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Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal

Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal nationwide under US law, with or without an opportunity to opt out. And it's gotten so widespread that I don't think there's a good fix short of changing the law - it's not like enough alternative vendors exist for many of the products and services that now require arbitration, so one can't just pick alternatives. Sometimes there is a way to fight back by having a single law firm file a lot of individual arbitrations based on similar facts and circumstances, yielding an approximation of a class action lawsuit that's more annoying and potentially more expensive for the company. But Roku seems to have crafted their terms to close that workaround. The only real way to get out from this right now, beyond leveraging any opt-out procedures you have the energy to follow to the letter, is to move to places outside the US where consumer protection laws make this illegal in the consumer context. For example, many European countries or certain Canadian provinces like Quebec. And even that wouldn't help usage that doesn't fall within the scope of the applicable consumer protection law, such as a product or service which you primarily use in a professional context.

hn_throwaway_99 3y ago
> Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal nationwide under US law, with or without an opportunity to opt out. Do you have sources for that? The reason I ask is because I am aware that forced arbitration clauses have been upheld at the point of purchase, but changing Ts and Cs after the fact, where many people may not even read them, seems like it should be a gross violation. What kind of contract law allows one party to change substantive terms in the contract at any time? I'd be very curious to know if that (specifically a change to forced arbitration after initial sign up) has ever been tested in court. I was searching because I was curious, and I thought this Reddit comment has some good context: https://old.reddit.com/r/Etsy/comments/14eo9l0/changes_to_etsys_term_of_service_arbitration/jp24gdy/ https://old.reddit.com/r/Etsy/comments/14eo9l0/changes_to_et... That is (and I'm taking that comment with appropriate grain of salt) it does sound like companies add the opt out provision specifically to help these clauses stand up in court, so you should just always opt out.
- dctoedt 3y ago
  >> Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal nationwide under US law, with or without an opportunity to opt out. > Do you have sources for that? The GP comment is pretty accurate. My course materials (being updated) have a fairly-comprehensive discussion of arbitration: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#arb-cls https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...
  - hn_throwaway_99 3y ago
    That source doesn't answer my question though, which is specifically about changing Ts&Cs to require arbitration after the contract was originally agreed to by the consumer.
    - dctoedt 3y ago
      That's also OK, generally - see https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#amend-unil https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...
      - hn_throwaway_99 3y ago
        Thanks! I'm still a bit curious to see if this has been tested in court, but that section is really informative and I like that it gives a bunch of cases I can look up. Most appreciated!
        dctoedt 3y ago
        Yes, courts have upheld unilateral amendments requiring arbitration; see the Halliburton [0] and Lizalde [1] cases discussed in the course materials. Class-action waivers in arbitration provisions have been upheld by the U.S. Supreme Court in American Express v. Italian Colors Restaurant [2] [0] Halliburton: https://scholar.google.com/scholar_case?case=1820576798960453006 https://scholar.google.com/scholar_case?case=182057679896045... [1] Lizalde: https://scholar.google.com/scholar_case?case=16326955403953755557 https://scholar.google.com/scholar_case?case=163269554039537... [2] AmEx v. Italian Colors Restaurant: https://scholar.google.com/scholar_case?case=6722127011078046207 https://scholar.google.com/scholar_case?case=672212701107804...
earthwalker99 3y ago
>I don't think there's a good fix short of changing the law ...which would necessitate a revolution, which is why a revolution is necessary.
- BobaFloutist 3y ago
  Or just consistently voting blue on a broad scale, considering Democrats (writ large, not necessarily any specific given politician) have proven to be far less friendly to these big-business abuses than Republicans. I don't think it's overly partisan to make that claim.

hn_throwaway_99 3y ago

> Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal nationwide under US law, with or without an opportunity to opt out. Do you have sources for that? The reason I ask is because I am aware that forced arbitration clauses have been upheld at the point of purchase, but changing Ts and Cs after the fact, where many people may not even read them, seems like it should be a gross violation. What kind of contract law allows one party to change substantive terms in the contract at any time? I'd be very curious to know if that (specifically a change to forced arbitration after initial sign up) has ever been tested in court. I was searching because I was curious, and I thought this Reddit comment has some good context: https://old.reddit.com/r/Etsy/comments/14eo9l0/changes_to_etsys_term_of_service_arbitration/jp24gdy/ https://old.reddit.com/r/Etsy/comments/14eo9l0/changes_to_et... That is (and I'm taking that comment with appropriate grain of salt) it does sound like companies add the opt out provision specifically to help these clauses stand up in court, so you should just always opt out.

dctoedt 3y ago
>> Unfortunately, interpretations of the Federal Arbitration Act by the US Supreme Court in recent decades have made it very clear that what they're doing is legal nationwide under US law, with or without an opportunity to opt out. > Do you have sources for that? The GP comment is pretty accurate. My course materials (being updated) have a fairly-comprehensive discussion of arbitration: https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#arb-cls https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...
- hn_throwaway_99 3y ago
  That source doesn't answer my question though, which is specifically about changing Ts&Cs to require arbitration after the contract was originally agreed to by the consumer.
  - dctoedt 3y ago
    That's also OK, generally - see https://toedtclassnotes.site44.com/Notes-on-Contract-Drafting-2021-08-21.html#amend-unil https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...
    - hn_throwaway_99 3y ago
      Thanks! I'm still a bit curious to see if this has been tested in court, but that section is really informative and I like that it gives a bunch of cases I can look up. Most appreciated!
      - dctoedt 3y ago
        Yes, courts have upheld unilateral amendments requiring arbitration; see the Halliburton [0] and Lizalde [1] cases discussed in the course materials. Class-action waivers in arbitration provisions have been upheld by the U.S. Supreme Court in American Express v. Italian Colors Restaurant [2] [0] Halliburton: https://scholar.google.com/scholar_case?case=1820576798960453006 https://scholar.google.com/scholar_case?case=182057679896045... [1] Lizalde: https://scholar.google.com/scholar_case?case=16326955403953755557 https://scholar.google.com/scholar_case?case=163269554039537... [2] AmEx v. Italian Colors Restaurant: https://scholar.google.com/scholar_case?case=6722127011078046207 https://scholar.google.com/scholar_case?case=672212701107804...

earthwalker99 3y ago

>I don't think there's a good fix short of changing the law ...which would necessitate a revolution, which is why a revolution is necessary.

BobaFloutist 3y ago
Or just consistently voting blue on a broad scale, considering Democrats (writ large, not necessarily any specific given politician) have proven to be far less friendly to these big-business abuses than Republicans. I don't think it's overly partisan to make that claim.