Most people assume that if they are wronged by a company, whether it’s a healthcare provider, a bank, or a retailer, they have the right to take that company to Court and have a Judge or Jury decide the case.
But what if I told you that you could lose your right to a Jury Trial by signing a Contract or even by just by visiting a website or using an app?
That is exactly what companies are doing through hidden Arbitration agreements buried in their Contracts or in their Website Terms of Service.
These agreements can force consumers into Arbitration, a private dispute resolution process that is generally thought to benefit corporations, leaving consumers with fewer rights and a reduced chance of a fair outcome.
The Recent PA Federal Case that Precluded Arbitration
A recent Pennsylvania federal court case, WW v Allegheny Health Network, illustrates this problem.
A patient who used Allegheny Health Network’s (AHN) website to find a doctor sued AHN for allegedly sharing private health information with third parties. AHN tried to force the patient into Arbitration, arguing that simply by using the AHN website, the patient had agreed to Arbitration because the Website Terms of Service stated that “anyone who uses this Site agrees to be bound by the terms of use” and the Terms of Use contained an Arbitration provision.
Why the Patient Won and Preserved His Jury Trial Rights
In the AHN case, the Judge ruled that the patient had not actually agreed to Arbitration because the provision was hidden in the website’s Terms of Service, which:
1. Were hard to find because the Arbitration clause was buried at the bottom of the website, mixed in with dozens of other links.
2. Did not require the user to affirmatively agree. Unlike contracts where you sign or check a box, or a Website that required you to click to accept the Terms of Service, this Website had the Arbitration provision imbedded in a Terms of Service link in the footer of the website.
3. Were never actually seen by the patient.
Because of these factors, the Judge ruled that the Arbitration agreement was not enforceable, allowing the lawsuit to move forward in Court.
How This Affects You?
Companies generally prefer Arbitrations over Jury Trials. Consumers are usually better off exercising their right to a Jury Trial rather than being forced into Arbitration at the outset of the case.
So, it is important for consumers to be aware of this issue and avoid agreeing to Arbitration, if possible.
If you are asked to sign an Arbitration agreement, try to avoid it. Cross out that paragraph in the contact before you sign. If you are on a Website, try to avoid agreeing to Terms of Service that require Arbitration.
Lawyers also need to be more cognizant of the existence of Arbitration provisions in Contracts as well as in Website Terms of Service.
The Court’s decision in the WW v. Allegheny Health Network case was a win for consumer rights, but it does not always happen this way. Many consumers never get their day in court because they unknowingly agree to Arbitration. The best way to fight back is to stay informed, read the fine print, try to be proactive in avoiding agreeing to Arbitration, and support legislative efforts to ban forced Arbitration.
