Mandatory arbitration clauses that forbid class actions have been in the news lately as Congress and the president last fall struck down a new consumer rule prohibiting such clauses in contracts with banks.
Way before this action, Kohl’s department store cleverly stuck a clause into the terms and conditions on its website banning customers from getting together to sue the company.
*MOUSE PRINT:
It is not so out of the ordinary to see arbitration clauses forbidding class actions on retailers’ websites. What is unusual is the fact that Kohl’s seems to be saying that this restriction even applies to people who shop in their stores.
*MOUSE PRINT:
It says if you shop in their brick and mortar stores you are subject to the same restriction, and that “shopping in our stores constitutes your acceptance these terms.” Elsewhere in the terms it says if you don’t like these restrictions “you should not and are not allowed to…make purchases in our stores.”
What? So merely walking through the doors of a Kohl’s store I lose my right to be part of a class action against them? It sure seems so. (There is an argument to be made, however, that the combination of BOTH using their website AND shopping in their stores is what triggers the class action restriction. However, if that were true then only people who did both would lose the right to sue and certainly Kohl’s wants to prevent Internet users who never shopped in their stores to be covered by the class action prohibition.)
We asked Kohl’s how in the world the class action waiver could ever apply to people who only shop at their stores and were never put on notice that entering their stores triggered this restriction. (Last I checked, there was no notice on every door notifying shoppers they were about to lose those some consumer rights upon entering.)
The company did not respond.
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