So I took a corporation to arbitration | Hacker News Reader

So I took a corporation to arbitration

shuchow.com

986 pointssnapetom399 comments

Arbitration consumer protection attorney here! Nice work, and nice write up.

If nothing else, I hope folks will run with your first point. Far too many people are scared of arbitration, and it can be a really powerful tool for situations like this. It’s fairly accessible and straightforward, especially for folks in the HN crowd.

One pointer for other folks in the future is to make sure you look into your state’s specific consumer protection law. (Sometimes called UDAP law or deceptive practices act.) Often times, these laws will allow you to recover more than just your out of pocket damages to punish companies that are deceptive.

One other way to “enlarge the pie” in situations like this is to hire an attorney. I know, it sounds like I’m shilling for my peers, but hear me out. This same UDAP consumer protection laws let you recover attorneys’ fees as part of a judgment/win. If you’re not an attorney, you simply can’t seek those.

So let’s say your claim is $2,000. Under those laws, maybe you can “treble” (triple) your damages if you win. So now your best day is $6,000. And the company knows it.

But if that same law says you can get attorneys’ fees too, the company knows that they could be facing a 50k+ judgment at the end (almost entirely comprising attorneys’ fees), and then that often incentivizes earlier, higher settlements. My involvement in cases, and the threat of attorneys’ fees often results in higher settlements than my client would get on their “best day,” and even after paying out my portion. (I typically do these on contingency — I don’t get paid unless you get paid).

Lastly, let’s just say I’ve done an arbitration or two with a home warranty company. They don’t make money by paying out claims!

Having done this once myself, I will also add this: I'm in my mid-40s now, and arbitration triggered long-dormant school-type psychological patterns of "ohmigosh I'm going to get in trouble if I don't do this perfectly", or "What if I get B-?". The attorneys on the other side may even try to deliberately trigger these, they know the deal.

The reality is, if you bring an action, the worst case outcome is basically: You lose. Yup, losing sucks. But... that's it. It's not going to trash your credit record, cause your significant other to leave, get you held back a grade, result in being grounded, kill your job (barring bring arbitration against your employer, of course, even if law forbids it), etc. etc. Your brain may incorrectly assess the stakes as being far higher than they are because of the form of the matter. You may need to consciously control those patterns.

But if you want to be able to hold companies accountable, this is a big tool in your belt and if more people used it we'd probably see companies being less bold in screwing their customers over. It's a losing proposition for them from the moment you file. I certainly don't encourage frivolous filings, but by all means, when it isn't frivolous, think of it as a pro-social, pro-consumer action that you can take to bring companies to task and in at least in some small way represent other consumers who they probably screwed over too, but don't have the wherewithal to file arbitrations of their own.

I absolutely love this attitude. And, candidly, as a lawyer, this is part of why I love arbitration. It's a lot less formal. It's more about just getting to the right result without all the unnecessary pomp and circumstance. It lets me do my job--advocate for my clients--without worrying about whether I made sure to include some magic words or hit a specific, inflexible deadline.

If there's a health issue with a kid, I send the arbitrator an email and ask for 7 more days. No formal "motion for continuance pursuant to local rule 8.9(c)(3)(f)."

Lastly, I agree that this a tool. I like to think of arbitration, in this context, as the best customer service tool out there. Remember back when the hack was that you send a letter to the office of the president and that got you a competent response? Arbitration is like that on steroids.

The reason for the fear is the possibility of bias against the consumer. If companies pay for the cost of arbitration and everything is behind closed doors, how do we know we can trust the process to be fair?

I’m not a lawyer or a legal expert or even believe the judicial system is always fair. But at least it’s open and rules are well laid. So as a layman, why should I believe arbitration? (Genuine question; not a judgment)

The main reason for the fear is the loss of class action potential, which means almost all small disputes are impossible to obtain redress for. If you're in a situation where the case is worth 5-50k, it's generally a better option to go for an arbitration barring concerns associated with bias (which very much do exist - many specialty boards like various copyright boards consistently make pro-industry mistakes in procedure), but the primary overarching anti-consumer element of mandated arbitration clauses is the removal of class actions as a vehicle for making mass-litigation viable.

> And, candidly, as a lawyer, this is part of why I love arbitration. It's a lot less formal. It's more about just getting to the right result without all the unnecessary pomp and circumstance.

Sure, arbitration is fine -- give two parties more options to come to an agreement. But mandatory binding arbitration that explicitly contractually removes any way to resort to a full court? That's what I think is wrong.

If two parties don't come to an agreement in arbitration then they should always have the option to go to full court and incur the costs and headaches of doing so. Having that option would, I think, make arbitration far more desirable than it currently is.

Would you comment on arbitration services? AAA seems to be legit, while National Arbitration Forum was a front for a collection agency.[1] What about JAMS?

[1] https://www.wallacefrancis.com/the-great-arbitration-scam

> worst case outcome is basically: You lose

The part that really irks me is not about possibly losing, but all the time wasted in the process. I see a lot of protections in the spirit of "get your money back", but no one is going to compensate for the time spent to get that money.

Depending on the amount of money, customers might not attempt to file these cases so that they can cut their losses early. Companies knows these too, which is why contracts and customer support channels are often designed to waste your time. I know people who would still go after companies purely on principle, but that is a tiresome way to live.

> I know people who would still go after companies purely on principle, but that is a tiresome way to live.

One click to sue would be great. Class-action lawsuits are on the right track but they scale on behalf of courts and companies, not consumers.

"when it isn't frivolous, think of it as a pro-social, pro-consumer action that you can take to bring companies to task and in at least in some small way represent other consumers who they probably screwed over too, but don't have the wherewithal to file arbitrations of their own. "

An absolutely laudable and supportable position. Firms get away with garbage behavior because almost no one takes out the trash, so to speak. If they did, the behavior would shift dramatically.

It's not financially viable for an attorney. Lawyers charge by the hour; how much time does an arbitration take? For a case like this:

-listen to your story : 1 hr.\\ -read your documents .5 \\ -follow up questions .25 \\ -draft request for arbitration .5 \\ -review rules .5 \\ -respond to correspondence, select arbitrator 1. -respond to answer from Defendant .5 \\ -schedule arbitration .25 \\ -hearing 2. \\ -request payment .5 total: 5.5

This is an extremely conservative estimate. At $100/hr, that's $550. Good luck finding a lawyer who will charge $100/per and it's much more likely that time estimate is off. Double it, plus... So your legal costs at a minimum are going to hit $1000. On a $2000 claim.

and if payment isn't made, there's a whole 'nuther round...

These cases just aren't economical for lawyers, unless you specialize in them and do nothing but crank them out.

Further up the thread there's an attorney who does arbitration all the time, but just in case he doesn't respond to you I will point out that professional specialization is exactly how everything works.

thathndude says they are an attorney above, and pointed out some states have laws that allow for attorney’s fees on top of the actual claim.

They also said they do the work on a contingency basis. If that is common practice one is out only their time if speaking to an attorney.

Contingency? Perish the thought. Now your attorney is your banker and your partner, entitled to his cut. No, no, no.

Let's not forget the bigger tool in the belt and the one that is more likely to be more fair and balanced and affordable, and that is not having forced arbitration clauses and rights waivers. Companies doing this are not doing it to do anyone a favor and to pretend otherwise is a con by the same people that want you to lose.

There is a certain amount of evidence that if enough people start using the arbitration clauses, companies start reconsidering them and returning to standard class-action clauses. Companies for a long time were using arbitration in no small part precisely because nobody knew how to do it. But every person who goes through the process learns how to do it, and even if they start with Company X, that makes it that much easier to go after Company Y later. So over time knowledge is diffusing out. If the arbitration clauses offend you, you can take concrete action to help getting them out of the contracts by using them yourself.

And imagine if we started teaching high school kids about these types of tools to help them navigate the real world! I barely understood the broad picture of how government was supposed to work, much less offered any "applied" knowledge of the systems I would actually need to interact with as a citizen.

> The reality is, if you bring an action, the worst case outcome is basically: You lose. Yup, losing sucks. But... that's it.

What about having to pay the attorney fees?

> I'm in my mid-40s now, and arbitration triggered long-dormant school-type psychological patterns of "ohmigosh I'm going to get in trouble if I don't do this perfectly", or "What if I get B-?". The attorneys on the other side may even try to deliberately trigger these, they know the deal.

I've seen this attitude in the padnemic and it's certainly weird. Health departments ride on that, and fail to do professional due diligence.

Context: There was a vaccine finders group for my region.. I mentioned a few helpful hints for those concerned at going to get the vaccine. (Being in contact with others is a risk). I suggested respirators (N95s, KN95s,KF94s). But the response I got before was "what is your credentials?! you're not a doctor! health department person x doesn't say that". I could point to numerous studies showing the effectiveness but if you're not a credentialed person.. sigh.

When I talk about the health department people, many of them just parroted what they heard from the CDC's dubious advice.

> So let’s say your claim is $2,000. Under those laws, maybe you can “treble” (triple) your damages if you win. So now your best day is $6,000. And the company knows it.

This is one of the most eye opening things I've read on here. I didn't know that about arbitration. When you threaten/enter into arbitration, it should be part of the law that the company must respond with the maximum amount of damage they're liable for. Anything else is information asymmetry towards the company and they know that too.

Problem: this number may well be unlimited.

There are two types of damages, actual and punitive, and for actual damages you set the value of the claim by .. adding up all the damage caused. This is how you can get really big numbers like $145bn. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1118202/

(That size of damages terrified various other companies with liability problems, who quickly got the law changed to minimize the range of things they could potentially be held liable for as a result of their products: https://en.wikipedia.org/wiki/Protection_of_Lawful_Commerce_... )

That's not arbitration though, that's a jury trial of a class action lawsuit. The UDAP law that the parent responded talking about (that I learned of today) specifically entitles you to up to three times the amount of damages you're claiming for, plus legal fees.

Arbitration rarely results in punitive damages or enormous payouts. That is the exact reason why companies put arbitration into their contracts.

The flip side is it prevents aggregating all damages into a single class claim.

If everyone who had a claim actually arbitrated every time, it would be much more expensive for companies to handle than settling an entire class of claims all at once. The problem is companies know most people will not make a claim if it takes them any significant effort, and if the reward amount won’t be very large.

Not exactly. Many states are now placing limits on the amount of punitive damages plaintiffs can sue for.

I like this suggestion. There is a substantial lack of attorneys in this area. If we are going to force consumers into these systems, they need to be designed more fairly.

Think of it like a mortgage - I got a 90 page legal document when I purchased my home (and I received multiple physical copies of it....) but on the first page of it was "here's how much you're borrowing, here's how much you will repay over the lifetime, and here's the fees if you pay it back early", and I had to sign that page individually with the rest of the agreement. It felt a bit silly, but it _forces_ the service provider to give you this information in an honest format, and not bury it in the small print 5 levels of indirection deep.

And the only reason you get that information is because of federal consumer protection laws.

If nothing else, an experienced consumer protection attorney brings that to the table—knowledge of these various laws (and how you can sue under them) that you might not even know exists.

Having seen the other side (I sat next to and was friend with some corporate lawyers), customer service may have no power or latitude to deviate, but the legal team has enormous latitude to do so.

They're risk averse. You don't have to threaten a lawyer and you shouldn't). Just letting a lawyer know you exist and have a legitimate problem that could blow up in their face, can often be enough to magically resolve issues. They almost always have a public email address.

Maybe it's better to go after them with the parent posts laws, but sometimes you just want your issue resolved. I can tell you that very few teams will argue once they get an email from the General Counsel.

See also, patio11's post about being a dangerous professional[0]. One of the best pieces of writing on the subject.

[0]: https://www.kalzumeus.com/2017/09/09/identity-theft-credit-r...

Absolutely this. Arbitration is a powerful "customer service" tool.

Hey, thanks for this. As someone who just went through this process in December, there’s a problem: my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees.

Meaning that $50k judgement would become a $25k bill.

Yeah, I was sad to realize that.

But! Your advice is absolutely worth taking anyway. I did, and the company paid me the moment I said I was starting the arbitration process. It was a bluff, and sometimes you need to be willing to bluff.

On the other hand, I was so upset at them that I might’ve just gone through the process regardless. So I guess it helps if you yourself aren’t sure whether it’s a bluff, since they definitely won’t know either.

