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Amazon Payment Adds "No Class Action" Language To Terms of Service

timothy posted about a year ago | from the you've-been-served dept.

Businesses 147

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?"

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These terms should be considered unconscionable... (3, Interesting)

Anonymous Coward | about a year ago | (#41995799)

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.

Re:These terms should be considered unconscionable (4, Insightful)

surmak (1238244) | about a year ago | (#41995959)

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.

Re:These terms should be considered unconscionable (5, Insightful)

Anonymous Coward | about a year ago | (#41996137)

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.

Re:These terms should be considered unconscionable (1)

reboot246 (623534) | about a year ago | (#41996383)

Class action lawsuits were invented by lawyers for lawyers. I agree that we need some other solution to punish companies that harm consumers.

Re:These terms should be considered unconscionable (5, Insightful)

scot4875 (542869) | about a year ago | (#41996443)

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

Lawsuit Lotto (1)

alexander_686 (957440) | about a year ago | (#41996699)

That is true – but there is still room for improvement. Under the current system with high costs and large variable awards you get Lawsuit Lotto - file frivolous lawsuits until you lucky number arrives. On the other hand, legitimate suits with low payouts are ignored.

What you want the system to do is to quickly and consistently decided lawsuits – with damages high enough to compensate the victims, be a deterrent to future mischief – but not so high as to deter innovation.

Re:These terms should be considered unconscionable (3, Informative)

Spril (524430) | about a year ago | (#41996919)

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.

Re:These terms should be considered unconscionable (1)

Anonymous Cowpat (788193) | about a year ago | (#41996329)

The government already steps in by providing courts with the power to enforce their judgements.

You punish companies by introducing loser-pays, or loser-pays-up-to-the-value-of-their-own-costs. Settling a class-action over 1,000,000 people swizzed out of $10 will be nothing compared to settling 10,000 cases with individuals, each with its own costs bill.

Re:These terms should be considered unconscionable (3, Insightful)

tlhIngan (30335) | about a year ago | (#41996713)

You punish companies by introducing loser-pays, or loser-pays-up-to-the-value-of-their-own-costs. Settling a class-action over 1,000,000 people swizzed out of $10 will be nothing compared to settling 10,000 cases with individuals, each with its own costs bill.

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.

Re:These terms should be considered unconscionable (2)

nurb432 (527695) | about a year ago | (#41996431)

And it needs to be taken to court and struck down. Before people just accept it and move on.

Re:These terms should be considered unconscionable (5, Interesting)

jmauro (32523) | about a year ago | (#41996435)

According to the Supreme Court in AT&T Mobility v. Concepcion [wikipedia.org] , 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.

Re:These terms should be considered unconscionable (5, Interesting)

rtfa-troll (1340807) | about a year ago | (#41996561)

(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?

Re:These terms should be considered unconscionable (5, Informative)

Anonymous Coward | about a year ago | (#41997219)

(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.

Re:These terms should be considered unconscionable (1)

Anonymous Coward | about 2 years ago | (#41997391)

Don't know how it compares, but in the US what happens in practice is:

"Holy shit, we're going to lose --offer a settlement" -- at any point in the process.

Thus, at any point the loser is free to say "I can throw another million dollars of appeals in, and your settlement will not be increased"

vs

"I will settle for $400k with you, if you sign this nondisclosure and drop the case".

In order to win a public victory, you actually have to take a financial loss.

Pretty much everything goes unsettled and undecided, although it might get arbitrarly close to decision.

Re:These terms should be considered unconscionable (2)

rgbrenner (317308) | about a year ago | (#41997143)

(basically preventing a normal consumer from every suing you for fault since they could never recover enough to make it worth while

You've never actually read one of these arbitration clauses, have you?

Here's PayPal's
https://cms.paypal.com/us/cgi-bin/?cmd=_render-content&content_ID=ua/upcoming_policies_full [paypal.com]

We will pay the initial filing fee to commence arbitration and any arbitration hearing that you attend shall take place in the federal judicial district of your residence.

Here's Amazon's
http://www.amazon.com/gp/help/customer/display.html/?nodeId=508088 [amazon.com]

We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

In business contracts, the arbitration clause has been standard for years (decade+)... and it usually says something equivalent to: loser pays all arbitration costs and attorney's fees.

So if you have a legitimate claim, then you can file for arbitration, and the corporation will not only have to pay your claim, but all of the money you spent to bring the suit. This is more than you would get in court (where there is no "loser pays" clause).

