Whenever you click “accept” on a terms of service, what exactly are you signing away?
It's probably not what you would expect.
A grieving husband filed a lawsuit against Disney after his wife died at Disney Springs.
But Disney wants this case thrown out.
They're using the husband's Disney+ subscription
as the reason why.
[Host] Hidden in that mountain of legal jargon
you scan through when signing up for subscriptions like Disney+ is a nefarious clause that waives
a fundamental right for consumers, and protects negligent companies from accountability.
You know, a totally reasonable exchange to stream ‘Inside Out 2.’
This quiet tactic isn't just weaponized by Disney, but by countless other multibillion dollar behemoths.
And don't just think you'll beat them at their game by actually reading their terms and conditions.
These life-altering causes lurk in places you might not even expect.
Airbnb used it when someone was murdered at one of their properties.
And Wayfair used it to crush a legal challenge over allegedly shipping customers furniture infested with bedbugs.
Intrigued by the absurdity of these cases, I had to figure out what was going on.
What exactly is Disney sneaking into the terms that make this
legal?
How long can companies like Disney get away with it?
And what more do we as consumers stand to lose?
To start out, I called the lawyer for another case you might have heard about.
[Michael Shapiro] The McGintys were out to dinner with friends.
They ordered an Uber to go home.
They start traveling home and everything seemed normal until all of a sudden
they were screaming, bracing for impact as they realized that their Uber driver,
who had been fussing with the application, was running a red light, and they were about to slam
into a van that was taking workers home from a local warehouse to their collection point.
John really thought that was the end of his wife's life.
Georgia suffered fractures to her sternum, to her ribs.
She suffered tears to her abdominal wall and had to undergo numerous surgeries
and will still likely be going under surgeries for the rest of her life.
So the McGintys sued to compensate them for the financial, physical,
and emotional toll the accident had taken on them.
Uber cooperated for nearly a year until suddenly its tune changed.
After it had gotten information from us in discovery, it decided it wasn't going to provide its answers.
It wasn't going to respond to our demands.
It was instead going to try to compel arbitration.
What is arbitration?
And why does it matter?
It's something that McGintys agreed to,
Uber argues, when they hit accept on the terms of service for their Uber Eats account.
And at first glance, it actually seems like a good deal.
Instead of going through the typical, lengthy and very expensive legal process,
Uber and the McGintys would have an independent third party, called an arbitrator, decide the case.
So no judge, jury or courtroom is involved.
If you were to read about arbitration in a textbook,
you might think this is great for consumers.
It's faster, it's cheaper, and they'll be able to get
a fair adjudication of the results by a professional in the field.
But that just is not how it plays out in reality for several reasons.
Arbitration clauses keep consumers from bringing their cases to a jury.
Something that a person living their lives might see as absolutely terrible,
an arbitrator might have seen many times before,
and so it might not shock the arbitrator in the same way.
And so the arbitrator is going to feel less
sympathy for the person who was injured, perhaps,
and they might feel like awarding less money.
Corporations also get to pick the companies that provide the arbitration.
There's a professor at Harvard who agreed to serve as an arbitrator
for one of the big arbitration providers.
In the first few cases, she decided in favor of the companies.
But when she decided in favor of consumers?
Not only did the arbitration provider stop sending her cases,
it told the parties to some other arbitrations that had already been assigned to her,
that she had a scheduling conflict,
which she testified in Congress she did not in fact have.
Sovern told me that there are many years where, in the United States,
more people are struck by lightning than win in an arbitration case.
Arbitration has, in the last few decades, become a tool for corporations
to avoid any and all responsibility for reckless, immoral, or illegal actions.
It undermines any attempt at institutional change through legal means for two simple reasons.
The first involves what's called discovery.
Discovery is the process by which the parties exchange information.
You can make the other side answer questions.
You can make them turn over documents.
You can make them sit for a deposition.
Discovery is one of the critical ways that people— consumers—can hold companies accountable.
Damning memos may be submitted for evidence and eventually published in the public record.
Years ago, Ford made Pintos.
And the Pintos had gas tanks that exploded and injured people.
And that raised questions of, well, why did they put the gas tanks where they would explode and injure
people when the Pintos got into a crash?
And it's through discovery that you can find that out.
Without discovery made public,
we would have never known that Ford knew about this gas tank hazard
and chose to do nothing about it.
These damning discoveries can be used by other lawyers
to apply even more legal pressure to these corporations.
But if it's secret, you don't get any bad publicity.
The public is not going to punish you.
It's not going to boycott your product
if you just keep doing it, because the public may never know about it.
[Alec] And that's exactly what happens in arbitration.
Any uncovered evidence, it stays a secret.
If the McGintys found a memo from an executive that proved Uber knew
their app was distracting drivers, it might help the McGintys win their arbitration.
But that memo will remain a secret to the rest of the world, including future victims.
In other words, corporations can keep up with business as usual.
There is no reason for them to do better or to stop harming the public.
Imagine, for instance, if tobacco companies were able to conceal their decades
long knowledge that smoking was addictive and cancerous from the public?
