T-Mobile Says It Can't Be Sued By Users Because of Forced-Arbitration Clause (arstechnica.com) 151
T-Mobile U.S. is trying to force customers into arbitration in order to avoid a class-action lawsuit that accuses the phone carrier of violating federal law by selling its customers' real-time location data to third parties. Ars Technica reports: T-Mobile yesterday filed a motion to compel arbitration in U.S. District Court in Maryland, saying that customers agreed to terms and conditions that require disputes to be handled in arbitration instead of courts. The two plaintiffs named in the lawsuit did not opt out of the arbitration agreement, T-Mobile wrote. "As T-Mobile customers, each Plaintiff accepted T-Mobile's Terms and Conditions ('T&Cs')," T-Mobile wrote in a memorandum of law. "In so doing, they agreed to arbitrate on an individual basis any dispute related to T-Mobile's services and to waive their right to participate in a class action unless they timely opted out of the arbitration procedure outlined in the T&Cs. Neither Plaintiff elected to opt out. Accordingly, Plaintiffs have brought their grievances to the wrong forum and their claims should be dismissed in favor of arbitration."
T-Mobile's terms and conditions say, "Thanks for choosing T-Mobile. Please read these Terms & Conditions ('T&Cs'), which contain important information about your relationship with T-Mobile, including mandatory arbitration of disputes between us, instead of class actions or jury trials. You will become bound by these provisions once you accept these T&Cs." Customers can opt out of arbitration by calling 1-866-323-4405 or online at www.T-Mobiledisputeresolution.com, but action must be taken within 30 days of activating a new phone line. The customers who opted out of T-Mobile arbitration could file a similar lawsuit, but that would result in a much smaller pool of customers who could seek damages.
The class-action complaint seeks financial damages and certification of a class consisting of every person who was a T-Mobile customer in the U.S. between May 3, 2015 and March 9, 2019. That's at least 50 million people, the class-action complaint says.
T-Mobile's terms and conditions say, "Thanks for choosing T-Mobile. Please read these Terms & Conditions ('T&Cs'), which contain important information about your relationship with T-Mobile, including mandatory arbitration of disputes between us, instead of class actions or jury trials. You will become bound by these provisions once you accept these T&Cs." Customers can opt out of arbitration by calling 1-866-323-4405 or online at www.T-Mobiledisputeresolution.com, but action must be taken within 30 days of activating a new phone line. The customers who opted out of T-Mobile arbitration could file a similar lawsuit, but that would result in a much smaller pool of customers who could seek damages.
The class-action complaint seeks financial damages and certification of a class consisting of every person who was a T-Mobile customer in the U.S. between May 3, 2015 and March 9, 2019. That's at least 50 million people, the class-action complaint says.
Can the consumer choose the arbitor? (Score:3, Insightful)
Re: (Score:3)
Generally, whoever has the most money in these cases will always win. I had one agreement that said if the results were unsatisfactory that another arbitration could be held, cost split equally. Which means whoever runs out of money first loses.
Re:Can the consumer choose the arbitor? (Score:5, Informative)
Can the consumer choose the arbitrator, or is it only the company who is allowed to make that choice?
Did your adblocker swallow the link to the arbitration agreement [t-mobile.com] where that's spelled out in detail?
The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator.
Re:Can the consumer choose the arbitor? (Score:5, Informative)
The arbitration of all disputes will be conducted by a single arbitrator, who shall be selected using the following procedure: (a) the AAA will send the parties a list of five candidates; (b) if the parties cannot agree on an arbitrator from that list, each party shall return its list to the AAA within 10 days, striking up to two candidates, and ranking the remaining candidates in order of preference; (c) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (d) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator.
So, who pays the AAA? That's who controls who the arbiters are. As we see in governmental elections, selection of the voters is the key to swinging the election.
So, the consumer gets to strike two names from the five selected by the organization funded by the company. Sort of like in totalitarian countries where you get to select from the candidates vetted by the government.
So, how many consumers go to arbitration and how often do the consumers win? According to this report [americanbar.org], the number of arbitrations initiated (at least for some company categories) is low, the majority are settled, and of those that are arbitrated on the merits, consumers win 20% of the consumer-initiated cases and companies win 90% of the company-initiated cases. That is, heads the companies win, tails, the consumers lose. No wonder companies love arbitration.
