15 ms·

A new weapon in arbitration: sheer volume

544 points by jseliger 7y ago

DannyB2 7y ago
> But a federal judge in San Francisco wasn’t willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees. Ah! Gotta love judge Alsup. Back in SCO vs Novell, and in Oracle vs Google. > ... in a hearing, Judge Alsup questioned whether the company and its lawyers really believed that. > "Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court,” the judge told lawyers for Gibson Dunn late last year. “And so finally someone says, ‘OK, we’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling around, trying to find some way to squirm out of your agreement." > "There is a lot of poetic justice here," the judge added.
- dllthomas 7y ago
  What was his involvement in SCO vs Novell? He doesn't seem to be mentioned in https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._Novell,_Inc https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._Novell,_Inc.
  - lonelappde 7y ago
    Parent might have been thinking of Judge Jackson in the Microsoft antitrust case https://en.m.wikipedia.org/wiki/Thomas_Penfield_Jackson https://en.m.wikipedia.org/wiki/Thomas_Penfield_Jackson
  - maxlybbert 7y ago
    SCO vs. Novell was in Utah, under Judge Kimball. But Alsup was impressive in Oracle vs. Google, noting that he had some familiarity with programming and calling out Math.max() as the kind of function where scènes à faire and merger probably apply.
    - tobinfricke 7y ago
      > as the kind of function where scènes à faire and merger probably apply. I had to look this up - »Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.« https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire
      - late2part 7y ago
        This was a holding argument in the CISCO v. ARISTA lawsuits. You can't trademark "show interface" for example.
    - dllthomas 7y ago
      He also oversaw Waymo v. Uber, and PG&E's probation (IIRC), and there were some great moments from both.
  - deleted 7y ago
    [deleted]
- mehrdada 7y ago
  Funny his middle name is Haskell
  - labster 7y ago
    Looks like you’re one of today’s lucky 10000: https://hn.algolia.com/?dateRange=all&page=0&prefix=false&query=haskell%20middle%20name&sort=byPopularity&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=false&qu...
  - quickthrower2 7y ago
    > Do you know Haskell? > Ha ha, you ask me do I know Haskell? Haskell is my middle name!
- paulgb 7y ago
  He also taught himself Java to better understand the arguments in Oracle vs. Google. https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsup-interview-waymo-uber https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...
  - capital_guy 7y ago
    Ehhh the article you linked explicitly says "Judge Alsup would like everyone to know that he doesn’t know Java."
    - falcor84 7y ago
      I don't see how that refutes anything. Java is a complicated language and I personally wouldn't hire anyone who are vain enough to say "I know Java". In any case, the very next sentence of the article is "Not very well, anyway", which definitely supports the claim that he taught himself Java.
      - ALittleLight 7y ago
        You wouldn't hire anyone who says "I know Java"? That seems extreme. Some people do know Java and are completely justified in saying so.
        falcor84 7y ago
        Well, I suppose it was a bit of hyperbole on my part, but the thought of someone saying "I know Java" made me think of something like that "I know Kung Fu" moment from The Matrix, as if there's some amount of knowledge after which you just have the skill. I consider Java to be one of these things like Kung Fu, or Chess, or photography, where thinking that you now know it just means that you're so early in your learning process that you can't see the full lay of the land yet.
      - Talanes 7y ago
        Yes, but then the rest of the sentences after that go to great length to explain his actual programming background, in QuickBASIC, and how he applied his knowledge of fundamentals to the scenario at hand.
- hn_throwaway_99 7y ago
  So glad he ruled against them. Door Dash forced its dashers to use a specific arbitration organization, and then when they actually did, refused to pay their fees and tried to take their case to a different arbitration organization that was more favorable to them. What a load of total bullshit. Goes to show the only "efficiencies" brought about by arbitration are discouraging people from bringing claims in the first place.
neonate 7y ago
https://archive.md/tXRs6 https://archive.md/tXRs6
function_seven 7y ago
The article mentions 6,000 arbitration cases against DoorDash amounted to $9 million in fees from the American Arbitration Association. That's $1,500 a pop! If you have a dispute with a company, and are bound by an arbitration clause, it seems like you have a $1,500 hammer to hit them with? (Assuming your agreement states that the company will front the fees). What happens if the arbitrator decides the case against you? Do you owe that fee? Does this vary from one contract to another?
- jdmichal 7y ago
  > Assuming your agreement states that the company will front the fees. I'm not entirely sure they can agree to not front the fees without also potentially voiding arbitration. While money does mean a lot in court, there's a very strong sentiment that it should not be a barrier to entry. There's at least one case that went to appears where, when the plaintiff ran out of money and arbitration was canceled, the case was permitted into court: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/15/13-56624.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/15/1...
  - gamblor956 7y ago
