Amazon.com's Conditions of Use – Disputes now resolved by the courts
amazon.com
amazon.com
https://www.wsj.com/articles/amazon-faced-75-000-arbitration...
>‘Scared to Death’ by Arbitration: Companies Drowning in Their Own System
https://www.nytimes.com/2020/04/06/business/arbitration-over...
or https://web.archive.org/web/https://www.nytimes.com/2020/04/...
https://www.wsj.com/podcasts/the-journal/why-suing-amazon-ju...
Different podcast but that’s the episode. The Daily is still good.. the one linked above is good as well
Fun fact - the entire thing was prototyped by the lawyers using no-code systems, then only rewritten with an actual Web framework when they had proven out the idea:
https://www.gsb.stanford.edu/insights/why-binding-arbitratio...
It's simple. The optimum situation from Amazon's point of view is a system that gives almost enough justice to avoid public outcry, and no more. The most outrageous cases should get paid a modest amount, average cases should get paid a tiny amount, and no stretch cases should get paid. Amazon anticipated that by paying for the arbitration process, they'd end up with a set of pro-Amazon arbitrators and that, in itself, would keep the number of cases filed to a minimum. What they didn't anticipate was enough people angry enough to file cases even in a biased system just to mess with the company.
In arbitration, you do not have a judge, so there isn't subpoena power, and discovery is extremely curtailed.
For the choices that matter to the arbitration firm, they absolutely do. Without a customer who is willing to initiate arbitration proceedings, there are no fees to be collected.
If there is a huge upfront financial burden to the customers, the customers are much more likely to just drop the whole matter. And while the businesses would absolutely consider consumers not pursuing grievances to be a win, the arbitration firm does have an incentive to actually have there be some arbitration.
http://www.vsb.org/docs/valawyermagazine/apr02kirsner.pdf
A cursory read suggests that having arbitration fees paid by the customer opens the door for them to ask the courts to throw out the arbitration clause; so it's safer to assume responsibility for the costs to ensure the clause remains enforceable.
> “No doubt, DoorDash never expected that so many would actually seek arbitration,” U.S. District Judge William Alsup wrote in an order last February. “Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed.”
Actual poetic justice.
I've never been personally involved in arbitration, but I wouldn't be at all surprised if the arbitration firms have not developed any real equivalents. Heck, being for-profit organizations, I would think that they have every incentive to not develop anything like that.
My opinion on the matter is that plea bargain is a hack to work around a slow legal system. If it weren't for the slowness of the legal system, we would not need plea bargain.
Also, since there's no verdict by a judge, I find it not rather undemocratic.
Lower courts and court cost are also ways to put less stress on the legal system, but they can be balanced.
In order to participate, consumers pay a one-time fee capped at $250 and they pick up the rest. "The rest" includes the balance of the arbitration fees ($1500). Companies used to ignore this and leave people in arbitration limbo but California changed their laws a couple years back and if the company fails to pay, it automatically goes into arbitration and they have to pay after.
More importantly, $1500 each isn't the big cost. The more expensive part is they have to individually respond and work them through the process. If you have 100 or 1000, the billable hours - or even just corp legal team's hours - start racking up quickly and it ties up and slows down all other matters.
And none of this considers the consequences of the arbitrations. Win or lose the first few, people can iterate and shift the outcome over time.
So yes, it becomes a legal DDOS.. and Amazon dealing with 75k of them is a staggering number and still only a fraction of what they could have faced.
I've appealed everywhere I could, emailed jeff@amazon, but never get a response from anyone anymore; probably for being so annoying on the issue.
Do sellers have any rights? For the record this has basically ruined my business. I started selling online (on my own site) in 2015 and started selling on Amazon in around 2017 and around the time of the pandemic basically all of my sales volume shifted from my website to almost all of it on Amazon. What they've done here is great for consumers; but now they control the rails and people aren't doing as much ecommerce shopping if outside of Amazon's walls.
Obviously they have done nothing illegal by destroying my livelihood like this, but, it feels weird to have no recourse for a violation that has impacted my life so deeply. I wouldn't even ponder the idea of bringing the law in to help remediate my situation here but wonder if anyone may have any thoughts as to otherwise.
Apparently the only way to get in touch with this team who's banned my account is through a form that they don't respond to.
The people on the phone are nice; I beg, bribe, offer to send chocolates; but their response is always the same. They really seem to have no way of contacting this team. The only other avenue is the jeff@amazon outlet which doesn't respond to my emails. I've emailed that address maybe 4 times total about this issue; the first time they did respond and seemed to get me pretty close to resolution; but then stopped responding half way through. The follow up attempts to jeff@amazon after the first stopped receiving replies.
Maddening! I can probably count on one hand the number of times I've felt stressed out in my life; but this is one of those rare occasions because I feel so powerless.
Wish you could have seen the product I was selling. It had an average of 4.8 star reviews; over 300 which had been submitted. All real customers. I was so proud of that.
Thanks for the response though!
This path has been taken in some jurisdictions, for things like deleting customer data, accounts and more.
