Lurking Mandatory Arbitration Clause for Company that Just. Won’t. Learn.

Posted: August 23, 2016 by Nazim in Arbitration

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The above image pictures the bottom of a box of heavy duty garbage bags sold at Home Depot. Clearly, someone is trying to emulate a shrink wrap agreement, probably to fend off class-actions, since the American Arbitration Association has a carve-out that exempts small claims court actions from arbitration. The problem, both legal and otherwise, is that the agreement is not conspicuous, so anyone could buy the product and never discover the agreement. So, this feels like someone who is just copying legalese without knowing what they’re doing. The reason this is surprising is that Poly-America is no stranger to litigation that finds their arbitration agreements unconscionable (a legal term for bad, not good, terrible, and courts ain’t gonna do any of that). Will they ever learn? Can they?

Hat tip to the good posters in this private subreddit for lawyers (access granted only with proof of professional admission).

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