Home > Uncategorized > Business Law Update: One-Third of Top Business Websites Have Clauses to Restrict Lawsuits

Business Law Update: One-Third of Top Business Websites Have Clauses to Restrict Lawsuits

Happy Friday all!
The ABAJournal Reported an article today headlined: One-third of top websites have clauses to restrict consumer lawsuits. You can see that article here
That’s right, people. If you want to sue these major companies, you need to demand “arbitration” – likely in the company’s home state, and county of incorporation.  If the company is feeling really aggressive, it’s arbitration clause might actually make you, the moving party, liable for all the arbitration costs.
Among the websites with lawsuit restrictions are:
Amazon, eBay, Match.com, OKCupid, Travelocity, the Wall Street Journal, Target and Domino’s Pizza, the story says.
Interestingly, according to the ABAJournal,
Facebook and Google, on the other hand, do not limit users’ right to sue.
I can only conjecture that Facebook and Google don’t see the need in including such “unfriendly” arbitration clauses. Let’s face it, if you are a person suing Google related to your usage of the online search engine, good luck with that lawsuit.
Are Website Terms and Conditions Enforceable?
I previously posted an article about terms and conditions in websites. Those that are in “browse wrap” – just a link at the bottom of the browser, can be easily overlooked by businesses submitting purchase orders, and consumers, alike.
Because they can be overlooked, arguments can be raised, sometimes successfully, that that the limitation of damages, or clauses compelling arbitration should not be enforced.  Businesses’ responses have, of course, been to make such “Terms and Conditions” more prominent on their websites, or require “click wrap” – the user to click their acceptance of the terms before proceeding further.
Simply put, if a business has its legal counsel doing their job, the business will make sure its interests are protected in drafting an enforceable and advantageous terms and conditions page that shifts liability to the end user – whether a consumer or business.
Take Away on Terms and Conditions
Implement Terms and Conditions
I recommend business clients to always include a Terms and Conditions page that is either attached to the back of their physical Purchase Orders, or is included in their Website and incorporated by reference.  The Terms and Conditions will, essentially, allocate risk and liability, on such items like:
  • warranties (what is the provider guaranteeing and what isn’t it?)
  • payment terms (when and how is payment accepted? Late fees?)
  • remedies  (what is your recourse in the event the goods aren’t what the buyer expected? Are your damages limited to a refund, or can you get related damages as well? Can attorney fees be covered?
  • Venue – (where can you bring your dispute? An arbitrator? Who pays the fees? Is the location of the arbitration specified?

Enforce Terms and Conditions

And of course, its important that a business enforces its terms.  I have had clients who have been sued before and forgot of their advantageous language in their terms and conditions.  If a business is sued and it waits too long in the litigation before raising its right to arbitration, the court very well might consider the business to have “waived its right” to arbitration. Although, “Waiver of a contractual right to arbitrate is disfavored” by the Courts. Best v Park W Galleries, Inc, No. 305317, 2013 WL 4766678 (Mich Ct App September 5, 2013), app den 495 Mich 979 (2014).
Questions? Comments?
email: Jeshua@dwlawpc.com

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