Making Sense of Airbnb’s Binding Arbitration Terms

On May 19, 2016, Airbnb demanded all of its U.S. users to agree to its new Airbnb Terms of Service.

If you click “I disagree” instead of “I agree,” you can no longer have access to Airbnb.

disagree

So, if you want to use the tool that disrupted the hotel industry, be aware of some significant changes to your rights and protections.

1. No More Airbnb Host Protection Insurance

Airbnb no longer offers its Airbnb Host Protection Insurance Plan of $1 million in coverage.

Whether you are a host or a guest, you now need your own insurance if you want to be insured against damage claims.  Scope of coverage will be subject to your home or renter’s insurer’s policy and exclusions.

2. No Access To Courts, Only Binding Arbitration

If you have a dispute with Airbnb, you must use arbitration with the American Arbitration Association (AAA) to try to resolve your claim.

AAA for arbitration is becoming somewhat like what AAA (American Automobile Association) roadside service is for cars, but for businesses.  It is a form of insurance against a headache – here, rather than avoiding being left stranded with a flat tire, it is avoiding going to court or defending against class action lawsuits.

Arbitration is an expedited dispute resolution procedure where a neutral appointed lawyer or retired judge review submitted evidence and make a binding decision that will be court-enforced.

AAA for arbitration was initially a place for business to business disputes, but over the past decade, businesses are starting to demands consumers use the process, as well.

If you, as the host or guest, have a claim against Airbnb, you will have to send in a notice of demand for arbitration to Airbnb and AAA.  There is a $200 filing fee, which Airbnb says it will cover in certain circumstances.

Arbitration is intended to be a simple, quick and hopefully fair alternative to the court procedure.  Here is how Airbnb approaches AAA arbitration:

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Surprises In Healthcare Coverage For 2016

This past Sunday’s Parade article, 12 Tips to Get Your Best Healthcare in 2016, provided surprising news about where and how to get the best healthcare.  The suggestions consisted of employers encouraging you to go overseas for surgery, going to a corporate hospital or paying yourself.

For example, if you work for Lowe’s or Wal-Mart, then the corporation may have relations with particular hospitals where procedures can be covered, or discounted.

Some employers may incentivize you to engage in what is called “medical tourism,” where Americans travel to developing countries for procedures, stay in luxury hotels and end up paying a fraction of what they would have for just the procedure in the U.S.

Lastly, in the event you are priced out by the changes in plans and premiums and coverage (because the health insurance companies retained that power and are unrelated by State Commissioners), you may have to take a self-insured or Health Savings Account route to cover your care in the U.S.

For those residing in Washington state, here are two resources to use in comparing healthcare insurance options:

  1. Washington Health Plan Finder
  2. Washington Health Benefits Exchange

Copyright 2015 The Filutowski Law Firm, PLLC. Disclaimer: This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued.

7 Truths About VW and U.S. Emission Standards

As a satisfied VW owner the past 6 years, it is incumbent for me to make sense of the frenzy surrounding VW’s “CleanDiesel” vehicles and the EPA’s findings of its emissions.

1.  Yes, VW programmed its diesel cars to cheat at emissions testing. In 2014, university scientists hired by the International Council for Clean Transportation tested three diesel vehicles for their nitrogen oxide (NOx) emissions: VW Passat, VW Jetta and BMW X5.  Only BMW was below the U.S. standard.  The VW vehicles produced up to 40 times more than the national standard.  The scientists discovered VW’s software triggered a valve to filter the pollutants at the tailpipe only during emissions tests.

The valve interferes with fuel efficiency, which likely is the greater motivator for a consumer in its car purchase decision-making process.  ICCT reported its findings to the Environmental Protection Agency in 2014.

2. EPA cites VW violated U.S. Clean Air Act. This month, EPA issued a release of its verified findings that VW’s “cleandiesel” vehicles perform 40x below the national standard.   EPA has also issued a Notive of Violation to VW of its violations of the U.S. Clean Air Act.

