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>They also remove the prohibition against class action lawsuits, and allow disputes to be settled in court instead of through arbitration. This is actually good

>They also remove the prohibition against class action lawsuits, and allow disputes to be settled in court instead of through arbitration. This is actually good news for litigation-minded Samsung customers - especially in light of certain recent data breaches and unnecessary delays in reporting them. Fun fact: much of this is because lawyers started telling people how to launch arbitration en-masse, and it turns out you cannot legally compel arbitration without also offering to pay for it. And since there's no class-action provision with most arbitration companies, it was actually more expensive to compel arbitration than to just take the class-actions.

dataflow 4y ago
Companies have started prohibiting mass arbitration in their ToS in response. Edit 1: Since people requested an example, here's Adobe's: > The Notice of Claim must provide Adobe with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. Edit 2: Here's Venmo's, which is more comprehensive (https://venmo.com/legal/us-user-agreement/ https://venmo.com/legal/us-user-agreement/): > You and PayPal agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and PayPal agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other PayPal or Venmo customers.
- AlexandrB 4y ago
  How do you prohibit something like that? "Disputes are solved through arbitration, unless a bunch of other people want to do it too, then..."?
  - mysterydip 4y ago
    reminds me of the "not responsible for damages" some dump trucks have written on the back
    - bluGill 4y ago
      Legally they are sometimes responsible anyway, but by warning they can get out of some because you shouldn't have been where there damage happened and were warned. If a truck passes you and something from it hits you they are liable, but.if you are following too close that is your own fault and the warning can help make that clear.
  - bobthepanda 4y ago
    ToS contain all sorts of things not actually enforceable, the issue is whether or not you want to spend the money on a lawyer to get through those speed bumps too.
- tintor 4y ago
  I am curious. Do you have an example of such ToS?
- vorpalhex 4y ago
  That reads like just the notice of claim itself. You can of course bulk generate individual claims.
  - dataflow 4y ago
    Sure, maybe with Adobe's. See update—I added Venmo's, which goes beyond that.
    - armchairhacker 4y ago
      Is there anything stopping 1 lawyer from representing 1000 clients with more or less the same copy-pasted arguments?
      - dataflow 4y ago
        If he's willing to go through 1000 individual proceedings, probably not? I'm not sure how long proceedings take, but I imagine that would take a good chunk of the lawyer's life (1000 one-week proceedings = 20 years).
        hedora 4y ago
        Send 1000 copies of the same letter to the arbitration firm. When BigCo tries to get you to agree to combine the claims, agree to do so if and only if they pay out $1M to cover the legal expenses they are avoiding.
        pc86 4y ago
        This is not how real life works.
        hedora 4y ago
        It can be when a company sets a policy that lets people who hate it spend $1 to cost the business $100.
- cmeacham98 4y ago
  Don't these both benefit mass arbitration? The point, as I understand it, is to have a lot of people submit claims about an issue so the company is forced to pay for them all. If, instead, claims could be combined then Adobe/PayPal/whoever could combine them all and presumably avoid paying to arbitrate each individually.
  - dataflow 4y ago
    > Don't these both benefit mass arbitration? Well, I think it's safe to assume they don't, given companies started adding these terms after mass arbitration became popular. As to how/why they don't, I'm not sure. But if I had to take a guess, I imagine motivations could include: (a) clogging the arbitration system to slow claims down to a crawl (since they can't be handled en masse), (b) making it difficult for every individual to demonstrate damages (since many people will not be able to prove actual harm), (c) forcing every individual to contribute significant time and effort into the process (which will not be worth it for many people, and practically impossible for many others).
    - buscoquadnary 4y ago
      "It's better than legal we're using the law to keep justice away" - The PHB
m463 4y ago
Also, you can opt-out of arbitration in california (I believe if you notify them in a specific time period)
- dataflow 4y ago
  The painful part is, if you're doing this for privacy reasons, you frequently have to give them more personal information (and accurate ones too! not bogus ones you might've used to sign up for an account) just to opt out. And you often don't get any acknowledgment of the opt-out either, which I imagine means you'll have to do this with e.g. certified mail and keep around evidence that you opted out. And if you gave them bogus info and now want to opt out... I imagine that might be a ToS violation which I expect would give them an excuse to toss your claim away. Not sure how any of these would fly in court, but as a layman it sure looks like a purposefully self-defeating uphill battle.
  - Dylan16807 4y ago
    > as a layman it sure looks like a purposefully self-defeating uphill battle. It looks to me like they never considered "opting out of arbitration for privacy reasons". I don't understand how it would improve privacy in the first place?
    - dataflow 4y ago
      > I don't understand how it would improve privacy in the first place? Same reason why you'd probably pay less attention to no-parking signs if you knew you'd likely face a $50 fine for violating them, vs. if you had to show up to court and testify in front of a judge. Milder consequences hold you less accountable and incentivize you to be more careless with everything, including people's privacy.
awinter-py 4y ago
bunch of companies tried to defuse the fairshake-style mass arbitration trick by adding an internal complaint flow that took a minimum amount of time this is coinbase: https://www.coinbase.com/legal/user_agreement/united_states#customer-feedback-queries-complaints-and-dispute-resolution https://www.coinbase.com/legal/user_agreement/united_states#... > 7.2. Formal Complaint Process. ... first contact Coinbase through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through Coinbase Support, you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action as described further in Appendix 5 below. I think hinge, discord, draftkings also did it, guessing many others

