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I wrote for Singal-Minded (non-paywalled) on the topic of PayPal suspending accounts for what appear to be politically motivated reasons. I describe my experience with PayPal suspending my own account a few years ago, and how I managed to get it back:
PayPal, like many other companies, have a mandatory arbitration clause in their user agreements that require you to "agree" to waive your right to sue them in court if you have a dispute. I took PayPal up on the offer to settle our shit via arbitration but we never got that far because they quickly caved. I was prompted to write about all this after I met Colin Wright and offered to help him deal with his own PayPal bullshit. From my perspective, he refused my help but nevertheless kept writing opeds about the issue and soliciting donations. I heavily insinuated that he was intentionally holding on to his victimhood status as a grifting strategy. Turns out, I was wrong.
As best as I can tell, virtually nobody thinks to try to address the issue of politically-motivated corporate censorship with the tools already available to them. Not even FIRE talked about arbitration dispute resolution. This leads me to think this a low-hanging fruit counter-attack that's just ripe for the taking.
Edit: I found out about another instance of someone taking a company to arbitration and winning. See also the hacker news thread, esp. thathndude's posts where they explain how hiring an attorney (even one that doesn't do anything) can result in absurdly higher settlements.
Excellent post. All it's missing is a callback to Beware Trivial Inconviniences. This is just the same idea from the user-end, right?
I think this point generalizes quite a bit more than people appreciate. An example from elsewhere in the Culture War might be the proliferation of suppressors in the Gun Culture. Acquiring a suppressor requires an onerous and intimidating amount of paperwork and red tape, so for a long time most people just didn't bother. But then people in the gun culture got together and built themselves something analogous to a GUI on top of the bureaucratic command prompt, a system to guide people through the process and, perhaps more importantly, reassure them that the process actually could work for them. Suppressor ownership exploded.
I'm skeptical generally of rules-based systems because it seems clear to me that rules cannot constrain human will. On the other hand, if the rules work, why not use them?
How embarrassing for me to have forgotten that link, it's perfectly on point. I don't think I fully appreciate how much of a setback a trivial hurdle can be. My economics brain thinks "durr cost went up by only 2.6%" which obviously does not reflect in reality for how people are really affected. So it's naive for me to think this can be solved as a call to action to individual users, it's just not at all a realistic ask. This does mean that the pendulum can swing back if you have someone doing the grunt work and creating an accessible tool. This NYT article from 2020 talks about how this happened with DoorDash, but it also talks about a startup called FairShake that tries to automate the dispute resolution process and makes money by taking a cut.
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You can go to or threaten arbitration against PayPay because
You are a lawyer and you don't have to pay a lawyer to have a half a chance at winning and
Paypal is a financial company and can't be quite as brazen as companies which don't touch the users money
Both your explanations are reasonable. Still, it wouldn't hurt if people tried to put up a fight more often with more companies. That would give us useful information.
I conceded that my legal background definitely gave me a strong edge here, but I think that was primarily in reducing the intimidation factor. Arbitration is intended to be a departure from the procedure labyrinth and inscrutable legalese that you find in traditional courtrooms. I would love to see how someone who isn't a legal professional wrangles with this process but I could not find any examples in my search.
My mom was involved in an landlord/renter arbitration proceeding. Not sure if you only care about paypal arbitration. The outcome was very frustrating, maybe because as someone without much experience with the legal system what we thought was a clear win turned out to be a total loss.
She had a lease with an apartment. As part of the enticement to get her to move in they offered the garage attached to the apartment as a free part of the lease. Everything is fine. Lease renewal comes up. Instead of sending her a lease with the attached garage as a paid addition, they resend her the original lease that had the garage as a free add on. She thinks 'awesome' proceeds to sign the lease and not pay for the garage. If they had asked her to pay for the garage up front, she would have chosen to just not have the garage.
Anyways another year is up and they haven't received payment for the garage. They ask her to pay, she refuses cuz it wasn't in the lease. It goes to arbitration. My mom loses she is ordered to pay.
In my mind the landlord fucked up and sent the wrong contract. The judge says 'hey they sent the wrong contract, but you (to my mom) probably understood which contract they meant to send, so pay the correct contract'. Which I guess is fair. But I never got the sense that it would happen in reverse. Like if the landlord sent the 'pay for the garage' contract the first year instead of the 'garage is free' and then realized their mistakes, they could have taken my mom to court and still won. And the judge would have said something like 'hey you (to my mom) should really be careful about reading contracts, you signed it and you agreed to pay even if it wasn't made clear to you in the initial verbal agreement'. The reason I got this sense, is that just about every case before my mom's was also decided in favor of the landlord.