The following VW diesel models may be affected by the software trigger: Jetta (MY 2009 – 2015), Jetta Sportwagen (MY 2009-2014), Beetle (MY 2012 – 2015), Beetle Convertible (MY 2012-2015), Audi A3 (MY 2010 – 2015), Golf (MY 2010 – 2015), Golf Sportwagen (MY 2015), Passat (MY 2012-2015)

3. Nitrogen oxide (NOx) emissions are bad, but cars contribute only 5% to total NOx emissions.

Source: Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2013.

U.S. Nitrogen Oxide Emissions, By Source

NOx is the emission of particulates the can cause harm to human health and the earth’s ozone layer.

4. VW diesel owners love the mileage and quality of the vehicle.  

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Government Tries To Help Students Select A College

The U.S. government has launched a database of colleges operating within the country to help students researching colleges.  The Department of Education launched the U.S. college database, which offers a type of scorecard.  It provides information so that the student can compare colleges more efficiently and make a decision on where to go for a higher education.

Most prospective students consult the infamous U.S. News and World Report College Rankings.  However, this database, is not about rankings.

It is about data.  And the decision is up to the consumer, the student.

 

The database features:

  • College Scorecard
  • Net Price Calculator Center
  • College Navigator
  • CATC
  • 90/10 Information
  • State Spending Charts

Through utilizing the database, the student may find that other variables, other than ranking, may influence their decision: such as affordabilityjob placement data and statistics upon graduation, etc.

Copyright 2015 The Filutowski Law Firm, PLLC. Disclaimer: This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued.

 

 

U.S. Follows World With Credit Card Chip

Finally the U.S. is prioritizing consumer credit card security by adding a pin-protected chip to all new credit cards.  The chip is an extra security measure to store consumer data.  The original black swipe strip on the card is very old technology, which inherently lacks the necessary security protection consumers need in today’s world of tech hackers.  Signature verification is rare, and copying a signature on the back of a card is easier than stealing a pin to a chip.

According to the article in The Seattle Times, in 2012, credit card fraud cost banks $1.74 billion in reimbursing consumers’ for identity theft.

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DropBox Arbitration and What It Means For You

Meeting of the minds online in terms and conditions, dropbox arbitrationHow many relationships are you in? Probably more than you can keep track of. Don’t worry! I am talking about the consumer-business relationship!  Yes, you are in countless relationships with businesses.

Every time a consumer engages in a transaction with a business (e.g., clicks on a website, buys an iPad, attends a Mariner’s baseball game, etc.), there is a relationship.  With a relationship, there are expectations, and promises.  For example: You will not run onto the baseball field at a Mariner’s game, you will not disrupt the other patrons’ enjoyment, in exchange for the Mariner’s agreeing to play the game and offer you a seat and entertainment.

Promises and expectations are set with, at least some, meeting of the minds.  The definitive legal term, “meeting of Click and Accept Terms and Conditionsthe minds” means you understood the expectations from the relationship.

The issue in the mobile Internet age of click and accept, is — was there indeed a meeting of the minds to the corporation’s “Terms and Conditions”?  Most courts say, yes.  As such, you agreed to the arbitration clause within the terms and conditions.  Say what?  Let’s take a look at one such arbitration clause.  Let’s look at the popular cloud, Dropbox and its arbitration clause.

Dropbox Arbitration – where is it and is it so bad?

The Dropbox Arbitration clause is located in the Terms of Service page.  To get there from the Dropbox homepage, scroll to the bottom of the page and click on the hyperlink “Privacy.”  Make sure you are then on the Terms of Service page.  Scroll down a bit until you arrive to the subheadinDropbox Arbitrationg “Resolving Disputes.” You will find:

Resolving Disputes

Let’s Try To Sort Things Out First. We want to address your concerns without needing a formal legal case. Before filing a claim against Dropbox, you agree to try to resolve the dispute informally by contacting dispute-notice@dropbox.com. We’ll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or Dropbox may bring a formal proceeding.