Re:These terms should be considered unconscionable (1)

rgbrenner (317308) | about a year ago | (#41997155)

the last bit applies to the business contracts I was referring to. Obviously, PayPal and Amazon do not have a loser pays clause... which is why I included what they actually say in quotes.

Re:These terms should be considered unconscionable (1)

JohnRoss1968 (574825) | about a year ago | (#41997279)

Except the Company gets to decide who does the arbitration. And since the Company deals with them far more often than any individual does the company has the advantage.
It's like pro wrestling. You could be the better wrestler but if I get to pick the ref I will win.

Re:These terms should be considered unconscionable (1)

rgbrenner (317308) | about 2 years ago | (#41997379)

Amazon and PayPal use large, well known arbitration associations. Amazon uses the AAA
http://en.wikipedia.org/wiki/American_Arbitration_Association [wikipedia.org]

The AAA does not itself arbitrate disputes, but provides administrative support to arbitrations before a single arbitrator or a panel of three arbitrators.
The arbitrators are chosen in accordance with the parties' agreement or, if the parties do not agree otherwise, in accordance with the AAA rules. Under its rules, the AAA may appoint an arbitrator in some circumstances, for example, where the parties cannot agree on an arbitrator or a party fails to exercise its right to appoint an arbitrator.

In other words, although Amazon chooses the arbitration association, it does not choose the arbitrator who will actually decide the case.

Also, what you are saying (misconduct) is a violation of the laws regulating arbitration, and would be grounds for a court to overturn the arbitrators decision and/or allow the party to pursue the case in court.

Re:These terms should be considered unconscionable (3, Informative)

Charliemopps (1157495) | about a year ago | (#41996689)

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.

Re:These terms should be considered unconscionable (0)

Anonymous Coward | about a year ago | (#41997153)

No, I suggested no such thing, I merely suggested that the Constitution is not able to deal with the problems of the day.

This does also include our current politicians, but I didn't want to digress into every fault I find with our political system, so I merely pointed out that the instant grievance here was one of many.

Re:These terms should be considered unconscionable (1)

RocketRabbit (830691) | about 2 years ago | (#41997661)

"corrupt the influence and sanctity of the courts"

Oh, ho ho ho. The courts corrupted their own sanctity long ago. Don't labor under any illusions.

Why use paypal? (0)

superdave80 (1226592) | about a year ago | (#41995817)

I've never understood why people use Paypal. All I ever hear is how horrible they are. Are credit cards so difficult to use?

Re:Why use paypal? (0)

Anonymous Coward | about a year ago | (#41995827)

why use amazon? i support the local stores

Re:Why use paypal? (0)

schwit1 (797399) | about a year ago | (#41995947)

Local stores are rarely price competitive. And local stores do not have the variety that Amazon does.

Re:Why use paypal? (2, Insightful)

Frosty Piss (770223) | about a year ago | (#41996063)

Local stores are rarely price competitive...

Amazon, Wal-Mart, and folks like them are only "competitive" because they eat babies and rape third-world teenaged mothers.

Re:Why use paypal? (2)

alexo (9335) | about a year ago | (#41997019)

No way, it's the other way around!

Re:Why use paypal? (4, Informative)

ThatsMyNick (2004126) | about a year ago | (#41995849)

Accepting credit cards is difficult. Accepting Paypal (or Amazon payments) is very easy.

Re:Why use paypal? (0)

Anonymous Coward | about a year ago | (#41996067)

People only feel compelled to outcry when something bad happens. When things work as expected without problems no one bother to waste time writing about it. You will always get something bad to good stories ratio of 10:1. Very few satisfied customers voluntarily go on to write a good praise, just about everyone who gets burned feels compelled to share the experience. Human psyche I guess.

Re:Why use paypal? (1)

TFAFalcon (1839122) | about a year ago | (#41996129)

When things go ok the customer pays a small fee to Paypal and both are content. When things go wrong, Paypal usually takes all of the customer's money. But there is never an opposite case case of Paypal giving money to the customer, so you never hear about them.

Paypal is convenient (1)

Okian Warrior (537106) | about a year ago | (#41996111)

Paypal is exquisitely convenient to use for eBay purchases, and eBay is roundly superior to most other online shopping.

That's not to say that Paypal doesn't have its faults - it's like having an employee who will do things for you, but can't be trusted with anything important or valuable. If you give the employee a bunch of cash, he'll keep it and won't give it back.

Or alternately, it's like skating on a pond where you know the ice is unsafe at one end, but you don't readily know where the boundary is.

