ECA: Hal Halpin's Latest Statement: Changes are Coming

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Latest update:

I recommend everyone read Hal's latest statement, it's his best statement to date and I believe shows the ECA finally has gotten our message. In it he offers better explanations for what happened with the auto-renew function, promises to notify members of changes to terms of service, and even apologizes.
http://www.gameculture.com/2009/12/...lpin-eca-head-discusses-membership-complaints

Disclosure: GameCulture(the source of this statement) is published by the Entertainment Consumers Association.

Can you give us a synopsis of what happened over the past week?
Sure. Back in September we had an intersection of a few things happen within a brief period of time: I wrote a guest editorial in one of the leading games magazines, at the end of which I provided readers with a coupon code for a free trial membership.
Stopping there for a minute, in hindsight, what was the result of that action?
Well, I have to say that I didn't think the decision through thoroughly-enough. My logic was that readers who took the time to read the piece, which focused on some of the more important and topical issues facing game consumers, were people we wanted as members. In the few seconds that it took to type, I didn't consider that one of those readers would run over to their computer and post the code, sans editorial - and in retrospect, it appears obvious.
Next, there was an issue with discount codes from a partner?
Well, sorta.’ We were being supplied with batches of codes from that partner for some time - about six months. And the organization had been growing steadily for the past few years, so one of the challenges we both had was anticipating the redemption rate, batch to batch...which meant accurately predicting new membership growth. That's an unknown quantity for any new business, but more so for a new non-profit that's cutting a new path. But the more time went on the better we got at understanding the influencers, like trade and consumer shows, advertising, co-marketing efforts, promotions, etc.
That's where detractors repeatedly point to the new free trial members being problematic?
It's correct that our critics keep saying that, but it's a false statement. Yes, there was a bump in new membership acquisition during that period, but it was modest... comparatively speaking... and we knew it was coming, so we requested a larger than normal-sized batch. That request was met with more than we asked for and an emergency back-up batch being supplied.
And how did those assumptions and projections play-out?
Pretty much as-expected. Our partners - this one included - were thrilled with our growth. After all, more members equals more potential customers. And with there being only a few in each category of business, that's a great strategic advantage for the merchant. Competitors, who we hadn't yet contracted, were very likely losing customers. And the partners were essentially getting new loyal customers from a very different demographic than they have traditionally. The discount of 10% could easily be rationalized as customer acquisition expense, though I have no insight into any of our sponsor's thinking or rationale. It could have just as easily been that they wanted to support the org and believe in what we're building and doing.
So the influx of new comped members wasn't an issue?
Not at all. We were all pleased. And it seemed as though - even though many of the new members weren't folks who read the article - they quickly got what the ECA is and that there's a lot more to it than all of the perks and discounts.
And next...
Next, we depleted the codes pretty quickly...a bit faster than expected, but not by much. Plus we had the back-up batch, which we implemented fairly quickly. After six months of experience, users were familiar with the process and knew the timeframe required for the merchant to create new unique one-time use codes, get them over to us, and for our IT folks to upload them into the back-end. The problem came when users found that each batch of codes were programmed slightly differently and if you exploited that difference you could essentially "game" the system - tricking it into "stacking" with codes from a different batch.
What did that "stacking" entail?
We notified the partner that there was an issue with their programming and that there was an exploit that some -albeit very few - people were taking advantage of. Those users were reporting that they could stack the coupons. Instead of getting 10% off, they could get 20%.
Wow. Once that got out it must have been pandemonium?
Not really. The partner requested a code attrition and usage report, which we provided, and they began doing their own analysis. Despite what you'll hear from the trade, retail margins don't leave a lot of room for promotions for 20% off, traditionally. But the number of people exploiting the system was fairly small as a percentage. The problem was exacerbated by a land rush for codes by opportunistic members. The way the system was designed permitted any one member to download one coupon at a time, use it once and have to log back in to retrieve another. Though they had just begun working on a long-awaited multi-use code... one which could be assigned one per member and used multiple times. There was also some discussion about tying their membership account to their merchant one, for the same purpose.
That sounds like a logical solution. But that never developed?
No. During that same time, we began throttling the code distribution process...so that users could only download one per day, temporarily, solving the problem. Users quickly realized that if they quit the association, many calling our Accounting department directly, they could quit and re-join, using the free trial offer, and download an infinite number of codes. A related issue with that was that our emergency supply was then depleted much faster than we anticipated. Some of those users... again, very few, began uploading them to re-sell on eBay. That practice was a breach of their membership agreement, but the financial rewards of joining for free, downloading coupons for free and then selling them, was very appealing to them. Our Legal department worked with eBay to get those auctions removed, but the herculean work which resulted in very fast removals, was done by many of our new members - who appreciated the fact that if this wasn't stopped, it would likely result in an end to the promotion. They were really great.
How did you address closing the loophole?
