court, the clause stating "we reserve the right to change the terms of this contract at any time without notice".

They sort of do have the legal right to do that. They give a new agreement out, and you, should you continue with service and pay, have given them consideration and voila. New contract of adhesion.

It's just another line item in why I disagree with the very concept of the contract of adhesion. No contract should be permissable that doesn't obey the rules of ordinary contracts ("meeting of the minds," etc).

Business wants the ability to enter into contracts without going through the due dilligence. This is, and always has been, ethically lopsided. For the consumers, there is no real fairness.

C//

Re:score 1 for common sense (3, Insightful)

Anonymous Coward | about 6 years ago | (#24820017)

Next to be tested in court, the clause stating "we reserve the right to change the terms of this contract at any time without notice".

They sort of do have the legal right to do that. They give a new agreement out, and you, should you continue with service and pay, have given them consideration and voila. New contract of adhesion.

"I am altering the deal. Pray I do not alter it further."

Re:score 1 for common sense (3, Insightful)

Xelios (822510) | about 6 years ago | (#24820407)

How does that work? If they modify the terms of the contract then the contract has changed. The old one no longer applies, and you should be required to sign the new one if you want to keep receiving the service. If you choose not to sign the new contract you should be allowed to cancel your service with no penalty, since it was the company that modified the agreement.

That should be common sense, I'm amazed that it doesn't work that way. Wait... on second thought, no I'm not.

Re:score 1 for common sense (2, Informative)

Attila Dimedici (1036002) | about 6 years ago | (#24820587)

All of the "contracts" that I have entered into that contained clauses that said that the other party could change the terms and conditions when they wanted to, also allowed me to cancel without penalty if and when that happened.
Usually, they send you letter explaining in detail the changes they are making (in full legalese) and then somewhere on page three or four list how to cancel your contract with them. I have always found that it appears to be very simple and easy to cancel the contract when they make these changes. I have never tried to cancel one of these contracts because they were always for something that at that time was more valuable to me than the changes were annoying (none of the ones I have received actually increased my costs).

Re:score 1 for common sense (3, Informative)

Solandri (704621) | about 6 years ago | (#24821799)

You can cancel without penalty when this happens. A lot of people took advantage of it to get out of cell phone contracts back when cellular 911 service became mandated. The wireless carriers lobbied for and got the right to charge a fee for the 911 service. This fee was a change in the contract, so spades of people who'd been itching to get out of their contracts without paying the early termination fee simply said they didn't agree to the new fees. Since the carriers were required to provide 911 service and they wanted to charge the fee, they canceled the contract, thus nullifying the early termination fee.

Re:score 1 for common sense (1)

JohnWhitney (707445) | about 6 years ago | (#24823871)

Really? Tell that to DirectTV. They altered my contract, and when I said I didn't agree to the new one, they slapped the $150 early termination fee on me. Reading the old contract carefully showed that I had agreed to pay early termination fees if I refuse new contract alterations. Their passing my final bill to a collection agency before it was even due was just abusive.

Since then, I have refused to enter into any contract with early termination fees. I pay for cell phone month-by-month, and laugh my ass off now that DirectTV badly wants me back as a customer.

Re:score 1 for common sense (1)

DragonTHC (208439) | about 6 years ago | (#24822599)

I was referring specifically to credit card agreements. Sure, you can decided not to continue the contract when they change it, however doing so requires you to pay your whole balance off right then and there or you're agreeing to the contract by not being able to pay.

When I was fresh out of high school, I got a credit card and maxed it out within a year. They were in my college breezeway giving out free gifts for signing up. I was stupid and ignorant about the responsibilities of having a credit card. The bank merged with another. I received new terms to which I never agreed. I fell on hard times and couldn't pay my bills. I asked the bank to put me on a hardship program to lower my payments and stop charging late fees and overlimit fees. They refused stating "you're not past due on your payments so we can't do that". Hardship programs were only for people who were 90 days past due or later. I didn't have the money to pay and they hounded me for 8 years after that for defaulting. Though I was ethically justified for doing so.

several years passed and I grew up a lot. I learned about credit and financial responsibility.