    The arbitration clause is for the company's protection, therefore the arbitration fees are their burden. If they breach the arbitration clause by not paying for arbitration in a timely manner, the plaintiff is entitled to go to court in the 9th and 10th Circuits.
    - comex 7y ago
      But what if the arbitration clause says the plaintiff will pay? I believe that's what the parent comment was talking about.
      - arbitraryacct 7y ago
        Not allowed
      - 7y ago
crazygringo 7y ago
This seems like fantastic news -- if class action suits aren't allowed, then technology now makes it easier to file "cookie cutter" arbitration suits at such low cost that it effectively acts like a small class-action suit anyways. But I'm worried companies will be able to respond in a way that neutralizes it -- tweaking arbitration terms somehow. I hope not, though. It is absolutely necessary that we hold companies accountable for mass bad behavior, no matter if it's with their customers or employees.
- g_p 7y ago
  In cases where the arbitration clause is already in place, and the arbitrations have been filed, that would likely be difficult to do, as a result of the Alsup ruling. Where the arbitrations haven't begun yet, there's certainly some scope for attempting to neutralize this, by changing provider or terms. Interestingly, there's a potential conflict-of-interest brewing [1] around whether DoorDash's lawyers were so tightly involved in the writing of the CPR's rules, that the CPR sought their approval before publishing them [2]... If that is the case, things could start to get quite interesting indeed, particularly for CPR, who are not looking in a particularly good light after discovery in the case. > The documents in the case were unsealed on Wednesday, revealing that the defendants were so involved in the protocol that CPR would not publish it until DoorDash and its lawyers gave the go ahead, including a sign off on the fee structure by DoorDash’s head of litigation, Gregg Farano. In his written approval of the Protocol in an Oct. 31 email to Waxman, Farano asked that CPR let him know when the new rules were published “so that we may link to it in our terms and conditions.” Alsup certainly seems to think there's something worth the public knowing about here [3]: > Judge Alsup also said the public deserves to see the CPR emails, since the material “would be useful to the public in evaluating the true extent to which (CPR) is impartial.” [1] https://www.law.com/therecorder/2019/12/20/gibson-dunn-doordashs-ties-to-new-mass-arbitration-protocol-can-be-explored-judge-says/ https://www.law.com/therecorder/2019/12/20/gibson-dunn-doord... [2] https://prospect.org/labor/doordash-company-arbitration-storm-workers/ https://prospect.org/labor/doordash-company-arbitration-stor... [3] https://www.reuters.com/article/legal-us-otc-mass-arbi-lawsuits-idUSKCN20M00Z https://www.reuters.com/article/legal-us-otc-mass-arbi-lawsu...
  - 7y ago
mandelken 7y ago
As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining? Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there? Are we just lucky here, like with universal health care?
- saagarjha 7y ago
  Many people don't like unions, and most companies heavily discourage their employees from joining one.
  - hcknwscommenter 7y ago
    In particular, many working class people who would benefit from strong unions are opposed to unions, or even if they are not opposed do not consider how their voting patterns/choices affect union viability.
- Gatsky 7y ago
  Yes exactly. Perhaps the pandemic will change this, but probably not.
- Mirioron 7y ago
  >Are we just lucky here, like with universal health care? You don't hear as much about European problems online, because they're spoken about in the respective nation's language. This means that it's hard to compare. Most European countries also have many problems like the US. Maybe not to quite the same extreme, but they do exist. The US does have a few things going for it though: very strong protections of speech, very high wages, a system of incredible services - things like Amazon, FedEx etc. From my perspective, things in the US actually seem better than in Europe for the long-term. They just have a few very obvious pain points like healthcare and the silliness of a lack of worker protections in some states. Just keep in mind that unions aren't universal across Europe or even the EU. They usually exist, but they tend to not have much leverage.
Paul-ish 7y ago
> The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers. DoorDash gets to try a few cases with this company to see if they like the results. That couldn't possibly create a conflict of interest.
vsskanth 7y ago
I wonder why the issue of being able to waive away your rights - forced arbitration, non-competes, severance packages etc. never come up at the presidential campaign stage. Seems like this is pervasive enough to affect pretty much everyone. Or am I misunderstanding something here ?
- azinman2 7y ago
  Because it’s screws those with the least power the most.
- cosmodisk 7y ago
  They won't be the people funding your presential campaign though... Obama's campaign did cost about one cool billion dollars. Even if you get a million of these guys,each would have to contribute $1000..I suspect Trumps campaign was even more expensive.
  - barry-cotter 7y ago