> my contract had a sneaky clause in it that said both parties are responsible for 50% of attorney fees.

Which contract? The one you did the arbitration?

If the consumer law says the winner has to pay the fees, how can such a clause be legal?

I just re-read that comment, and had the same question. If the company is trying to include such a provision in its contract with you, such a provision, would be illegal, unconscionable, void against public policy, etc etc.

I’ve never seen anything like that in all of my arbitrations.

What you will see for B2B claims (not consumer claims) is an agreement that the parties will split the cost of arbitration. But that’s different than their respective attorneys please.

My apologies, I think I was mistaken. The contract is here: https://twitter.com/theshawwn/status/1476573099902611457

You're right. It says "Each will separately pay their own counsel fees and expenses." I was focused on the part that said "Company and Contractor will each pay one-half of the costs and the expenses of arbitration." Wouldn't a $50k judgement be considered an expense? I suppose not, but it's all quite confusing for non-lawyers.

The 50% clause was confusing enough that when I went to someone for advice, they mentioned that it would limit my upside. Here's the full advice I got from them. (They were relaying what their father said, who is a lawyer.)

> He said $10k is a little small to bother recouping Bc you might burn thru 20% just retaining a lawyer + covering half of initial arbitration fees

> And arbitration—if it happens, and if it’s extensive—will absolutely burn thru the rest

> He said your best bet was a friend or young out-of-law-school kid without a crazy hourly rate to help out, make a few calls, make sure the company is willing to move forward with arbitration

> But, if they are, it might not be worth it…

> Unlike mediation—where a neutral third party tries to guide the parties to a resolution before arbitration—arbitration is adversarial, involves a legal decision, and will require things like discovery (surfacing all the relevant facts + documentation etc.)

> He said arbitration can be as expensive + complex as regular ol’ litigation

> Grain of salt from a non-Washington lawyer who probably did most of his work in a different scale / context, but in case it’s helpful

> Your agreement says you half to cover half of arbitration costs, separate from your lawyer, unfortunately. Some agreements split cost disproportionally between winner + loser, but this one doesn’t (I think, skimmed), and even if it did it would be a risky / ambitious gambit

If your state has a loser-pays law then the clause likely isn't enforceable. They probably know this and have a severability clause as well ("if any one clause isn't enforceable, the others remain in effect") and just leave it in to try and scare people into not bringing a lawyer. Of course, that's assuming that your state does actually have a law that makes this clause unenforceable.

> If the consumer law says the winner has to pay the fees, how can such a clause be legal?

And if it's not, you're back in arbitration...

Edit: I may have misunderstood your comment, but it sounds like maybe you were saying your contract with the defendant company required that you pay 50% of attorneys fees. If that’s the case, it would depend on details, but there would be a lot of arguments to make that not applicable.

Edit 2: Confirmed (see comment above)

Reminds me of:

When Peña downloaded the Bird app and agreed to its terms in August 2018, he unwittingly indemnified Bird against any lawsuits. Bird now claims that Peña owes the company $322,171, the amount it has spent so far defending Los Angeles against the lawsuit.

https://news.ycombinator.com/item?id=30908416

Do you not feel it’s a problem to be charging 48k to litigate a 2k issue regardless of the chance to recoup it?

This is the way the justice system is set up. I don’t really dig into whether this is a systemic problem.

I’m not charging my client 48k. I’m recording my time spent working the case. If I have to spend 100 hours working on a case, and my hourly rate is $500 an hour, and we win, then the attorneys’ fee award should be $50,000, regardless of whether the claim is $100 or $100,000.

This is an important component of civil rights litigation. Often times does claims have small value (in terms of damages). But we want to incentivize competent lawyering, and so, if you prevail, you get an award of attorneys’ fees.

The same is true in this context. If you don’t have a provision like that, then consumers are left without recourse. As it is, there are very few lawyers who practice in this area as is.

Well... I consulted a civil rights attorney about some rights violations. I was told that if the damages are really small, then the federal judges don't look favorably on reimbursing attorney fees.

On a side note, my experiences with the legal system is that it's a complete shit show full of incompetent and even crooked players (DA, police, magistrates, judges). If for no other reason, you have to hire a lawyer because a lawyer can more readily detect the incompetence, and the incompetent people are more likely to accept stuff coming from a credentialed person.

There is some truth to this. The courts are becoming hesitant to make the massive attorneys fees awards that were more commonplace in the past (1,000 damages and 200,000 in fees).

But, generally speaking, everyone is still on board for realizing that at the end of the day the attorneys fees award will probably be the biggest part of the award.

The fact is, as soon as judges stop giving out those attorneys fees awards, you’re going to stop having attorneys pursuing these civil rights cases. That’s the bottom line.

As a legal system, and as a society, we have to ask ourselves whether these civil rights violations are a priority or concern or not.

The flip side of this is that the sometimes the judge will not award you attorney's fees even though it's a reasonable ask. I've sued companies three times in my life, and only one out of those three times was I awarded attorney's fees, even though it was requested all of those times.

Not to go into too deep of details, I'll also say if you ever do business across an international border, even with a company that is headquartered within walking distance of where you live, they /will/ find a way to weasel out of responsibility, even if they have a signed contract saying they're responsible. Once any sort of business crosses an international border, the only way you can hold a multi-national company responsible is if you represent a government that is an ally of the US and can bring to bear full military force, otherwise they /will/ screw you over.

In fact, the primary component of my debt post-college was paying back attorney's fees for cases I had won (or had won / appealed several times until I settled because I could no longer afford to pay for attorneys).

Personally, I am a major supporter of the idea we should have it be written into law that the party that doesn't prevail is responsible for attorney's fees for both parties automatically. That said, I also understand that this could be disastrous for smaller entities suing larger entities if they lose (to which I mostly say... don't file frivolous suits).

Lots of good thoughts here. All I'll say/add is that there is a wide chasm between a losing suit and frivolous suit.

There are legal issues that I will argue the exact same twice, and, depending on the judge, win one and lose one. If I have to pay for the attorneys fees of the other side for the one I lost, I'll be filing 0. No justice for anyone.

> This is the way the justice system is set up [...] we want to incentivize competent lawyering [...].

Except as you yourself point out upthread it's not really an incentive for competent lawyering per-se, rather it's an incentive for costly lawyering.

I.e. a reason for why someone might retain your services is partly or entirely because it gives the defendant a greater incentive to settle.

But those profits that you are generating are ultimately passed onto the consumer. They just don’t materialize out of thin air on a companies balance sheet.

Just take a look at what is going on in Florida with litigious , shady roofing contractors, they have nearly collapsed the homeowners insurance market.

Ok but if you lose, your client gets $0 and owes you $50k. No? And if you settle?

What about lawyers working on contingency?

If I am not paying my lawyer, aren't we incentivised to charge (approaching) infinity, even if it's just a way to inflate the cost?

Do you not feel it's a problem to be charging $50k for a piece of software on a $.20 medium?

That software didn't magically appear. The development had a cost. The software itself has a value that purchasers provide to the seller. You aren't paying for a medium with some random bits.

Huh. Sounds like the attorney's time, too.

Would the software itself be any more valuable if it was engraved on solid gold?

No. It doesn't really matter what medium the software is on. Its value is independent of that.

I don’t understand this question. What’s a 20 cent medium?

The CD the software is sold on. It's like the old "why did I pay you $100 to turn a valve?"

You're not paying for the CD, the valve turning, etc, you're paying off the time built for the expertise and background engineering.

I think he was referring to a USB stick. The point of the question is that you pay for the work not for the single piece of outcome.

https://www.youtube.com/watch?v=Q6RK4479XD8 ?

Sounds fine an dandy when it's "stick it to the big evil corp that has revenues in the hundreds of millions", but a side-effect is that it'll make insurance and legal costs higher for smaller (and potentially very honest) companies.

Except that if the company did what it was obligated to do under the contract there would be no lawsuit, and if there was one the company would win.

And in the case that they did do what was obligated and win the case with 100 hours worth of lawyer time spent? Will the small party pay the lawyer fees for the company?

What do you think about the approach taken? ("I summarized the entire timeline into three sentences. I provided no evidence. I didn’t want to give my hand away before arbitration.")

Personally, I would’ve taken the exact opposite approach.

I once had an attorney, a very successful attorney, tell me that he’s a big fan of laying cards on the table right away. The rationale is that he either wants to know why he’s going to lose early or show the other party why they are going to lose early.

In a case like this, where it seems like OP has all the information to prove that these guys are simply in the wrong, I come out guns blazing. I Layout the whole timeline with screenshots and copies of emails, very detailed. Then I make the ask with some snarky closing line like, “if you’d like to avoid the inevitable judgment that will be rendered against you, please contact my office to facilitate payment.”

I’ll disagree. My guess is that it wouldn’t have changed their initial offer, and then he wouldn’t have any ammo to negotiate with.

But negotiation is not a game of gotcha. It’s not as though you get a number, and then pull a rabbit out of the hat to get a bigger number. “But see this.”

You make a demand, and you justify it based on the facts and law, and then you stick to it or make minor concessions until you reach your end result.

"if you’d like to avoid the inevitable judgment that will be rendered against you, please contact my office to facilitate payment"

The judgement may be inevitable, but a wealthy corporation may have the resources to keep the lawsuit in the courts long enough to bankrupt you or until you die of old age.

> a wealthy corporation may have the resources to keep the lawsuit in the courts long enough to bankrupt you or until you die of old age

Which is the advantage of arbitration.

Someone has run a terrific PR campaign to convince Americans it’s hopelessly corrupt. It’s not. It’s a venue that makes what you described impossible.

Adding an additional perspective. I'm on the board of directors of my condo corporation, and we have to deal with escalations from time to time for various claims, and threats of lawsuits, etc.

From what I've seen, a perspective of I've collected a bunch of evidence that I'll refer to, but not actually provide, does seem to correlate with those with baseless claims, or those possibly trying to scam the corporation. This is anecdotal from my experience, but has happened more than once. In this case, it might be slightly irrelevant, because the insurer probably has easily verifiably facts on their side to know the calls happened, and the computers were a problem, etc.

But something like the invoice that's being claimed, is an important piece of information. We may want to know what work was done, was it in scope of our responsibilities, call the plumber and verify their credentials, ask them for details not documented, etc. If we have any suspicion the individual is trying to defraud us, not knowing the evidence that supports the amount claimed makes it really difficult to agree to. And if this goes on for a long time, it may be difficult to follow up on those facts.

I don't know about the rules around arbitration specifically, but if this hadn't settled, there may be deadlines involved just like the courts. And anything your doing to make the other side unprepared or to ambush them may be held against you. I don't know that it means you have to lay out everything on day 1, but I wouldn't want to leave anything to the last minute and allow even an argument that I prejudiced the other side by knowingly withholding relevant information.

I'm not an attorney, but I've litigated almost a hundred cases without a lawyer.

Question: sometimes I'll have attorneys approach me at court when I'm on a case that's an obvious winner (and has statutory legal fees, which I can't claim because I'm not represented) and offer to take the case on so they'll get the fees, and then split the fees with me (and let me keep the damages).

Is there any reason why this would not be legal? I've not done it yet simply because I like to litigate everything myself to make a point that it's possible, but sometimes you get a judge that really hates unrepresented people and a lawyer would change the game.

Fascinating. I would love to hear more about your experiences! I could probably learn a thing or two (email in profile).

Ethics rules vary state to state. And, generally, a lawyer cannot split attorneys' fees with a non-lawyer. However, I'm aware of some jurisdictions that have exceptions to this rule, and perhaps, depending on the details, that might give them an out from the general prohibition.

But what you're describing is exactly the point I'm making. Having an attorney can often be a way to uncap your upside potential. If you can make the numbers work with the lawyer, then it's a win-win.

> I'm not an attorney, but I've litigated almost a hundred cases without a lawyer.

Fascinating! I've only ever seen this criticized as a horrible idea. Are you operating in a specific area that you're skilled in? I assume you must have a decent win ratio.

These one sided attorney fees provisions make a mockery of justice. The whole dialog becomes basically blackmail if you are a small business. Maybe it's ok to have these laws for giant corporations, but if you own a small business and are barely getting by, simply being accused of something you lose regardless of the outcome and your accuser loses nothing regardless of outcome.

What's the alternative though? I can sue you at any time for any reason. Well, I guess the alternative is to make it difficult for the average person to use the legal system at all.