But it has been proven again and again, that offering paid services with zero customer support, is seen as a plus for many corps. I presume the logic is, support costs big, better to lose a small percentage of clients, than support them all fully and reasonably.
Some cite Chinese sellers, fraud as the problem. No, that's not the problem, the problem is not dealing with cost, and this issue, in a reasonable way.
We have centuries of common law, and legislative backing which essentially states that consumers, clients, businesses must behave in a certain way with one another.
Amazon is trying to game the system, by ignoring these covenants, and creating process and conditions which purposefully denigrate these concepts.
So glad someone found a way to mess up their perfect little plan to keep consumers, and clients out of court.
Consumer rights are not something to be optimized, mitigated, reduced.
More thoughts ; we've been through this forever. Think of all the lemon laws for car dealers , manufacturers, as a result of just plain scummy behaviour.
It's all the same thing. Act scummy, and we'll make you stop.
I'm not sure if there are any serious proposals on the table on how they should be broken up; but I could imagine different companies that act as a gateway to selling on amazon. These companies would compete to offer the best experience to sellers. Someone more centralized higher up would regulate the companies that act as a gateway.
Amazon is so big that in my opinion it needs to have some incentivized structure that looks something like this. What they are doing right now is not fair and it is not working.
Still, they should have an escape hatch for sellers like me who are highly motivated to fix these issues and willing to go to great lengths to do so. I live in Seattle so I've played with the idea of barging into the HQ and start asking random strangers to help me. I know I am not the only one in this category and it seems ridiculous that they have recourse no matter their level of effort.
Can’t making any promises (this isn’t my job) but I can try to get this in front of somebody.
Thank you!!!!
The thing that finally did it for me, was when I went to cancel my AWS account. The AWS get rep got involved, and my seller account magically got unbanned within a day.
Is this a common thing to put into terms?
I've only seen it in print once, but then again, I'm not in a situation to sign contracts like that often. I refused, since I can't imagine a scenario where it benefits me.
I’m serious. If the expectation is that I can be bothered to check for updates to 1000’s of terms of service every morning, why shouldn’t they be expected to hire someone to check personal homepages and social media accounts for such things?
“Last writer wins” in US contract law (roughly speaking, IANAL), and I’m reasonably sure I can establish that my addendum “happens after” company terms of service updates.
I’m happy to agree to binding arbitration, or flying to Washington to have a (corrupt?) judge or whatever process my complaint for a meagre $10,000 per hour (plus expenses) for the duration of the dispute.
Edit: payable up front, regardless of the outcome of the dispute.
I do agree with the sentiment though. IMO, if one party to a contract cannot have a reasonable expectation (!) that the contract was read by the other party, the contract should be considered invalid.
German / European courts have ruled many times that consumer TOS clauses which are "surprising" and/or "unusual" (e.g. "hidden" feed or waivers) are not enforceable.
I am well within my rights to modify the copy of a contract supplied to me, so it can hardly be said to be fraudulent to do such a thing. It isn't my fault that they don't want a copy of what I actually agreed to...
I really would like to see someone use this tactic in court. I am quite curious what the legal status of it would be and what the follow up arms race would look like if it a court sided with the user in such a case. I can imagine naive counters where they submit hashes of the agreed upon contents and suddenly typoes become legally binding when they refuse to accept such a modification.
I have used this to buy tickets to an event for $1.
No, it wasn't unfair to the vendor. The vendor had an issue on a web site where the sales window closed, presumably to give the vendor time to process sales and print/mail tickets, but this was enforced front-end only. I was mid-check-out when the window closed with no warning.
There were plenty of tickets left. There was plenty of time left too (the vendor had switched from paper to digital tickets for COVID19, so...).
I think there was an exploitable security bug in there too, but I don't think anyone will exploit it. It's a little shop.
He was also storing passwords as plain text (they would email your password when you clicked "lost password?")... which is pretty troubling for a site that was also taking credit card payments.
So of course I edited the page to let the submission through anyway, and the POST request had the appropriate consent boolean parameter to false instead of true. Since the registration completed successfully, they either ignored that parameter, or - what I was hoping would happen - their database had my row with a distinct FALSE on the consent column.
I sometimes wonder what would have happened if I decided to follow up on their data processing against my consent. Would I have a successful case? Or would they can me for working around their bit of client-side JS?
You would go to court to sue Amazon. They would claim the suit should be dismissed because you had agreed to mandatory arbitration. You would claim you had NOT agreed to that clause, because you configured your browser to render different text before clicking on "I agree".
The court would then declare that since you had represented to Amazon that you were agreeing to it, they weren't responsible for what text you had changed in your browser, and the court would hold you to the contract that was supplied to you.
This isn't even a slight stretch. A stretch would be when Wells Fargo opened bank accounts for people without their permission -- then blocked a class action lawsuit arguing that the terms and conditions for the account (which the customers hadn't signed up for) required arbitration instead of class action lawsuits.[1]
[1] https://web.archive.org/web/20210428120303/https://www.nytim...
