4 ms·

1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works toda

1) Do you know of an instance of someone asserting >$20 damages and 7th amendment right to a jury trial being denied? 2) It may or may not be how it works today, but that is only because I have not made the argument (likewise, no one has asserted that I violated their language). > If the website is set up to require If a company wants to take the argument this far, they will have to produce all their code, including the code that was running the day they claim I assented. They will have to prove that it is not possible to use the software without assent of the user to their language. 1) Most companies will not produce their code (and likely won't be able to produce the code that you used) and will fail on their claim. 2) Most companies will not be able to prove that their code requires a user to assent before usage. 3) I can't imagine anything short of video evidence of a user staring at a screen, scrolling through all of their language, then considering their options and making a decision as proof of assent. The claimant just doesn't know what happened. Because, well, they weren't there and took no verifiable record of it.

hodag 12y ago
As far as asserting more than $20 in damages and getting thrown out of court on jurisdiction: tons and tons and tons. Happens all the time. Here's an example: https://scholar.google.com/scholar_case?case=7689425032678936255 https://scholar.google.com/scholar_case?case=768942503267893.... This was back when the jurisdictional requirement for diversity cases was $50,000 (it's now $75,000). Plaintiff didn't allege enough damages, and he got thrown out of court. You may want to reconsider your assertion that it works this way because you haven't made this argument in court. Lots and lots of people have tried to argue that clicking can't form a binding contract, and they lose. Have a look at https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&as_sdt=400006 https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&a... for gobs of cases where clickwrap contracts have been held valid and enforceable. Here's what will happen after you file your lawsuit against the company with an arbitration clause. First, the company you're suing will file a motion to compel arbitration. You'll say "wait a minute, I didn't agree to shit." If you're lucky, the judge lets you do some limited discovery on the issue of whether you agreed. You'll get to take some discovery, but so will they. And what they'll do is take your deposition. That means that you have to show up for them to ask you questions under oath. This isn't in court in front of a jury, but you can't lie, and everything you say is recorded by the stenographer. Here's how that will go: Q: Mr. Jsprogrammer, have you ever created an account on ZZ website? A: Yes. Q: And what is the username of that account? A: jsprogrammer. Q: When you created that account, did you use ZZ website? A: Yes. Q: I'm handing you now what's been marked for identification as exhibit 1. Do you recognize this? A: Yes. Q: What is it? A: It's the registration screen for ZZ website. Q: And is this how the screen appeared when you created your account? A: I don't know. Probably. Q: Would it be fair to say that it is at least very similar to the page that you saw? A: Yes, that would be fair to say. Q: On the document I handed you, do you see the checkbox next to the words "I agree to the terms of service."? A: Yes. Q: When you created your account, did you select that checkbox on the screen? Now what do you do? You can say you don't remember. Or you can say yes, because you know you checked it. Or you can say no and commit perjury (not a good idea). Deposition in hand, they'll amend their motion to compel arbitration. They'll include a sworn declaration from their developer lead, saying that there is literally no way to create an account without agreeing to the terms. They'll attach the terms, with a sworn declaration from the guy who's in charge of updating the terms saying that these were the terms, as they appeared, on the day you created your account. Finally, they'll attach your deposition, where you (if you didn't commit perjury) don't deny that you agreed to the terms. So now what's the judge going to do? When the company refuses to turn over their source code and you ask the judge to make them turn it over, she is going to ask you why you didn't deny checking the box. You're not really going to have a good answer for that. Then, she's going to come to the natural conclusion: it's because you did check the box. Then the judge will dismiss the case, and you'll go to the arbitrator.
- jsprogrammer 12y ago
  You're changing the target. As for your example, it doesn't appear that the plaintiff asserted 7th amendment rights to a jury trial. AFAIK a court will throw you out on the first technical violation. As for the deposition, my answers would be that I have no idea if that screen was similar to any screen I saw on the vendor's site or what buttons I may have pushed (I may see dozens of these screens from multitudes of vendors in a single day) and would ask them if it was the exact same screen I was displayed when I visited their site, how they know, and what evidence they have that it is. I'd then ask them to turn over any evidence that they claim.
  - hodag 12y ago
    I don't believe I'm changing the target. I'm trying to explain that the way that you see the 7th Amendment -- as giving you an ultimate right to a jury trial in all civil cases over $20 -- is simply not what the 7th Amendment does. You can make this argument, that you've asserted $20 in damages and you want your jury, but you will lose. If you would like to see your argument addressed specifically by a court, in the context of arbitration, have a look at https://scholar.google.com/scholar_case?case=8425065483034750666 https://scholar.google.com/scholar_case?case=842506548303475.... As far as your deposition goes, you don't get to ask any questions. It will last all day, all you get to do is answer questions. You get to ask questions when you take depositions, and you can ask all of the questions that you mentioned, but it won't get you far. After all the discovery is done, they're going to have pretty good circumstantial evidence that you checked the checkbox by virtue of signing up for the account, and you're going to have literally no evidence showing that you didn't. This is not going to make the judge believe you. Look, at the end of the day, here's what you're up against: 1) a strong policy in favor of arbitration agreements (courts use those exact words in their decisions), 2) a judge who wants cases of her docket, 3) big business with limitless lawyering resources who want to make absolutely sure that the arbitration clause will be enforced. I'm not saying that you can't beat it. It's possible, and sometimes companies do lose on their motions to compel arbitration. But what I am saying is that you will usually lose. This is a really, really bad thing for consumer rights, and it allows businesses to engage in flagrant unlawful and fraudulent activity with no fear that they will ever have to answer for it out of their wallets. The solution to this problem is not to cover your eyes and ears, ignore the doctrine, and insist that you can beat these clauses in court. You can't. The answer is to get Congress to crack down on predatory arbitration clauses so that businesses have to answer for their wrongdoing in courts like the rest of us do. Maybe that's just as lofty a goal, but at least it recognizes that there is a problem, and it needs to be fixed.

