If you have a telephone, a bank account, or a cable subscription, you may have already given up your right to sue the companies that provide you these services without realizing it.
Companies that do not want to be held accountable for their actions often insert forced arbitration clauses in their form contracts. These clauses state that their customers give up their right to sue in a court of law and give up their right to sue as part of a class action. If you ever actually read those “click-through” agreements on the internet before clicking “I Agree,” or the “New Terms and Conditions” mailed to you by any of the companies that you do business with, you have probably seen these clauses.
Companies know that the vast majority of consumer claims are too small to be brought individually. (Just try finding a lawyer to represent you in a case where you were ripped off a few hundred dollars or less.) So if a company can prevent a class action, it will never have to go before a judge or jury and defend its actions.
In the past, these clauses were routinely invalidated by courts as being so unfair that they were “unconscionable.” That has changed with a few shockingly anti-consumer opinions from the U.S. Supreme Court. Despite these cases, the “unconscionability” doctrine still exists, although many judges are more reluctant to apply it.
Advocates of consumer protection, like Senator Al Franken from Minnesota and Rep. Hank Johnson from Georgia, continue to push legislation to outlaw the unfair use of these clauses in order to restore the ability of consumers to seek justice, including reintroducing legislation (the Arbitration Fairness Act) earlier this month.
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