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The Courts Your Rights Online

General Mills Retracts "No Right to Sue" EULA Clause 88

Posted by timothy
from the such-ungrateful-customers dept.
Just a few days after General Mills changed its policies to declare that people who so much as "liked" their page on Facebook thereby waived their right to sue the company in favor of arbitration, the company has reversed itself: "The announcement resulted in huge backlash on social media, as well as from consumer groups. Legal experts expressed doubts it could ever be enforced. Hamline Law Professor David Schultz appeared on WCCO Sunday Morning. “When I first saw this earlier this week I said this is questionable at best from a legal point of view,” he said. “From a marketing point of view, it’s a dumb idea, too, but legally it didn’t rest on very sound grounds so it’s not a surprise that they are reversing it. The lawyers at General Mills should have known better.”
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General Mills Retracts "No Right to Sue" EULA Clause

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  • Lawyers (Score:5, Insightful)

    by Dan East (318230) on Monday April 21, 2014 @03:11AM (#46803451) Homepage Journal

    This is the kind of thing that happens when lawyers aren't kept on a short enough leash. They can't stop regurgitating into the legal documents they produce and you end up with this kind of complete and total stupidity. If the company really wants to save face they should fire the entire lot of them. Unless the executives are that afraid of the litigious cretins.

    • Joke about lawyers (Score:5, Interesting)

      by Futurepower(R) (558542) <MJennings.USA@NOT_any_of_THISgmail.com> on Monday April 21, 2014 @03:42AM (#46803503) Homepage
      "... when lawyers aren't kept on a short enough leash"

      Here is a typical joke about lawyers in the United States: There was a terrible tragedy. A van carrying 5 lawyers went over a cliff. What was the tragedy? There was room for 1 more lawyer.

      The common underlying feeling is that the legal profession in the U.S. is often out of control.

      This is interesting: What country in the world has most lawyers per capita? [answers.com] Answer: The United States. There is one lawyer for every 265 Americans.
      • by jonwil (467024)

        Not all lawyers are evil or bad, By far the worst kind is the "Corporate Lawyer". Get rid of those and the world would be a better place.

        • Re: (Score:2, Insightful)

          by Anonymous Coward

          But corporations are people my friend.
          (I just threw up in my mouth a little...)

          • by Anonymous Brave Guy (457657) on Monday April 21, 2014 @08:36AM (#46804319)

            But corporations are people my friend.

            Well, everyone has their own perspective. I even heard someone say the same of lawyers, once...

          • by Kuroji (990107)

            Then treat them like one.

            Oh, X corporation is responsible for the deaths of X people? Looks like a serial killer to me, execute the corporation.

            • by stoploss (2842505) on Monday April 21, 2014 @11:02AM (#46805657)

              Then treat them like one.

              Oh, X corporation is responsible for the deaths of X people? Looks like a serial killer to me, execute the corporation.

              Okay, I have often heard this call for a corporate death penalty. However, how do you envision this would work? Despite the twisted perspective of the courts, corporations are nothing more than the real, human people who own them and work for them.

              If punishment is due, then who should it be incident upon? The stockholders, like your local firefighters' pension fund who owns many shares of this condemned corporation? No? Well, shall it be broken up and sold off instead? Fine, the current owners will form a new shell corporation to asset strip the condemned corporation by buying its assets cheaply and leaving the debts behind in the "executed" corporation. Congratulations, the wealthy owners got richer as a consequence of the "punishment". Shall the corporation be taken over by the government and the owners forfeit the shares? Now the government has a moral hazard... all those profitable corporations look mighty guilty of "crimes" if we are debating having to raise unpopular taxes.

              I say hold the executives responsible for what their underlings do, and don't allow plausible deniability to be claimed by execs who should know what is happening. We can't legislate morality into sociopaths, but we *can* make them fear incarceration for wrongdoing. *That* would go a long way toward increasing ethical action by corporations. Of course, it will never happen, but at least the incentives are aligned to punish those who are responsible with this proposal, whereas the corporate death penalty invariably would punish the hapless "little guy" shareholders (i.e. the wealthy would circumvent the effects).

              • by HiThere (15173)

                Okay, I have often heard this call for a corporate death penalty. However, how do you envision this would work? Despite the twisted perspective of the courts, corporations are nothing more than the real, human people who own them and work for them

                The board of directors and top management.

