[HN Gopher] Amazon changes TOS to let customers sue, after facin...
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Amazon changes TOS to let customers sue, after facing 75K+
arbitration demands
Author : nickthegreek
Score : 193 points
Date : 2021-06-01 15:58 UTC (7 hours ago)
(HTM) web link (www.wsj.com)
(TXT) w3m dump (www.wsj.com)
| [deleted]
| bmurphy1976 wrote:
| Anybody have a non-paywalled link? From what I can read the first
| part of the article implies that they can't consolidate the 75K+
| arbitration demands into a single instance (ala a class-action)
| therefore they have to arbitrate every single demand
| individually.
|
| Sounds like a great way to fight this arbitration nonsense to me.
| Hamuko wrote:
| I didn't even realise it was paywalled since I have Bypass
| Paywalls Clean installed in Firefox.
|
| https://gitlab.com/magnolia1234/bypass-paywalls-firefox-clea...
| hoppyhoppy2 wrote:
| https://arstechnica.com/tech-policy/2021/06/after-75000-echo...
| pwg wrote:
| A good quote from the article that neatly summarizes the issue:
|
| "Companies thought they were getting out of liability
| altogether," by adding arbitration clauses, said Chicago lawyer
| Travis Lenkner, whose firm filed the majority of the Amazon
| claims. "Now they're seeing exactly what they bargained for, and
| they don't like it."
| [deleted]
| Animats wrote:
| Read the actual judgement.[1]
|
| _" The employer here, DoorDash,faced with having to actually
| honor its side of the bargain, now blanches at the cost of the
| filing fees it agreed to pay in the arbitration clause. No
| doubt, DoorDash never expected that so many would actually seek
| arbitration. Instead, in irony upon irony, DoorDash now wishes
| to resort to a class-wide lawsuit, the very device it denied to
| the workers, to avoid its duty to arbitrate. This hypocrisy
| will not be blessed, at least by this order."_
|
| Also in that order is DoorDash trying to force drivers to
| switch from the American Arbitration Association (which is
| generally considered legit) to some off-brand arbitration
| company with whom DoorDash had cut a deal. Then DoorDash wanted
| to seal the details of that deal, which had come out at trial.
| The judge said no.
|
| The American Arbitration Association is trying to keep from
| being a tool of big companies to oppress consumers and
| customers. If a contract requires arbitration under AAA
| consumer rules, the AAA will allow the customer to opt for
| small claims court, instead.([2], p. 15.) That's why so many
| EULAs now call for arbitration under the _commercial_ rules,
| which are intended for bigger disputes. But the AAA charges the
| company a substantial up-front fee for commercial arbitrations.
| Which is how DoorDash got into trouble here.
|
| [1] https://aboutblaw.com/ONJ
|
| [2] https://www.adr.org/sites/default/files/Consumer-Rules-
| Web.p...
| MikeTheGreat wrote:
| This is a great quote, and it does summarize things nicely.
|
| One quibble about the quote: companies didn't bargain for this,
| they imposed it. At no point did they ask for, or negotiate
| for, or bargain for this. They said "Here's what we're
| offering, take it or leave it"
|
| But the main point is 100% valid - companies thought they were
| getting out of liability altogether.
| paulgb wrote:
| > Here's what we're offering, take it or leave it
|
| Technically, most companies _do_ sneak in a way to opt out in
| their ToS, in order to bolster their claim that you
| "accepted" it if you don 't happen to read that part of the
| ToS. I've successfully opted out of a number of arbitration
| clauses that way, though.
| pseudalopex wrote:
| That's more recent. And many companies don't.
| jquery wrote:
| Yep. When I was hired by my previous employer, I used this
| to opt out of arbitration for pay disbutes.
| meatmanek wrote:
| Some companies (for example, Wealthfront) have that
| phrasing in their ToS, but then when you actually try to
| opt out of arbitration, they threaten to close your
| account. This gives you a choice of using their service and
| not being able to sue, or being able to sue but not use
| their service.
| paxys wrote:
| FYI "getting more than you bargained for" is a commonly used
| expression. It doesn't have to mean there was actual
| bargaining.
| revel wrote:
| We shouldn't celebrate too early on what appears to be a
| largely technical mistake. It's just a matter of time until
| the language is cleaned up and the issue goes away for the
| companies. We need long term structural fixes to address
| forced arbitration
| vineyardmike wrote:
| I recall Chipotle facing a similar issue
|
| https://www.huffpost.com/entry/chipotle-mandatory-arbitratio...
| whoisjuan wrote:
| Given how expensive arbitration is, I'm not surprised they are
| changing this. When you have 75k disputes, it's probably cheaper
| to get sued through the regular judicial system than to pay
| arbitration for everything. Arbitration really only works when
| the two parties need speed. Like two large business entrenched in
| a multi-million dollar contract issue. Not for when you have
| disputes with your customers.
|
| My guess is that this is a problem caught through an audit. They
| realized they were siphoning millions of dollars of arbitration
| fees to solve menial conflicts.
| mcherm wrote:
| > Arbitration really only works when the two parties need
| speed.
|
| I disagree. Arbitration also works when one party wants to win
| all the time and the arbitrators will allow that. At least, it
| normally works under those circumstances... Amazon's change of
| policy here is an exception.
| KirillPanov wrote:
| > Keller Lenkner has secured more than $375 million in
| settlements for more than 100,000 individual arbitration
| clients over about two years.
|
| Nah, you don't need an audit to notice $187 million/year flying
| out the door.
|
| I have never needed to sue anybody, but if someday I do, my
| first phone call will be to Keller Lenkner. These guys are true
| hackers.
| didibus wrote:
| What's the legal basis for allowing arbitration clauses?
