[HN Gopher] Ticketmaster's attempt to game arbitration services ...
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Ticketmaster's attempt to game arbitration services fails
Author : hn_acker
Score : 222 points
Date : 2024-11-04 23:12 UTC (4 days ago)
(HTM) web link (blog.ericgoldman.org)
(TXT) w3m dump (blog.ericgoldman.org)
| impossiblefork wrote:
| >Ticketmaster's Terms state they may be changed without notice
| and changes apply retroactively.
|
| This is a really strange thing, because to me a Swede, that means
| that whatever has been signed is not a contract at all and is,
| well, who knows what.
|
| To me a contract is an agreement. If it is not specific, then it
| is not a contract at all, and if it's changeable, then it's very
| obviously not a contract at all.
|
| I've heard of more of this kind stuff with US healthcare,
| although I'm not sure I even want to understand the ideas there,
| but when people start messing up the basics of laws, refusing to
| rule that things which are obviously not contracts at all are
| not, or accepting other weirdness, then they start destroying the
| law itself, because people will try to build on these things and
| it'll become a completely arbitrary mess, where almost anything
| is suddenly allowed. I don't understand how US lawyers etc. could
| make this. One would imagine they'd want contract law to be a
| thing, but apparently not.
| chopin wrote:
| Contracts for thee, but not for me.
| ender341341 wrote:
| > This is a really strange thing, because to me a Swede, that
| means that whatever has been signed is not a contract at all
| and is, well, who knows what.
|
| From my reading of the article the court agrees and said that's
| not valid, the actual ruling calls it `unconscionable`.
|
| This sounds more like a scare people who don't know better from
| trying to enforce their rights, though I do think things like
| that should have some level of punishment.
| genocidicbunny wrote:
| The punishment should be unwinding of all of those
| 'contracts', with Tiketmaster taking the loss if the tickets
| sold under these terms have already been used. They should be
| refunding every single person who bought a ticket from them
| with these terms and conditions, going all the way back to
| when such unconscionable terms were first introduced.
| nox101 wrote:
| it sounds nice but people who actually saw a concert
| shouldn't get a refund.
| kevincox wrote:
| I would also like to see some punishment for this. It is
| commonly used to bully the public who can't afford to call a
| lawyer for every little thing. I do think it should be
| illegal to knowingly include unenforceable clauses.
|
| However it is not a trivial problem. Different jurisdictions
| have different rules about what sort of things are allowed in
| a contract. It probably wouldn't be good if they needed
| different contracts in different states. (Although maybe
| being required to list the differences explicitly in
| contracts that are clearly intended for cross-US use would be
| good). Additionally you won't want to void a contract just
| because any little detail is unenforceable.
| nucleardog wrote:
| _Knowingly_ including unenforceable clauses.
|
| I think the issue's with differing laws is more or less
| covered by "knowingly".
|
| A small company that gets a contract drafted up and uses it
| in a neighbouring state or something wouldn't really
| qualify as doing it "knowingly" by any reasonable sense of
| the word.
|
| A company the size of TicketMaster who has undoubtedly
| already had lawyers from or familiar with multiple regions
| review and modify their contracts can damn well be
| considered "knowingly" doing this. And if they _didn't_
| have any other lawyers look at it, well, I think we could
| call that willful ignorance ("negligence") and apply it
| anyway.
|
| This really isn't far off of established law, either (at
| least to my layman understanding). This is more or less how
| most criminal laws work already. You have to have some sort
| of intent to commit the crime. Intent can be fulfilled by
| negligence/etc as well. (You didn't _try_ and do this, but
| you didn't take the level of care that would be expected so
| it was a foreseeable outcome of your actions and we're
| taking that as good as intent.)
| SoftTalker wrote:
| > A company the size of TicketMaster who has undoubtedly
| already had lawyers from or familiar with multiple
| regions review and modify their contracts can damn well
| be considered "knowingly" doing this.
|
| Known or _should have known_ is usually how this is
| phrased.