                On a more serious note, a coproate death penalty means the dissolution of the corporate charter and dispersal of its assets to creditors, and then, if any are left, to stockholders. I do feel that this is insufficient, and

                • by stoploss (2842505)

                  On a more serious note, a coproate death penalty means the dissolution of the corporate charter and dispersal of its assets to creditors, and then, if any are left, to stockholders.

                  That's sort of my point: this is ripe for a leveraged buyout at cheap prices. The business is an emergent property of its assets, and there is momentum with customers.

                  Here's how the sleight of hand unfolds. CondemnedCorp has been convicted of heinous crimes against protected unicorn habitats and has been sentenced to the ultimate punishment: the corporate death penalty. This will show those dastardly majority shareholders on the board of directors who voted to spray TCDD on those unicorn nests!

                  Feeling miffe

              • by Kuroji (990107)

                That's the point; if you cannot treat them as people then you cannot define them as people and you need to hold accountable the chain of command responsible for the decisions that were made, so that higher level personnel cannot simply insulate themselves from such bad decisions. If you can treat them as people, then do with their property what the government does with the property of inmates. Though I look forward to someone telling me how a corporation can serve a prison sentence for fraud.

          • So, we can make soylent green out of corporations? Excellent.

        • by gl4ss (559668)

          wanabe corporate lawyer is even worse, like who was probably putting it on here.

          can't imagine a real lawyer being so stupid, then again I hear in usa anyone can pass for one.

          they should actually be class action sued by everyone who liked them on facebook since they tried to unlawfully coerce their options and freedoms.

          • by NoKaOi (1415755) on Monday April 21, 2014 @05:06AM (#46803671)

            can't imagine a real lawyer being so stupid, then again I hear in usa anyone can pass for one.

            Just because you can't imagine a reason other than stupidity doesn't mean there is one. I can thing of 3 possibilities (in order or probability) and I'm sure there's more:
            1. They knew it would never hold up in court, which they are fine with. If they ever get sued, they can still use and even if it gets shot down, it still will cost the plaintiff a ton of money to fight it. General Mills most likely has much, much deeper pockets than any prospective plaintiff. It can then be used to either run the plaintiff out of money, or it'll help them in negotiation because the plaintiff's attorneys may consider it in how much it'll cost their client.
            2. The lawyers bill hourly. The longer the EULA and the more time they spend on it, the more they get paid. They know it won't hold up but they don't care because General Mills gives them more money. If it does become a point to fight in court, even if they know they will lose that particular point, they're also billing hourly for that.
            3. They really are stupid.

            • by Lumpy (12016) on Monday April 21, 2014 @06:14AM (#46803791) Homepage

              Or the most probable. 4 - the lawyer is a incredibly evil asshole.

              Honestly any, ANY lawyer that pulls that arbitration shit needs to be beaten badly with a sack of doorknobs. Only the most evil scumbags on the planet will try to circumvent legal rights of their own customers.

            • by Anonymous Coward

              Funny how willingly people accept the excuse it was lawyers that tried to set new policy when it's managements job to do so. I'm fully expecting they are just being used as scapegoats.

              Besides a lawyer should know the law better than this.

              • by HiThere (15173)

                A. I accept that it was the lawyers.
                B. The lawyers were acting as agents of the corporation and of management and of the board of directors, so they are *ALL* guilty.

        • Not all lawyers are evil or bad, By far the worst kind is the "Corporate Lawyer". Get rid of those and the world would be a better place.

          The problem with lawyers is that they're often seen as the agents of injustice.

          Our legal system has scant consideration for the costs of participating in it. Somehow the SCOTUS sees no problem in letting prosecutors or private torte lawyers force others to choose between potentially bankrupting themselves in legal fees, or simply acquiescing to their demands.

          And the courts also see no shadow of "ex post facto" in a legal code that's so complex that not only do regular citizens need a lawyer to understand it

        • by dfm3 (830843)

          Not all lawyers are evil or bad...

          True, but the problem is that 99% of them give the rest a bad name.

      • Lawyers love the Law more than they love Truth. Until such a time as they learn that constantly hacking at the law is bad for society, they will continue to be vilified.
        • by BitZtream (692029)

          Lawyers are like Graphics Artists working on a UI.

