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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 leg
by 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 agoThat 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 agoThat'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 agoThanks! 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 agoYes, 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...
- cout 3y agoI feel like every agreement I read these days has a "these terms are subject to change at any time without notice" or similar. I don't know of that is legal but it always bothers me (even more than forced arbitration). It was even in the form where I go to get blood taken! At least in that case I'm covered by HIPAA but other services are less strictly regulated. What's a consumer to do?