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Comment by HDThoreaun | Hacker News Reader

You basically cant use any services then. Every single website with a legal team now forces arbitration.

Except Valve, for their Steam service. But that's only because someone realized that you could Zerg rush them with arbitration claims, whose fees they were obliged to pay (since their ToS forced users into it). Their only option that wouldn't be massively disruptive financially, in that case, would be to agree to a settlement with the arb representatives. So, now, you're only allowed to sue Valve, in a specific court of their choosing.

I'm pretty ignorant about these kinds of things so how does this work? If Valve can specify the court to be used couldn't the company always choose something like Alaska or Hawaii where it would be difficult to show up?

The key to mass arbitration filing is that it's the lawyers doing it, and they're the ones showing up wherever in place of the people who have signed agreements with them. Said lawyers are essentially gambling that the target company will give up and allow normal legal maneuevers, because doing arbitration en masse is actually really expensive for the company mandating arbitration.

FWIW I’ve started to see new arbitration agreements pop up that specifically try to disallow this strategy by using verbiage like “ only the consumer is allowed to file this claim” and even “lawyers who would handle more than 20 of these claims are not allowed to file them”. I have no clue of the legality of such clauses but I have seen them in the wild in the last few months

It generally has to be somewhere they do business, so it can't be completely arbitrary.

This case is about ticketmaster changing the TOS to use a new arbiter after they fell for that trick with their last one. The new arbiter has rules that prevent mass arbitration

Correct. That is your option when presented with unacceptable terms. Don't accept them. Counter with your own terms (not likely to work for run-of-the-mill online services though).

Additionally you may lobby your lawmakers to make this sort of thing illegal or at least more limited. But these arbitration clauses appeared because our civil law system was out of control with lawsuits. There needs to be reasonable limits on both sides.

This works if enough people act the same way, but not a small minority.

Speaking precisely, a small minority is plenty. Successful businesses can run off a few hundred repeat customers and a bit of passion. The root cause is more that it is irrational to behave that way so there may be literally no or single digit people who will behave that way.

Putting some estimates to the situation, the calculation is something like (chance of a serious dispute arising = 0.0001) x (chance of a payout from the courts = 0.33) x (payout = $100,000) -> I'd be willing to pay $3.30 extra to avoid fixed arbitration clauses in a deal where there was serious money at stake.

That doesn't exactly capture all the game theory of the situation, but it suggests the risks here aren't worth shopping around for. It is easier and more effective to engage in economic voting with feet and punishing businesses that way for failure.

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