          They don't do it because they think its good for something or useful, they do it because they have to justify their existence in a profession full of people who aren't half as good as they'd like to think and keep working.

          Its well past the intention of the law and good of society and completely in the realm 'doing it because we have nothing else to do'. Another example of this would be Windows Vista's changes or the iOS changes to change the entire look and

      • by Rick Zeman (15628)

        "... when lawyers aren't kept on a short enough leash"

        Here is a typical joke about lawyers in the United States: There was a terrible tragedy. A van carrying 5 lawyers went over a cliff. What was the tragedy? There was room for 1 more lawyer.

        The common underlying feeling is that the legal profession in the U.S. is often out of control.

        This is interesting: What country in the world has most lawyers per capita? [answers.com] Answer: The United States. There is one lawyer for every 265 Americans.

        So the laws of supply and demand say that since the law schools are excreting so many of them the prices should be going down, right? Would that it would be true. Instead, they're uniquely positioned to create more work for themselves by chasing the harmless, the frivolous, and the inane...all which still have to be defended against...producing more work for other lawyers.

        • by hendrips (2722525)

          Actually, the "price" for lawyers really is going down. Hardly a day goes by without the Wall Street Journal bemoaning the crappy job prospects for legal talent.

          Unfortunately, the price for lawyers is going down unevenly - it's difficult to find a job, so underemployment is high, but the per hour fees once a lawyer has a job are as high as ever. This means that the lawyers for General Mills need to "work" harder than ever to justify not getting layed off into a very rough job market; while at the same tim

    • I'm not so sure the lawyers benefit from this. Firms like arbitration because it means they get to skip a lot of the lawyers, and the legal costs are much lower. Not only that but damages sought require jury trial, the time to settlement can be reduced to months rather than years. In addition to that, arbiters tend to allow you to submit all evidence so long as it is relevant (even things like hearsay can be submitted in some cases, with arbiters of course putting very little weight on it) whereas in the re

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      How do you know this was initiated by the lawyers?

      Do you really think their lawyers can change the TOS without first getting approval from the management?

      • How do you know this was initiated by the lawyers?

        Do you really think their lawyers can change the TOS without first getting approval from the management?

        Finally, someone that gets it.

        • by HiThere (15173)

          YES. Management never, or rarely, reads legal documents.

          P.S.: This does not absolve management of responsibility. The lawyers are acting as their agent, so they are responsible for what is done in their name. This is also true for the Board of Directors, and for the corporation itself. They are all guilty, to approximately the same degree. Unfortunately, were this to lead to a legal suit it would be only the stockholders in the corporation that paid. This is an incredible mis-alignment of responsibil

    • by Anonymous Coward

      Don't underestimate the ability of companies to do evil and then pretend it was an accident when they get caught.

      • Also, because this kind of thing somehow remains unpunished by consumers most of the time, they'll just try and try again and sooner or later some of it might even stick.

    • by Anonymous Coward
      Far more likely an MBA pushed on legal to make this happen. This is classic modern corporate thinking.
      • by jasper160 (2642717) on Monday April 21, 2014 @09:23AM (#46804725)
        I would agree with you there. Our MBA's and project managers spend their time mental masturbating coming up with nothing more but more work and requirements for more PM's and BA's. I have started asking them what value or ROI have they brought to the company and they get a panicked look.
  • Vigilance (Score:5, Insightful)

    by rogoshen1 (2922505) on Monday April 21, 2014 @03:18AM (#46803461)

    Consumers need to be vigilant about this kind of crap. Sure general mills pulled back this time, but all that means is that next time they'll be more subtle, going for something that's less of a reach, and this kind of shit will slowly start encroaching on us. (See also SOPA type nonsense.)

    • I'm still suspicious on the whole matter. It sounded like that broad disclaimer up front was in preparation for some catastrophic news about a General Mills product. Like, "Cheerios causes Autism!" Or that Wu Tang Clan rapper . . . he wasn't doing any hard drugs . . . but he was eating a bowl of Cheerios, before he chopped off his dick!

      General Mills has been slapped by a few damaging lawsuits in the last few years . . . because they were downright lying about the ingredients in their products. This dis

    • this kind of shit has been encroaching on us

      FTFY.

