So how weird is this? The Daily Grill, a very fancy and pricey steak house, encourages people to buy gift cards and make reservations on line. (O.k., nothing weird yet, I admit.) BUT, on their website is a bunch of super dull prose under the heading “Legal Notices.” (For steak?) And, as with so many other corporations, the Legal Notices include a provision for “Resolution of Disputes.”
The usual – the consumer has to arbitrate with a company picked by the corporation, the arbitration clause shortens the statute of limitations to a year (was THAT really necessary?), imposes a secrecy (“confidentiality”) provision, and it bans consumers from bringing class actions.
A restaurant with a Forced Arbitration clause. What’s next? If fancy steak houses want to strip their customers of their constitutional rights, will street vendors selling hot dogs and egg rolls be next? Will a bus driver hand me a card saying “by occupying a seat, you consent that any dispute we may have will be subject to forced arbitration”? Is there any ending point to corporations feeling empowered and entitled to insist upon taking away peoples’ rights?
It’s a particular creepy notion, in that I doubt that many of us think “well, it’s a steak house, so I better lawyer up.” What in Pluto’s realm are these guys worried about? Class actions? Is there some history at the Daily Grill of them wiping out giant office parties with mass food poisoning? Have they gotten in trouble in the past for misrepresenting something on the menu? (Maybe the 16 oz. New York Strip is really 14 ounces?) As my kid would say, “what NOW?”
One particularly ugly part of this provision – The Daily Grill is saying that just by LOOKING at its website, you’ve supposedly “agreed” to give up basic constitutional rights such as the right to trial by jury. You don’t sign anything, you don’t say “I agree to the terms and conditions.” You just look at this, and they think that means they can infer consent. If Corporate America can define “consent” and “agreement” to be inferred from silence from looking at something, then consent has become a truly mongrelized, meaningless notion.
On the one hand, this may just seem like a ridiculous provision that no one should worry about. But another way of looking at it is how Corporate America, emboldened by a string of arbitration-loving decisions from the five member conservative majority of the U.S. Supreme Court, has been racing to make a basic rule of operation that they don’t want to be part of the American legal system.
They don’t want to be accountable if they do anything to hurt you.
After reading this, I have a new suggested motto for The Daily Grill: “If we accidentally kill you with food poisoning after you reserved your table on-line, we’re going to try to rig the system against your family and keep it all quiet.” Who wants to eat at a restaurant with THAT motto?
This article was originally printed on Public Justice on November 4, 2013. Reprinted with permission.
About the Author: F. Paul Bland, Jr. is a Senior Attorney at Public Justice since 1997, is responsible for developing, handling, and helping Public Justice’s cooperating attorneys litigate a diverse docket of public interest cases.