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Comment by anw | Hacker News Reader

This is an interesting article, and one that is important for people who run a SMB in California to take note of.

> The court then noted that even if allowing plaintiffs to sue prior to signing up could lead to abusive litigation, that issue should be left to the legislature.

This was my concern, as well. I hope that the opening this allows for later lawsuits will be handled by the larger corporations who have deep pockets and can afford to fight these battles. My fear is that this would create a bunch of drive-by-lawsuits aimed at small businesses in the hopes that they will just settle (much the same as patent trolls).

I would love to hear from any lawyers on the board who have thoughts on this case.

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> My fear is that this would create a bunch of drive-by-lawsuits aimed at small businesses in the hopes that they will just settle (much the same as patent trolls).

This is exactly the problem that the Supreme Court has been trying to prevent by generally allowing arbitration clauses to be binding. The cost, delay and uncertainty of going to court creates its own punitive effect and thereby creates an imbalance.

California can require the company to pay the all or the majority of fees for arbitration, and this has been used by large groups of individuals to band together and arbitrate at the same time, costing great deals of money and burden to a company, forcing them to settle.

https://news.bloomberglaw.com/daily-labor-report/uber-sees-w...

The 60k arbitration claims could of cost $75m in fees alone, not to mention it can be 9k/day to pay the arbitrators themselves. So they settled for $146m.

There are a few other cases of this, and I am sure there will be more collective action through mass arbitration. I imagine eventually it will come to being abused as well.

If a business is facing 60000 arbitration claims from customers they are not a small business anymore and presumably should be able to handle the burden of arbitration customer disputes.

You’d presume so, but in fact they cannot. The reason that so many companies adopted forced arbitration was explicitly because it made such actions uneconomical for consumers to actually enter arbitration.

The moment large groups of individuals start making use of the forced arbitration every company has tried to get the courts to let them get out of arbitration that they inflicted on others.

It is well established that forced arbitration has nothing to do about efficiency for company vs individual and is specifically because it is a system designed to protect companies from culpability.

I was a licensed arbitrator. I am aware of how arbitration works and what it is supposed to accomplish.

My point was that a business with at least 60000 customers is not a very small business. It's a sizable business that should have the resources to defend itself in the 60000 arbitration cases that it chose to force upon its customers.

Sorry, I just want to clarify as I may have misread "should" (English is a marvelous language :D )

Are you saying that you expect them to have the resources, or are you saying that the businesses should be budgeting to support responding to large scale arbitration?

That doesn't make sense at all.

Just because a business is large doesn't mean they are high margin or have infinite money.

If McDonald's had to pay $9000/day in arbitration for every one of their billions of customers, they would spend more than their market cap in a few minutes.

The whole point is that these companies have to pay for arbitration for each customer, rather than e.g. a single class action law suit. So unless you make over $9000 per day off your customers, you're going to lose big time.

The whole point of companies forcing arbitration clauses onto their customers was to save money by denying customers the appropriate legal avenue for recourse. If the company didn't want to face 60000 arbitration cases they shouldn't have blocked their customers from filing a single class action lawsuit.

I agree with you. With collective action this can become a very powerful tool for consumers, and just saying "they're a big company they can afford it" really misses the point.

Well said

I agree with you on the risk.

This seems to have tremendous implications for any digital business. I'm reading into this a bit, but it seems that part of Square's case rested on the fact that White didn't actually want to do business with him. He may have just heard about the Shierkatz case from his friends' firm and then saw an opening for a class action.

If that's the case, just the passing intention to do business - real or not - becomes grounds? Yikes. I feel like I agree with the decision to have business be open to all consumers, but I didn't see much in the way of proof-of-intent on the plaintiff's behalf.

This is the same nonsense discussion we are having with the unfiltered NSA data collection: you know it's happening, they say it's happening, but no one can have standing to sue because you know, you being spied on is secret.

Standing should never be the hurdle these kinds of claims fail on.

It seems you might be right:

> White was personal friends with a partner of Shierkatz RLLP, and he discovered the prohibition on debt collection in Square’s agreement after reading the court’s Shierkatz file.

Drive by lawsuits for discrimination? I'd like to hear more about how this would work.. Is this a thing? Like you would go sue a perfectly legitimate and non-discriminatory business for excluding black people, even though no such discrimination exists? And how would they win that? And how many attempts before they lose their license and/or are barred from bring any more cases?

Here's the Unrah Act:

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

Seems to me that the only business that would be concerned is a business that is engaged in activity that they shouldn't be doing anyway. And if that's the case, they should be sued.

