[HN Gopher] So I took a corporation to arbitration
___________________________________________________________________
So I took a corporation to arbitration
Author : snapetom
Score : 882 points
Date : 2022-05-31 09:52 UTC (13 hours ago)
(HTM) web link (www.shuchow.com)
(TXT) w3m dump (www.shuchow.com)
| DeathArrow wrote:
| In my small Eastern European country the best way to solve
| litigations with companies as a consumer is to use Customer
| Protection, which is a state agency.
|
| To give an example, on Black Friday, some big online retailer had
| an offer on this site. I bought something with card and in two
| hours they called me to apologize that they didn't have it in
| stock, and they retired the product from the online store.
|
| But next morning, the product was back in the online store, with
| a greater price.
|
| I phoned, the retailer and demanded my purchased product at the
| payd price. They denied and offered a refund. I told I will
| appeal to Customer Protection and they said they still won't
| honor my order.
|
| I emailed Customer Protection with proofs, screnshots and they
| forced the retailer to send me the product for the payd price,
| and also gave them a big fine.
|
| The moral of the story is that a customer has to fight for his
| rights, by whatever means are legal in his country.
|
| If I had time, I would have made an interactive app for consumers
| to vote for good behaving companies, bad behaving companies, add
| proofs for everybody to be seen and try to pressure the companies
| to behave good.
| trey-jones wrote:
| Regarding the salient point of "Don't buy a home warranty":
|
| I guess it should always have been obvious that the most
| profitable product to sell is "nothing", AKA most types of
| insurance and warranty. At this point it's optimized to the point
| of the computer telling customer service peons whether it's
| "worth" entertaining your claim. Ethics and actual _customer
| service_ have gone out the window.
| goindeep wrote:
| Haha I used to work for a hot water company and this type of
| thing was pretty common. Doesn't bring back fond memories. So
| glad to not be doing that shitty job.
| unknownus3r wrote:
| How come you never show them the evidence? Is it because it lets
| the lawyers concoct a story?
| abraae wrote:
| In many legal confrontations you're best not to put all your
| cards on the table up front.
|
| Apart from anything else, it creates information asymmetry -
| your opponent certainly won't tip their hand to you until they
| feel the time is right.
|
| And you leave yourself open to bluffing. If you blab
| everything, and then the other side steps it up and comes after
| you harder, you'll be left wondering - they know everything,
| but they're doubling down - am I missing something? Gee, they
| must have a stronger case than I thought.
| doctor_eval wrote:
| Yeah I agree with this. I think it's important to put the
| necessary facts on the table, along with your claim or
| gambit, but to hold back on the detail until you work out
| which way the wind is blowing.
|
| I've had people tell me outright lies, which puts them in a
| difficult negotiating position when you can prove it. But the
| lies would not have been told (and my negotiating position
| not strengthened) if all the evidence was laid out up front.
|
| Hiding information from an adversary has few downsides, as
| long as you keep your goals clear. You can always provide
| more information later. But you can never take information
| back.
| snapetom wrote:
| This was basically my line of thinking when I filed. I felt I
| had good evidence, and I felt it all attacked very specific
| clauses in the contract. I didn't want to give them an
| opportunity to plan against it.
|
| In hindsight, it may not have mattered. After all, I was
| going up against lawyers. thathndude, who has the top comment
| and is a lawyer, has a different perspective.
| NaturalPhallacy wrote:
| >a privatization of justice.
|
| More and more I'm starting to think that anything that isn't just
| "justice" is injustice.
| bsedlm wrote:
| > _I was very impressed that this company so effectively neutered
| all staff that had any contact with customers._
|
| I'm fascinated by the separation of them who do something (the
| company's employees), them who run it (i.e. who tell said
| employees how to work), AND them who actually own the company.
|
| It's been mind-blowing to me how for all large-enough companies,
| the people who own it have no say at all in how it's run. and the
| people who run it (the managers or "executives"/bureaucrats who
| curiously do not actually peform the productivity-creating labor)
| cannot be really held liable for what the company does for it's
| only their job, the owners are liable, but they have no say (nor
| interest really) in how it's run, they just want them
| dividends/rent.
|
| in this scenario, the giant multinational corporations are
| essentially skynet; i.e. rogue, unaccountable/never liable group
| of autonomous entities made mostly out of money.
|
| Sometimes I like to imagine that on some level of companies who
| own other companies, there already exist groups of companies that
| own each other, such that if you followed the trail of ownership
| you'd go around a cycle.
| quadrifoliate wrote:
| > the people who own it have no say at all in how it's run. and
| the people who run it (the managers or "executives"/bureaucrats
| who curiously do not actually peform the productivity-creating
| labor) cannot be really held liable for what the company does
| for it's only their job
|
| I'm sure that's the case _somewhere_ , but not really sure that
| it applies to this instance. In this case it sounds like the
| whole thing would have worked as intended if it had been a non-
| persistent user. 99% of people will just give up after hearing
| this sort of repetitive "no it's your problem" and settle for
| writing a bad review online.
|
| The owners ultimately can hire and fire the people necessary to
| implement their standards, so the company as a whole will
| mostly tend to reflect their overall preferences over time.
| bsedlm wrote:
| I disagree, I think even in this scenario the whole thing
| worked as intended.
|
| It's just rare for people to be this persistent.
|
| I'm supsect that when companies deal with other companies
| this kind of thing (this amount of persistence) is the norm;
| it's just rare when individual persons deal with companies.
| axelsvensson wrote:
| > I like to imagine ... there already exist groups of companies
| that own each other ... around a cycle.
|
| Do an image search for "Samsung group ownership structure"
| jvanderbot wrote:
| https://qz.com/223755/samsungs-bizarre-byzantine-
| ownership-s...
|
| It is bizarre, byzantine, and incredibly convoluted.
| sequoia wrote:
| @snapetom (author): what caused you to counter-offer 80% rather
| than sticking with 100%? Presumably expediency, but it seems with
| arbitrator on the line you were well on your way to a 100%
| payout.
| cosmotic wrote:
| Forced arbitration can be a double edged sward for the
| corporations too. A while back, a company filed a motion to
| dismiss a class-action case because everyone signed arbitration
| agreements. The judge denied the request and forced the company
| to start an arbitration process with each member of a class,
| which was MUCH more expensive for the company to deal with than
| treating the class as a single entity.
| mig39 wrote:
| > In the US, it's not easy to sue a company as a customer.
|
| My experience in Canada:
|
| - I successfully sued a large retailer (something mart) over a
| $60 mistake, that ended up costing them a lot more in small
| claims court.
|
| Just dealing with the company was insane. Literally yelling at me
| on the phone that they were never going to pay for a simple
| mistake. I literally said "well, if you're going to yell at me,
| let's at least do it in front of a judge."
|
| It was really easy to file the papers, and even serve them
| myself. The court people helped. The company denied, denied,
| denied. Day of the case, literally 5 minutes before it was set to
| start, they agreed to pay everything I asked for (including 2
| days of my time), but wanted me to sign a non-disclosure
| agreement. Which I did.
|
| - Second case, it was one of Canada's largest banks. Error on
| their part, cost me $1000+ in extra expenses. Fought me the whole
| way, didn't want to pay anything at all. Went through their
| internal ombudsman process, but never got anywhere. A few days
| after filing a claim in small claims court, they gave me
| everything I asked for. Again, wanted me to sign a non-disclosure
| agreement.
|
| So I tell everyone I know, that in Canada, the big corporations
| are more afraid of courts than anything else. Last thing they
| want is a public record of wrongdoing.
| Beltalowda wrote:
| These kind of NDAs are frustrating because it prevents systemic
| problems from being aired and addressed. I don't blame you for
| accepting it - I would have done the same - because it's not
| your problem to fix; you just want your $1000 back, but I wish
| they would be restricted by law.
| ewuhic wrote:
| What would be the analogous process in EU (Germany,
| specifically)? And does it fall under Zivilrecht?
| gnicholas wrote:
| For anyone else dealing with home warranty companies, you should
| also try contacting your state's regulators. In CA, this is the
| Dept. of Insurance. They helped me immensely with a situation
| where the repair person actually broke something but was
| unwilling to come back and fix it.
|
| The home warranty company refused to call me back and it was
| impossible for me to get through inbound. But the DOI employee
| was able to contact them, and that was all it took. She followed
| up several times to make sure the situation was completely
| resolved.
| rascul wrote:
| Is it just me or do others also find "hot water heater" to be a
| strange term? To me it's just a "water heater".
| timwis wrote:
| But once the water becomes hot, you need to continue to heat it
| intermittently to keep it hot. So it's only a water heater for
| a few minutes, after which point it becomes a hot water heater.
| Tabular-Iceberg wrote:
| > Trying to find someone at HWC who could show an iota of free-
| will and thinking was hilarious and impossible.
|
| Since this is such a common pattern when interacting with any
| kind of customer support I'm interested in exploring why this is.
|
| The solution seems trivial enough. Write down the customer id,
| date, time and what was pre-approved on a piece of paper. Then
| when the computer comes back up, enter it into the system.
|
| Maybe the call handlers were just lazy and thought they could use
| the outage as a break. But you would think that bickering with
| customers on the phone is a lot more draining and annoying than
| just keeping business flowing.
|
| Maybe the software didn't allow recording events that had already
| happened, like the date and time field wasn't editable. Did the
| developers think that their system was infallible and would never
| go down? Or did they ask the domain experts if they should make
| this provision, and it was rejected?
|
| If so, what was the motivation of the domain experts? Did they
| think that their developers and IT infrastructure was infallible?
| Or did they not trust the call handlers enough to make the date
| and time field editable? Or do they take delight in finding
| loopholes where they can shirk their contractual obligations?
| Arrath wrote:
| I bet it boils down to an intersection of a number of issues.
|
| > The solution seems trivial enough.
|
| Maybe so, but that is the usual trap, isn't it? Us armchair
| experts can expound to no end from the outside.
|
| > Write down the customer id, date, time and what was pre-
| approved on a piece of paper. Then when the computer comes back
| up, enter it into the system.
|
| I imagine that the typical phone-drone has no authority to
| provide such an authorization, and with the system down they
| have no avenue to pursue one. No trail through the system, no
| audits, etc.
|
| > Did the developers think that their system was infallible and
| would never go down?
|
| Surely not, but the developers knowing their system is fallible
| is a long way from management acknowledging that reality, and
| drafting policy to account for outages. Allowing, e.g., for
| manual pre-auth procedures.
|
| > If so, what was the motivation of the domain experts? [...]
| Or do they take delight in finding loopholes where they can
| shirk their contractual obligations?
|
| Or do they get tired of dealing with bureaucratic red tape,
| scope changes, approval processes, etc. etc. and just ship the
| product the customer asked for, despite shortcomings in the
| spec, and call it a day so they can gtfo?
| VBprogrammer wrote:
| > 3) Keep records of phone conversations. Date, time, who,
| resolution. Keep screenshots. Keep emails.
|
| If you take nothing else away from this article this a great
| point.
|
| I once had an issue where two different electricity companies
| believed they were supplying our University flat. This turned out
| to be due to the mess of naming systems involved in Edinburgh
| flats where two apparently identical flats had meter numbers.
| Eventually I was able to extract this information from the call
| handlers but only after a ridiculous number of calls.
|
| This got far better when I started taking names and extension
| numbers so that I could skip the intro session on each call and
| speak directly to someone who knew the situation. Taking careful
| notes of who I spoke to and when.
|
| For about 2 years later I'd still get the hard sell from some
| debt collectors telling me that I could just pay the PS2000 and
| it would all be over...
| matsemann wrote:
| I had a similar situation. My lesson from that was that if I
| can make "my" problem "their" problem, it will resolve itself
| quick.
|
| In my case, someone had mistyped a meter number (matching mine)
| when signing a new contract with a power company. I got a
| message from my existing provider that I would be transferred
| there. I called the new company to explain that it was a
| mistake, and they seemed happy to fix it. I had to jump through
| some hoops (get a key to the power panel for the building to
| take a picture of my meter and stuff), but thought it was okay
| to get it resolved.
|
| But it didn't work, later I got a letter addressed to the
| apartment, saying I owned the new company money. I gave them a
| call, and they didn't really want to fix it, just get their
| money, and make me do additional stuff to prove I hadn't signed
| with them. It was then I could say something along the line of
| "We don't have a contract, which is YOUR problem. As far as I'm
| concerned I'm getting free electricity until you fix this". Of
| course I could only say this because legally they can't cut the
| power here during winter.
|
| But when it became their problem of losing money, it was fixed
| without issues.
| noir_lord wrote:
| npower nearly drove me off the ledge (or more correctly came
| close to been the final push at what was the worst moment in my
| life) because they kept fucking up their billing for nearly a
| year over and over again, the same shit.
|
| In the end I got pissed and kept asking for more senior people
| til I got to some director of something or other, I explained
| what had happened, that I had all the evidence (bank statements
| showing I'd paid, their inability to meter coherently etc) and
| that my next call was going to be a solicitor and ofgem if it
| wasn't resolved.
|
| They zeroed the account (which worked in my favour somewhat
| since I had used _some of it_ , came and got an accurate meter
| reading and apologised.
|
| Turned out later I was caught up in this shitshow on their
| side: https://www.ofgem.gov.uk/publications/npower-pay-
| ps26m-faili...
|
| So yes, keep _everything_ is good advice.
| thathndude wrote:
| As an attorney, I love when I get a client like this who has
| tons and tons of records.
|
| I recently had a case where my client, who uses a service dog,
| was denied a hotel reservation because of the dog. The hotel's
| attorney called me and said "I spoke with the other person, she
| said this never happened, and he never said it was a service
| animal." Well, my client, due to his disability, uses a
| telephone system that records all of his calls. I sent over the
| recording, and it clearly showed that he identified a service
| animal, and the person just said "no." Now that lawyer knows
| his client's a liar.
| nabla9 wrote:
| Olympus Telephone Recording Device (TP-8) costs something
| like $25.
|
| It's simply brilliant. It plugs into any recorder with 3.5mm
| plug and because it's device you have in your ear it works
| with any call (normal phone call, WhatsApp whatever).
| Reporters routinely use it with Olympus voice recorders to
| make phone interviews.
|
| I highly recommend.
| ameister14 wrote:
| Here's a handy 50 state survey of phone recording laws:
| https://www.justia.com/50-state-surveys/recording-phone-
| call...
| rr808 wrote:
| You'd think there would be an app for this, or even built
| into the ios/android.
| nunez wrote:
| There used to be for Android, but Google has restricted
| audio routing during calls to prevent two-way recording
| (i.e. you'll only hear yourself).
|
| iOS used to have this capability for jail-broken devices
| way back in the day; not sure if it still does.
|
| I'm guessing that the state-level consent laws make it
| difficult for Apple and Google to bake in phone
| recording.
| ntoskrnl wrote:
| Google has actually been fighting call recording apps for
| years. California is a two-party consent state, but most
| states are one-party consent (and many countries don't
| have legal restrictions at all). They're basically
| enforcing California law globally. It's extremely
| frustrating to have your phone force-upgraded only to
| lose important features.
|
| https://www.pcmag.com/news/google-is-banning-call-
| recording-...
| thathndude wrote:
| Not your lawyer legal advice:
|
| Make sure you are aware of the relevant laws regarding
| recording phone conversations.
|
| Having said that, thanks for the equipment tip!
| maccard wrote:
| Not looking for legal advice but: how does that work in
| the context that the other party is recording my call? If
| I phone a service provider, they tell me calls are
| recorded for training and monitoring purposes - does this
| prove they've given consent to both parties recording?
| CPLX wrote:
| > If I phone a service provider, they tell me calls are
| recorded for training and monitoring purposes
|
| Yes. If you're recording a call and it says "Your calls
| may be recorded" from their end that would be an open and
| shut argument that they've given permission for you to
| record the call.
| [deleted]
| ClumsyPilot wrote:
| Also did you agree to be recorded without duress, if you
| have to tall to them and they won't talk without
| recording?
| ornornor wrote:
| I don't understand how it works. It only has one jack. What
| do you plug it into? How do you get any audio into the
| earphone AND record both sides of the call? Or is it just
| like any microphone and you have to put the phone on
| speaker and basically record the ambiant audio?
| nabla9 wrote:
| You plug it into anything that records sound.
|
| The earpiece has a good microphone that captures both
| sides.
|
| I was skeptical at first, but It just works. It records
| both sides of conversation well.
| [deleted]
| sudden_dystopia wrote:
| This is interesting, thanks for sharing and good work!
| KingOfCoders wrote:
| "Of course, they refused to pay. Trying to find someone at HWC
| who could show an iota of free-will and thinking was hilarious
| and impossible."
|
| Not sure if this was in the US, but whenever I was there, I was
| astonished by the little amount of free-will employees have.
|
| I wanted to see a different hotel room for our next stay. Here in
| Germany someone would take me to the room and show me. There
| (NYC, good hotel) the receptionist needed to ask a manager who
| needed to ask a manager - in the end it was not possible.
| DeathArrow wrote:
| Is arbitration used as a way to solve litigations between
| corporations and consumers, generally used just in US?
|
| In my European country, arbitration is scarcely used and when it
| is used it implies just businesses.
| gambiting wrote:
| >>and about two days later, got a Fed-Ex'ed check in the mail.
|
| I often wonder, how much time and fuel is wasted on this nonsense
| in the US. Couldn't they have just.....sent him the money
| directly? You know, like in literally every other country in the
| world?
| srvmshr wrote:
| Its hilarious when selling/buying used books. I have had, on
| few occasions, been sent sale receipts of 1 or 2C/ on books
| which were re-sold. I would rather have them keep the money. It
| takes 40-60C/ to post that check.
| puzzlingcaptcha wrote:
| To be fair, the French tax office mailed me my tax refund as a
| physical cheque which I couldn't cash as I no longer lived
| there. I eventually got them to wire it by SEPA but it required
| explaining my situation in a letter.
| thathndude wrote:
| This. The number of companies still sending me checks (for
| client settlements) is asinine. And these are BIG companies
| (fortune 50). I have one of my regular companies now that
| ACH's.
