My Weirdest Habit
And why you should adopt it.
I am not always the most detailed-oriented person, hence my defaulting to extensive list keeping and note taking. However, when presented the chance to cause a mild inconvenience to multinational corporations, I will peruse details like I am clerking for a Supreme Court justice.
I am referring, of course, to terms of service. Also known as end user license agreements, these are the extensive documents we all lie about having read before opening a new piece of software. These days, everything from your refrigerator to your car comes with a term of service. Dozens and dozens of pages of legal jargon that no one could reasonably be expected to read, let alone understand, without a law degree.
Over the last 25 years, there has been a particularly frustrating trend of legalese buried inside user agreements. Empowered by a post-Regan, post-Bush, corporate-friendly federal judiciary, in the 1990s companies realized they could avoid costly class action lawsuits by forcing their employees, vendors, and consumers to agree to forced arbitration in the event of a dispute, waiving their right to sue the company. The practice is referred to as “forced” arbitration because the signee must agree to arbitration to interact with the company. The Economic Policy Institute puts it best:
These terms are called mandatory or forced arbitration because if the employee or consumer does not agree to arbitration, he or she will be denied employment or the ability to purchase the product or service. The employee or consumer has no real choice or ability to negotiate the terms of the arbitration clause.
That same report from the EPI goes on to detail a particularly heinous example, describing the plight of Stephanie Sutherland in trying to recoup unpaid wages from her former employer Ernst & Young (EY) in 2009. Attempting to recover $1,867 in unpaid overtime, Sutherland filed a class-action suit under the Fair Labor Standards Act (FSLA), combining her grievance with other EY employees who also were misclassified and underpaid.
In response, EY pointed to an arbitration agreement Sutherland was required to sign as a condition of employment, subjecting her to mandatory forced arbitration in the event of an employment-related dispute between her and the company. The FSLA expressly permits collective (class-action) lawsuits for minimum-wage and overtime violations. Furthermore, an attorney’s estimated that arbitration would cost approximately $200,000 to recover less than $2,000 in unpaid wages. Despite these facts, the US Court of Appeals ruled in favor of EY and the arbitration clause and dismissed the class-action suit.
In 2009, EY brought in over $20 billion in revenue.
Of course, it is unlikely that your internet-connected refrigerator or television will damage you to the tune of $1,837 – but not impossible. Facebook’s parent company, Meta, has been ordered to pay $90 million in the latest data privacy class action suit against the company, and accessing Facebook costs each person $0. A 2017 model of one of Samsung’s “smart” refrigerators has caused thousands of dollars in damages to people’s homes when its defective ice maker leaks, and a class-action suit is in the works. If forced arbitration had prevented consumers from raising their issues with Meta or Samsung in court, the companies would have been able to address each complaints individually, diluting the power of the injured class to combine resources and forcing each aggrieved individual to individually pay for and pursue arbitration.
Arbitration clauses also dictate extremely friendly terms to the company writing the policy. Rather than allowing consumers to travel to the court nearest to them and work with attorneys from their communities, arbitration clauses typically mandate the use of one of three major arbitration providers, AAA, JAMS, and CPR. If a company does not like the ruling of one arbitration provider, it can simply reach out to the other and change its terms to direct all future claims to that firm. Often companies will stipulate that arbitration occur in a jurisdiction near their headquarters, often in California or New York City, further disenfranchising most people both in the United States and abroad.
As consumers and employees, there is a narrow path to recourse through arbitration. One law firm, Keller Linkler, took notice of the stunning lack of arbitration claims and the ban on class-action lawsuits in the gig worker industry. The firm has coordinated simultaneous arbitration action against companies like DoorDash, filing over 6,000 arbitration notices at once and hoisting the DoorDash legal team by its own petard as it drowned in a sea of paperwork.
But there is an even simpler avenue to avoid this issue. Many times, a company’s terms of service will include a method for opting out of arbitration. I take advantage of this option every single time it is presented to me, and the process could not be simpler.
My most recent experience opting out was when my roommate bought a new Epson printer. To install the printer’s drivers on my MacBook, I had to agree to Espson’s terms of service. Before hastily clicking through to accept and download the software, I performed a simple ⌘-F (Ctrl-F for you Windows users) search for the word “arbitration”, which took my directly to section 14 of the 11 page, 4,339 word agreement:
Opt-out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class and representative proceedings specified in this Agreement by sending a written letter to the Epson Address within thirty (30) days of your assent to this Agreement (including without limitation the purchase, download, installation of the Software or other applicable use of Epson Hardware, products and services) that specifies (i) your name, (ii) your mailing address, and (iii) your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section 14. In the event that you opt-out consistent with the procedure set forth above, all other terms shall continue to apply, including the requirement to provide notice prior to litigation.
Next, I wrote a simple letter to Epson, including my name, address, the date, and the sentence “I request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in Section 14 of your Software Agreement”. I signed and printed my name at the bottom and then slid the paper into an envelope addressed to the “Epson Address” the company helpfully spelled out for me in section 14.3 of their agreement. Total cost to me: five minutes of my time and 58 cents for a stamp.
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I have exercised this right over the past few months for products ranging from my gym to my credit card. At this point, a quick search for “arbitration” is habitual whenever I click “yes” on a new software agreement. Not every company offers the ability to opt-out, and not every company mandates arbitration. But low-effort, high-reward actions are always worth it. If I wanted to be more certain of my opting out, I would send my letter by certified mail, which would add $3.75 and a trip to the post office to the cost but would come with the added benefit of providing me with confirmation of the company’s receipt of my letter.
Honestly, I hope I never have to make use of any of the class-action rights I have ascertained for myself. However, in the unlikely event that the bench press collapses on me during my next workout or my credit card company sells my information to some hackers on accident, I can sue.
The greater point of my curious habit is to send the smallest of messages to these massive corporations. I will not allow you to dictate my rights. There is some evidence that these strategies of opting out or coordinating arbitration filings are having an effect. After facing 75,000 forced arbitration demands under its terms of service, Amazon changed its terms of service to allow lawsuits again. In the weeks after making the change, the company was presented with three different class action lawsuits.
After reading this, you might think I am even stranger than you realized, understandably so. You might also think about this post next time you are presented with a user agreement and perform a quick search for arbitration. Maybe you will even realize you have to go to the post office anyway to send your mom her birthday gift and you might as well take the 30 seconds to jot down your opt-out notice and drop it in the mail. Slowly but surely, we can claw back our right to hold companies responsible for their misdeeds.
Important notice: I am not an attorney and this is not legal advice.
Things I Enjoyed This Week
My Uncle Jim was featured on a recent episode of the podcast The Nomadic Outdoorsmen. He has 51 years of deer hunting experience. I have zero. I still found his episode very fascinating.
Atlanta | Michael Vick for The Players Tribune
We got a new garage door. It came with an epic story | Situation Normal
Thank you as always for reading. Happy Friday and have a great weekend.