On April 15, General Mills added language to its website which purported, “in exchange for benefits, discounts,” to subject consumers’ claims for use of General Mills products to arbitration and a class-waiver. General Mills, notably, was free to sue in court at will. When the Times noted the change, General Mills reversed course, stating:
[W]e never imagined this reaction. Similar terms are common in all sorts of consumer contracts, and arbitration clauses don’t cause anyone to waive a valid legal claim. They only specify a cost-effective means of resolving such matters. At no time was anyone ever precluded from suing us by purchasing one of our products at a store or liking one of our Facebook pages. That was either a mischaracterization – or just very misunderstood.
Like Jeremy Telman, I found the emphasized sentence to be mysterious. There are only two ways to square the historic facts with “mischaracterization — or just very misunderstood” claim:
(1) General Mills thinks that “suing us” and “brining a claim in our bespoke arbitral forum” are the same thing; or
(2) General Mills believes that liking “one of our Facebook pages” isn’t the same as “joining our sites as a member [or] joining our online community.”
The first claim is sophistry, the second is frivolous. Roderick Palmore, GC of General Mills, Chicago Law grad, and head of compliance, had a bad week.
But what’s triply irritating about this whole saga is the lack of precision in the Times and elsewhere as to what, exactly, is wrong with the terms. General Mills is right to point out that many consumer contracts contain arbitral class action waivers, though many do not. Contrary to the other speculation, there’s nothing per se illegal about provisions which shift costs in litigation. General Mills’ arbitration proceeding is actually quite generous about cost shifting, waiving a filing fee for disputes under $5000, and paying for the arbitrators themselves. Though proceduralists generally recoil from arbitration trumping procedure, what’s obviously at stake here isn’t individuals losing “their” right to sue, it’s class action lawyers losing their right to act as private attorneys general in quasi-regulatory cases. The ultimate question here – are class actions in federal court required for consumer protection – is harder than the commentariat has acknowledged.
But there is a legal problem with these particular Terms. I don’t think they create a contract which binds consumers. Here’s the now-deleted triggering paragraph:
In exchange for the benefits, discounts, content, features, services, or other offerings that you receive or have access to by using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering, you are agreeing to these terms.
The problem is that most people who participate in such activities are probably not actively required to click to agree to these terms, and consequently aren’t bound to...
Via Concurring Opinions