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Cowboy-hatted goggled Amazon head Jeff Bezos photo, Western District of Washington U.S. District Court seal, U.S. Constitution Article III (judicial system) photo, Amazon logo, Conditions of Use, Internet Archive Wayback Machine logo, Arbitration Acts.

Amazon Covers Up Return of Your Right to Sue Them



By Duane Thresher, Ph.D.          July 20, 2021

As I explained in The Decline and Fall of Amazon, Amazon is the quintessential IT company. And it is now, particularly given the Coronavirus Scare causing an irrational fear of going to stores, the most powerful company in history. Thus for better or worse — mostly worse — Amazon has a huge effect on IT law. For the last 10 years, starting under the Amazon-friendly Obama Administration between 6 and 29 Aug 2011 — as proved by the Internet Archive Wayback Machine — Amazon had taken away your right to sue them and replaced it with forced arbitration, which they controlled. Recently though, between 3 and 7 May 2021, under threat from a now Amazon unfriendly Congress and Administration, Amazon returned your right to sue them, mostly. However, fearing a flood of lawsuits, Amazon covertly announced this change to its customers, via a common and usually ignored "terms of service change" email, only on the evening of 19 Jul 2021, the evening before Jeff Bezos , founder and CEO of Amazon, was all over the (gullible) news for his 9 AM 10-minute tourist "space flight" on one of his rockets, on the anniversary of man first landing on the moon on July 20, 1969 and after which Bezos specifically thanked Amazon customers for paying for it. While this cover up worked as planned, you nonetheless can now sue Amazon. I will tell you why you would — Amazon fraudulently selling you used items at new item prices — and how to do so, without a lawyer.

At the indicated date and time, I received the following email, a common and usually ignored "terms of service change" email:
From: "Amazon.com" ‹store-news@amazon.com›
Subject: Our Terms Have Changed
Date: July 19, 2021 6:10:07 PM EDT

Dear DUANE THRESHER, We wanted to let you know that we recently updated our Conditions of Use. One of our updates involves how disputes are resolved between you and Amazon. Previously, our Conditions of Use set out an arbitration process for those disputes. Our updated Conditions of Use provides for dispute resolution by the courts. Please visit https://www.amazon.com/conditionsofuse to read our updated terms in full. As always, your use of any Amazon service constitutes your agreement to our Conditions of Use. Thank you, Amazon
For years I've thought forced arbitration, a.k.a. mediation, in contracts, which is what "terms of service", a.k.a. "conditions of use", are, were unconstitutional, since they take away your right to use the courts, replacing them with non-court "judges", usually chosen by the more powerful party. In contracts, just because both parties agree — particularly when one party agrees under duress — to an illegal act, does not make the contract legal.

This unconstitutional forced mediation even occurs in court rules. When I was living in Montana, one of the most corrupt states in the U.S., preparing for a case — see Dr. Thresher v. Montana — I was shocked to discover that many Montana court rules required going through mediation before you could file a case in the court. And when I was looking into law schools about that time, I discovered that many, even the top ones, emphasized mediation over real law. This was one of the reasons I decided not to go to law school.

The email from Amazon thus greatly interested me and I decided to investigate.

I first had to figure out a timeline for Amazon's Conditions of Use, i.e. when and how it changed. To do this, I used the Internet Archive Wayback Machine (named after the time machine in the old TV cartoon Peabody's Improbable History, part of the Rocky and Bullwinkle Show), just as I had to prove that Reddit had illegally lied about its corporate address to avoid being sued — see Stock Market Crash Deja Vu: Reddit Violates Securities Exchange Act — and just as has been used in many legal cases (one of the reasons companies are trying to shut down the Internet Archive using bogus copyright arguments). Note that the Internet Archive only records webpages at irregular intervals, so when the webpages changed can only be determined to within a range, often measured in days.

On 20 Jul 2021, the relevant parts of Amazon's Conditions of Use are
DISPUTES

Any dispute or claim relating in any way to your use of any Amazon Service will be adjudicated in the state or Federal courts in King County, Washington, and you consent to exclusive jurisdiction and venue in these courts. We each waive any right to a jury trial.

APPLICABLE LAW

By using any Amazon Service, you agree that applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Amazon.
This is still legally iffy, particularly taking away your right to a jury trial, but it does give you the right to sue Amazon in the courts. As indicated, Amazon's Conditions of Use changed to this sometime between 3 and 7 May 2021, before which the relevant parts were
DISPUTES

Any dispute or claim relating in any way to your use of any Amazon Service, or to any products or services sold or distributed by Amazon or through Amazon.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Conditions of Use as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, 300 Deschutes Way SW, Suite 208 MC-CSC1, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Amazon will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

APPLICABLE LAW

By using any Amazon Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Amazon.
The Federal Arbitration Act was passed by Congress in 1925, during the Roaring Twenties, when companies were going crazy and didn't want to be sued for it, so forced Congress to protect them. All this craziness led to the Stock Market Crash of 1929 and the Great Depression of the 1930's. See Stock Market Crash Deja Vu: Reddit Violates Securities Exchange Act.

