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posted by
chromas
on Friday November 02 2018, @04:16PM
from the click-here-to-not-lose-your-rights dept.
from the click-here-to-not-lose-your-rights dept.
If you have a Pixel 3 phone, you should be aware that you can opt out of the built-in binding arbitration agreement. Boing Boing has a screen shot of the new Pixel phone's binding arbitration opt-out form. Pixel phone owners, insofar as they actually own the phone, are given a chance to avoid Google's attempt to get them to sign away your right to sue even if the company hurts, cheats, or kills them.
Earlier on SN: Google Avoids Talking About Android at Pixel 3 Event.
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The New Pixel Phone Has a Bizarre, Obscure "opt-out" Arbitration Waiver
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If the thunder don't get you, then the lightning will.
(Score: 2) by ikanreed on Friday November 02 2018, @06:11PM (10 children)
You know what? Fine. I'm a fucking huge ideologue and hate things I imagine to be causing a tremendous harm to society and humanity for petty greed. And I can acknowledge that there's a perfectly rational place for a similar thing in a functioning society.
(Score: 5, Informative) by edIII on Friday November 02 2018, @07:44PM (9 children)
I have to defend arbitration a little here. You realize that it's just the recognition by government that parties sought redress from 3rd parties with consent and fairness? The result is a new contractual agreement if you will that the government recognizes as binding because it recognizes a right to choose a different venue than the courts. Personally, I think when large amounts of arbitration is occurring, it is a canary-in-the-coal-mine indicator of insufficient judicial capacity. Most would only choose arbitration because of court costs, and time. Arbitration is faster and cheaper in many cases.
Where it has gone wrong is the implementation, as the other poster already stated. I've been involved with arbitration clauses between investors and large projects. In those cases that level of unfairness simply doesn't exist with the sophistication of both parties being relatively high, and presence of lawyers ubiquitous. There are at least three attorneys acting as judges and one of them must always represent the plaintiff only. The "middle" lawyers are by mutual consent only. In these cases, the lawyers chosen are typically high dollar corporate lawyers with industry experience and some sort of reputation to protect. That middle lawyer plays it pretty carefully, and they ALL explain their reasoning consistent with the court system. Whatever is decided, must also conform to contract law and be within reason. So it is not without legal structure that could be applied fairly.
Now, where we feel the same is the bullshit arbitration clauses hidden in agreements between large megacorps and the average level of sophistication in the consumer. Which is to say, not that damn much, and who the hell reads that shit? In those cases, it is referred to a firm where they act as all three fucking lawyers. There was a documentary about this with credit card defaults and how arbitration magically found for the credit card companies nearly every single time, in many cases with the consumer never being present or aware. No wonder they like it huh? It's applied unilaterally by the stronger and more sophisticated side.
Arbitration reform is what is required. Eliminate it for all normal consumer products under $5,000, and financial products under $100,000. The people that want arbitration are large investors, the accredited (or super-accredited), and mid-sized to huge businesses. Also make it incredibly easy to take the arbitration process itself to court if necessary when you can show that the plaintiff or defendant has over-representation. It must not be a slam dunk that arbitration was binding, and it must be evaluated for fairness by the judge. Which is incidentally, the other reform required; Some sort of appeals process.
I share your anger, but there is nothing intrinsically wrong with the process. Like always, avaricious unaccountable C-Suites are a disease. A pox upon all our houses, and they corrupt and ruin all they touch.
Technically, lunchtime is at any moment. It's just a wave function.
(Score: 3, Insightful) by ikanreed on Friday November 02 2018, @08:06PM (3 children)
Look, there's a reason why jury trials were protected in the constitution for lawsuits over $20(The supreme court has correctly decided this number if subject to inflation). The only arbitration that has any placed in a civilized society is when both sides do not feel like involving a court in a matter.
(Score: 2) by edIII on Friday November 02 2018, @09:07PM (2 children)
Exactly. The problem is one of informed consent and fair execution. Most consumers are unaware they did it, so first reform is a separate one-page acknowledgement, in large type, that expressly states that they are agreeing to arbitration. Then arbitration is explained. It could be a form letter provided by government, listed as addendum A in the contract, with simple links provided for additional consumer information :)
That, and the corruption is so fucking apparent. In most cases we need to get rid of the corruption, and the process itself is fine.
Technically, lunchtime is at any moment. It's just a wave function.
(Score: 2) by ikanreed on Friday November 02 2018, @09:14PM (1 child)
No, not agreeing up front. You only need any kind of adjudication when one side has failed to hold their end of the deal. That means we're already out of the bounds of any kind of up front expectations. There can be no blind arbitration without law and justice.
Information asymmetry is only part the equation. Bargaining asymmetry is another. So is picking when to cut and run from a deal based on the ability to depend on arbitration, which may be super asymmetric. The only time it makes any sense is when the particular dispute can be agreed is beneath needing a judge and jury, or the potential costs are very small.