    A billion dollars? About $3 per US citizen for the single most powerful position in the world, with saturation media coverage of the campaign for one to two years. Doesn’t seem like a lot. Trump spent under $400m, Hillary under $600m[1]. Bloomberg spent more on his primary campaign than Trump did from start to finish[2]. Steyer spent ~$200m and didn’t break 4% in Iowa[3]. Sure looks like money likes a winner rather than buying elections. [1]https://www.theguardian.com/us-news/2016/dec/09/trump-and-clintons-final-campaign-spending-revealed https://www.theguardian.com/us-news/2016/dec/09/trump-and-cl... [2] https://www.thedailybeast.com/wheres-mike-bloomberg-billionaire-bails-after-vanity-presidential-run-ends https://www.thedailybeast.com/wheres-mike-bloomberg-billiona... [3] https://www.forbes.com/sites/michelatindera/2020/02/01/billionaire-tom-steyer-spent-200-million-on-his-own-presidential-campaign-last-year/ https://www.forbes.com/sites/michelatindera/2020/02/01/billi...
    - patmorgan23 7y ago
      It's not $3 per vote though the math is much more complicated. For starters not everyone is registered or votes on any given election (even a presidential). Next you have to factor in the primary and electoral college. Votes in Florida and other swing states are much more 'expensive'.
xibalba 7y ago
DoorDash seems to have looked at Uber's many PR problems over the last many years and said, "Hold my beer".
LatteLazy 7y ago
While I like the general idea, I still think we need a wider answer to the question of companies like doordash. Employees (or whatever they are) won't get what they want this way any more than they would previously...
Animats 7y ago
Oh, it's even worse than that for companies. The 9th and 10th circuits have both agreed that if the defense refuses to pay for arbitration, plaintiff can go to court. They're no longer barred from suing at that point. Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small claims courts tend to be pro-plaintiff. You get to be heard in person in your own county by a real judge. [1] https://www.adr.org/sites/default/files/Consumer_Rules_Web_0.pdf https://www.adr.org/sites/default/files/Consumer_Rules_Web_0...
- wool_gather 7y ago
  This is interesting. Are they only allowed to sue to force going to arbitration, or is the situation opened to allow a lawsuit for whatever the original dispute was?
  - Animats 7y ago
    Lawsuit over the original issue. The non-paying party has effectively declined arbitration.[1] [1] https://library.nclc.org/where-defendant-requires-arbitration-refuses-pay-it https://library.nclc.org/where-defendant-requires-arbitratio...
  - bastawhiz 7y ago
    It would be WILD if you could (as the company) not pay to go to arbitration, forcing the plaintiff to take you to court (at their expense?) to force you to pay to go to arbitration. A company could simply stick its fingers in its ears and yell "I can't hear your legal complaints!" and essentially get out of all responsibility. Thankfully, it sounds like this is not the case.
- paulgb 7y ago
  Typically arbitration clauses have wording that also prohibit class-action cases. It looks like this hasn't been tested, but I guess that would be void too?
  - 7y ago
manfredo 7y ago
This strategy does result in increased upfront costs for companies. But this sort pile-on strategy seems like it could be countered with arbitration agreements that aren't subject to any sort of timeline, or arbitration agreements that preclude use of automated complaint filing systems. Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond to an arbitration dispute than it is for an employee or customer to file one. If that asymmetry goes away, this strategy no longer works. I could see a company witness a spike in complaints, especially if the complaints are filed from an automated system, and conclude that these complaints would likely not result in lawsuits if arbitration was rejected. Now the onus is back on the complainant to actually go forth with the lawsuit.
- withinboredom 7y ago
  It will still be far less expensive for the filer per-complaint, than for the company total. I’m also not sure that you can prove an automated complaint is distinctly different than a manual one.
- gamblor956 7y ago
  It doesn't matter if 90% of plaintiffs choose not to go to trial. The 10% that do are more than enough to overwhelm the company's ability to individually manage each case. Also, in the US legal system, it costs very little to file a lawsuit. And for plaintiffs, it generally costs nothing at the early stages because most plaintiff lawyers work on contingency.
- hn_throwaway_99 7y ago
  I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. I mean, a big part of the original Supreme Court rulings was that the arbitration proceedings would be impartial. Having an arbitration agreement with no timeline seems like it would be more likely to be overturned.
  - anonymousab 7y ago
    >I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. One-sided bad faith terms of service have been enforced to great effect in recent years, so I can't see a one sided arbitration agreement getting any scorn or backlash from the current judicial makeup.
huffmsa 7y ago
Good on Judge Alsup. This is the bed they asked for. They can sleep in it. Not much gets me going more than someone making tons of demands and then backing out when they actually have to deal with the consequences associated with those demands. Fuck 'em.
joshuaheard 7y ago
The "reform" is to clog the system with a huge number of cases? I don't see the benefit here. A better solution would be for the American Arbitration Association to have a special system for class actions like government courts do.
- battery_cowboy 7y ago
  The best solution would be for corporations to not get special treatment like fucking babies.
  - cityzen 7y ago
    couldn't agree with this more!
- pas 7y ago
  https://adr.org/ClassArbitration https://adr.org/ClassArbitration
- d4rti 7y ago
  Or companies could stop using binding arbitration and allow class action lawsuits.
petilon 7y ago
This is excellent. Forced arbitration clauses are fundamentally unfair to consumers. See this older article to understand why: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...