OK, not bad.  Dropbox is open to resolving the dispute.  I bolded and underscored their email for you above, to make it clear where you can try to reach a human at Dropbox.  A human who may care to try to fairly resolve your dispute.  However, if that does not work out, Dropbox says:

We Both Agree To Arbitrate. You and Dropbox agree to resolve any claims relating to these Terms or the Services through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.

Hold on!  You may be thinking – Binding?  Final?  Who said so?  Well, your gut reaction is fair. And, if you are so inclined, you can opt-out, Dropbox says:

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Student Arbitration Illegal Under Proposed Law

Student arbitration is a way that many private, for-profit colleges want any and all disputes be resolved between the college and students.  The student arbitration clause is found in enrollment agreements.  The clause is usually buried among the pages of single-spaced text, and the pressure of an enrollment advisor to get the documents signed.  Who has time to read all the fine-print?  Especially eager soon-to-be college students?  College Enrollment Agreements and Arbitration Clauses

Student arbitration silences students

Reports indicate that these student enrollment agreements are very unfriendly to students. For example, national, for-profit Corinthian Colleges was preying on potential students, by encouraging them to take out Title IV federal student loans to attend their sham colleges.  After some investigations and lawsuits by the federal government (because the students were bound to arbitration, only), Corinthian reached a deal with the Department of Education, and shutdown and filed for bankruptcy in April 2015.  Now 78,000 former Corinthian students are reeling for recourse, such as loan forgiveness.

In response to this adverse effect of student arbitration clauses, a couple Congresspeople  have proposed a federal bill that would prohibit colleges from requiring student arbitration of any and all future disputes.

Class Act of 2015

The proposed law is the Court Legal Access & Student Support (CLASS) Act.

CLASS Act, a nice acronym for education, and phrase for the objective of the proposed law: for-profit colleges and other education institutions conducting business with integrity and respect for the constitutional rights of its constituents.  Namely, respect the students’ rights to a jury trial to resolve any dispute concerning their federally protected class.

Federal Senate Bill 1122: Court Legal Access and Student Support (CLASS) Act will add some limiting language to the Higher Education Act of 1965:

‘‘The institution will not require any student to agree to, and will not enforce, any limitation or restriction (including a limitation or restriction on any available choice of applicable law, a jury trial, or venue) on the ability of a student to pursue a claim, individually or with others, against an institution in court.’’

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Harassing Collection Agency Found Liable for Big Damages

being harassed by a debt collection agency?

The Fair Debt Collection Practice Act (FDCPA) made headlines this week as a jury in Missouri awarded one woman $251,000 in FDCPA damages for being wrongfully pursued by Portfolio Recovery Associates, a debt collection agency.  The extreme of this award is that the amount pursued was just over $1,000 for a past due credit card bill.

The counter extreme is that the debt collection agency was pursuing the claim in a harassing manner against the wrong person, Maria Guadalupe Mejia Alcantara, for 15 months.  Ms. Alcantara, in Kansas City, Missouri, was not the debtor — rather, a man in Kansas City, Kansas was the debtor.

The jury awarded an additional $82.9 million as punitive damages for Portfolio’s harassing prosecution of the claim.

Get the harassing collection agency to owe YOU.

The FDCPA provides for up to $1,000 per violation of the Act plus attorney fees and costs.  However, there are some general damages claims a debtor can make, such as emotional distress and pain and suffering, which are claims based in state law, that may not have a statutory limit.  Punitive damages are not available under the FDCPA, but are available in certain states (not in WA).

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Consumer Arbitration – Only Option With Some Banks, CFPB Finds. Can Arbitration Help The Consumer?

Earlier this year the federal government investigated consumer arbitration and banks.   The Consumer Financial Protection Bureau (CFPB) issued a lenghty report of its investigation between 2010-2012, concluding that many consumers do not know they are subject to arbitration or understand the process.  So, this post will briefly discuss arbitration and how it may help the consumer.  For more details about the CFPB report, in easy-to-understand language, read this post.

