california terms-of-service arbitration
Impossible-to-satisfy requirements for opting out of arbitration
<p>I recently started using an online service whose Terms of Use include a mandatory arbitration provision. The terms include the statement</p>

<blockquote>
  <p>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."</p>
</blockquote>

<p>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.</p>

<p>This leads me to two questions:</p>

<ol>
<li>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?</li>
<li>What are the appropriate state or federal agencies to notify of Terms of Use that seem hostile to the consumer?</li>
</ol>

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

<p>An arbitration clause under <a href="https://www.law.cornell.edu/uscode/text/9/chapter-1" rel="nofollow noreferrer">9 USC Ch. 1</a> 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, <a href="https://www.law.cornell.edu/uscode/text/9/3" rel="nofollow noreferrer">9 USC 3</a> says that once the court is</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p><a href="https://www.law.cornell.edu/uscode/text/9/4" rel="nofollow noreferrer">9 USC 4</a> states that</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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.</p>