(Score: 3, Insightful) by edIII on Friday November 02 2018, @09:31PM
Yes, which is why I saw arbitration is eliminated for all products and services under $5,000. Which is incidentally, the limit of small claims court. That is not onerous either, and the costs are usually less than $100 to file for up to $5,000 in relief. Also eliminated for all financial products (loans, cds, minor investments, small crowd-sourcing) under $100,000.
Leave arbitration to those who want it, namely, accredited and super-accredited investors that the government recognizes as not needing protection. In those cases, and those investments, the investors *cannot* go to the SEC and complain. They will be told, "You're so rich that you asked to be treated special, and here are the consequences... *hangs up phone*". Those investors are left with the courts (civil case) or arbitration (privately decided civil case), and denied all formal protections for consumers (AFAIK).
Like you said, only the smallest issues, but also the very large ones. As for the really small issues? Arbitration will be more expensive than simply filling out a form, paying $75, and then explaining it to a judge. It doesn't make sense to provide arbitration for cases less than $500. No lawyers will show up :)
On another note, as part of the reforms, make class action lawsuits easier for the people, not harder.
Technically, lunchtime is at any moment. It's just a wave function.
(Score: 2) by crafoo on Friday November 02 2018, @09:54PM (1 child)
nope
not really 3rd party, heavily bought-off
coerced consent
IMO, a transparent end-run of the justice system and the will of the citizens.
(Score: 2) by edIII on Monday November 05 2018, @08:35PM
If you read what I said, in multiple posts, IT IS being used improperly and incorrectly. You think unilateral contracts just exist for arbitration? You think coerced consent, or uninformed consent, only happens in arbitration agreements?
In large arbitration agreements there is ZERO coerced consent, and nobody is being bought off. Those arbitration agreements are actually fair, and deliver faster judgments for either side. Not justice, just faster outcomes. It's not a bypass of the justice system either, and with informed consent of both parties, doesn't violate the will of the people. Decisions made in arbitration must be in a contract that will be upheld in a court.
Where I'm an agreement with your umbrage, is coerced and/or uninformed consent. Hiding it deep down in a EULA is uninformed consent. Only a separate page, requiring initials that you understand the impact, is acceptable. Again, like in my last post, eliminate it for 99% of all consumer products and interactions with large megacorps. Businesses and investors however still reap positive benefits. That's as simple as creating a monetary limit, and below that, arbitration clauses are invalidated by law. Meaning, they wouldn't stand up in a civil court as a defense, or a valid request for a change of venue.
Technically, lunchtime is at any moment. It's just a wave function.
(Score: 2) by darkfeline on Sunday November 04 2018, @03:22AM (1 child)
Incidentally/ironically, the high financial and time cost of the judicial system is also why arbitration is a better deal for consumers (assuming the arbitration is fair). How many purchasers of consumer products under $5,000 can afford a lawsuit against a large corp? The large corp can eat that cost without a sweat; they're already paying for lawyers.
I wasn't aware of the abuse of arbitration that you mentioned. There are laws governing arbitration clauses, and those clauses can be voided if determined unconscionable/unfair. I'm assuming that US arbitration law doesn't have a huge loophole, but otherwise consumers should actually benefit from arbitration compared to going to the judicial system.
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(Score: 2) by edIII on Monday November 05 2018, @08:42PM
The majority actually. $5,000 is the limit for small claims courts. As long as you are not requesting relief above that amount, it will cost you $75 in Las Vegas, NV to file a small claims lawsuit. They have forms downtown, and even people to help you write them. Small claims is an affordable way to seek justice and relief, and if you know what you are doing, you can really fucking stick it to the megacorps. Those lawyer's they are already paying for need to accompany an executive of the corporation to be present at those court proceedings. Many times the cost of all of that can be damn near the $5,000 limit. Big megacorps will fold simply because they don't want to send the jet down to that county and waste an executive's time.
Small claims courts are interesting.
There are HUGE fucking loopholes in arbitration. Nothing else explains how the credit card companies were using it against consumers that defaulted, then passing it to a single firm, that acted for all sides. Talk about a conflict of interest, but to my knowledge, no state court has ever not upheld one of those arbitration rulings. Meaning, it's corrupt as fuck for the small person.
Technically, lunchtime is at any moment. It's just a wave function.
(Score: 2) by Bot on Sunday November 04 2018, @09:38AM
That IS the problem.
> be the government
> enforce laws
> the lawmakers have family who need a job
> laws become unreadable
> the lawmakers still have family who need a job
> precedent rulings become law
> the lawmakers still have family who need a job
> arbitrators become needed to relieve people of the mess
This is not an unfortunate development, as it is proved by education, where you spend time learning irrelevant subjects (so to "exercise the brain") and leave vital things like law, basic psychology, finance, pretty untouched.
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