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Comment by roc | Hacker News Reader

The SCOTUS recently affirmed that not only are such clauses legal, but that individual States cannot pass laws to forbid them.

http://www.scotusblog.com/case-files/cases/att-mobility-v-co...

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If I read that correctly (not a lawyer), SCOTUS ruled that an agreement prohibiting class-action lawsuits is legal if both parties agreed to use individual-arbitration instead. So you can still sue them individually in court, or go through the arbitration process, to grieve a claim against them.

My question is, how do you know the end-user agreed to that? You have no signature, video, or audio proof. PSN accounts generally remain logged-in, and it's possible someone other than you agreed to the EULA and upgraded your PS3's firmware, like a guest or roommate, without your knowledge or permission.

The problem with arbitration is legal resource mismatch and sealed results. Each complainant would have to find, pay for and manage any suit or negotiation (bringing the likelihood of complaints escalating beyond the initial offer to near-zero). And even if a John Doe and his cousin-lawyer managed to dig up a smoking gun, no-one else would know about it. So each individual would go through the process ignorant of other results, while the Corporation builds experience and additional strategic advantage dealing with the situation over and over again.

If you approach class-action lawsuits from the standpoint of "what good comes of it for the individual" there's not a big change and I've heard that we could expect more people (who put up with the process) would be more likely to get some award and that such an award is likely to be higher than what they'd get from a class-action suit. [1]

But if you approach class-action lawsuits from the standpoint of "what punishment does the misbehaving corporation suffer", mandatory individual arbitration is a tragedy. [2] It's implausible for the legal investigation into the corporation to approach the same level and implausible for the net penalty to even remotely approach that of a class action suit. The corporation is already heavily favored in any legal battle and individual arbitration simply compounds that advantage. And PR damage done from having said bad behavior exposed to the market at large is no longer a concern. In short: the penalty for misbehavior is massively reduced.

As to "how do you know the end-user agreed to that": click-through EULAs have also been upheld by US courts for some time. Though I don't believe the SCOTUS has addressed them directly just yet.

[1] I've read that multiple studies have found arbitration as having a higher and more frequent payout rate for complainants than class action lawsuits. I won't vouch for that position, but I don't take issue with it, as those results are largely irrelevant from my viewpoint.

[2] Yes, there is a ton of progress that could be made on the question of how that penalty gets distributed. But I believe it's far more important to address that issue on its own than to effectively end class-action suits.

Thanks for sharing that roc. :)

It's really a spectrum of enforceability. It doesn't matter whether it's ironclad. The idea is to discourage suits and to have something to point to when people try to sue you. It may not work but it might help. There are many issues of enforceability and this is one of them (although do you find that argument very convincing? You'd need to be able to point to someone and have some reason for why it was them and not you in order to be convincing).

"The majority opinion was written by Justice Antonin Scalia, and joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito"

And that's why we need a more liberal supreme court.

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