|
| The amount of money spent on overnight mailing in the legal
| profession is astonishing.
| kaon123 wrote:
| Why is this?
| paulgb wrote:
| I wonder if companies want to have an image of a cashed,
| endorsed check as proof that the funds were sent, given the
| antagonistic nature of the relationship. With ACH/wire you
| can prove that the money was sent, but it is harder to
| prove that it landed in the customer's account. Kind of a
| TCP vs. UDP thing.
| thathndude wrote:
| Large organizations are big, dumb, and slow. Only a tiny
| bit of that is hyperbole.
| swores wrote:
| Is it possible that even a small % of people losing and
| forgetting to actually use the cheques saves more money
| than a little added cost to each payment?
| Tabular-Iceberg wrote:
| My guess is simply superstition.
|
| I don't know if this is true (I heard it from a local), but
| for decades there was not a single ATM on the Falkland
| islands. The local bank said ATMs just don't work on remote
| islands. So a Stanley petrol station took the matter into
| their own hands and just bought one. ATMs don't care if
| you're on an island, you just plug them in, put money in
| them and then people take it out. I can at least verify
| that that part is true because I was there, saw the machine
| and got money out of it.
|
| Another personal anecdote is an industrial application
| where safety critical updates had to be received on DVD-Rs
| that were routinely left unsupervised with untrusted
| intermediaries in very shady parts of the world. I
| suggested putting a message authentication code to ensure
| it hadn't been tampered with. The industry professional I
| was talking to would hear none of it, thinking the only way
| would be to transfer the entire contents of the disk over a
| very expensive satellite link to the head office and have
| it compared bit by bit. That MACs are a real thing that
| actually works, and that sending the data back and forth
| and comparing isn't actually secure unless a MAC is also
| used was like water off the goose.
| atraac wrote:
| That's what surprised me the most too. Like... it's 2022, I'm
| sure we have banking systems capable of transferring miniscule
| amounts of money on demand, everywhere in the world. Right? For
| the amount of tech that comes from US, it seems to be
| incredibly backward on a lot of things.
| grumple wrote:
| You see an inefficient system. Companies see a way to hold onto
| the money for longer, which makes them better able to use that
| money elsewhere in the meantime like continuing to earn from
| investments, benefit slightly from inflation, and potentially
| make other decisions with that money. Holding onto 2k for a few
| extra days might not be a big deal, but when you do it for
| everything you pay out that can be a substantial benefit over
| time.
| Hamuko wrote:
| I don't understand why Americans don't do direct bank
| transfers, they're fantastic. And with SEPA Instant Credit
| Transfer, it's even better than ever. I have a secondary bank
| account in Germany (N26) and if I transfer money from my
| Finnish bank account to it, I get a push notification from the
| receiving bank basically a second after I push "Confirm" on the
| transfer UI.
| dymk wrote:
| > I don't understand why Americans don't do direct bank
| transfers
|
| we do...
| gambiting wrote:
| Well, yes, which makes the whole situation even weirder -
| American banks support direct bank transfers, yet companies
| and individuals continue using cheques. Fedexing a check
| for insurance claim is like super duper weird to me - it
| must cost money to send it, it cannot possibly be cheaper
| than just wiring the money.
| junon wrote:
| Enjoyed the writeup!
|
| > The world doesn't care about you feeling like you were wronged
| and how hurt your feelings were. It wants cold, hard facts.
|
| This has been somewhat of a guiding light for me for quite a long
| time, hammered into my by my attorney father, and it alone has
| saved me countless times.
| dlandis wrote:
| Great write up, but I would also be interested to learn what the
| total number of hours was that the author devoted to this case,
| including all the phone calls, email, research, preparation, etc.
|
| His main takeaway was to not be afraid of the arbitration
| process, but unfortunately the time commitment itself does seem
| very significant, even in a relatively straightforward case like
| his.
| guerrilla wrote:
| Exactly. Not only that, but it also requires you to know about
| all this stuff and know to even be persistent.
| imglorp wrote:
| Side rant:
|
| > 4) Don't get a home warranty.
|
| Sellers are basically obligated to provide them, because it's
| what everybody does. They serve to lubricate a deal with a
| checkbox, while releasing the seller from some obligations.
|
| I'm pretty sure selling RE agents get a percentage on referrals
| (in US). I sold a house without an agent and phoned one of these
| companies to simply buy a warranty to hand to my house buyer.
| They were baffled how to do this without my agent id number until
| some manager said just sell it to him.
|
| The whole thing is a reception line of parasites waiting for some
| homebuyer blood.
| codingdave wrote:
| Yet we did get a warranty on our recent home purchase, and it
| paid for itself 3 times over. But this was a very specific
| situation - the home had been built over 20 years ago and had
| all the original appliances, furnace, water heater, etc. It was
| a ticking time bomb to have to replace those things. So we got
| the warranty and pushed the warranty every time the slightest
| thing went wrong, and replaced half of the various appliance
| and systems with some reimbursements from the warranty.
|
| Not total reimbursements, and I don't recommend the warranties
| unless you likewise have a complete set of appliances past
| their expected lifetimes. But like anything else, use a tool in
| the right place, in the right way, and it serves its purpose.
| asciimov wrote:
| Used to be a thing, it's such a sellers market right now that
| in my area (Texas) the sellers aren't including it anymore.
| thedanbob wrote:
| Home warranty companies are the worst. After the year warranty
| that came with my first house expired I (foolishly) maintained
| the contract for a while longer. I later sold the house,
| including 6 months or a year of that same warranty contract.
| After that pre-paid time period was up they started charging
| _my credit card_ again rather than the new owners. I called
| multiple times but was unable to get anyone to remove my card
| details from the contract. Thankfully, since it was a credit
| card I was just able to do a few chargebacks and that solved
| the problem.
| snapetom wrote:
| Author here.
|
| As an aside, shortly before I filed, I told one of the
| customer service reps to cancel my contract. They said a
| manager would call me (I assume a retention specialist) but
| they never did. Coincidentally, my credit card expired and I
| just figured I'd cancel the contract that way.
|
| For _months_ I got emails and eventually calls from them
| telling me my credit card expired. I 'm like, "I just had to
| file an arbitration case against you fuckers. Can't you read
| my account notes?" But after dealing with those reps, I
| concluded that no, they can't read my account notes.
| chrisjc wrote:
| And if you're on the other end as the buyer and actually need
| to use the warranty, good luck. One of the worst experiences
| I've ever had, and it was supposed to be "one of the best home
| warranty companies out there".
| astura wrote:
| This must be a highly regional thing because nobody offered to
| sell me a home warranty when I bought my house.
| mherdeg wrote:
| Yeah, I think home sale practices vary widely by market.
|
| A couple of years ago a family friend in Florida says "Oh
| yes, we never make an offer until the second showing." Ha ha
| ha.
| zippergz wrote:
| In my experience (in several US states) it has never been
| "offered to sell me." It has been "the seller is including a
| home warranty [whether you want it or not]." One time I tried
| turning it down, and was basically told "well, we'd have to
| go back to the drawing board on the offer if you do that.
| Just take it. Everyone takes it." And similarly when selling
| a house "I don't want to include a home warranty" was met
| with "all other sellers include it, so if you don't, you're
| going to look bad." For the cost of these warranties I can't
| imagine that the agents are getting that much of a kickback,
| especially compared to the commission they make on the sale,
| but something is clearly going on.
| astura wrote:
| Well my house didn't come with a home warranty either nor
| did anyone involved in the transaction recommend one or
| even mention it either way. I was under the impression they
| were a very niche product.
| snowwrestler wrote:
| Well just to put in some more anecdotes, I sold a home in
| December and did not offer a home warranty. My agent did
| not care and the home sold quickly without one.
|
| And several friends and family have purchased real estate
| in the last few months; again no home warranty offered or
| expected in those transactions.
| snapetom wrote:
| I think the market has a lot to do with it. I've bought
| properties in buyer's markets (recession '08 and '14) and
| it was barely even mentioned that there was a home
| warranty included. I got the sense from my agents that it
| was standard.
|
| I've been shopping since September last year and watched
| the market shift as low interest rates stopped recently.
| There was a seasonal dip in December 2021, but it was
| still about 20% higher than even highs of previous years
| as people scrambled to get good loans before they ended.
| It was definitely a seller's market. My agent said many
| winning deals were waiving financing contingencies and
| even inspection contingencies to sweeten the offer. Home
| warranties would have been one of the first things
| dropped.
| prakhar897 wrote:
| IMO the author could've elaborated in the email on how the
| company is deliberately trying to deny their responsibility for
| the actions and how the arbitration clause is added in bad faith
| and has created a dark pattern which harms the consumers
| nationwide. This means (I'm not a lawyer) the person on the other
| side might get scared about a class action suit.
| AlbertCory wrote:
| Great job.
|
| Counter-example (missing nearly all the details, unfortunately,
| to protect privacy): a friend filed a wrongful termination claim,
| which went to arbitration. The defendant stretched it out for
| _two years_ , which I consider a transparent attempt to bankrupt
| him with legal fees. Finally they settled, but even after the
| agreement to settle, it still dragged on. Eventually it ended.
| toppings wrote:
| An option to consider is to get a referral from your local bar
| association and let them know you are looking to pay on a flat
| fee basis.
| giantg2 wrote:
| Did this actually go to arbitration? It sounds more like they
| filed an arbitration case but that the company settled before
| going to arbitration.
| thathndude wrote:
| This is what happened. The company probably got an invoice from
| the arbitration company for $2,000+ and paid it to the consumer
| instead. They save a headache and having to pay for attorneys.
| jsjohns2 wrote:
| Lest anyone come away from this thinking that arbitration is good
| for the consumer, this story only has a happy ending because the
| business chose to settle.
|
| I also took a corporation to arbitration. A Big 4 bank destroyed
| my credit over a billing mistake that was their fault, relating
| to a credit card account with a $230 balance. Despite seeking
| nothing more than to have my credit fixed, the bank refused to
| settle. I contacted upwards of 100 attorneys with no luck, so
| decided to self-represent.
|
| 16 months, 25 hours under oath, and over 2,000 hours later, I
| "won" a judgement forcing the bank to fix my credit -- but no
| monetary recovery at all.
| deepsun wrote:
| > Keep records of phone conversations
|
| How do you record the phone conversations?
|
| I remember Android doesn't really allow you to record the other
| party audio, only your own. Unless you write your own caller app
| that processes the audio, but not sure how easy it is to send the
| audio to default phone caller after. Apple probably does it too.
| c0nsumer wrote:
| For this purpose, even just having notes is sufficient. Eg:
|
| 2022-May-31 @ 11:09 AM: Spoke with X via phone, was informed
| their system was down and they could not accept my claim.
|
| Recordings of the calls themselves can get murky legally, and
| are technically challenging, but in my experience factual notes
| are sufficient.
| snapetom wrote:
| This. A detailed description of the call - what was
| discussed, who was discussed, what I said - reconciled with a
| record from the phone or phone company is more than enough.
| This is what many other professions, including medical, do.
|
| If you're involved in a multi-million dollar lawsuit, sure
| you'll nitpick with lawyers about the content of the call,
| but for a few grand, no one's going to argue with you.
|
| There's also too many headaches with recording calls. Dealing
| with one party vs. two party states, etc.
| deepsun wrote:
| Hmm, then in sounds I can just record my own voice only.
| Notes are easy to write down later from those. Legally all is
| fine, since I'm recording only my own voice, but it's good
| for the purposes you describe.
| tiborsaas wrote:
| Turn on speakerphone mode and use another device to record,
| your laptop should probably do the trick.
| ClumsyPilot wrote:
| I used to have a call recorder app installed on android, but
| some update removed that ability
| deepsun wrote:
| Yep, I think there's no way to do that through API now, for
| security reasons.
|
| There needs to be a dedicated "caller" app, and that app must
| be visibly different from default caller app.
| jeffrallen wrote:
| I love it.
|
| Contacts are awesome. I got humanitarian aid logistics training
| and the teacher taught us: always make a written contract, for
| any agreement. You don't need to be a lawyer to make a useful
| contact. The process of writing and signing it clarifies the
| situation to you and the counterparty. Most disagreements can be
| solved in informal arbitration, especially when one party can
| show, look we agreed to this and then I did this and you did
| that. Humans do better removing emotion and ego when there's some
| rules written down.
|
| I also faced a situation where the contract a former logistician
| had entered into had become wildly unfair to the vendor, not
| through his fault. He started giving me problems and I offered to
| break the contract and find a new compromise that met my needs
| and his. Happiness all around, for a small amount of reasonable,
| ethical cost to my organization.
| 1970-01-01 wrote:
| This was an excellent write-up! The TL;DR is perfect:
|
| 1) Don't be afraid of arbitration. I did feel AAA was helpful in
| the process. In fact, heading straight to arbitration may be the
| best way to fight this system that corporations created.
|
| 2) READ. YOUR. CONTRACT. I swear, this got me like 90% there. It
| doesn't matter that I don't have a background in contract law.
| These customer contracts are designed to be (relatively)
| approachable. I felt being able to specifically point out what
| clauses were violated and how gave me a very strong cause of
| action. I also pointed out there was no out-clause in the
| contract for computer system failures. I suspect this had
| something to do with them accepting my counter-offer so quickly.
| Once the attorney saw that yes, there were breaches of contract,
| they probably knew my case was pretty strong. The world doesn't
| care about you feeling like you were wronged and how hurt your
| feelings were. It wants cold, hard facts.
|
| 3) Keep records of phone conversations. Date, time, who,
| resolution. Keep screenshots. Keep emails. I didn't have to
| present them to an arbiter, but I think if I had to, I had the
| evidence to point out exactly where HWC failed.
|
| 4) Don't get a home warranty.
| akudha wrote:
| I just read some of the clauses in my contract for a new job that
| I am starting (I am a "sub-contractor" here). The amount of
| legalese, the amount of one sided items there ... it is insane.
| It left me wondering if the lawyers that write these contracts
| have an iota of empathy or conscience. If I were to summarize the
| contract in one line it would be "we owe you nothing, you owe us
| everything".
|
| And this is for a low level, software job. Software that doesn't
| touch (as far as I know) anything secretive like the military.
| Just some run of the mill web CRUD app.
|
| Maybe I am too sensitive, but why have we become so litigious? I
| understand people need to cover their ass, but some of the
| clauses are so egregious. Same with my lease agreement. Reminds
| me of this Carlin rant -
| https://www.youtube.com/watch?v=VFl84lGveQs
| willyt wrote:
| This is my experience in the UK. If you are party to a contract
| and due to the failure of the other party to adhere to the terms
| of the contract you are out of pocket the other party needs to
| put you back in the position you would have been in had the
| breach not happened. Hence, you can charge for your time in
| writing letters and submissions to small claims court etc because
| that is time spent which wouldn't have been spent if they had
| performed thier contract. Therefore I always state my hourly rate
| and how much time I've spent so far when dealing with
| intransigence from companies. I had a fault in my electricty
| meter and was over charged by PS2000. I spent hours on the phone
| and they didn't do anything to resolve the problem until I
| threatened small claims court at which point they refunded me and
| offered PS250 compensation. compesation for my time. Maybe
| justice doesn't work like this in the US, but I reckon he
| probably could have got more from this company.
| giantg2 wrote:
| "they refunded me and offered PS250 compensation. compesation
| for my time."
|
| Yep, it doesn't work like that at all in the US. A threat of
| going to court might get you the refund. No way are are they
| paying for your time voluntarily.
| cjg wrote:
| I had a UK judge say exactly the opposite in court - you don't
| get to claim your time - that's just the joy of litigation.
| soorya3 wrote:
| Also there may be other ways to recover the money for example
| local and federal law related to your problem (simply google
| them). In my case, Travel company customer service failed to
| cancel my flight and after months of following up (although
| slowly because most of us don't have time and energy to spend)
| finally I filed a case with DOT (federal law) and I got my money
| within few weeks. Another great resource is consumer protection
| bureau (https://www.consumerfinance.gov/).
| ddeck wrote:
| Just in case it's helpful to anyone, I had a good experience
| using the CEDR Aviation Adjudication Scheme[1] to challenge
| Easyjet's refusal to pay up under the EU flight delay
| compensation scheme [2].
|
| The EU has a mandatory compensation scheme for for passengers
| where flights are late, cancelled, denying boarding etc. This
| applies not only to EU citizens and airlines, but to all flights
| flying from or to the EU.
|
| I had an Easyjet flight that was delayed for hours, then
| cancelled overnight, requiring a hotel stay etc. After lodging
| the claim with the airline, they responded that the delay, then
| cancellation was due to extra ordinary reasons (weather) and as
| such they weren't responsible.
|
| The CEDR scheme requires a payment of about EUR30, which is not
| refundable if you lose and the airline needs to be a member of
| the scheme, but many are.
|
| Easyjet were required to provide evidence of the extraordinary
| circumstances, and they ended up submitting a long story about
| the plane being delayed due to severe storms on a prior flight in
| France, along with the associated documents.
|
| That turned out to be true, but the tail number on the plane that
| was delayed was a completely difference aircraft, and they were
| forced to pay the full compensation, which amounted to near
| EUR1k.
|
| The whole process took several weeks, but it didn't require me to
| be present in the EU and was done entirely via the CEDR website.
|
| [1] https://www.cedr.com/consumer/aviation/
|
| [2] https://europa.eu/youreurope/citizens/travel/passenger-
| right...
| andrew_ wrote:
| Conversely, don't be afraid of aftermarket vehicle warranties (in
| the US, and after you've vetted them). Perhaps a YMMV moment, but
| I've had a very positive experience surprisingly.
| pseingatl wrote:
| I don't understand why so many people are afraid of arbitration
| either. Filing fees are lower. Documentation required to file is
| easier.
|
| Federal courts are drug courts. Wait in line. Motion practice is
| discretionary.
|
| State civil courts are backlogged. Lawyers will file delaying
| motions to wear you down. You must know what you are doing. The
| response to a complaint is not an answer, it's a motion to
| dismiss w/request for sanctions and fees.