| lesuorac wrote:
| Could also just deny severability for contracts of large
| companies.
|
| That's the only reason why unenforceable terms are
| included since their inclusion no longer voids the rest
| of the terms.
| Suppafly wrote:
| >This sounds more like a scare people who don't know better
| from trying to enforce their rights, though I do think things
| like that should have some level of punishment.
|
| Similar to those "not responsible for _x_ " signs you see at
| stores, when they are 100% legally responsible for _x_ , or
| those "stay back _x_ distance " signs on large trucks on the
| highway to try and avoid responsibility for their unsecured
| loads causing damages.
| Swizec wrote:
| > or those "stay back x distance" signs on large trucks
|
| This is also because the truck driver can't see you, if you
| follow too closely. If you can't see their mirrors, they
| don't know you exist. Obviously that's not safe.
| coredog64 wrote:
| Near me, the only trucks with this signage are hauling
| gravel. They frequently do a piss-poor job of covering
| the load and fling gravel that was left outside the bed
| during loading. I've had a fresh windshield chipped in
| under a month from these a-holes.
| jawns wrote:
| "stay back x distance" is fine and even responsible.
|
| "not responsible for broken windshields" is a lie and
| should be banned.
| johnnyanmac wrote:
| >From my reading of the article the court agrees and said
| that's not valid, the actual ruling calls it
| `unconscionable`.
|
| Hope the same thing happens to Valve. You can't just change a
| contract right before a pending lawsuit to minimize damages.
| How is thst a contract at that point?
|
| (note: I'm not part of the mass arbitration. I just want some
| justice in this world of loopholing billionaires)
| ipython wrote:
| Not only that, they tried to claim that merely _browsing_ their
| site implied that you agreed to their terms. Unreal.
|
| Lawyers at this point are just trying to throw anything at the
| wall to see what sticks. Consumer protections are no more.
| johnnyanmac wrote:
| We were doing pretty well with the FCC for the past 2 years
| too. But I guess at this point, waiting out the clock is a
| surefire strategy for any company hit by the FCC (i know
| that's not the case here since this is a mass arbitration and
| not a lawsuit from the FCC)
| zdragnar wrote:
| Anyone can write anything they want into a contract or terms of
| service. That does not make it legally binding, however.
| There's plenty of legal precedent regarding things that can
| make them invalid.
|
| The specifics of the nuances are often not common knowledge,
| though, and since common law isn't exactly written down like a
| procedural set of absolutely verifiable code, there's always
| room for interpretation.
|
| Hence, people will write imperfect contracts, and unless
| someone goes through the effort of bringing one before a judge,
| other people will abide by them.
|
| I'm not sure what an appropriate resolution is without knowing
| more detail. Did lawyers tell Ticketmaster management this was
| okay? Or did Ticketmaster get advice this was wrong but went
| ahead anyway?
|
| Do state bar associations, which manage lawyers' good standing,
| get involved? Or does TM go after their own lawyers for legal
| malpractice?
| lthornberry wrote:
| Basically similar situation in the US, that's what the article
| means when in references "formation" issues.
| kmoser wrote:
| >Ticketmaster's Terms state they may be changed without notice
| and changes apply retroactively.
|
| The use of passive voice in "may be changed" leaves open the
| opportunity for you, the end user, to change the terms in your
| favor. Just open the browser's web dev tools and change the
| source. Don't forget to print a copy for your records; you're
| probably going to need it when you bring the case to court. Or
| just print their original terms, cross out the offending ones,
| and amend to your satisfaction.
|
| Heck, even _without_ implied permission to change the terms, I
| see this as no different from somebody offering you a contract
| which you can alter to suit your needs, then submit back to
| them with your proposed changes.
| lupire wrote:
| The real problem here is that companies are allowed choose their
| own arbitrator. It's not arbitration if the result is decided by
| someone hired by one party.
|
| Arbitrator should be selected by mutual agreement or assigned by
| the government like a judge is.