  • by Anonymous Coward

    So tell me why doesn't this apply to Microsoft's EULAs and Sony's EULAs, Steam's EULAs etc... ?
    They basically say the same thing, you can't sue us, go directly to arbitration.
    If it's illegal for General Mills shoudn't it be illegal as well for those IT/CE/game companies ?

    • by jonwil (467024)

      The difference is that those EULAs are license agreements for software (including the pre-installed software that comes on your new hardware) and there is precedent for it being legal to put those clauses in software EULAs.

      • The difference is that those EULAs are license agreements for software (including the pre-installed software that comes on your new hardware) and there is precedent for it being legal to put those clauses in software EULAs.

        You are confusing two things. "It is legal to put those clauses into EULAs" means "you can't go to jail for putting these clauses into EULAs". That doesn't mean that such a clause has any legal merit whatsoever. What _is_ legal and enforcable in EULAs are terms that allow you or disallow you making copies of software. Because that's what EULAs are about; they give you rights to copy software and can of course limit what rights they give you. A clause that prevents customers from going to court - good luck trying to enforce that.

        • by darkonc (47285)
          In this case, "legal' means "a court will rule that the clause as valid". Clauses that force you to go to arbitration rather than court (including class-action lawsuits) have been held as valid in the past -- including for things like software 'licenses' for purchased software.

          This clause was pushing the envelope even further, and it's unlikely to have been held as valid (under these specific circumstances), but the fact that it's there might be enough to cause an unhappy customer to cave in and settle f

    • Because software EULAs are actually agreements of a sort. You need to click an "I accept" button to use the software, and the US courts consider this acceptance (although I suspect there's limits as to what you can put into a EULA). General Mills was asserting that a EULA applies to people who don't click such a button.

  • by Anonymous Coward

    ... can anyone just pull arbitrary rules out of their arse? This all sounds like five year old making up rules about who can see who...

  • As a foreigner, I can't help wondering whether you've perhaps got too many lawyers over there in the States.

    Unfortunately, where the States leads, we follow.

    (Sig possibly relevant for once!)
  • by thephydes (727739) on Monday April 21, 2014 @03:36AM (#46803495)
    We'll as an outsider - non USA - this seems to me to be a demonstration of how powerful the internet is ie, forums like slashdot, social media, email, etc. Who in their right mind would think that they could sneak in a clause that takes away already recognised rights, without VERY public and international comment. Geez, who ever hired those lawyers needs to be fired on the spot, and the company needs to hire another firm of bottom feeders.
    • by darkonc (47285) <stephen_samuel.bcgreen@com> on Monday April 21, 2014 @05:59AM (#46803769) Homepage Journal

      Who in their right mind would think that they could sneak in a clause that takes away already recognised rights, without VERY public and international comment.

      10 or 15 years ago, that wouldn't have been something to take into account. A couple of people would have groused about it, and their friends might have paid attention, but the macro effect on the company would have been trivial.

      Consider that Microsoft, for example, has gotten away with language like that in a piece of software that 90%+ of desktop computers are sold with, and that it's actually difficult to buy a computer without. Meaningful protests??? Roughly zero.

      • by HiThere (15173)

        I complained about the license to our company lawyer, and his response was "They have not legal basis to enforce it". I switched away from MS as my only defense. Later, for a similar reason, but introduced more sneakily, I also switched away from Apple. (They introduced new language in a "mandatory security upgrade".)

        As at first Linux didn't have a decent word processor, this made things difficult. (My choices were AbiWord, HTML, or Tex...UGH! I generally used HTML.) Fortunately StarOffice soon became

    • by Phisbut (761268)

      We'll as an outsider - non USA - this seems to me to be a demonstration of how powerful the internet is ie, forums like slashdot, social media, email, etc. Who in their right mind would think that they could sneak in a clause that takes away already recognised rights, without VERY public and international comment. Geez, who ever hired those lawyers needs to be fired on the spot, and the company needs to hire another firm of bottom feeders.

      Yet, what is the actual backlash of all this? How many of us slashdotters will change our consuption habits because of this? And we're but a very small minority. Even on Facebook, the outrage will last all of 5 minutes

      Companies do this because the risk is zero. If it works, they win. If it doesn't people will talk about it once, then everything is back to normal. There are no downsides to trying.