|
| In roughly half the States, judges are elected and draw campaign
| funds from the attorneys who appear before them. You didn't
| contribute? Back to the end of the line.
|
| AAA arbitrators are often retired judges anyway. The process is
| easier. There are some negatives but these do not outweigh the
| pain of a state or federal civil case.
| asciimov wrote:
| > I don't understand why so many people are afraid of
| arbitration either.
|
| Two reasons:
|
| 1. People hear that arbitration favors the company not the
| individual, as such they think they are already set up to
| loose.
|
| 2. People aren't lawyers. Even highly educated (including those
| with doctorates) aren't likely to have had any classes on law.
| As such they don't know how to read contracts, don't know their
| rights, don't know the odds of them actually winning their
| case. To the layperson, the law is a mysterious construct best
| to be avoided.
| bjarneh wrote:
| > Of course, they refused to pay. Trying to find someone at HWC
| who could show an iota of free-will and thinking was hilarious
| and impossible.
|
| This always annoys me; a 100 sellers for every person working in
| any type of customer care/support role seems to be the norm. If
| you can actually get in contact with someone in customer
| care/support their job always seem to be to brush you off nicely,
| not really help you.
| thelittleprince wrote:
| Just curious. What if you failed the claim? Let's say OP didn't
| hire an attorney, would he/she has to pay anything to the company
| for a false claim?
| kevin_thibedeau wrote:
| Just an FYI. You should check the terms for arbitration in
| service contracts. A fiber ISP in my area permits you to opt out
| if you notify them within 30 days of beginning service.
| guerrilla wrote:
| > In the US, it's not easy to sue a company as a customer. Maybe
| about thirty years ago, it became common for companies to put
| into contracts and terms of service, clauses that required
| binding arbitration to resolve disputes. This was cheaper for the
| company in many ways including a streamlined resolution process,
| cheaper lawyers, no sifting through frivolous lawsuits, and
| finality once a decision is made. It sucked for the consumer
| because it's essentially a privatization of justice.
|
| It seems insane that people are just fine with this. There's not
| even a top comment here mentioning it at this time. Is there no
| movement to make this illegal at all?
| timwis wrote:
| Indeed. It's frustrating that you can't really object to it, as
| the company can just refuse to do business with you, and there
| aren't viable alternatives who won't do the same thing. Thus we
| have very unilateral contracts where the companies have all the
| power, and the consumers basically only have whatever consumer
| protections their state laws provide.
| gtirloni wrote:
| _> a Fed-Ex'ed check in the mail._
|
| It's mind-blowing to me how the US still relies heavily on these.
| inetknght wrote:
| I would rather have a check than give bank account info to some
| corporation with questionable privacy practices and non-
| existent security practices.
| oblio wrote:
| What can they do with just your bank account number?
| Karunamon wrote:
| An account and routing number is all you need to make ACH
| deposits _and_ withdrawls.
| altairprime wrote:
| ACH withdrawals of your money, since they have your name
| and account number and can readily surmise it's a
| type:Checking account.
| jimmydorry wrote:
| Bank account number, name and address can be enough to
| setup a direct debit or initiate a withdrawl (in specific
| circumstances). Keep in mind that you are less worried
| about the company itself being evil, than the possibiliy of
| this data leaking and being seen by a less scrupolous
| entity.
| guerrilla wrote:
| > Bank account number, name and address can be enough to
| setup a direct debit or initiate a withdrawl (in specific
| circumstances).
|
| That seems like your main problem. Fix that. That's
| insane and not possible here.
| maccard wrote:
| > In the end of my response, I counter-offered 80% plus
| arbitration filing fee reimbursement. The next day, they
| responded back with an acceptance and sent over a release form.
| Case pretty much closed.
|
| This is so depressing - it cost him $200 to get to the point of
| arbitration in the first place (lucky for him that he had $200 to
| file it in the first place), _and_ he didn't even get the total
| amount back, he get less than $1500 rather than the $200 he
| likely should have got.
|
| For anyone who claims "just take them to court" or "just sue them
| for breach of contract" - this is what you're looking at, getting
| back 75% of what you expected after paying for their complaints
| procedure.
| tallanvor wrote:
| He asked for $1800 and accepted 80% plus the $200 filing fee,
| so he got back $1640, so it cost him around $360. --I'm
| guessing his deductible would have been in the $100-200 range,
| so, yeah, he ate $160-260 rather than spend the time going
| through arbitration, but it's perfectly fair for him to
| consider the cost of his time in determining whether or not it
| made sense to continue fighting.
|
| In the end he still comes out ahead since it looks like a
| normal sized electric water heater runs around $500 plus the
| cost of installation and repairing any damage from the leaks.
| tomcam wrote:
| Judging from the article negotiating was fast, indicating that
| OP probably could have concluded on more advantageous terms. I
| enjoy these negotiations but OP's process was swift and
| relatively painless. Probably a more economical use of time.
| maccard wrote:
| I disagree. FTA:
|
| > After about five calls of runarounds, I realized that
| customer service channels would not help me and I had use the
| legal system.
|
| > I filed a case online for $200 > Two days later, I received
| a response <..> I respectfully declined. > A day later, I
| requested a 3rd party pre-auth to find an outside plumber. >
| I counter-offered 80% plus arbitration filing fee
| reimbursement. The next day
|
| By my count, he called them 5 times, threatened (and followed
| up with) legal action, and took 4 rounds of negotiation all
| to receive less than he was entitled too.
|
| Also, I don't blame OP at all here - they did a fantastic job
| of handling the situation they were in, but it's a shitty
| system that allows them to be caught like that in the first
| place.
| tomcam wrote:
| I like your perspective. However, I have to make about that
| many calls every week just to deal with messed up bank
| balances, errors in credit card bills, etc. I spend well
| over an hour a week on stuff that in the late 80s and early
| 90s could have been taken care of with a single phone call
| to the institution involved. (I have several residences and
| small businesses so YMMV.)
| cycomanic wrote:
| As the lawyer above said, they could have hired a lawyer to
| do the work for him and the company would have had to pay
| the lawyer. Alternatively they likely could have claimed
| for their time based on their hourly rate, also they should
| likely have claimed for the inconvenience of being without
| water for several days. I think they really went to light
| on the claims and that's likely also why the settlement was
| so quick.
| Nextgrid wrote:
| On the other hand, that was purely due to his counter-offer
| being 80%.
|
| Given the amounts we're talking, there's basically no
| difference between $1500 and $2000 for a big company - the
| entire process already cost them as much, and continuing said
| process would keep costing them more especially as it's a
| clear-cut case of breach of contract they are unlikely to win
| regardless of how much time they spend on it.
|
| If they didn't believe he had any ground to stand on, they
| would've declined immediately regardless of how low his
| counter-offer was. Given that they accepted it immediately,
| they knew they were in the wrong and would've accepted a
| repayment of the full amount just as well.
| thathndude wrote:
| AAA arbitration costs a company about $3,000 (and the costs
| of an attorney they hire). Some may/will pay nuisance
| settlements if it's the economically rational play--even if
| they think the claim is bogus. Although, to be clear, this
| claim sounded very very legit. (Candidly, I would have pushed
| for a much higher settlement. But don't blame OP for not
| wanting the headache).
|
| There's some interesting arbitrage opportunities in this
| space. I have the legal (and arbitration) experience. I've
| been noodling on how to marry it up with a tech-minded
| individual to capitalize on these opportunities.
| mgw wrote:
| Sounds like an interesting opportunity. Some ideas
| immediately come to mind. I'm a previous founder and
| CTO/CEO. Feel free to reach out if you're interested to
| discuss. You can find my email in my profile.
| tomcam wrote:
| Damn, that was helpful and encouraging. Pound for pound the best
| value of any article I have read on HN.
| puffoflogic wrote:
| This doesn't look like a win to me. When insurance companies (and
| equivalent products) pay a claim through legal action, even if it
| were 100% of the claim, they have won. That was all they were
| ever obliged to do and they got to put it through a filter first,
| where they benefit from filtering even a small fraction of claims
| (and in reality it's a large fraction). Sound legal principles
| demand double or treble damages for every litigated insurance
| claim to prevent this hazard.
| SkeuomorphicBee wrote:
| > It went pretty well.
|
| ...
|
| > [...] I counter-offered 80% plus arbitration filing fee
| reimbursement. The next day, they responded back with an
| acceptance and sent over a release form. Case pretty much closed.
| I didn't get 100% back, [...]
|
| So author had to jump through hoops and in the end only got a
| percentage of what was owed. The text is written in the format of
| a feel-good success story, but the result is the oposite. What is
| described is a broken system, if the only punishment for the
| crime is to do what they should have done in the first place then
| there is no incentive for companies to do the right thing to
| begin with. Customer protection laws absolutely need a clause for
| double the reimbursement and I'm shocked that this person's
| country (I'm assuming it is the USA) doesn't have it. Without
| such a clause it is best for the company to just deny ALL claims
| and profit out of the people too lazy to go through arbitration.
| snapetom wrote:
| Author here. As the arbitration attorney said earlier, "They
| don't make money by paying out claims!" No insurance company or
| home warranty company exists to pay out claims. I laugh when I
| hear them claim that their business is to diversify risk.
|
| Any sort of out clause that the have to not pay a claim, they
| will try to use. In this case, it was "you didn't get a
| preauth." This makes it by no means a binary, black/white issue
| contrary to what a stereotypical HNer believes.
|
| As far as a national consumer protection law that doubles
| reimbursement, good luck. I'm shocked that foreigners are
| shocked when they hear that the US actually has very few
| national laws. The country is big, diverse, and the regional
| histories that bought the states together, and grew, is too
| varied. The system is set up so that the states handle most
| legal issues. I for one am fine with that.
| TwoNineFive wrote:
| I think you proved SkeuomorphicBee's point. You are oblivious
| to the fact that you got f-ed over. You are talking past the
| argument thinking people won't notice that your feel good
| blog post is about how you think you won, but actually got
| screwed and are oh-so happy about it.
|
| Bizarre.
| listless wrote:
| I didn't get that at all. Author takes on company legally, and
| with little effort wins most of what they are after (~10%
| difference).
|
| I had a situation almost identical to this where I had an AC
| that gave out and after a month with the warranty company, I
| just fixed it myself. Because it was July. In the southern
| United States. I didn't even know about arbitration. I just
| assumed the black whole of rotating customer service agents and
| canned answers is the end of the line.
| danuker wrote:
| > ~10% difference
|
| In addition, there was the author's time without hot water,
| time spent on customer service, time spent figuring out how
| to file an AA case, and stress.
| peeters wrote:
| > I didn't get that at all. Author takes on company legally,
| and with little effort wins most of what they are after (~10%
| difference).
|
| Paying 20% of what is not your responsibility to pay is still
| losing. It's just losing less.
| shmageggy wrote:
| This was my takeaway as well. So in order to not get screwed
| everytime I do business with any corporation (i.e. virtually
| constantly in the modern world), I have to go scrutinize
| contracts, meticulously log phone calls, initiate and follow up
| on arbitration procedures, etc, and still lose money in the
| process? How is that a win? Who has time for all of that? It's
| so ridiculously one-sided, yet we're so conditioned to it that
| we think we're doing alright when we're just getting screwed.
| JumpCrisscross wrote:
| > _in order to not get screwed everytime I do business with
| any corporation_
|
| This has nothing to do with corporations. If you decided to
| only do business with natural persons you'd have the same
| burden of proof.
| b3morales wrote:
| Sure, but there's still a crucial difference: the one other
| natural person has the same order of magnitude of resources
| to spend on the issue as you, instead of a multiple.
| Beltalowda wrote:
| Plus a person might apply common sense and human
| judgement from the first contact instead of following
| procedure with no power to deviate from it even if it
| makes absolutely no sense at all.
| vorpalhex wrote:
| You should read contracts and, if things go wrong, keep
| contact logs.
| TrackerFF wrote:
| In my experience, lots of companies have more or less automatic
| denial on requests. This is to filter out those that simply give
| up on step 1. Then the same companies will, like OP points out,
| offer some % in reimbursement / whatever to those that bother to
| appeal the initial denial. It's a disgusting practice, IMO - but
| what can you do?
|
| A bit OT:
|
| But ESPECIALLY the rental market - professional or private - is
| horrible on this. Before purchasing my home, I had rented 7
| different apartments over the years.
|
| No mater how thorough I'd be on washing out apartment, or how
| careful I'd be with it, they would _always_ find something - and
| claim deductions on the deposit.
|
| This worked for the first apartment I rented - after that I got
| wiser, and took pictures of everything before actually moving in.
| Better yet, with the landlord or representative as witness.
| Document everything. I even recorded the phone conversation -
| informing that the conversation would be recorded, and if that
| was a problem, we'd take everything in writing.
|
| This saved me lots of deposits. Like clockwork, I'd be informed
| that they found something - sending evidence. I'd reply back with
| my evidence, and suddenly everything's OK.
| rr808 wrote:
| In Australia and other countries rental deposits are held by a
| government office, at the end of the lease if the landlord
| wants to keep some for damages they have to prove that there is
| a problem. I think the office lives off the interest earned.
| Works great.
| marssaxman wrote:
| > It's a disgusting practice, IMO - but what can you do?
|
| Rate the expected value of all insurance services at $0, that's
| my approach. (I guess you could call that giving up on step
| zero!) Why bother doing business with people whose profit model
| consists of taking your money now so they can decline to return
| it later? The better they are at their jobs, the worse a deal
| it is for you.
| noelsusman wrote:
| The expected value of purchasing insurance is always less
| than $0. You're paying to eliminate a risk and smooth out
| your cash flow.
| mdavis6890 wrote:
| Of COURSE insurance has a negative expectation (not $0) in
| absolute terms - but this doesn't make it a bad idea! We
| don't live on expected value - we live on actual, highly
| variable outcomes. I'm happy to lose expected value to offset
| catastrophic losses for small-probability events, like early
| death, car accidents and fires.
|
| I will continue happily paying my insurance premiums, and
| ardently hope that I never get any of that money back.
|
| Of course, there may be specific types of insurance/warrantee
| programs that are a bad idea for one reason or another, but
| that's not an argument against insurance in general.
| e40 wrote:
| _> This is to filter out those that simply give up on step 1._
|
| A lot of people must give up here. I had a car totaled by a
| hit-and-run driver and the insurance company wanted me to
| settle for $10k less than the car was clearly worth. (I had
| lots of proof of this.) It took a month of me telling the
| adjuster "I'm not settling" before I got that $10k. It was the
| most infuriating customer-company relationship encounter I had
| ever had. I felt like the person was intentionally
| misunderstanding me and making false statements. I tried to get
| to their manager a few times, but they wouldn't. It was clear
| that the person's manager was in complete agreement with the
| course this situation was taking.
| FireBeyond wrote:
| Yup. When my car was totalled I had a number in mind (high
| 20s). And got a much lower number. For the record, this was
| like a 3 year old Audi A4, fully loaded.
|
| So I asked to see comps. Sure enough, all but one of the
| comps was in that ballpark, from about 3-4 under, to nearly
| 30.
|
| Except one. Which was about 140 miles away, and listed for
| $11,500. Clearly a salvage or rebuild or something (water
| damage, whatever, obviously not accurate). Dragging the
| average down like a boat anchor.
|
| "The ad doesn't say Salvage Title so it's a valid comp."
|
| They just kept repeating that like a broken record.
| JumpCrisscross wrote:
| > _what can you do?_
|
| What the author did. Take them to arbitration.
|
| If you were an idiot and opted out of arbitration you'll need
| to spend a lot of money going through the courts. If you
| didn't, you may be able to get representation on a contingency
| basis.
| matsemann wrote:
| > _In my experience, lots of companies have more or less
| automatic denial on requests._
|
| Remember I read that in a novel as a teenager, and since then
| I've always complained if I get rejected. Almost always work,
| as they then finally actually look at your situation. And if it
| doesn't work, I keep going until they realize making me whole
| will be less costly than the time I make them spend.
|
| Had to look it up, the novel was "The Rainmaker" by John
| Grisham.
| jedberg wrote:
| > after that I got wiser, and took pictures of everything
| before actually moving in. Better yet, with the landlord or
| representative as witness.
|
| I manage a property in a college town. Most of my tenants are
| first time renters just moving out of the dorms, so they've
| never learned these hard lessons before. I try to help them out
| by telling them about how they can get screwed on deposits, and
| tell them to take pictures of any damage they find and print it
| out so I can sign it.
|
| I just hope they take that lesson with them after they leave my
| place.
|
| Also I remind them that they have a right to a walk through at
| the end of the lease and never charge an item on a deposit that
| I haven't discussed with them first. I always give them a
| chance to fix it first. Usually they just say "bill me"
| (probably because it's their parents money) but sometimes they
| will fix it or they will help me fix it. It's a lot more work
| on my part, but on the flip side I'll have tenants messaging me
| a decade later thanking me for being honest and kind. So I
| guess it's all worth it.
| DANK_YACHT wrote:
| A little known fact is that rental assets depreciate in the
| eyes of the government. This is why you can deduct depreciation
| from rental property on tax returns. The corollary to this is
| that damage to those assets happen against the depreciated
| value. For instance, if there is a bathtub in the unit and it
| hasn't been replaced in many years, then the effective value of
| that tub is 0. It doesn't matter if you actually damaged it or
| not, the landlord cannot come after you for the full cost of a
| new tub.
| FireBeyond wrote:
| > No mater how thorough I'd be on washing out apartment, or how
| careful I'd be with it, they would always find something - and
| claim deductions on the deposit.
|
| I sat in a PMs office in a high rise I was moving out, waiting
| for them to take care of something.
|
| I noticed my move-out inspection report (which we were ABOUT to
| do), oddly already filled, some. "Blinds - dirty, needed
| cleaning", "Carpet - stains not removed, needed cleaning",
| about half a dozen items which according to their "costs
| incurred" ate up most of my deposit. Oddly, since I knew they
| hadn't been in the apartment recently, even without my consent,
| because I'd been packing and cleaning. I'd even brought with me
| receipts for the carpet cleaning etc.
