[Plura-list] Mass arbitration attack could bring Intuit to its knees

[Cory Doctorow]

Read today's issue online at: https://pluralistic.net/2022/02/24/uber-for-arbitration/


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Today (Feb 24), I'm on a panel for Amnesty International and Fight for the Future called "Web3 for Activists: What Could Go Right, What Could Go Wrong":

https://amnestyusa-org.zoom.us/webinar/register/WN_NVefCOFkSHWKCYxaQVpEQw


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Today's links

* Mass arbitration attack could bring Intuit to its knees: Justice for the millions ripped off by Turbotax's "Free File" fraud.

* This day in history: 2002, 2007, 2017, 2021

* Colophon: Recent publications, upcoming/recent appearances, current writing projects, current reading

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🌦 Mass arbitration attack could bring Intuit to its knees

Ever hear of "binding arbitration?" That's a clause in a contract that says that you aren't allowed to sue the company you're doing business with, even if they cheat, maim or kill you. It was invented to let giant companies of equal size and power agree in advance not to spend billions and decades in court to resolve contractual disputes.

Then, Federalist Society judges led by Antonin Scalia set about clearing the way for arbitration to be crammed down everyday folks' throats by powerful businesses. Today, it's primarily used by doctors, mechanics, publishers, after school programs, ski resorts, fast food restaurants, gig/app work companies and tech companies of all kinds to strip the people who buy from them or work with them of the rights that Congress gave them, all at the stroke of a pen.

The advent of non-negotiable contracts with binding arbitration clauses makes a mockery of the law, and of the very idea of contracts. These clauses are a (literal) get out of jail free card for businesses that abuse the people who interact with them. They have multiplied like cancer, and today, they're everywhere.

When you sign a binding arbitration waiver, you lose the right to sue, and, critically, to join a class action suit, which is often the only way to get justice for mass-scale, small-dollar ripoffs. Very few of us will pay a lawyer thousands to get back the $50 some business owes us, but if that business owes millions of people $50, then one lawyer can represent all of them at once through class action. But not if they've all clicked "I agree" to binding arbitration.

Instead of suing, binding arbitration lets you go to a fake court: an arbitration proceeding presided over by a corporate lawyer who is paid by the company you're seeking redress against. These arbitrators overwhelming find in favor of the business that signed their paycheck, but even if you do eke out a win, you don't set a precedent that the next person can rely on. Every arbitration case starts from scratch.

The proliferation of arbitration has rapidly eliminated the very idea of civil justice for individuals wronged by companies, with private arbitration increasingly replacing courts. For a while there, it seemed like our rights had been eliminated by a conspiracy to insert binding arbitration into every contract, terms of service and business onboarding.

But then some clever lawyers noticed a critical flaw in the arbitration scam. Businesses have to pay the arbitrator, and that costs thousands of dollars per claim. If these lawyers could figure out how to streamline the arbitration process and file thousands of claims, they could cost businesses *far* more in fees than they'd ever have to pay in a class action settlement. Then the businesses would cry uncle and release their workers or customers from the binding arbitration and give them a day in court.

The first serious success for this tactic came in California, where Uber drivers had been forced into arbitration to recover hundreds of millions in wages that Uber had stolen for them. When Uber found itself facing thousands of arbitration claims, it surrendered and paid the drivers $146m.

https://www.reuters.com/legal/government/uber-sues-aaa-block-100-million-fees-politically-motivated-arbitration-2021-09-20/

Mass arbitration has only gone from strength to strength. Last spring, Amazon *removed* arbitration from its Alexa terms of service, as a way of escaping thousands of claims over its deceptive sharing of Alexa audio with third parties:

https://pluralistic.net/2021/06/02/arbitrary-arbitration/#petard

It's getting steadily easier to automate mass arbitration claims. The company Fairshake launched in 2020 to produce a toolsuite to enable more lawfirms to mass-file claims on behalf of their clients.

https://pluralistic.net/2020/04/11/socialized-losses/#justice-restored

And courts are starting to see through the arbitration scam. Last spring, a Massachusetts court ruled that a blind Uber passenger wasn't subject to the binding arbitration in the company's terms of service, because they weren't available in accessible form, so he never read them and never agreed to arbitration:

https://pluralistic.net/2021/01/06/methane-diet/#i-agree

As the wheels come off of the arbitration wagon, there's a *delicious* wave of mass arbitration campaigns crashing down upon the worse companies in America. Few companies are sleazier than Intuit. For *decades*, Intuit bribed and bullied the IRS to keep it from automatically sending Americans pre-completed tax forms.

https://www.propublica.org/article/inside-turbotax-20-year-fight-to-stop-americans-from-filing-their-taxes-for-free

This is a routine practice in most other high-income nations. After all, the tax authority knows how much you've earned, it knows how much you've had deducted, and it knows the tax code. Every year, you get a pre-completed form. If it looks right to you, you sign it and you're done. If you want to hire an accountant, you can do that too.

