Originally published at: http://boingboing.net/2017/03/01/this-hurts-us-more-than-it-hur.html
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late stage capitalism.
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Arbitration rquirements are only there to protect the corporation. And for some reason, everything and everyone that’s a corporation is requiring them to shop there, as mentioned in the post.
I was a long time print(!) subscriber to the San Jose Mercury News (or is it now, just the Mercury News?). Yeah, call me old school, but I really like knowing I’m supporting the local journalists as much as I can. Anyway…
Last year, I got a letter from Bay Area News Group saying that by continuing my subscription, I was agreeing to a new arbitration clause. I didn’t want to agree to it, so I called them. Of course, the call center person had no recourse except to cancel my subscription, which I did. I then crafted an email to the execs, which I publish below, including their reply. What’s sad is that recently I got an offer to subscribe to the Sunday only edition, but again, there was the Unacceptable Requirement. Here it is…
From: Rob J
Date: Sat, Jun 11, 2016 at 7:35 AM
Subject: your audience minus one
To: srossi@digitalfirstmedia.com
Cc: mkatz@digitalfirstmedia.com, sryan@bayareanewsgroup.com, manstandig@bayareanewsgroup.com
Hello Mr Rossi,
When I graduated college and moved to San Jose, I became a subscriber to the San Jose Mercury News, like my dad was for decades before. It’s been great for keeping track of local goings on, and it’s been satisfying to support local journalism. I don’t have any problem paying for news, which is not really the prevailing attitude across the US these days, if I am to believe what I read… in the news.
You have a gentleman working for you called Dan Smith. I understand he is Vice President for Audience. I am extremely saddened today to report to you that if his job is to grow the audience of the MN, he has taken it in the opposite direction.
I received a letter from Mr Smith which, among other things, relayed the fact that I would have to agree to mandatory arbitration with the Mercury News, Media News Group, and DFM. Too many companies these days are requiring arbitration clauses. I don’t agree that it’s necessary, and I don’t believe that the Mercury News, Media News Group, and DFM need to require that of its subscribers. It just doesn’t make any sense.
According to Mr Smith’s letter, corroborated by the phone rep, the only choice I have if I desire to opt out of that clause is to cancel my subscription to the SJMN. It appears to be a simple “take it or leave us” proposition. I really hoped that it would not be that way, but today, because of this, I had to end my business relationship with the SJMN. The reason? DFM’s insistence on something that really, really is not necessary.
If you and your staff decide to do the right thing and reverse this policy, I would like to be the first to know. I very much care to continue to support our local reporters doing good work in the field, such as exposing things like the problem with over-prescribing psychiatric drugs to foster kids, and the other great investigative stories that run in the Merc. Sharon, you have a great team there, whom I almost consider friends at my breakfast table (the one recent column by Scott Herhold about Judge Persky notwithstanding, of course).
Today, I hitch up my dog, go out to the driveway as I’ve always done, and there is no paper. I see my neighbor, who has had his letters to the editor published several times, has their copy on the drive. My heart sinks. I make a note in my mind to have a chat with him later.
Again, I am truly sorry I had to end our relationship, but I had no choice.
Thanks for the years together.
Regards,
Rob J
San Jose, California
This mail sent to:
Steve Rossi, because he’s CEO of all this.
Sharon Ryan, because she heads the SJMN.
Marc Katz, because apparently, he devises strategy.
Marshall Anstandig, because his team of lawyers probably hatched the idea, and authored Mr Smith’s letter.
Here is the reply:
From: Sharon Ryan sryan@bayareanewsgroup.com
Date: Tue, Jun 14, 2016 at 10:40 AM
Subject: Re: your audience minus one
To: Rob J
Dear Mr J,
Thank you for taking the time to reach out regarding your disappointment with the arbitration letter you recently received from us. Here at the Bay Area News Group we have an amazing team of professional journalists and editors dedicated to both creating and aggregating the news for you in an informative, professional and responsible manner that also supports and strengthens the communities in which we live.
I truly wish that the letters requiring arbitration weren’t necessary, unfortunately we are not immune to the few out there that prey on any opportunity to reap financial gain. The purpose of the arbitration requirement is to protect ourselves from those few and thus ensure our continued success and ability to fulfill our mission serving you and the communities we love.
I hope you will reconsider and rejoin us.