- de_watcher 7y ago
  Like what the hell is even happening in the US? I understand that for the international stuff it's sometimes hard to use national courts, but what's wrong when dealing with the internal? Courts aren't good enough? So maybe fix them, no? Of course, easier to make your own court where you'll have an advantage...
mehrdadn 7y ago
> DoorDash got the bill for the 6,000 claims — more than $9 million. > DoorDash balked, arguing in court that it couldn’t be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead. How is that legal for binding arbitration? Didn't both sides agree that disputes will be resolved by arbitration?
- itake 7y ago
  Many companies require you sign a contracting to use their service (or in this case to be employed by them) that says you agree to binding arbitration
  - sfifs 7y ago
    No longer binding if the company breachs the arbitration clause. They're going to be sued if the issue is real.
    - anonymousab 7y ago
      It seems simple enough for a binding arbitration clause to simply require the plaintiff to pay, and to tack on additional clauses to indemnify the corporate party.
      - Nextgrid 7y ago
        I would assume that these scum companies would’ve already done so long ago if this was possible.
      - ClumsyPilot 7y ago
        As much as they might dream of becoming legally invulnerable, I think even in US thats illegal.
- Igelau 7y ago
  I guess that means they weren't bound anymore.
fernly 7y ago
Is this current news? In trying to find non-pay-walled coverage (FU,NYT), I quickly found previous stories on this from February and in November. The November 25 article[1] mentions the "squirming out" remark by the judge. A WaPo article from February 16 [2] mentions that each of the 5000 Dashers who filed for arbitration had to put up $300. [1] https://www.courthousenews.com/judge-accuses-doordash-of-trying-to-squirm-out-of-arbitration/ https://www.courthousenews.com/judge-accuses-doordash-of-try... [2] https://www.washingtonpost.com/opinions/2020/02/16/doordashs-multimillion-dollar-arbitration-mistake/ https://www.washingtonpost.com/opinions/2020/02/16/doordashs...
- russellbeattie 7y ago
  Posted here a few months ago as well [1] when the judge's decision was given. This NYT article doesn't add anything new, and I suspect it's a result of the defense lawyers calling in favors order to put pressure on DoorDash which filed for it's IPO in February. DoorDash is most likely going to use the surge in traffic because of the coronavirus to help push their IPO through sooner than later, taking advantage of the fact they're one of the few types of businesses benefitting from the lock down. If the defense can threaten that IPO, DoorDash might be more pliable to a deal... https://news.ycombinator.com/item?id=22315348 https://news.ycombinator.com/item?id=22315348
fmakunbound 7y ago
”You can't stop the bum-rush!” — Ice-T
jerzyt 7y ago
Basically, the strategy is "death by a thousand paper cuts." There may be legit cases for it, but in the end, it's a wrong solution. It could easily explode to be abused for minor complaints where a real class action lawsuit would be more proper. There should be a cost to a frivolous lawsuit. This seems to eliminate it.
srib 7y ago
Just a distributed denial of service attack. It is amazing how so few systems are inherently robust to DDOS.
- dredmorbius 7y ago
  Globalised JIT economic systems and pandemics!
surround 7y ago
Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/ https://www.ycombinator.com/legal/
- deleted 7y ago
  [deleted]
- antonzabirko 7y ago
  ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company. Ignore the arbitration clauses and talk to your lawyer.
  - lisper 7y ago
    IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally binding contract. Think about it: I could put ToS on my site that say, "By using this site you agree to pay me $1M." If I were to try to enforce that I guarantee you I would not prevail. Binding arbitration clauses in ToS are there primarily to make people think that they can't sue. [1] https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-wall-street.html https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-... [2] https://contract-law.laws.com/contract-law/meeting-of-the-minds https://contract-law.laws.com/contract-law/meeting-of-the-mi...
    - nabla9 7y ago
      The US has binding consumer arbitration. In the US those are not empty clauses, despite the fact that they break many legal principles https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...
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jaakl 7y ago
Does any juristiction require all these unilateral (in any sense) TOS to be pre-reviewed and approved as “fair and clear” by a public autority? It feels so elementary to me that I’m really surprised why not everyone is demanding it as basic human right.
marcuswebb 7y ago
Would be poetic justice except: this is really just companies weaseling out of even THIS low level of social responsibility.
nomanlagharipak 7y ago
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ch33zer 7y ago
How come it seems like every time I hear Alsup's name in the news it's because he's telling a major corporation to stop being an asshole. It's refreshing to hear from a judge.
emiliosic 7y ago
I think it's an excellent idea what FairShake.com is doing
tester89 7y ago
I'm just wondering, could the plaintiffs in court now receive a higher settlement than they would have had their been no arbitration? My thinking is basically they could argue that they agreed to the companies terms of arbitration and now the company refused to honour them requiring them to waste their time and money going to court?

