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Lawyers willing to opine: > 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a cla

Lawyers willing to opine: > 14.5. NO CLASS ACTIONS. Developer may only resolve disputes with Dropbox on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. Is this exact thing what's being considered in some of the more recent Supreme Court cases? https://www.npr.org/2017/10/06/555862822/no-class-action-supreme-court-weighs-whether-workers-must-face-arbitrations-alon https://www.npr.org/2017/10/06/555862822/no-class-action-sup...

pktgen 9y ago
> Is this exact thing what's being considered in some of the more recent Supreme Court cases? https://www.npr.org/2017/10/06/555862822/no-class-action-sup.. https://www.npr.org/2017/10/06/555862822/no-class-action-sup.... -- but that's still being sussed out. (Not a lawyer.) It's the same issue, but a different context. The issue currently before the Supreme Court is whether the National Labor Relations Act, which provides workers the right to unionize and engage in concerted activity, prohibits class-action waivers. The (eventual) outcome of that case will not be relevant to the Dropbox agreement at issue here, because the Dropbox agreement is not an employment contract.
joering2 9y ago
IANAL, but as far as I understand this is grey area and some courts/judges will see something like this differently, because there is a set of rules that courts find irrelevant whether you put them in your terms or not. For example, you can agree to the terms where point 1.2.3 says "you agree that our employee can break into your house in the middle of the night and strangle you to death". The mere explanation "they agreed on the terms" clearly will not suffice; furthermore courts have found that terms of service have to be reasonable that a sound person would have to agreed upon (sorry not enough time to find citations). Whether the judge will dismiss lawsuit because corporation told them "no in-court litigation" or not is really up to a judge and not a cover-them-all type blanket.
- pktgen 9y ago
  Unfortunately, the GOP Supreme Court has made these arbitration agreements nearly bulletproof. What you've written makes a lot of sense and is how it should be, but judges now have very little leeway in not enforcing arbitration agreements. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf). (Concepcion in particular originated from a California Supreme Court ruling that these agreements were unconscionable and unenforceable in certain situations.)
  - DannyBee 9y ago
    So, it's definitely the case that the FAA preempts state laws banning required arbitration. However, Amex is not about whether a class action arbitration waiver is enforceable in the face of a state law holding them unconscionable. Instead, Amex is about whether a class action arbitration waiver is enforceable in the face of it just being "too expensive" to arbitrate individually. There was no state law at issue. Just a straight policy argument. The answer to that is quite clearly "yes, it's enforceable". But the opinion goes to great pains to say such waivers are a matter of contract law, which is very traditionally the role of the states. Hence my assumption is that if a state did say that, as a matter of contract law, class action arbitration bans are against public policy, it would be a matter of preemption, and i can't see why the state would lose on the law (though they may lose anyway given the current court makeup)
xphilter 9y ago
No. This waiver would be valid in court. The other cases deal with employee-employer relationships.
DannyBee 9y ago
Lawyer here. Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive. The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrate individually (no state law, etc, was at issue here), and the answer is "yes, they are enforceable". This is not surprising, these kinds of straight policy arguments rarely are winners in court. A state law would instead be a preemption issue. It's one thing to say "you must arbitrate", which is clearly covered by the Federal Arbitration Act. That is why state laws that attempt to ban such clauses are preempted. However, there is nothing that i'm aware in that act (though admittedly, it's been a while since i looked at the act), that preempts state laws prescribing the form of arbitration. Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear. Again, it's been a while, but when they were first preempted, states mostly did not have such laws on the books (IE they found required arbitration to be against public policy, and that was preempted by the FAA. They did not have laws that said that banning class arbitration to be against public policy) Of course, if someone knows of a part of the FAA that explicitly allows prescribing the form of arbitration, then yeah, everyone is gonna lose. Funny story: most of the places that pushed so hard for required arbitration had clearly not thought through the consequences. They still haven't, AFAICT. I remember having lunch with one of the counsel at EBay and some other companies about a year after the original supreme court ruling on class actions, and he was very happy they could require arbitration (they got a lot of nuisance suits, to be fair to them), and asked me why Google didn't require arbitration (Note: I'm not legal counsel for Google, i haven't been involved in Google's TOS in years, blah blah blah) I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration. I suggested that was probably a bad bet. I still believe it to be a bad bet. (It hasn't changed a lot because the other side of this is still fighting to the death instead of considering new business models. They are very much not used to dealing in volume)

pktgen 9y ago

> Is this exact thing what's being considered in some of the more recent Supreme Court cases? https://www.npr.org/2017/10/06/555862822/no-class-action-sup.. https://www.npr.org/2017/10/06/555862822/no-class-action-sup.... -- but that's still being sussed out. (Not a lawyer.) It's the same issue, but a different context. The issue currently before the Supreme Court is whether the National Labor Relations Act, which provides workers the right to unionize and engage in concerted activity, prohibits class-action waivers. The (eventual) outcome of that case will not be relevant to the Dropbox agreement at issue here, because the Dropbox agreement is not an employment contract.