It would be nice if Paypal had a customer-oriented business model. Heck, even obeying banking regulations would be an improvement, but for some reason they decided that the utility and convenience of eBay and Paypal are so great that they can afford to be predatory and run their business under the "cost accounting" model. That's the one where an immediate gain in value (like siezing the money in your Paypal account) is worth more than the calculated value of keeping you as a customer.

Paypal is fine so long as you don't trust it. Make all paypal purchase payments through a credit card (which *does* have a customer-oriented business model), don't let Paypal keep any amount of cash, don't give it the keys to valuable resources such as your bank account or in-depth personal information, and it's fine.

Using Paypal is like trying to tame a feral dog: always be prepared for an attack.

Re:Why use paypal? (1)

kms_one (1272174) | about a year ago | (#41996121)

Buying from 30 vendors with PayPal: 30 vendors have your email address. Buying from 30 vendors with a CC: 30 vendors have your credit card. It's just that simple. The idea of PayPal is brilliant - The execution is just shady since they haven't been designated/regulated like a bank which they should be.

Re:Why use paypal? (2)

cvtan (752695) | about a year ago | (#41996187)

Most sellers on eBay do not take credit cards. They are not horrible in my experience. Charges are too high, but if you need oddball stuff on eBay, you are practically required to use it. If bank-to-bank transfers were as cheap in the US as they are in Germany, PayPal would be out of luck. Also, if you are in the US and try to buy something from eBay Germany, it is difficult to pay unless the seller uses PayPal.

Re:Why use paypal? (1)

jockm (233372) | about a year ago | (#41996387)

Could that be because people don't really say "hey I did XXX and nothing wrong happened?" I have been using paypal for a very long time, and the two times something hinky happened they were friendly, prompt, and took care of the issue right away. But I also don't feel compelled to write a blog post or start a campaign about it, and I doubt anyone would care.

Re:Why use paypal? (1)

Tokolosh (1256448) | about a year ago | (#41996615)

I have in front of me almost exactly the same letter from American Express regarding arbitration.

Most class actions are a scam (3, Informative)

XxtraLarGe (551297) | about a year ago | (#41995829)

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.

Re:Most class actions are a scam (1)

OverlordQ (264228) | about a year ago | (#41995869)

> I'm sure there are legitimate class actions, I've just never seen any that have benefitted me.

Class actions aren't to benefit you, it's to punish the company that did the wronging. (And make lawyers money)

Re:Most class actions are a scam (4, Interesting)

AuMatar (183847) | about a year ago | (#41995935)

Exactly. The idea behind a class action is that if a company is wronging a lot of people in a way that's too small to be worth going after by any one person, it can be punished by them as a group. The problem is two-fold. First, they're frequently allowed to pay in goods/services (especially discounts) that will make them money rather than cost them money. Second, they settle for a fraction of the harm they caused, leaving no reason not to do it again. Those two things need to be fixed- the penalty needs to be made cash only, and the minimum penalty applied needs to be the total harm done. Preferably total harm done plus a puntitive fine

Re:Most class actions are a scam (1)

ottothecow (600101) | about a year ago | (#41996661)

There are plenty of class actions that can be beneficial to the claimants (as well as the lawyers). These aren't the class actions you get postcards in the mail about some made up offense ("nutella isn't healthy!"), they are situations where you have experienced a real harm and you are probably aware of it. It turns into a class action when a bunch of people who have experienced the same harm try to sue and get consolidated into a class (or start out has a class but would have had legitimate cases on their own). These cases help make it easier for the plaintiffs to prove their case and collect. Think of something like a fraudulent scheme involving a stock you purchased which then lost half of its value when the fraud was revealed--Whatever lawyer gets to represent the class is going to make a bunch of money, but you are going to get paid real money based on how many shares you owned and when you bought/sold them. Often the attorney's fees for the class lawyers will be calculated on top of these damages (although if you retained your own lawyer, they will probably want a cut) so if there is a punitive award, you end up with more money than you actually lost. To collect anything from a suit like this, you will likely be required to provide extensive proof that you were in fact a valid claimant who was harmed (such as trading records and brokerage statements).

The post-card class actions seem to exist only to punish the company...but they are also very easy to join. Remember the CD price fixing suit? They just assumed everyone had bought at least one CD so they didn't even bother asking for proof that you should be a member of the class...same goes for things like the Nutella or Ticketmaster suits. Not sure how ticketmaster got away with "paying" with vouchers for more concert tickets (which you would then have to pay ticketmaster fees on top of) but I imagine it has something to do with the fact that in order to be a member of the class, you have to be a past ticket purchaser, and thus you are being given a discount on something you are likely to be a future purchaser of. In those suits, the lawyers win a lot, the companies lose a little, and the consumer might get their lunch paid for if they are lucky.