Perhaps in the future legal aspects of life will be just another kind of software updating, with the govt rolling out emergency patches and big annual feature packs.
Certified mail to their registered agent is considered “received” by the corporation in most contexts.
The difference here may be that there's already a contract between a user and the company, so if they include something like "continuing to provide service to my account constitutes acceptance of these terms." in the updated contract, it might fly.
Or not. It could be that all the businesses doing that to their users are just BS'ing something unenforceable.
As i understand it, in many states it does not preclude a jury trial, but serves as a gate for the trial ... should mediation fail, a jury trial will still happen.
Prevents those "lets stick it to that big company" decisions too.
Considering how badly they disrespect peoples' time and pandemic safety in scheduling jury duty, most educated, busy, and capable people would want to get out of it, leaving very likely a bunch of less-educated people and anti-vaxxers to be on the jury.
The modern state with mostly impartial judiciary seems pretty good right now, but i imagine that wasn't true in various times and places.
Jury nullification is also an interesting practise (see for example abortion in canada)
Don’t mistake SCOTUS justices’ philosophical differences as partiality.
And that's before we actually look at the reliability of a jury trial: the letter of the law might claim it's a jury of peers, but that's never the case from the outset, and then lawyers get to demand that the only people who might actually do any reasonable thinking get replaced if they know a reasonable thinking person would conclude their client's guilty.
The system is so messed up, you could write multiple books about it. Which people have.
Did they actually use those words? As far as I remember they convicted Monsanto mostly on messing with the "independent" studies that should have confirmed their weed killers safety, using various "friends" in key positions to shut down any study that went out of line before it could go anywhere. All documented in an internal email chain discussing various means in great detail.
> shuddered at the lunacy of the nonscientific verdict,
Science went out of the window the moment Monsanto started to actively taint the research through political means.
^1 The results of independent studies are supposed to act as basis for government approval.
That being said, rights are being restored in this case (ie things are heading back to the courts) so GP seems a bit off base to me in context.
I have family that doesn’t have internet, never have and are doing fine. It’s quite possible. Just because you can’t handle it, doesn’t make it not possible.
https://leginfo.legislature.ca.gov/faces/billCompareClient.x...
Here's a couple of relevant paragraphs of the amended laws:
> In California, private contracts that violate public policy are unenforceable. Under Section 3513 of the Civil Code, contract terms that require a party to forgo unwaivable statutory rights are unenforceable. Similarly, Section 1668 of the Civil Code provides that contracts exempting parties from responsibility of their own violation of law are also unenforceable. Thus, under these and other contract defenses of general applicability, a mandatory arbitration agreement, like any other agreement, cannot undercut unwaivable state statutory rights by, for example, reducing the limitations period to commence an action or arbitration, eliminating certain statutory remedies, or erecting excessive cost barriers to obtaining them.
> In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.
(I am not your lawyer, social media comments are no substitute for legal counsel, etc.)
Anyone else get this at the footer instead of their email address? I have no knowledge of how mail merges work in practice, but it does seem a bit odd.
Arbitration clauses are very unfair to consumers, as explained here: https://www.nytimes.com/2015/11/02/business/dealbook/in-arbi...
Apparently arbitration became too insanely expensive!
2. Amazon tries to resell any sellable returned goods.
Sure, Amazon is a very big player there, but by no means the only big player (e.g. MS and Boeing are also based there), and all the full procedural and substantive protections of the US and Washington judicial systems apply, aside from the right to a jury. Everything is much more restricted in arbitration.
In Boston the city employee to resident ratio was one of the lowest in the nation and while Thomas "Chuckles" Menino cultured an air of being a friendly grandpa patriarch who couldn't keep track of which team name corresponded to which sport...reality was that city workers were an ersatz campaign worker army, infamous for being fiercely loyal, and demanding loyalty from family and neighbors. "Are you voting for Not Menino? Because if you do, I'm gonna lose my job, Bill." There were newspaper stories about families nearly getting into fistfights over this stuff.
Menino stepped down, Marty Walsh stepped up (and promptly got involved in some scandals involving his staff pushing for union work on construction sites.) He's been appointed federal secretary of labor, so the deputy mayor suddenly was in charge. This current election cycle seems heavily focused on identity politics, social justice, etc.
It's a subject some politicians are more than happy to discuss because it sidesteps how massively wasteful and incompetent the city workforce is; nothing gets done unless you're on good terms with the "neighborhood liaison" or know someone. It's a miracle they manage to even keep their office chair seats warm. When nearby Somerville (which is basically the municipal version of the Italian mob) is more functional, that's not a good look...
Amazon is based in Seattle.
Secondly, and more importantly for you, even without a venue selection clause, you would still have to establish that the court you sued in has personal jurisdiction over Amazon anyways. That is trivial in the jurisdiction of Amazon's headquarters, and is more difficult in any other jurisdiction. Indeed, even if you try to sue Amazon in a different jurisdiction, there would be a decent chance that Amazon motions to move to a different jurisdiction anyways. So at the end of the day, even without this clause, you'd still likely end up suing in them in King County, Washington anyways.