|
| PM comes in, grabs some papers and a clipboard from her desk,
| including the form. "Let's go get started".
|
| "Oh, while I was waiting, I apologize, my eyes must have caught
| that some of the paperwork on your desk was for us, so I looked
| over at it, and saw it was already filled out for the
| inspection?"
|
| Umm, ahh, stammer, stammer. "Oh, how strange. I must have, uhh,
| photocopied a previous form without realizing it wasn't empty."
|
| Didn't make any sense on any level, but whatever. We started
| with a new form, and I made sure that none of that BS made its
| way back on.
| patwolf wrote:
| A home warranty was included with a home I purchased back when it
| was a buyers market. I did end up using it to replace an entire
| AC unit. Fortunately the process was surprisingly smooth. They
| required me to pay a few fees out of pocket, including a
| refrigerant disposal fee, which was funny because all the
| refrigerant had already leaked out. I tried to argue with them
| about that but gave up because it was a small price to pay for a
| new AC.
|
| Even though I had a good experience, I think it's better to save
| up an emergency fund for home repairs rather than rely on a
| warranty.
| reledi wrote:
| Is there a term for these denial of service tactics that many
| organisations employ?
|
| E.g. not having the authority, being the wrong person and sending
| you in another direction, putting the onus on you to move things
| forward, not responding to emails and calls, ignoring questions
| and selectively answering, not making contact details or policies
| available, and so on.
| lolpython wrote:
| The terms that come to mind are stonewalling and kafkaesque.
| not2b wrote:
| The "don't get a home warranty" advice doesn't always apply. When
| buying a house that you know has issues, a warranty that covers
| issues found in the first year almost always pays for itself, it
| has the last two times we bought a house. I wouldn't get a
| longer-term deal though.
| michaelcampbell wrote:
| FWIW, we've had a home warrantee for... 17 years, and it has been
| a positive ROI every year. We're dropping it now because the
| service has gone to shit being no longer maintained in my country
| and all they do is read scripts to you.
| bgribble wrote:
| > Remember, I purposely withheld detail and evidence in my
| filing, and yet I was offered a quick settlement. I would love to
| see the math that goes into this strategy.
|
| I've never done arbitration, but I did pursue legal action
| against a contractor that defrauded me and I think the logic is
| basically the same.
|
| Lawyers are constantly evaluating the cost (to their client) of
| further pursuing a claim vs the likelihood of succeeding. They
| know how much it will cost in time if it goes all the way to
| litigation/arbitration, and they have a fair idea what the
| outcome will be, but it's uncertain. They are always going to try
| to settle long before the end-game unless they are trying to make
| a point and it's worth wasting a bunch of money on.
|
| In my case, my lawyer was very convinced that they were likely to
| settle for an amount basically up to about 75% of the amount it
| would cost to litigate. My claim was solid (he DID defraud me)
| but there was some possibility that a trial would find otherwise,
| so it was better for them to settle up to the point that it
| became worthwhile to roll the dice.
|
| The emails between their lawyer and mine were about details of
| the dispute, not about the financial calculation I outline above,
| but that was just window dressing; the real decisions were made
| based on how much it would cost to litigate vs how much they
| would pay to settle.
|
| The only place the facts of the fraud even came into it were as
| part of the calculation of how likely we were to prevail in
| court, but it was not at all precise; more like "given the facts,
| we are pretty likely to win but not certain".
| JumpCrisscross wrote:
| > _I did pursue legal action against a contractor that
| defrauded me and I think the logic is basically the same_
|
| For two infinitely-wealthy and virtually-sovereign parties,
| yes. The big difference is in litigation you can bleed your
| opponent dry, _e.g._ by piling on jurisdictions and deploying
| delay tactics. Thus, in addition to predicting outcomes, you
| 're also judging the point at which the other party (a) runs
| out of money or (b) gets fired.
|
| In arbitration, this doesn't work. It's a vastly more even
| playing field for consumers, who tend to have less money than
| the companies they're suing and less downside in the case
| outcome (money damages versus _e.g._ having been sexually
| harassed).
|
| > _emails between their lawyer and mine were about details of
| the dispute, not about the financial calculation I outline
| above, but that was just window dressing; the real decisions
| were made based on how much it would cost to litigate vs how
| much they would pay to settle_
|
| Your lawyer wasn't communicating window dressing. Case details
| resolve to litigation outcomes.
| jsjohns2 wrote:
| > In arbitration, this doesn't work. It's a vastly more even
| playing field for consumers, who tend to have less money than
| the companies they're suing and less downside in the case
| outcome (money damages versus e.g. having been sexually
| harassed).
|
| I dunno, not my personal experience. I took a large bank to
| arbitration over a low value credit reporting dispute.
| Offered to "settle" several times for nothing more than a fix
| to my credit report, which would have cost the bank $0.
|
| The bank refused and so we went all the way to a final
| judgement.
|
| The arbitration dragged out over 16 months. 4 days of
| hearings in which multiple attorneys and witnesses were
| present on the bank's side. Numerous conference calls, 800
| emails, 250 pages of legal briefs, 1000+ pages of exhibits,
| discovery, etc. I would not be surprised if the total outlay
| eclipsed half a million for them.
| Aeolun wrote:
| What I think is most surprising in this whole thing is that the
| company had a clause somewhere in the contract that _they_ could
| break at all.
|
| Normally these things are written so that it's impossible for the
| company to do anything wrong (at least all the ones I've ever
| read).
| bbarnett wrote:
| We should also bear in mind, outside of what you're saying, the
| flip side.
|
| I have seen so many contracts with unenforceable clauses, made
| up gibberish, illegal demands. Then a fancy pants "if any part
| of this contract is unenforceable, the rest shall remain in
| effect" or some such.
|
| Two things here.
|
| First is? While I have seen courts toss the whole contract
| regardless, mostly because key invalidated clauses unbalanced
| the contract, I'd like to see this legislatively made illegal.
| Why?
|
| Because second thing is, I've seen companies write contracts
| knowing some clauses are unenforcable, but putting them there
| to scare, to intimidate.
|
| Literally, it is an attempt to play "their game". Especially
| with ridiculous terms of service, eg, not a real contract in
| most parts of the world.
|
| So don't play their game. Don't presume the contract is valid,
| or legal, especially when the balance of power is unequal.
| maccard wrote:
| > Because second thing is, I've seen companies write
| contracts knowing some clauses are unenforcable, but putting
| them there to scare, to intimidate.
|
| "It is better that ten guilty persons escape than that one
| innocent suffer". We should _definitely_ err on the side of
| leniency on this. If my employment contract isn't watertight
| because of a law change, or a discrepency in an unrelated
| clause, should my employer be able to renege on my pay
| because the contract is invalid?
| bbarnett wrote:
| This is why we have courts, and why a contract is never
| examined in isolation.
|
| An example, intent. If there is a 20 email long chain,
| discussing a clause in a contract, that counts too. What
| was the intent of both parties?
|
| And don't let clauses such as "this contract is in whole
| the agreement between all parties" deter, because courts
| don't care when establishing intent.
|
| So, what was the intent of the contract? Was an offer
| proffered, then follow by contract? What was the intent of
| the offer?
|
| Courts look at invalidated clauses, and then attempt to
| rebalance the contract.
|
| These clauses are just scare tactics, and have been
| happening since Rome, where most of our laws originate...
|
| I have seen so many lawyers argue "might as well put it in,
| can't hurt!".
|
| Sometimes the best contract is a one liner scribbled on a
| napkin. All this excess is counter to the public good.
| inetknght wrote:
| > _If there is a 20 email long chain, discussing a clause
| in a contract, that counts too. What was the intent of
| both parties?_
|
| What if the contract includes a statement: "this
| agreement consititute the entire agreement between the
| parties and supersedes, merges, and replaces all prior
| oral or written agreements, negotiations, offers,
| representations, etc. with respect to the subject matter.
| No course of dealing between the parties, no usage of
| trade, or outside evidence of any nature shall be used to
| modify, interpret, or supplement blah blahb lahblhbjajk"
|
| Yeah that 20 email chain? The contract specifically says
| it can't be included in the agreement. Bringing that up
| was a fun conversation when negotiating the contract...
| bbarnett wrote:
| 1) What contracts say, and what is allowed are not the
| same thing.
|
| 2) Context counts.
|
| Contracts are interpreted documents. What both parties
| meant in clause 1.3.1, must be interpreted, to be
| enforced by a court.
|
| A 20 long email chain provides context. What did the
| parties really mean, when they signed?
| maccard wrote:
| > This is why we have courts, and why a contract is never
| examined in isolation.
|
| So are you suggesting that when considering the validity
| of a contract, externalities should be considered (e.g.
| the 20 email chain), but the actual document that was
| signed should not be considered?
| bbarnett wrote:
| I suggested no such thing.
|
| What I effectively did say, is that contracts exist in
| context. That context counts.
|
| See my other reply.
| Aeolun wrote:
| > So don't play their game. Don't presume the contract is
| valid, or legal, especially when the balance of power is
| unequal.
|
| I don't presume this at all, but saying 'this clause is
| unenforceable because x, y and z' is much more work than
| saying, 'look, your own contract says you failed to uphold
| your end of the deal'.
|
| Mostly because you likely have to search through tons of laws
| to find x, y and z. As convoluted as contract language is, a
| whole legal handbook is much more so.
| bbarnett wrote:
| _a whole legal handbook is much more so._
|
| Yes, and sadly decluttering and simplifying law isn't
| trivial, or perhaps even doable.
| irrational wrote:
| > 4) Don't get a home warranty.
|
| But, what about an extended car warranty?
| jwmoz wrote:
| What is the UK equivalent of this?
|
| Last year a phone company wrongfully added a credit to my account
| for 900gbp which I noticed had been there for a while, claiming I
| owed for a phone. It was actually an identity fraud issue. I had
| forgotten when it had happened and never checked my credit
| scores, but then during the year needed credit and was getting
| declined so noticed on checking.
|
| I contacted them and they flat out refused to remove it
| essentially implying I was lying. It happened with multiple phone
| companies at the time and I contacted them back then and they
| removed it apart from Three. I even contacted Vodafone for my
| records and they refused to help.
|
| I escalated it multiple avenues such as credit agencies and
| ombudsman and none could help so ultimately was stuck with this
| charge. I contacted Three, the managers and CEO and was ignored.
|
| So I had no other options (perhaps legal route which I know
| nothing about) and had to let the credit on the account close
| after 6 years.
|
| The time spent on it and frustration was awful.
| ddeck wrote:
| I mentioned the CEDR (Centre for Effective Dispute Resolution)
| elsewhere on this thread. I believe they are UK based and the
| company in question needs to be covered, but a quick glance
| shows Sky, Vodafone, Virgin etc. listed.
|
| Disclaimer: I have no experience with/knowledge of them aside
| from my one experience.
|
| https://www.cedr.com/consumer/cisas/
| andjd wrote:
| So, since the author was only asking for a few thousand dollars,
| it's probably not worth the company fighting it -- it's just a
| matter of them quickly finding out how much money they have to
| give you to make you go away. The exact series of events would
| probably have occurred if he had filed in small claims court.
| Even though the company could likely win a motion to compel
| arbitration, it's not worth it to them.
|
| Arbitration may be cheaper and more informal than the courts, but
| that doesn't mean that defending against this type of claim
| economical. On the whole, courts aren't that expensive, it's the
| cost of lawyers and their time where the costs pile up. Small-
| claims courts also often have simpler and more streamlined
| procedures just like arbitration does. And the Judge's salary is
| footed by the taxpayer.
|
| The author's conclusion is that arbitration isn't all that bad
| because it worked out OK for him this time. But this ignores how
| arbitration puts the thumb on the scale in favor of the company
| when real money is on the table. Just to name a few: *
| Arbitration usually requires secrecy regardless of the outcome.
| This guarantees that the company will not face a repetitional hit
| even if they lose, and it also means that your case has no
| precedental value for others who were similarly wronged. * The
| process often places strict limitations on discovery, which can
| make it impossible for a prove your case. * The agreements
| usually prohibit class-actions, which prevents redress for
| widespread but low value abuses.
|
| Sometimes, the less-formal nature of arbitration can be a good
| thing. But if it's truly balanced and better for both parties, it
| should be something that can be opted into after the dispute
| arises. The fact that there have been so many high-profile
| disputes about arbitration that have been taken to the Supreme
| Court is pretty solid evidence that companies see the ability to
| compel their customers into arbitration as exceptionally
| important to their bottom line.
| b3morales wrote:
| > I also pointed out there was no out-clause in the contract for
| computer system failures
|
| A good catch. I expect this oversight from the company's point of
| view has been remedied in the contract for new customers, going
| forward.
| CPLX wrote:
| By the way it's basically never true that you _have_ to start
| with arbitration. You can pretty much always just sue them in a
| regular local court. As a general rule courts are general
| jurisdiction venues that can hear all controversies.
|
| Then _they_ would have to affirmatively file a "motion to compel
| arbitration" in which they appear in court and argue that the
| contract mandates it.
|
| Typically they'd win that motion but then you'd just start
| arbitration. Since that requires them to show up with a lawyer by
| that point you'd probably be able to just negotiate then. And if
| they fail to ask for arbitration in a timely way the case may
| proceed.
| thathndude wrote:
| In this case, OP almost definitely could have sued In court,
| and the company couldn't stop them.
|
| AAA arbitration has a rule that says if your claim can be filed
| in small claims court (typically 5k or less) then you can force
| the company into small claims court, and they can't force you
| to arbitrate.
| projektfu wrote:
| That's really good to know. It's certainly not made clear by
| the mandatory arbitration language.
| gambiting wrote:
| Filing an actual case might be more work and not even that much
| cheaper. If the arbitration process is $200 and easy to file
| online, then that sounds preferable.
| bmurray7jhu wrote:
| For consumer arbitration, always try to choose JAMS instead of
| AAA. JAMS arbitrators tend to charge much more than AAA
| arbitrators. Many JAMS arbitrators have judicial experience, some
| even on the federal bench.
|
| In my case, all of the arbitrators proposed by JAMS would have
| charged over $1000 per hour to resolve my case. Per the contract,
| all arbitration costs would have been borne by the defendant, so
| the company was eager to settle and avoid a huge arbitration
| bill.
| thathndude wrote:
| This guy arbitrates.
|
| I've done something like 500+ consumer arbitrations in the last
| 5 years. JAMS tends to result in better outcomes for the
| consumers.
|
| There's all sorts of reasons for this. If nothing else, JAMS
| arbitrators tend to be retired judges with experience in the
| adjudication role.
|
| More often than not, AAA arbitrators are just attorneys with
| 10+ years of experience. And, well, let's just say 10 years of
| experience as an attorney does not automatically make a person
| competent.
| jacquesm wrote:
| "And, well, let's just say 10 years of experience as an
| attorney does not automatically make a person competent."
|
| Everybody knows that what makes an attorney competent is
| their social media presence!
| thathndude wrote:
| Better Call Saul!
| sylware wrote:
| I am not in the same country, but indeed, I have to go legal to
| enforce noscript/basic (x)html for the online services of my
| administration.
|
| In my case, asking nicely, like in this case, was a huge fail.
| ncmncm wrote:
| Their gross negligence and subsequent stonewalling should have
| earned them a penalty, not a 20% bonus.
| tiahura wrote:
| As an attorney, I hope everyone reads this. Contrary to
| prevailing sentiment, arbitration is not de facto justice denied.
| In my experience, if you have a weak case, arbitration often
| results in a better outcome than a jury trial. Juries can be
| quite skeptical and judgmental. Arbitrators tend to be split-the-
| baby oriented.
| thathndude wrote:
| Attorney as well, and agreed.
|
| To be sure, it's not the rainbows and butterflies solution that
| the businesses would like you to believe it is. But it's also
| not the insane, unending trampling of rights that anti-
| arbitration folks claim it is.
| jccalhoun wrote:
| >hot water heater
|
| Why is the author heating hot water? (sorry. That's a pet peeve
| my dad drove into my head)
| greenshackle2 wrote:
| What would you call it then? Water heater is ambiguous. Could
| be a pool heater, a central heat heater, etc. It's perfectly
| clear what they mean.
| mig39 wrote:
| "Boiler"
| Kerrick wrote:
| To keep it hot. If you don't heat your hot water, it becomes
| room temperature water.
| thathndude wrote:
| Arbitration consumer protection attorney here! Nice work, and
| nice write up.
|
| If nothing else, I hope folks will run with your first point. Far
| too many people are scared of arbitration, and it can be a really
| powerful tool for situations like this. It's fairly accessible
| and straightforward, especially for folks in the HN crowd.
|
| One pointer for other folks in the future is to make sure you
| look into your state's specific consumer protection law.
| (Sometimes called UDAP law or deceptive practices act.) Often
| times, these laws will allow you to recover more than just your
| out of pocket damages to punish companies that are deceptive.
|
| One other way to "enlarge the pie" in situations like this is to
| hire an attorney. I know, it sounds like I'm shilling for my
| peers, but hear me out. This same UDAP consumer protection laws
| let you recover attorneys' fees as part of a judgment/win. If
| you're not an attorney, you simply can't seek those.
|
| So let's say your claim is $2,000. Under those laws, maybe you
| can "treble" (triple) your damages if you win. So now your best
| day is $6,000. And the company knows it.
|
| But if that same law says you can get attorneys' fees too, the
| company knows that they could be facing a 50k+ judgment at the
| end (almost entirely comprising attorneys' fees), and then that
| often incentivizes earlier, higher settlements. My involvement in
| cases, and the threat of attorneys' fees often results in higher
| settlements than my client would get on their "best day," and
| even after paying out my portion. (I typically do these on
| contingency -- I don't get paid unless you get paid).
|
| Lastly, let's just say I've done an arbitration or two with a
| home warranty company. They don't make money by paying out
| claims!
| dahart wrote:
| > One other way to "enlarge the pie" in situations like this is
| to hire an attorney.