I don't get the sense that arbitration is 100% going to be in favor of the company. But I do get the sense that it is going to be about 90% in favor of the company. And going through a bunch of effort for that slim 10% chance of victory doesn't seem worth it.
Thanks for sharing this, that sounds like an obviously frustrating outcome. Knowing very little about rental disputes, I also thought about the "meeting-of-the-minds" problem Syo brought up being an issue. I guess the strongest argument against your mom is that she must've known it was a mistake since the garage was part of an enticement deal. I'd be interested to know how arbitration outcomes compare to real courts for this issue, judges there aren't particularly known to be deferential to tenants.
She did know it was a mistake, but thought they'd be forced to eat their own mistake cuz it was in the contract. I can't remember the exact details but I thought they tried to make her sign a revised contract with the paid garage option. She refused to sign it cuz she saw no benefit in doing so, and thought that them trying to get her to sign it meant they'd have to abide by the contract they actually gave her.
Sorry to say, but it's not clear your mom was in the clear. What you're describing is a classic palpable unilateral mistake, where the remedy a traditional court would likely impose is either modifying the contract to make it "make sense", or canceling it completely. In general, contract law does not treat kindly people who think they've potentially hoodwinked the other party. It's not obvious to me that this result was caused by arbitration.
Fair enough, but its not like a lay person knows that. And its not like lay people don't get exploited by this kind of bullshit all the time.
She had told them she didn't want to pay for the garage when the lease came up for renewal. They added it to the contract for free for the second year. Had it been appropriately written with her paying for the garage she wouldn't have signed that lease.
There was confusion for her about that contract, did they give the garage to her for free cuz she said she wouldn't pay for it, or did they screw up in giving her the free garage? Once they came back and said "you need to pay for this" her response was "I don't want to pay for it, I'd rather not have the garage, but its in the contract I signed". They then try to get her to sign a different contract, she doesn't. Then they go silent for 8 months and bring it to arbitration.
It wasn't like she was trying to hoodwink them. There was a garage she barely used and didn't want to pay for, she had a job working 80 hours a week, and wasn't going to spend the time to get up to spend on contract and leasing law. Going back in time she would have adamantly told them to take it off her lease.
In my mind they might have realized they were in the right at month 4 and allowed her to rack up the additional 8 months of payments cuz they knew they'd win in arbitration/court at the end of it.
Another story about apartments. I was moving out of an apartment. I emailed our landlord in May to say that we were moving out by August. Landlord doesn't respond. I respond to the email in June, "hey do you need anything from us? We are moving out by August." No response until a few days from the end of June "we need two months notice of your official move out date". I'm like yeah, that is why I sent you the email in May. They say "you didn't give us an official move out date. Without an official move out date you didn't give us notice." Grr me: "[whatever the last day of July] is our official move out date". Them "Ok that is only a month away, you still owe us rent for all of August".
I asked some for some legal advice on reddit and the two people that said they had dealt in rental law said I was basically guaranteed to lose. I took their advice and just paid for that month. But seriously, fuck them. They could have told me that I didn't say the exactly correct magic words to fulfill a contract. Instead they just went silent and let me rack up another month of rent. I felt a little better after I blasted them on google reviews for their shitty email communication.
In general I just don't think you realize how damn frustrating the legal system and arbitration systems are for anyone not officially a part of it. From the outside it just looks like a thinly veiled system for saying "fuck you, you lose! Now pay us money!" I have zero faith in the fundamental fairness of the legal system, or most arbitration systems. If paypal or some bank stole a bunch of money I had stored with them, I wouldn't expect to get it back via a court or arbitration system. I'd go to the most popular friends I have and try to take the issue to the court of public opinion, and hope that somewhere there had "this one weird trick" that might work to get my money back, or hope that it blows up and they are forced to give my money back due to public pressure. That is coming from someone who loathes Twitter mobs. Yet somehow they appear to offer a much better chance of justice.
This whole topics has gotten me very worked up. And I consider myself and my mother well educated people that are generally very capable of navigating the bureaucratic world we often live in. I can't imagine how shit the system is for people who don't have the same level of bureaucratic navigation skills we have.
This is a completely fair point but I don't think I articulated myself in the best way here. I am not even trying to defend the legal system here. You're completely right that a lay person would have no reason to know about things like "palpable unilateral mistake" contract law. I personally think what happened to your mom was unfair, so when I'm citing the legal standard on these disputes that shouldn't be taken as an endorsement.
