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'Consent is a fiction' in consumer contracts

Netflix headquarters is pictured in Los Gatos, Calif.

After Loyola University New Orleans College of Law Professor Imre Szalai's wife gave birth, the Szalais were asked to sign an arbitration clause in the delivery room. That clause stipulated that they would have to settle any disputes with the hospital through arbitration, not in court. 

Because of his professional training, and because he has written a book on the history of arbitration, "Outsourcing Justice: The Rise of Modern Arbitration Laws in America," Szalai had his wife sign the form – his thinking being that, because she’d just gone through labor, a judge evaluating the agreement later would probably find that she was not in a clear state of mind at that time.

Arbitration started out as a business-to-business thing. During prohibition, courts were swamped, and it was a way to clear cases. Since a 2011 Supreme Court decision, arbitration has gained traction as a way for businesses to avoid lawsuits, as The New York Times noted Thursday. And when it comes to how companies are protecting themselves now, "You have to admit that, when it comes to consumer contracts, consent is a fiction," says Brian Fitzpatrick, a law professor at Vanderbilt. 

To wit:

  • From the terms of use at Netflix: “If you are a Netflix member in the United States (including its possessions and territories), you and Netflix agree that any dispute, claim or controversy arising out of or relating in any way to the Netflix service, these Terms of Use and this Arbitration Agreement, shall be determined by binding arbitration or in small claims court.” And, in all caps: “YOU AND NETFLIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.”
  • Amazon.com's agreement, which says “Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court.” And, RE: class actions: “We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.”
  • There's Electronic Arts ("By accepting these terms, you and EA expressly waive the right to a trial by jury or to participate in a class action.”) and StubHub: "You and StubHub each agree that any and all disputes or claims that have arisen or may arise between you and StubHub relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to StubHub's Site or Services, or any tickets or related passes sold or purchased through StubHub's Site or Services shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify."

For more examples, you can visit the “Forced Arbitration Rogues Gallery,” which the consumer advocacy group Public Citizen has created.  

About the author

David Gura is a reporter for Marketplace, based in the Washington, D.C. bureau.

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