|
| Your comments here are incredibly enlightening, thank you for
| sharing! Can you speak to how to find a good attorney for this
| kind of thing, or really for any legal needs? Like where to go
| to find people willing to do arbitration and maybe how to
| determine if they're good. I've hired a lawyer in the past for
| some employment contract work, and it was worth every penny,
| but found out it was rather difficult to find someone who could
| help. I had to cold call a lot of people who weren't interested
| or said they weren't qualified. It felt like the lawyers or
| firms I spoke to were mostly looking for a longer term
| relationship.
| thathndude wrote:
| Happy to be of help.
|
| It's very challenging finding a lawyer in a lot of these
| consumer protection spaces, because, for a whole host of
| reasons, there's not a lot of money here.
|
| Having said that, one piece of advice I always like to give
| when looking for any professional is to use your network. If
| you have people in your network you trust, use them as a
| starting point. So, for example, I don't do criminal law.
| But, as a lawyer, I know lots of criminal lawyers (insert
| joke), and I also have a well-tuned BS detector when talking
| with other lawyers. So even though I can't help you, you'd be
| smart to reach out to me because I can help you find the
| right person much more effectively. And if I can't, then I
| reach out to a criminal law attorney I know, link you up, and
| let that person make a recommendation.
|
| In short, use your network to leverage experience and
| knowledge to zero in on a good attorney. It will probably
| take a few degrees of connection, but if the chain is solid,
| you should get a good end result.
|
| For example, I recently had a client who needed a criminal
| law attorney in a state where I don't practice. So you have
| two issues: one, I don't know that legal community, and two,
| I don't do criminal law. But, I reached out in my network to
| a prosecutor in New York. Now this prosecutor can't represent
| my client, but now I have a criminal law attorney in the
| right state, and so his network is going to help. My buddy
| (lawyer 2) reaches out to his network, and one of his trusted
| contacts says "call lawyer 3)." My buddy (lawyer 2) doesn't
| know lawyer 3, but he trusts his network and the referrer.
| Long story short, my client ends up represented by lawyer 3,
| and well taken care of.
| oneoff786 wrote:
| Do you not feel it's a problem to be charging 48k to litigate a
| 2k issue regardless of the chance to recoup it?
| jacquesm wrote:
| Do you not feel it's a problem to be charging $50k for a
| piece of software on a $.20 medium?
| IncRnd wrote:
| That software didn't magically appear. The development had
| a cost. The software itself has a value that purchasers
| provide to the seller. You aren't paying for a medium with
| some random bits.
| icelancer wrote:
| Huh. Sounds like the attorney's time, too.
| IncRnd wrote:
| Yep, very much so!
| pmoriarty wrote:
| Would the software itself be any more valuable if it was
| engraved on solid gold?
|
| No. It doesn't really matter what medium the software is
| on. Its value is independent of that.
| oneoff786 wrote:
| I don't understand this question. What's a 20 cent medium?
| abstractbeliefs wrote:
| The CD the software is sold on. It's like the old "why
| did I pay you $100 to turn a valve?"
|
| You're not paying for the CD, the valve turning, etc,
| you're paying off the time built for the expertise and
| background engineering.
| unsupp0rted wrote:
| The $100 valve-turning story never quite worked for me
| and I finally figured out why.
|
| It's not that you're paying him $100 for the expertise to
| know which valve to turn, it's that there's no one
| standing next to him who could reliably for $50 or even
| for $99 know which valve to turn.
|
| You're not paying for his expertise so much as for the
| scarcity of his expertise.
| willcipriano wrote:
| Also availability, he came running when you had a problem
| because he stands to make $100, offer him $10 and maybe
| he can pencil you in next month.
| kofejnik wrote:
| Yes, the guild of valve-turners ensures it
| oneoff786 wrote:
| Do people still write software for discs outside of
| console games? I don't think this comeback is very clever
| either way. Being paid $100 for a product worth $1000 in
| total sales is pretty reasonable. Being paid $50k to
| resolve a $2k seems to be a very unusual outcome. It just
| raises the stakes of the case by 25x.
|
| It seems very unreasonable that a losing party could need
| to cover so much from their opponents end especially as
| they get no say in the total stakes.
|
| If it was you paying $50k to your lawyer regardless of
| whether or not you won, sure, that's just your choice.
| This is a $50k extra being thrown at your opponent and
| there's no incentive to be reasonable about it because it
| sounds like your own client doesn't get hit with it. Idk
| if it applies in this context but if it goes both ways
| then you've got a prisoners dilemma. Spending more on
| lawyers increases the probability of winning, but also
| increases the total pot of lawyer money. That's so fucked
| up.
|
| I would vote for you're liable for at mode the amount you
| spent on lawyers personally. If they do 50k on a 2k issue
| and you don't even get a lawyer, you may lose 2k but they
| lose 50k. Incentives to escalate lawyer fees sounds
| stupid as shit to society.
| ClumsyPilot wrote:
| > Being paid $50k to resolve a $2k seems to be a very
| unusual outcome. It just raises the stakes of the case by
| 25x.
|
| You are paying for protection of consumer rights, not to
| be lied to and not to be swindled. What are those rights
| worth to you?
|
| As a company you always have a chance to come to amicable
| agreement with the customer before the lawyers got
| involved. Every time you tell a customer to piss off you
| take the risk that they might take you to court.
| oneoff786 wrote:
| As explained elsewhere, the fees are contingent. You're
| not paying the 50k at all, unless something unexpected
| happens, in which case you're suddenly paying 50k which
| you were told wasn't going to be your problem.
|
| But it's really bad that it's ok for lawyers to basically
| encourage you to rack up contingent lawyer expenses. It's
| just a toxic system.
| HWR_14 wrote:
| So what's your solution so that large enough companies
| that they have lawyers on retainer don't just ignore any
| $10,000 or less liability, if you in fact think that a 5x
| multiplier in lawyers fees is excessive?
| jacquesm wrote:
| You missed the contingency angle.
| oneoff786 wrote:
| Not in the post you're responding to. In some others,
| yes.
| jacquesm wrote:
| It's fairly standard for this kind of lawsuit. Precisely
| because of what the GGP stated, it wouldn't make sense
| otherwise.
| supermatt wrote:
| https://www.youtube.com/watch?v=Q6RK4479XD8 ?
| cycomanic wrote:
| I think he was referring to a USB stick. The point of the
| question is that you pay for the work not for the single
| piece of outcome.
| thathndude wrote:
| This is the way the justice system is set up. I don't really
| dig into whether this is a systemic problem.
|
| I'm not charging my client 48k. I'm recording my time spent
| working the case. If I have to spend 100 hours working on a
| case, and my hourly rate is $500 an hour, and we win, then
| the attorneys' fee award should be $50,000, regardless of
| whether the claim is $100 or $100,000.
|
| This is an important component of civil rights litigation.
| Often times does claims have small value (in terms of
| damages). But we want to incentivize competent lawyering, and
| so, if you prevail, you get an award of attorneys' fees.
|
| The same is true in this context. If you don't have a
| provision like that, then consumers are left without
| recourse. As it is, there are very few lawyers who practice
| in this area as is.
| [deleted]
| sudden_dystopia wrote:
| But those profits that you are generating are ultimately
| passed onto the consumer. They just don't materialize out
| of thin air on a companies balance sheet.
|
| Just take a look at what is going on in Florida with
| litigious , shady roofing contractors, they have nearly
| collapsed the homeowners insurance market.
| tristor wrote:
| The flip side of this is that the sometimes the judge will
| not award you attorney's fees even though it's a reasonable
| ask. I've sued companies three times in my life, and only
| one out of those three times was I awarded attorney's fees,
| even though it was requested all of those times.
|
| Not to go into too deep of details, I'll also say if you
| ever do business across an international border, even with
| a company that is headquartered within walking distance of
| where you live, they /will/ find a way to weasel out of
| responsibility, even if they have a signed contract saying
| they're responsible. Once any sort of business crosses an
| international border, the only way you can hold a multi-
| national company responsible is if you represent a
| government that is an ally of the US and can bring to bear
| full military force, otherwise they /will/ screw you over.
|
| In fact, the primary component of my debt post-college was
| paying back attorney's fees for cases I had won (or had won
| / appealed several times until I settled because I could no
| longer afford to pay for attorneys).
|
| Personally, I am a major supporter of the idea we should
| have it be written into law that the party that doesn't
| prevail is responsible for attorney's fees for both parties
| automatically. That said, I also understand that this could
| be disastrous for smaller entities suing larger entities if
| they lose (to which I mostly say... don't file frivolous
| suits).
| thathndude wrote:
| Lots of good thoughts here. All I'll say/add is that
| there is a wide chasm between a losing suit and frivolous
| suit.
|
| There are legal issues that I will argue the exact same
| twice, and, depending on the judge, win one and lose one.
| If I have to pay for the attorneys fees of the other side
| for the one I lost, I'll be filing 0. No justice for
| anyone.
| oneoff786 wrote:
| Ok but if you lose, your client gets $0 and owes you $50k.
| No? And if you settle?
| jacquesm wrote:
| Contingency based, so no result = no charge.
| rocqua wrote:
| He works on contigency. That is a 'no cure no pay'
| system.
| thathndude wrote:
| No. It's a contingency fee. My client isn't paying me
| hourly. If we lose, we both get $0. This is how lots and
| lots of plaintiff litigation works, if you're not
| familiar. Those guys advertising for car accidents on
| billboards are not charging you an hourly rate.
|
| As plaintiff's attorneys, we take cases we believe in, we
| spend our money to prosecute the case (I almost always
| pay that $200 AAA filing fee for my clients), and then we
| get paid out on the back end. In my personal opinion,
| it's a much more appropriate compensation method, because
| it puts our interests firmly in line.
|
| Based on the very limited understanding I have of this
| case, if we settle, I'm targeting a 10k settlement and
| taking a percentage of that (a percentage smaller than
| the client), and so my client is getting 5k+.
| padheyam wrote:
| We have a system where lawyers cannot charge contingency
| fees. I guess the rationale is founded upon lawyers being
| perceived as 'officers of court', and the expectation of
| ethical conduct. When money is a factor, boundaries of
| ethical conduct tend to be hazy. while you owe a duty to
| the client, you also owe certain duties to the
| court/tribunal and even to the adversaries- including
| duty of fairness.
|
| It is interesting to note that while some of the U.S.
| rules of professional conduct states that a lawyer shall
| represent a client "zealously", such a requirement is
| missing in our code of conduct rules.
| gbronner wrote:
| It would be far more reasonable if you had to pay the
| other side's fees if you lost
| waqf wrote:
| Many jurisdictions outside the US do (much more readily)
| award fees so that the loser has to pay the winner's
| legal costs.
|
| The disadvantage of it is that if you're just some guy
| against a BigCo, then instead of risking having to pay
| your own $50k lawyer bill you're potentially risking
| having to pay their $5M lawyer bill.
| jdsully wrote:
| Fees can be capped by offering a settlement. The court
| will not allow you to ignore a reasonable settlement and
| then charge fees for work done after. "Reasonable" is
| defined by a better or similar outcome to what you got in
| the end by continuing litigation.
| swores wrote:
| What about capping fees at whatever the party having to
| pay spent on their legal team, so the party choosing to
| pay more expensive lawyers for more hours is taking the
| risk on that increased cost vs. the other, and the less
| you spend on your side the less you're liable to pay if
| you lose?
| oneoff786 wrote:
| Why don't you charge 1,000 an hour then?
| phonon wrote:
| Courts do lodestar calculations to determine if the
| hourly billing rates/number of hours were appropriate.
| thathndude wrote:
| don't charge $1000 an hour, because, ultimately the fee
| charged must be "reasonable." Now, as a boy who grew up
| lower middle class, the idea that an hour of my time is
| worth $500 or more as part of these calculations is
| something that I still struggle with. But my rates are in
| line with my peers, what the system considers to be a
| reasonable rate, and consistent with my experience and
| education. But at $1000 an hour, most judges will call
| BS. Again, I didn't make the system, I'm just surviving
| in it
| paulgb wrote:
| Since you work on contingency, the $500/hr is also
| compensating you for the risk that it will turn out to be
| $0/hr, right? Or do you pretty reliably get to a
| settlement that involves your full fee being paid?
| [deleted]
| giantg2 wrote:
| Well... I consulted a civil rights attorney about some
| rights violations. I was told that if the damages are
| really small, then the federal judges don't look favorably
| on reimbursing attorney fees.
|
| On a side note, my experiences with the legal system is
| that it's a complete shit show full of incompetent and even
| crooked players (DA, police, magistrates, judges). If for
| no other reason, you have to hire a lawyer because a lawyer
| can more readily detect the incompetence, and the
| incompetent people are more likely to accept stuff coming
| from a credentialed person.
| thathndude wrote:
| There is some truth to this. The courts are becoming
| hesitant to make the massive attorneys fees awards that
| were more commonplace in the past (1,000 damages and
| 200,000 in fees).
|
| But, generally speaking, everyone is still on board for
| realizing that at the end of the day the attorneys fees
| award will probably be the biggest part of the award.
|
| The fact is, as soon as judges stop giving out those
| attorneys fees awards, you're going to stop having
| attorneys pursuing these civil rights cases. That's the
| bottom line.
|
| As a legal system, and as a society, we have to ask
| ourselves whether these civil rights violations are a
| priority or concern or not.
| jacquesm wrote:
| True, but US legal fees are quite literally off the scale
| compared to the rest of the world. There isn't a country
| where lawyers siphon off so much, individually and
| collectively.
| thesuitonym wrote:
| Do you have any numbers to back this up? $500/hour
| doesn't seem that insane to me for an expert's time.
| mrtranscendence wrote:
| I don't know. I'm an expert (at some things, anyway), and
| I make $68 an hour. Maybe an attorney isn't billing 100%
| of the time, but if they billed six hours a week they'd
| make more than I do. That feels like a lot of money.
| thesuitonym wrote:
| I assume that's your wage from an employer, and that's a
| totally different number. If that's your freelance fee,
| you are seriously being underpaid. After paying taxes,
| fees, insurance (both personal and business), anything
| less than $200/hour for skilled labor (not even expert
| professional) is a steal.
| mrtranscendence wrote:
| That's a good point; I'm not a contractor. I doubt my
| total compensation comes anywhere close to $200 an hour,
| though. When I _was_ briefly a contractor last year I
| believe the total amount paid from the contractee to the
| contracting firm was closer to $150 an hour.
|
| I think my pay is normal for my title ("ML engineer"),
| location (Cincinnati), and experience (master's, 10 years
| in the workforce). Though I wouldn't turn down a
| substantial pay raise ...
| giantg2 wrote:
| A few years ago, we were billing at $98/hr total comp.
| This was for employees at the company for total cost to
| the company.
| jacquesm wrote:
| Yes I do. I've had some lawsuits in the USA, some in
| Europe and the cost of the US lawsuits absolutely dwarfed
| the ones in Europe.
|
| It's not that $500/hour isn't 'insane' (it actually is,
| but that goes for the profession as a whole), it's how
| much time ends up being billed for a case and US lawyers
| really are experts at running out the clock, and working
| the system to the point where the legal fees themselves
| become a weapon in the case (see the excellent examples
| in this thread illustrating that).
| giantg2 wrote:
| Seems high to me. I don't pay that much for a doctor, or
| a plumber, mechanic, etc.
| bodhiandphysics wrote:
| You almost certainly pay far more than 68 an hour for a
| doctor! (How long are you actually with the doctor?).
| Plumbers and mechanics are paid at a significantly lower
| rate than doctors and lawyers!
| Sohcahtoa82 wrote:
| Where did that $68/hr number come from?
| bodhiandphysics wrote:
| I have no idea? Brain fart. doctors also get paid by the
| procedure, so charge less for simple office visits (it's
| complicated because of how medical billing works)
| giantg2 wrote:
| The question was $500/hr. A 30 minute appointment is
| about $150. Still less than $500/hr with considerably
| more overhead.
| gbronner wrote:
| The goal of obtaining justice for the client is rather
| different than the goal of maximizing legal fees
| fn-mote wrote:
| The goal is also to create an incentive for the company
| to behave appropriately (legally) in the future. A few
| low-cost losses is not going to do that.
|
| The goal is social justice, not just individual justice.
| gbronner wrote:
| The goal is to produce a relatively low-cost way to
| resolve reasonable disputes while eliminating
| opportunities for fraud and bad actors.
|
| A formal written complaint prior to filing for abitration
| might have been equally effective. Incentivizing
| escalation simply drives up the costs of resolving
| disputes.
| TheOtherHobbes wrote:
| High cost losses won't necessarily do that either.
|
| The fallacy is that these transactions have to be
| financial.
|
| They don't. Any number of other remedies - from jail time
| downwards - would provide a stronger deterrent.
|
| Without strong deterrents and the threat of even more
| expensive class action - possibly leading to personal
| ruin - individual losses can be written off as a cost of
| doing business.
|
| Generally the sanctions for bad behaviour are far too
| light, and strongly biased towards business owners over
| customers/victims.
|
| The Sackler/Purdue story is a perfect example.
| Inconceivable levels of harm were caused - far more harm
| than a high profile terrorist attack. But the Sackler
| family is still worth billions. And no one is going to
| jail.
| giantg2 wrote:
| Generally agree. Companies can mitigate the costs through
| insurances and just passing on costs to customers.
| giantg2 wrote:
| "As a legal system, and as a society, we have to ask
| ourselves whether these civil rights violations are a
| priority or concern or not."
|
| For "minor" violations, they are not a priority at all.
| At least that's my experience and what I was told by that
| lawyer as well. If nobody in the system will enforce or
| defend your rights, then do you really even have those
| rights?
| JumpCrisscross wrote:
| > _If nobody in the system will enforce or defend your
| rights, then do you really even have those rights?_
|
| Nobody is a stretch. They can be enforced, just at great
| expense. So some people can defend those rights; others
| can't.
|
| We can't extend this to the latter not having the rights
| because people intervene on behalf of others' legal cases
| all the time, there are non-profits set up to do this (
| _e.g._ the ACLU and EFF) and some wealthy retired
| lawyers' pass times.