By blocking free tax prep, Intuit secured billions in revenue for its Turbotax division. But for some reason, taxpayers consistently refused to accept that their own interests should take a back-seat to Intuit's shareholders and kept pressuring the IRS to send out pre-completed tax forms for free.

To keep this at bay, Intuit teamed up with the other oligarchs in the tax-prep industry to create a program called "FreeFile" that would offer free tax prep to the majority of Americans.

But there was a catch.

They made it nearly impossible to use.

No matter how hard you tried, you it was effectively impossible to actually get a FreeFile filing. Intuit pulled out all the stops - they created programs with nearly identical names that weren't free. They bought Google ads for "Freefile" that redirected you to these expensive, name-alike programs. If you *did* stumble into a FreeFile workflow, they'd bombard you with fraudulent messages implying that you weren't eligible to use the service. If you ignored that, they'd let you spend hours inputting your tax data, then present you with an error message saying you couldn't go any further without paying.

This was fraud. Outright fraud. Even the FTC says so:

https://pluralistic.net/2020/09/08/attack-surface-kickstarter/#tax-fraud

But, of course, everyone who got sucked into this fraud vortex clicked through a binding arbitration waiver, and lost the right to sue, and the right to join a class action to recover the billions that Intuit had stolen from them.

Enter mass arbitration. The law firm of Keller Lenkner has made a name for itself by using mass arbitration to bring companies like Postmates and Doordash to their knees on behalf of workers who'd had their wages stolen. Now they're taking on Intuit.

https://www.propublica.org/article/turbotax-maker-intuit-faces-tens-of-millions-in-fees-in-a-groundbreaking-legal-battle-over-consumer-fraud

Writing for Propublica,  Justin Elliott (who broke this story and has followed it relentlessly) tells us that more than 100,000 Intuit customers have sought arbitration over FreeFile. Intuit's already tried to staunch the bleeding by offering a $40m settlement, but the judge said no. The company had told its customers they *had* to arbitrate, so it was on the hook for arbitration.

Elliott calculates the potential bill for arbitration fees at $175m, plus any settlements and plaintiffs' lawyers fees the arbitrators award.

As US District Court Judge Charles Breyer told Intuit's lawyers, "Intuit was, in Hamlet's words, hoisted by their own petard...arbitration is the petard that Intuit now faces."

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🌦 This day in history

#20yrsago Judith Merril's memoirs, at last https://web.archive.org/web/20020603125448/http://www.kissmachine.org/emily.htm

#20yrsago I’m a Googlebot! I will not kill you https://ftrain.com/robot_exclusion_protocol

#20yrsago RIP, Chuck Jones https://www.cnn.com/2002/SHOWBIZ/TV/02/22/chuck.jones.obit/

#20yrsago A bad fall while installing a WiFi antenna https://people.well.com/user/doctorow/rob.txt

#15yrsago Best muscle-rub ever https://memex.craphound.com/2007/02/24/best-muscle-rub-ever/

#5yrsago Techdirt is being sued by the “I invented email” guy and needs your money https://www.techdirt.com/articles/20170216/17220136729/techdirt-survival-fund-i-support-journalism.shtml

#5yrsago So It Is: a Cuban-inspired album from the astounding Preservation Hall Jazz Band https://memex.craphound.com/2017/02/24/so-it-is-a-cuban-inspired-album-from-the-astounding-preservation-hall-jazz-band/

#5yrsago The automated, invisible revert-wars of Wikipedia’s bot ecosystem https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0171774

#5yrsago Putinology considered harmful: the many legends we tell ourselves about Vladimir Putin https://www.theguardian.com/world/2017/feb/22/vladimir-putin-killer-genius-kleptocrat-spy-myths

#5yrsago Pope to greedheads: better to be an atheist than the kind of Catholic who screws the poor https://www.reuters.com/article/us-pope-atheists-idUSKBN1621I3

#5yrsago Customs officials refuse to allow passengers to debark a domestic flight unless they show ID https://www.vice.com/en/article/4349pm/ice-manhunt-forces-passengers-to-show-id-to-exit-domestic-flight

#5yrsago In which Laurie Penny comprehensively proves that she has Yiannopoulos’s number https://psmag.com/news/on-the-milo-bus-with-the-lost-boys-of-americas-new-right#.8061cp4jc

#5yrsago Lawsuit forces DoJ to admit that Obama administration sneakily killed transparency bill https://freedom.press/news/new-documents-show-the-obama-admin-aggressively-lobbied-to-kill-transparency-reform-in-congress/