Imagine your bank pissed you off (may not be to hard for some of us to imagine this).  Let’s say your bank charged you a fee or interest rate you did not agree to.  You feel wronged.  Rightfully so.  And you want your money back.  Even if it is “just” $10; it is your $10.  Maybe it is an even larger sum, $1,000.  How do you get a bank to admit to doing something illegal and reimbursing you the money owed and paying your legal costs?

Class Actions – A Thing of the Past

Class actions used to be the go-to approach.  Many people, same problem, one lawyer or legal team, and a payout in a few hundred months.  But now, class actions are being written into history, by the up-and-coming mandatory, private arbitration.

Consumer Arbitration For Bank Customers

consumer arbitration, consumer arbitration in banks, banks and consumer arbitration

Consumer Arbitration Hearing Example

Arbitration is a “mini trial,” but with no courthouse, judge, or jury.  Arbitration has some rules of evidence, lawyers can participate, and a third party appointed by the disputing parties listens to the case and makes a decision.

The party with the issue (whether it be a complaining consumer or a debt-recovery seeking bank) can initiate the arbitration and a resolution should occur within a year.

Now, you may be thinking: who would even think of pursuing a bank in arbitration over $10.

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Privacy for a Price, AT&T Says – and It Is Legal

Today it was announced that AT&T will be offering a fiber optic internet service for  $70.00 per month.  By using its internet, a customer agrees to have its surfing history  tracked, stored by AT&T and sold to third-party advertisers to produce targeted ads to the consumer.   A customer may opt-out, but for a price of $29.00 per month.  Analysts of online privacy are concerned that AT&T’s latest “privacy policy” conditions will discourage customers from opting out.

With the dawn of social media networks, specifically Facebook, Twitter and Instagram, and most recently, the selfie sticks for the infamous “selfie” photos on smartphones, we have seen a dramatic shift in the world’s behavior and definition of personal privacy.  We don’t really value it anymore.  For example, many posts on Facebook are now public.

Public is What Private Used To Be

The default setting for most uploads to Facebook appear to be public, unless the user interferes and sets the post to a different setting.  If you see the global icon under your status, cover photo, profile picture, photos of your family, tags of you in another friend’s post,  then anyone in the world (with or without Facebook) can see your post.

Yet, this does not seem to phase users like it used to when Facebook first hit the web and was met with several class action lawsuits (though some recent users have brought a class action against Facebook for scanning private messages).

Over the past couple years, we have quickly become accustomed to, and now, more appropriately described as, addicted to, being seen, heard and not forgotten online;  the opposite of living in privacy.  So, AT&T is responding to this social trend (also can be legally referred to as a “social norm”), by stating in its privacy policy that it scans users’ browser use and sells it to advertisers.

Sharing” Is The New “Social Norm”

A good legal case example to look at that redefinied “social norm” is iPhone Application Litigation.  A few years back, some iPhone users were concerned about their mobiles being tracked by apps.  Remember a time when you felt a pit feeling in your stomach when you hit “ok” to all your data being shared (more or less) before downloading an app?  Now you don’t think twice.  Well, a few years back, concerned iPhone users brought a legal action against Apple in iPhone Application Litigation, 844 F. Supp. 2d 1040 (2012), alleging the tracking done by apps violated the individuals’ California Constitutional right to privacy.  The 9th Circuit Court of Appeals disagreed, citing that even if 1) the customers had a legally protected privacy interest, with 2) a reasonable expectiation of privacy, 3) Apple’s conduct did not amount to a serious invasion of the protected privacy interest.  The court said Apple’s conduct was not an egregious breach of the social norms underlying the privacy right.

So there you go.  The tracking and sharing is no longer egregious in our online culture.

Consequently, with there being no state or federal statute that specifically makes it illegal for a corporation to charge a customer to protect the customer’s privacy, we we will watch AT&T and others continue to profit from those who don’t care about privacy, and even more, from those who do.

Copyright 2015 The Filutowski Law Firm, PLLC. Disclaimer: This page is intended for general information purposes only and should not be construed as legal advice or legal opinions on any specific facts or circumstances. An attorney-client relationship is not created or continued.