Re:Most class actions are a scam (0)

Anonymous Coward | about a year ago | (#41997063)

Indeed. As a good example of this, look at the banks and their cutesy overdrafting schemes, including processing largest to smallest instead of in-order, just so they can maximize their fees. In some cases, they're violating depository reglations (a cash deposit is same business day availability (business day being the day wherein they're OPEN...), and the same day being until 9:00pm if done at an ATM that knows you're depositing cash, but to Wells Fargo, they'll claim it's available and all, but in many cases, it's "pending" as far as they're concerned and then ding you a fee for nothing other than using a check or debit card against the money so deposited...), but the amounts are typically so pidding by and of themselves that nobody is willing to underwrite tens of thousands of dollars (yes) to sue the damn banks over the violations. (Disclosure: I'm one of the people in one of the covered classes in this example... I'll probably never see much of anything of the thousands they slowly bled me of over the past couple of years, but they're going to still get spanked fairly hard over it- which is really what I'm after as much as anything else...)

Class actions are to allow somone who'd have standing but not resources to give the offender a bloody nose at the least...

That's all they've EVER been.

Re:Most class actions are a scam (1)

oobayly (1056050) | about 2 years ago | (#41997471)

I always thought it was to make lawyers money (and to punish the company that did the wronging).

Re:Most class actions are a scam (4, Insightful)

Hatta (162192) | about a year ago | (#41995923)

So, propose something better instead of simply removing one of the few ways we have to hold a corporation's feet to the fire. If arbitration was better at punishing corporations when they do wrong, they wouldn't be moving to it in large numbers.

Re:Most class actions are a scam (0)

Anonymous Coward | about 2 years ago | (#41997407)

The British model.

People gang together to get one representative case heard. Bad guys lose and have to pay costs (that's important) plus penalty.

Now everyone is free to file a suit, knowing there's a precedent so they'll probably win, and if bad guys don't settle quickly, they have 10^7 legal fees to pay. Plus penalty. Job done. Bad guys pay or die.

I think the difference in US law relates to not being awarded legal costs. So the bad guys in the US know that the penalty paid has to exceed the costs for each case, so they know nobody's going to try.

Re:Most class actions are a scam (1)

Anonymous Coward | about a year ago | (#41996005)

This exactly! Class action lawsuits are just a scam. Corporations *never* do the evil shit they are regularly accused of, and even if they did, big fucking deal! This country is supposed to be a FREE MARKET, so just stop buying from them if they sell you a defective product or whatever! Of course, this is now Hussein Obama's AmeriKKKa where personal responsibility and rationality is dead and everyone expects the government and corporations to give them everything for free.

Re:Most class actions are a scam (1)

BradleyUffner (103496) | about a year ago | (#41996085)

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.

If all these companies are so scared of being sued in a class-action lawsuit then clearly they are working the way they are supposed to. A class action isn't supposed to benefit you directly, it's supposed to be a punishment to the company to correct bad behavior.

Easy.. (1)

Shrike Valeo (2198124) | about a year ago | (#41995831)

Hope that a judge deems otherwise, since you may as well agree to sacrifice your second child and 5 goats to use their service if they can do this...

As someone mentioned in a similar story (credit to whoever they are) you don''t get such shackles with in-store purchase unless there's ongoing payments!

Re:Easy.. (1)

davecb (6526) | about a year ago | (#41995999)

It's not quite legal in Canada, although a court can honour and enforce the decisions of lawfully-entered-into "alternative dispute resolution". I suspect it's not been litigated, for fear of getting a decision (:-))

Re:Easy.. (3, Informative)

compro01 (777531) | about a year ago | (#41996281)

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.

Re:Easy.. (1)

davecb (6526) | about a year ago | (#41996323)

Excellent, thanks! --dave

what we do is 100.000 small court claims (0)

Anonymous Coward | about a year ago | (#41995837)

subject says it all.

Re:what we do is 100.000 small court claims (1)

phorm (591458) | about a year ago | (#41995887)

Indeed. I don't think there's anything that prevents people from sharing information/funding on a lawsuit. Fund one or two cases strongly, DON'T SETTLE, and then when precedent is set, the wave of incoming lawsuits is going to cost a lot more than "hand out a $1.99 coupon" penalties that most class-actions end up with.

not necessarily a Bad Thing (tm) (2, Interesting)

Anonymous Coward | about a year ago | (#41995865)

Before everyone jumps to conclusions,
Class action lawsuits are nice for the law firms that pursue them, but rarely do much for the people that are part of the class.

