This week, I received three different emails informing me that companies I interact with had updated their terms and conditions. The ordinary consumer likely deleted these emails, or read them without understanding what they were talking about, but I knew right away that the biggest change was likely about arbitration. And I was right. All three companies have made the arbitration provisions in their agreements even more complex, in overlapping ways. It’s unclear to me whether this is a coincidence, or whether there’s something more nefarious/coordinated going on. None of the changes seem related to any recent changes in the law.
First up, Starbucks Rewards program sent an email on Monday: “We’ve updated our terms of use,” purportedly effective three days earlier. The email didn’t say what those updated terms were, of course, but it did say “Your continued use of the Starbucks Rewards loyalty program will confirm that you have reviewed and agreed to the updated Terms of Use.” Clicking through mentions in a cursory summary that the changes include “Information about our dispute resolution and arbitration process, which explains how legal disputes are handled.” Only by using the Wayback Machine could I figure out what the actual changes are– and they’re substantial– among them, explicitly granting an arbitrator the right to impose sanctions pursuant to Federal Rule of Civil Procedure 11 and fees under Rule 68, requiring the arbitrator to write a detailed written decision, purporting to prohibit any preclusive effect of such a decision, purporting to require arbitration of “private attorney general” claims, and adding an extremely complicated detailed procedure for “multiple case filings.”
Second, Bloomberg.com on Monday sent “An update to our terms and conditions.” At least their email specified the revisions were to “the procedures for how we will resolve any disputes that may arise over your use of the site.” My use of Wayback Machine reveals that this change also resulted in much more detailed terms, including, for the first time, an explicit class action waiver and specific procedures for “mass filings”, along with a shift from the business-friendly American Arbitration Association to the business-friendly National Arbitration and Mediation (NAM).
Finally, Panera’s Unlimited Sip Club sent out an email, “Our Unlimited Sip Club Subscription Terms and Conditions have been updated,” again purportedly effective 3 days earlier. Again, no non-lawyer is going to be able to figure out the difference in these terms, but the big change appears to be, like Bloomberg, a new explicit class action waiver and new procedures for mass filings.
Unless I’ve missed something, neither class action waivers or mass filings were the subject of major decisions in the last few months, so I’m not sure what made all three of these companies decide to make these changes now. Maybe just a coincidence? Starbucks’s attempt to essentially pick and choose provisions of the Federal Rules of Civil Procedure it wants to wield against consumers–while exempting itself from the consumer-friendly ones—seems most nefarious of them all.