Drive by lawsuits for the ADA are very much a thing

e.g.,:

Beyonce -https://fortune.com/2019/09/21/beyonce-lawsuit-website-ada-c...

https://tandem-interactive.com/ada-compliance-websites/

So your example is a website that does violate the ADA. I understand that ADA compliance is hard for websites... that's not a legal issue so much as a technical issue. We do treat support for the blind, et al as an afterthought. So is your complaint here that the ADA is being enforced? Like we should just get rid of the ADA because people aren't complying? Or are you upset the ADA doesn't say: please make your best effort? Better support for the disabled in our front end frameworks would be awesome.. It is too bad there isn't more focus on it.

I'll bite the bullet and say it: If the ADA requires UC Berkeley to take down 20,000 hours of lecture videos[1] because some of them lacked subtitles and some lacked audio descriptions of slides, then the ADA needs to be changed. And any university that commits civil disobedience by not removing such content is making the world a better place.

1. https://news.berkeley.edu/wp-content/uploads/2016/09/2016-08...

the ADA doesn't require that...that was Berkley's choice of response. They took their ball and went home

Here is an analysis of the cost difference between in house and outsourcing closes captioning.

https://www.3playmedia.com/2019/02/04/closed-captioning-in-h...

Best case was $2.94 per minute, worst is $5.87

Arguably they can afford the 3.5 - 7 million dollars but if they aren't reusing the material for current students they may reasonably desire to spend the money elsewhere.

I would argue that you shouldn't acquire an obligation by providing something for free without benefit to themselves.

The ADA may not require it, but the compliance costs it imposes are a strong disincentive for publishing.

The ADA in that case turned an unmitigated public good from "Sure, why not publish them online?" into "We can't publish this content without paying a lot of money we don't have, so we just won't publish it.".

In this case, the ADA has left society worse off.

I think what you're missing is that the websites may be 100% in compliance with the ADA- the site owners simply can't risk the expense & uncertainty of a lawsuit, so they settle. It's (legal) extortion, the law is simply the vehicle by which they do it. And it certainly doesn't make the world a better place for the disabled, it's just a payoff for the attorneys. It is literally the same concept as patent trolling.

Maybe a solution would be to change these laws so that the outcome of the lawsuit is a mandated change to ADA standards, but no damages, and parties have to pay their own attorney's fees. That would achieve what you say you're looking for, good faith ADA compliance, without incentivizing strongarm attorneys looking for a quick buck

Many (most?) countries follow the "Loser Pays" principle in law-suites.

That is, whoever loses the case has to pay both their own and the other sides legal costs.

This radically changes incentives, and much of the abuses in the US system just don't occur.

Does this not also disincentivize the little guy from taking on BigCorp? I might be willing to put up tens of thousands of dollars to fight for justice but I can't risk owing millions to BigCorp lawyers if a judge or jury disagrees.

If you know you're right, you can take on anyone for free!

If the issue isn't clear it's more of a gamble. And maybe those issues should often be left out of court.

>Maybe a solution would be to change these laws so that the outcome of the lawsuit is a mandated change to ADA standards, but no damages,

We pretty much have this for violations of civil law. The judge says "just make your crap in compliance and we won't fine you" and continues the case to a later date and if it's in compliance by that later date they don't fine you.

Of course that doesn't solve the trolls that send a scary looking letter even when no violation exists and hope that the victim settles but it's better than the trolls being able to win in court.

oh no, I have absolutely no complaint. I 100% support the ADA and think it is incredibly underused. The way we treat people who are disabled in this country is morally indefensible. The ADA doesn't go nearly far enough, and the burden should not be on the person who needs access.

That being said...

The problem in this case is the rammifications are not always more accessibility, in fact they are often less accessibility and even less availability. It's not dissimilar to copyright trolls and striking youtube videos that happened to have happy birthday playing in the background. The frivolous label gets applied and undermines greater accessibility.

An example of where this can go bad:

1) Materials that are not accessible are taken down under threat of lawsuit, now its not available to anyone. Could they have been made accessible? Sure! did anyone ask...or did they start with a lawsuit? - https://www.theledger.com/news/20190420/ada-compliance-polk-...

2) when assholes are assholes and use the ADA, everyone else now has to counter arguments saying they are trying to personally profit - https://attorneyatlawmagazine.com/ada-trolls-and-unintended-...

3) New laws making it harder in Florida to win ADA lawsuits - https://www.wptv.com/longform/florida-lawmaker-files-bill-to...

You might hope that the risk of legal damages would spur better technological solutions. Businesses won't take these issues seriously unless it impacts their bottom line, so that's the point of these laws.

There's also virtuous cycle here: sites that are more accessible to screen readers would generally have better semantic markup, and be better for machine parsing, too.

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