| RobotToaster wrote:
| > Arbitrator should be selected by mutual agreement or assigned
| by the government like a judge is.
|
| We could go further and select them randomly. We could call it
| a "jury of peers"
| gosub100 wrote:
| you want to go through jury selection, taking several people
| away from their daily routine, so you can argue with T-Mobile
| about your phone bill?
| treyd wrote:
| If it sets a precedent and prevents >12 other people from
| having their phone bill screwed with in the same way then
| that's a good tradeoff.
| PittleyDunkin wrote:
| Imagine if you could amortize the costs and simply mandate
| that the state employ someone to decide these petty
| quabbles.
|
| Oh wait, this reinvents the court system.
| simoncion wrote:
| > ...so you can argue with T-Mobile about your phone bill?
|
| a) If it's worth the cost of hiring a lawyer and paying
| court fees, then yes, I'll absolutely pull in more than a
| dozen registered voters to do what they signed up to do
| when they registered to vote.
|
| b) It's my understanding that access to Small Claims court
| is also often barred by these binding arbitration
| agreements... so even if it's small enough to not require a
| lawyer (let alone a jury), you may be prevented from
| seeking redress in open court.
| johnnyanmac wrote:
| You can't be spammed with jury duty in the US. And
| honestly, being able to actually decide for my fellow man
| every once in a while against BS claims sounds more
| impactful than "well, this person was on camera doing the
| crime. Open and shut".
|
| But alas, the "will of the people" isn't used for civil
| suits. Wonder why (genuinely. Feels backwards for a jury to
| decide on something more technical like a criminal trial
| but not to have an opinion on civilities, which is more
| subjective).
| int_19h wrote:
| Maybe we should tax those large corps more, and use that
| money to pay the jurors. ~
| PittleyDunkin wrote:
| Neither party should be allowed to determine arbitrator at all,
| or the party with more money can simply purchase one.
| MattPalmer1086 wrote:
| I won't agree to arbitration services at all, if it removes your
| right to sue. I have been burned in the past by a manifestly
| unfair arbitration decision. We submitted our evidence, they
| asked the other side for their response. The other side lied, and
| provided no evidence. The arbitration service simply decided in
| the other parties favor; we were allowed no rebuttal.
| 0goel0 wrote:
| How do you opt out from web services? Nearly all of them have a
| all-or-nothing TOS.
| SoftTalker wrote:
| Don't use them.
| Iulioh wrote:
| Thanks, that's really useful advice!
| lupire wrote:
| And yet here you are. Brilliant performance art.
|
| https://www.ycombinator.com/legal/
|
| THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT, WHICH
| WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS
| YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
| Y_Y wrote:
| When I have claims against Hacker News then I submit them
| to disinterested coworkers. Dang can't stop me.
| olliej wrote:
| But you're literally using one now, with a forced
| arbitration agreement that you agreed to, is hackers new
| commenting literally more important to you than the other
| services you skip due to arbitration?
| Cpoll wrote:
| Legal question: is there an argument to be made that the
| arbitrator did not behave as a neutral third party (assuming
| that's the definition of arbitrator in your jurisdiction), and
| thus the contract has been breached and you're open to sue? I
| know that sounds Quixotic.
| jordanb wrote:
| The current supreme court loves arbitration so I highly doubt
| that would work.
| kmeisthax wrote:
| So, in real civil court, there's a thing called discovery
| which lets both sides demand evidence from one another with
| the force of law. Such a thing is not guaranteed to be
| available in arbitration, and in order for civil disputes to
| be decided even remotely fairly, you have to have the ability
| to pull evidence from the other side. Otherwise it's just "he
| said, she said" which will go in favor of whoever is bringing
| in the arbitrator more business.
| HDThoreaun wrote:
| You basically cant use any services then. Every single website
| with a legal team now forces arbitration.