| giantg2 wrote:
| The police don't, the DA doesn't, the judges don't - they
| are the main actors in the system. The civil rights
| attorneys and ACLU only take on the biggest issues due to
| constrained resources. Same with the DOJ Civil rights
| division.
| JumpCrisscross wrote:
| > _police don 't, the DA doesn't, the judges don't - they
| are the main actors in the system_
|
| Most civil rights violations aren't criminal offences. It
| literally isn't the police or DA's job.
| giantg2 wrote:
| Supposedly their job is to seek justice. Trampling people
| right, even if civil offenses, is something they aren't
| supposed to do. In fact it's their job to not violate
| those rights and take steps to mitigate their impact if
| they do occur. Violating those rights can undermine any
| criminal case they're working on.
| babelfish wrote:
| Philosophically, sure. But legally, not at all.
| giantg2 wrote:
| "But legally, not at all."
|
| Color of law violations...
| babelfish wrote:
| Are you an attorney with experience with color of law
| violations, or just a citizen with an idea of what
| "should be correct" in a court of law? The American
| justice system is extremely convoluted. It's already been
| explicitly explained to you that "Most civil rights
| violations aren't criminal offences. It literally isn't
| the police or DA's job". If you think there is a chance
| of changing this through "color of law" violations, I
| highly encourage you to seek counsel and pursue it - it
| would be a massive win! But, any lawyer worth their salt
| would tell you that it would be an impossible case and
| that you have a massive misunderstanding of how the
| justice system works.
| giantg2 wrote:
| You're completely misunderstanding the conversation here.
|
| Did you see the quote about "legally, not at all"? This
| is easily identified as false. There are criminal charges
| in at least 4% of civil rights cases.
|
| On top of that, we aren't just talking about charging
| some. We're talking about the idea that protection of
| civil rights is part of the job for police and
| prosecutors. This is also easy to prove. Police are
| required to Miranda-ize before interrogation, the agency
| they work for is required to investigate IAD complaints
| without being hostile to the complainant, etc.
| Prosecutors are required to maintain Guiglio lists,
| follow Brady for exculpatory evidence, etc. These are
| clearly defined examples of where the actors are in fact
| legally required to take steps to protect one's civil
| rights.
|
| Do they sometimes violate these? Sure. The point is that
| it is in fact their job to ensure they are not violating
| people's civil rights. The reason they get away with it
| is that there's no real oversight, and even the civil
| cases are overseen by judges who are also part of the
| system and inevitably have biases to support the other
| members of that system.
| DarylZero wrote:
| That's just describing the problem.
| avar wrote:
| > This is the way the justice system is set up [...] we
| want to incentivize competent lawyering [...].
|
| Except as you yourself point out upthread it's not really
| an incentive for competent lawyering per-se, rather it's an
| incentive for costly lawyering.
|
| I.e. a reason for why someone might retain your services is
| partly or entirely because it gives the defendant a greater
| incentive to settle.
| thathndude wrote:
| I mean, if the company thinks the consumer's lawyer is a
| clown, then they're going to assign a probability of
| having to pay those attorney's fees at or near zero. Then
| you're back to them valuing the case lower.
|
| But I also get/agree with your point. Please don't read
| any of my comments here as an impassioned defense of
| lawyers or the legal system in general. Just, generally,
| having a competent lawyer, can drive better outcomes in
| these cases.
| jacquesm wrote:
| To illustrate: I had a spat with a big dutch telco
| provider for a 6 figure sum, they gave me the runaround
| and 'what are you going to do, we're big and you're
| small' until they got a letter from one of the largest
| legal offices in NL and they folded on the spot and paid
| up.
|
| Better lawyers really do drive better outcomes. If the
| other party is worth suing (a calculus that many people
| seem to skip).
| mellavora wrote:
| Well, an incentive for costly lawyering might translate
| into an incentive for competent people to go into the
| profession, which does incentivize competent lawyering.
|
| Also, since the counterparty is basically making a
| financial decision (rather than a moral decision), costly
| lawyering is competent. The price is part of the service.
| TheOtherHobbes wrote:
| It incentivizes lawyers who prefer expensive lawyering.
|
| Competence is an orthogonal question.
|
| Lawyers are basically mercenaries engaged in trial by
| combat, abstracted to an exchange of relevant facts and
| opinions.
|
| It's not obvious that a battle between mercenaries is the
| best way to get a just result.
|
| Considered systemically, lawyers also control
| legislation.
|
| While it would be better _for consumers_ to have much
| stronger protections, the people who make money out of
| weak protections are not incentivized to argue for
| stronger laws which would reduce their billable hours.
| Gunax wrote:
| What about lawyers working on contingency?
|
| If I am not paying my lawyer, aren't we incentivised to
| charge (approaching) infinity, even if it's just a way to
| inflate the cost?
| zo1 wrote:
| Sounds fine an dandy when it's "stick it to the big evil corp
| that has revenues in the hundreds of millions", but a side-
| effect is that it'll make insurance and legal costs higher
| for smaller (and potentially very honest) companies.
| ameister14 wrote:
| Except that if the company did what it was obligated to do
| under the contract there would be no lawsuit, and if there
| was one the company would win.
| zo1 wrote:
| And in the case that they did do what was obligated and
| win the case with 100 hours worth of lawyer time spent?
| Will the small party pay the lawyer fees for the company?
| ameister14 wrote:
| Their lawyer would spend some time regardless of whether
| the other party's lawyer was there or not. Sure, they may
| have to answer some filings or produce something (I don't
| really know the rules and procedures of arbitration) but
| again, a competent person without an attorney would come
| close to that anyway.
|
| If the lawyer loses on contingency after spending 100
| hours, nobody pays them; that lawyer eats the loss.
| oneoff786 wrote:
| But it's super shit that a lawyer can say "you can either
| give my client 2k or have a chance at giving my client 2k
| and me 50k"
|
| That's just so fucked up.
| dalbasal wrote:
| So... thanks for the advice and info. Good to get practical
| knowledge out there.
|
| That said:
|
| _that same law says you can get attorneys' fees too, the
| company knows that they could be facing a 50k+ judgment at the
| end (almost entirely comprising attorneys' fees), and then that
| often incentivizes earlier, higher settlements._
|
| This is awful, in my opinion. We really should consider
| redesigning our legal systems once every century or so. This
| sort of thing is a result of lawyers making their own rules for
| too long.
| projektfu wrote:
| Have you done any arbitrations with employee cases? Mandatory
| arbitration in low wage employment was the hot topic a few
| years ago.
| thathndude wrote:
| Never got into the employment context. But wage and hour
| cases (FLSA) have made many a rich lawyer.
|
| I will say, while I am generally not anti-arbitration, I do
| think it has its limits, and when it is used as a tool to
| suppress information that should be out in the public, I am
| completely opposed to it.
|
| The Example I often use are cases where an individual is
| suffering severe sexual-harassment. If that person is forced
| into arbitration, unable to share their story
| (confidentiality required), and hamstrung in prosecuting
| their claims by the arbitration process, that's a losing
| situation for the entirety of society.
| sillysaurusx wrote:
| Hey, thanks for this. As someone who just went through this
| process in December, there's a problem: my contract had a
| sneaky clause in it that said both parties are responsible for
| 50% of attorney fees.
|
| Meaning that $50k judgement would become a $25k bill.
|
| Yeah, I was sad to realize that.
|
| But! Your advice is absolutely worth taking anyway. I did, and
| the company paid me the moment I said I was starting the
| arbitration process. It was a bluff, and sometimes you need to
| be willing to bluff.
|
| On the other hand, I was so upset at them that I might've just
| gone through the process regardless. So I guess it helps if you
| yourself aren't sure whether it's a bluff, since they
| definitely won't know either.
| thathndude wrote:
| Edit: I may have misunderstood your comment, but it sounds
| like maybe you were saying your contract with the defendant
| company required that you pay 50% of attorneys fees. If
| that's the case, it would depend on details, but there would
| be a lot of arguments to make that not applicable.
|
| Edit 2: Confirmed (see comment above)
| ascar wrote:
| > my contract had a sneaky clause in it that said both
| parties are responsible for 50% of attorney fees.
|
| Which contract? The one you did the arbitration?
|
| If the consumer law says the winner has to pay the fees, how
| can such a clause be legal?
| SamWhited wrote:
| If your state has a loser-pays law then the clause likely
| isn't enforceable. They probably know this and have a
| severability clause as well ("if any one clause isn't
| enforceable, the others remain in effect") and just leave
| it in to try and scare people into not bringing a lawyer.
| Of course, that's assuming that your state does actually
| have a law that makes this clause unenforceable.
| thathndude wrote:
| I just re-read that comment, and had the same question. If
| the company is trying to include such a provision in its
| contract with you, such a provision, would be illegal,
| unconscionable, void against public policy, etc etc.
|
| I've never seen anything like that in all of my
| arbitrations.
|
| What you will see for B2B claims (not consumer claims) is
| an agreement that the parties will split the cost of
| arbitration. But that's different than their respective
| attorneys please.
| sillysaurusx wrote:
| My apologies, I think I was mistaken. The contract is
| here:
| https://twitter.com/theshawwn/status/1476573099902611457
|
| You're right. It says "Each will separately pay their own
| counsel fees and expenses." I was focused on the part
| that said "Company and Contractor will each pay one-half
| of the costs _and the expenses_ of arbitration. "
| Wouldn't a $50k judgement be considered an expense? I
| suppose not, but it's all quite confusing for non-
| lawyers.
|
| The 50% clause was confusing enough that when I went to
| someone for advice, they mentioned that it would limit my
| upside. Here's the full advice I got from them. (They
| were relaying what their father said, who is a lawyer.)
|
| > He said $10k is a little small to bother recouping Bc
| you might burn thru 20% just retaining a lawyer +
| covering half of initial arbitration fees
|
| > And arbitration--if it happens, and if it's extensive--
| will absolutely burn thru the rest
|
| > He said your best bet was a friend or young out-of-law-
| school kid without a crazy hourly rate to help out, make
| a few calls, make sure the company is willing to move
| forward with arbitration
|
| > But, if they are, it might not be worth it...
|
| > Unlike mediation--where a neutral third party tries to
| guide the parties to a resolution before arbitration--
| arbitration is adversarial, involves a legal decision,
| and will require things like discovery (surfacing all the
| relevant facts + documentation etc.)
|
| > He said arbitration can be as expensive + complex as
| regular ol' litigation
|
| > Grain of salt from a non-Washington lawyer who probably
| did most of his work in a different scale / context, but
| in case it's helpful
|
| > Your agreement says you half to cover half of
| arbitration costs, separate from your lawyer,
| unfortunately. Some agreements split cost
| disproportionally between winner + loser, but this one
| doesn't (I think, skimmed), and even if it did it would
| be a risky / ambitious gambit
| thathndude wrote:
| My read of that contract (and it's a pretty standard
| term) is that you're just splitting the invoices for
| costs/fees from the arbitration provider. This has
| nothing to do with respective attorneys' fees.
|
| However, that can still limit your upside. If the
| arbitration fees are $5,000, then you're paying $2,500
| win, lose, or draw, and so that has to be factored into
| your calculations.
| encryptluks2 wrote:
| It needs to be factored into the law and forced
| arbitration clauses need to be abolished.
| maccard wrote:
| > If the consumer law says the winner has to pay the fees,
| how can such a clause be legal?
|
| And if it's not, you're back in arbitration...
| adolph wrote:
| Reminds me of:
|
| _When Pena downloaded the Bird app and agreed to its terms
| in August 2018, he unwittingly indemnified Bird against any
| lawsuits. Bird now claims that Pena owes the company
| $322,171, the amount it has spent so far defending Los
| Angeles against the lawsuit._
|
| https://news.ycombinator.com/item?id=30908416
| jerf wrote:
| Having done this once myself, I will also add this: I'm in my
| mid-40s now, and arbitration triggered long-dormant school-type
| psychological patterns of "ohmigosh I'm going to get in trouble
| if I don't do this perfectly", or "What if I get B-?". The
| attorneys on the other side may even try to deliberately
| trigger these, they know the deal.
|
| The reality is, if you bring an action, the worst case outcome
| is basically: You lose. Yup, losing sucks. But... that's it.
| It's not going to trash your credit record, cause your
| significant other to leave, get you held back a grade, result
| in being grounded, kill your job (barring bring arbitration
| against your employer, of course, even if law forbids it), etc.
| etc. Your brain may incorrectly assess the stakes as being far
| higher than they are because of the form of the matter. You may
| need to consciously control those patterns.
|
| But if you want to be able to hold companies accountable, this
| is a big tool in your belt and if more people used it we'd
| probably see companies being less bold in screwing their
| customers over. It's a losing proposition for them from the
| _moment you file_. I certainly don 't encourage frivolous
| filings, but by all means, when it isn't frivolous, think of it
| as a pro-social, pro-consumer action that you can take to bring
| companies to task and in at least in some small way represent
| other consumers who they probably screwed over too, but don't
| have the wherewithal to file arbitrations of their own.
| zeruch wrote:
| "when it isn't frivolous, think of it as a pro-social, pro-
| consumer action that you can take to bring companies to task
| and in at least in some small way represent other consumers
| who they probably screwed over too, but don't have the
| wherewithal to file arbitrations of their own. "
|
| An absolutely laudable and supportable position. Firms get
| away with garbage behavior because almost no one takes out
| the trash, so to speak. If they did, the behavior would shift
| dramatically.
| encryptluks2 wrote:
| Let's not forget the bigger tool in the belt and the one that
| is more likely to be more fair and balanced and affordable,
| and that is not having forced arbitration clauses and rights
| waivers. Companies doing this are not doing it to do anyone a
| favor and to pretend otherwise is a con by the same people
| that want you to lose.
| jerf wrote:
| There is a certain amount of evidence that if enough people
| start using the arbitration clauses, companies start
| reconsidering them and returning to standard class-action
| clauses. Companies for a long time were using arbitration
| in no small part precisely because nobody knew how to do
| it. But every person who goes through the process learns
| how to do it, and even if they start with Company X, that
| makes it that much easier to go after Company Y later. So
| over time knowledge is diffusing out. If the arbitration
| clauses offend you, you can take concrete action to help
| getting them out of the contracts by using them yourself.
| glitcher wrote:
| And imagine if we started teaching high school kids about
| these types of tools to help them navigate the real
| world! I barely understood the broad picture of how
| government was supposed to work, much less offered any
| "applied" knowledge of the systems I would actually need
| to interact with as a citizen.
| thathndude wrote:
| I absolutely love this attitude. And, candidly, as a lawyer,
| this is part of why I love arbitration. It's a lot less
| formal. It's more about just getting to the right result
| without all the unnecessary pomp and circumstance. It lets me
| do my job--advocate for my clients--without worrying about
| whether I made sure to include some magic words or hit a
| specific, inflexible deadline.
|
| If there's a health issue with a kid, I send the arbitrator
| an email and ask for 7 more days. No formal "motion for
| continuance pursuant to local rule 8.9(c)(3)(f)."
|
| Lastly, I agree that this a tool. I like to think of
| arbitration, in this context, as the best customer service
| tool out there. Remember back when the hack was that you send
| a letter to the office of the president and that got you a
| competent response? Arbitration is like that on steroids.
| 8ytecoder wrote:
| The reason for the fear is the possibility of bias against
| the consumer. If companies pay for the cost of arbitration
| and everything is behind closed doors, how do we know we
| can trust the process to be fair?
|
| I'm not a lawyer or a legal expert or even believe the
| judicial system is always fair. But at least it's open and
| rules are well laid. So as a layman, why should I believe
| arbitration? (Genuine question; not a judgment)
| Animats wrote:
| Would you comment on arbitration services? AAA seems to be
| legit, while National Arbitration Forum was a front for a
| collection agency.[1] What about JAMS?
|
| [1] https://www.wallacefrancis.com/the-great-arbitration-
| scam
| inetknght wrote:
| > _And, candidly, as a lawyer, this is part of why I love
| arbitration. It 's a lot less formal. It's more about just
| getting to the right result without all the unnecessary
| pomp and circumstance._
|
| Sure, arbitration is fine -- give two parties more options
| to come to an agreement. But mandatory binding arbitration
| that explicitly contractually removes any way to resort to
| a full court? That's what I think is wrong.
|
| If two parties don't come to an agreement in arbitration
| then they _should_ always have the option to go to full
| court and incur the costs and headaches of doing so. Having
| that option would, I think, make arbitration far more
| desirable than it currently is.
| Ansil849 wrote:
| > The reality is, if you bring an action, the worst case
| outcome is basically: You lose. Yup, losing sucks. But...
| that's it.
|
| What about having to pay the attorney fees?
| pseingatl wrote:
| It's not financially viable for an attorney. Lawyers charge
| by the hour; how much time does an arbitration take? For a
| case like this:
|
| -listen to your story : 1 hr.\\\ -read your documents .5 \\\
| -follow up questions .25 \\\ -draft request for arbitration
| .5 \\\ -review rules .5 \\\ -respond to correspondence,
| select arbitrator 1. -respond to answer from Defendant .5 \\\
| -schedule arbitration .25 \\\ -hearing 2. \\\ -request
| payment .5 total: 5.5
|
| This is an extremely conservative estimate. At $100/hr,
| that's $550. Good luck finding a lawyer who will charge
| $100/per and it's much more likely that time estimate is off.
| Double it, plus... So your legal costs at a minimum are going
| to hit $1000. On a $2000 claim.
|
| and if payment isn't made, there's a whole 'nuther round...
|
| These cases just aren't economical for lawyers, unless you
| specialize in them and do nothing but crank them out.
| escape_goat wrote:
| Further up the thread there's an attorney who does
| arbitration all the time, but just in case he doesn't
| respond to you I will point out that professional
| specialization is exactly how everything works.
| akhosravian wrote:
| thathndude says they are an attorney above, and pointed out
| some states have laws that allow for attorney's fees on top
| of the actual claim.