Re: (Score:2)
Re: Can the consumer choose the arbitor? (Score:1)
Voting is a joke. Itâ(TM)s a trick to make you feel like you have some say in how you are ruled over. You do not.
Re: Can the consumer choose the arbitor? (Score:2)
Not everyone is entitled to thier choice just by voting. If we are lucky we get 1/300000000 of a say (in the USA.) It's hard enough to agree on pizza toping with 3 people involved.
Here are other things you do have:
1) join the bandwagon and convince yourself you like the music. Seems to be what most have done with being on the 'political spectrum', but generally ignores reality.
2) donate to political campaigns. Again, probably won't have the outcome you want, but at least t
Re: Can the consumer choose the arbitor? (Score:2)
It's a reflection of who we are as people, we vote binary on issues (that are not even directly affecting our own interests) rather than choosing people who are good at leading us on the best path for everyone, or even just ourselves. That makes us easy to divide. The politicians, activists, and media use this to thier advantage. Most of them keep their jobs at the end of the day.
choose T-Mobile arbitrators or T-Mobile CS arbitra (Score:1)
choose T-Mobile arbitrators or T-Mobile CS arbitrators
Re:Can the consumer choose the arbitor? (Score:5, Informative)
2. No clause in a contract can protect you from legal action for criminal conduct. Arbitration clauses apply only to contractual disputes, they are irrelevant to criminal disputes.
Re: (Score:2)
1. Only the company chooses the arbitrator, which makes it an inequitable clause in the contract.
2. No clause in a contract can protect you from legal action for criminal conduct. Arbitration clauses apply only to contractual disputes, they are irrelevant to criminal disputes.
In the US, do terms and conditions override law?
Because it seem a bit odd that a private corporation can remove your right to lodge a legal claim with the justice system that is government based. Here in the UK you can put any clause you like into your T&C's but that doesn't take away your inalienable rights such as access to the court. A UK judge may ask why you didn't attempt arbitration first, but requiring arbitration will not remove your right to sue for a contractual dispute.
Re: (Score:3, Interesting)
well t mobile chooses it, of course. "lol".
but the thing here is that it's not just a grievance I think, it's suing them for breaking federal laws. How in the hell can you force arbitration on that? what if t-mobile comes to your house and steals your stuff, then says, well, let's go to arbitration? or is that a criminal/civil offense difference? what if they just decide to up the price and draw all the money from all the credit cards on file?
quite frankly it is quite silly that consumers can be forced i
Re: (Score:3)
ALSO, if you were to say, hack tmobiles systems, could you force them to use the same arbitration for that then instead of calling the feds to help them
That's a good idea.
Re: Can the consumer choose the arbitor? (Score:3, Interesting)
Arbitration; because they weren't happy just breaking up employment unions. Now they want to break up their customers and the broader society as well. Oh wait they succeeded.
Moving on.
The goal of binding arbitration is to prevent class action lawsuits. Companies don't have a good way to protect themselves when they piss off 100,000,000 people and those same people collectively file suit. Instead, prohibit them from joining together in legal action. Now those 100,000,000 people will need to find 100,000,000
They're right (Score:4, Insightful)
I'm just gonna come out and say it: If you want this to change you're gonna have to vote for left wing, pro-working class politicians. The right wing, leaning on the libertarian side, agrees with this. The belief is that you should be free to enter into any contract you want.
The Dems have a primary going on right now with two viable left wing candidates (Liz Warren & Bernie Sanders). If this matters to you then you need to register for the party (assuming you're not in a state where independents can vote in a primary) and pick one.
And if this doesn't matter to you, why they hell did you click the link and read the comments?
Re: (Score:2)
The Dems have a primary going on right now with two viable left wing candidates (Liz Warren & Bernie Sanders)
Does that mean you don't consider Harris to be viable, or you don't consider her to be left-wing?
Re: (Score:2, Troll)
Does that mean you don't consider Harris to be viable, or you don't consider her to be left-wing?
Kamala Harris is not viable. She has a 1% chance of winning the nomination and a 0% chance of winning the general election.
Whether she is "left-wing" or not, who knows? She has very few specific policy proposals.
Liz Warren certainly isn't going to get my vote, but at least I respect her for saying where she stands. She has specific fleshed out policy proposals, and white-papers on many issues available for download.