Well, this is yet another one of the confluence of factors that occurred: we were doing a system-wide upgrade to the back-end software that runs the sites. Each time we build or customize modules it's a learning process. Again, there aren't any other non-profit entertainment consumer organizations to model after, so it's very often a matter of building what we think we'll need, having it be scalable, and then watching how well it addresses our needs. In doing the upgrade, the development company left a non-functioning button "live" that shouldn't have been. I believe it was for about three weeks that a feature that looked to disable auto-renewing of one's account could be selected - giving them the false impression that our software - and our architecture - was able to accommodate that request. So just to reiterate, it never worked.
I can see how that would present a problem.
Indeed. Since our staffers are all members, we wouldn't see the option to know that it was there. We, of course, had the developers remove the button as soon as we were made aware. Since it would be a year before those folks would have to renew - and the vast majority of them were the new free trial folks - we knew we had some time to sort through it, rectify the problem and explain the situation to those effected users - with our apologies and a token of our thanks for their understanding. But the code problems persisted while the partner sorted through things and worked on the new solution. Stacking three codes from three batches yielded a 30% discount and those using the exploit were getting more and more aggressive in the size of their orders - no longer buying a game or two. Joining, getting a code, calling and quitting, re-joining and getting another code and placing ever-larger orders was the breaking point. Plus, those contacting us weren't particularly pleasant to deal with when confronted about the practice.
So you've got a real problem brewing now and not a lot of options for solving it?
Exactly. We changed the method for quitting the association temporarily to mailing in the notice. The rationale was that the only people we'd ever... to the best of my knowledge... had leave the org before, were people who forgot to renew or update their credit cards and there were very few of those. By requesting that members mail in a termination notice, the only people affected were those taking advantage of the system and they were none-too-pleased with the move. If you thought they were difficult to deal with before, they were now incensed. Communications devolved into very very rude and abusive voicemail and email messages. Our staff wasn't prepared for that or for the vulgarity. I didn't want anyone having to deal with that, nor should they have to.
Did the codes come back?
No. As the partner was working on their single code solution, it all was coming to a head. We ran out of the balance of the emergency batch and were awaiting the newly enhanced codes - a process that had taken from one to two weeks before. We removed the ads which promoted that discount and dealt with the feedback from members who were getting increasingly impatient for the next batch. A few people even sent nasty emails to the merchant in an effort to make them aware of their displeasure with having to wait. Some other members started getting angry that an advertised promotion wasn't online, so they accused us of bait-and-switch and became more threatening. We updated the sponsor's listing on the partnership page to indicate that they were still supportive of the org and our efforts, but that the promotion was suspended, as we didn't know if or when another would be offered. But changing the language just made those who were upset even more angry, demanding that we somehow force the partner to provide another offer. But shortly after, we heard what we were dreading: that the exploits and comments were just getting to be too much. Had there been just a little more time or patience, the new multi-use codes would have come in and all would have been well.
Wow! OK. I didn't realize that tensions were so high?
No one did. We're talking about a very small group of people to be fair, but they were free trial members who wanted initially to get a refund and then later demanded that their membership not auto-renew until and unless more discounts came available. We responded back letting them know that more, in fact, had come online and several more were almost contracted and done, but that the button they thought they used wasn't functional. They demanded that we bring it back online and weren't happy to learn that it just wasn't that simple. When they heard that we wanted a mailed letter for termination, they went viral and began a coordinated campaign to attack the association.
But if the group was so small, how effective could they be?
Again, playing Monday morning quarterback, I can say that I had no idea. They continued escalating the situation and incensing other members, rallying them to their cause. We heard the feedback on wanting to have the option of not auto-renewing online, which made a lot of sense, but wasn't an option with the current design. They began reaching out to several media outlets, telling them that we were running a scam and taking their money without giving them the option to leave or not auto-renew. We were blindsided.
...which was when you released the reaction statement?
Right. I tried to explain the situation and address the concerns of members who were becoming aware of issues by reading the stories. They had no idea what was going on and out of context, panicked, and rightly-so. Out of context we sound like horrible greedy people and they sound like victims who've been taken advantage of. The release was intended to answer questions, allay concerns and explain what the actions of this group have done. Unfortunately, it wasn't received by everyone that way. I never meant to offend and I certainly apologize.
Were there a lot of people upset by the release?
No, not that we're aware of. I think the vast majority of members weren't even aware that there was a problem and those who were and read the statement largely took it the way it was intended. I think the folks that I upset probably read the statement via one of the blogs on-going coverage - which usually included negative commentary from the writer. Those folks, having read it that way and reading the ensuing comments below those articles, were really concerned - wondering what happened to the association and what was going on. In the mean time, a few people continued to escalate their attacks, from personal assaults on staff members in the form of slander and libel, to inciting others to contact the Better Business Bureau (BBB), then the Attorney General's (AG) office and then finally our partners, merchants and credit card providers. They demanded that we reinstitute the non-functioning button and permit them to cancel by phone and email - while, all the time, communicating that message in as hateful and vile a correspondence as you can imagine.
What was the reaction from all of the people they were trying to convince not work with ECA anymore?