When I received new statements from a different bank, one which I had never signed their contract, I was not please and told them I wished not to agree to the terms of the new contract. I was told to pay my bill in full before the thirty days notice of the new contract or else I would be accepting the terms. Eventually my account was merged with yet another bank. I never signed a contract with either of those two banks. I had ethical reservations about doing business with the new bank.

That is the point I was trying to make. I signed an original contract that stated they could change the terms at any time without notice. There was no alternative to that. All credit card applications say that. They sold my account several times and I was forced to do business with companies I didn't want to or like.

If they can change the terms at any time without notice, then it isn't really a contract. It's more like indentured servitude. Since I was young and stupid and indebted to that bank, it was a form of enslavement. They could potentially have changed the terms to a point where I could never have paid off the balance, just milking a monthly payment from me indefinitely. That's why that clause is so dangerous. That's what I want changed. That's what makes banks so predatory.

Re:score 1 for common sense (1)

phorm (591458) | about 6 years ago | (#24823691)

They give a new agreement out, and you, should you continue with service and pay, have given them consideration and voila

Except that it often doesn't work that way. Sometimes it's a notice posted up on their website (often in a not-obvious area). Sometimes it's a hidden clause buried in a mound of other useless paperwork. And in any of the above cases, there is no verification process using written or even verbal acceptance.

And furthermore, there's already a fucking contract. Sorry, but if I have an agreement to pay for their service for the next 1-3+ years, then the should have to stand by that agreement for the same time period. Trust me, if you decide you "don't like" the new terms it's not likely that your phone/internet/whatever carrier is going to allow you to cancel service without a cancellation fee (at least not until a judge steps in).

Re:score 1 for common sense (1)

Courageous (228506) | about 6 years ago | (#24830701)

Except that it often doesn't work that way. Sometimes it's a notice posted up on their website (often in a not-obvious area). Sometimes it's a hidden clause buried in a mound of other useless paperwork. And in any of the above cases, there is no verification process using written or even verbal acceptance.

I am aware.

Frankly, in most contract of adhesion, the buyer isn't aware of the terms during the early rounds, no less the later ones. I'm against the whole concept. If the thing being contracted isn't worth having a sales representative go over every term of the contract with you, having you initialing you understanding, THEN THERE SHOULD BE NO CONTRACT.

C//

Re:score 1 for common sense (4, Informative)

kramer (19951) | about 6 years ago | (#24819583)

No. No. No. Wrong. Wrong. Wrong.

You can sign away certain rights, including the right to sue. There is (apparently) nothing unconstitutional about this contract. There is no constitutional guarantee to sue someone.

What the judge said was that it was unconscionable, meaning that the contract has clauses that are so burdensome that no person would agree to them if they had a choice. Unconscionable clauses are typically rendered unenforceable by courts. The case was decided on Washington state law. The constitution, the U.S., Washington's, or otherwise doesn't enter into it.

Oh, and since this was decided by a state court, this ruling has no legal effect on anyone outside of Washington.

Re:score 1 for common sense (1)

yoshi_mon (172895) | about 6 years ago | (#24821011)

You can sign away certain rights, including the right to sue. There is (apparently) nothing unconstitutional about this contract. There is no constitutional guarantee to sue someone.

What the judge said was that it was unconscionable, meaning that the contract has clauses that are so burdensome that no person would agree to them if they had a choice.

If you would be so kind to someone who did not RTFA what part of AT&T's service was the EULA attached too? Because if it was anything other than home phone service would that not put it in the same boat as any other EULA where you have other options?

By that I mean I can choose not to play WoW and thus avoid the EULA. I can choose not to use AT&T Wireless and instead use someone else. So on and so forth. To me the only thing I could not avoid are local monopolies like the local telcos, power, etc.