I've been involved in several in my life and never saw more than a few bucks.

As a matter of fact, you usually have to specifically ask to be REMOVED from the class or be assumed to be a part of it. Kind of like being automatically opted-in instead of automatically being opted-out. And after you are opted-in, you lose any right to sue them on your own.

Re:not necessarily a Bad Thing (tm) (0)

BradleyUffner (103496) | about a year ago | (#41996105)

Class action are not meant to enrich you, they are meant to punish the offending party.

Re:not necessarily a Bad Thing (tm) (1)

Anonymous Coward | about a year ago | (#41996207)

just like patent are meant to profit inventors

but now we have patent trolls and class action trolls

Re:not necessarily a Bad Thing (tm) (-1)

Anonymous Coward | about a year ago | (#41996189)

You can't automatically opt-in to something like this - that can't possibly be legal. What if someone signs me up for this and I don't get the mail? Can I have my rights restricted because *someone else* spells my address wrong? How could I be expected to know to take action if I don't know?

The only time opt-in is useful is if you're dealing with an existing contract. In this case a company has bound me to a *new* contract without even involving me in the discussion - those sorts of contracts are completely unrecognized by the legal system and they're totally invalid. You need an offer, process for consideration and clear (provable) acceptance for a contract to be binding. This process has none of those.

What to do (0)

Anonymous Coward | about a year ago | (#41995867)

The question becomes, what do we do to fix this so that consumers are truly protected?"

Change the law to make this kind of clause unenforceable.

Oh, wait. That's hard work. We might even have to persuade other people that it's a good idea.

I have a better idea -- why don't we not do anything, and then later complain that the legal system is broken. That's much easier.

No Class Action (4, Informative)

Maximum Prophet (716608) | about a year ago | (#41995877)

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)

Re:No Class Action (5, Funny)

AuMatar (183847) | about a year ago | (#41995957)

That's a great idea! Even better- we could have those trained arbitrators be paid for by taxes so that they aren't beholden to anyone but the law. We'll call them "judges".

Re:No Class Action (1)

Maximum Prophet (716608) | about a year ago | (#41996055)

Many places judges are not trained, they are elected. Some aren't even lawyers.

An extension of the small claims process for interstate companies would help. The lawsuit wouldn't last more than a day, and the Judge would be impartial.

Re:No Class Action (1)

AuMatar (183847) | about a year ago | (#41997075)

Pretty much every place I've seen that elects judges requires them to be members of the local bar.

There's definitely ways we can improve taking people to court. But arbitration isn't one of them- it will always be biased towards companies, and there's no reason to create a parallel court system made out of people with no legal accountability and no appeals process. We have a court system. Hire more judges and make it take less red tape for short trials under a certain dollar limit. Maybe even as simple as any claim under $100 will be dealt with in writing rather than with a formal trial, unless one side requests it.

Re:No Class Action (0)

Anonymous Coward | about a year ago | (#41996525)

Class actions for minor billing fraud or some other trivial shit should be vetted out by judges. But the concept of class action needs to be very strong and made illegal to add clauses against the consumer. Just think of the damage a corporation can do to a town by fucking up chemical control, or to patients because their pharma testing was insufficient and took the American route of getting it out of the door because the profits are very likely to exceed any lawsuits from death (GM, Ford, Monsanto et al).

Re:No Class Action (0)

Anonymous Coward | about a year ago | (#41996783)

Congress did step in and clarify, they passed the Federal Arbitration Act.

Re:No Class Action (1)

alexo (9335) | about a year ago | (#41997085)

The question becomes, what do we do to fix this so that consumers are truly protected?"

You can't. There's no profit in protecting consumers.

Congress needs to step in and clarify.

Congresscritters are predominantly lawyers, their buddies are predominantly lawyers and CEOs.
Why would they act against their own financial interests?

(And don't talk to me about democracy. Democracy only works with an informed and engaged electorate.)

Re:No Class Action (1)

interkin3tic (1469267) | about a year ago | (#41997211)

Are there any countries running a form of capitalism which is comparable, in which class action lawsuits are barred? Any indication that this hurts or helps consumer rights? I could see no class action lawsuits on average helping consumer rights if they resulted in less apathetic politicans and consumers. However, I could also see that hypothesis being totally wrong, and people just accepting whatever minor abuses companies throw at them.

