Following up on an early post in which we reported that Ebay was attempting to get its customers to give up their rights to pursue their claims in court and/or through the class action mechanism, unfortunately we can now report that Microsoft is attempting to follow in Ebay’s footsteps.
If you are a user of one of Microsoft’s many products including but not limited Hotmail, Windows Live Messenger, or Windows Photo Gallery, you may have received an email on or about September 1, 2012, titled Important Changes to Microsoft Services Agreement. Odds are that even if you received this email you quickly deleted it as junk. You certainly would have had no reason to believe from the title of the email that Microsoft was attempting to inform you that it was taking away one of your fundamental rights.
Unfortunately, buried in the email it states “Finally, we have added a binding arbitration clause and class action waiver that affects how disputes with Microsoft will be resolved in the United States.” Microsoft is not alone in attempting to shut the courthouse doors to its customers. Following the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), numerous companies, unwilling or unable to defend their misdeeds in a court of law, have covertly inserted arbitration clauses in consumer contracts.
As written, and assuming any court upholds it, Microsoft’s arbitration clause appears to preclude any future class action suits. It however, remains to be seen whether courts will enforce such an ex-post facto arbitration clause that companies such as Microsoft are attempting to impose on consumers.
If you or someone you know has an issue with Microsoft that might be appropriate for class action treatment, please contact us to discuss your legal options.