Which is unethical because the legal system is supposed to be fair and balanced. If someone is suing you frivolously then ask the court to declare them a vexatious litigant.

Meanwhile, in the real world, you're probably advised to hire a lawyer to make that filing.

Does your small business have forced arbitration clauses in your customer contracts? If so, why was that decision made?

You would have to spend much more time litigating without an arbitration clause, meaning even more attorney fees. If this is a problem, it's not a problem specific to arbitration.

Only if you use. A better strategy is to not let customer issues turn into lawsuits.

> Lastly, let’s just say I’ve done an arbitration or two with a home warranty company. They don’t make money by paying out claims!

Thankfully we didn't (directly, I know it's our money in there somewhere) buy a warranty when we got our house last year.

I knew the AC was on its last legs from inspection, and no problem, since it was an older 80% old refrigerant system, probably closing on 30 years old. Figured it could wait one summer, in between all the other purchases with a new home.

Then last year Seattle decided to have a heat wave. Maybe not much for those in Phoenix, but four days in a row of 105F+. That's still hot.

And it's even hotter when you have no AC, as ours died a couple of hours into day 1.

So I call the HWC. They "are having trouble" finding someone for "emergency service". Their idea of "emergency service" is "we have a company that will be out there in four WEEKS".

So I found someone who could come out that day, for a surcharge. Reasonable. And the AC was dead. But this company were nice - the tech said "no promises, no commitments" and he did some shifty magic and got it running for about six more hours before it was permanently to the graveyard.

So we started getting quotes for a new HVAC system.

Responses from the HWC company:

- we won't pay if you don't use our suppliers

- we won't pay if you don't choose from our list of models (which were all low end, 80%, 1 stage systems)

- even if you use our supplier, we won't pay above an agreed amount

- if you used another contractor for ANY maintenance work on the existing system, we won't pay

- if the maintenance schedule wasn't followed (whether you owned the system/property at the time), we won't pay

Three (and a half) words are common across each of those bullet points, as you can probably surmise.

> One other way to “enlarge the pie” in situations like this is to hire an attorney.

Your comments here are incredibly enlightening, thank you for sharing! Can you speak to how to find a good attorney for this kind of thing, or really for any legal needs? Like where to go to find people willing to do arbitration and maybe how to determine if they’re good. I’ve hired a lawyer in the past for some employment contract work, and it was worth every penny, but found out it was rather difficult to find someone who could help. I had to cold call a lot of people who weren’t interested or said they weren’t qualified. It felt like the lawyers or firms I spoke to were mostly looking for a longer term relationship.

Happy to be of help.

It's very challenging finding a lawyer in a lot of these consumer protection spaces, because, for a whole host of reasons, there's not a lot of money here.

Having said that, one piece of advice I always like to give when looking for any professional is to use your network. If you have people in your network you trust, use them as a starting point. So, for example, I don't do criminal law. But, as a lawyer, I know lots of criminal lawyers (insert joke), and I also have a well-tuned BS detector when talking with other lawyers. So even though I can't help you, you'd be smart to reach out to me because I can help you find the right person much more effectively. And if I can't, then I reach out to a criminal law attorney I know, link you up, and let that person make a recommendation.

In short, use your network to leverage experience and knowledge to zero in on a good attorney. It will probably take a few degrees of connection, but if the chain is solid, you should get a good end result.

For example, I recently had a client who needed a criminal law attorney in a state where I don't practice. So you have two issues: one, I don't know that legal community, and two, I don't do criminal law. But, I reached out in my network to a prosecutor in New York. Now this prosecutor can't represent my client, but now I have a criminal law attorney in the right state, and so his network is going to help. My buddy (lawyer 2) reaches out to his network, and one of his trusted contacts says "call lawyer 3)." My buddy (lawyer 2) doesn't know lawyer 3, but he trusts his network and the referrer. Long story short, my client ends up represented by lawyer 3, and well taken care of.

Thank you, this is incredibly enlightening.

I am planning to go to AAA with a claim against an online ticket sales company that scammed my mother - I have screenshot evidence that they violated an FTC consent decree in the process. Amusingly the consent decree also mandates them to keep detailed logs on their behavior for 10 years so they should have excellent records as well.

I already spoke to senior attorneys at the FTC about it, but they couldn't really say anything back, and my understanding is that arbitration is the best option for my family to seek relief.

Would you be interested in this or have a recommendation for an attorney? I had planned to do it alone but your comment made me completely reconsider.

My email is in my profile

So if they decide to settle once you get a lawyer involved, does the settlement include both the claim and the lawyer's fees thus far, or just the claim?

I'm sure that the answer is "both of course", but just want to hear how these kinds of early settlements pan out in your experience. I imagine that the ~$50k judgement you used as an example might be for lawyer fees when it has gone to judgement, but is it even worth most lawyers' time if it doesn't go that far? Couple hundred bucks to send a letter vs hundreds of bucks an hour doing something more consistent? Or is all this pretty boilerplate stuff?

It's more nuanced and squishy than that. Let's say I'm half way through litigation and we want to talk settlement.

I'm going to say something like "if we win, my client is going to get $6,000, and I'll have a claim for fees of $20,000 (based on my time in the claim so far)." So then I'm going to use that as a basis to make a settlement demand of $30,000.

And then we play negotiation ping pong. I'm likely going to discount the portion I attribute to my fees because they're uncertain (what if I lose?). And then the client ultimately makes an individualized decision wheter we settle and on what terms.

> And then the client ultimately makes an individualized decision wheter we settle and on what terms.

Could you please elaborate on how that works? To continue your example story, let's say you decide that rather than $20k you're willing to settle with taking $15k for your fees; and let's say they counter your $30k offer with "$20k take it or leave it". Do you then give the client a choice of "you get $5k instead of $6k if we settle, your choice between that or going to court"? Which could equally be "you get $1k instead of $6k" if you earlier decided to only lower your fee for settling from $20k to $19k?

Or does the client actually get more power than that somehow / at what stages do they get info & get to make what decisions or proposals?

(edit: and I'm just asking for curiosity since I'm not in the US, but maybe you could also clarify if what you're saying is true for the US or just for your state?)

It's all going to depend on the retention agreement with the attorney and how they agree attorneys' fees will be paid.

Lawyer fees are not a fixed cost, they increase with time. And the longer a case goes the less boilerplate it becomes. A settlement is more likely to include a greater portion going to the consumer than a final arbitration

Right, I get that. I just wanted to make sure that the lawyer's fees are covered in the settlement, or would a settlement include a final FU you that you now have your claim, but you're potentially out of pocket paying the lawyer fees you now owe.

Worse yet, could they string you along and wait till the last minute to settle, thus increasing your lawyer fees potentially beyond the value of the original claim?

I'm not sure if I'm understanding all of the questions/concerns you raise in your comment, but generally, I don't apportion out attorneys' fees in a settlement.

And, again, typically, you don't "owe" attorneys' fees. It's a contingency (percentage) agreement. So if you settle at the 11th hour for $10,000, you have agreed to pay the lawyer a percentage of that figure, not necessarily what they would have asked for as attorneys' fees at a trial/hearing.

>I'm sure that the answer is "both of course"

IANAL, but my understanding is that the default rule in the US is "each party pays for their own lawyers, regardless of who wins"[0]. Of course, the specifics would depend on the actual terms of the settlement agreement.

[0] https://en.wikipedia.org/wiki/American_rule_(attorney%27s_fe...

That is the standard American rule. However for this reason, most consumer protection statute include a provision where the prevailing consumer gets their attorneys fees. Otherwise consumers would be left without representation.

Thank you for the insight! I'm curious of your perspective around consumer success with data breach as of recent? Do you find companies liable for general negligence?

As an example... When I was selecting a mortgage company a couple years ago one of the large providers who is newer, and started out in higher ed loans, seemed to have a very sloppy process. They did a lot of things via email that likely shouldn't be done which opened up the avenue for them to send my SO and I emails of PDFs that included our SSNs in them. Needless to say I stopped the mortgage process with them right there and, ended up using a local credit union. However, I threatened legal recourse in a state that doesn't have great privacy laws based on the obvious "leak". When they asked for proof I pointed out that the email headers contained 5 intermediaries that were out of their control between sending and receipt. The company sent us each a check for $4k and part of my stipulations were that we would not sign anything in exchange. I was surprised how easy it was and almost felt as though I left money on the table. But I'm curious if you see a particular area that consumers can push back on when companies are negligent with customer data?

Typically, breach litigation has not been very successful. I would describe your outcome at very out of the ordinary (although the behavior you describe is pretty egregious).

The problem is that, generally, the law thinks in terms of damages. So this mortgage company was being reckless with private information, but were you harmed by it? If the answer is "no," oftentimes the claim is dead on arrival.

Of course, we all know that a data breach might not yield harm for 12+ months (when the data is sold on a black market and then used nefariously). But the law isn't well equipped for these types of situations.

So... thanks for the advice and info. Good to get practical knowledge out there.

That said:

that same law says you can get attorneys’ fees too, the company knows that they could be facing a 50k+ judgment at the end (almost entirely comprising attorneys’ fees), and then that often incentivizes earlier, higher settlements.

This is awful, in my opinion. We really should consider redesigning our legal systems once every century or so. This sort of thing is a result of lawyers making their own rules for too long.

Hmm anyone from Spain familiar with this? I've claimed stuff with my regional consumo agency a handful of times (successfully) but most of the times it was <1K, so It was only worth the hassle because I was almost angry about the situation.

If I can punish companies for bad behaviour and harm their pocket this way, It would be much better.

Super helpful, thanks.

If I ever need an arbitration attorney, do you recommend (1) focusing on finding someone local or (2) finding someone specific to arbitration regardless of location?

Also, if I lose, am I on the hook for the attorney fee? Or do I ask the attorney to take the risk and only collect a fee if we win?

If you're optimizing between local versus experience arbitration attorney, I'd prioritize the latter. I've never felt like my geography was a major hindrance (maybe I had to put in some extra hours to learn local laws/rules/customs, but that's rather easy).

Put differently, I feel much more like a fish out of water when I'm out of an arbitration context I have a lot of familiarity I'm with than when I'm under a different state's laws.

"the company knows that they could be facing a 50k+ judgment"

Wait. You could lose. Doesn't that mean YOU could be responsible for THEIR lawyer fees too? EG. If you lose, your lawyer shrugs their shoulders and walks, you are stuck paying the 50k?

It depends on the jurisdiction but in the USA, generally the plaintiff is not responsible for the defenses legal fees.

You’re generally only responsible for the defendants legal fees if your suit was unfounded and purposefully used to disrupt or harm your legal opponent, rather than to seek remedy in good faith.

The defendant can be made to be responsible for your legal fees because those fees were “caused” by their action/inaction which was the unlawful source of harm that you are suing about.

Because the defendant “caused” the lawsuit as a direct result of their original actions against you. All costs that follow from their original harm are owed by them to make you whole.

If you bring a lawsuit as a plaintiff and lose, as long as it was a reasonably well founded lawsuit, there’s nothing to point to and say “ah ha! You injured me with your lawsuit that I won”. Because everything that happened was perfectly within everyone’s right (to bring a reasonable lawsuit but fail to secure a win).

Generally no. American rule provides that everyone has to pay their own fees unless there is a fee provision. Those are almost always written in favor of the consumer (if you win, you get fees; if you lose, you don't, but neither does the business).

Have you done any arbitrations with employee cases? Mandatory arbitration in low wage employment was the hot topic a few years ago.

Never got into the employment context. But wage and hour cases (FLSA) have made many a rich lawyer.

I will say, while I am generally not anti-arbitration, I do think it has its limits, and when it is used as a tool to suppress information that should be out in the public, I am completely opposed to it.

The Example I often use are cases where an individual is suffering severe sexual-harassment. If that person is forced into arbitration, unable to share their story (confidentiality required), and hamstrung in prosecuting their claims by the arbitration process, that’s a losing situation for the entirety of society.

Author here. Thank you for the tips, and thank you for the feedback!

Thanks for giving me a chance to accumulate tons of that sweet sweet HN karma.

are arbitration decisions part of public record? can someone request documents on it like one would for court documents?

Generally no. It’s all private and unreported. There are some statistics gathered, but they’re anonymized. So, for example the statistic will record that my firm represented an unnamed consumer against a named company.

