Possible strategy to opt out of binding arbitration

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I just received a document in the mail for a bank account -- it states that "continued use of this account or endorsement of our signature card denotes acceptance of the binding arbitration provisions listed herein."  

Since they think they can pull these shenanigans, I decided to send them a letter with similar shenanigans:

"I am enclosing a signature card as requested but do not agree to the entirety of the terms of the agreement with which it is associated.  Specifically, I hereby give notice that I am opting out of the arbitration clause in its entirety, ad infinitum.  My continued use of the account without closure entails acceptance of these terms.  Thank you for your attention to this matter."

I'll let you know how it works...  

FW lawyers (or wannabe lawyers):  Could this be a strategy to opt out of arbitration provisions with other corporations?

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my response to bank lawyers
You say I accept the new terms if 1 AND 2 happen. 1 did not happen, here is my evidence.
you c... (more)

imbatman (Jan. 06, 2017 @ 10:38a) |

Brilliant!  Please try one or all of these.  Then sue (or arbitrate) if they don't follow through.

A great article that ... (more)

phisher4 (Jan. 06, 2017 @ 11:08a) |

Quick update:  It has been about one month.  No response from the bank -- I guess they have accepted my terms.

phisher4 (Feb. 06, 2017 @ 7:48p) |

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Would be interesting if many/most consumers tried this. Class instead of individual opt out, perhaps by sending form terms.

What about clickwrap style consent linked to cookies stored by sites?

Anyone know when terms kick in? I have a false advertising issue with Verizon and would rather go to small claims. Don't think arbitration applies to device sales.

Is bank contractually required to continue to offer said account to you? Hopefully this is not your primary banking relationship as you might just be getting closure notices soon.

But thanks for taking one for the team, OP.

If they're paying attention they'll say "Too bad you don't agree. We're closing your account."

How would you know how this works out unless you opt to sue?

SummerSoFar said:   Is bank contractually required to continue to offer said account to you? Hopefully this is not your primary banking relationship as you might just be getting closure notices soon.

But thanks for taking one for the team, OP.

  Not a primary banking relationship, so im just playing around...  I'm also anxious to see if the bank will close the account.  Will keep you posted.

I suppose that the only real test as to whether this works is to sue them, which I'm not planning.

phisher4 said:   I just received a document in the mail for a bank account -- it states that "continued use of this account or endorsement of our signature card denotes acceptance of the binding arbitration provisions listed herein."  

Since they think they can pull these shenanigans, I decided to send them a letter with similar shenanigans:

"I am enclosing a signature card as requested but do not agree to the entirety of the terms of the agreement with which it is associated.  Specifically, I hereby give notice that I am opting out of the arbitration clause in its entirety, ad infinitum.  My continued use of the account without closure entails acceptance of these terms.  Thank you for your attention to this matter."

I'll let you know how it works...  

FW lawyers (or wannabe lawyers):  Could this be a strategy to opt out of arbitration provisions with other corporations?

  Sorry, but binding arbitration clauses are generally favored under the law.  Courts have rarely voided them, and only under the most egregious and unconscionable situations. Your options are to agree or close your account, you can't "opt out."     

Generally these types of provisions are enforceable. Your reply clearly indicates to them that you accepted a modified version of that contract (terms)...and as mentioned above...if they are paying attention they would likely need to notify you that they are closing your account in order to avoid that.

In the clickwrap context, it gets more complicated. But if you ever want to questions clickwrap terms, demand actual proof that you accepted the terms. Its harder than you would think for them to prove that.

brian76 said:   Generally these types of provisions are enforceable. Your reply clearly indicates to them that you accepted a modified version of that contract (terms)...and as mentioned above...if they are paying attention they would likely need to notify you that they are closing your account in order to avoid that.

In the clickwrap context, it gets more complicated. But if you ever want to questions clickwrap terms, demand actual proof that you accepted the terms. Its harder than you would think for them to prove that.

  The clickwrap angle is a really good point.

Really, I can't understand how corporations can just send you addendums to contracts in the mail and say, "We don't need your signature or agreement, you're accepting this.  Period."  

Why not just send a letter saying "You owe us $5000.  No signature needed.  You're accepting this" instead?

SummerSoFar said:   Is bank contractually required to continue to offer said account to you? Hopefully this is not your primary banking relationship as you might just be getting closure notices soon.

But thanks for taking one for the team, OP.

  I was thinking the same thing.  If they don't address the issue or close the account can we then say that they Accepted the OPs terms by continuing the relationship?

phisher4 said:   
brian76 said:   Generally these types of provisions are enforceable. Your reply clearly indicates to them that you accepted a modified version of that contract (terms)...and as mentioned above...if they are paying attention they would likely need to notify you that they are closing your account in order to avoid that.