The Federal Arbitration Act should have been declared unconstitutional long ago, but this can only happen ... when a case is made by suing in court. By preventing cases in court, the Federal Arbitration Act prevents itself from being declared unconstitutional. Very clever.

Congress though can repeal its laws, and with all the abuses under the Federal Arbitration Act by companies, like Amazon, over the last few years, it has been threatening to repeal the Federal Arbitration Act; for example with the Forced Arbitration Injustice Repeal Act of 2019, which under a Congress and Administration that are a lot less friendly now to Amazon and other companies has a good chance of passing. By covertly changing its Conditions of Use, Amazon is trying to seem like it was always on the side of right.

Note in Amazon's forced arbitration Conditions of Use that it sounds like you are going to get a fair "judge" via the American Arbitration Association (AAA). However, the AAA does not usually appoint the judge, he or she is appointed by the parties involved. In a case between Amazon and you, who do you think is going to have a whole list of judges favorable to their side ready to go and who is just going to accept whoever is suggested?

When and why did Amazon come up with its forced arbitration Conditions of Use? The earliest Amazon Conditions of Use the Internet Archive has is from 9 Apr 2008 and this did not change to the forced arbitration Conditions of Use until between 6 and 29 Aug 2011. This early Amazon Conditions of Use was
APPLICABLE LAW

By visiting Amazon.com, you agree that the laws of the state of Washington, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Amazon.

DISPUTES

Any dispute relating in any way to your visit to Amazon.com or to products or services sold or distributed by Amazon or through Amazon.com in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $7,500 shall be adjudicated in any state or federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in such courts.
This is a non forced arbitration Conditions of Use similar to the one recently changed to (the less than $7,500 is probably the small claims court qualification). Note though, that in its current Conditions of Use, Amazon takes away your right to a jury trial, because in a case between Amazon and you, a jury would almost certainly be on your side.

Why Amazon's change to the forced arbitration Conditions of Use in Aug 2011? This occurred early during the first Obama Administration, after Jeff Bezos had become cozy with President Barack Obama and realized he could get away with it, even though Obama was a lawyer and supposedly for the people.

In any case, you can sue Amazon again.

Why would you want to? Because, for example, Amazon is fraudulently selling you used items as new, i.e. used items at new item prices. As you are probably aware, Amazon has a very liberal return policy. People can use an item for a month before returning it, usually free. For example, they buy a book, read it abusively (e.g. dog-ear it, write in it, etc.), then return it. What do you think Amazon does with all these used/damaged returned items?

Amazon can't discard them or sell them drastically reduced in price as used since it would cost them too much. So they sell them back to you as new, at new item prices. Most people won't make the effort to return these used/damaged items for a replacement or refund. The cost of those few, like myself, who do will be made up many times over by those who don't.

I buy a lot of expensive books and I have taken to first trying to get them on eBay, where individual sellers are usually more honest than Amazon. eBay books listed as "Used – Very Good" or better are usually in better shape than Amazon's "New" books. Ironically, I once tried to buy an expensive "new" law book on civil procedure from Amazon but the original book and the demanded replacement both came trashed. I finally just got a refund.

According to Amazon's current non forced arbitration Conditions of Use, after a little knowledgeable research, to file suit against Amazon for this fraud you would do so in U.S. District Court, Western District of Washington (King County, Washington contains Seattle, where Amazon's headquarters are, in western Washington state). (However, if you live in Washington state, you would probably have to file in state court, not federal U.S. district court.)

You don't need a lawyer to sue Amazon. The U.S. court system was intended for use by reasonably educated people without need of a lawyer, i.e. by "pro se litigants", like myself. All courts, from the lowest state court to the highest federal court (the U.S. Supreme Court), provide information for pro se litigants. U.S. District Court, Western District of Washington provides this information on its Representing Yourself ("Pro Se") webpage. And don't be put off by any of the warnings there; pro se litigants have to be given a lot of latitude. Otherwise, "justice for all" really means "justice only for those who can afford a lawyer", which is antithetical to America's founding. The entire U.S. legal system is uncomfortably aware of this fact and goes out of its way to make sure it is not an issue; hence all the pro se litigant court help.

There is a $402 filing fee to sue Amazon, but you can include this in the damages you demand of Amazon. And don't worry about Amazon winning and making you pay thousands of dollars. It will always be cheaper for Amazon to settle before the case goes to trial, even if jury trials, which are very expensive, are not allowed. Even if Amazon did win, it would be too expensive for them to force you to pay the judgment. If Amazon lost, they would pay the judgment because they could easily and because they would not want the expense of more legal action.

I'd suggest getting one of Jeff Bezos's rocket trips as part of the judgment, but I'd be afraid even if the rocket was dangerously damaged, Bezos would send you up in it.