544 points by jseliger 7y ago

> But a federal judge in San Francisco wasn’t willing to go along with it. The judge, William Alsup, ordered DoorDash in February to proceed with the American Arbitration Association cases and pay the fees. Ah! Gotta love judge Alsup. Back in SCO vs Novell, and in Oracle vs Google. > ... in a hearing, Judge Alsup questioned whether the company and its lawyers really believed that. > "Your law firm and all the defense law firms have tried for 30 years to keep plaintiffs out of court,” the judge told lawyers for Gibson Dunn late last year. “And so finally someone says, ‘OK, we’ll take you to arbitration,’ and suddenly it’s not in your interest anymore. Now you’re wiggling around, trying to find some way to squirm out of your agreement." > "There is a lot of poetic justice here," the judge added.

dllthomas 7y ago
What was his involvement in SCO vs Novell? He doesn't seem to be mentioned in https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._Novell,_Inc https://en.wikipedia.org/wiki/SCO_Group,_Inc._v._Novell,_Inc.
- lonelappde 7y ago
  Parent might have been thinking of Judge Jackson in the Microsoft antitrust case https://en.m.wikipedia.org/wiki/Thomas_Penfield_Jackson https://en.m.wikipedia.org/wiki/Thomas_Penfield_Jackson
- maxlybbert 7y ago
  SCO vs. Novell was in Utah, under Judge Kimball. But Alsup was impressive in Oracle vs. Google, noting that he had some familiarity with programming and calling out Math.max() as the kind of function where scènes à faire and merger probably apply.
  - tobinfricke 7y ago
    > as the kind of function where scènes à faire and merger probably apply. I had to look this up - »Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.« https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire
    - late2part 7y ago
      This was a holding argument in the CISCO v. ARISTA lawsuits. You can't trademark "show interface" for example.
  - dllthomas 7y ago
    He also oversaw Waymo v. Uber, and PG&E's probation (IIRC), and there were some great moments from both.
- deleted 7y ago
  [deleted]
mehrdada 7y ago
Funny his middle name is Haskell
- labster 7y ago
  Looks like you’re one of today’s lucky 10000: https://hn.algolia.com/?dateRange=all&page=0&prefix=false&query=haskell%20middle%20name&sort=byPopularity&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=false&qu...
- quickthrower2 7y ago
  > Do you know Haskell? > Ha ha, you ask me do I know Haskell? Haskell is my middle name!
paulgb 7y ago
He also taught himself Java to better understand the arguments in Oracle vs. Google. https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsup-interview-waymo-uber https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...
- capital_guy 7y ago
  Ehhh the article you linked explicitly says "Judge Alsup would like everyone to know that he doesn’t know Java."
  - falcor84 7y ago
    I don't see how that refutes anything. Java is a complicated language and I personally wouldn't hire anyone who are vain enough to say "I know Java". In any case, the very next sentence of the article is "Not very well, anyway", which definitely supports the claim that he taught himself Java.
    - ALittleLight 7y ago
      You wouldn't hire anyone who says "I know Java"? That seems extreme. Some people do know Java and are completely justified in saying so.
      - falcor84 7y ago
        Well, I suppose it was a bit of hyperbole on my part, but the thought of someone saying "I know Java" made me think of something like that "I know Kung Fu" moment from The Matrix, as if there's some amount of knowledge after which you just have the skill. I consider Java to be one of these things like Kung Fu, or Chess, or photography, where thinking that you now know it just means that you're so early in your learning process that you can't see the full lay of the land yet.
    - Talanes 7y ago
      Yes, but then the rest of the sentences after that go to great length to explain his actual programming background, in QuickBASIC, and how he applied his knowledge of fundamentals to the scenario at hand.
hn_throwaway_99 7y ago
So glad he ruled against them. Door Dash forced its dashers to use a specific arbitration organization, and then when they actually did, refused to pay their fees and tried to take their case to a different arbitration organization that was more favorable to them. What a load of total bullshit. Goes to show the only "efficiencies" brought about by arbitration are discouraging people from bringing claims in the first place.

neonate 7y ago

https://archive.md/tXRs6 https://archive.md/tXRs6

function_seven 7y ago

The article mentions 6,000 arbitration cases against DoorDash amounted to $9 million in fees from the American Arbitration Association. That's $1,500 a pop! If you have a dispute with a company, and are bound by an arbitration clause, it seems like you have a $1,500 hammer to hit them with? (Assuming your agreement states that the company will front the fees). What happens if the arbitrator decides the case against you? Do you owe that fee? Does this vary from one contract to another?

jdmichal 7y ago
> Assuming your agreement states that the company will front the fees. I'm not entirely sure they can agree to not front the fees without also potentially voiding arbitration. While money does mean a lot in court, there's a very strong sentiment that it should not be a barrier to entry. There's at least one case that went to appears where, when the plaintiff ran out of money and arbitration was canceled, the case was permitted into court: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/15/13-56624.pdf https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/15/1...
- gamblor956 7y ago
  The arbitration clause is for the company's protection, therefore the arbitration fees are their burden. If they breach the arbitration clause by not paying for arbitration in a timely manner, the plaintiff is entitled to go to court in the 9th and 10th Circuits.
  - comex 7y ago
    But what if the arbitration clause says the plaintiff will pay? I believe that's what the parent comment was talking about.
    - arbitraryacct 7y ago
      Not allowed
    - 7y ago

crazygringo 7y ago

This seems like fantastic news -- if class action suits aren't allowed, then technology now makes it easier to file "cookie cutter" arbitration suits at such low cost that it effectively acts like a small class-action suit anyways. But I'm worried companies will be able to respond in a way that neutralizes it -- tweaking arbitration terms somehow. I hope not, though. It is absolutely necessary that we hold companies accountable for mass bad behavior, no matter if it's with their customers or employees.