In the clickwrap context, it gets more complicated. But if you ever want to questions clickwrap terms, demand actual proof that you accepted the terms. Its harder than you would think for them to prove that.

  The clickwrap angle is a really good point.

Really, I can't understand how corporations can just send you addendums to contracts in the mail and say, "We don't need your signature or agreement, you're accepting this.  Period."  

Why not just send a letter saying "You owe us $5000.  No signature needed.  You're accepting this" instead?

  I think they can do this because you already agreed to let them make changes when you signed the first contract.  Isn't there usually boilerplate that says something like the following.
"We reserve the right to change the terms at any time.  You will be notified of changes"...........  They also usually reserve the right to terminate the contract at any time for any reason.

If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?

adamc said:   If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?
  You can pretty much assume the person that received it has zero authority to do anything accept pass the letter to someone else.  It would be difficult to prove you even sent it.   You could try the following:

  • Have a copy of what you sent.
  • Have some kind of tracking for the letter.
  • Have the original witnessed or notarized. Probably with the changes initialed and dated by notary or witness.

The OP could point to this thread as proof he sent it I guess.

EDIT: I don't think what the OP did will help but I love that he did it.  You never know.

adamc said:   If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?

The only viable solution is to be like one of those "5 on your side" local news reporters and have a camera crew film live as he completely ambushes an unsuspecting, low level bank employee in the parking lot with the amended terms.

Dupe

donotdrinkPBR said:   Dupe
  You're right they are trying to dupe us. lol

adamc said:   If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?
Counterpoint. How would the bank subtantiate the new terms were received and whoever read it (Op) accepted the terms (he didnt)

imbatman said:   
adamc said:   If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?
Counterpoint. How would the bank subtantiate the new terms were received and whoever read it (Op) accepted the terms (he didnt)

  
Because the bank's team of highly paid lawyers will say so and suggest that if OP doesn't like it, they will be happy to work it out with OP's (imaginary) team of highly paid lawyers?

If you really want to test this idea, you need to go for something that really counts and will be immediately testable. "This account remaining open implies agreement with the terms in this letter". One of the following might be amusing....

...."Bank agrees to match all payments dollar for dollar"

...."Bank agrees to forgive all unpaid balances at the end of each billing period"

...."Bank agrees to refer to the account holder as "El Conquistador" in all future correspondence"

...."All future purchases made with the debit card associated with this account will earn 10% cash back"

I will be watching my mail for a good opportunity!

adamc said:   
imbatman said:   
adamc said:   If the account stays open and you found yourself in a situation where you would want to enforce your addendum, how would you substantiate that the addendum was received and actually read and that whoever read it was authorized to accept your terms?
Counterpoint. How would the bank subtantiate the new terms were received and whoever read it (Op) accepted the terms (he didnt)

  
Because the bank's team of highly paid lawyers will say so and suggest that if OP doesn't like it, they will be happy to work it out with OP's (imaginary) team of highly paid lawyers?

  my response to bank lawyers
You say I accept the new terms if 1 AND 2 happen. 1 did not happen, here is my evidence.
you could have closed my account and did not.
 

adamc said:   If you really want to test this idea, you need to go for something that really counts and will be immediately testable. "This account remaining open implies agreement with the terms in this letter". One of the following might be amusing....

...."Bank agrees to match all payments dollar for dollar"

...."Bank agrees to forgive all unpaid balances at the end of each billing period"

...."Bank agrees to refer to the account holder as "El Conquistador" in all future correspondence"

...."All future purchases made with the debit card associated with this account will earn 10% cash back"

I will be watching my mail for a good opportunity!

  Brilliant!  Please try one or all of these.  Then sue (or arbitrate) if they don't follow through.

A great article that speaks to your point:  https://consumerist.com/2017/01/11/your-new-stormtrooper-snuggie...  Check out the last few paragraphs.

phisher4 said:   I just received a document in the mail for a bank account -- it states that "continued use of this account or endorsement of our signature card denotes acceptance of the binding arbitration provisions listed herein."  

Since they think they can pull these shenanigans, I decided to send them a letter with similar shenanigans:

"I am enclosing a signature card as requested but do not agree to the entirety of the terms of the agreement with which it is associated.  Specifically, I hereby give notice that I am opting out of the arbitration clause in its entirety, ad infinitum.  My continued use of the account without closure entails acceptance of these terms.  Thank you for your attention to this matter."

I'll let you know how it works...  

FW lawyers (or wannabe lawyers):  Could this be a strategy to opt out of arbitration provisions with other corporations?

  Quick update:  It has been about one month.  No response from the bank -- I guess they have accepted my terms.



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