Really great. Most reacted by saying that they understood the situation and they have similar problems from time to time. The BBB folks also were very understanding and we're continuing to work with them, providing them with whatever documentation and information they request. We had one partner temporarily suspend their current offer for members, wanting to wait to see how the situation was resolved. And we had another who was approached directly by the inciters, who who chose to side with them - but to be fair, he very likely knew nothing of the situation at the time. Everyone else reaffirmed their commitment to the association and, in a few examples, even provided us with valuable feedback.
Do you have any sense of who these folks are?
Absolutely. We know precisely who they are - we have all of their information, of course. Seriously?! Now again, I should be clear that when I refer to the core group, I'm referring to the same people we've been discussing all along; not everyone who is concerned, upset or anxious. I think that those folks were likely relieved to see a new FAQ that we posted in the forums, earlier this past weekend, which explains that we're working on an auto-renew process, that it'll be substantially-similar to other major online gaming services or membership orgs in its design, and that we don't alter their credit card information...
Was that a concern as well?
Only recently. I believe that came to the surface from one of the newer folks who was generally concerned after reading all of the different forums posts. They looked through our membership agreement and came across a section where we state that we could alter expiration dates to process their renewals. It was part of the boiler plate. And again, makes sense in context: I want to renew, but my card just expired. Having that clause would enable us to make the transaction go through, so it never occurred to anyone that it was a bad thing. We never used it and couldn’t imagine other circumstances under which we would. But it was spun or interpreted to mean that we're going to renew you whether you like it or not! I can appreciate that concern, especially framed with all of the other stuff; so, after discussing it, we removed that section entirely.. Legalese, while complex out of necessity sometimes, can also be made clear. I believe that's been our position with EULA standardizations, generally, as well.
There was also some question about how best to communicate to the membership?
Yes, some members asked if we could communicate any significant changes to the membership agreement – such as our removal/rewording of that sub-section we just discussed. As a result of that suggestion, we said that that’s fair and the best way to do so would be via our member’s only monthly newsletter, going forward.
Are you concerned with how this has been playing out?
Of course, very. It’s been grueling on our staff and especially on our forums moderators, who have been on the front lines. On the other hand, getting feedback from members – when it’s communicated civilly – can be really productive. A lot of the things we’ve discussed reflect that open channel of communications where they provide suggestions and comments and we can assess the need and determine how best to address it. But it’s when those lines of communication fall apart, and the discussions happen on other forums, that it’s less productive.
So why take the ECA forums off-line?
Fair enough. That was my decision. Having read all of the discussion and debate all of the issues, it seemed to me that it had all been asked and answered. All of the opinions had been stated and as many of the updates that were available were posted. We hadn’t done a major update to the system – with security patches, with new features and new registration criteria – in some time, so it seemed like a good place to give everyone a break. Like with the other things we’ve said we’re working on, so too will the forums be addressed.
Other major online gaming services have had similar problems with user complaints, why is it so much more emotional with this situation?
With online gaming services, they’re delivering much more of a product than a service in my estimation. So when they went through backlash from users who were upset with their termination policies, there was that difference. Then there’s the fact that many – although not most – of our concerned members were the free trial folks, who didn’t have to pay to join. As compared with the members who did, there may be a mind frame difference. Gaming services cost money; there’s a value proposition, users weigh the pros and cons and commit to join or not. With ECA, we go through that same process, albeit at a much lower price threshold, and the reasons for joining are less about value for the dollar – again, referring to the paid users – and more about what the org does holistically. My guess is that the paid folks are more likely to be involved actively in our advocacy efforts, reading our newsletters and publications and generally aware of the non-benefits areas in which we’re involved. Similarly, the free trial members are probably more likely to be aware of the latest partners and offers that we’ve added as member benefits. That said, our members have an emotional connection with ECA that they probably don’t have – at least in the same way – with an online gaming service.
So where are you now and what’s the plan for moving forward?
As was addressed in the FAQ, we’re working on adding a new module for online account termination as one of the lead priorities. Since they’ve been down this road and had the back and forth with their customers, we can be fairly sure that the systems that are being used now are ones that our folks will be comfortable with. Getting an option to remove auto-renewals will also be addressed in this same build-out, as will be the notification date.
And where does the ECA stand with those members who still want to cancel?
Well, I’d hope that they’d understand that we’re working to address the issues that we’ve discussed at length here, but that these things do take time. I know that asking patience at an emotionally-charged time isn’t the easiest, but I think they’ll feel assured that we haven’t mislead them as they begin to see each of these things come to fruition. If they still decide to part ways, I can’t say that I understand, but I can say that I respect their decision. Look, all of this is new – to them and to us. We need to just do the best that we can and work toward solutions that we’re all comfortable with. That’s really the best that we can do and I hope that they’re willing to be a part of that.
Is there anything else you’d like to add regarding the issue?
Yeah, again, just to restate my sincere apology for anyone who was offended by our statement last week, who felt unintentionally lumped-in with the group that I was referencing. That was never my intention, and feel badly for not being more clear. It really is in all our best interests to work together, learn from the issue and continue to focus on the important work that still needs to be done.


