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Needle in a Haystack?

posted by Amy Schmitz

Following my post regarding PayPal's new opt-out arbitration provision, I talked to many individuals who could not find the directions for how they can opt out (hence "needle in a haystack").  Here they are:

"Opt-Out Procedure.

You can choose to reject this Agreement to Arbitrate ("opt out") by mailing us a written opt-out notice ("Opt-Out Notice"). For new PayPal users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you accept the User Agreement for the first time. If you are already a current PayPal user and previously accepted the User Agreement prior to the introduction of this Agreement to Arbitrate, the Opt-Out Notice must be postmarked no later than December 1, 2012. You must mail the Opt-Out Notice to PayPal, Inc., Attn: Litigation Department, 2211 North First Street, San Jose, CA 95131.

The Opt-Out Notice must state that you do not agree to this Agreement to Arbitrate and must include your name, address, phone number, and the email address(es) used to log in to the PayPal account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate."

It seems PayPal is banking on our inertia.  How likely are we to send a letter in the mail to opt-out when PayPal is used for e-contracts?  Why not simply have an online opt-out procedure, as companies do for unsubscribing to online newsletters?  

That said, PayPal's arbitration procedure is arguably reasonable on its face.  

It precludes class relief, but at least it incorporates the American Arbitration Association's Supplementary Procedures for Consumer-Related Disputes, which seek to ensure some due process standards for consumers.  The PayPal provision also states that for claims of $10,000 or less, "you or PayPal may elect to have the arbitration conducted by telephone or based solely on written submissions," and "PayPal will pay all filling, administration, and arbitrator fees associated with the arbitration."   For larger claims, if the consumer is "able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, PayPal will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. "

 PayPayl clearly wants to prevent any class actions, while seeking to insulate itself from challenges to its arbitration provision based on unconscionability or similar contract defenses.  It knows that nearly no one will take the time to find the directions for opting out, let alone send the required letter in the mail to do so.  Still, I wonder whether individual consumers really care that much about preserving class action rights?  Would you pay more for a good or service in order to preserve your right to join a class action if a dispute arises (not that it is clear that companies pass on savings from precluding class actions to consumers through better prices)?  Or would you be just as happy calling or e-mailing the company to get assistance (provided, of course, that it's customer service department does its job)?  

The key question is how to preserve consumers' access to a remedies if something goes wrong with a purchase.  Ultimately, this brings me back to my call for creation of cost-effective and reasonable online remedy mechanisms ("ODR")!  

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