hodag 12y ago

As far as asserting more than $20 in damages and getting thrown out of court on jurisdiction: tons and tons and tons. Happens all the time. Here's an example: https://scholar.google.com/scholar_case?case=7689425032678936255 https://scholar.google.com/scholar_case?case=768942503267893.... This was back when the jurisdictional requirement for diversity cases was $50,000 (it's now $75,000). Plaintiff didn't allege enough damages, and he got thrown out of court. You may want to reconsider your assertion that it works this way because you haven't made this argument in court. Lots and lots of people have tried to argue that clicking can't form a binding contract, and they lose. Have a look at https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&as_sdt=400006 https://scholar.google.com/scholar?hl=en&q=clickwrap&btnG=&a... for gobs of cases where clickwrap contracts have been held valid and enforceable. Here's what will happen after you file your lawsuit against the company with an arbitration clause. First, the company you're suing will file a motion to compel arbitration. You'll say "wait a minute, I didn't agree to shit." If you're lucky, the judge lets you do some limited discovery on the issue of whether you agreed. You'll get to take some discovery, but so will they. And what they'll do is take your deposition. That means that you have to show up for them to ask you questions under oath. This isn't in court in front of a jury, but you can't lie, and everything you say is recorded by the stenographer. Here's how that will go: Q: Mr. Jsprogrammer, have you ever created an account on ZZ website? A: Yes. Q: And what is the username of that account? A: jsprogrammer. Q: When you created that account, did you use ZZ website? A: Yes. Q: I'm handing you now what's been marked for identification as exhibit 1. Do you recognize this? A: Yes. Q: What is it? A: It's the registration screen for ZZ website. Q: And is this how the screen appeared when you created your account? A: I don't know. Probably. Q: Would it be fair to say that it is at least very similar to the page that you saw? A: Yes, that would be fair to say. Q: On the document I handed you, do you see the checkbox next to the words "I agree to the terms of service."? A: Yes. Q: When you created your account, did you select that checkbox on the screen? Now what do you do? You can say you don't remember. Or you can say yes, because you know you checked it. Or you can say no and commit perjury (not a good idea). Deposition in hand, they'll amend their motion to compel arbitration. They'll include a sworn declaration from their developer lead, saying that there is literally no way to create an account without agreeing to the terms. They'll attach the terms, with a sworn declaration from the guy who's in charge of updating the terms saying that these were the terms, as they appeared, on the day you created your account. Finally, they'll attach your deposition, where you (if you didn't commit perjury) don't deny that you agreed to the terms. So now what's the judge going to do? When the company refuses to turn over their source code and you ask the judge to make them turn it over, she is going to ask you why you didn't deny checking the box. You're not really going to have a good answer for that. Then, she's going to come to the natural conclusion: it's because you did check the box. Then the judge will dismiss the case, and you'll go to the arbitrator.

jsprogrammer 12y ago
You're changing the target. As for your example, it doesn't appear that the plaintiff asserted 7th amendment rights to a jury trial. AFAIK a court will throw you out on the first technical violation. As for the deposition, my answers would be that I have no idea if that screen was similar to any screen I saw on the vendor's site or what buttons I may have pushed (I may see dozens of these screens from multitudes of vendors in a single day) and would ask them if it was the exact same screen I was displayed when I visited their site, how they know, and what evidence they have that it is. I'd then ask them to turn over any evidence that they claim.
- hodag 12y ago
  I don't believe I'm changing the target. I'm trying to explain that the way that you see the 7th Amendment -- as giving you an ultimate right to a jury trial in all civil cases over $20 -- is simply not what the 7th Amendment does. You can make this argument, that you've asserted $20 in damages and you want your jury, but you will lose. If you would like to see your argument addressed specifically by a court, in the context of arbitration, have a look at https://scholar.google.com/scholar_case?case=8425065483034750666 https://scholar.google.com/scholar_case?case=842506548303475.... As far as your deposition goes, you don't get to ask any questions. It will last all day, all you get to do is answer questions. You get to ask questions when you take depositions, and you can ask all of the questions that you mentioned, but it won't get you far. After all the discovery is done, they're going to have pretty good circumstantial evidence that you checked the checkbox by virtue of signing up for the account, and you're going to have literally no evidence showing that you didn't. This is not going to make the judge believe you. Look, at the end of the day, here's what you're up against: 1) a strong policy in favor of arbitration agreements (courts use those exact words in their decisions), 2) a judge who wants cases of her docket, 3) big business with limitless lawyering resources who want to make absolutely sure that the arbitration clause will be enforced. I'm not saying that you can't beat it. It's possible, and sometimes companies do lose on their motions to compel arbitration. But what I am saying is that you will usually lose. This is a really, really bad thing for consumer rights, and it allows businesses to engage in flagrant unlawful and fraudulent activity with no fear that they will ever have to answer for it out of their wallets. The solution to this problem is not to cover your eyes and ears, ignore the doctrine, and insist that you can beat these clauses in court. You can't. The answer is to get Congress to crack down on predatory arbitration clauses so that businesses have to answer for their wrongdoing in courts like the rest of us do. Maybe that's just as lofty a goal, but at least it recognizes that there is a problem, and it needs to be fixed.