Re:score 1 for common sense (1)

kramer (19951) | about 6 years ago | (#24823315)

It was long distance phone service. However, courts play sort of fast and loose with the "no other choices" portion of the unconscionable test. Often it is enough to have the other contracts have similar provisions. In this case the provision that was objectionable to the court was the mandatory. arbitration clause. From what I know many, perhaps even most long distance contract have language requiring arbitration. Apparently that language is now ineffective in Washington.

Re:score 1 for common sense (1)

Tuoqui (1091447) | about 6 years ago | (#24834577)

True but sometimes judges will take precedence from other districts and apply them to their own. The more the precedence spreads the more traction it gains in the remaining states.

Re:score 1 for common sense (0)

Anonymous Coward | about 6 years ago | (#24834667)

You can sign away certain rights, including the right to sue.

No, you can't. I can't believe you got modded 'informative' for that shit.

You can agree not to exercise a given right, of course, under contract - and if you break that agreement, you can be sued for breach of contract, but you retain whatever rights you had before you signed.

Of course, if *they* break the contract first, you can sue them. That's what happened with Cingular and the class action suit by customers against paying early termination fees. People canceled because the service was not available as advertised, and the court ruled that Cingular broke the contract and therefore could not hold people responsible for the fees.

Re:score 1 for common sense (1)

Jimmy_B (129296) | about 6 years ago | (#24823715)

Next to be tested in court, the clause stating "we reserve the right to change the terms of this contract at any time without notice".

That one's already been tested, and found invalid - specifically, the "without notice" part. Contracts can do many things, but they can't change the underpinnings of contract law. It isn't possible to accept a contract which doesn't exist yet, because by definition, a contract only exists when there is offer, acceptance, and consideration. If a company changes terms without notifying you, then there is no offer or acceptance, and thus, no contract. (That said, a few words buried in the fine print on your bill might be sufficient notice.)

Check any Online Games EULA ... (5, Interesting)

Il128 (467312) | about 6 years ago | (#24819411)

Because they are far more draconian than At&T's ever was.

Just saying, most Game Company EULAs actually state that you don't even get a service in return for your payments and that your payments are non-refundable and you have no expectations of privacy and your computer is for all intents and purposes the property of the gaming company for as long as their software resides on your computer...

I wish I was making this up but as you can see here (the most popular online game in the world):
http://www.worldofwarcraft.com/legal/eula.html [worldofwarcraft.com]
http://www.worldofwarcraft.com/legal/termsofuse.shtml [worldofwarcraft.com]
I'm not. And as an even more negative note this EULA actually stood up in court of law.
http://virtuallyblind.com/2008/07/14/blizzard-wins-sj-mdy/ [virtuallyblind.com]


Your RAM is actually Blizzards. You have no right to sue. You have no right to a refund. You have no right to class action. You have no right to communicate to anyone about what Blizzard communicates to you. Because, it is all copyright. That is a huge legal determination.


This brings us back to the topic at hand, AT&T. Because in all honesty, "waive the right to class actions, require confidentiality, shorten the Washington Consumer Protection Act statute of limitations, and limit availability of attorney fees." these things have already been ruled as legal in several gaming company cases and RIAA cases (which for brevity I did not touch on).

To tell AT&T (and every other company on the planet)that they are breaking the law because they are not using copyright as the rational for their arguments makes absolutely no legal sense whatsoever.

Because the end result is that all company claims against their consumers will be twisted in to copyright claims and therefore automatically upheld...

Re:Check any Online Games EULA ... (2, Funny)

Anonymous Coward | about 6 years ago | (#24819659)

Hi person who got banned for using hacks/bots in WoW.

Re:Check any Online Games EULA ... (1)

chipmeister (802507) | about 6 years ago | (#24820313)

The agreement does not state that the physical RAM is theirs. It only states that they can monitor it and that the contents of regions may not be modified by programs other than their own.So the claim that they own the computer is a little bit of a stretch.

Re:Check any Online Games EULA ... (1)

toddestan (632714) | about 6 years ago | (#24821655)

Well, if they can monitor the contents of the your ram and change it their will, then they "own" it in the pwn3d sense.