#5yrsago After a century of resisting monopolies, Democrats became the party of finance capitalism and it cost them the election https://www.theatlantic.com/business/archive/2017/02/antimonopoly-big-business/514358/

#5yrsago Found at a thrift shop: the last record of a doomed Apple DRM effort from 1979 https://drive.google.com/file/d/0B9vexSPkhkh-UWVrREI4SXB4TGc/view?resourcekey=0-unBUEHLvITiqLmJK8LI-SQ

#1yrago Court rejects TSA qualified immunity: Government genital massages can be video-recorded https://pluralistic.net/2021/02/24/gwb-rumsfeld-monsters/#junk-touching

#1yrago The Mauritanian: Hitler painted roses and GWB does portraiture https://pluralistic.net/2021/02/24/gwb-rumsfeld-monsters/#gwb-and-gitmo

#1yrago EVs as distributed storage grid: Go green, buy a bigger truck https://pluralistic.net/2021/02/24/gwb-rumsfeld-monsters/#mobile-batteries

#1yrago Bossware and the shitty tech adoption curve: White collar workers, your blue collar comrades tried to warn you https://pluralistic.net/2021/02/24/gwb-rumsfeld-monsters/#bossware

#1yrago German covid coinages: Schadenfreude fur CoronaFußgruß https://pluralistic.net/2021/02/23/acceptable-losses/#Zeitgeist

#1yrago Malcolm X's true killers: NYPD deathbed confessions confirms "conspiracy theory" https://pluralistic.net/2021/02/23/acceptable-losses/#deathbeds-r-us

#1yrago Private equity's nursing home killing spree: Pre- and post-covid https://pluralistic.net/2021/02/23/acceptable-losses/#disposable-olds

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🌦 Colophon

Today's top sources:

Currently writing:

* Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. Yesterday's progress: 527 words (66005 words total).

* Vigilant, Little Brother short story about remote invigilation. Yesterday's progress: 263 words (2134 words total)

* A Little Brother short story about DIY insulin PLANNING

* Moral Hazard, a short story for MIT Tech Review's 12 Tomorrows. FIRST DRAFT COMPLETE, ACCEPTED FOR PUBLICATION

* Spill, a Little Brother short story about pipeline protests. FINAL DRAFT COMPLETE

* A post-GND utopian novel, "The Lost Cause."  FINISHED

* A cyberpunk noir thriller novel, "Red Team Blues."  FINISHED

Currently reading: Analogia by George Dyson.

Latest podcast: The Internet Heist (Part II) https://craphound.com/news/2022/02/13/the-internet-heist-part-ii/

Upcoming appearances:

*  Web3 for Activists: What Could Go Right, What Could Go Wrong (Fight for the Future/Amnesty International), Feb 24:
https://amnestyusa-org.zoom.us/webinar/register/WN_NVefCOFkSHWKCYxaQVpEQw

* Dangerous Visions and New Worlds: Radical Science Fiction, 1950 to 1985 (City Lights), Feb 27
https://citylights.com/events/dangerous-visions-and-new-worlds-radical-science-fiction-1950-to-1985/

* Emerging Technologies For the Enterprise, Apr 19-20
https://2022.phillyemergingtech.com

Recent appearances:

* The Policy Implications of Web3 (Stanford Cyber Policy Center)
https://www.youtube.com/watch?v=Fir5ujS-Dkg

* Big Tech & Surveillance Capitalism (Shaun Attwood):
https://www.youtube.com/watch?v=cqzeMlvENPs

* Bringing Back Luddites (Oh No Ross and Carrie)
https://ohnopodcast.com/investigations/2022/2/14/ross-meets-cory-doctorow-bringing-back-luddites-edition

Latest book:

* "Attack Surface": The third Little Brother novel, a standalone technothriller for adults. The *Washington Post* called it "a political cyberthriller, vigorous, bold and savvy about the limits of revolution and resistance." Order signed, personalized copies from Dark Delicacies https://www.darkdel.com/store/p1840/Available_Now%3A_Attack_Surface.html

* "How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet analyzing the true harms of surveillance capitalism and proposing a solution. https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59 (print edition: https://bookshop.org/books/how-to-destroy-surveillance-capitalism/9781736205907) (signed copies: https://www.darkdel.com/store/p2024/Available_Now%3A__How_to_Destroy_Surveillance_Capitalism.html)

* "Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden: https://us.macmillan.com/books/9781250774583; personalized/signed copies here: https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html

* "Poesy the Monster Slayer" a picture book about monsters, bedtime, gender, and kicking ass. Order here: https://us.macmillan.com/books/9781626723627. Get a personalized, signed copy here: https://www.darkdel.com/store/p1562/_Poesy_the_Monster_Slayer.html.

Upcoming books:

* Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022

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