A Company That Can’t Make Up Its Mind

Business Conflict Blog by Peter Phillips

I’m a consumer doing business with a company that can’t seem to make up its mind what the right approach is to handling disputes with its customers.

In the first instance, it provides in sort-of fine print that, if I have a beef about my subscription to its publishing products, I should sue them in New York: These Terms of Service have been made in and shall be construed and enforced in accordance with New York law. Any action to enforce these Terms of Service shall be brought in the federal or state courts located in New York City.

In the second instance, however, it provides in much finer print that, if I have a beef about my purchase of one of its non-publishing products (tours to exotic places), I have to arbitrate pursuant to procedures that it chose, and (by virtue of my purchase itself) have waived the right to sue as well as certain other legal rights, such as the statute of limitations:

Arbitration and Waiver of Trial by Jury: You agree to present any claims against us within ninety (90) days after the Tour ends and to file any suit within one (1) year of the incident, and you acknowledge that this expressly limits the applicable statute of limitations to one (1) year. In lieu of litigation and jury trials, each of which is expressly waived, any dispute concerning, relating or referring to this Participation Agreement, the brochure, or any other literature concerning your trip or the Tour shall be resolved exclusively by binding arbitration in New York City, New York, according to the then existing commercial rules of the American Arbitration Association. Such proceeding will be governed by the substantive law of the State of New York. The arbitrator(s) and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Participant Agreement, including but not limited to any claim that all or any part of this Participant Agreement is void or voidable.

Now, in the first case (suing), I live in New Jersey so I guess it’s not as bad for me as it is for others to be forced to initiate a suit in New York state or federal court. But this is a digital subscription. I have accessed this publishing product in San Francisco, London, Prague, Nigeria, Paris, and lots of other places. If I lived there, it seems kind of unfair that I would have to file a lawsuit in an American court located in New York City.

And as for the second case (arbitrating), I still have to get my tail into New York City. And to add to my problems, any claim I have that this arbitration agreement (which, again, I had no idea I entered into) is unfair or unenforceable has to be brought before the very arbitrator who I claim I shouldn’t be in front of. As a lawyer, I recognize this as a “delegation provision.” As a travel nut, I understand it’s a “gotcha,” six ways to Sunday.

So this one company forces me to sue in one instance and forbids me to sue in another. And nowhere to they say what I would have thought was the easiest thing of all:

If something goes wrong, call us up or email us and we’ll try to fix it. We make our money from having satisfied customers and we’re going to do our best to keep you as a customer. If you’re dissatisfied with our offer to fix, however, and if you decide to take the matter to court or arbitration, and if the court or arbitrator says we owe you more than we offered you in the first place, then we’ll pay you triple the amount awarded, plus the costs of your filing the case and the reasonable fees of your attorney.

Of course, that’s problem-solving, isn’t it? And we wouldn’t want to stoop that low, would we?

P.S. The company is The New York Times.


F. Peter Phillips

F. Peter Phillips is a commercial arbitrator and mediator with substantial experience providing consultation on the management of business disputes to companies around the globe. A cum laude graduate of Dartmouth College and a magna cum laude graduate of New York Law School, Mr. Phillips served for nearly ten years… MORE >

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