      • by HiThere (15173)

        True. I already avoid all GM foodstuffs, so I doubt that it will cause me to change anything I do.

  • Not over yet (Score:2, Insightful)

    by Anonymous Coward

    Float a trial balloon. Heat up the water in the pot a little bit more. Turn the screws. If the population squeaks, just back off a bit and try again later. Eventually they will get what they want. What are *you* going to do about it?

  • Signs (Score:4, Insightful)

    by symes (835608) on Monday April 21, 2014 @03:48AM (#46803519) Journal

    This reminds me of those signs you sometimes see in car parks "the owners will not be held responsible for any damage to your vehicle." I am reliably informed that this is not true in all cases. If, for example, the owners fail to maintain equipment or the building adequately and you can attribute cause of damage to their dereliction of duty they can be held responsible. Putting up signs does not usurp consumer rights.

    • by chihowa (366380) *

      But the signs do discourage people from suing the car park owners. That is the ultimate purpose of the signs.

  • by Anonymous Coward

    By reading this post, you agree to send me $100.

    Cheers.

  • Maybe I'm a dinosaur, but "liking" companies because I consume their products on occasion doesn't seem like it's worth the effort.
  • Lawyers probably one of those groups who gets overruled by the CEO's. How it actually went I bet, fat greedy CEO is like executive design put in our legal contract everybody agrees to not sue us. Lawyers in the back of their heads think this guy is an idiot; want to get paid, put in legally worded version they know is legally worthless then take their paycheck.

  • I have never been one for a lot of government intervention. However this is a prime example of the fact that it really has it's place. Sure, it's all well and good that General Mills has backed down. But there's nothing to say that you'll not see this stunt pulled again in the future. All it's going to take is corporation to decide they'll do better by using this tactic against it's customers than they'll loose from the public backlash.

    Better to put out a grass fire in your yard with a hose than to wait

  • These same sort of clauses are showing up at demtists, doctors, and other places. You can't get a lot of services nowadays without signing away a lot of your rights to redress. It is an erosion that I am not sure how to fight.

    • by ledow (319597)

      You don't need to.

      You can't sign away many such rights.

      As the article hints at, it's almost certainly legally unenforceable anyway.

      And if you're that worried, use another place and TELL THEM WHY. Because they are requiring you to sign an unfair contract, which is unenforceable anyway, and they lost your custom because of it.

      But the fact is, you can't sign many such things away. Even if you sign it. Even if you agree with it. Even if you wanted to.

      • > You can't sign away many such rights

        You can make a contract for all _sorts_ of interesting things, including marriage and adoption. So yes, a contract that holds one party free from liability can be quite enforceable. The details of whether the protected party fulfilled their part of the contract is a critical facet of such a contract, as is the exchange of some benefit or privilege to the other party.

      • Mandatory arbitration clauses are perfectly valid and legal in the US, so long as they apply to both parties and specify a neutral 3rd-party arbiter. THIS situation was likely in enforceable for other reasons - one of those being that some text thrown up on a page on a company's website doesn't suddenly create a contract between them and everyone who buys their product or likes in in social media.
      • by Tokolosh (1256448)

        While this may be true, it does add to you litigation cost. If you ever need to sue them, you will first have to go to court to have the arbitration requirement overturned. So, another hurdle to jump, deep pockets needed to prevail, just to get to the starting point.

    • by gurps_npc (621217)
      Really very very simple. Pass a simple law that says no contract can invalidate your right to use - unless 1) both you and your lawyer has signed said contract - and each parties lawyer can have no connection whatsoever to the other party, their lawyer, etc and also 2) Said contract was negotiated by both parties, rather than designed by one party and the other was required to accept it as is.
  • And again: (Score:5, Informative)

    by ledow (319597) on Monday April 21, 2014 @06:27AM (#46803831) Homepage

    Just because someone puts something in a contract, and even if you "agree" to it by signing it (or even ACTUALLY agree with that line of the contract, which is something else entirely), it does NOT mean that it's automatically legally enforceable.

    Some rights cannot be signed away. Ever. Even if you want to. If you've ever read "This does not affect your statutory rights", it's an acknowledgement of this (and, in fact, they don't even need to say that - because not saying it wouldn't affect those rights either!).

