Travis ThompsonDec 26, 2022
Dan Gillmor

The New York Times has editorialized angrily against forced arbitration -- a system designed to protect companies from accountability.

So guess what I found in my inbox this morning. Yes! Subscribers to the NY Times must now submit to forced arbitration if there's a dispute:

https://help.nytimes.com/hc/en-us/articles/115014893428-Terms-of-service?launch_id=18232205#12

Dec 25, 2022 at 2:12amWeb
Show threadDon WeaverDec 25, 2022
@dangillmor SMFH. Merry f’n Christmas, baby.
Show threadVoronDec 25, 2022
@dangillmor Our institutions which once protected many (though far from perfect) against those with more power have been almost uniformly turned into a way to enforce unequal power dynamics in American society. This has been happening systematically for about 40 years, those warning about it have been scoffed at, marginalized but now those in power often aren’t even trying to hide the fact anymore.
Show threadJan 🏳️‍⚧️🏳️‍🌈🇨🇦Dec 25, 2022
@dangillmor Who pays for the arbitrator? If it's the NYT, I think a few hundred thousand subscribers demanding arbitration may have the same net effect as a lawsuit -- perhaps even more certainly.
Show threadAlan TwigzDec 26, 2022
@jan @dangillmor that is in fact the reason why a lot of companies have been backing off these policies recently. They're not even adopting it when it's on trend
Show threadFyzzlefryDec 26, 2022
@jan @dangillmor Is there a requirement for arbitration to be resolved in a certain time frame?
Show threadNicholas WeaverDec 26, 2022

@jan @dangillmor
IIRC, most arbitration ends up being loser pays.

Recently some attorneys have started specializing in "OK, no class action? Fine. We are going to bury you in individual arbitration"

Show threadÜbermentionsDec 26, 2022
@jan @dangillmor Especially when the subscribers are all in different jurisdictions, as Elon Musk is finding out.
Show threadLeaveNothingForTheFutureDec 25, 2022
@dangillmor just another reason I won't subscribe again
Show threadQuietPartQuietDec 25, 2022
@dangillmor perhaps their attorneys prefer the WSJ
Show threadaethervision Dec 25, 2022
@dangillmor @danhon In this week’s T Magazine: Cognitive Dissonance and the Advanced Neurotic.
Show threadChip StewartDec 25, 2022
@dangillmor so, I wrote about this (and whether such arbitration agreements in newspapers could be binding, and on whom), as an alternative dispute resolution LLM student about 15 years ago. It’s complicated but it might work, too. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2440829
Show threadantipode77Dec 25, 2022

@dangillmor

The law ought to forbid involuntary arbitration.

It is a way of creating an alternave law universe, where citizens are severely disadvantaged relative to companies.

Show threadCatherine is not complacentDec 26, 2022
@antipode77 @dangillmor I would make an exception in the case of divorce, and some civil cases ,having seen people drag each other through the courts for years.
But corporations should not be allowed to do it.
Show threadantipode77Dec 26, 2022

@CatDragon @dangillmor

Only for natural born persons, and only voluntarily.

We also must consider the issue of 'power disparity', which exists where one party has effectively unlimited deep pockets to pay for lawyers and relitigate until 'death by exhaustion' follows.

This was very visible in how the former president treated people providing his businesses with services. I think there are many more examples to be found of people being denied justice through this mechanism.

Show threadScenarioDec 25, 2022
@dangillmor Not a problem if you don’t subscribe. 👍🏻
Show threadJohn MaxwellDec 26, 2022
@dangillmor One more reason not to subscrbe to that right-wing pile of crap. At least the NY Post is occasionally funny with their propoganda; the Times can't even manage that.
Show threadSpaceLifeFormDec 26, 2022

@dangillmor
@pluralistic

The Gray Lady has been lost for years.

I will not even go there anymore.

