Microsoft is strengthening its mandatory arbitration provision as of May 1, 2018

Once upon a time, consumers could band together in class actions against big companies when they were collectively aggrieved. Often, the injury to each person on her own was small — but the cumulative effect was a wrong on the business’s part. So, for example, Microsoft had been sued for various competition law abuses — class actions that the company expected to cost it $1.9–2.0 billion to resolve.[1] But those class actions are a thing of the past — as Microsoft and other companies have been making consumers surrender the ability to participate in one.

Arbitration agreements do more harm to consumers than merely prevent class actions, even if arbitrators are as fair to plaintiffs as judges would be; arbitration can make it more difficult to assert a meritorious claim on one’s own as compared to going to court. Procedural rules differ in arbitration, and the ability to conduct discovery — to force the other side, under pain of contempt, to cough up incriminating documents — may be more limited than the broad scope allowed under the Federal Rules of Civil Procedure. And as the #MeToo movement has revealed in employment-related arbitration agreements used to keep a lid on sexual harassment claims, the rules of arbitration could require you to keep quiet, even if you win — as contrasted to open dockets, public trials, and published judicial opinions in a real court system. So even if the consumer wins, the company wins tenfold more: first, they don’t have to deal with negative PR; second, in the aggregate, other plaintiffs could be discouraged from pursuing their claims because they don’t know that other similarly situated consumers have already prevailed.

Continue reading “Microsoft is strengthening its mandatory arbitration provision as of May 1, 2018”

Footnotes   [ + ]

1. See 2011 Annual Report — Contingencies, Microsoft Corp., https://www.microsoft.com/investor/reports/ar11/financial_review/contingencies.html (“A large number of antitrust and unfair competition class action lawsuits were filed against us in various state, federal, and Canadian courts on behalf of various classes of direct and indirect purchasers of our PC operating system and certain other software products. . . . We estimate the total cost to resolve all of the state overcharge class action cases will range between $1.9 billion and $2.0 billion. At June 30, 2011, we have recorded a liability related to these claims of approximately $568 million, which reflects our estimated exposure of $1.9 billion less payments made to date of approximately $1.3 billion mostly for vouchers, legal fees, and administrative expenses.”).

Pretty sure the IRS made a typo in Publication 519

There’s a provision that allows aliens in the U.S.[1] to choose to be treated as a U.S. resident for tax purposes even if they would not otherwise qualify as a resident. Income tax rules themselves are already really confusing — and they are even more complicated for foreigners in the U.S. — so a typographic error could really confuse a taxpayer.

I think the IRS made a typographic error, but I’m not even sure how to get in touch with them to fix this.

Motivating example

Suppose you arrive in the U.S. for the very first time on October 1, 2015 to work for the foreseeable future on a TN-1 (NAFTA Professional) visa. Because the period from 2015-10-01 to 2015-12-31 is insufficient to meet the Substantial Presence Test,[2] you would otherwise be a nonresident alien for tax year 2015. This would mean your income in the United States might be subject to taxation in the U.S. as well as in your home country. What if you wanted to be treated as a resident alien starting on October 1, 2015 — despite not satisfying the Substantial Presence Test?

This is the First-Year Choice, and it’s documented in Publication 519 (“U.S. Tax Guide for Aliens”) by the IRS.

The error

I got a little confused when I first read the rule, because it seemed to require an impossibility:

2015 Publication 519 typo on page 7

Let me excerpt that to show why it’s so self-contradictory: “If you do not meet either the [GCT] or the [SPT] for 2014 … but you meet the [SPT] for 2014.”

Huh? Clearly they meant 2016 there. Moreover, if you met the SPT for 2014, the current tax year — 2015 — wouldn’t be your first year in the U.S.

This is confirmed by the bulleted list on the following page:

2015 Publication 519 excerpt from page 8

Motivating example resolved

If you are going to satisfy the Substantial Presence Test in the following tax year — 2016 — you can choose to pretend to be a U.S. resident from 2015-10-01 to 2015-12-31 as well, if you meet all of the requirements in the bulleted list above.

 

Footnotes   [ + ]

1. Foreigners, not extraterrestrials.
2. The Substantial Presence Test (SPT) requires, in its simplest form, at least 183 days of physical presence within the United States in a three-year period.

A new blog series?

Over dinner this week, I was revealed as one of those weirdos who actually read the fine print. Yep, once in a while—embarrassingly often—I’ll actually dig right into those long documents that come with the health insurance, the credit card offer, or the website signup.

Forced arbitration clause in Amex Premier Rewards Gold cardmember agreement.
When was the last time you actually read something like this?

Why? Because the purpose of these “Terms and Conditions,” or “Cardmember Agreements,” or whatever else they’re calling these lengthy, prewritten, one-sided contracts, is to modify default legal rules/rights in such a way that benefits the parties that wrote them. So, even if I don’t have any practical choice in whether or not to use Facebook, even if I can’t really negotiate with American Express and rewrite the terms of the extended warranty, at the very least it’s useful to know what my rights are—and what hidden benefits there might be that most people don’t know about.

