3 ms·

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

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)

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)