> Far too many people are scared of arbitration

That's a mischaracterization about the problem with arbitration. People are not scared of it. People are not afraid. It's shameful that you use language like this accuse the people of being afraid and scared. You can't claim to be an attorney and then say you didn't understand the meaning behind the words you chose to use.

Consumer arbitration is corruption. People correctly understand that when one side is paying money to the judge, that the system is corrupt. It's about buying the judge, the court room, and the whole system.

The problems with consumer arbitration are well documented. Being scared is not one of those problems. People are angry.

https://en.wikipedia.org/wiki/Consumer_arbitration

> It went pretty well.

...

> [...] I counter-offered 80% plus arbitration filing fee reimbursement. The next day, they responded back with an acceptance and sent over a release form. Case pretty much closed. I didn’t get 100% back, [...]

So author had to jump through hoops and in the end only got a percentage of what was owed. The text is written in the format of a feel-good success story, but the result is the oposite. What is described is a broken system, if the only punishment for the crime is to do what they should have done in the first place then there is no incentive for companies to do the right thing to begin with. Customer protection laws absolutely need a clause for double the reimbursement and I'm shocked that this person's country (I'm assuming it is the USA) doesn't have it. Without such a clause it is best for the company to just deny ALL claims and profit out of the people too lazy to go through arbitration.

This was my takeaway as well. So in order to not get screwed everytime I do business with any corporation (i.e. virtually constantly in the modern world), I have to go scrutinize contracts, meticulously log phone calls, initiate and follow up on arbitration procedures, etc, and still lose money in the process? How is that a win? Who has time for all of that? It's so ridiculously one-sided, yet we're so conditioned to it that we think we're doing alright when we're just getting screwed.

> in order to not get screwed everytime I do business with any corporation

This has nothing to do with corporations. If you decided to only do business with natural persons you’d have the same burden of proof.

Sure, but there's still a crucial difference: the one other natural person has the same order of magnitude of resources to spend on the issue as you, instead of a multiple.

Plus a person might apply common sense and human judgement from the first contact instead of following procedure with no power to deviate from it even if it makes absolutely no sense at all.

You should read contracts and, if things go wrong, keep contact logs.

I didn't get that at all. Author takes on company legally, and with little effort wins most of what they are after (~10% difference).

I had a situation almost identical to this where I had an AC that gave out and after a month with the warranty company, I just fixed it myself. Because it was July. In the southern United States. I didn't even know about arbitration. I just assumed the black whole of rotating customer service agents and canned answers is the end of the line.

> I didn't get that at all. Author takes on company legally, and with little effort wins most of what they are after (~10% difference).

Paying 20% of what is not your responsibility to pay is still losing. It's just losing less.

> ~10% difference

In addition, there was the author's time without hot water, time spent on customer service, time spent figuring out how to file an AA case, and stress.

Author here. As the arbitration attorney said earlier, "They don’t make money by paying out claims!" No insurance company or home warranty company exists to pay out claims. I laugh when I hear them claim that their business is to diversify risk.

Any sort of out clause that the have to not pay a claim, they will try to use. In this case, it was "you didn't get a preauth." This makes it by no means a binary, black/white issue contrary to what a stereotypical HNer believes.

As far as a national consumer protection law that doubles reimbursement, good luck. I'm shocked that foreigners are shocked when they hear that the US actually has very few national laws. The country is big, diverse, and the regional histories that bought the states together, and grew, is too varied. The system is set up so that the states handle most legal issues. I for one am fine with that.

I think you proved SkeuomorphicBee's point. You are oblivious to the fact that you got f-ed over. You are talking past the argument thinking people won't notice that your feel good blog post is about how you think you won, but actually got screwed and are oh-so happy about it.

Bizarre.

Bizarre you think that things are either fucked over/not fucked over. I'd point out that the vast majority of lawsuits are settled before hitting the courtroom, but I think you're too young to understand what those words mean.

In my experience, lots of companies have more or less automatic denial on requests. This is to filter out those that simply give up on step 1. Then the same companies will, like OP points out, offer some % in reimbursement / whatever to those that bother to appeal the initial denial. It's a disgusting practice, IMO - but what can you do?

A bit OT:

But ESPECIALLY the rental market - professional or private - is horrible on this. Before purchasing my home, I had rented 7 different apartments over the years.

No mater how thorough I'd be on washing out apartment, or how careful I'd be with it, they would always find something - and claim deductions on the deposit.

This worked for the first apartment I rented - after that I got wiser, and took pictures of everything before actually moving in. Better yet, with the landlord or representative as witness. Document everything. I even recorded the phone conversation - informing that the conversation would be recorded, and if that was a problem, we'd take everything in writing.

This saved me lots of deposits. Like clockwork, I'd be informed that they found something - sending evidence. I'd reply back with my evidence, and suddenly everything's OK.

> after that I got wiser, and took pictures of everything before actually moving in. Better yet, with the landlord or representative as witness.

I manage a property in a college town. Most of my tenants are first time renters just moving out of the dorms, so they've never learned these hard lessons before. I try to help them out by telling them about how they can get screwed on deposits, and tell them to take pictures of any damage they find and print it out so I can sign it.

I just hope they take that lesson with them after they leave my place.

Also I remind them that they have a right to a walk through at the end of the lease and never charge an item on a deposit that I haven't discussed with them first. I always give them a chance to fix it first. Usually they just say "bill me" (probably because it's their parents money) but sometimes they will fix it or they will help me fix it. It's a lot more work on my part, but on the flip side I'll have tenants messaging me a decade later thanking me for being honest and kind. So I guess it's all worth it.

> No mater how thorough I'd be on washing out apartment, or how careful I'd be with it, they would always find something - and claim deductions on the deposit.

I sat in a PMs office in a high rise I was moving out, waiting for them to take care of something.

I noticed my move-out inspection report (which we were ABOUT to do), oddly already filled, some. "Blinds - dirty, needed cleaning", "Carpet - stains not removed, needed cleaning", about half a dozen items which according to their "costs incurred" ate up most of my deposit. Oddly, since I knew they hadn't been in the apartment recently, even without my consent, because I'd been packing and cleaning. I'd even brought with me receipts for the carpet cleaning etc.

PM comes in, grabs some papers and a clipboard from her desk, including the form. "Let's go get started".

"Oh, while I was waiting, I apologize, my eyes must have caught that some of the paperwork on your desk was for us, so I looked over at it, and saw it was already filled out for the inspection?"

Umm, ahh, stammer, stammer. "Oh, how strange. I must have, uhh, photocopied a previous form without realizing it wasn't empty."

Didn't make any sense on any level, but whatever. We started with a new form, and I made sure that none of that BS made its way back on.

> It's a disgusting practice, IMO - but what can you do?

Rate the expected value of all insurance services at $0, that's my approach. (I guess you could call that giving up on step zero!) Why bother doing business with people whose profit model consists of taking your money now so they can decline to return it later? The better they are at their jobs, the worse a deal it is for you.

Of COURSE insurance has a negative expectation (not $0) in absolute terms - but this doesn't make it a bad idea! We don't live on expected value - we live on actual, highly variable outcomes. I'm happy to lose expected value to offset catastrophic losses for small-probability events, like early death, car accidents and fires.

I will continue happily paying my insurance premiums, and ardently hope that I never get any of that money back.

Of course, there may be specific types of insurance/warrantee programs that are a bad idea for one reason or another, but that's not an argument against insurance in general.

The expected value of purchasing insurance is always less than $0. You're paying to eliminate a risk and smooth out your cash flow.

> This is to filter out those that simply give up on step 1.

A lot of people must give up here. I had a car totaled by a hit-and-run driver and the insurance company wanted me to settle for $10k less than the car was clearly worth. (I had lots of proof of this.) It took a month of me telling the adjuster "I'm not settling" before I got that $10k. It was the most infuriating customer-company relationship encounter I had ever had. I felt like the person was intentionally misunderstanding me and making false statements. I tried to get to their manager a few times, but they wouldn't. It was clear that the person's manager was in complete agreement with the course this situation was taking.

Yup. When my car was totalled I had a number in mind (high 20s). And got a much lower number. For the record, this was like a 3 year old Audi A4, fully loaded.

So I asked to see comps. Sure enough, all but one of the comps was in that ballpark, from about 3-4 under, to nearly 30.

Except one. Which was about 140 miles away, and listed for $11,500. Clearly a salvage or rebuild or something (water damage, whatever, obviously not accurate). Dragging the average down like a boat anchor.

"The ad doesn't say Salvage Title so it's a valid comp."

They just kept repeating that like a broken record.

My situation was that I had very low miles and all comps had like 3x those miles, in my area. She wouldn't look outside my area for comps with low miles, even though those areas had much lower cost of living. Going from $18k to $28k allowed me to get a new (used) car for no cash. Also, we had a semantic argument about what a "trailer hitch" was that lasted weeks. I had it installed after purchase and had receipts.

I definitely recognize the "broken record" part of your comment!

Five years from now, "Class action against insurance company for colluding with car dealers to create fake listings to limit payout amounts"...

In Australia and other countries rental deposits are held by a government office, at the end of the lease if the landlord wants to keep some for damages they have to prove that there is a problem. I think the office lives off the interest earned. Works great.

> what can you do?

What the author did. Take them to arbitration.

If you were an idiot and opted out of arbitration you’ll need to spend a lot of money going through the courts. If you didn’t, you may be able to get representation on a contingency basis.

> In my experience, lots of companies have more or less automatic denial on requests.

Remember I read that in a novel as a teenager, and since then I've always complained if I get rejected. Almost always work, as they then finally actually look at your situation. And if it doesn't work, I keep going until they realize making me whole will be less costly than the time I make them spend.

Had to look it up, the novel was "The Rainmaker" by John Grisham.

A little known fact is that rental assets depreciate in the eyes of the government. This is why you can deduct depreciation from rental property on tax returns. The corollary to this is that damage to those assets happen against the depreciated value. For instance, if there is a bathtub in the unit and it hasn't been replaced in many years, then the effective value of that tub is 0. It doesn't matter if you actually damaged it or not, the landlord cannot come after you for the full cost of a new tub.

For consumer arbitration, always try to choose JAMS instead of AAA. JAMS arbitrators tend to charge much more than AAA arbitrators. Many JAMS arbitrators have judicial experience, some even on the federal bench.

In my case, all of the arbitrators proposed by JAMS would have charged over $1000 per hour to resolve my case. Per the contract, all arbitration costs would have been borne by the defendant, so the company was eager to settle and avoid a huge arbitration bill.

This guy arbitrates.

I’ve done something like 500+ consumer arbitrations in the last 5 years. JAMS tends to result in better outcomes for the consumers.

There’s all sorts of reasons for this. If nothing else, JAMS arbitrators tend to be retired judges with experience in the adjudication role.

More often than not, AAA arbitrators are just attorneys with 10+ years of experience. And, well, let’s just say 10 years of experience as an attorney does not automatically make a person competent.

"And, well, let’s just say 10 years of experience as an attorney does not automatically make a person competent."

Everybody knows that what makes an attorney competent is their social media presence!

Better Call Saul!

> 3) Keep records of phone conversations. Date, time, who, resolution. Keep screenshots. Keep emails.

If you take nothing else away from this article this a great point.

I once had an issue where two different electricity companies believed they were supplying our University flat. This turned out to be due to the mess of naming systems involved in Edinburgh flats where two apparently identical flats had meter numbers. Eventually I was able to extract this information from the call handlers but only after a ridiculous number of calls.

This got far better when I started taking names and extension numbers so that I could skip the intro session on each call and speak directly to someone who knew the situation. Taking careful notes of who I spoke to and when.

For about 2 years later I'd still get the hard sell from some debt collectors telling me that I could just pay the £2000 and it would all be over...

As an attorney, I love when I get a client like this who has tons and tons of records.

I recently had a case where my client, who uses a service dog, was denied a hotel reservation because of the dog. The hotel’s attorney called me and said “I spoke with the other person, she said this never happened, and he never said it was a service animal.” Well, my client, due to his disability, uses a telephone system that records all of his calls. I sent over the recording, and it clearly showed that he identified a service animal, and the person just said “no.” Now that lawyer knows his client’s a liar.

Olympus Telephone Recording Device (TP-8) costs something like $25.