Re: (Score:3)
Kamala Harris is not viable. She has a 1% chance of winning the nomination
She's near the front in polling, and had a strong debate performance.
Harris isn't viable for the same reason as Biden (Score:2)
Re: (Score:2)
Re: (Score:3)
The Dems have a primary going on right now with two viable left wing candidates (Liz Warren & Bernie Sanders)
Does that mean you don't consider Harris to be viable, or you don't consider her to be left-wing?
Her background as a DA means she probably wouldn't be to the left on that issue. DAs tend not to be nearly as concerned about protecting the little guy as punishing the guilty, so I would expect her to say that if the company really is doing something wrong, the state DAs should be doing the prosecution, and if not, then arbitration protects the company against abuse by rabble rousers.
Re: (Score:2)
I'll take that. Harris is not left wing. She's a centrist, thoroughly beholden to corporate interests. Her history in the Justice department was anything but liberal. Part of the problem, not the solution. She is the status quo candidate now that Biden has boned his own campaign with a combination of spectacular ignorance, utter tone-deafness, and typical rich elder white male unwillingness to admit wrongdoing.
Re: (Score:2, Interesting)
Forced arbitration should be illegal. Opt in arbitration when there's a cause of action should remain completely legal. By having it opt in by both parties, there's a much larger incentive for the process to be fair for both parties.
This whole business of allowing people to sign away certain constitutional rights is ridiculous. In many cases all possible companies with which one could choose to do business with have the same terms and conditions. Suggesting that people do away with all the services that req
Re: (Score:2)
That honestly sounds like a corrupted anti-competitive market. In theory capitalism allows people to vote with their wallets, but in practice when everyone in the big leagues has a gentleman's agreement and they've grifted the politicians into making laws in their favor, it isn't really capitalism.
Re:They're right (Score:5, Insightful)
The problem is that T-Mobile is claimed to have broken the law (civil, not criminal). It seems absurd that a company can effectively make a law null and void just by forcing an arbitration agreement on customers. An arbitor is not in any condition to decide the legality of an action, that's what a judge and jury is for. Save the arbitor for normal disputes.
Libertarians should be completely against arbitration agreements as they restrict liberty, and the sole role of the government to diehard libertarians is to protect the rights of its citizens. These arbitration agreements are hardly "contracts" as one party is given no choice to opt-out, amend, or negotiate on the contract.
Re: (Score:2, Insightful)
Just like the libertarians support right to work and against union bargaining. The judges the republicans cheated to get on the SC voted a corporation has the same power as an individual who is about to be homeless when negotiating an employment contract. Perfectly fair as it is not like the company will go out of business if they fail to hire 1 worker with a take it or leave attitude and not the other way around.
Re: (Score:1)
> The judges the republicans cheated to get on the SC voted a corporation has the same power as an individual
The issue is that the incorrect interpretation of a court reporter in 1886, somehow turned into supreme court precedence on the matter.
Re: (Score:2)
The libertarian approach works without corporations where everyone works independently. Then supply and demand dictate everything and individuals can walk and customers needing work done can negotiate. When people are all competing for the few jobs guess what? The employer is the one who has you by the balls.
Small business owners typically make 6 figures. Employees half and to get 6 figures takes decades of experience and lots of specialization and hard work
Re: (Score:2)
That would be socialism! Support the corporate boot lickers. After all that tax cut might save you a few hundred a year too! You just have to worship Trump and be stupid and uninformed and paranoid of the big bad uber government and you too can be called a patriot.
Re: (Score:2)
The constitution only regulates actions between the government and the citizenry, not between citizens.
Re: (Score:2)
Last time I checked, murder wasn't in the constitution. Those are criminal statutes.
Re: (Score:1)
This is exactly why the Democrats need to stop letting the GOP steal nominations for the federal courts.
The President should be required by the constitution to pick names only from a list that a bipartisan or nonpartisan group provides. Giving the power completely to the group that controls the Senate, as it the case now, just encourages the parties to nominate whomever they like without consideration being paid to how they'll represent the entire country's interests.
Unfortunately, this would require a cons
Re: (Score:2, Troll)
> you're gonna have to vote for left wing, pro-working class politicians.
Which left wing?
- The pro-corporate wing. Remember Bill Clinton passed the CTEA, URAA, and the DMCA, These acts extended copyright an additional 25 years (70->95 years), Moved public domain material back into copyright, and made reverse engineering a crime.