joering2 9y ago

IANAL, but as far as I understand this is grey area and some courts/judges will see something like this differently, because there is a set of rules that courts find irrelevant whether you put them in your terms or not. For example, you can agree to the terms where point 1.2.3 says "you agree that our employee can break into your house in the middle of the night and strangle you to death". The mere explanation "they agreed on the terms" clearly will not suffice; furthermore courts have found that terms of service have to be reasonable that a sound person would have to agreed upon (sorry not enough time to find citations). Whether the judge will dismiss lawsuit because corporation told them "no in-court litigation" or not is really up to a judge and not a cover-them-all type blanket.

pktgen 9y ago
Unfortunately, the GOP Supreme Court has made these arbitration agreements nearly bulletproof. What you've written makes a lot of sense and is how it should be, but judges now have very little leeway in not enforcing arbitration agreements. See AT&T Mobility v. Concepcion (https://www.supremecourt.gov/opinions/10pdf/09-893.pdf https://www.supremecourt.gov/opinions/10pdf/09-893.pdf) and Amex v. Italian Colors (https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf https://www.supremecourt.gov/opinions/12pdf/12-133_19m1.pdf). (Concepcion in particular originated from a California Supreme Court ruling that these agreements were unconscionable and unenforceable in certain situations.)
- DannyBee 9y ago
  So, it's definitely the case that the FAA preempts state laws banning required arbitration. However, Amex is not about whether a class action arbitration waiver is enforceable in the face of a state law holding them unconscionable. Instead, Amex is about whether a class action arbitration waiver is enforceable in the face of it just being "too expensive" to arbitrate individually. There was no state law at issue. Just a straight policy argument. The answer to that is quite clearly "yes, it's enforceable". But the opinion goes to great pains to say such waivers are a matter of contract law, which is very traditionally the role of the states. Hence my assumption is that if a state did say that, as a matter of contract law, class action arbitration bans are against public policy, it would be a matter of preemption, and i can't see why the state would lose on the law (though they may lose anyway given the current court makeup)

xphilter 9y ago

No. This waiver would be valid in court. The other cases deal with employee-employer relationships.

DannyBee 9y ago

Lawyer here. Some of those cases are about the NLRB's authority, not anything else. I didn't look up all of them. Past that so, as far as i know, attempting to waive class arbitration is untested against an explicit state policy, and i have doubts it would survive. The only case about this so far is whether class action arbitration waivers are enforceable in general in the face of it being "too expensive" to arbitrate individually (no state law, etc, was at issue here), and the answer is "yes, they are enforceable". This is not surprising, these kinds of straight policy arguments rarely are winners in court. A state law would instead be a preemption issue. It's one thing to say "you must arbitrate", which is clearly covered by the Federal Arbitration Act. That is why state laws that attempt to ban such clauses are preempted. However, there is nothing that i'm aware in that act (though admittedly, it's been a while since i looked at the act), that preempts state laws prescribing the form of arbitration. Thus, a state law saying "arbitration is awesome, but banning class arbitration is against our public policy", if they exist, should be valid. Preemption must be very clear. Again, it's been a while, but when they were first preempted, states mostly did not have such laws on the books (IE they found required arbitration to be against public policy, and that was preempted by the FAA. They did not have laws that said that banning class arbitration to be against public policy) Of course, if someone knows of a part of the FAA that explicitly allows prescribing the form of arbitration, then yeah, everyone is gonna lose. Funny story: most of the places that pushed so hard for required arbitration had clearly not thought through the consequences. They still haven't, AFAICT. I remember having lunch with one of the counsel at EBay and some other companies about a year after the original supreme court ruling on class actions, and he was very happy they could require arbitration (they got a lot of nuisance suits, to be fair to them), and asked me why Google didn't require arbitration (Note: I'm not legal counsel for Google, i haven't been involved in Google's TOS in years, blah blah blah) I pointed out that class action/courts generally at least required a licensed lawyer to maintain and work on the suit, which was expensive, whereas arbitration could be done by lay people, and that he was essentially betting that nobody could make it cost effective to have a paralegal or someone manage fifty arbitrations at once, or a class arbitration. I suggested that was probably a bad bet. I still believe it to be a bad bet. (It hasn't changed a lot because the other side of this is still fighting to the death instead of considering new business models. They are very much not used to dealing in volume)