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I recently started using an online service whose Terms of Use include a mandatory arbitration provision. The terms include the statement

You can opt out of the arbitration and class action waiver provisions set forth above by sending an email from your registered email address on [the service] by contacting us here with the subject line, "ARBITRATION AND CLASS ACTION WAIVER OPT-OUT."

The word “here” is a hyperlink, but it leads to a contact form, not an email address. It is possible to go through the form and eventually submit a message that has the indicated subject line. However, this is not the same thing as “sending an email from [my] registered email address,” so even though the Terms of Use seem to offer a way to opt out of the arbitration agreement, in practice they place requirements on the user that are impossible to satisfy.

This leads me to two questions:

  1. Is there a legally accepted way to opt out of an arbitration agreement without following the exact requirements stated in the Terms of Use? For example, if one were to send a paper letter to the company’s legal department and clearly identify themselves and what they want, is the company obligated to honor this?
  2. What are the appropriate state or federal agencies to notify of Terms of Use that seem hostile to the consumer?

In my particular case, both I and the company in question are located in California.

  • It seems to me you may be overthinking this. I think it's quite possible that the company simply intended to let you opt out by sending a message through the contact form, and the phrase "sending an email" is just sloppy wording. (It's not unusual for non-technical people to erroneously use the word "email" for other forms of electronic communication.) So you may be able to resolve this very simply by just sending a message through the contact form and seeing if you get a confirmation that you have opted out. I would expect such a confirmation to be binding. – Nate Eldredge Sep 30 at 2:53
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    Another possible question: regardless of whether this is an honest mistake or the company trying to be sneaky, how would a court interpret the statement? I think it's very possible they would rule that it should reasonably be interpreted as a request to send a message through the contact form, and that if you did so, you have in fact fulfilled the requirements to opt out. – Nate Eldredge Sep 30 at 2:56
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An arbitration clause under 9 USC Ch. 1 is part of a contract, and is predicated on the existence of an agreement to that effect. If a party brings a suit in the courts of the US, 9 USC 3 says that once the court is

satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

9 USC 4 states that

The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

There is a genuine issue of fact which can be litigated in the court system, namely whether you have agreed to the arbitration clause. The court would look at the evidence presented by the opposing party who claims that there is some such written agreement, and that you failed to signal your rejection of that clause. As the opting-out party, you can overcome that argument by providing a copy of a certified letter (return receipt) delivered to the company effectively exercising that option. Other means could work, but certified mail is a generally effective albeit slower way of giving notice. Doing nothing because of a browser or web page problem doesn't constitute rejection of the arbitration clause.

  • Calling it a “web page problem” is a little bit glib—it’s kind of like the company said that “in order to opt out you must send us a letter at this address” and then provided a phone number instead of a mailing address. It’s easy to guess what the company really meant, but I asked my question because I wasn’t confident that a court would find my guess compelling. The last few sentences of your answer address what I was really asking: is sending a certified letter always legally sufficient to opt out? Are there laws or court decisions that confirm that this is so? – bdesham Nov 1 at 17:52
  • Are you saying that this is a deliberate attempt on the part of the company to make it impossible to opt out? The courts treat deliberate deception different from innocent errors. – user6726 Nov 1 at 18:08
  • It’s likely an innocent error, although the terms go on to say that “If you do not opt out properly, you agree to arbitrate,” which seems aggressive when coupled with the nonsensical instructions. – bdesham Nov 1 at 22:52

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