| SoftTalker wrote:
| Correct. That is your option when presented with unacceptable
| terms. Don't accept them. Counter with your own terms (not
| likely to work for run-of-the-mill online services though).
|
| Additionally you may lobby your lawmakers to make this sort
| of thing illegal or at least more limited. But these
| arbitration clauses appeared because our civil law system was
| out of control with lawsuits. There needs to be reasonable
| limits on both sides.
| mitthrowaway2 wrote:
| This works if enough people act the same way, but not a
| small minority.
| roenxi wrote:
| Speaking precisely, a small minority is plenty.
| Successful businesses can run off a few hundred repeat
| customers and a bit of passion. The root cause is more
| that it is irrational to behave that way so there may be
| literally no or single digit people who will behave that
| way.
|
| Putting some estimates to the situation, the calculation
| is something like (chance of a serious dispute arising =
| 0.0001) x (chance of a payout from the courts = 0.33) x
| (payout = $100,000) -> I'd be willing to pay $3.30 extra
| to avoid fixed arbitration clauses in a deal where there
| was serious money at stake.
|
| That doesn't exactly capture all the game theory of the
| situation, but it suggests the risks here aren't worth
| shopping around for. It is easier and more effective to
| engage in economic voting with feet and punishing
| businesses that way for failure.
| karmonhardan wrote:
| Except Valve, for their Steam service. But that's only
| because someone realized that you could Zerg rush them with
| arbitration claims, whose fees they were obliged to pay
| (since their ToS forced users into it). Their only option
| that wouldn't be massively disruptive financially, in that
| case, would be to agree to a settlement with the arb
| representatives. So, now, you're only allowed to sue Valve,
| in a specific court of their choosing.
| 4RealFreedom wrote:
| I'm pretty ignorant about these kinds of things so how does
| this work? If Valve can specify the court to be used
| couldn't the company always choose something like Alaska or
| Hawaii where it would be difficult to show up?
| crooked-v wrote:
| The key to mass arbitration filing is that it's the
| lawyers doing it, and they're the ones showing up
| wherever in place of the people who have signed
| agreements with them. Said lawyers are essentially
| gambling that the target company will give up and allow
| normal legal maneuevers, because doing arbitration en
| masse is actually really expensive for the company
| mandating arbitration.
| balderdash wrote:
| I mean that's sounds reasonable, but only if your willing to up
| opt of a modern life (cell phones, internet, credit cards,
| subscription services, travel, insurance, etc.). I think the
| only way to solve this issue is through legislation.
|
| I actually don't have a problem with arbitration when it's a
| mutually agreed deal term. But think that when it's in a
| standard TOS/service there needs to be user protections/minimum
| standards (e.g. capped claimant fees, option for neutral third
| party arbiter, convenient/virtual location, discovery rights,
| etc.)
| eesmith wrote:
| Nor can you publish in scientific journals which require an
| ORCID. Their terms of service state "Except as set forth
| herein, all Disputes shall be resolved by through a desk
| arbitration".
| PittleyDunkin wrote:
| I'll happily accept arbitration clauses because I know I don't
| have the money to sue in the first place.
|
| Edit: why are you booing me?? I'm right
| MattPalmer1086 wrote:
| I don't know what jurisdiction you live in, but in the UK
| there is the small claims court, which is not expensive (but
| only for claims up to a few thousand).
| PittleyDunkin wrote:
| I would still be terrified to interact with such a
| mechanism without a lawyer. Court will destroy your life
| scott_w wrote:
| While your chances of winning are lower without a lawyer,
| they're nowhere near what you'd see on an episode of
| Suits. It's more akin to what you'd see on Judge Judy
| without the cameras and irritating preaching from a
| judge.
| lelandfe wrote:
| Don't be glum, chap. You too could be a story on page 8 of
| the local section regarding your brush with bankruptcy in
| successfully suing CorpCo for $75,000 after 13 years of
| appeals.
| immibis wrote:
| Then you won't be allowed to any concert, anywhere, ever,
| because they have a monopoly and make you sign that to buy a
| ticket.