It's simply brilliant. It plugs into any recorder with 3.5mm plug and because it's device you have in your ear it works with any call (normal phone call, WhatsApp whatever). Reporters routinely use it with Olympus voice recorders to make phone interviews.

I highly recommend.

Here's a handy 50 state survey of phone recording laws: https://www.justia.com/50-state-surveys/recording-phone-call...

Not your lawyer legal advice:

Make sure you are aware of the relevant laws regarding recording phone conversations.

Having said that, thanks for the equipment tip!

Not looking for legal advice but: how does that work in the context that the other party is recording my call? If I phone a service provider, they tell me calls are recorded for training and monitoring purposes - does this prove they've given consent to both parties recording?

I don’t understand how it works. It only has one jack. What do you plug it into? How do you get any audio into the earphone AND record both sides of the call? Or is it just like any microphone and you have to put the phone on speaker and basically record the ambiant audio?

You plug it into anything that records sound.

The earpiece has a good microphone that captures both sides.

I was skeptical at first, but It just works. It records both sides of conversation well.

You'd think there would be an app for this, or even built into the ios/android.

Google has actually been fighting call recording apps for years. California is a two-party consent state, but most states are one-party consent (and many countries don't have legal restrictions at all). They're basically enforcing California law globally. It's extremely frustrating to have your phone force-upgraded only to lose important features.

https://www.pcmag.com/news/google-is-banning-call-recording-...

There used to be for Android, but Google has restricted audio routing during calls to prevent two-way recording (i.e. you'll only hear yourself).

iOS used to have this capability for jail-broken devices way back in the day; not sure if it still does.

I'm guessing that the state-level consent laws make it difficult for Apple and Google to bake in phone recording.

That's such a clever way to do that. Amazing in its simplicity.

Can you use it with the phone you're talking on ?

I had a similar situation. My lesson from that was that if I can make "my" problem "their" problem, it will resolve itself quick.

In my case, someone had mistyped a meter number (matching mine) when signing a new contract with a power company. I got a message from my existing provider that I would be transferred there. I called the new company to explain that it was a mistake, and they seemed happy to fix it. I had to jump through some hoops (get a key to the power panel for the building to take a picture of my meter and stuff), but thought it was okay to get it resolved.

But it didn't work, later I got a letter addressed to the apartment, saying I owned the new company money. I gave them a call, and they didn't really want to fix it, just get their money, and make me do additional stuff to prove I hadn't signed with them. It was then I could say something along the line of "We don't have a contract, which is YOUR problem. As far as I'm concerned I'm getting free electricity until you fix this". Of course I could only say this because legally they can't cut the power here during winter.

But when it became their problem of losing money, it was fixed without issues.

npower nearly drove me off the ledge (or more correctly came close to been the final push at what was the worst moment in my life) because they kept fucking up their billing for nearly a year over and over again, the same shit.

In the end I got pissed and kept asking for more senior people til I got to some director of something or other, I explained what had happened, that I had all the evidence (bank statements showing I'd paid, their inability to meter coherently etc) and that my next call was going to be a solicitor and ofgem if it wasn't resolved.

They zeroed the account (which worked in my favour somewhat since I had used some of it, came and got an accurate meter reading and apologised.

Turned out later I was caught up in this shitshow on their side: https://www.ofgem.gov.uk/publications/npower-pay-ps26m-faili...

So yes, keep everything is good advice.

Important stuff I ask via e-mail and refuse to take phone calls for a response. That automatically gives me the needed paper trail.

Side rant:

> 4) Don’t get a home warranty.

Sellers are basically obligated to provide them, because it's what everybody does. They serve to lubricate a deal with a checkbox, while releasing the seller from some obligations.

I'm pretty sure selling RE agents get a percentage on referrals (in US). I sold a house without an agent and phoned one of these companies to simply buy a warranty to hand to my house buyer. They were baffled how to do this without my agent id number until some manager said just sell it to him.

The whole thing is a reception line of parasites waiting for some homebuyer blood.

Yet we did get a warranty on our recent home purchase, and it paid for itself 3 times over. But this was a very specific situation - the home had been built over 20 years ago and had all the original appliances, furnace, water heater, etc. It was a ticking time bomb to have to replace those things. So we got the warranty and pushed the warranty every time the slightest thing went wrong, and replaced half of the various appliance and systems with some reimbursements from the warranty.

Not total reimbursements, and I don't recommend the warranties unless you likewise have a complete set of appliances past their expected lifetimes. But like anything else, use a tool in the right place, in the right way, and it serves its purpose.

Home warranty companies are the worst. After the year warranty that came with my first house expired I (foolishly) maintained the contract for a while longer. I later sold the house, including 6 months or a year of that same warranty contract. After that pre-paid time period was up they started charging my credit card again rather than the new owners. I called multiple times but was unable to get anyone to remove my card details from the contract. Thankfully, since it was a credit card I was just able to do a few chargebacks and that solved the problem.

Author here.

As an aside, shortly before I filed, I told one of the customer service reps to cancel my contract. They said a manager would call me (I assume a retention specialist) but they never did. Coincidentally, my credit card expired and I just figured I'd cancel the contract that way.

For months I got emails and eventually calls from them telling me my credit card expired. I'm like, "I just had to file an arbitration case against you fuckers. Can't you read my account notes?" But after dealing with those reps, I concluded that no, they can't read my account notes.

And if you're on the other end as the buyer and actually need to use the warranty, good luck. One of the worst experiences I've ever had, and it was supposed to be "one of the best home warranty companies out there".

This must be a highly regional thing because nobody offered to sell me a home warranty when I bought my house.

In my experience (in several US states) it has never been "offered to sell me." It has been "the seller is including a home warranty [whether you want it or not]." One time I tried turning it down, and was basically told "well, we'd have to go back to the drawing board on the offer if you do that. Just take it. Everyone takes it." And similarly when selling a house "I don't want to include a home warranty" was met with "all other sellers include it, so if you don't, you're going to look bad." For the cost of these warranties I can't imagine that the agents are getting that much of a kickback, especially compared to the commission they make on the sale, but something is clearly going on.

Well just to put in some more anecdotes, I sold a home in December and did not offer a home warranty. My agent did not care and the home sold quickly without one.

And several friends and family have purchased real estate in the last few months; again no home warranty offered or expected in those transactions.

I think the market has a lot to do with it. I've bought properties in buyer's markets (recession '08 and '14) and it was barely even mentioned that there was a home warranty included. I got the sense from my agents that it was standard.

I've been shopping since September last year and watched the market shift as low interest rates stopped recently. There was a seasonal dip in December 2021, but it was still about 20% higher than even highs of previous years as people scrambled to get good loans before they ended. It was definitely a seller's market. My agent said many winning deals were waiving financing contingencies and even inspection contingencies to sweeten the offer. Home warranties would have been one of the first things dropped.

Well my house didn't come with a home warranty either nor did anyone involved in the transaction recommend one or even mention it either way. I was under the impression they were a very niche product.

Yeah, I think home sale practices vary widely by market.

A couple of years ago a family friend in Florida says "Oh yes, we never make an offer until the second showing." Ha ha ha.

Used to be a thing, it's such a sellers market right now that in my area (Texas) the sellers aren't including it anymore.

> In the US, it’s not easy to sue a company as a customer.

My experience in Canada:

- I successfully sued a large retailer (something mart) over a $60 mistake, that ended up costing them a lot more in small claims court.

Just dealing with the company was insane. Literally yelling at me on the phone that they were never going to pay for a simple mistake. I literally said "well, if you're going to yell at me, let's at least do it in front of a judge."

It was really easy to file the papers, and even serve them myself. The court people helped. The company denied, denied, denied. Day of the case, literally 5 minutes before it was set to start, they agreed to pay everything I asked for (including 2 days of my time), but wanted me to sign a non-disclosure agreement. Which I did.

- Second case, it was one of Canada's largest banks. Error on their part, cost me $1000+ in extra expenses. Fought me the whole way, didn't want to pay anything at all. Went through their internal ombudsman process, but never got anywhere. A few days after filing a claim in small claims court, they gave me everything I asked for. Again, wanted me to sign a non-disclosure agreement.

So I tell everyone I know, that in Canada, the big corporations are more afraid of courts than anything else. Last thing they want is a public record of wrongdoing.

These kind of NDAs are frustrating because it prevents systemic problems from being aired and addressed. I don't blame you for accepting it – I would have done the same – because it's not your problem to fix; you just want your $1000 back, but I wish they would be restricted by law.

> In the end of my response, I counter-offered 80% plus arbitration filing fee reimbursement. The next day, they responded back with an acceptance and sent over a release form. Case pretty much closed.

This is so depressing - it cost him $200 to get to the point of arbitration in the first place (lucky for him that he had $200 to file it in the first place), _and_ he didn't even get the total amount back, he get less than $1500 rather than the $200 he likely should have got.

For anyone who claims "just take them to court" or "just sue them for breach of contract" - this is what you're looking at, getting back 75% of what you expected after paying for their complaints procedure.

He asked for $1800 and accepted 80% plus the $200 filing fee, so he got back $1640, so it cost him around $360. --I'm guessing his deductible would have been in the $100-200 range, so, yeah, he ate $160-260 rather than spend the time going through arbitration, but it's perfectly fair for him to consider the cost of his time in determining whether or not it made sense to continue fighting.

In the end he still comes out ahead since it looks like a normal sized electric water heater runs around $500 plus the cost of installation and repairing any damage from the leaks.

On the other hand, that was purely due to his counter-offer being 80%.

Given the amounts we're talking, there's basically no difference between $1500 and $2000 for a big company - the entire process already cost them as much, and continuing said process would keep costing them more especially as it's a clear-cut case of breach of contract they are unlikely to win regardless of how much time they spend on it.

If they didn't believe he had any ground to stand on, they would've declined immediately regardless of how low his counter-offer was. Given that they accepted it immediately, they knew they were in the wrong and would've accepted a repayment of the full amount just as well.

AAA arbitration costs a company about $3,000 (and the costs of an attorney they hire). Some may/will pay nuisance settlements if it’s the economically rational play—even if they think the claim is bogus. Although, to be clear, this claim sounded very very legit. (Candidly, I would have pushed for a much higher settlement. But don’t blame OP for not wanting the headache).

There’s some interesting arbitrage opportunities in this space. I have the legal (and arbitration) experience. I’ve been noodling on how to marry it up with a tech-minded individual to capitalize on these opportunities.

Sounds like an interesting opportunity. Some ideas immediately come to mind. I'm a previous founder and CTO/CEO. Feel free to reach out if you're interested to discuss. You can find my email in my profile.

Judging from the article negotiating was fast, indicating that OP probably could have concluded on more advantageous terms. I enjoy these negotiations but OP’s process was swift and relatively painless. Probably a more economical use of time.

I disagree. FTA:

> After about five calls of runarounds, I realized that customer service channels would not help me and I had use the legal system.

> I filed a case online for $200 > Two days later, I received a response <..> I respectfully declined. > A day later, I requested a 3rd party pre-auth to find an outside plumber. > I counter-offered 80% plus arbitration filing fee reimbursement. The next day

By my count, he called them 5 times, threatened (and followed up with) legal action, and took 4 rounds of negotiation all to receive less than he was entitled too.

Also, I don't blame OP at all here - they did a fantastic job of handling the situation they were in, but it's a shitty system that allows them to be caught like that in the first place.

As the lawyer above said, they could have hired a lawyer to do the work for him and the company would have had to pay the lawyer. Alternatively they likely could have claimed for their time based on their hourly rate, also they should likely have claimed for the inconvenience of being without water for several days. I think they really went to light on the claims and that's likely also why the settlement was so quick.

I like your perspective. However, I have to make about that many calls every week just to deal with messed up bank balances, errors in credit card bills, etc. I spend well over an hour a week on stuff that in the late 80s and early 90s could have been taken care of with a single phone call to the institution involved. (I have several residences and small businesses so YMMV.)

>>and about two days later, got a Fed-Ex’ed check in the mail.

I often wonder, how much time and fuel is wasted on this nonsense in the US. Couldn't they have just.....sent him the money directly? You know, like in literally every other country in the world?

That's what surprised me the most too. Like... it's 2022, I'm sure we have banking systems capable of transferring miniscule amounts of money on demand, everywhere in the world. Right? For the amount of tech that comes from US, it seems to be incredibly backward on a lot of things.