| ncallaway wrote:
| In the United States, it is generally the Federal Arbitration
| Act of 1925
|
| https://en.wikipedia.org/wiki/Federal_Arbitration_Act
| xoa wrote:
| It was also relatively recently (2018) reinforced by the
| Supreme Court in the case _Epic Systems Corp. v. Lewis_.
| However, there are (as companies have now been finding out)
| still standards in the courts for arbitration. It 's not just
| a wink wink way to escape all liability entirely, and is in
| fact supposed to be fair and reasonable. In particular, terms
| like Amazon's are in legal jargon "contracts of adhesion",
| take-it-or-leave-it offerings where one side has vastly more
| bargaining power than the other. Contracts of adhesion aren't
| inherently illegal, but they are subject to special scrutiny
| to make sure terms aren't unconscionable. Amongst other
| things this means the powerful party putting in an
| arbitration clause needs to pay for it, and they can't just
| unilaterally change that after the fact even if they have a
| clause saying they can because courts would not permit it and
| the whole thing would go down in flames anyway.
|
| I definitely agree with people indulging in a bit of dark
| amusement over big corps that so blatantly tried to rig
| things in their favor and for once got hoist by their own
| petard.
| gnicholas wrote:
| As others have mentioned, there's the FAA. There's also an
| important Supreme Court case upholding the validity of
| arbitration agreements, AT&T v. Concepcion:
| https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc...
|
| But generally, the reason that arbitration agreements are
| allowed is because of 'freedom to contract'. That is, people
| are free to agree to do almost anything in contracts. The
| reason this might not be allowed would be because the contracts
| are often 'contracts of adhesion' (drafted by one party and not
| able to be negotiated). But the Concepcion case knocked that
| down as a possible rationale, if memory serves. That case was
| about AT&T contracts with customers, which are obviously not
| negotiable.
| hnfong wrote:
| The _legal basis_ is probably this:
| https://en.wikipedia.org/wiki/Freedom_of_contract
|
| But then this is premised on the fact that the legal system is
| capitalistic (laissez-faire economics and free-market
| libertarianism, etc etc).
| fidesomnes wrote:
| This is so clueless you should stop while you are ahead.
| ClumsyPilot wrote:
| The legal systen is 'free market'? Thats why offering money
| to anyone except your attorney is a crime?
|
| Being a jury is a public duty, poor people get a state
| sponsored defence atturney, judges are employed by the state,
| prosecutors are employed by the state.
|
| The day legal system goes 'free market' you will have mafia
| rulling the streets.
| throwaway3699 wrote:
| A defence attorney, sure, but you've got no chance of
| recompense if you have a legitimately sue (e.g. Amazon) to
| secure your rights.
| ClumsyPilot wrote:
| You mean if you have to go on the offensive and sue a
| company that has wronged you?
|
| Thats kind of true, but thats the point of many
| regulatory agencies and complaints procedures - in UK we
| have many Ombundsments which are meant to pursue the
| offenders on behalf of consumers. Also class actions
| lawsuits are meant to help with that. Thats why these
| arbitration clauses seem like they subvert the legal
| sysstem and they should not be allowed.
| yjftsjthsd-h wrote:
| > But then this is premised on the fact that the legal system
| is capitalistic (laissez-faire economics and free-market
| libertarianism, etc etc).
|
| Er. Free market, maybe, but what does it have to do with
| capital?
| 1cvmask wrote:
| No idea why you are downvoted for asking a legitimate question.
| paulgb wrote:
| I don't have access beyond the paywall, but it sounds like the
| same thing that happened to DoorDash:
| https://www.vox.com/2020/2/12/21133486/doordash-workers-10-m...
|
| As someone who dislikes forced arbitration, allow me to enjoy the
| schadenfreude for a minute.
|
| Edit: the linked article also points out that the same thing
| happened to Uber: https://www.latimes.com/business/la-fi-uber-
| ipo-arbitration-...
| pwg wrote:
| Access beyond the paywall is available here:
|
| https://archive.is/RFOHF
| lucasverra wrote:
| How to make a paywalled article available through
| archive.org? I've lost at least 20 min trying with a FT
| article
| pwg wrote:
| No idea re. archive.org, but https://archive.is/ has,
| sometimes, worked with FT articles.
| beebmam wrote:
| Personally I'd appreciate it if: 1. We stopped allowing
| paywalled site links on Hacker News 2. We linked to archived
| versions of those paywalled articles, so that all of us can
| read them
| jjulius wrote:
| Someone else posted the link[1] to the archived version of
| the article right around the same time you made your post.
| Further, you could always take the article's URL over to
| archive.is yourself and share it in the comments if someone
| else hasn't done it yet, which would probably take just a few
| seconds longer than it took for you to post your comment. :)
|
| [1] https://archive.is/RFOHF
| jrockway wrote:
| I like the Wall Street Journal links. I pay for a
| subscription, but often miss interesting articles. Seeing it
| on HN lets me extract max value from my subscription.
|
| Sure, it would be annoying if you had to pay $30 a month to
| read every article on HN. But... it's the Wall Street
| Journal. Many people subscribe to that, that's how it exists.
| Qub3d wrote:
| From https://news.ycombinator.com/newsfaq.html:
|
| > It's ok to post stories from sites with paywalls that have
| workarounds.
|
| > In comments, it's ok to ask how to read an article and to
| help other users do so. But please don't post complaints
| about paywalls. Those are off topic
| (https://news.ycombinator.com/item?id=10178989). More here (h
| ttps://hn.algolia.com/?query=paywalls%20by:dang&dateRange=a..
| .).
| quickthrowman wrote:
| Here, now you can post the archived article:
| https://archive.is
|
| Protip: turn your phone sideways to solve the captcha
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(page generated 2021-06-01 23:01 UTC)