| coderjames wrote:
| And nothing of value was lost.
| chillingeffect wrote:
| Theres a concert now by one of my old favorite bands, The
| Jesus Lizard. I would go with my college buddy, but I'm
| seriously on the fence bc of Ticket Bastard. I want to
| support the band, too. Hrmmm
| entropi wrote:
| I am not a lawyer or anything, but how is that legal? If simply
| opting out of the legal system is an option, why does it exist?
| michaelt wrote:
| Well, because Congress passed the Federal Arbitration Act,
| which says it's legal.
|
| Depending on your views, you might also note that American
| courts are ruinously expensive and many people are denied
| access to justice because they can't afford to go through the
| legal process - which a cheaper parallel system can help
| with.
|
| Or with different political views, you might note that
| because the powerful elite get to write the contract, the
| powerful are only subject to arbitration when they want to
| be. And laws are written by the powerful elite.
| alsetmusic wrote:
| Same reason you're allowed to defend yourself in court (to
| your peril) despite being afforded representation. It's a
| freedom, until you're locked into it by a larger organization
| with all the money and power plus a service you need to
| survive (or at least survive with some modicum of
| convenience). We've really allowed the moneyed interests to
| capture nearly everything.
| DidYaWipe wrote:
| TicketMaster's continued existence makes a mockery of everything
| we learned about antitrust laws.
| jimt1234 wrote:
| Correct. If it was possible for me to _not_ do business with
| TicketMaster, I would, but it 's just not possible. Pretty much
| any concert or sporting event I'm interested in _requires_ me
| to use TicketMaster.
| blackeyeblitzar wrote:
| Antitrust laws as they exist are useless. They require a bar
| that is impossible to prove in real life. We need new laws that
| are flexible and allow a lot more power to split up and fine
| large companies
| fieldcny wrote:
| Arbitration is just another power grab by companies, originally
| the government would keep this sort of excess and greed in check,
| as we have successively dismantled that capability the people of
| this country had to turn to the courts to seek redress and
| enforce the cost of consequences of mismanagement back on to the
| balance sheets of the companies via legal liabilities.
|
| This was supposed to be the mechanism that enforced market
| penalization envisaged by capitalism, especially in sectors where
| choice was limited or no other options existed.
|
| Companies got tired of having to deal with lawsuits that resulted
| from the misbehavior of their organizations so they started
| pushing binding arbitration clauses, and because no one gives a
| fuck about the people in this country they have been able to push
| this as an effective and cheap mechanism to shut customers up and
| remove their rights.
|
| However you feel about corporations, they are entities that
| exists only because our social contract allows them to, they
| haven't always existed and if we keep granting them or allowing
| them greater rights and freedoms than the actual people in this
| country, they may not always exist.
| HDThoreaun wrote:
| Arbitration makes sense when you think about how costly the
| court system is. The problem is that the defendant gets to
| choose the arbiter, so its not a fair system. If the arbiter
| was neutral I think arbitration would generally be better than
| the traditional court system in many cases as its easier to use
| without legal representation.
| SoftTalker wrote:
| > its easier to use without legal representation
|
| Not really. Any corporation will be represented in an
| arbitration by lawyers. The arbiter will likely be a lawyer.
| You will be bamboozled by their arguments and the best you
| can hope for is to make a reasonably clear statement of your
| claim and hope that the arbiter doesn't agree with some
| technical argument the other side has.
|
| And (I don't know if it always works this way) you will take
| turns speaking with the arbiter, you will not directly hear
| or be able to question/challenge what the the other party is
| saying.
| jordanb wrote:
| The "defense" would argue that the arbitrator was mutually
| selected when the contract was signed, because the "plantiff"
| agreed to the contract terms.
|
| The fact that the contract was non-negotiable should have
| made it a "contract of adhesion" where the plaintiff is
| recognized to have little choice in the details and the
| courts should provide scrutiny to ensure that they were
| equitable. But the supreme court has decided that "contracts
| of adhesion" don't really exist because you always had the
| choice to not have a cell phone or internet service or a job.
