5 ms·

This is an interesting article, and one that is important for people who run a SMB in California to take note of. > The court then noted that even if allowing

by anw 6y ago

This is an interesting article, and one that is important for people who run a SMB in California to take note of. > The court then noted that even if allowing plaintiffs to sue prior to signing up could lead to abusive litigation, that issue should be left to the legislature. This was my concern, as well. I hope that the opening this allows for later lawsuits will be handled by the larger corporations who have deep pockets and can afford to fight these battles. My fear is that this would create a bunch of drive-by-lawsuits aimed at small businesses in the hopes that they will just settle (much the same as patent trolls). I would love to hear from any lawyers on the board who have thoughts on this case.

joecasson 6y ago
I agree with you on the risk. This seems to have tremendous implications for any digital business. I'm reading into this a bit, but it seems that part of Square's case rested on the fact that White didn't actually want to do business with him. He may have just heard about the Shierkatz case from his friends' firm and then saw an opening for a class action. If that's the case, just the passing intention to do business - real or not - becomes grounds? Yikes. I feel like I agree with the decision to have business be open to all consumers, but I didn't see much in the way of proof-of-intent on the plaintiff's behalf.
- hamandcheese 6y ago
  It seems you might be right: > White was personal friends with a partner of Shierkatz RLLP, and he discovered the prohibition on debt collection in Square’s agreement after reading the court’s Shierkatz file.
- stefan_ 6y ago
  This is the same nonsense discussion we are having with the unfiltered NSA data collection: you know it's happening, they say it's happening, but no one can have standing to sue because you know, you being spied on is secret. Standing should never be the hurdle these kinds of claims fail on.
mrandish 6y ago
> My fear is that this would create a bunch of drive-by-lawsuits aimed at small businesses in the hopes that they will just settle (much the same as patent trolls). This is exactly the problem that the Supreme Court has been trying to prevent by generally allowing arbitration clauses to be binding. The cost, delay and uncertainty of going to court creates its own punitive effect and thereby creates an imbalance.
- molticrystal 6y ago
  California can require the company to pay the all or the majority of fees for arbitration, and this has been used by large groups of individuals to band together and arbitrate at the same time, costing great deals of money and burden to a company, forcing them to settle. https://news.bloomberglaw.com/daily-labor-report/uber-sees-wage-suits-dropped-including-12-501-arbitration-claims https://news.bloomberglaw.com/daily-labor-report/uber-sees-w... The 60k arbitration claims could of cost $75m in fees alone, not to mention it can be 9k/day to pay the arbitrators themselves. So they settled for $146m. There are a few other cases of this, and I am sure there will be more collective action through mass arbitration. I imagine eventually it will come to being abused as well.
  - gamblor956 6y ago
    If a business is facing 60000 arbitration claims from customers they are not a small business anymore and presumably should be able to handle the burden of arbitration customer disputes.
    - olliej 6y ago
      You’d presume so, but in fact they cannot. The reason that so many companies adopted forced arbitration was explicitly because it made such actions uneconomical for consumers to actually enter arbitration. The moment large groups of individuals start making use of the forced arbitration every company has tried to get the courts to let them get out of arbitration that they inflicted on others. It is well established that forced arbitration has nothing to do about efficiency for company vs individual and is specifically because it is a system designed to protect companies from culpability.
rgbrenner 6y ago
Drive by lawsuits for discrimination? I'd like to hear more about how this would work.. Is this a thing? Like you would go sue a perfectly legitimate and non-discriminatory business for excluding black people, even though no such discrimination exists? And how would they win that? And how many attempts before they lose their license and/or are barred from bring any more cases? Here's the Unrah Act: All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Seems to me that the only business that would be concerned is a business that is engaged in activity that they shouldn't be doing anyway. And if that's the case, they should be sued.
- avs733 6y ago
  Drive by lawsuits for the ADA are very much a thing e.g.,: Beyonce -https://fortune.com/2019/09/21/beyonce-lawsuit-website-ada-compliant/ https://fortune.com/2019/09/21/beyonce-lawsuit-website-ada-c... https://tandem-interactive.com/ada-compliance-websites/ https://tandem-interactive.com/ada-compliance-websites/
  - rgbrenner 6y ago
    So your example is a website that does violate the ADA. I understand that ADA compliance is hard for websites... that's not a legal issue so much as a technical issue. We do treat support for the blind, et al as an afterthought. So is your complaint here that the ADA is being enforced? Like we should just get rid of the ADA because people aren't complying? Or are you upset the ADA doesn't say: please make your best effort? Better support for the disabled in our front end frameworks would be awesome.. It is too bad there isn't more focus on it.
    - hash872 6y ago
      I think what you're missing is that the websites may be 100% in compliance with the ADA- the site owners simply can't risk the expense & uncertainty of a lawsuit, so they settle. It's (legal) extortion, the law is simply the vehicle by which they do it. And it certainly doesn't make the world a better place for the disabled, it's just a payoff for the attorneys. It is literally the same concept as patent trolling. Maybe a solution would be to change these laws so that the outcome of the lawsuit is a mandated change to ADA standards, but no damages, and parties have to pay their own attorney's fees. That would achieve what you say you're looking for, good faith ADA compliance, without incentivizing strongarm attorneys looking for a quick buck