Seems like something which would have been researched by some economist at some point.

Pre-dispute binding arbitration should be banned (2)

Facekhan (445017) | about a year ago | (#41995893)

Congress never intended pre-dispute binding arbitration clauses to apply to consumer contracts under the FAA but business-friendly courts have interpreted the law that way. Congress just needs to amend the FAA so that pre-dispute binding arbitration is not binding in consumer contracts, as well as prohibiting the requirement that consumers waive their right to class-action and jury trial pre-dispute.

It would also help if Congress gave the CFPA or some other pro-consumer leaning agency oversight of private arbitration companies because right now they have a massive conflict of interest since their customers are the big businesses that count on them ruling in their favor more often than courts would in consumer cases.

Re:Pre-dispute binding arbitration should be banne (1)

Maximum Prophet (716608) | about a year ago | (#41996071)

... big businesses that count on them ruling in their favor more often than courts would in consumer cases.

AFAIK, it's not just "more often", it's like greater than 90% of the time.

Re:Pre-dispute binding arbitration should be banne (0)

Anonymous Coward | about a year ago | (#41996143)

Actually just need to get rid of one of the Supreme Court judges that ruled class action bars as constitutional. These really shouldn't be allowed under existing law.

Re:Pre-dispute binding arbitration should be banne (1)

BigFire (13822) | about a year ago | (#41996185)

If you don't like the terms of the agreement, you do not have to abide by it. Simply don't do business with your supplier. That wasn't hard to understand.

Re:Pre-dispute binding arbitration should be banne (0)

Anonymous Coward | about a year ago | (#41996353)

"don't like it -> don't use them" - what if you WANT to use them, and they are acting unethically [and potentially legally dubiously, depending on the result of legal action over it]? Not buying from them / using their services alone does nothing to RESOLVE that problem, Sherlock.

Re:Pre-dispute binding arbitration should be banne (4, Insightful)

pavon (30274) | about a year ago | (#41996599)

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.

Re:Pre-dispute binding arbitration should be banne (0)

Anonymous Coward | about 2 years ago | (#41997597)

I find it funny that in US you are allowed to demand to others to waive their rights.

Interesting liberty concept...

Long-Term Pushback (0)

Anonymous Coward | about a year ago | (#41995945)

If you force people to live in a world without effective legal remedy, instead, you will see extralegal remedies being taken instead.

The music and video industries, with their resistance to digital distribution, have effectively entrenched piracy as a permanent competitor for a time period long past it had any claim of moral acceptance - because it's become easy and habitual.

I doubt this will happen here, but I expect that they will chip away at more and more rights in an unreasonable manner to further their own profit, and then we'll see a mass of illegal action of some kind or another until the equilibrium is restored - even if they retain the right, they'll fear to exercise it.

That's a long answer (2)

fadethepolice (689344) | about a year ago | (#41996017)

Since there is no way congress is going to fix this when lobbied by the public we need to amend our political system in the following ways: : 1.) Stipulate that use of public airwaves by a licensed television station requires that the licensee provide access to the public airwaves for a reasonable amount of time. In this way we can provide access for advertising to public officials without requiring legislatures to sell their soul to gain access to what is basically a public right of way. 2) Make it illegal for congressman to be lobbied by people who are not from their district and they do not represent. Providing dinners / gifts by corporations or individuals to congressmen by people they do not represent should be the new definition of bribery. 3) Eliminate the integration of republican and democratic parties into the local election system. For example, the public voting machines and facilities should not be provided to private political organization. This should MOST DEFINITELY not be done for free. I am done with the republcian and democrat organizations wasting millions of taxpayer dollars for their own private ends. In this way, primaries need to be revised. Most explicitly, party allegiance should not be a factor for qualification for running in a primary election. This system disenfranchises independent voters. Maybe a few years after these things have been done we will have a congress that will pass laws that are for the benefit of the people, and they might just pass a law providing for the protection of consumers.

Re:That's a long answer (1)

BradleyUffner (103496) | about a year ago | (#41996239)

How is that going to fix Class Actions?

Snarky response: "elect" a better supreme court (1)

steppin_razor_LA (236684) | about a year ago | (#41996175)

*EOM*

Re:Snarky response: "elect" a better supreme court (0)

Anonymous Coward | about a year ago | (#41996415)

"elect" a better supreme court

And how pray tell will I do that? I have 0 control of that other than indirectly through my senator (who is going to vote party line) or the president (again party line).