| fieldcny wrote:
| The court system is expensive because it's the wrong
| mechanism to address this aspect of corporate and monopoly
| power, frankly all companies have gotten too large they
| aren't efficient at any thing other than redistribution of
| the fruits of labor increasingly unfairly all the way up the
| organizational chart.
|
| The fact that no-one fails no matter the egregiousness of
| their actions or behaviors is absurd.
| johnnyanmac wrote:
| Well sadly, the mechanism made to disrupt such monopolies
| will probably be crippled in 6-12 months, maybe even
| sooner. We're definitely in a plutocracy .
| ajb wrote:
| US arbitration law is weird. A particularly bizarre one is that a
| judge did not find it possible to strike down an arbitration
| agreement where there arbitrator is part of the organisation
| being complained of:
|
| https://archive.is/mIfMs
| dehrmann wrote:
| I keep waiting for a PE firm to buy JAMS, engage abusive
| business practices in another business the own, then force
| arbitration with JAMS.
| int_19h wrote:
| It never ceases to amaze me that the Gold Base hasn't been
| raided by the feds yet.
| djbusby wrote:
| Another big company (Amazon) uses arbitration to just move the
| minimum they can screw you over for. That's is, step one for
| arbitration is to first pay the arbitration fees (~2k USD). Which
| basically means you can never fight back for small things.
| lesuorac wrote:
| Isn't forced arbitration only allowed if the company (by
| default) pays the fees?
| PittleyDunkin wrote:
| That seems unamerican and unfair to the company.
|
| Edit: this was sarcasm.
| throw7 wrote:
| Arbitration seems like how courts-martials were in the early
| days... completely lopsided in favor of the State, except it's
| corporations now. Either we get rid of arbitration (which I don't
| think is gonna happen) or there needs to be regulations to bring
| it under control (whatever that may be, i have no idea myself).
|
| Almost every service I use has, over time, switched me over to
| require the use of arbitration.
| gosub100 wrote:
| do you have your data to support that its outcomes are
| lopsided?
| simoncion wrote:
| > Almost every service I use has, over time, switched me over
| to require the use of arbitration.
|
| Many employers (even big-name tech companies) will not employ
| you unless you agree to forced arbitration for everything,
| including all labor law violations but for sexual misconduct
| charges. [0] It's really cool how fine the courts and
| Congresscritters are with the fact that many of the labor
| regulations and protections folks literally fought and died for
| a century ago have been quietly taken away from us.
|
| [0] The carveout for sexual misconduct charges is to serve as
| defense against Twitter mobs and also to meet the Federal
| "Well, it doesn't cover literally every aspect of labor law, so
| it's clearly narrow in scope and targeted, therefor it's not an
| illegal [restraint]!" interpretation of case law.
| jauntywundrkind wrote:
| Except now, with forum shopping & 5th district courts,
| companies are getting everything they asked for.
|
| And the activist court will bend over backwards to make new
| pro-business pro-partisan (imo anti-human) precedent whenever
| they can. Hardly a symbol of partisan restraint, the Supreme
| Court has sent words down to the 5th, for example, in pretty
| bold terms. https://www.reuters.com/legal/musks-x-seeks-steer-
| lawsuits-c...
|
| They weren't using arbitration before afaik, but ExTwitter for
| example is trying to court/forum steer to a very favorable
| North Texas district.
| https://www.theguardian.com/technology/2024/oct/17/elon-musk...
|
| The days of the courts being balanced & reasonable seems over &
| it seems like companies have been super able to exploit this
| shift.
| blackeyeblitzar wrote:
| Isn't arbitration a result of legislation? Why haven't
| various Congress of both parties or a mix undone it? Or
| changed its regulations to make it more fair? I don't think
| this is something for the courts to decide as much as
| legislators personally
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