I can't believe this is even legal

codeGlaze · Post by **codeGlaze** » Thu Apr 17, 2014 8:41 pm

"Forced Arbitrage"
General Mills added language to take away your right to aue if you like them on facebook, use a coupon or otherwise accept anything "free" from them.

angelfromanotherpin · Post by **angelfromanotherpin** » Thu Apr 17, 2014 8:56 pm

I'm not a lawyer, but I do know that a lot of stuff similar to this exists and is basically completely non-binding. Like, they'll pull it out and wave it at you and hope you cave because it has a lot of legalese in it, but it has no actual weight in court proceedings.

fectin · Post by **fectin** » Thu Apr 17, 2014 11:46 pm

Uh, not exactly. IIRC, the words you're looking for are "contract of adhesion." And while it is difficult to enforce, it's also not completely bullshit, do you actually have to fight it.

Kaelik · Post by **Kaelik** » Fri Apr 18, 2014 12:42 am

I don't know where you lawyer, but we have never called that contract of adhesion.

However, yeah it is not bullshit, but like, if your contract says X costs Y, and you sue, judge usually tells you that X costs Y. But if contract says you have mandatory arbitration, judge still looks very carefully to see if you knew that you were agreeing to it, if it was a negotiated term that was important to the other party, if it is reasonable under the circumstances, ect.

Dean · Post by **Dean** » Fri Apr 18, 2014 8:01 am

I've heard about Forced Arbitrage before. I know you have some expertise in this area Kaelik, could you tell us a little more about how to beat such a thing or anything you know about it?

It just seems so blatantly illegal. Like if that is legal I don't understand what -can't- be legal.

Kaelik · Post by **Kaelik** » Fri Apr 18, 2014 9:28 am

deanruel87 wrote:I've heard about Forced Arbitrage before. I know you have some expertise in this area Kaelik, could you tell us a little more about how to beat such a thing or anything you know about it?

It just seems so blatantly illegal. Like if that is legal I don't understand what -can't- be legal.

Arbiters are supposed to be and kind of are neutral, so it is totally sensible for them to exist. In many cases, both parties consent to arbitration once the dispute has realized, however, there is no particular reason that parties can't agree to see arbiters if any dispute should arise.

However, most courts recognize that basically, arbiters are never going to give as much money as a jury for a lot of reasons. So some companies like to put arbitration clauses into form contracts to just avoid juries whenever possible.

When you are dealing with a forced arbitration clause, it matters a lot what state you are in. Some states explicitly dismiss them out of hand. Other states nearly always enforce them.

Most states look at them and decided based on some number of factors like:

1) Was it a form contract.
2) Did you know you agreed to Arbitration.
3) Did the parties negotiate about Arbitration.
4) Is the issue really fucking bad.
5) Do we really want this kind of dispute being signed over to arbitration?
6) Was the misconduct being arbitrated intentional or just negligent.
7) Other shit I can't think of now.
8) How much does our state hate forced arbitration? (usually strongly correlated to: Do we have more important shit than this clogging our courts.)

fectin · Post by **fectin** » Fri Apr 18, 2014 7:53 pm

I don't lawyer anywhere. And (maybe) knowing the names of things isn't the same as being smart on them. Even so, it sounded like this thing:
http://en.wikipedia.org/wiki/Standard_f ... f_adhesion

Kaelik · Post by **Kaelik** » Fri Apr 18, 2014 9:07 pm

fectin wrote:I don't lawyer anywhere. And (maybe) knowing the names of things isn't the same as being smart on them. Even so, it sounded like this thing:
http://en.wikipedia.org/wiki/Standard_f ... f_adhesion

Oh I see, yeah, it isn't that. A contract of adhesion (which maybe is called that, but is so rare that I don't have a name attached to it in my head) is basically the idea that one party offers a contract and says that they will accept no alterations, and the other party has to agree because that is all they have. It doesn't come up much because no one is the only person in your field these days, so you either negotiate, or they leave and get someone else.

Mandatory arbitration is shoved in a lot of form contracts, but nothing about it's inclusion has to be contract of adhesion. Theoretically, one party could object to arbitration, and the other party could offer a discount to secure the agreement. Or both parties could talk about it and both decided that arbitration is in their best interests.

TarkisFlux · Post by **TarkisFlux** » Sat Apr 19, 2014 4:13 pm

Stuffing forced arbitrage certainly doesn't make it a contract of adhesion, but it's not as if you get a chance to negotiate it with General Mills before you like them on facebook. Doesn't that make this a contract of adhesion that happens to contain mandatory arbitration (which would then be subject to form contract concerns in court if you challenged it)?

ACOS · Post by **ACOS** » Sat Apr 19, 2014 6:22 pm

As a practical matter, it's pretty asinine.
Either it won't be meaningfully enforced - making it completely pointless, or it will end up being harmful PR for any company who does this.
Either way, it's dumb.

Kaelik · Post by **Kaelik** » Sat Apr 19, 2014 10:37 pm

TarkisFlux wrote:Stuffing forced arbitrage certainly doesn't make it a contract of adhesion, but it's not as if you get a chance to negotiate it with General Mills before you like them on facebook. Doesn't that make this a contract of adhesion that happens to contain mandatory arbitration (which would then be subject to form contract concerns in court if you challenged it)?

Honestly, I have difficulty imagining any court anywhere declaring a contract to exist from liking a fucking facebook page. Where is the consideration for either fucking party? What are the terms you actually agreed to? Only the ones you know? You don't know any of the terms because there is no semblance of a contract.