g_p 7y ago
In cases where the arbitration clause is already in place, and the arbitrations have been filed, that would likely be difficult to do, as a result of the Alsup ruling. Where the arbitrations haven't begun yet, there's certainly some scope for attempting to neutralize this, by changing provider or terms. Interestingly, there's a potential conflict-of-interest brewing [1] around whether DoorDash's lawyers were so tightly involved in the writing of the CPR's rules, that the CPR sought their approval before publishing them [2]... If that is the case, things could start to get quite interesting indeed, particularly for CPR, who are not looking in a particularly good light after discovery in the case. > The documents in the case were unsealed on Wednesday, revealing that the defendants were so involved in the protocol that CPR would not publish it until DoorDash and its lawyers gave the go ahead, including a sign off on the fee structure by DoorDash’s head of litigation, Gregg Farano. In his written approval of the Protocol in an Oct. 31 email to Waxman, Farano asked that CPR let him know when the new rules were published “so that we may link to it in our terms and conditions.” Alsup certainly seems to think there's something worth the public knowing about here [3]: > Judge Alsup also said the public deserves to see the CPR emails, since the material “would be useful to the public in evaluating the true extent to which (CPR) is impartial.” [1] https://www.law.com/therecorder/2019/12/20/gibson-dunn-doordashs-ties-to-new-mass-arbitration-protocol-can-be-explored-judge-says/ https://www.law.com/therecorder/2019/12/20/gibson-dunn-doord... [2] https://prospect.org/labor/doordash-company-arbitration-storm-workers/ https://prospect.org/labor/doordash-company-arbitration-stor... [3] https://www.reuters.com/article/legal-us-otc-mass-arbi-lawsuits-idUSKCN20M00Z https://www.reuters.com/article/legal-us-otc-mass-arbi-lawsu...
- 7y ago

mandelken 7y ago

As a European, reading these articles on arbitration, no-compete, required licenses, 'right-to-work', tipping, "gig work", firing over zoom, and so much more, it seems U.S. workers could really use some collective bargaining? Here unions are the obvious century-old solution to improve working conditions, why don't workers organize there? Are we just lucky here, like with universal health care?

saagarjha 7y ago
Many people don't like unions, and most companies heavily discourage their employees from joining one.
- hcknwscommenter 7y ago
  In particular, many working class people who would benefit from strong unions are opposed to unions, or even if they are not opposed do not consider how their voting patterns/choices affect union viability.
Gatsky 7y ago
Yes exactly. Perhaps the pandemic will change this, but probably not.
Mirioron 7y ago
>Are we just lucky here, like with universal health care? You don't hear as much about European problems online, because they're spoken about in the respective nation's language. This means that it's hard to compare. Most European countries also have many problems like the US. Maybe not to quite the same extreme, but they do exist. The US does have a few things going for it though: very strong protections of speech, very high wages, a system of incredible services - things like Amazon, FedEx etc. From my perspective, things in the US actually seem better than in Europe for the long-term. They just have a few very obvious pain points like healthcare and the silliness of a lack of worker protections in some states. Just keep in mind that unions aren't universal across Europe or even the EU. They usually exist, but they tend to not have much leverage.

Paul-ish 7y ago

> The International Institute for Conflict Prevention & Resolution, or C.P.R., was willing to allow DoorDash to arbitrate “test cases” and avoid having to pay the fees all at once. C.P.R. also took feedback from Gibson Dunn on the proposed new rules, though it did not consult with the dashers’ lawyers. DoorDash gets to try a few cases with this company to see if they like the results. That couldn't possibly create a conflict of interest.

vsskanth 7y ago

I wonder why the issue of being able to waive away your rights - forced arbitration, non-competes, severance packages etc. never come up at the presidential campaign stage. Seems like this is pervasive enough to affect pretty much everyone. Or am I misunderstanding something here ?

azinman2 7y ago
Because it’s screws those with the least power the most.
cosmodisk 7y ago
They won't be the people funding your presential campaign though... Obama's campaign did cost about one cool billion dollars. Even if you get a million of these guys,each would have to contribute $1000..I suspect Trumps campaign was even more expensive.
- barry-cotter 7y ago
  A billion dollars? About $3 per US citizen for the single most powerful position in the world, with saturation media coverage of the campaign for one to two years. Doesn’t seem like a lot. Trump spent under $400m, Hillary under $600m[1]. Bloomberg spent more on his primary campaign than Trump did from start to finish[2]. Steyer spent ~$200m and didn’t break 4% in Iowa[3]. Sure looks like money likes a winner rather than buying elections. [1]https://www.theguardian.com/us-news/2016/dec/09/trump-and-clintons-final-campaign-spending-revealed https://www.theguardian.com/us-news/2016/dec/09/trump-and-cl... [2] https://www.thedailybeast.com/wheres-mike-bloomberg-billionaire-bails-after-vanity-presidential-run-ends https://www.thedailybeast.com/wheres-mike-bloomberg-billiona... [3] https://www.forbes.com/sites/michelatindera/2020/02/01/billionaire-tom-steyer-spent-200-million-on-his-own-presidential-campaign-last-year/ https://www.forbes.com/sites/michelatindera/2020/02/01/billi...
  - patmorgan23 7y ago
    It's not $3 per vote though the math is much more complicated. For starters not everyone is registered or votes on any given election (even a presidential). Next you have to factor in the primary and electoral college. Votes in Florida and other swing states are much more 'expensive'.

xibalba 7y ago

DoorDash seems to have looked at Uber's many PR problems over the last many years and said, "Hold my beer".