So a friend thought it might be fun if I just occasionally write about these things. Perhaps a sort of Bad Terms & Conditions section on my blog, or … Digging through the Fine Print

Still working on the name.

I’ll try not to fall into the bad habit of labelling companies “fascists” or something similarly colourful, which other blogs highlighting these issues inevitably find themselves doing. (I mean, literally every company that deserves any business does it, so what’s a conscientious consumer to do?) For what it’s worth, Consumerist already writes about this and does a pretty good job of it.

Continue reading “A new blog series?”

Another startup blatantly steals university trademarks

A friend directed my attention to a startup-y website selling “cheap smartphone [insurance] coverage” for “as little as $3 a month”. Right at the top of the Penn-branded subdomain (penn.getcovered.co) was an iPhone mockup showing the Penn shield:

GetCovered ripping off Penn seal

highly doubt they went through all the trouble of actually licensing the trademark from the university. Penn’s policy on use of its logos by external entities provides (emphasis added):

Outside sponsors of University programs or activities often seek to use University names or insignia in promotional or advertising materials. While the University is pleased to recognize the contributions of sponsors, such recognition must not suggest University endorsement of the sponsor’s activities. Therefore, University names or insignia may not be used in connection with any outside entity’s name or logo without prior approval of the Secretary of the University. In general, the Secretary will approve uses which recognize or acknowledge the sponsor’s contribution to the University program or activity. Uses which, in the Secretary’s judgment, may suggest University endorsement or approval of the sponsor’s goods or services will not be permitted.

The big issue, of course, is the risk of confusion — by consumers, etc — who might think that the service is sponsored or endorsed by the university. There would be a pretty good prima facie case for trademark infringement, especially since the registrant behind the domain name appears to be a Stanford grad with no connection to Penn.

But to top it all off, the site seems to be lying on its face. The Penn page includes a quote from a “Leah B, Philadelphia, PA”:

Leah B, Philadelphia, PA quote

but the exact same quote is used on the non-Penn-branded homepage of GetCovered, this time from “Leah B, Washington, DC”!

Leah B, Washington, DC quote

As an alum, I certainly don’t want the university’s shield to be used in connection with this company. What they’re doing is strangely reminiscent of the Campus Backup service that OCM was marketing a few years ago — which shut down after my blog post overtook their site in search engines.

Update (2015-11-02): a quick Google search of the opening sentence of the quote directed me to the source — a 2012 comment on a Gawker post by a Gawker contributor, no obvious connection to GetCovered.

I get to vote!

… at least in this federal election.

After Elections Canada’s letter requesting my intended date of return, I responded by postal mail declaring a future date that should accommodate my intended career development in the United States. Needless to say, that intended date was pretty far into the future. At the close of my letter, I stressed that the Canada Elections Act has no statutory time limit on the intention to return:

I also write to emphasize that I became a nonresident of Canada upon acquiring residence in the United States on ****** **, 2014. Therefore, I am within the five-year limit on actual time abroad recently reinstated by the Court of Appeal for Ontario, even if my intended return would be beyond five years, since the applicable statute imposes no temporal restriction on the intended date of return for an eligible elector “who… (c) intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1).

I look forward to receiving a special ballot from your office at the upcoming election.

This week, I received the special ballot voting kit, which includes a guide pamphlet, ballot paper, an inner envelope, an outer envelope, and a preaddressed envelope.

Voting kit for special ballot
Voting kit for special ballot

* As far as I am aware (and yes, I’ve checked), it is not illegal in Canada or Ontario to photograph this kit, provided that no vote has been marked. I haven’t yet decided for whom I will vote, so this photography serves simply as an illustration of what to expect for Canadian expats, rather than as evidence of my vote.

Hopefully this won’t be the last time I get to vote in Canada from abroad.

Are you a Canadian temporarily abroad?
Register to vote with Elections Canada!

A letter from Elections Canada

We are writing to request information to update the International Register of Electors. This request is a result of a July 20, 2015, ruling by the Ontario Court of Appeal, which took effect immediately.

… To receive a special ballot at the upcoming election, you must provide:

– The month and year you plan to return to Canada to reside

The implementation of this ruling demonstrates the imperfect nature of restrictions on expat voting—not only does the law have an arbitrary 5-year bar on voting from abroad, but for all expatriates Elections Canada is demanding a crystal clear declaration of the date they will return to Canada.

I think it’s worth noting that the underlying text of the statute only requires that an eligible elector “intends to return to Canada to resume residence in the future.” Canada Elections Act, S.C. 2000, c. 9, § 222(1)(c).

The agency could likely have fulfilled the statutory requirement by requiring only a simple checkbox that I do, in fact, intend to return to Canada “at some time in the future.” But that’s not what they did.

Click for the full PDFClick here for the full PDF, including the reverse side.

See also my previous two posts on this subject: Let me vote, dammit and A little more about expat voting in Canadian elections.