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Microsoft to Consumers: Don’t Even Think About Suing Us!

By Gary E. Mason | 

Microsoft has joined the ever growing list of United States companies which have  forced consumers who use their products and services to give up their rights to sue in court or join a class action.

In a blog posted on May 25, 2012,  Microsoft announced that it had “updated” its user agreements for all its consumers products and services. This so-called update requires consumers to bring unresolved claims against Microsoft to arbitration or small claims court, but not as part of a class action.  Put plainly, this means that if something happens to your Xbox or any of your Microsoft products, you can't sue Microsoft. Nor can you join in a class action suit targeting Microsoft.

Microsoft is certainly not the first company to add arbitration and class action waiver provisions to the Terms of Service.  As Microsoft says in the blog, “Many companies have adopted this approach, which the U.S. Supreme Court permitted in a case it decided in 2011.”  We, of course, know exactly what case that is – the notorious AT&T Mobility v Concepcion.

Sony was among the first electronic publishes to introduce a “ no sue” clause as part of its terms of service in September 2011, a move quickly followed by Electronic Arts. Now Microsoft has  joined the post-Concepcion arbitration provision bandwagon.

These new terms have been drafted by Sony, EA, and scores of other companies for the same reason -  arbitration is the ticket to corporate immunity from unfair and deceptive practices. Rather than having to face thousands of consumers  represented by attorneys, arbitration is designed to make consumers face a corporation alone and have their grievances determined by an arbitrator paid for by the corporation.  In short, arbitration is designed to deprive you of your fundamental right to a trial by jury. This right, enumerated as the VII Amendment to the Constitution, was explicitly designed to prevent the kangaroo court that arbitration is meant to be.

Further, arbitration rulings are final, not appealable and often secret.  Without any means of review by a court, or public awareness, corporations that force you into mandatory arbitration can steamroll the consumer without worrying about damaging their reputations.

Microsoft claims that with its new approach, consumers should expect their complaints to be resolved faster than before. We suspect that is likely, but not for the reasons Microsoft asserts. In reality, consumers will not bring claims at all. With no attorney willing to represent their interests, and facing the intimidating prospect of having to fight a corporation alone, consumers will quickly realize that however “fast” the resolution of their claim will be, it will not likely justify the actual time they will need to spend to obtain the resolution they seek. In short, corporate America is setting up a system to deprive you of your rights and institutionalize a corporate license to steal.  Better still, without any public disclosure of arbitration proceedings, you will never know. Very convenient. 

Want to learn more about forced arbitration provisions and how you can fight back?  Visit www.consumerscount.org.