The issue here isn't whether the legal system is fair, it's not! This is especially so when you take into account pervasive power imbalances. Anyone with clout, power, money, intelligence, sophistication, etc will be able to clobber anyone who doesn't have those to defend themselves. So when I bring up arbitration, it's not in isolation, it's relative. Is arbitration dispute resolution fair on its own? No! Is arbitration "fairer" than traditional courts? I don't know, maybe, maybe not!
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In some countries such a lease would be refered to as a "contract of adhesion". And in any case, the party that wrote contract, would be assumed to posses a more thorough knowledge of its content. Any article that can be read multiple ways, would be interpreted to the detriment of the contract-writer.
But on the other hand, on this specific point, a meeting-of-the-minds did not occur as your mother thought her lease included the garage, while the owner did not.
Had the owner alerted her that she needs to pay extra for garage, after a period of significantly shorter than a year, this dispute wouldn't have gotten this far.
It's not a contract of adhesion, as it was negotiable.
Yes, those are the standard rules. The lower-level adjudicators that ordinary people get to deal with don't follow those kinds of rules. They just kind of decide which party they favor and rule for them. And it's not the individual who they see once who they favor. (Except in jurisdictions which have flipped entirely the opposite way and decided the landlord is always wrong)
The contract terms were plain and (as you mention) written by the party disputing their plain meeting. That's enough to establish the meeting of the minds. Changing their minds a few months later shouldn't really cut it.
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The owner alerted her after a few months, at which point she pointed out that the contract didn't include the garage. And that she doesn't want the garage if she has to pay for it. They went silent and then asked her to pay again at the end of the lease. She said no and they went to arbitration.
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This situation is exactly what the "Statute of Frauds" is for. For real estate contracts, usually including leases, what's on paper is supposed to be what counts. One problem with doing it otherwise and trying to read the minds of the parties is it's very easy for the judge to apply the "you should have known" rule or the "this is what's on paper" rule depending on which party it favors.
I think @ymeskhout's original article said 94-99% in favor of the company.
I really don't get the outcome of her case, it frustrated me that they could just throw out the contract as written in favor of the person that wrote the contract. At that point why even bother having my mom sign a contract? They treated it more like a "terms of use" agreement. Like unless you move out you agree to whatever the company wants within some "reasonable" restrictions of what the company can ask for.
Have you not been to court? The laws on paper really don't matter until you're at a fairly high level (and have a lawyer). At the low levels, everyone in the system knows what's supposed to be and will brook no argument. The defendant is always guilty; the corporation is always right.
I've luckily not been in court very much, but that incident has certainly brought me that level of cynicism about things.
The annoying thing about this incident is that the cost of hiring a lawyer was probably going to be most of the cost of paying for the garage.
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You're right about the intent behind "statute of frauds" although minor quibble is that it only applies to rental agreements longer than a year. But even where SoF does not apply by default, any contract can include something similar through an "integration clause" that says nothing outside the four corners of this written agreement counts (e.g. oral modification, or some other verbal promise).
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I have two (anecdotal, sadly) examples - 1. Medicare disputes, and 2. Alcohol license administrative hearings.
(1) When I was in law school, I briefly worked an externship as the equivalent of a judicial clerk in the Department of Health and Human Services' Medicare Appeals Division. My primary job was to work up the administrative appeal case files for the Administrative Appeals Judges to look over and make a decision on. MAD got tens of thousands of appeals every year (despite being the third appellate layer of administrative bureaucracy concerning Medicare coverage decisions), but only had nine or ten AAJs at the time, so naturally we had to triage the cases. The ones without legal representation got priority, so every casefile I saw was an "unrepresented beneficiary."
Their appeals came in on everything from unevenly-scribbled letters, to perfumed stationary, to erratic, bullet-point-ridden emails. The exact same thing happened to them as one might expect - they got steamrolled. They didn't know the guidebooks that were used to make the determinations, weren't familiar with the procedural regulations, and even in a nominally non-adversarial process where everyone involved was bending over backwards to be charitable and understanding of these factors (or at least was making convincing mouth-noises to that effect), they lost, and lost, and lost. I finally checked out when I saw a case involving sticking an unrepped-bennie with tens of thousands of dollars of medical transportation costs because his doctors and durable power of attorney didn't know that a smaller local hospital had just started performing a complex heart procedure the guy needed (in fact they hadn't even mentioned it on their webpage as an offered service yet), and so referred him to a major city teaching hospital which was known to perform the procedure - while the bennie himself was completely unconscious and in such bad health that hospice care had been considered. Too demoralizing.
