[squarecat]

http://hothardware.com/News/Appeals-Court-Reverses-Decision-...

tl;dr

The issue in question was whether or not Dell's Terms and Conditions of Sale could legally force the company's customers to settle disputes through arbitration rather than in a court of law. This is the second time in recent history that the ninth circuit has found such arbitration clauses unenforceable due to the unconscionable burden they place upon the purchaser.

...

The court based its ruling in Omstead v. Dell directly upon an earlier case, Oestreicher v. Alienware, in which Alienware (a Dell subsidiary) attempted to force Mr. Oestreicher into arbitration. In that decision, the court wrote that the Alienware contract was unconscionable because it was a "contract of adhesion." A contract of adhesion is a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party [the customer] only the opportunity to adhere to the contract or reject it.

[JoshTriplett]

The court did not rule the contract unconscionable because it was a contract of adhesion. They ruled that it was both a contract of adhesion and unconscionable, the combination of which made it unacceptable to the court. "Take it or leave it" remains perfectly acceptable, unless combined with unconscionable terms.

[eli]

IANAL, but wouldn't the Supreme Court's subsequent ruling in the AT&T case supersede that? http://www.npr.org/2011/04/28/135785797/supreme-court-impose...

[bragen]

Courts have avoided Concepcion with surprising frequency by holding that it did not preempt ordinary unconscionability rules.

There's a pretty good round up of illustrative opinions here: http://www.uclpractitioner.com/2012/03/new-opinions-interpre...

[rayiner]

I love the 9th Circuit.

[RollAHardSix]

"unconscionable because it was a "contract of adhesion." A contract of adhesion is a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party [the customer] only the opportunity to adhere to the contract or reject it."

Side note...that reminds me of my Military Service contract with the Government.

But this is good, giving up your right to sue is not something that should be allowed in Terms and Conditions...now a separate agreement that still wouldn't preclude using the service/material/item in question, perhaps there is room for that.