31 Comments

This sounds like it could be the new DDoS attack - crowdsourced arbitration claims against a company that's already committed itself via T&Cs to paying advance costs. You've struck gold here Yassine.

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Nov 3, 2022Liked by Yassine Meskhout

I personally think gadflies are the unsung heroes of our society--they say the often-unpopular things that nevertheless should be said. They are often disliked as a result, but if they vanished tomorrow the world would be a much less fair place.

Needless to say, I love this essay.

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Nov 3, 2022Liked by Yassine Meskhout

The customer service call loop made the hair on the back of my neck stand up. Adulthood horror stories where the protagonist wins? Have to love it.

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Nov 3, 2022Liked by Yassine Meskhout

I love this so much I wish it were a movie, but I'm not sure how to make it visually compelling. I guess an essay is the best medium. Well done.

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Nov 3, 2022·edited Nov 4, 2022Liked by Yassine Meskhout

Not all heroes wear capes

Nice work, reminds me of the old 419 scam hunters

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Nov 3, 2022·edited Nov 3, 2022Liked by Yassine Meskhout

This was both hilarious and helpful; I wish more lawyers wrote in this style.

As someone who receives numerous lawyer-written articles every day (allegedly aimed at laypeople) it's exasperating how unreadable they are.

After two paragraphs of the average lawyer newsletter on copyright matters, I've lost the will to live

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Nov 3, 2022Liked by Yassine Meskhout

Here is another story similar to yours: https://www.shuchow.com/so-i-took-a-huge-corporation-to-arbitration/

and a discussion thread with comments from multiple people with experience in arbitration, all (of the ones I read) generally supportive of the argument that arbitration is generally good for consumers with ordinary disputes like yours, probably better than the alternatives: https://news.ycombinator.com/item?id=31567673

User "thathndude" also has some tips for how to get more compensation for your trouble.

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Nov 4, 2022Liked by Yassine Meskhout

A fun and fascinating story here!

The main case for arbitration as being pro-consumer, is that by reducing costs to the corporation, it reduces costs for *most* consumers interacting with that company. In other words, the benefit isn't for the few squeaky wheels that need grease: it's for everyone else who commonly does not. And as long as it's commonly "enough", consumers do win out overall.

Me, I see arbitration as just freedom of contract. You can agree to whatever contracts you want, and then you ought be held to them. That you might not have much *choice* in the contracts you agree to, is largely not material. I have a favorite pair of pants, and I've bought eight pairs of them in various models over the years. Unfortunately, Columbia discontinued their Aruba IV convertible cargo pants with liner, so I can't get them any more. I'd love it if they made more. That doesn't mean I'm going to get my wish. (The closest current model, the Backcast, lacks good pockets! And I want pockets.) Same for dispute clauses, maybe.

That said, when the problems are "common" enough, and for low enough value...yeah, arbitration can be onerous. Maybe the real punishment is just these companies losing customers. Still, companies can be hoisted on their own petard here! I recently heard about how Uber ended up on the hook for $91m because they screwed up and arbitration held them to their word. https://www.hklaw.com/en/insights/publications/2022/04/uber-loses-appeal-challenging-91-million-in-mass-arbitration-fees As mentioned elsewhere here, it sounds like maybe the same thing happened to DoorDash and Amazon, too.

Anyway, as a semi-detached observer without a dog in the arbitration debate to which I am deeply, ideologically committed, I find this all quite fascinating.

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Nov 3, 2022Liked by Yassine Meskhout

Nothing I love more than a “I’m about to make my law degree your problem” story.

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Nov 3, 2022Liked by Yassine Meskhout

There's a point in the article where you mention a similar thing happened to Amazon and DoorDash and it implies that it also happened en-masse to PayPal, did I miss something?

While reading the article I kept thinking of Owen Benjamin whose supporters did a similar thing to Patreon a company with a similar near monopoly in it's niche. I can't recall if he got his account back but they apparently cost Patreon hundreds of thousands of dollars collectively.

Regarding Colin's situation and his lawyers saying there is no path. My suspicion is that you are not worth the effort of fighting, and Colin is a target that they would at least bring to arbitration. Once there I assume either the poor winrate stats, or the fact that there are probably a dozen clauses for how PayPal has sole discretion to terminate accounts in the agreement are present would cause them to believe there is little chance. I don't think Colin has the level of guile implied in choosing not to do this to keep the controversy alive (he could probably grift support money on GFM that would be cancelled :D ).

Jesse also needs to pay you more, your writing is always a treat to read.

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Good job, but it doesn't seem adequate to really solve the general problem, because it doesn't seem to impose enough cost on the wretched company. I wonder if you really had to agree that reinstating your account was adequate and thus no actual arbitration was required? After all, the company never gave you any full accounting of why they had suspended your account, nor any promise not to do it again in a month. Suppose you had said that in the absence of these things, there was still a dispute and arbitration should go forward? That might impose enough cost on the wretched company to make a difference?

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Nov 4, 2022·edited Nov 4, 2022

Hi,

I wanted to share this on a Polish, Reddit-like site. Normally when I do that I just translate (mostly automatically, via Deepl) and post it quoted in the comments - but I thought it might be better to just publish it on Substack itself. I've done the translation (draft: https://sinity.substack.com/p/7716b3ae-cadc-4308-a6d2-fdd73d1b9c82), but then I figured that I probably should ask for permission to publish it. Ofc no monetization.

Can I?

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I know this will be controversial, but to me the lesson here is: there is a case that mandated arbitration -- as compared to wrestling with the court system -- is pretty great!

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I think that "terms of service" are only in force where this is a massive power differential between the customer and the vendor (or, in the case of more social media companies, between the user and the service provider, since the user is rarely if ever the customer). In business-to-business transactions, for which contracts and contract law were created, most contracts are negotiable. Both parties can ask for different terms in exchange for concessions or benefits. These "terms of service" are one-way, and they are treated as such by corporations.

I think there should be a Bill of Rights when it comes to ToS (Terms of Service):

1) ToS must offer a plain language summary of each ToS item.

2) ToS must clearly spell out the consequences of failing to adhere to each ToS item.

3) When consequences are applied based on a ToS violation, the user must be notified of (a) the consequences and their duration, (b) the specific ToS item violated, (c) the specific action (or lack of action) on the part of the user which resulted in that violation, and (d) the path through which the user can challenge their violation, including specific steps.

4) ToS challenges not reviewed within a reasonable amount of time (say 8 weeks, but I'm really just throwing out a number that seems reasonable to me) result in automatic reinstatement of the service.

5) The service provider must publish statistics for its ToS violations, per ToS item, including overall trailing 365-day count, median time to review challenge, median time to arbitration resolution, % of challenges resolved in favor of the user vs. % resolved in favor of the service provider.

There are probably more one could add, but these seem to me to be a bare minimum.

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I actually think the entire internet needs an opt-in adjudication layer. This may seem way off base but would be interested in your thoughts on something like this. Basically, I want a republic style governance layer to track topic based reputation and give open and clear ways to arbitrate disputes.

End state is a future where you can earnestly say “of course it’s true, I saw it in the internet!” And no one thinks you’re dumb for saying that.

https://extelligence.substack.com/p/my-twitter-product-roadmap

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