The notice it takes to evaporate a jury trial right is minimal. Blind people, by not asking the right questions of an unscrupulous lender, “consented” to arbitration. Envelope stuffers announce that by continuing to use credit cards or other services, you “consent” to arbitration. Generally, you are on notice of an arbitration plan if you sign papers (whether you can read them or not) or if you get your mail (whether you open it or not).
A case illustrating how it is your fault, even though Big Company failed to send the document containing your “consent,” is Schafer v. AT&T Wireless Services from Illinois. Ms. Schafer ordered a cell phone. It came in a box, which was supposed to include the AT&T Wireless Welcome Guide. All the terms and conditions of her cell phone usage were in the Welcome Guide. The problem was her box didn’t have a Welcome Guide. The lack of instructions didn’t matter to Ms. Schafer, who knew how to activate her phone. But according to Judge Foreman of Illinois, it was a careless thing to do, activating a cell phone without reading all the terms and conditions
Judge Foreman, maybe a person who never could figure out how to use his VCR, just couldn’t credit Ms. Schafer’s claim that she could activate her phone without the Welcome Guide. Besides, Ms. Schafer conceded that she received the box. The box said the terms and conditions were in the Guide, so if AT&T neglected to enclose them, well – she should go get them. She just had to find an AT&T salesperson, or maybe, if she called AT&T and the menu let her talk to a real person, that person could send a Welcome Guide. When she didn’t do these tasks, she “assumed the risk” of accepting whatever terms were in the document. “Assuming the risk” is an interesting way to put it. She was lucky she only consented to arbitration, and wasn’t required to give up her firstborn, to use her cell phone.
So, since you needn’t read a contract to assume the risk of its contents, clever companies could include, with their consumer products, instructions on activation by notice that to receive additional important terms and conditions, you could take more steps. Then, they could really make it like a scavenger hunt, the last step staying on hold for an hour hearing why this process improves service to you, their valued customer.
There is one recent surprise in the march toward arbitration without notice. One court, in Campbell v. General Dynamics, decided an e-mail announcement to an entire workforce implementing a new ADR policy was inadequate. Unlike what Ms. Schafer was supposed to do, a General Dynamics employee who received the e-mail only had to click on two links to learn: first click – the new policy; second click – the complete program. No one had to signify receipt. Mr. Campbell alleged in an average day he was “inundated with between 10 and 100 e-mails,” and no one told him that he should read them to continue to understand changes in his employment terms. He did not click the links and had no clue about required arbitration. The court held that a mass e-mail can be adequate communication. But this Court placed responsibility on the employer to be sure that an e-mail changing employment terms would actually be read. Not surprisingly, it found there were easy ways to ensure such reading: (1) require the employee to check a box confirming receipt and/or reading, or (2) put language in the original e-mail that the links contain an arbitration agreement waiving the employee’s jury trial right.
Placing responsibility for adequate notice on the party desiring to alter the relationship seems right. If the company doesn’t give fair notice, it is the one which should “assume the risk” of the alteration having no effect.