I guess you could say that democrats and republicans favor different corporations.
- The pro illegal alien wing - This group is not really concerned about your phone fine print.
Re: (Score:1)
You are right on target. The blistering fucking moron getting voted up is either beyond help or just a shill.
Dems have been in power more than enough times to fulfill all their bullshit claims just like the reps. The fact that people keep voting for their lies by now is just a sign of the insanity going on.
They don't give a shit, they never gave a shit, they just mouth breath that they care and people just bend right the fuck over!
Re: (Score:1)
The right wing, leaning on the libertarian side, agrees with this. The belief is that you should be free to enter into any contract you want.
I'm not an American, so this is really fascinating to me. Does this mean than according to your right wing, you're free to forfeit all your civil rights and sell yourself to chattel slavery? Or to indentured service? How about a court of law selling you to slavery for unpaid debt? I just love how history repeats itself.
The obvious answer... (Score:5, Interesting)
The obvious answer is to show T-Mobile that forced arbitration is worse than a class action lawsuit. If hundreds of thousands of customers all file for arbitration in this dispute, T-Mobile will not be able to afford the arbitration costs. There also aren't enough arbitration firms to do the work in a timely fashion.
A few hundred thousand arbitration claims would bring the system to a crashing halt. The costs would far outweigh the few dollars a person in settling a class action lawsuit.
Fifteen minutes to Wapner (Score:3)
Ever watched The People's Court or Judge Judy? That's what arbitration looks like, as those shows are literally televised arbitration cases.
Re: (Score:1)
They will pay for a judge who will give them the right to arbitrate once and use that as a template for all the rest. The most it's going to cost is for the rubber stamp.
If there was only some political system...lets call it democracy... where its "by the people for the people", oh wait only lefty communist countries do that
Re: (Score:2)
There also aren't enough arbitration firms to do the work in a timely fashion.
Arbitration can be very fast. And since every case will be identical, they can be quickly resolved. If the arbitrator finds the claims to be frivolous, you may be required to pay T-Mobile's costs.
Re: (Score:2)
WHo pays the arbitrator? I am sure it is not like Tmobile will make a cause with the big Arbitrator firm on the grounds of "...We pay you $$$$ a year and we keep losing! If you don't rule in our favor we will go to somebody else?!"
The point of a court system is to be neutral as if you gave free speech errr I mean money to a judge you will get your ass in prison fast. It is supposed to be neutral and guaranteed by your country's constitution.
Re: (Score:2)
In case you actually care and are not one of these "arbitration bad because I don't understand waaa". Usually arbitration is done with either AAA or Jams. In this case its AAA. Consumer pays $200 and business pays several fees adding up to around $3000 or note if they opt for a 3 panel arbitration. This is win or lose unless the case is obviously frivolous. Arbitration actually benefits the individual consumer. The reason the companies all like arbitration is because in an example rather than paying 1 million people who don't care $20 they have to pay the 10 or so people who actually bring arbitration $100,000. A lot of people will list stats saying "businesses win 90% of arbitration" or "consumers only win 35% of cases". Both stats are true however like arbitration people don't know what they actually mean. First businesses use arbitration against other businesses and so business win rates will always be higher than consumers. In the second statistic what people don't account for is the very high settlement rate. Because businesses have to pay $3000+ win or lose in many disputes they are willing to settle. If the business actually decides to go to arbitration it usually means they had an attorney look at the case and decide "we have such a good case we can afford to lose $3000 just to defend it".
Arbitration I am not opposed to. Like the argument about right to work is fair so Unions as both are agreeing amicable is ignorant of bargaining power. An individual vs organization dispute arbitration is the way to go!
3,000 cases of one rich and powerful entity vs everyone else in a country? Uh yeah T-Mobile pays the bills and decides the outcome?! You are telling me an arbitration firm with a $4,000,000 check from T-Mobile for 5000 cases won't have any influence? Ha. You're dreaming as they will kiss TMob
You're over estimating the cost of arbitration (Score:2)
Re: (Score:2)
The whole point of arbitration is to make people file complaints individually, which is a hassle, and thus reduces the total number of filings. Thus, people don't bother and the company saves money.
Companies have already crunched all the numbers. That's why they fought so hard for it.