This. The number of companies still sending me checks (for client settlements) is asinine. And these are BIG companies (fortune 50). I have one of my regular companies now that ACH’s.

The amount of money spent on overnight mailing in the legal profession is astonishing.

Why is this?

My guess is simply superstition.

I don't know if this is true (I heard it from a local), but for decades there was not a single ATM on the Falkland islands. The local bank said ATMs just don't work on remote islands. So a Stanley petrol station took the matter into their own hands and just bought one. ATMs don't care if you're on an island, you just plug them in, put money in them and then people take it out. I can at least verify that that part is true because I was there, saw the machine and got money out of it.

Another personal anecdote is an industrial application where safety critical updates had to be received on DVD-Rs that were routinely left unsupervised with untrusted intermediaries in very shady parts of the world. I suggested putting a message authentication code to ensure it hadn't been tampered with. The industry professional I was talking to would hear none of it, thinking the only way would be to transfer the entire contents of the disk over a very expensive satellite link to the head office and have it compared bit by bit. That MACs are a real thing that actually works, and that sending the data back and forth and comparing isn't actually secure unless a MAC is also used was like water off the goose.

Large organizations are big, dumb, and slow. Only a tiny bit of that is hyperbole.

Is it possible that even a small % of people losing and forgetting to actually use the cheques saves more money than a little added cost to each payment?

I wonder if companies want to have an image of a cashed, endorsed check as proof that the funds were sent, given the antagonistic nature of the relationship. With ACH/wire you can prove that the money was sent, but it is harder to prove that it landed in the customer’s account. Kind of a TCP vs. UDP thing.

This is probably partially right. Although it might sound silly to this crowd, the idea of asking people to get ACH and acct number is full of opportunities for things to go wrong (wrong info, typo in info, etc). Sending a check is the good ole fashioned way that everyone understands.

I don't understand why Americans don't do direct bank transfers, they're fantastic. And with SEPA Instant Credit Transfer, it's even better than ever. I have a secondary bank account in Germany (N26) and if I transfer money from my Finnish bank account to it, I get a push notification from the receiving bank basically a second after I push "Confirm" on the transfer UI.

> I don't understand why Americans don't do direct bank transfers

we do...

Well, yes, which makes the whole situation even weirder - American banks support direct bank transfers, yet companies and individuals continue using cheques. Fedexing a check for insurance claim is like super duper weird to me - it must cost money to send it, it cannot possibly be cheaper than just wiring the money.

You see an inefficient system. Companies see a way to hold onto the money for longer, which makes them better able to use that money elsewhere in the meantime like continuing to earn from investments, benefit slightly from inflation, and potentially make other decisions with that money. Holding onto 2k for a few extra days might not be a big deal, but when you do it for everything you pay out that can be a substantial benefit over time.

Its hilarious when selling/buying used books. I have had, on few occasions, been sent sale receipts of 1 or 2¢ on books which were re-sold. I would rather have them keep the money. It takes 40-60¢ to post that check.

To be fair, the French tax office mailed me my tax refund as a physical cheque which I couldn't cash as I no longer lived there. I eventually got them to wire it by SEPA but it required explaining my situation in a letter.

> Trying to find someone at HWC who could show an iota of free-will and thinking was hilarious and impossible.

Since this is such a common pattern when interacting with any kind of customer support I'm interested in exploring why this is.

The solution seems trivial enough. Write down the customer id, date, time and what was pre-approved on a piece of paper. Then when the computer comes back up, enter it into the system.

Maybe the call handlers were just lazy and thought they could use the outage as a break. But you would think that bickering with customers on the phone is a lot more draining and annoying than just keeping business flowing.

Maybe the software didn't allow recording events that had already happened, like the date and time field wasn't editable. Did the developers think that their system was infallible and would never go down? Or did they ask the domain experts if they should make this provision, and it was rejected?

If so, what was the motivation of the domain experts? Did they think that their developers and IT infrastructure was infallible? Or did they not trust the call handlers enough to make the date and time field editable? Or do they take delight in finding loopholes where they can shirk their contractual obligations?

I bet it boils down to an intersection of a number of issues.

> The solution seems trivial enough.

Maybe so, but that is the usual trap, isn't it? Us armchair experts can expound to no end from the outside.

> Write down the customer id, date, time and what was pre-approved on a piece of paper. Then when the computer comes back up, enter it into the system.

I imagine that the typical phone-drone has no authority to provide such an authorization, and with the system down they have no avenue to pursue one. No trail through the system, no audits, etc.

> Did the developers think that their system was infallible and would never go down?

Surely not, but the developers knowing their system is fallible is a long way from management acknowledging that reality, and drafting policy to account for outages. Allowing, e.g., for manual pre-auth procedures.

> If so, what was the motivation of the domain experts? [...] Or do they take delight in finding loopholes where they can shirk their contractual obligations?

Or do they get tired of dealing with bureaucratic red tape, scope changes, approval processes, etc. etc. and just ship the product the customer asked for, despite shortcomings in the spec, and call it a day so they can gtfo?

The company came pretty close to getting away with "our systems are down so we can't pay you". I'm sure there were far more policy holders during that time that didn't pursue arbitration than those that did.

So why wouldn't they just shrug and try to blow it off? On balance it likely made them money.

> I was very impressed that this company so effectively neutered all staff that had any contact with customers.

I'm fascinated by the separation of them who do something (the company's employees), them who run it (i.e. who tell said employees how to work), AND them who actually own the company.

It's been mind-blowing to me how for all large-enough companies, the people who own it have no say at all in how it's run. and the people who run it (the managers or "executives"/bureaucrats who curiously do not actually peform the productivity-creating labor) cannot be really held liable for what the company does for it's only their job, the owners are liable, but they have no say (nor interest really) in how it's run, they just want them dividends/rent.

in this scenario, the giant multinational corporations are essentially skynet; i.e. rogue, unaccountable/never liable group of autonomous entities made mostly out of money.

Sometimes I like to imagine that on some level of companies who own other companies, there already exist groups of companies that own each other, such that if you followed the trail of ownership you'd go around a cycle.

> the people who own it have no say at all in how it's run. and the people who run it (the managers or "executives"/bureaucrats who curiously do not actually peform the productivity-creating labor) cannot be really held liable for what the company does for it's only their job

I'm sure that's the case somewhere, but not really sure that it applies to this instance. In this case it sounds like the whole thing would have worked as intended if it had been a non-persistent user. 99% of people will just give up after hearing this sort of repetitive "no it's your problem" and settle for writing a bad review online.

The owners ultimately can hire and fire the people necessary to implement their standards, so the company as a whole will mostly tend to reflect their overall preferences over time.

I disagree, I think even in this scenario the whole thing worked as intended.

It's just rare for people to be this persistent.

I'm supsect that when companies deal with other companies this kind of thing (this amount of persistence) is the norm; it's just rare when individual persons deal with companies.

> I like to imagine ... there already exist groups of companies that own each other ... around a cycle.

Do an image search for "Samsung group ownership structure"

https://qz.com/223755/samsungs-bizarre-byzantine-ownership-s...

It is bizarre, byzantine, and incredibly convoluted.

By the way it’s basically never true that you have to start with arbitration. You can pretty much always just sue them in a regular local court. As a general rule courts are general jurisdiction venues that can hear all controversies.

Then they would have to affirmatively file a “motion to compel arbitration” in which they appear in court and argue that the contract mandates it.

Typically they’d win that motion but then you’d just start arbitration. Since that requires them to show up with a lawyer by that point you’d probably be able to just negotiate then. And if they fail to ask for arbitration in a timely way the case may proceed.

In this case, OP almost definitely could have sued In court, and the company couldn’t stop them.

AAA arbitration has a rule that says if your claim can be filed in small claims court (typically 5k or less) then you can force the company into small claims court, and they can’t force you to arbitrate.

That's really good to know. It's certainly not made clear by the mandatory arbitration language.

Filing an actual case might be more work and not even that much cheaper. If the arbitration process is $200 and easy to file online, then that sounds preferable.

A home warranty was included with a home I purchased back when it was a buyers market. I did end up using it to replace an entire AC unit. Fortunately the process was surprisingly smooth. They required me to pay a few fees out of pocket, including a refrigerant disposal fee, which was funny because all the refrigerant had already leaked out. I tried to argue with them about that but gave up because it was a small price to pay for a new AC.

Even though I had a good experience, I think it's better to save up an emergency fund for home repairs rather than rely on a warranty.

If you're willing to jump through hoops and "play the game," lots of folks come out very well on home warranties.

> In the US, it’s not easy to sue a company as a customer. Maybe about thirty years ago, it became common for companies to put into contracts and terms of service, clauses that required binding arbitration to resolve disputes. This was cheaper for the company in many ways including a streamlined resolution process, cheaper lawyers, no sifting through frivolous lawsuits, and finality once a decision is made. It sucked for the consumer because it’s essentially a privatization of justice.

It seems insane that people are just fine with this. There's not even a top comment here mentioning it at this time. Is there no movement to make this illegal at all?

Indeed. It’s frustrating that you can’t really object to it, as the company can just refuse to do business with you, and there aren’t viable alternatives who won’t do the same thing. Thus we have very unilateral contracts where the companies have all the power, and the consumers basically only have whatever consumer protections their state laws provide.

Did this actually go to arbitration? It sounds more like they filed an arbitration case but that the company settled before going to arbitration.

This is what happened. The company probably got an invoice from the arbitration company for $2,000+ and paid it to the consumer instead. They save a headache and having to pay for attorneys.

"Of course, they refused to pay. Trying to find someone at HWC who could show an iota of free-will and thinking was hilarious and impossible."

Not sure if this was in the US, but whenever I was there, I was astonished by the little amount of free-will employees have.

I wanted to see a different hotel room for our next stay. Here in Germany someone would take me to the room and show me. There (NYC, good hotel) the receptionist needed to ask a manager who needed to ask a manager - in the end it was not possible.

Regarding the salient point of "Don't buy a home warranty":

I guess it should always have been obvious that the most profitable product to sell is "nothing", AKA most types of insurance and warranty. At this point it's optimized to the point of the computer telling customer service peons whether it's "worth" entertaining your claim. Ethics and actual customer service have gone out the window.

> Of course, they refused to pay. Trying to find someone at HWC who could show an iota of free-will and thinking was hilarious and impossible.

This always annoys me; a 100 sellers for every person working in any type of customer care/support role seems to be the norm. If you can actually get in contact with someone in customer care/support their job always seem to be to brush you off nicely, not really help you.

As an attorney, I hope everyone reads this. Contrary to prevailing sentiment, arbitration is not de facto justice denied. In my experience, if you have a weak case, arbitration often results in a better outcome than a jury trial. Juries can be quite skeptical and judgmental. Arbitrators tend to be split-the-baby oriented.

Attorney as well, and agreed.

To be sure, it’s not the rainbows and butterflies solution that the businesses would like you to believe it is. But it’s also not the insane, unending trampling of rights that anti-arbitration folks claim it is.

> Keep records of phone conversations

How do you record the phone conversations?

I remember Android doesn't really allow you to record the other party audio, only your own. Unless you write your own caller app that processes the audio, but not sure how easy it is to send the audio to default phone caller after. Apple probably does it too.

For this purpose, even just having notes is sufficient. Eg:

2022-May-31 @ 11:09 AM: Spoke with X via phone, was informed their system was down and they could not accept my claim.

Recordings of the calls themselves can get murky legally, and are technically challenging, but in my experience factual notes are sufficient.

This. A detailed description of the call - what was discussed, who was discussed, what I said - reconciled with a record from the phone or phone company is more than enough. This is what many other professions, including medical, do.

If you're involved in a multi-million dollar lawsuit, sure you'll nitpick with lawyers about the content of the call, but for a few grand, no one's going to argue with you.

There's also too many headaches with recording calls. Dealing with one party vs. two party states, etc.

Hmm, then in sounds I can just record my own voice only. Notes are easy to write down later from those. Legally all is fine, since I'm recording only my own voice, but it's good for the purposes you describe.

I used to have a call recorder app installed on android, but some update removed that ability

Yep, I think there's no way to do that through API now, for security reasons.

There needs to be a dedicated "caller" app, and that app must be visibly different from default caller app.

Turn on speakerphone mode and use another device to record, your laptop should probably do the trick.

Do a written affidavit of the call post call?

I don't understand why so many people are afraid of arbitration either. Filing fees are lower. Documentation required to file is easier.