|
| They also said they do the work on a contingency basis. If
| that is common practice one is out only their time if
| speaking to an attorney.
| omoikane wrote:
| > worst case outcome is basically: You lose
|
| The part that really irks me is not about possibly losing,
| but all the time wasted in the process. I see a lot of
| protections in the spirit of "get your money back", but no
| one is going to compensate for the time spent to get that
| money.
|
| Depending on the amount of money, customers might not attempt
| to file these cases so that they can cut their losses early.
| Companies knows these too, which is why contracts and
| customer support channels are often designed to waste your
| time. I know people who would still go after companies purely
| on principle, but that is a tiresome way to live.
| mLuby wrote:
| > I know people who would still go after companies purely
| on principle, but that is a tiresome way to live.
|
| One click to sue would be great. Class-action lawsuits are
| on the right track but they scale on behalf of courts and
| companies, not consumers.
| chrisjc wrote:
| So if they decide to settle once you get a lawyer involved,
| does the settlement include both the claim and the lawyer's
| fees thus far, or just the claim?
|
| I'm sure that the answer is "both of course", but just want to
| hear how these kinds of early settlements pan out in your
| experience. I imagine that the ~$50k judgement you used as an
| example might be for lawyer fees when it has gone to judgement,
| but is it even worth most lawyers' time if it doesn't go that
| far? Couple hundred bucks to send a letter vs hundreds of bucks
| an hour doing something more consistent? Or is all this pretty
| boilerplate stuff?
| hammock wrote:
| Lawyer fees are not a fixed cost, they increase with time.
| And the longer a case goes the less boilerplate it becomes. A
| settlement is more likely to include a greater portion going
| to the consumer than a final arbitration
| chrisjc wrote:
| Right, I get that. I just wanted to make sure that the
| lawyer's fees are covered in the settlement, or would a
| settlement include a final FU you that you now have your
| claim, but you're potentially out of pocket paying the
| lawyer fees you now owe.
|
| Worse yet, could they string you along and wait till the
| last minute to settle, thus increasing your lawyer fees
| potentially beyond the value of the original claim?
| thathndude wrote:
| I'm not sure if I'm understanding all of the
| questions/concerns you raise in your comment, but
| generally, I don't apportion out attorneys' fees in a
| settlement.
|
| And, again, typically, you don't "owe" attorneys' fees.
| It's a contingency (percentage) agreement. So if you
| settle at the 11th hour for $10,000, you have agreed to
| pay the lawyer a percentage of that figure, not
| necessarily what they would have asked for as attorneys'
| fees at a trial/hearing.
| perpetualpatzer wrote:
| >I'm sure that the answer is "both of course"
|
| IANAL, but my understanding is that the default rule in the
| US is "each party pays for their own lawyers, regardless of
| who wins"[0]. Of course, the specifics would depend on the
| actual terms of the settlement agreement.
|
| [0] https://en.wikipedia.org/wiki/American_rule_(attorney%27s
| _fe...
| thathndude wrote:
| That is the standard American rule. However for this
| reason, most consumer protection statute include a
| provision where the prevailing consumer gets their
| attorneys fees. Otherwise consumers would be left without
| representation.
| thathndude wrote:
| It's more nuanced and squishy than that. Let's say I'm half
| way through litigation and we want to talk settlement.
|
| I'm going to say something like "if we win, my client is
| going to get $6,000, and I'll have a claim for fees of
| $20,000 (based on my time in the claim so far)." So then I'm
| going to use that as a basis to make a settlement demand of
| $30,000.
|
| And then we play negotiation ping pong. I'm likely going to
| discount the portion I attribute to my fees because they're
| uncertain (what if I lose?). And then the client ultimately
| makes an individualized decision wheter we settle and on what
| terms.
| swores wrote:
| > _And then the client ultimately makes an individualized
| decision wheter we settle and on what terms._
|
| Could you please elaborate on how that works? To continue
| your example story, let's say you decide that rather than
| $20k you're willing to settle with taking $15k for your
| fees; and let's say they counter your $30k offer with "$20k
| take it or leave it". Do you then give the client a choice
| of "you get $5k instead of $6k if we settle, your choice
| between that or going to court"? Which could equally be
| "you get $1k instead of $6k" if you earlier decided to only
| lower your fee for settling from $20k to $19k?
|
| Or does the client actually get more power than that
| somehow / at what stages do they get info & get to make
| what decisions or proposals?
|
| (edit: and I'm just asking for curiosity since I'm not in
| the US, but maybe you could also clarify if what you're
| saying is true for the US or just for your state?)
| thathndude wrote:
| It's all going to depend on the retention agreement with
| the attorney and how they agree attorneys' fees will be
| paid.
| maccard wrote:
| > So let's say your claim is $2,000. Under those laws, maybe
| you can "treble" (triple) your damages if you win. So now your
| best day is $6,000. And the company knows it.
|
| This is one of the most eye opening things I've read on here. I
| didn't know that about arbitration. When you threaten/enter
| into arbitration, it should be part of the law that the company
| must respond with the maximum amount of damage they're liable
| for. Anything else is information asymmetry towards the company
| and they know that too.
| thathndude wrote:
| I like this suggestion. There is a substantial lack of
| attorneys in this area. If we are going to force consumers
| into these systems, they need to be designed more fairly.
| maccard wrote:
| Think of it like a mortgage - I got a 90 page legal
| document when I purchased my home (and I received multiple
| physical copies of it....) but on the first page of it was
| "here's how much you're borrowing, here's how much you will
| repay over the lifetime, and here's the fees if you pay it
| back early", and I had to sign that page individually with
| the rest of the agreement. It felt a bit silly, but it
| _forces_ the service provider to give you this information
| in an honest format, and not bury it in the small print 5
| levels of indirection deep.
| thathndude wrote:
| And the only reason you get that information is because
| of federal consumer protection laws.
|
| If nothing else, an experienced consumer protection
| attorney brings that to the table--knowledge of these
| various laws (and how you can sue under them) that you
| might not even know exists.
| toolz wrote:
| I think that point is about as fair as saying the only
| reason it got so complicated in the first place is
| because of federal consumer protection laws that enable
| banks/lenders to get away with such complex agreements to
| begin with. Otherwise you'd have competition that exists
| solely to correct the complexity of our current financial
| system.
| DarylZero wrote:
| Competition will fix asymmetric information? That's _not_
| how the theory goes.
| thawaya3113 wrote:
| No it isn't. Because we had centuries of no consumer
| protection. And there were no competitive pressures to
| simplify agreements.
|
| Consumer protection laws that forced companies to
| simplify agreements were a response to the massive
| increase in complexity without such laws being on the
| books.
|
| But there's an even easier, non historical, way to see
| how "competition" does nothing to solve the problem of
| complexity in agreements.
|
| The agreements to rent an apartment, or to buy a house,
| both of which are among the most complicated agreements
| the majority of people will sign, are far more
| straightforward in most states than buying a $2 song off
| iTunes or signing up for a 1 month membership off
| Spotify.
|
| There is a lot of evidence that consumer protection laws
| have had massive effects in making the agreements more
| standardized and transparent and reducing shady and
| fraudulent behavior.
| throwaway0a5e wrote:
| >Because we had centuries of no consumer protection. And
| there were no competitive pressures to simplify
| agreements.
|
| And we also had centuries of really simple (by 2022
| standards) contract terms. Even if you just include the
| time after mass-literacy contracts didn't start adding
| tons of length until fairly recently.
|
| I'm not sure when exactly the proliferation of additional
| clauses in otherwise pretty simple contracts started but
| I read a homeowner's insurance policy from the 1930s and
| it fit on one page.
|
| Edit: Why is this opinion so unwelcome here?
| mbreese wrote:
| _> policy from the 1930s and it fit on one page_
|
| Of course it did. If it was printed, at the time, it had
| to be standardized. So the simplest thing would be to
| make them all identical. At most you'd have a kind of "if
| this box is checked, clause A applies" set of
| customization.
|
| Only major contracts would be subject to major
| customization with individual pages typed.
|
| This tool that we love so much probably had a major
| reason why things got so complicated.
|
| Personal theory (that I just thought up, so I'm sure
| someone else thought of it first): complexity is like a
| goldfish. It grows to take up all available space in a
| system. If a system can handle more complexity, more will
| always appear.
|
| When we couldn't adjust contracts for individuals because
| it was technologically not feasible, we didn't and
| contracts were simple. Now that we can adapt things for
| each individual contract, or personalize each web page,
| insert targeted ads, etc... we do because we can.
| sharemywin wrote:
| The difference between now and then was a bunch of
| lawsuits that added more terms to the contract so it was
| "clearer" and people couldn't win a lawsuit because it
| wasn't in the contract.
| toolz wrote:
| That's a fair theory, but I would argue lenders like
| better.com are winning so much business is because they
| simplify the process. Their marketing is around that
| exact reason, as well. There's obviously competition in
| the space of making home purchasing less complicated,
| which leads me to reasonably believe less consumer
| protection from disconnected bureaucrats would result in
| less absurd complexity. I bought a house just a few
| months ago and I was on the hook for thousands of dollars
| before I was legally required to take a home purchasing
| educational course.
|
| Only bureaucrats could think up such silly rules as to
| require people to take educational courses on buying a
| house and allow those courses to only be legally required
| after you've committed thousands of dollars to the
| seller.
|
| If the market demanded educational material on how to buy
| a house (and it does, I've bought a book on real estate
| for that very purpose before buying my first home) then
| you get incentives that make sense.
| sharemywin wrote:
| I didn't see a credit score disclosure on better.com's
| view rates page, but assuming the best score level if you
| go to bankrate.com and look at the scenario 500K 20% down
| 740+ credit it shows almost a $50K+ difference over the
| life of the loan between their quote and the lowest quote
| on bankrate. Not that they're the best place to find
| quotes, just it's easy to see multiple rates.
| kurikuri wrote:
| > lenders like better.com are winning so much
|
| I wouldn't be so sure about that, they've had 3 rounds of
| layoffs in the past 4 months, one of which was 1/3 of
| their workforce[0]. They are also accused multiple times
| of stiffing employees on severance pay[1]. Not to
| discount everything else you've said, but please don't
| use that company as an example of winning.
|
| [0] via layoffs.fyi, filter companies to "Better.com"
|
| [1] https://www.fastcompany.com/90750106/how-better-com-
| and-its-...
| mrtranscendence wrote:
| > There's obviously competition in the space of making
| home purchasing less complicated
|
| How _much_ competition? I 've hardly even heard of
| better.com. Certainly every time I've bought a house
| (three since 2003, most recently in 2018) I've had to
| sign an unreadably long contract, and I don't recall much
| if any advertised competition in the "make it simpler"
| space.
|
| I'm also not sure I buy that the complexity of the
| process came down to consumer protection laws, though I'm
| no expert in that area.
| MichaelBurge wrote:
| > I would argue lenders like better.com are winning so
| much business is because they simplify the process.
|
| I feel like if somebody picks a lender and gets sent a
| stack of paperwork, they're committed. They're not going
| to back out "because the paperwork is too complicated"
| and choose a competitor, and ask their sales people "How
| long is your paperwork?"
|
| So I'd be skeptical that "complexity of the legal
| agreement" is at all a factor.
| throwaway0a5e wrote:
| We still can't adjust contracts for individuals because
| organizations are afraid that they'll wind up in court
| because "if what I wanted was stupid why did you let me
| buy it?"
| thathndude wrote:
| It's worth noting that _a lot_ of consumer protection
| laws are 50 years (or less) old. Many were born from the
| great recession less than 15 years ago.
|
| To your point, this is all pretty fresh stuff, and I
| think there will be more regulations in other areas. The
| regulations started with housing/mortgage agreements
| because they are such large transactions. But the same
| principles will hopefully trickle down.
| sharemywin wrote:
| That's just not how the market worked out during the sub-
| prime mortgage market. 5% prepayment penalties, Arms with
| massive rate hikes, neg Amortization loans that ate up
| your equity. no document loans, no income/asset loans.
| shopping appraisers to get the most inflated loan amount.
| all kinds of bull shit fees and higher interest rates for
| more bullshit compensation. The documents were not any
| smaller. Most of those documents are there to either make
| it easier for the lender or protect them in some way.
| Most people don't have phds in finance, legal, psychology
| to compete with the army of lawyers, accounts, quants,
| sales people, marketing people that all work day and
| night to take your money in the most favorable terms for
| them possible. Not to mention the boom and bust cycle
| that imploded the market in the first place. In the end
| we'd probably end up with some kind of marketplace
| similar to the app store with 30% fees.
| mindslight wrote:
| The problem is the _courts_ letting banks /lenders get
| away with such complex legal agreements. We're
| straightforwardly bumping against computational
| complexity, but the legal system continues to ignore
| this. A reasonable alternative decision would be that a
| 90 page document is simply not understandable by the
| common person ("equal protection under the law"), and
| therefore is not part of / evidence of a binding
| contract.
|
| The disclosure laws actually help the banks here, by
| putting the most important terms front and center where
| it can be argued that the borrower did understand those
| even if they couldn't understand the rest of the
| document. In fact many legal documents are structured in
| such a way, putting the big picture at the top and then
| defining/clarifying things later.
|
| As far as your general point, what helps is printed
| materials by the state that lay out general legal advice.
| For example, take a look at the wonderful California
| Tenants Guide.
|
| Another thing that would help would be a public
| standardization of common consumer contracts. There is no
| need for every lease/employment contract to have its own
| custom verbiage that a tenant/employee is purportedly
| responsible for understanding. There should be at most a
| handful of standard contracts for common relationships,
| drafted and published by the government. There are
| already some of these things published by industry groups
| like landlord's associations, although they can be a bit
| biased towards their members. Not using a standard
| contract or lengthy typeset additions should be judged as
| an a priori attempt to mislead that no amount of
| initialing will undo.
|
| Furthermore, putting terms in a contract that are
| blatantly contrary to prevailing law should itself be
| illegal with its own penalties apart from enforcement of
| the contract.
|
| Of course the paperwork pushing lobby isn't a fan of such
| reforms, and will lobby against them by framing such
| things as "big government" even though they're better
| described as mitigations of "big government". There is
| lots of money to be made by perpetuating government
| dysfunction and then providing a half-solution. See also:
| Intuit vs tax filing reform.
| toolz wrote:
| > take a look at the wonderful California Tenants Guide.
|
| I've never once heard people from California praising
| their state for making renting better. I've heard the
| exact opposite many times over.
|
| Everything has tradeoffs. Every complexity the state
| forces into a transaction enables an exploitative company
| to leverage loopholes to their advantage. Only near
| perfect systems can reap the benefits of authoritative
| protections without inadvertently propping up exploiters
| who thrive on working around the complexity. Something a
| smaller, (likely more honest) company can't afford to do.
| There's a reason so many gigantic companies lobby for
| more regulation in their industry and I sincerely doubt
| that reason is to protect the consumer.
| mindslight wrote:
| You're rejecting the idea that we can analyze a specific
| action/edict of government to see if it makes things
| worse or better. Such a paradigm guarantees that things
| can only get worse, as the only successful changes will
| be ones that enrich some well funded interest (ie
| corruption / regulatory capture).
|
| > _Every complexity the state forces into a transaction_
|
| I do not see how publishing a guide of public legal
| advice is adding complexity, regulatory or otherwise, for
| either party. If you would like to make a specific
| argument of how it is, please do so.
|
| > _I 've never once heard people from California praising
| their state for making renting better. I've heard the
| exact opposite many times over._
|
| There are incentives to spread the negative/political
| messages, whereas the gains from repeating helpful
| individual-empowering advice are diffuse.
| lthornberry wrote:
| I've rented in CA as well as other states. CA rental
| protections were great for getting my landlord to back
| down from withholding my security deposit for illegal
| reasons.
| travem wrote:
| > I've never once heard people from California praising
| their state for making renting better
|
| Let me fix that for you. As a renter in California I had
| a Landlord who tried to hold on to the bulk of my
| security deposit (a few thousand dollars) for repainting
| walls, additional cleaning, etc. The clear guidance in
| this tenants guide gave me confidence in dealing with the
| Landlord, clearly articulating my stance, and getting the
| vast majority of my deposit back. Other Landlords I had
| were very reasonable and refunded my full deposit without
| issue (I always left property in a good state) but when I
| had one that tried to play hardball the guide plus a
| couple of well written letters with appropriate
| references to the guide helped me sort out the issue
| relatively easily.
|
| Making it clear what my rights were and setting clear
| expectations on tenants and landlords relative
| responsibilities was a clear benefit to me.
| lthornberry wrote:
| There are good points here, but the equal protection
| clause has nothing to do with this issue. There are
| standards in contract law that apply (and are state-
| specific). Those could be statutorily changed.
| saghm wrote:
| > Furthermore, putting terms in a contract that are
| blatantly contrary to prevailing law should itself be
| illegal with its own penalties apart from enforcement of
| the contract.
|
| I can't help but scoff every time I read in a rental
| contract that even if some part of the contract is
| nullified due to not being legal, the rest of it still
| applies. It always makes me wonder which part of it they
| thought might not be enforceable, although likely they
| probably all include since it costs them nothing to do
| so.
| nybble41 wrote:
| A slightly more charitable interpretation would be that
| they are trying to use a standard contract with terms
| which are both reasonable and enforceable in most
| contexts, while allowing for the fact that the rules
| about precisely what is or is not legal in a contract can
| vary from one jurisdiction to another and may be subject
| to a certain amount of interpretation. Also, something
| which was legal at the time the contract was signed might
| be changed to be illegal later. Either way, they don't
| want the entire contract to be nullified on the basis of
| one invalid term.
|
| IMHO it mostly works out in your favor. If any of your
| obligations toward them are deemed unenforceable they are
| still bound to uphold the rest of the contract. The
| reverse could also apply, of course, but as the smaller
| and "less sophisticated" party to the contract your
| obligations are more likely to be nullified by local
| consumer protection rules than theirs.