LatteLazy 7y ago

While I like the general idea, I still think we need a wider answer to the question of companies like doordash. Employees (or whatever they are) won't get what they want this way any more than they would previously...

Animats 7y ago

Oh, it's even worse than that for companies. The 9th and 10th circuits have both agreed that if the defense refuses to pay for arbitration, plaintiff can go to court. They're no longer barred from suing at that point. Incidentally, the AAA rules have some useful provisions in consumer disputes. Either party can request to transfer the case to small claims court. At least in California, that's not only cheaper, small claims courts tend to be pro-plaintiff. You get to be heard in person in your own county by a real judge. [1] https://www.adr.org/sites/default/files/Consumer_Rules_Web_0.pdf https://www.adr.org/sites/default/files/Consumer_Rules_Web_0...

wool_gather 7y ago
This is interesting. Are they only allowed to sue to force going to arbitration, or is the situation opened to allow a lawsuit for whatever the original dispute was?
- Animats 7y ago
  Lawsuit over the original issue. The non-paying party has effectively declined arbitration.[1] [1] https://library.nclc.org/where-defendant-requires-arbitration-refuses-pay-it https://library.nclc.org/where-defendant-requires-arbitratio...
- bastawhiz 7y ago
  It would be WILD if you could (as the company) not pay to go to arbitration, forcing the plaintiff to take you to court (at their expense?) to force you to pay to go to arbitration. A company could simply stick its fingers in its ears and yell "I can't hear your legal complaints!" and essentially get out of all responsibility. Thankfully, it sounds like this is not the case.
paulgb 7y ago
Typically arbitration clauses have wording that also prohibit class-action cases. It looks like this hasn't been tested, but I guess that would be void too?
- 7y ago

manfredo 7y ago

This strategy does result in increased upfront costs for companies. But this sort pile-on strategy seems like it could be countered with arbitration agreements that aren't subject to any sort of timeline, or arbitration agreements that preclude use of automated complaint filing systems. Fundamentally, this strategy of inundating the company with claims only works because it's more expensive for the company to respond to an arbitration dispute than it is for an employee or customer to file one. If that asymmetry goes away, this strategy no longer works. I could see a company witness a spike in complaints, especially if the complaints are filed from an automated system, and conclude that these complaints would likely not result in lawsuits if arbitration was rejected. Now the onus is back on the complainant to actually go forth with the lawsuit.

withinboredom 7y ago
It will still be far less expensive for the filer per-complaint, than for the company total. I’m also not sure that you can prove an automated complaint is distinctly different than a manual one.
gamblor956 7y ago
It doesn't matter if 90% of plaintiffs choose not to go to trial. The 10% that do are more than enough to overwhelm the company's ability to individually manage each case. Also, in the US legal system, it costs very little to file a lawsuit. And for plaintiffs, it generally costs nothing at the early stages because most plaintiff lawyers work on contingency.
hn_throwaway_99 7y ago
I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. I mean, a big part of the original Supreme Court rulings was that the arbitration proceedings would be impartial. Having an arbitration agreement with no timeline seems like it would be more likely to be overturned.
- anonymousab 7y ago
  >I think it remains to be seen if the courts will allow arbitration agreements that are completely one-sided. One-sided bad faith terms of service have been enforced to great effect in recent years, so I can't see a one sided arbitration agreement getting any scorn or backlash from the current judicial makeup.

huffmsa 7y ago

Good on Judge Alsup. This is the bed they asked for. They can sleep in it. Not much gets me going more than someone making tons of demands and then backing out when they actually have to deal with the consequences associated with those demands. Fuck 'em.

joshuaheard 7y ago

The "reform" is to clog the system with a huge number of cases? I don't see the benefit here. A better solution would be for the American Arbitration Association to have a special system for class actions like government courts do.

battery_cowboy 7y ago
The best solution would be for corporations to not get special treatment like fucking babies.
- cityzen 7y ago
  couldn't agree with this more!
pas 7y ago
https://adr.org/ClassArbitration https://adr.org/ClassArbitration
d4rti 7y ago
Or companies could stop using binding arbitration and allow class action lawsuits.

petilon 7y ago

This is excellent. Forced arbitration clauses are fundamentally unfair to consumers. See this older article to understand why: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...

de_watcher 7y ago
Like what the hell is even happening in the US? I understand that for the international stuff it's sometimes hard to use national courts, but what's wrong when dealing with the internal? Courts aren't good enough? So maybe fix them, no? Of course, easier to make your own court where you'll have an advantage...