The second reason arbitration kills institutional change involves precedent—
in other words, past court decisions that can be used to bolster future cases.
If a court decides that Uber is responsible for the actions of their drivers,
that decision would have disastrous consequences for their business model.
In arbitration, the arbitrator could make the same decision but, with a quiet payment,
Uber never has to deal with this kind of legal apocalypse.
It hasn't always been like this.
Arbitration agreements existed, but were fairly limited in scope.
They would cover disputes that were directly related to the contract you signed,
like your job.
They wouldn't, by contrast, cover your company if they started, say,
secretly dumping toxic waste into your backyard 20 years after you left the company.
Now, they might.
Infinite arbitration clauses are those that can mandate arbitration
for almost any kind of dispute pertaining to the parent company and its affiliates forever.
Let's unpack that.
If you open an account with Wells Fargo,
and there's an arbitration clause in there and it's written
very broadly, not just to cover the account
that you've opened, but to cover the situation where they open an account
that you know nothing about, that they don't tell you about,
well, then you're stuck with that arbitration clause for that other account as well.
Just a point of clarification:
Yes, Wells Fargo did do this.
And, yes, they tried to weasel out of a class action with their arbitration cause.
Corporations are trying to expand the reach of arbitration
and the breadth of their arbitration clauses to cover as many circumstances as possible,
because it's more favorable for them, even though it's worse for the everyday consumer.
At a bank, a customer's chair collapsed.
When he tried to sue for his injuries,
he was forced into arbitration because of the terms of his bank account.
Did Wayfair knowingly sell consumers products infested with bedbugs?
One consumer started a class action on those grounds,
but the case was instead sent to arbitration.
The reason?
The terms of service posted on the Wayfair website
said consumers were bound to arbitration.
The plaintiff didn't even click "I agree."
General Mills tried to set a policy that liking any of their social media posts
amounted to opting in to their forced arbitration policy.
After a public outcry, they backed off.
In another case surrounding the murder of a 17 year-old at an Airbnb,
the company tried to force the victim's mother into arbitration when she filed a wrongful death claim.
The victim didn't rent the property.
Neither did the mother.
But the mother signed up for an Airbnb account
four years prior,
when a user agreement regarding arbitration
was allegedly signed.
Arbitration clauses can be buried not only in terms and conditions,
but in warranties, privacy policies, in user manuals.
They're truly everywhere.
All of these consumer products
have some form of arbitration clause.
It's not just that arbitration is unfair or even that these arbitration agreements
are written in an unfair way, but they're presented to consumers in an unfair way.
Look here at Uber’s own 2021 terms and conditions.
It takes up something like fourteen of the seventeen 8x11 pages here in my hand.
And a consumer is supposed to identify that by flipping
through their iPhone, either on a sidewalk while trying to frantically order a ride,
or at the dinner table with screaming family members desperate to get their dinner ordered?
It's an absurdity.
While corporations are trying to expand the scope of arbitration,
they're making their arbitration agreements practically illegible.
Here, Georgia McGinty is an attorney, and even she would have no idea of what was meant
by Uber's arbitration agreement.
The McGintys are fighting against Uber's forced arbitration.
But, as of recording this, it's unclear where the case will ultimately land.
There is one government agency that could rein in infinite arbitration clauses,
like the one that strapped the McGintys.
Just so happens to be the same agency
Elon Musk wants to delete.
Congress gave the Consumer Financial Protection Bureau
the power to restrict arbitration clauses in consumer financial contracts.
The Consumer Financial Protection Bureau tried to do that in 2017
by saying that arbitration clauses
that provided for class action waivers were not effective.
In other words, you could still have a class action even though you'd agreed to an arbitration clause.
The issue ended up in Congress, where Republicans tried to block the new CFPB rule.
The industry fought against it very hard.
[Mike Pence] On this vote, the yeas are 50.
The nays are 50.
[Jeff] Then Vice President Pence cast the tie-breaking vote in the Senate late at night.
With that vote and Trump's signature, the CFPB’s new rules on arbitration were dead.
The CFPB still has some power
to limit arbitration clauses,
but it has not used that power since.
The CFPB has since proposed other rules,
but those rules could ultimately get vetoed by Congress again.
There are other solutions, however.
Congress has already limited forced arbitration for specific cases like sexual assault.
There's no reason they couldn't do more, say, for consumer lawsuits.
Senator Sherrod Brown also introduced the Fair Act, which bars forced arbitration clauses in consumer,
antitrust, employment and civil rights cases, but it has yet to get a vote.
What's clear is that any effort to hold corporations accountable for their grotesque use of forced
arbitration clauses have largely fallen short because most people are ignorant about this ploy, until it's too late.
When these clauses do get attention, like in the case of General Mills,
companies tend to back off.
After public backlash, Disney finally gave up their attempt to use a Disney+ subscription
to force arbitration on that wrongful death lawsuit at Disney Springs, for instance.
By not talking about these hidden, incomprehensible clauses, we're only playing into the hands
of negligent corporations that one day might want to silence us.