Arbitration Package (2)

colesw (951825) | about a year ago | (#41996195)

Maybe I'm missing something, since I've never had to go through arbitration (or small claims court). But couldn't a lawyer/firm put together a kit to show you what you needed to do to take these cases to small claims court, or even requesting arbitration? Do companies have a time limit for arbitration? I could only imagine if a law firm did a "class" action style sign up for these kits, and charged people a small amount of money for it (generic kit, couple hours, sell it for like $10 even) that it would cost these companies a large sum of money to respond to all of them.

Re:Arbitration Package (0)

Anonymous Coward | about a year ago | (#41996839)

The main problem with that is that in order to take the company to small claims court you have to actually go to small claims court. The company as the defendant can choose to not show and pay the damages.

Since actually going to small claims court can mean 1/2 day to a full day off work, an hour + drive to the courthouse, presentable court attire, possibly consultation with a lawyer (most people probably don't know what documents to fill out to file the suit), etc. Most people will not bother to sue and the company ends up paying very few people.

Can terms override the law? (0)

Anonymous Coward | about a year ago | (#41996233)

No class action. Arbitration instead of court. Can corporations put terms in contracts that force people to give up their rights as citizens? Has this ever been tested in court?

Re:Can terms override the law? (2)

J.J. Dane (1562629) | about a year ago | (#41996581)

It may be legal in the U.S, but I'm almost 100% certain it isn't in this part of the world (Denmark, and probably the rest of Scandinavia).

Let's Do This! (1)

oldhack (1037484) | about a year ago | (#41996251)

Imma sue those bastards. Who's with me?

What to do?? I'll tell you ... (0)

johnlcallaway (165670) | about a year ago | (#41996277)

Don't shop there.

I don't buy stuff from any store I don't like, it's called personal choice.

Re:What to do?? I'll tell you ... (4, Informative)

Microlith (54737) | about a year ago | (#41996347)

Don't shop there.

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.

Re:What to do?? I'll tell you ... (1)

interkin3tic (1469267) | about a year ago | (#41997229)

I'm surprised it's taken amazon this long. Several other big companies have done it and have not faced revolts, lynchings, or even much noise that I've heard about barring such clauses via legislation. What were they worried about, it couldn't possibly be that they respected their customers too much: they're a large corporation.

It's all about the lawyers (1)

nam37 (517083) | about a year ago | (#41996285)

Generally, the only people who profit from the class action suits are the lawyers.

This won't be allowed to last long (3, Insightful)

Alain Williams (2972) | about a year ago | (#41996337)

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 ?

Re:This won't be allowed to last long (1)

alexo (9335) | about a year ago | (#41997109)

You forget their other friends, corporations.

Re:This won't be allowed to last long (1)

interkin3tic (1469267) | about a year ago | (#41997257)

That's not cynical. The only groups who go against their self-interests are voters and consumers.

Cynical would be assuming the lawyers and the corporations are going to come to some sort of agreement where the lawyers will still get paid but the consumers will still not be able to band together to hold corporations responsible for things.

Of course, most of us are cynical enough about it to think that's pretty much what we have already with class-action lawsuits.

Corporations depriving you of rights (1)

meflo (1546007) | about a year ago | (#41996409)

I've been mistaken. You're probably heading to China, not Russia.

Is this all even legal? (2)

houghi (78078) | about a year ago | (#41996451)

Normally if a contract contains something that is not legal, the whole contract can become void. So even if they put this in, how can this be legal?

If they put in their contract that they will now be the legal guardians of your children, that would not make it so. At least I hope.

Saying:Yeah, but you signed, does not make illegal contracts legal. I doubt it is possible to take away that kind of rights by signing a contract. I am using signing and not even 'clicking on ok'

Re:Is this all even legal? (3, Informative)

meflo (1546007) | about a year ago | (#41996489)

Usually the contracts have clause stating that a void clause doesn't make the whole contract void.

Re:Is this all even legal? (1)

mrbester (200927) | about a year ago | (#41997179)

Wouldn't that clause also be void and therefore not apply?

Not legal in UK (0)

Anonymous Coward | about a year ago | (#41996811)

Class actions aside (which seem to be non-existent in UK, or at least uncommon), a EULA or contract cannot override the law of the land in the UK.

I don't know whether it's illegal for companies to try to do that, but it's certainly invalid in the eyes of the law. In fact there's a standard clause that seems to be required in agreements made in the UK, which I expect is mandatory because it's so common or universal: "Nothing in this agreement overrides your statutory rights."

