Click Like? You May Have Given Up the Right To Sue 216
sandbagger (654585) writes "The New York Times reports that General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, or 'join' it in social media communities. Who'd have imagined that clicking like requires a EULA?"
we've already had rulings that click-through fails (Score:5, Informative)
and this ought to cement it. nobody reads that stuff. not even the lawyers. Microsoft was forced to allow refunds. some other cases ruled that click-through terms may be invalid for some claims. keep on keeping on, and if General Mills wants to waste lawyers generating snarky comments all over the public space, have at it. you will lose face.
Re:so? (Score:3, Informative)
yeah, that will stand up in court.
It has for AT&T, Verizon, EA, Dropbox, etc. Why would General Mills' be treated any different than the other Corporate Masters?
Re:The power of EULAs only goes so far (Score:5, Informative)
Indeed. Good luck arguing in court that someone gave up their right to sue. The legal profession tends to be awfully sceptical of such measures, and none more so than judges. While it might stand up if, for example, all parties agreed to use some reasonable form of binding arbitration instead, it's hard to imagine the big company would get anywhere against the little customer under these conditions.
Re:so? (Score:2, Informative)
A) It hasn't.
B) Prior expectations.
Re:Possibly Worse Than That (Score:3, Informative)
Contracts have to be negotiated and signed by two parties to be valid. You have to have an opportunity to modify the terms before exchanging money. Buying commodities doesn't meet that standard. Neither do post-purchase EULAs.
Re:Possibly Worse Than That (Score:5, Informative)
Contracts have to be negotiated and signed by two parties to be valid. You have to have an opportunity to modify the terms before exchanging money. Buying commodities doesn't meet that standard. Neither do post-purchase EULAs.
This is patently untrue, on many points.
First, there is generally no requirement that contracts be signed, or even in writing. A very few types of contracts are governed by the Statute of Frauds [wikipedia.org], which specifies that there must be a writing signed by the party against whom a term is being used. The specifics vary from jurisdiction to jurisdiction, but the linked Wikipedia article is reasonably representative. Outside the Statute of Frauds, there's nothing wrong with an unsigned, or even oral, contract.
Second, you do not have to have the opportunity to modify terms period, let alone before exchanging money. Terms may be offered on a "take it or leave it" basis; the Uniform Commercial Code, section 2-207 provides for how negotiation happens, and expressly includes an option to forbid any alternate terms. At common law, the principle is the same: there need not be an opportunity to make a counteroffer.
In this context, it would be entirely unreasonable for us to assume that respondents -- or any other cruise passenger -- would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line.
Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991)
As to "before exchanging money," it is very common for terms to be left open at the time of acceptance and tender:
Transactions in which the exchange of money precedes the communication of detailed terms are common. Consider the purchase of insurance. The buyer goes to an agent, who explains the essentials (amount of coverage, number of years) and remits the premium to the home office, which sends back a policy. On the district judge's understanding, the terms of the policy are irrelevant because the insured paid before receiving them. Yet the device of payment, often with a "binder" (so that the insurance takes effect immediately even though the home office reserves the right to withdraw coverage later), in advance of the policy, serves buyers' interests by accelerating effectiveness and reducing transactions costs. Or consider the purchase of an airline ticket. The traveler calls the carrier or an agent, is quoted a price, reserves a seat, pays, and gets a ticket, in that order. The ticket contains elaborate terms, which the traveler can reject by canceling the reservation.
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
The ProCD opinion also cited to Carnival.
I cite specifically to ProCD because it was a post-purchase EULA case, and it directly contradicts you.
In short, every single point you made is precisely and exactly wrong.
Re:Possibly Worse Than That (Score:5, Informative)
But today's body of law is so great that I'm not sure it's possible for a person to read it all within a single lifetime, let alone piece together all of the cross links and understand everything that applies to you.
2,567 hours just to read the US Federal Tax law, which is 120% of a work year if your full time job was to read that Law. And just think of your joy when you find out next year laws are changed (not amended) and grows at a frightening rate. 26,300 pages in 1984, to 54,846 by 2003, to 67,204 in 2007, and 73,954 today. Reference [townhall.com].