Wednesday, June 9, 2021
Arbitration and Amazon's Conditions of Use
Last week, the Wall Street Journal reported that Amazon quietly dropped its mandatory arbitration clause from its Conditions of Use. In fact, the Conditions of Use were updated May 3, 2021. The provision marked “DISPUTES” now states:
Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive any right to a jury trial.
Unfortunately, Amazon doesn’t have prior versions of its Conditions of Use on its website for the sake of comparison, but thanks to the amazing Wayback Machine (the Internet archive), the DISPUTES provision (at least the one updated May 2018) used to say:
Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 208 MC-CSC1, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Quite a difference!
So what caused this change of mega-corporate heart? The WSJ article says that Amazon made the change after plaintiffs’ lawyers “flooded” the company with “more than 75,000 individual arbitration demands” on behalf of Echo users that were suing over privacy claims.
This is just the latest example of how law firms with the resources to do so are leveraging the tools of efficiency to level the playing field made even more lopsided by wrap contracts. This mass-arbitration filing tactic was first discussed on this blog with respect to Door Dash. The big question is, will other companies follow Amazon’s lead?