Re:Check any Online Games EULA ... (-1, Troll)

Anonymous Coward | about 6 years ago | (#24820329)

GB2 wowglider cheatfag

Re:Check any Online Games EULA ... (1)

HellYeahAutomaton (815542) | about 6 years ago | (#24821071)

Sorry, but I already have another entangling allian...er..I mean agreement with Microsoft that preempts Blizzard's...

So my RAM is neither mine nor yours to give.

Ignorance of a contract is a good enough excuse until the lawyers arrive.

Re:Check any Online Games EULA ... (2, Informative)

Solandri (704621) | about 6 years ago | (#24821867)

Just saying, most Game Company EULAs actually state that you don't even get a service in return for your payments

Then the agreement is automatically invalid. All contracts have to have something called consideration. Basically, both sides have to get something of value out of the agreement. A contract in which only one side is getting value lacks consideration and is legally invalid.

Re:Check any Online Games EULA ... (1)

Il128 (467312) | about 6 years ago | (#24846821)

"A contract in which only one side is getting value lacks consideration and is legally invalid."

That was a true statement up until about twenty years ago. Now all one side has to do is show "intent of good will" and they do not have to provide anything at all, even when they actually possess the ability to provide the service.

And you can't sue. You go to arbitration which does not hold the same legal view of a contract that a court of law does.

The agreement has been upheld in arbitration numerous times. To bad none of that arbitration is public.
I quote from http://www.worldofwarcraft.com/legal/eula.html [worldofwarcraft.com]

"6. Termination. This License Agreement is effective until terminated. You may terminate the License Agreement at any time by (i) permanently destroying all copies of the Game in your possession or control; (ii) removing the Game Client from your hard drive; and (iii) notifying Blizzard of your intention to terminate this License Agreement. Blizzard may terminate this Agreement at any time for any reason or no reason. In such event, you must immediately and permanently destroy all copies of the Game in your possession and control and remove the Game Client from your hard drive. Upon termination of this Agreement for any reason, all licenses granted herein shall immediately terminate. "

You really should go read that EULA because it is everything I said it was and in fact it is more...

This little line right here:
"b. Binding Arbitration. If you and Blizzard are unable to resolve a Dispute through informal negotiations, either you or Blizzard may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available that the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, Blizzard will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this License Agreement, you and Blizzard may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator."

The above means you can't use Blizzard for anything ever and but they can sue you for literally anything, any time.

If you were to go to http://www.adr.org/ [adr.org] as Blizzard Recommends, you'd see this:

Additional AAA services include the design and development of alternative dispute resolution (ADR) systems for corporations, unions, government agencies, law firms, and the courts. The Association also provides elections services as well as education, training, and publications for those seeking a broader or deeper understanding of alternative dispute resolution.

Sounds great huh? Well just who is the AAA?

Never before has one sentence said so much, "In post-World War I America, as public courts were flooded with cases, the business community became increasingly interested in private arbitration tribunals."

http://www.adr.org/si.asp?id=3448 [adr.org]

The AAA is a business shill group whose entire purpose is to give corporations the ability to not be held liable in a court of law.
The AAA has worked tirelessly for over 70 years going from state to state enacting arbitration laws and doing away with the consumers right to sue.

SecondLife (0)

Anonymous Coward | about 6 years ago | (#24819431)

This reminds me of the suit forcing alternated dispute resolution in Linden Labs agreement
http://games.slashdot.org/article.pl?sid=07/06/08/2017257

Are the two similar?

Great news--if you live in Washington state (1, Insightful)

Anonymous Coward | about 6 years ago | (#24819781)

The ruling explicitly applies Washington state law (not New York law, as the agreement originally called for), under a theory that appears settled. The decision relies heavily on the strongly pro-consumer slant to Washington state's consumer protection statutes.

Reading the decision, there are a number of places where the justices make conclusions of law specifically based on legal tests that pass under Washington state law, where they acknowledge those same tests might fail under other state law (for example, they note that New York courts have upheld arbitration agreements that would be struck down in Washington).