I guess the US is different, but Amazon UK will not be free to bypass the law here.

Addressing the wrong problem (1)

sl4shd0rk (755837) | about a year ago | (#41996479)

Binding users into a contract that takes away their rights to litigate is just plain wrong. Class-action or not. If I don't like something Amazon has done with my privacy, history, purchasing info, whatever I should have every tool available to slap the shit out of them in court. Simply saying "Oh Hai, yeah that class action thing paypal did? We're doing it too so... lol.. fuck you. Love, Amazon" seems to me is just side-stepping the law in case they do something nefarious. Intentional or not.

I can totally see how Amazon might be worried a bunch of patent-troll lawyers might band together on a class action and sue them for selling Android devices with "Rectangles and Rounded Corners" or something just as douchey but then the focus should be on changing those f*cked up patent laws, not pissing on the consumer. Amazon, put your effort into patent reform if you're really worred about the latter. Don't screw the customer.

Class actions have little effect on corruption (1)

fustakrakich (1673220) | about a year ago | (#41996563)

So, what should we do? How petitioning for the revocation of their corporate charter and other property rights? Use the RICO and asset forfeiture rules that we use on people for mere drug possession. It would cost the public very little while the companies would be bleeding more money into their legal departments.

Re:Class actions have little effect on corruption (1)

fustakrakich (1673220) | about a year ago | (#41996589)

How petitioning for...

The word "about" is right there, but it has been cloaked. The experiment works!

Arbitral class action waivers (3, Informative)

cmattdetzel (1067146) | about a year ago | (#41996803)

Here's a great law review article [uoregon.edu] 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.

The Problem is the Federal Arbitration Act (2)

andb52 (854780) | about a year ago | (#41996807)

For all of you non-lawyers who have not followed Supreme Court caselaw on arbitration, the fault lies with the Federal Arbitration Act. https://en.wikipedia.org/wiki/Federal_Arbitration_Act [wikipedia.org] In short, the Supreme Court has repeatedly ruled that that Act has such a strong presumption for the validity of an arbitration clause that it is impossible to wiggle out of it. The next emerging threat is going to be binding arbitration in employment contracts. It already is inserted in many employment contracts, and the only protection at the moment is being offered by the NLRB. See, e.g., http://www.natlawreview.com/article/nlrb-throws-cold-water-mandatory-arbitration-provisions-prohibiting-class-actions-em [natlawreview.com]

I approve this policy change. (1)

Anonymous Coward | about a year ago | (#41996995)

Class action lawsuits the vast majority of the time are complete scams. Legalized scams, but still scams.

Most class action lawsuits are just drummed up by lawyers to increase their noteriety and to get a higher % fee. Lawyers LOVE class actions because they get a certain % of the final judges fine. Thats why you see lawyers on tv constantly with commercials saying "Oh did you take tylenol in the past 78 years because of a headache but it didnt cure the headache? Then you are entitled to money for blah blah blah blah". They do those commericals to get as many people as possible to join the case because it means more money for them. So they get extra money plus winning a case against a huge company is something they can brag about and in turn will get other people coming to them to represent them against another big company and they get their name in the news. Very very very few class action suits are actually for the good of something.

But really how can you complain? If you dont like the terms of agreement then dont use the service. Its that simple. No one is forcing you to agree to them, it isnt a service that you mandated by federal law to use, it isnt a service you cant live your life without, its purely just a luxury service created to make a task easier with them than with others so if you dont like it THEN DONT FUCKING AGREE TO IT.

So I approve of any company that puts a clause in to save themselves from damaging, pointless, often fradulent class action suits because they need to protect themselves. Sure a few would be legit but you know what if you have to sacrifice just a customers by adding this in to save yourself from the millions who would rip you off given the chance then its worth it to them and I can completely understand why.

Not a problem if they don't want class actions (0)

Anonymous Coward | about 2 years ago | (#41997583)

But they should be prepared to respond to 10000000 different cases of arbitration (which naturally will not be followed in due time because of the quantity of processes), and after that, defend themselves in court.

The tables are turned, because on most places, there is small claims courts, which are cheap and you can even represent yourself with the help of the court on that. You just need to have a sensible case and be based on proper statues of law.

With crowd-sourcing setting up websites on "how to sue company x for 'individual class action'", companies will think again before allowing this kind of cases to be trialed individually.

If i had a company with one million potential cases, i think i would prefer that my company to be sued in just one place, one case.

But, like they say... in America... be American... (trial happy at that)...

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