(2) In my current practice, I work a lot with state alcohol licenses. My state, like most, has a separate law enforcement agency that deals exclusively with alcohol licenses and alcohol-related crime, and within their sphere they are nearly omnipotent. I represent a lot of clients in administrative hearings before the Department where there's some accusation that my client has done something wrong, and so deserves to have their license suspended or revoked. I don't win much (as I said, nearly omnipotent), but the poor licensees I see try to handle the disciplinary process without an attorney? Again, steamrolled. And administrative proceedings, like arbitrations, are supposed to be stripped down, less-legalistic processes accessible to the layman. The problem is that the agency does keep a stack of lawyers around to represent themselves at these hearings (before their own judges, natch), and the laws and processes are written so broadly (in an attempt to be approachable and easy to understand for the laity, mind), that the agency can do whatever it wants. The successes I have are precisely because my legal training puts my clients on something resembling the same informational plane as the enforcement agency.
Now, I'm not a great attorney - Yassine is almost certainly better than me from pure experience if nothing else, and he probably is baseline smarter than me too - but I'm not a moron, and my experience tells me that no modern legal process, no matter how "informal" or "accessible" it is supposed to be, should be touched by a layperson without at least getting some advice or contextual information from an attorney..
Because of the 6th amendment, criminal defense is very likely the most lawyered practice area possible. And because that's the realm I'm familiar with, I have a very skewed perspective of the "typical" case. I've seen a fair share of pro se petitions scrawled out in prison stationery, but those are extremely rare outliers.
Reading your post and being reminded of "Beware Trivial Inconveniences" makes me realize how much of a blind spot I have about the paperwork filing capabilities of the average person. Yeah, it's no surprise at all that they'd get clobbered. But the problems you're describing seem to be irrelevant to the choice between arbitration and traditional courts though. In either arena, having a dedicated professional is going to be an advantage. I'm not sure how you'd even begin to address that imbalance unless you significantly expand the public defender corps to cover more areas. Or maybe ban all lawyers.
I was specifically meaning to respond to the idea that people without lawyers or legal training should just start yolo-ing arbitration demands to orgs like PayPal doing shady stuff to them, which I don't regard as terribly helpful advice in light of my experience. Still, ymmv, and I'd love to be wrong. I generally regard arbitration as a bad patch on the unwillingness of the political system to acknowledge and respond to the volume of litigation that the laws (and the proliferation of procedural protections which extend the lifespan of lawsuits) are creating, and staff adequate judicial offices to dispose of those cases cleanly and quickly. Arbitration systematically favors repeat litigants, suppresses plaintiff awards in the face of tortious conduct, and encourages people to attempt to negotiate quasi-legal procedures without an attorney, which results in potentially meritorious cases getting dumpstered.
I understand your point, but what's the alternative? and what do they have to lose?
I'm not sure there is an alternative, sad to say. And regarding their losses, well, depending on the arbitration rules at issue they could get stuck with costs (though excessive costs can lead to making an arbitration agreement unconscionable, particularly in CA, which is the only jurisdiction I'm barred in...), on top of whatever else they're dealing with.
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Unfortunately one of those legal processes is "finding a lawyer". Which is why a lot of people when faced with a lawsuit will ignore it, end up with a default judgement, and dodge collection as long as they can rather than even attempt to fight it. The task is just too daunting and the chance of success (against someone who does know the system) next to nil anyway.
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As a lay person this sounds right to me. Or really that there can never be a fair fight between a lawyer and a non-lawyer. So if one side has legal representation and the other side doesn't ... then the winner has already been determined.
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There are two main reasons an organization like FIRE doesn't use arbitration: (1) it does not set any legal precedent and therefore the outcome is basically only relevant to the specific case at hand, and (2) arbitration is often more expensive than litigation because you must pay the arbitrator's fee, which is typically $1000-$2000 per day.
I echoed the exact same concern about the lack of transparency in arbitration. Do you have a source on how arbitration is more expensive than litigation? It makes sense that arbitrators would be more expensive than judges who are paid a public salary, but that wouldn't be the full analysis. After all the most common benefit cited for arbitration is that it's much cheaper overall when you take into account the full costs (including attorney's fees) because the process is significantly less cumbersome than traditional courts. And in the specific context of whether consumers should initiate arbitration more, the cost is irrelevant if the companies are the ones footing the bill.
Still, I don't expect FIRE to use or even advocate for arbitration, but when they issued a statement on PayPal this is what they said:
I asked FIRE for specific proposals to improve due process and appeals they had in mind but they never responded. EFF/ACLU/FIRE can write all the letters they want, but companies have no reason to pay attention. Maybe someday they'll manage to pass some legislation that addresses this issue, but I don't see that happening anytime soon. So meanwhile, why not tell people about the tools already available?
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