Overall point--the value of this decision as a precedent for those of us who live in the other 98% of US States may be somewhat limited. IANAL, YMMV, EIEIO.

Means SFA (1)

artson (728234) | about 6 years ago | (#24820361)

This means Sweet Fuck-All until and unless the Court subpoenas the boards of directors of firms like this. Corporations will continue to try destroying their customers' rights under law until it gets treated as the criminal activity that it is.

You can't make contracts with illegal clauses! (3, Insightful)

houbou (1097327) | about 6 years ago | (#24820883)

I remember commenting about this in an earlier post (about Telus) I believe.

You have to love any company's balls as they write their contract stipulations, and yet, often, write them in such a way that they contradict local/state/province or country laws.

And AT&T right now is a fine example of a company inserting clauses into their contracts that are not legal to begin with, thus non-binding.

And I'm sure that if I knew enough about laws and clauses, etc.. that most companies out there have many non-binding clauses, but we just don't know. It's too complicated to read.

Another example are the games and their EULAs, all these "thou shall not and this isn't and so on and so forth", I would bet that it's all bluster and very little substance, that if anyone had a bit of money and time to blow and a good lawyer to partner with, they could blow holes in those EULAs.

Re:You can't make contracts with illegal clauses! (1)

Kaenneth (82978) | about 6 years ago | (#24822107)

Usually there is a 'severability' clause, stating that if a portion of the contract is found invalid, it dosn't invalidate the rest.

Not sure if you meant the the contract as a whole, would be non-binding, or just the unlawful clauses.

Re:You can't make contracts with illegal clauses! (1)

Tuoqui (1091447) | about 6 years ago | (#24834705)

Then its about time some courts start finding these 'severability' clauses as unconscionable. I'm quite sure that if the shoe were on the other foot the company would be able to sever the contract against the individual without any problem.

OF PARTICULAR NOTE (2, Interesting)

Jane Q. Public (1010737) | about 6 years ago | (#24822279)

Quote: "The trial judgefound AT&T's Consumer Services Agreement both substantively and procedurally unconscionable. McKee was notprovided with a copy of any agreement at the time he signed up for AT&T services. Even when a consumer contracts for a service electronically, the consumer has an opportunity to review the contract and is given the choice to "agree"McKee (Michael) v. AT&T Corp., No. 81006-1 before the contract is formed. See, e.g., Koresko v. RealNetworks, Inc., 291 F. Supp. 2d 1157, 1163 (E.D. Cal. 2003)(describing electronic "clickwrap" agreements). AT&T apparently mailed the terms and conditions to McKee 10 days to two weeks after he subscribed for service. AT&T retained the right to unilaterally change the contract by posting the change on its web site or by mailing the notice of the change. A consumer wasdeemed to have agreed to the changes by continuing touse AT&T servicewhether the consumer had actual noticeof the change or not.13 At no time was the consumer required to read and sign or affirmatively acknowledge acceptance ofthe terms and conditions. These facts raise anissue of whether McKeehad a reasonable opportunity to understand the terms and a meaningful choice."

So, yet another judge states that "after-the-fact 'agreements'" are very questionable. However, he refused to actually rule on the matter because it was not specifically germane to the case at hand. Sigh. But at least it shows that some courts are willing to go by reason and law rather than corporate ass-kissing.

This is America (1)

mosb1000 (710161) | about 6 years ago | (#24823141)

You can not, under any circumstances, give up your right to sue. It does not matter what you sign or what you say or do, you can sue anyone for anything.

Monopoly Makes It Worse (1)

Nom du Keyboard (633989) | about 6 years ago | (#24823475)

What makes it even worse is that AT&T remains essentially a monopoly, or at least a polyopoly in limited market giving few to no other options. To attempt to take away guaranteed consumer rights is truly unconscionable.

Black's Law Dictionary (0)

Anonymous Coward | about 6 years ago | (#24838577)

I find it interesting to rewrite contracts, translating to as close to layman speak as possible using Black's Law Dictionary, and then read exactly how unilateral it is.

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