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Wednesday, March 21, 2012

"When you subscribe to Netflix . . . you cannot bring a class action lawsuit"

I've been loving the series of DIRECTV "when you get cable" commercials (such as how if you sign up for cable you'll either "wake up in a roadside ditch" or you'll be unable to "stop taking in stray animals").  Having recently added a third child to my family, I'd have to say may favorite is the commercial explaining how if you sign up for cable, then you will have a grandson with a dog collar:


My colleague Derek Muller has also recently alerted me to a similar fact: if you sign up for Netflix, then you waive your right to a class action lawsuit (Sony did something similar for its Play Station Network a few months back).  

This new provision in Netflix's terms of service contains both an arbitration provision and a class action waiver - an increasingly popular new tool in the wake of the Supreme Court's decision in AT&T Mobility v. Concepcion.  In a previous post (and in a recently posted piece on SSRN), I raised the possibility that class action waivers may still be held to be unconscionable where a company fails to provide its customers with the type of pro-consumer provisions - provisions that provide alternative mechanisms for plaintiffs to bring low-value claims - that AT&T had incorporated into its own agreement.  

I don't have a Netflix login so I can't tell if Netflix has incorporated similar provisions into its new arbitration agreement.  But I'm guessing it hasn't (feel free to correct me in the comments) and is therefore another example of the type of new arbitration agreements we're likely to see in the wake of Concepcion.  And, as a result, courts are going to have to figure out how to interpret Concepcion quickly - unless, of course, everybody just decides to get cable.

Posted by Michael Helfand on March 21, 2012 at 03:26 PM | Permalink


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Brilliant. What other canonical cases can we do this with? Maybe Tompkins deciding to take a walk along the Erie RR tracks? Marbury: If your cable goes out, you may decide you want to be a federal magistrate.

Posted by: Howard Wasserman | Mar 24, 2012 11:59:29 AM


I love it. You should really consider turning that into a video for torts (or getting your students to take a crack at making the video).

Posted by: Michael Helfand | Mar 21, 2012 8:36:13 PM

I don't teach torts, but I thought this would be a nice version of the commercial for 1Ls:

"If you have cable, you will wait for the cable guy. If you wait for the cable guy, you will get bored and take a train to Rockaway Beach. If you take a train to Rockaway Beach, you will be close to another train pulling out. If you are close to that train, a man with a package of fireworks will be running to catch it as it pulls out. If he jumps, he will be assisted by a guard on the train and a guard on the platform. If they assist him, they will dislodge the package. If the package is dislodged, it will fall on the tracks and explode. If it explodes, it will cause scales to fall and injure you. If you are injured you will sue the Long Island Railway. If you sue the Long Island Railroad, Judge Cardozo will write an opinion that every law student has to read. If they have to read it, they will hate you. Don't let law students hate you, get DirecTV."

Posted by: Jeff Lipshaw | Mar 21, 2012 8:31:30 PM

This has nothing to do with the substantive part of your post, but I love these commercials too--and, having also added a baby to our family recently (and thus being immersed in children's books), they remind me of the "If You Give a Mouse a Cookie" series. I guess it says something about our society that random cause-and-effect consequences can sell both children's books and a television service!

Posted by: Josh Douglas | Mar 21, 2012 4:22:20 PM

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