Federal courts are drug courts. Wait in line. Motion practice is discretionary.

State civil courts are backlogged. Lawyers will file delaying motions to wear you down. You must know what you are doing. The response to a complaint is not an answer, it's a motion to dismiss w/request for sanctions and fees.

In roughly half the States, judges are elected and draw campaign funds from the attorneys who appear before them. You didn't contribute? Back to the end of the line.

AAA arbitrators are often retired judges anyway. The process is easier. There are some negatives but these do not outweigh the pain of a state or federal civil case.

> I don't understand why so many people are afraid of arbitration either.

Two reasons:

1. People hear that arbitration favors the company not the individual, as such they think they are already set up to loose.

2. People aren't lawyers. Even highly educated (including those with doctorates) aren't likely to have had any classes on law. As such they don't know how to read contracts, don't know their rights, don't know the odds of them actually winning their case. To the layperson, the law is a mysterious construct best to be avoided.

1. To some extent this is true; but using an entity like the AAA avoids this problem. As long as arbitrators are appointed at random from a large enough panel, they don't have to worry about pleasing their employer.

2. Dickens had the same view: "Suffer any wrong that can be done to you rather than come here."

Trials are a game, like chess. If you don't understand the rules, the chance of winning are not as good as those of someone who knows how to play. Also, keep this in mind: a judge can put you in jail. An arbitrator cannot.

What I think is most surprising in this whole thing is that the company had a clause somewhere in the contract that they could break at all.

Normally these things are written so that it’s impossible for the company to do anything wrong (at least all the ones I’ve ever read).

We should also bear in mind, outside of what you're saying, the flip side.

I have seen so many contracts with unenforceable clauses, made up gibberish, illegal demands. Then a fancy pants "if any part of this contract is unenforceable, the rest shall remain in effect" or some such.

Two things here.

First is? While I have seen courts toss the whole contract regardless, mostly because key invalidated clauses unbalanced the contract, I'd like to see this legislatively made illegal. Why?

Because second thing is, I've seen companies write contracts knowing some clauses are unenforcable, but putting them there to scare, to intimidate.

Literally, it is an attempt to play "their game". Especially with ridiculous terms of service, eg, not a real contract in most parts of the world.

So don't play their game. Don't presume the contract is valid, or legal, especially when the balance of power is unequal.

> So don't play their game. Don't presume the contract is valid, or legal, especially when the balance of power is unequal.

I don’t presume this at all, but saying ‘this clause is unenforceable because x, y and z’ is much more work than saying, ‘look, your own contract says you failed to uphold your end of the deal’.

Mostly because you likely have to search through tons of laws to find x, y and z. As convoluted as contract language is, a whole legal handbook is much more so.

a whole legal handbook is much more so.

Yes, and sadly decluttering and simplifying law isn't trivial, or perhaps even doable.

> Because second thing is, I've seen companies write contracts knowing some clauses are unenforcable, but putting them there to scare, to intimidate.

"It is better that ten guilty persons escape than that one innocent suffer". We should _definitely_ err on the side of leniency on this. If my employment contract isn't watertight because of a law change, or a discrepency in an unrelated clause, should my employer be able to renege on my pay because the contract is invalid?

This is why we have courts, and why a contract is never examined in isolation.

An example, intent. If there is a 20 email long chain, discussing a clause in a contract, that counts too. What was the intent of both parties?

And don't let clauses such as "this contract is in whole the agreement between all parties" deter, because courts don't care when establishing intent.

So, what was the intent of the contract? Was an offer proffered, then follow by contract? What was the intent of the offer?

Courts look at invalidated clauses, and then attempt to rebalance the contract.

These clauses are just scare tactics, and have been happening since Rome, where most of our laws originate...

I have seen so many lawyers argue "might as well put it in, can't hurt!".

Sometimes the best contract is a one liner scribbled on a napkin. All this excess is counter to the public good.

> If there is a 20 email long chain, discussing a clause in a contract, that counts too. What was the intent of both parties?

What if the contract includes a statement: "this agreement consititute the entire agreement between the parties and supersedes, merges, and replaces all prior oral or written agreements, negotiations, offers, representations, etc. with respect to the subject matter. No course of dealing between the parties, no usage of trade, or outside evidence of any nature shall be used to modify, interpret, or supplement blah blahb lahblhbjajk"

Yeah that 20 email chain? The contract specifically says it can't be included in the agreement. Bringing that up was a fun conversation when negotiating the contract...

> This is why we have courts, and why a contract is never examined in isolation.

So are you suggesting that when considering the validity of a contract, externalities should be considered (e.g. the 20 email chain), but the actual document that was signed should not be considered?

> a Fed-Ex’ed check in the mail.

It's mind-blowing to me how the US still relies heavily on these.

I would rather have a check than give bank account info to some corporation with questionable privacy practices and non-existent security practices.

What can they do with just your bank account number?

Bank account number, name and address can be enough to setup a direct debit or initiate a withdrawl (in specific circumstances). Keep in mind that you are less worried about the company itself being evil, than the possibiliy of this data leaking and being seen by a less scrupolous entity.

> Bank account number, name and address can be enough to setup a direct debit or initiate a withdrawl (in specific circumstances).

That seems like your main problem. Fix that. That's insane and not possible here.

That's just insane. Are US banks made of cardboard?

ACH withdrawals of your money, since they have your name and account number and can readily surmise it's a type:Checking account.

An account and routing number is all you need to make ACH deposits and withdrawls.

That's just crazy. Don't your banks have extra security measures?!?

Also there may be other ways to recover the money for example local and federal law related to your problem (simply google them). In my case, Travel company customer service failed to cancel my flight and after months of following up (although slowly because most of us don't have time and energy to spend) finally I filed a case with DOT (federal law) and I got my money within few weeks. Another great resource is consumer protection bureau (https://www.consumerfinance.gov/).

This doesn't look like a win to me. When insurance companies (and equivalent products) pay a claim through legal action, even if it were 100% of the claim, they have won. That was all they were ever obliged to do and they got to put it through a filter first, where they benefit from filtering even a small fraction of claims (and in reality it's a large fraction). Sound legal principles demand double or treble damages for every litigated insurance claim to prevent this hazard.

> Remember, I purposely withheld detail and evidence in my filing, and yet I was offered a quick settlement. I would love to see the math that goes into this strategy.

I've never done arbitration, but I did pursue legal action against a contractor that defrauded me and I think the logic is basically the same.

Lawyers are constantly evaluating the cost (to their client) of further pursuing a claim vs the likelihood of succeeding. They know how much it will cost in time if it goes all the way to litigation/arbitration, and they have a fair idea what the outcome will be, but it's uncertain. They are always going to try to settle long before the end-game unless they are trying to make a point and it's worth wasting a bunch of money on.

In my case, my lawyer was very convinced that they were likely to settle for an amount basically up to about 75% of the amount it would cost to litigate. My claim was solid (he DID defraud me) but there was some possibility that a trial would find otherwise, so it was better for them to settle up to the point that it became worthwhile to roll the dice.

The emails between their lawyer and mine were about details of the dispute, not about the financial calculation I outline above, but that was just window dressing; the real decisions were made based on how much it would cost to litigate vs how much they would pay to settle.

The only place the facts of the fraud even came into it were as part of the calculation of how likely we were to prevail in court, but it was not at all precise; more like "given the facts, we are pretty likely to win but not certain".

> I did pursue legal action against a contractor that defrauded me and I think the logic is basically the same

For two infinitely-wealthy and virtually-sovereign parties, yes. The big difference is in litigation you can bleed your opponent dry, e.g. by piling on jurisdictions and deploying delay tactics. Thus, in addition to predicting outcomes, you're also judging the point at which the other party (a) runs out of money or (b) gets fired.

In arbitration, this doesn't work. It's a vastly more even playing field for consumers, who tend to have less money than the companies they're suing and less downside in the case outcome (money damages versus e.g. having been sexually harassed).

> emails between their lawyer and mine were about details of the dispute, not about the financial calculation I outline above, but that was just window dressing; the real decisions were made based on how much it would cost to litigate vs how much they would pay to settle

Your lawyer wasn't communicating window dressing. Case details resolve to litigation outcomes.

> In arbitration, this doesn't work. It's a vastly more even playing field for consumers, who tend to have less money than the companies they're suing and less downside in the case outcome (money damages versus e.g. having been sexually harassed).

I dunno, not my personal experience. I took a large bank to arbitration over a low value credit reporting dispute. Offered to "settle" several times for nothing more than a fix to my credit report, which would have cost the bank $0.

The bank refused and so we went all the way to a final judgement.

The arbitration dragged out over 16 months. 4 days of hearings in which multiple attorneys and witnesses were present on the bank's side. Numerous conference calls, 800 emails, 250 pages of legal briefs, 1000+ pages of exhibits, discovery, etc. I would not be surprised if the total outlay eclipsed half a million for them.

Forced arbitration can be a double edged sward for the corporations too. A while back, a company filed a motion to dismiss a class-action case because everyone signed arbitration agreements. The judge denied the request and forced the company to start an arbitration process with each member of a class, which was MUCH more expensive for the company to deal with than treating the class as a single entity.

I loved the thrust of this overall post, but I had thoughts about this paragraph:

The anti-arbitration vie of so many people has always struck me as odd. Wouldn't a "streamlined resolution process, cheaper lawyers, no sifting through frivolous lawsuits, and finality once a decision is made" benefit consumers at least as much as large corporations? The biggest downside seems to be lack of an appeals process, even though very few court decisions are overturned on appeal anyway, and in any case, the small claims type of actions would never be appealed due to cost.

From what I can tell, the poster filed his claim online, provided very little evidence beyond alleging the specific contract sections that were violated (though I'm certain he had copious evidence if asked), and recovered almost all of his damages. The arbitration association even provided someone to follow up throughout the settlement process. IANAL, but I doubt any process in the entire country is so easy, and from what I've seen in class actions, the arbitration damage award was much, much higher.

The difference between how easy the process was and the author's expectations is so stark that I almost wonder if the corporations themselves started the rumor about arbitration being terrible, if not the trial lawyers themselves.

In my small Eastern European country the best way to solve litigations with companies as a consumer is to use Customer Protection, which is a state agency.

To give an example, on Black Friday, some big online retailer had an offer on this site. I bought something with card and in two hours they called me to apologize that they didn't have it in stock, and they retired the product from the online store.

But next morning, the product was back in the online store, with a greater price.

I phoned, the retailer and demanded my purchased product at the payd price. They denied and offered a refund. I told I will appeal to Customer Protection and they said they still won't honor my order.

I emailed Customer Protection with proofs, screnshots and they forced the retailer to send me the product for the payd price, and also gave them a big fine.

The moral of the story is that a customer has to fight for his rights, by whatever means are legal in his country.

If I had time, I would have made an interactive app for consumers to vote for good behaving companies, bad behaving companies, add proofs for everybody to be seen and try to pressure the companies to behave good.

Just in case it's helpful to anyone, I had a good experience using the CEDR Aviation Adjudication Scheme[1] to challenge Easyjet's refusal to pay up under the EU flight delay compensation scheme [2].

The EU has a mandatory compensation scheme for for passengers where flights are late, cancelled, denying boarding etc. This applies not only to EU citizens and airlines, but to all flights flying from or to the EU.

I had an Easyjet flight that was delayed for hours, then cancelled overnight, requiring a hotel stay etc. After lodging the claim with the airline, they responded that the delay, then cancellation was due to extra ordinary reasons (weather) and as such they weren't responsible.

The CEDR scheme requires a payment of about EUR30, which is not refundable if you lose and the airline needs to be a member of the scheme, but many are.

Easyjet were required to provide evidence of the extraordinary circumstances, and they ended up submitting a long story about the plane being delayed due to severe storms on a prior flight in France, along with the associated documents.

That turned out to be true, but the tail number on the plane that was delayed was a completely difference aircraft, and they were forced to pay the full compensation, which amounted to near EUR1k.

The whole process took several weeks, but it didn't require me to be present in the EU and was done entirely via the CEDR website.

[1] https://www.cedr.com/consumer/aviation/

[2] https://europa.eu/youreurope/citizens/travel/passenger-right...