Sincerely,
Sharon Ryan
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It’s refreshingly honest of them to outright state that the purpose of the arbitration clause is to prevent inconvenient outcomes that might arise in a real court.
Doesn’t make the idea any more palatable; but they are surprisingly open about it.
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That probably also weeded out the places with a picture of L. Ron Hubbard on the wall.
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MRW I find one of those.
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Wells Fargo should be careful. Should they get their wish, and it is found that their customers can be subject to terms in an agreement whereby their consent is forged, is would open up a huge area of uncertainy that would be bad for business. Their shareholder are, after all, private citizens who have signatures.
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Boy, it sure restores my faith on humanity…corporations being people and all.
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If the court won’t allow a class action, why not file 2,000,000 (or however many it is) individual arbitration claims at the same time? Seems like you could just draw up one set of paperwork and do a find-replace from the list of victims, and force WF to respond to each one… They will be begging for class certification 
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You know that there is that clock showing how far in debt America is? Do they have a similar indicator for just how far fucked America is?
Deary me.
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This is a great idea. It would break whatever local arbitration system they’re trying to use, and break Wells’ ability to respond. It might also have a chilling effect on companies forcing these clauses on customers, to see a multi-billion dollar organization paralyzed by its own EULA.
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I ain’t no fancy big-city lawyer, but if the signatures were forged then how can those documents be binding?
What’s to stop me from creating some phony contract, forging Mark Cuban’s signature, and then suing him because he didn’t provide me with the “free African elephant” agreed upon in the contract?
Answer: an office full of fancy big-city lawyers at my disposal.
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If they were already customers of Wells Fargo, then they already agreed to arbitration to settle any claims arising out of the accounts they opened, loans they borrowed, etc. WF is probably arguing that any claims they have are part of the existing relationship between the victim (aka customer) and WF, and therefore governed by the terms of the agreement.
Let’s hope the judge(s) don’t buy it.
ETA: I am a lawyer, but from a medium-sized city and not a fancy one
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Thanks! I initially had this idea after reading a paper by the American Constitution Society about how victims of wage theft by big corporations were being prevented from suing by mandatory arbitration and class-action waiver clauses in their contracts. I thought, even if most arbitration claims lose, you could overwhelm them with volume; using a combination of IT solutions to automate the document drafting and filing, and taking advantage of the fact that the legal job market is not good right now, especially for recent graduates, which means it shouldn’t be difficult to find some young ambitious lawyers who are willing to work for a good cause. Fund it with donations to a 501©3 from wealthy progressives who like social justice and tax deductions, and distribute any winnings through a fund that pays out a share to everyone who puts their name on a claim, even if it isn’t successful.
I think it would work even better in this case though. Anybody here want to work together on making it happen?
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Yes, that is exactly what WF is claiming. That the agreement that these customers signed for the initial, legitimate account forces them to go through arbitration in the matter of the later, fraudulently opened accounts…IANL and I have not read the agreements, so I can’t even form an opinion on whether they are right.
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it also says that the customers it stole from can’t sue the company because fake account paperwork bearing their forged signatures includes a promise to enter into binding arbitration rather than suing.
Nope. They’re saying that the completely-legit paperwork that their customers did actually sign to get their real accounts means they promised to enter arbitration, even when Wells Fargo faked their signatures later in order to open fake accounts.
Technically they’re right, but it’s still scummy as hell.
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I have Wells Fago’s alt-signature on an agreement saying that they owe me money.
This post is doubly b.s.
a) Arbitration is not a kangaroo court, the arbitrator is BOUND by stare decisis and their ultimate decision is subject to judicial review
b) You cannot obligate someone into an arbitration proceeding in preference to the courts if you are basing your authority for doing so on a contract they say they never entered, it is by DEFAULT obligated to go to the courts for a decision as to whether that was non est factum regarding the alleged ‘contract’
yeah I used some Latin there, the same way you smeared some pearl clutching b.s. all over your reporting
Depends on the arbitration agreement language of course; a court could easily find that the arbitration language only applied to activities actually authorized by the customer, and that an arbitration agreement for a new account would require a separate agreement.
Personally I’m interested in developing my own EULA that I can publIsh on the web and put on all my checks and embed in my signature for credit card purchases that says “acceptance of this payment constitutes acceptance of the terms and conditions laid out at xyz.com” with one of those conditions being agreeing to waive arbitration. Maybe like a Creative Commons like system where a common code is avaialable to anyone for reference… who’s with me?
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