by anw 6y ago

joecasson 6y ago

I agree with you on the risk. This seems to have tremendous implications for any digital business. I'm reading into this a bit, but it seems that part of Square's case rested on the fact that White didn't actually want to do business with him. He may have just heard about the Shierkatz case from his friends' firm and then saw an opening for a class action. If that's the case, just the passing intention to do business - real or not - becomes grounds? Yikes. I feel like I agree with the decision to have business be open to all consumers, but I didn't see much in the way of proof-of-intent on the plaintiff's behalf.

hamandcheese 6y ago
It seems you might be right: > White was personal friends with a partner of Shierkatz RLLP, and he discovered the prohibition on debt collection in Square’s agreement after reading the court’s Shierkatz file.
stefan_ 6y ago
This is the same nonsense discussion we are having with the unfiltered NSA data collection: you know it's happening, they say it's happening, but no one can have standing to sue because you know, you being spied on is secret. Standing should never be the hurdle these kinds of claims fail on.

mrandish 6y ago

> My fear is that this would create a bunch of drive-by-lawsuits aimed at small businesses in the hopes that they will just settle (much the same as patent trolls). This is exactly the problem that the Supreme Court has been trying to prevent by generally allowing arbitration clauses to be binding. The cost, delay and uncertainty of going to court creates its own punitive effect and thereby creates an imbalance.

molticrystal 6y ago
California can require the company to pay the all or the majority of fees for arbitration, and this has been used by large groups of individuals to band together and arbitrate at the same time, costing great deals of money and burden to a company, forcing them to settle. https://news.bloomberglaw.com/daily-labor-report/uber-sees-wage-suits-dropped-including-12-501-arbitration-claims https://news.bloomberglaw.com/daily-labor-report/uber-sees-w... The 60k arbitration claims could of cost $75m in fees alone, not to mention it can be 9k/day to pay the arbitrators themselves. So they settled for $146m. There are a few other cases of this, and I am sure there will be more collective action through mass arbitration. I imagine eventually it will come to being abused as well.
- gamblor956 6y ago
  If a business is facing 60000 arbitration claims from customers they are not a small business anymore and presumably should be able to handle the burden of arbitration customer disputes.
  - olliej 6y ago
    You’d presume so, but in fact they cannot. The reason that so many companies adopted forced arbitration was explicitly because it made such actions uneconomical for consumers to actually enter arbitration. The moment large groups of individuals start making use of the forced arbitration every company has tried to get the courts to let them get out of arbitration that they inflicted on others. It is well established that forced arbitration has nothing to do about efficiency for company vs individual and is specifically because it is a system designed to protect companies from culpability.

rgbrenner 6y ago

Drive by lawsuits for discrimination? I'd like to hear more about how this would work.. Is this a thing? Like you would go sue a perfectly legitimate and non-discriminatory business for excluding black people, even though no such discrimination exists? And how would they win that? And how many attempts before they lose their license and/or are barred from bring any more cases? Here's the Unrah Act: All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Seems to me that the only business that would be concerned is a business that is engaged in activity that they shouldn't be doing anyway. And if that's the case, they should be sued.

avs733 6y ago
Drive by lawsuits for the ADA are very much a thing e.g.,: Beyonce -https://fortune.com/2019/09/21/beyonce-lawsuit-website-ada-compliant/ https://fortune.com/2019/09/21/beyonce-lawsuit-website-ada-c... https://tandem-interactive.com/ada-compliance-websites/ https://tandem-interactive.com/ada-compliance-websites/
- rgbrenner 6y ago
  So your example is a website that does violate the ADA. I understand that ADA compliance is hard for websites... that's not a legal issue so much as a technical issue. We do treat support for the blind, et al as an afterthought. So is your complaint here that the ADA is being enforced? Like we should just get rid of the ADA because people aren't complying? Or are you upset the ADA doesn't say: please make your best effort? Better support for the disabled in our front end frameworks would be awesome.. It is too bad there isn't more focus on it.
  - hash872 6y ago
    I think what you're missing is that the websites may be 100% in compliance with the ADA- the site owners simply can't risk the expense & uncertainty of a lawsuit, so they settle. It's (legal) extortion, the law is simply the vehicle by which they do it. And it certainly doesn't make the world a better place for the disabled, it's just a payoff for the attorneys. It is literally the same concept as patent trolling. Maybe a solution would be to change these laws so that the outcome of the lawsuit is a mandated change to ADA standards, but no damages, and parties have to pay their own attorney's fees. That would achieve what you say you're looking for, good faith ADA compliance, without incentivizing strongarm attorneys looking for a quick buck