    And "Can not sue" clauses generally don't exist in a vast majority of jurisdictions around the world. Because firstly, they are stupid. Secondly, they are unfair. And thirdly, they are not (generally) legally enforceable anyway.

    If you ever thought otherwise, just replace whatever line with "I agree to be killed". Just because you sign it, just because you want it to happen, does NOT mean that the other party in the contract is able to do it to you.

    It doesn't mean that nothing is enforceable, but stupid shit like this has nothing to do with the company "backing down"... they just asked a lawyer and realised that they couldn't actually enforce that clause anyway, and they risk large swathes of the same contract being revoked because of such unfair clauses that might come under similar scrutiny.

    Don't be stupid and sign away your rights, but equally don't assume that you CAN sign away such rights either. Especially where "like" on Facebook means you can't sue... sorry, ABSOLUTE BOLLOCKS, and would be thrown out of any court.

    • Even if the language was enforceable (a Facebook Like? Probably not... a coupon download? Borderline, but may only be enforceable for the item purchased with the coupon), ridiculous contract clauses are all about creating obstacles to a lawsuit. You are absolutely correct that no judge is going to remove complete and total lawsuit rights because a consumer once went to the General Mills website to check nutrition information.

      But that's not going to stop their lawyers from trying; they'll first issue an i

    • by pr100 (653298)

      The thing about "cannot sue" clauses in contracts is not really quite accurate. It's not that uncommon for commercial contracts to contain an arbitration clause. I.e. a clause that the parties agree to resolve disputes about the contract via arbitration rather than through the courts. If there is such a clause then in many countries the courts will decline jurisdiction to try the case if one of the parties asks them to. That's fair enough really - they've contracted to resolve the dispute that way at the ou

    • If you've ever read "This does not affect your statutory rights", it's an acknowledgement of this (and, in fact, they don't even need to say that - because not saying it wouldn't affect those rights either!).

      Actually, the reason contracts have such language is because that language increases the odds that a court will allow the parts of the contract which do not call for your statutory rights to be violated to stand even if other parts are found to be inapplicable because of laws which state they cannot be enforced. It is a form of severability clause. Those parts of the contract which are not contrary to law are allowed to stand when those that are contrary to law are struck down.

    • And "Can not sue" clauses generally don't exist in a vast majority of jurisdictions around the world. Because firstly, they are stupid. Secondly, they are unfair. And thirdly, they are not (generally) legally enforceable anyway.

      They are perfectly legal and enforceable in the United States, so long as the clause applies to both parties and specifies a neutral 3rd-party arbiter (at which point they are "fair").

    • Actually, it doesn't matter what they claim; there is no commercial consideration, ergo no contract. No cash? No standing. End of story.

      Otherwise, as another posted above... ya'all owe me $500 for reading this, and agree not to sue me, and agree to pay for any and all legal defense that I need defending any and all lawsuits, ever. And I get to borrow your house whenever I want.

  • Caught red handed (Score:3, Interesting)

    by Anarchy24 (964386) on Monday April 21, 2014 @06:29AM (#46803839) Homepage
    "The lawyers at General Mills should have known better.”"

    What they mean is: the lawyers should have written it more obscurely so they didnt get caught
    • More like "Oops, you caught us this time. We're truly sorry (that you caught us) and will try to slide the terms in later, when we think you're not looking anymore. Hey - like us again for 10% off your next purchase of $10 or less!!!!"

  • by sirwired (27582) on Monday April 21, 2014 @07:20AM (#46804009)

    I find it amusing (and useless) that they are now complaining that the language was "mis-characterized" The language was quite clear, as far as legalese goes.

    If anything, the media has been too easy on them, calling the language "routine" in other industries and stating that the only difference is General Mills is first packaged foods company to try mandatory arbitration clauses. This language isn't routine at all! I don't know any other company that forces you to accept a mandatory arbitration clause where interacting with the website magically prevents you from suing them over something about a product you bought in a store. If the clause just applied to the website itself, it would be routine; but trying to apply it to all other interactions with the company? I don't think so.

    The initial change was stupid and tone-deaf, but they are now "doubling-down" and trying to pretend it doesn't mean exactly what it said. The sad part is, even if nobody believes this corporate double-speak, instead of agitating to have the ridiculous arbitration laws changed, people will just shrug their shoulders and ignore the problem some more.

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