Show threadMatt Richardson 🏳️‍🌈Dec 26, 2022
@dangillmor Sounds to me like strong editorial independence.
Show threadJim Fenton 🇺🇸🇨🇦Dec 26, 2022
@dangillmor Clearly the editorial staff don’t run the business side of the paper.
Show threadHendrik RoodDec 26, 2022
@dangillmor Is this legally binding in the USA? Arbitration in many countries does exist, but the right to litigate for a court can never be signed away. These clauses tend to be considered null-and-void by judges when a litigant seeks immediate access to a court in a dispute. But they are often honored if arbitration is tried first and then a disgruntled loser moves the case to the courts.
Show threadLouis IngenthronDec 26, 2022
@HendrikRood Yes, you can absolutely sign that right away in America. I thinks some folks are trying to push back on it being legal for contracts of adhesion, though, I don't think they've had much success so far.
Show threadHendrik RoodDec 26, 2022

@LouisIngenthron
In Europe this applies.
1993 Directive on unfair terms in consumer contracts

Article 3
1. A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Full text: https://www.eumonitor.eu/9353000/1/j9vvik7m1c3gyxp/vhckkmr0y3zb

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts - EU monitor

Show threadHendrik RoodDec 26, 2022

@LouisIngenthron
I am currently in a 10+ yr class action on such a term vs a mortgage bank. Litigation already went up and down the court system and might ultimately end at the European Court of Justice.

Some people took the arbitration route vs the bank. They learned they pulled the short straw as arbiters chose the banks side.

Those who moved straight to the courts however had several (partial) wins.
Courts took the case and sidelined the dispute arbitration articles in the contract.

Show threadHendrik RoodDec 27, 2022

@LouisIngenthron The key question is probably whether it is "material".

Judges and Justices aren't fond about corporations, who try to use "legal fine print" with forced arbitration clauses, to keep disputes with large material impact (tens to hundreds of millions actual damages) outside the Court system.

Show threadBrian HawthorneDec 26, 2022
@dangillmor That’s like Warren Buffet complaining that taxes on billionaires are too low, but also taking advantage of absolutely any loophole he can find to reduce his taxes.
Show threadLouis IngenthronDec 26, 2022
@bhawthorne It's a little different since thats between him and the government instead of between him and regular people who interact with him.
Show threadMatt ChambersDec 26, 2022
@dangillmor Do as I say, not as I do?
Show threadmonorail timesDec 26, 2022
@dangillmor @mmasnick pretty normal for the editorial side to be completely different than the business/ad side
Show threadCathy GellisDec 26, 2022

@dangillmor On my last statement I discovered that the NY Times suddenly charged my credit card more than double what I had been paying with no notice.

I'm not agreeing to these terms.

I'm going to cancel.

Show threadAlan TwigzDec 26, 2022
@dangillmor Classy move, NYT
Show threadWendy M. GrossmanDec 26, 2022
@dangillmor presumably legal dept not interested in opinions of editorial dept.
Show threadQuinn NortonDec 26, 2022
@dangillmor this is my shocked face.
Show threadKing KaufmanDec 26, 2022

@quinn @dangillmor

I was at the Oakland Tribune, the first major metro daily owned by a Black person, as it was helping lead the campaign for the MLK holiday.

When at long last the MLK holiday became law, we Trib employees naturally assumed we'd be getting it off.

Guess what.

Show threadQuinn NortonDec 26, 2022

@kingkaufman @dangillmor

😒

august is hard for sure but i really like france this way.

Show threadMrinappropriateDec 26, 2022
@dangillmor I was under the impression that Americans don’t “Do irony”. Clearly I was mistaken.
Show threadniniDec 26, 2022
@dangillmor Wonder whether allowing small claims class action would make sense (e.g., bundling micro claims into, say, $40k suits). Would accomplish the purpose of arbitration (save time & fees) & avoid the conflict of interest of private arbitration (arbitrator tempted to favor repeat customers).
Show threadCamp Lejeune Fan AcctDec 26, 2022
@dangillmor the most NYT thing ever
Show threadVrimjDec 26, 2022

@dangillmor

I wish arbitration was forbidden in contracts without bargaining.

Show threadShane (she/her)Dec 26, 2022
@dangillmor very ironic
Show threadAnathema DeviceDec 26, 2022
@dangillmor quelle surprise :(
Show threadPaulAlanLevyDec 27, 2022
@dangillmor Do as I say, not as I do