| saghm wrote:
| Normally I might agree with you, but after dealing with
| this landlord for six months...I don't think that a
| charitable interpretation is warranted. I won't bother
| going into details, but there have been no violations on
| my part, and I can't say the same for them.
| Sohcahtoa82 wrote:
| Agreements are written in complex language to make sure
| everything is as explicit as possible and that there are
| no loopholes or anything subject to interpretation. I've
| always argued that if the Bill of Rights was written
| today, each Amendment would be 50 pages long.
|
| > Otherwise you'd have competition that exists solely to
| correct the complexity of our current financial system.
|
| There's nothing stopping a company from doing this now.
| Consumer protection laws merely establish a _baseline
| minimum_. The market is still free to do better than the
| minimum.
| pjc50 wrote:
| Problem: this number may well be unlimited.
|
| There are two types of damages, actual and punitive, and for
| actual damages _you_ set the value of the claim by .. adding
| up all the damage caused. This is how you can get really big
| numbers like $145bn.
| https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1118202/
|
| (That size of damages terrified various other companies with
| liability problems, who quickly got the law changed to
| minimize the range of things they could potentially be held
| liable for as a result of their products: https://en.wikipedi
| a.org/wiki/Protection_of_Lawful_Commerce_... )
| s3p wrote:
| Not exactly. Many states are now placing limits on the
| amount of punitive damages plaintiffs can sue for.
| ProjectArcturis wrote:
| Arbitration rarely results in punitive damages or enormous
| payouts. That is the exact reason why companies put
| arbitration into their contracts.
| mjmahone17 wrote:
| The flip side is it prevents aggregating all damages into
| a single class claim.
|
| If everyone who had a claim actually arbitrated every
| time, it would be much more expensive for companies to
| handle than settling an entire class of claims all at
| once. The problem is companies know most people will not
| make a claim if it takes them any significant effort, and
| if the reward amount won't be very large.
| heretogetout wrote:
| Is there a limit on the amount of time a company can
| delay arbitration once you file? Is there any sort of
| "default judgement" mechanism that can be used against
| companies that drag their feet?
| paulgb wrote:
| It becomes especially awkward when those companies have
| their bluff called, get an onslaught of arbitration
| claims, and then try to backpedal into a class action.
| "We were just using an anti-class action language because
| we thought that would scare away litigation but now we
| want it" is not a super compelling story to have to tell
| a fair judge.
|
| This happened to Intuit. Couldn't have happened to a
| nicer group of people /s.
| https://www.reuters.com/article/legal-us-otc-intuit/l-a-
| sant...
| jrochkind1 wrote:
| That Intuit/TurboTax story is amazing. Story from
| December 2020, what's happened since then, was the
| conversion to class action approved?
| maccard wrote:
| That's not arbitration though, that's a jury trial of a
| class action lawsuit. The UDAP law that the parent
| responded talking about (that I learned of today)
| specifically entitles you to up to three times the amount
| of damages you're claiming for, plus legal fees.
| mchusma wrote:
| These one sided attorney fees provisions make a mockery of
| justice. The whole dialog becomes basically blackmail if you
| are a small business. Maybe it's ok to have these laws for
| giant corporations, but if you own a small business and are
| barely getting by, simply being accused of something you lose
| regardless of the outcome and your accuser loses nothing
| regardless of outcome.
| b3morales wrote:
| Does your small business have forced arbitration clauses in
| your customer contracts? If so, why was that decision made?
| 87982570983 wrote:
| You would have to spend much more time litigating without
| an arbitration clause, meaning even more attorney fees. If
| this is a problem, it's not a problem specific to
| arbitration.
| ghaff wrote:
| What's the alternative though? I can sue you at any time for
| any reason. Well, I guess the alternative is to make it
| difficult for the average person to use the legal system at
| all.
| encryptluks2 wrote:
| Which is unethical because the legal system is supposed to
| be fair and balanced. If someone is suing you frivolously
| then ask the court to declare them a vexatious litigant.
| ghaff wrote:
| Meanwhile, in the real world, you're probably advised to
| hire a lawyer to make that filing.
| Spooky23 wrote:
| Only if you use. A better strategy is to not let customer
| issues turn into lawsuits.
| alisonkisk wrote:
| FireBeyond wrote:
| > Lastly, let's just say I've done an arbitration or two with a
| home warranty company. They don't make money by paying out
| claims!
|
| Thankfully we didn't (directly, I know it's our money in there
| somewhere) buy a warranty when we got our house last year.
|
| I knew the AC was on its last legs from inspection, and no
| problem, since it was an older 80% old refrigerant system,
| probably closing on 30 years old. Figured it could wait one
| summer, in between all the other purchases with a new home.
|
| Then last year Seattle decided to have a heat wave. Maybe not
| much for those in Phoenix, but four days in a row of 105F+.
| That's still hot.
|
| And it's even hotter when you have no AC, as ours died a couple
| of hours into day 1.
|
| So I call the HWC. They "are having trouble" finding someone
| for "emergency service". Their idea of "emergency service" is
| "we have a company that will be out there in four WEEKS".
|
| So I found someone who could come out that day, for a
| surcharge. Reasonable. And the AC was dead. But this company
| were nice - the tech said "no promises, no commitments" and he
| did some shifty magic and got it running for about six more
| hours before it was permanently to the graveyard.
|
| So we started getting quotes for a new HVAC system.
|
| Responses from the HWC company:
|
| - we won't pay if you don't use our suppliers
|
| - we won't pay if you don't choose from our list of models
| (which were all low end, 80%, 1 stage systems)
|
| - even if you use our supplier, we won't pay above an agreed
| amount
|
| - if you used another contractor for ANY maintenance work on
| the existing system, we won't pay
|
| - if the maintenance schedule wasn't followed (whether you
| owned the system/property at the time), we won't pay
|
| Three (and a half) words are common across each of those bullet
| points, as you can probably surmise.
| jfoster wrote:
| What do you think about the approach taken? ("I summarized the
| entire timeline into three sentences. I provided no evidence. I
| didn't want to give my hand away before arbitration.")
| thathndude wrote:
| Personally, I would've taken the exact opposite approach.
|
| I once had an attorney, a very successful attorney, tell me
| that he's a big fan of laying cards on the table right away.
| The rationale is that he either wants to know why he's going
| to lose early or show the other party why they are going to
| lose early.
|
| In a case like this, where it seems like OP has all the
| information to prove that these guys are simply in the wrong,
| I come out guns blazing. I Layout the whole timeline with
| screenshots and copies of emails, very detailed. Then I make
| the ask with some snarky closing line like, "if you'd like to
| avoid the inevitable judgment that will be rendered against
| you, please contact my office to facilitate payment."
| tiahura wrote:
| I'll disagree. My guess is that it wouldn't have changed
| their initial offer, and then he wouldn't have any ammo to
| negotiate with.
| thathndude wrote:
| But negotiation is not a game of gotcha. It's not as
| though you get a number, and then pull a rabbit out of
| the hat to get a bigger number. "But see this."
|
| You make a demand, and you justify it based on the facts
| and law, and then you stick to it or make minor
| concessions until you reach your end result.
| sudden_dystopia wrote:
| As someone that settles personal injury lawsuits, this is
| exactly how the process works. I receive medical records,
| review them, and make an offer. When we negotiate, very
| rarely do we talk about the actual case details, it's
| just numbers back and forth. If they say it's worth more
| than I have it evaluated, I simply ask for more records
| or indicate that I have reached my best offer.
|
| For what it is worth, it doesn't affect me at all how
| much I pay out. It's not part of my job objective to pay
| the least possible. If I can justify it, I can get it
| authorized.
| hammock wrote:
| What criteria do you use to evaluate, if not the case
| details?
| alisonkisk wrote:
| icelancer wrote:
| There basically aren't any. I've gone through arbitration
| three times and each time both parties propose a
| hilariously stupid number and work towards the middle
| over 12 hours.
|
| It's incredibly dumb. But it works.
| 300bps wrote:
| tiahura - Since you're disagreeing with someone who
| specializes in these types of cases for a living, I
| assume you have similar qualifications?
| pmoriarty wrote:
| _" if you'd like to avoid the inevitable judgment that will
| be rendered against you, please contact my office to
| facilitate payment"_
|
| The judgement may be inevitable, but a wealthy corporation
| may have the resources to keep the lawsuit in the courts
| long enough to bankrupt you or until you die of old age.
| JumpCrisscross wrote:
| > _a wealthy corporation may have the resources to keep
| the lawsuit in the courts long enough to bankrupt you or
| until you die of old age_
|
| Which is the advantage of arbitration.
|
| Someone has run a terrific PR campaign to convince
| Americans it's hopelessly corrupt. It's not. It's a venue
| that makes what you described impossible.
| kevin_nisbet wrote:
| Adding an additional perspective. I'm on the board of
| directors of my condo corporation, and we have to deal with
| escalations from time to time for various claims, and threats
| of lawsuits, etc.
|
| From what I've seen, a perspective of I've collected a bunch
| of evidence that I'll refer to, but not actually provide,
| does seem to correlate with those with baseless claims, or
| those possibly trying to scam the corporation. This is
| anecdotal from my experience, but has happened more than
| once. In this case, it might be slightly irrelevant, because
| the insurer probably has easily verifiably facts on their
| side to know the calls happened, and the computers were a
| problem, etc.
|
| But something like the invoice that's being claimed, is an
| important piece of information. We may want to know what work
| was done, was it in scope of our responsibilities, call the
| plumber and verify their credentials, ask them for details
| not documented, etc. If we have any suspicion the individual
| is trying to defraud us, not knowing the evidence that
| supports the amount claimed makes it really difficult to
| agree to. And if this goes on for a long time, it may be
| difficult to follow up on those facts.
|
| I don't know about the rules around arbitration specifically,
| but if this hadn't settled, there may be deadlines involved
| just like the courts. And anything your doing to make the
| other side unprepared or to ambush them may be held against
| you. I don't know that it means you have to lay out
| everything on day 1, but I wouldn't want to leave anything to
| the last minute and allow even an argument that I prejudiced
| the other side by knowingly withholding relevant information.
| windexh8er wrote:
| Thank you for the insight! I'm curious of your perspective
| around consumer success with data breach as of recent? Do you
| find companies liable for general negligence?
|
| As an example... When I was selecting a mortgage company a
| couple years ago one of the large providers who is newer, and
| started out in higher ed loans, seemed to have a very sloppy
| process. They did a lot of things via email that likely
| shouldn't be done which opened up the avenue for them to send
| my SO and I emails of PDFs that included our SSNs in them.
| Needless to say I stopped the mortgage process with them right
| there and, ended up using a local credit union. However, I
| threatened legal recourse in a state that doesn't have great
| privacy laws based on the obvious "leak". When they asked for
| proof I pointed out that the email headers contained 5
| intermediaries that were out of their control between sending
| and receipt. The company sent us each a check for $4k and part
| of my stipulations were that we would not sign anything in
| exchange. I was surprised how easy it was and almost felt as
| though I left money on the table. But I'm curious if you see a
| particular area that consumers can push back on when companies
| are negligent with customer data?
| thathndude wrote:
| Typically, breach litigation has not been very successful. I
| would describe your outcome at very out of the ordinary
| (although the behavior you describe is pretty egregious).
|
| The problem is that, generally, the law thinks in terms of
| damages. So this mortgage company was being reckless with
| private information, but were you harmed by it? If the answer
| is "no," oftentimes the claim is dead on arrival.
|
| Of course, we all know that a data breach might not yield
| harm for 12+ months (when the data is sold on a black market
| and then used nefariously). But the law isn't well equipped
| for these types of situations.
| ransom1538 wrote:
| "the company knows that they could be facing a 50k+ judgment"
|
| Wait. You could lose. Doesn't that mean YOU could be
| responsible for THEIR lawyer fees too? EG. If you lose, your
| lawyer shrugs their shoulders and walks, you are stuck paying
| the 50k?
| thathndude wrote:
| Generally no. American rule provides that everyone has to pay
| their own fees unless there is a fee provision. Those are
| almost always written in favor of the consumer (if you win,
| you get fees; if you lose, you don't, but neither does the
| business).
| runnerup wrote:
| It depends on the jurisdiction but in the USA, generally the
| plaintiff is not responsible for the defenses legal fees.
|
| You're generally only responsible for the defendants legal
| fees if your suit was unfounded and purposefully used to
| disrupt or harm your legal opponent, rather than to seek
| remedy in good faith.
|
| The defendant can be made to be responsible for your legal
| fees because those fees were "caused" by their
| action/inaction which was the unlawful source of harm that
| you are suing about.
|
| Because the defendant "caused" the lawsuit as a direct result
| of their original actions against you. All costs that follow
| from their original harm are owed by them to make you whole.
|
| If you bring a lawsuit as a plaintiff and lose, as long as it
| was a reasonably well founded lawsuit, there's nothing to
| point to and say "ah ha! You injured me with your lawsuit
| that I won". Because everything that happened was perfectly
| within everyone's right (to bring a reasonable lawsuit but
| fail to secure a win).
| kingcharles wrote:
| I'm not an attorney, but I've litigated almost a hundred cases
| without a lawyer.
|
| Question: sometimes I'll have attorneys approach me at court
| when I'm on a case that's an obvious winner (and has statutory
| legal fees, which I can't claim because I'm not represented)
| and offer to take the case on so they'll get the fees, and then
| split the fees with me (and let me keep the damages).
|
| Is there any reason why this would not be legal? I've not done
| it yet simply because I like to litigate everything myself to
| make a point that it's possible, but sometimes you get a judge
| that _really_ hates unrepresented people and a lawyer would
| change the game.
| MockObject wrote:
| > I'm not an attorney, but I've litigated almost a hundred
| cases without a lawyer.
|
| Fascinating! I've only ever seen this criticized as a
| horrible idea. Are you operating in a specific area that
| you're skilled in? I assume you must have a decent win ratio.
| thathndude wrote:
| Fascinating. I would love to hear more about your
| experiences! I could probably learn a thing or two (email in
| profile).
|
| Ethics rules vary state to state. And, generally, a lawyer
| cannot split attorneys' fees with a non-lawyer. However, I'm
| aware of some jurisdictions that have exceptions to this
| rule, and perhaps, depending on the details, that might give
| them an out from the general prohibition.
|
| But what you're describing is exactly the point I'm making.
| Having an attorney can often be a way to uncap your upside
| potential. If you can make the numbers work with the lawyer,
| then it's a win-win.
| throw1230 wrote:
| are arbitration decisions part of public record? can someone
| request documents on it like one would for court documents?
| vertis wrote:
| Having seen the other side (I sat next to and was friend with
| some corporate lawyers), customer service may have no power or
| latitude to deviate, but the legal team has enormous latitude
| to do so.
|
| They're risk averse. You don't have to threaten a lawyer and
| you shouldn't). Just letting a lawyer know you exist and have a
| legitimate problem that could blow up in their face, can often
| be enough to magically resolve issues. They almost always have
| a public email address.
|
| Maybe it's better to go after them with the parent posts laws,
| but sometimes you just want your issue resolved. I can tell you
| that very few teams will argue once they get an email from the
| General Counsel.
|
| See also, patio11's post about being a dangerous
| professional[0]. One of the best pieces of writing on the
| subject.
|
| [0]: https://www.kalzumeus.com/2017/09/09/identity-theft-
| credit-r...
| thathndude wrote:
| Absolutely this. Arbitration is a powerful "customer service"
| tool.
| arbitrationnote wrote:
| Thank you, this is incredibly enlightening.
|
| I am planning to go to AAA with a claim against an online
| ticket sales company that scammed my mother - I have screenshot
| evidence that they violated an FTC consent decree in the
| process. Amusingly the consent decree also mandates them to
| keep detailed logs on their behavior for 10 years so they
| should have excellent records as well.
|
| I already spoke to senior attorneys at the FTC about it, but
| they couldn't really say anything back, and my understanding is
| that arbitration is the best option for my family to seek
| relief.
|
| Would you be interested in this or have a recommendation for an
| attorney? I had planned to do it alone but your comment made me
| completely reconsider.
|
| My email is in my profile
| TwoNineFive wrote:
| > Far too many people are scared of arbitration
|
| That's a mischaracterization about the problem with
| arbitration. People are not scared of it. People are not
| afraid. It's shameful that you use language like this accuse
| the people of being afraid and scared. You can't claim to be an
| attorney and then say you didn't understand the meaning behind
| the words you chose to use.
|
| Consumer arbitration is corruption. People correctly understand
| that when one side is paying money to the judge, that the
| system is corrupt. It's about buying the judge, the court room,
| and the whole system.
|
| The problems with consumer arbitration are well documented.
| Being scared is not one of those problems. People are angry.
|
| https://en.wikipedia.org/wiki/Consumer_arbitration
| snapetom wrote:
| Author here. Thank you for the tips, and thank you for the
| feedback!
| thathndude wrote:
| Thanks for giving me a chance to accumulate tons of that
| sweet sweet HN karma.
| spaniard89277 wrote:
| Hmm anyone from Spain familiar with this? I've claimed stuff
| with my regional consumo agency a handful of times
| (successfully) but most of the times it was <1K, so It was only
| worth the hassle because I was almost angry about the
| situation.
|
| If I can punish companies for bad behaviour and harm their
| pocket this way, It would be much better.
| iambateman wrote:
| Super helpful, thanks.
|
| If I ever need an arbitration attorney, do you recommend (1)
| focusing on finding someone local or (2) finding someone
| specific to arbitration regardless of location?
|
| Also, if I lose, am I on the hook for the attorney fee? Or do I
| ask the attorney to take the risk and only collect a fee if we
| win?
| thathndude wrote:
| If you're optimizing between local versus experience
| arbitration attorney, I'd prioritize the latter. I've never
| felt like my geography was a major hindrance (maybe I had to
| put in some extra hours to learn local laws/rules/customs,
| but that's rather easy).
|
| Put differently, I feel much more like a fish out of water
| when I'm out of an arbitration context I have a lot of
| familiarity I'm with than when I'm under a different state's
| laws.
| myskier wrote:
| fairshake is an easy to use service that I have used that makes
| arbitration super simple.
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