This is my experience in the UK. If you are party to a contract and due to the failure of the other party to adhere to the terms of the contract you are out of pocket the other party needs to put you back in the position you would have been in had the breach not happened. Hence, you can charge for your time in writing letters and submissions to small claims court etc because that is time spent which wouldn’t have been spent if they had performed thier contract. Therefore I always state my hourly rate and how much time I’ve spent so far when dealing with intransigence from companies. I had a fault in my electricty meter and was over charged by £2000. I spent hours on the phone and they didn’t do anything to resolve the problem until I threatened small claims court at which point they refunded me and offered £250 compensation. compesation for my time. Maybe justice doesn’t work like this in the US, but I reckon he probably could have got more from this company.

"they refunded me and offered £250 compensation. compesation for my time."

Yep, it doesn't work like that at all in the US. A threat of going to court might get you the refund. No way are are they paying for your time voluntarily.

I had a UK judge say exactly the opposite in court - you don't get to claim your time - that's just the joy of litigation.

What is the UK equivalent of this?

Last year a phone company wrongfully added a credit to my account for 900gbp which I noticed had been there for a while, claiming I owed for a phone. It was actually an identity fraud issue. I had forgotten when it had happened and never checked my credit scores, but then during the year needed credit and was getting declined so noticed on checking.

I contacted them and they flat out refused to remove it essentially implying I was lying. It happened with multiple phone companies at the time and I contacted them back then and they removed it apart from Three. I even contacted Vodafone for my records and they refused to help.

I escalated it multiple avenues such as credit agencies and ombudsman and none could help so ultimately was stuck with this charge. I contacted Three, the managers and CEO and was ignored.

So I had no other options (perhaps legal route which I know nothing about) and had to let the credit on the account close after 6 years.

The time spent on it and frustration was awful.

I mentioned the CEDR (Centre for Effective Dispute Resolution) elsewhere on this thread. I believe they are UK based and the company in question needs to be covered, but a quick glance shows Sky, Vodafone, Virgin etc. listed.

Disclaimer: I have no experience with/knowledge of them aside from my one experience.

https://www.cedr.com/consumer/cisas/

Is there a term for these denial of service tactics that many organisations employ?

E.g. not having the authority, being the wrong person and sending you in another direction, putting the onus on you to move things forward, not responding to emails and calls, ignoring questions and selectively answering, not making contact details or policies available, and so on.

The terms that come to mind are stonewalling and kafkaesque.

I just read some of the clauses in my contract for a new job that I am starting (I am a "sub-contractor" here). The amount of legalese, the amount of one sided items there ... it is insane. It left me wondering if the lawyers that write these contracts have an iota of empathy or conscience. If I were to summarize the contract in one line it would be "we owe you nothing, you owe us everything".

And this is for a low level, software job. Software that doesn't touch (as far as I know) anything secretive like the military. Just some run of the mill web CRUD app.

Maybe I am too sensitive, but why have we become so litigious? I understand people need to cover their ass, but some of the clauses are so egregious. Same with my lease agreement. Reminds me of this Carlin rant - https://www.youtube.com/watch?v=VFl84lGveQs

So, since the author was only asking for a few thousand dollars, it's probably not worth the company fighting it -- it's just a matter of them quickly finding out how much money they have to give you to make you go away. The exact series of events would probably have occurred if he had filed in small claims court. Even though the company could likely win a motion to compel arbitration, it's not worth it to them.

Arbitration may be cheaper and more informal than the courts, but that doesn't mean that defending against this type of claim economical. On the whole, courts aren't that expensive, it's the cost of lawyers and their time where the costs pile up. Small-claims courts also often have simpler and more streamlined procedures just like arbitration does. And the Judge's salary is footed by the taxpayer.

The author's conclusion is that arbitration isn't all that bad because it worked out OK for him this time. But this ignores how arbitration puts the thumb on the scale in favor of the company when real money is on the table. Just to name a few: * Arbitration usually requires secrecy regardless of the outcome. This guarantees that the company will not face a repetitional hit even if they lose, and it also means that your case has no precedental value for others who were similarly wronged. * The process often places strict limitations on discovery, which can make it impossible for a prove your case. * The agreements usually prohibit class-actions, which prevents redress for widespread but low value abuses.

Sometimes, the less-formal nature of arbitration can be a good thing. But if it's truly balanced and better for both parties, it should be something that can be opted into after the dispute arises. The fact that there have been so many high-profile disputes about arbitration that have been taken to the Supreme Court is pretty solid evidence that companies see the ability to compel their customers into arbitration as exceptionally important to their bottom line.

I love it.

Contacts are awesome. I got humanitarian aid logistics training and the teacher taught us: always make a written contract, for any agreement. You don't need to be a lawyer to make a useful contact. The process of writing and signing it clarifies the situation to you and the counterparty. Most disagreements can be solved in informal arbitration, especially when one party can show, look we agreed to this and then I did this and you did that. Humans do better removing emotion and ego when there's some rules written down.

I also faced a situation where the contract a former logistician had entered into had become wildly unfair to the vendor, not through his fault. He started giving me problems and I offered to break the contract and find a new compromise that met my needs and his. Happiness all around, for a small amount of reasonable, ethical cost to my organization.

Damn, that was helpful and encouraging. Pound for pound the best value of any article I have read on HN.

Lest anyone come away from this thinking that arbitration is good for the consumer, this story only has a happy ending because the business chose to settle.

I also took a corporation to arbitration. A Big 4 bank destroyed my credit over a billing mistake that was their fault, relating to a credit card account with a $230 balance. Despite seeking nothing more than to have my credit fixed, the bank refused to settle. I contacted upwards of 100 attorneys with no luck, so decided to self-represent.

16 months, 25 hours under oath, and over 2,000 hours later, I "won" a judgement forcing the bank to fix my credit -- but no monetary recovery at all.

For anyone else dealing with home warranty companies, you should also try contacting your state's regulators. In CA, this is the Dept. of Insurance. They helped me immensely with a situation where the repair person actually broke something but was unwilling to come back and fix it.

The home warranty company refused to call me back and it was impossible for me to get through inbound. But the DOI employee was able to contact them, and that was all it took. She followed up several times to make sure the situation was completely resolved.

I am not in the same country, but indeed, I have to go legal to enforce noscript/basic (x)html for the online services of my administration.

In my case, asking nicely, like in this case, was a huge fail.

Just curious. What if you failed the claim? Let's say OP didn't hire an attorney, would he/she has to pay anything to the company for a false claim?

Great job.

Counter-example (missing nearly all the details, unfortunately, to protect privacy): a friend filed a wrongful termination claim, which went to arbitration. The defendant stretched it out for two years, which I consider a transparent attempt to bankrupt him with legal fees. Finally they settled, but even after the agreement to settle, it still dragged on. Eventually it ended.

An option to consider is to get a referral from your local bar association and let them know you are looking to pay on a flat fee basis.

A computer system being down is no excuse to refuse a pre-auth. They can write the details down on paper for later computer entry. They 100% broke the contract by refusing to process pre-auth details with or without a computer. How did we get along without computers? Paper and phones. If this company can't operate without computers, they shouldn't exist.

IMO the author could've elaborated in the email on how the company is deliberately trying to deny their responsibility for the actions and how the arbitration clause is added in bad faith and has created a dark pattern which harms the consumers nationwide. This means (I'm not a lawyer) the person on the other side might get scared about a class action suit.

Great write up, but I would also be interested to learn what the total number of hours was that the author devoted to this case, including all the phone calls, email, research, preparation, etc.

His main takeaway was to not be afraid of the arbitration process, but unfortunately the time commitment itself does seem very significant, even in a relatively straightforward case like his.

Exactly. Not only that, but it also requires you to know about all this stuff and know to even be persistent.

The "don't get a home warranty" advice doesn't always apply. When buying a house that you know has issues, a warranty that covers issues found in the first year almost always pays for itself, it has the last two times we bought a house. I wouldn't get a longer-term deal though.

Enjoyed the writeup!

> The world doesn’t care about you feeling like you were wronged and how hurt your feelings were. It wants cold, hard facts.

This has been somewhat of a guiding light for me for quite a long time, hammered into my by my attorney father, and it alone has saved me countless times.

How come you never show them the evidence? Is it because it lets the lawyers concoct a story?

In many legal confrontations you're best not to put all your cards on the table up front.

Apart from anything else, it creates information asymmetry - your opponent certainly won't tip their hand to you until they feel the time is right.

And you leave yourself open to bluffing. If you blab everything, and then the other side steps it up and comes after you harder, you'll be left wondering - they know everything, but they're doubling down - am I missing something? Gee, they must have a stronger case than I thought.

This was basically my line of thinking when I filed. I felt I had good evidence, and I felt it all attacked very specific clauses in the contract. I didn't want to give them an opportunity to plan against it.

In hindsight, it may not have mattered. After all, I was going up against lawyers. thathndude, who has the top comment and is a lawyer, has a different perspective.

Yeah I agree with this. I think it’s important to put the necessary facts on the table, along with your claim or gambit, but to hold back on the detail until you work out which way the wind is blowing.

I’ve had people tell me outright lies, which puts them in a difficult negotiating position when you can prove it. But the lies would not have been told (and my negotiating position not strengthened) if all the evidence was laid out up front.

Hiding information from an adversary has few downsides, as long as you keep your goals clear. You can always provide more information later. But you can never take information back.

FWIW, we've had a home warrantee for... 17 years, and it has been a positive ROI every year. We're dropping it now because the service has gone to shit being no longer maintained in my country and all they do is read scripts to you.

> I also pointed out there was no out-clause in the contract for computer system failures

A good catch. I expect this oversight from the company's point of view has been remedied in the contract for new customers, going forward.

@snapetom (author): what caused you to counter-offer 80% rather than sticking with 100%? Presumably expediency, but it seems with arbitrator on the line you were well on your way to a 100% payout.

Conversely, don't be afraid of aftermarket vehicle warranties (in the US, and after you've vetted them). Perhaps a YMMV moment, but I've had a very positive experience surprisingly.

Is arbitration used as a way to solve litigations between corporations and consumers, generally used just in US?

In my European country, arbitration is scarcely used and when it is used it implies just businesses.

Just an FYI. You should check the terms for arbitration in service contracts. A fiber ISP in my area permits you to opt out if you notify them within 30 days of beginning service.

Haha I used to work for a hot water company and this type of thing was pretty common. Doesn't bring back fond memories. So glad to not be doing that shitty job.

Is it just me or do others also find "hot water heater" to be a strange term? To me it's just a "water heater".

But once the water becomes hot, you need to continue to heat it intermittently to keep it hot. So it’s only a water heater for a few minutes, after which point it becomes a hot water heater.

>a privatization of justice.

More and more I'm starting to think that anything that isn't just "justice" is injustice.

Their gross negligence and subsequent stonewalling should have earned them a penalty, not a 20% bonus.

What would be the analogous process in EU (Germany, specifically)? And does it fall under Zivilrecht?

This was an excellent write-up! The TL;DR is perfect:

1) Don’t be afraid of arbitration. I did feel AAA was helpful in the process. In fact, heading straight to arbitration may be the best way to fight this system that corporations created.

2) READ. YOUR. CONTRACT. I swear, this got me like 90% there. It doesn’t matter that I don’t have a background in contract law. These customer contracts are designed to be (relatively) approachable. I felt being able to specifically point out what clauses were violated and how gave me a very strong cause of action. I also pointed out there was no out-clause in the contract for computer system failures. I suspect this had something to do with them accepting my counter-offer so quickly. Once the attorney saw that yes, there were breaches of contract, they probably knew my case was pretty strong. The world doesn’t care about you feeling like you were wronged and how hurt your feelings were. It wants cold, hard facts.

3) Keep records of phone conversations. Date, time, who, resolution. Keep screenshots. Keep emails. I didn’t have to present them to an arbiter, but I think if I had to, I had the evidence to point out exactly where HWC failed.

4) Don’t get a home warranty.

> 4) Don’t get a home warranty.

But, what about an extended car warranty?

This is interesting, thanks for sharing and good work!

fairshake is an easy to use service that I have used that makes arbitration super simple.

>hot water heater

Why is the author heating hot water? (sorry. That's a pet peeve my dad drove into my head)

What would you call it then? Water heater is ambiguous. Could be a pool heater, a central heat heater, etc. It's perfectly clear what they mean.

"Boiler"

To keep it hot. If you don't heat your hot water, it becomes room temperature water.

Reply on news.ycombinator.com