mehrdadn 7y ago

> DoorDash got the bill for the 6,000 claims — more than $9 million. > DoorDash balked, arguing in court that it couldn’t be sure that all of the claimants were legitimate dashers. The American Arbitration Association said the company had to pay anyway. It refused, and the claims were essentially dead. How is that legal for binding arbitration? Didn't both sides agree that disputes will be resolved by arbitration?

itake 7y ago
Many companies require you sign a contracting to use their service (or in this case to be employed by them) that says you agree to binding arbitration
- sfifs 7y ago
  No longer binding if the company breachs the arbitration clause. They're going to be sued if the issue is real.
  - anonymousab 7y ago
    It seems simple enough for a binding arbitration clause to simply require the plaintiff to pay, and to tack on additional clauses to indemnify the corporate party.
    - Nextgrid 7y ago
      I would assume that these scum companies would’ve already done so long ago if this was possible.
    - ClumsyPilot 7y ago
      As much as they might dream of becoming legally invulnerable, I think even in US thats illegal.
Igelau 7y ago
I guess that means they weren't bound anymore.

fernly 7y ago

Is this current news? In trying to find non-pay-walled coverage (FU,NYT), I quickly found previous stories on this from February and in November. The November 25 article[1] mentions the "squirming out" remark by the judge. A WaPo article from February 16 [2] mentions that each of the 5000 Dashers who filed for arbitration had to put up $300. [1] https://www.courthousenews.com/judge-accuses-doordash-of-trying-to-squirm-out-of-arbitration/ https://www.courthousenews.com/judge-accuses-doordash-of-try... [2] https://www.washingtonpost.com/opinions/2020/02/16/doordashs-multimillion-dollar-arbitration-mistake/ https://www.washingtonpost.com/opinions/2020/02/16/doordashs...

russellbeattie 7y ago
Posted here a few months ago as well [1] when the judge's decision was given. This NYT article doesn't add anything new, and I suspect it's a result of the defense lawyers calling in favors order to put pressure on DoorDash which filed for it's IPO in February. DoorDash is most likely going to use the surge in traffic because of the coronavirus to help push their IPO through sooner than later, taking advantage of the fact they're one of the few types of businesses benefitting from the lock down. If the defense can threaten that IPO, DoorDash might be more pliable to a deal... https://news.ycombinator.com/item?id=22315348 https://news.ycombinator.com/item?id=22315348

fmakunbound 7y ago

”You can't stop the bum-rush!” — Ice-T

jerzyt 7y ago

Basically, the strategy is "death by a thousand paper cuts." There may be legit cases for it, but in the end, it's a wrong solution. It could easily explode to be abused for minor complaints where a real class action lawsuit would be more proper. There should be a cost to a frivolous lawsuit. This seems to eliminate it.

srib 7y ago

Just a distributed denial of service attack. It is amazing how so few systems are inherently robust to DDOS.

dredmorbius 7y ago
Globalised JIT economic systems and pandemics!

surround 7y ago

Stack overflow’s TOS has a binding arbitration clause, [1] despite overwhelming user feedback to the contrary. [2] Y Combinator’s TOS has an arbitration clause. [3] If you’ve created an account on HN, you’ve agreed to arbitration. [1] https://stackoverflow.com/legal/terms-of-service/public https://stackoverflow.com/legal/terms-of-service/public [2] https://meta.stackexchange.com/a/309756 https://meta.stackexchange.com/a/309756 [3] https://www.ycombinator.com/legal/ https://www.ycombinator.com/legal/

deleted 7y ago
[deleted]
antonzabirko 7y ago
ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company. Ignore the arbitration clauses and talk to your lawyer.
- lisper 7y ago
  IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally binding contract. Think about it: I could put ToS on my site that say, "By using this site you agree to pay me $1M." If I were to try to enforce that I guarantee you I would not prevail. Binding arbitration clauses in ToS are there primarily to make people think that they can't sue. [1] https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-wall-street.html https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-... [2] https://contract-law.laws.com/contract-law/meeting-of-the-minds https://contract-law.laws.com/contract-law/meeting-of-the-mi...
  - nabla9 7y ago
    The US has binding consumer arbitration. In the US those are not empty clauses, despite the fact that they break many legal principles https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...

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jaakl 7y ago

Does any juristiction require all these unilateral (in any sense) TOS to be pre-reviewed and approved as “fair and clear” by a public autority? It feels so elementary to me that I’m really surprised why not everyone is demanding it as basic human right.

marcuswebb 7y ago

Would be poetic justice except: this is really just companies weaseling out of even THIS low level of social responsibility.

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ch33zer 7y ago

How come it seems like every time I hear Alsup's name in the news it's because he's telling a major corporation to stop being an asshole. It's refreshing to hear from a judge.

emiliosic 7y ago

I think it's an excellent idea what FairShake.com is doing

tester89 7y ago

I'm just wondering, could the plaintiffs in court now receive a higher settlement than they would have had their been no arbitration? My thinking is basically they could argue that they agreed to the companies terms of arbitration and now the company refused to honour them requiring them to waste their time and money going to court?