Re: The obvious answer... (Score:1)
Beter than other suggestions (Score:4, Insightful)
Re: (Score:2)
Re:Beter than other suggestions (Score:4, Insightful)
thankfully there are other roofers in my area who don't have that nonsense.
Yet.
Once all roofers in your area have added mandatory arbitration, how will you get roofing work done?
Re: (Score:2)
You do know they all do this, right? (Score:3)
That's hard to do (Score:2)
Re: (Score:2)
Since binding arbitration became legal, everyone company has jumped on the bandwagon. Almost every EULA I read includes an arbitration clause. Try finding any agreement these days without arbitration.
Sorry, but the whole idea that people will "vote with their wallet" is as ridiculous as "private industry can regulate itself."
End this indefensible madness (Score:5, Insightful)
Forced arbitation should not be a thing, the fact that a company can do end-runs around the entire legal system is a dire consequence of lawmakers being asleep at the switch. This will go down in history as one of society's great failures alongside debtor's prisons.
Re: (Score:2)
the fact that a company can do end-runs around the entire legal system is a dire consequence of lawmakers being asleep at the switch.
It's also rather surprising, considering congress is made up of lawyers who would benefit by not having their work taken away from them.
Re: (Score:2)
They are politicians who get paid big free speech ... I mean money from Tmobile and other carriers to look the other way.
Re: (Score:2)
Congress? Work? Go on, pull the other one.
Re: (Score:2)
Re: (Score:1)
This is not forced arbitration, as the consumer must willfully engage in the contract with T-Mobile. The consumer is not required to do so, and so there is nothing about the arbitration that is "forced." It is merely a condition of doing business with T-Mobile.
You are free not to do business with T-Mobile if you do not want to waive your right to sue.
Re: (Score:2)
Except that a wide variety of other businesses are doing it. If left unchecked, it could become standard across entire industries that you must purchase services from in order to hold a job and otherwise participate in modern society, such as telecoms. And at that point the only way to avoid it would be the "unabomber option" - if you don't like it, opt out of society and hide in a shack in the woods. What kind of freedom is that?
Re: End this indefensible madness (Score:2)
Agreed. And it doesnt sit well with libertarian conservatives because they ignore monopoly behavior, and none of those things are spelled out in the bill of rights. (But could generally be construed as "life, liberty, and the persuit of happiness. ) i.e. there is no right to oxygen and water in the bill of rights, but it is essential to survival. Access to a mobile phone is falling into that category for all practical purposes.
Re: End this indefensible madness (Score:2)
There are so many historical examples where the line "you are free to take business elsewhere" isnt actually true, or creates a sub-human class of customers.
Re: End this indefensible madness (Score:1)
Re: (Score:2)
Forced Arbitration can be a thing.
What I don't think can be a thing is have complex legal agreements for an average mass-market consumer product.
If two organizations with proper legal representation want to have a complex legal agreement that includes arbitration, more power to them.
Getting a mass-market cell phone plan or using a general piece of consumer software should not be a complex legal agreement. I'm not a lawyer, but just from a society perspective, this is ridiculous. I'm sure there has to be leg
Re: (Score:2)
The guard dog isn't asleep, he's been bribed by the fox to look the other way while the chickens get taken.
How??? (Score:2)
Just Say No (Score:2)
I think consumers need to be more aware. We throw our arms up and scream foul when these companies force these sort of "Terms & Conditions" upon us, but only when it becomes an issue. As long as there's no dispute, consumers seem perfectly ok with accepting these sorts of "Terms & Conditions."
If you don't like that kind of thing, FFS stop doing business with companies that do this. Just how flippin' difficult is that? Arbitration? No thank you, I'll go elsewhere then.
Otherwise, I'm tired of hea
Re: Just Say No (Score:1)
Arbatration Agreements Subversive to Goverments (Score:3)
Re: (Score:2)
Privacy is so yesterday, get with the times (Score:1)
Common law trumps contract law (Score:2)
Why do so many people have difficulty with this concept?
Did You Notice? (Score:1)
If a corporation violates Federal Law, itâ(TM)s a civil matter and you have to sue to have it enforced. Assuming they didnâ(TM)t fine-print themselves out of the law altogether.
I don't see how arbitration can be forced (Score:1)
Re: Arbitration pros and cons (Score:1)
Re: And they're right. (Score:1)