dataflow 4y ago

Companies have started prohibiting mass arbitration in their ToS in response. Edit 1: Since people requested an example, here's Adobe's: > The Notice of Claim must provide Adobe with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. Edit 2: Here's Venmo's, which is more comprehensive (https://venmo.com/legal/us-user-agreement/ https://venmo.com/legal/us-user-agreement/): > You and PayPal agree that each of us may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and PayPal agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims and may not otherwise preside over any form of a consolidated, representative or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). Any relief awarded cannot affect other PayPal or Venmo customers.

AlexandrB 4y ago
How do you prohibit something like that? "Disputes are solved through arbitration, unless a bunch of other people want to do it too, then..."?
- mysterydip 4y ago
  reminds me of the "not responsible for damages" some dump trucks have written on the back
  - bluGill 4y ago
    Legally they are sometimes responsible anyway, but by warning they can get out of some because you shouldn't have been where there damage happened and were warned. If a truck passes you and something from it hits you they are liable, but.if you are following too close that is your own fault and the warning can help make that clear.
- bobthepanda 4y ago
  ToS contain all sorts of things not actually enforceable, the issue is whether or not you want to spend the money on a lawyer to get through those speed bumps too.
tintor 4y ago
I am curious. Do you have an example of such ToS?
vorpalhex 4y ago
That reads like just the notice of claim itself. You can of course bulk generate individual claims.
- dataflow 4y ago
  Sure, maybe with Adobe's. See update—I added Venmo's, which goes beyond that.
  - armchairhacker 4y ago
    Is there anything stopping 1 lawyer from representing 1000 clients with more or less the same copy-pasted arguments?
    - dataflow 4y ago
      If he's willing to go through 1000 individual proceedings, probably not? I'm not sure how long proceedings take, but I imagine that would take a good chunk of the lawyer's life (1000 one-week proceedings = 20 years).
      - hedora 4y ago
        Send 1000 copies of the same letter to the arbitration firm. When BigCo tries to get you to agree to combine the claims, agree to do so if and only if they pay out $1M to cover the legal expenses they are avoiding.
        pc86 4y ago
        This is not how real life works.
        hedora 4y ago
        It can be when a company sets a policy that lets people who hate it spend $1 to cost the business $100.
cmeacham98 4y ago
Don't these both benefit mass arbitration? The point, as I understand it, is to have a lot of people submit claims about an issue so the company is forced to pay for them all. If, instead, claims could be combined then Adobe/PayPal/whoever could combine them all and presumably avoid paying to arbitrate each individually.
- dataflow 4y ago
  > Don't these both benefit mass arbitration? Well, I think it's safe to assume they don't, given companies started adding these terms after mass arbitration became popular. As to how/why they don't, I'm not sure. But if I had to take a guess, I imagine motivations could include: (a) clogging the arbitration system to slow claims down to a crawl (since they can't be handled en masse), (b) making it difficult for every individual to demonstrate damages (since many people will not be able to prove actual harm), (c) forcing every individual to contribute significant time and effort into the process (which will not be worth it for many people, and practically impossible for many others).
  - buscoquadnary 4y ago
    "It's better than legal we're using the law to keep justice away" - The PHB

m463 4y ago

Also, you can opt-out of arbitration in california (I believe if you notify them in a specific time period)

dataflow 4y ago
The painful part is, if you're doing this for privacy reasons, you frequently have to give them more personal information (and accurate ones too! not bogus ones you might've used to sign up for an account) just to opt out. And you often don't get any acknowledgment of the opt-out either, which I imagine means you'll have to do this with e.g. certified mail and keep around evidence that you opted out. And if you gave them bogus info and now want to opt out... I imagine that might be a ToS violation which I expect would give them an excuse to toss your claim away. Not sure how any of these would fly in court, but as a layman it sure looks like a purposefully self-defeating uphill battle.
- Dylan16807 4y ago
  > as a layman it sure looks like a purposefully self-defeating uphill battle. It looks to me like they never considered "opting out of arbitration for privacy reasons". I don't understand how it would improve privacy in the first place?
  - dataflow 4y ago
    > I don't understand how it would improve privacy in the first place? Same reason why you'd probably pay less attention to no-parking signs if you knew you'd likely face a $50 fine for violating them, vs. if you had to show up to court and testify in front of a judge. Milder consequences hold you less accountable and incentivize you to be more careless with everything, including people's privacy.

awinter-py 4y ago

bunch of companies tried to defuse the fairshake-style mass arbitration trick by adding an internal complaint flow that took a minimum amount of time this is coinbase: https://www.coinbase.com/legal/user_agreement/united_states#customer-feedback-queries-complaints-and-dispute-resolution https://www.coinbase.com/legal/user_agreement/united_states#... > 7.2. Formal Complaint Process. ... first contact Coinbase through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through Coinbase Support, you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action as described further in Appendix 5 below. I think hinge, discord, draftkings also did it, guessing many others