In my opinion, if the ECA follows through with what he's saying they will have done a lot to fix this. Also, a lot of his explanation and tone is much friendlier and clearer. They seemed to be listening to ours and others concerns and making right. For that, I applaud them.

12/9: The ECA has removed the section of the TOS referring to their ability to change your CC's expiration date, again a positive change that they should be commended for.


--------------
12/7 update:

Latest word from the ECA's Gypsyfly:
"Right now ECA is working on implementing an online option for members which will require creating a new business, accounting, and site module as the site never had this option. They will also notify members of policies changes via their members newsletters even though they are not required to, some items in the TOS will also be updated moving forward to better reflect the needs of members."

I'd recommend waiting a bit before spending the time and money on a certified letter, we'll hopefully be able to cancel a more convenient way soon.

...........

12/4 update: the eca has a new faq that includes info about canceling. They still require written notice. While they say it doesn't need to be traceable, I'd still recommend it given part 12 of their terms. They also now say they are working on another way to cancel and an option to disable auto renew.
http://forums.theeca.com/showthread.php?t=7158
What is the annual membership fee?
The annual dues for membership in the ECA are $19.99 per year for normal membership, and $14.99 for student and military members (with a valid dot edu or dot mil domain extension). To join the association, click here.

What benefits are there associated with ECA membership?
The organization is dedicated to providing a wealth of community and affinity benefits to our members.* With membership, you can connect with like-minded gamers, explore career and educational opportunities in the business, start or join one of our network of chapters across the US and Canada, and much more.*Take a few minutes to check out our website to explore the advocacy issues that we work on, the empowerment tools that we provide, the accomplishments we’ve made and the other benefits of membership. We also have a more general FAQ, which may be helpful, available here.

What do I get in terms of actual dollar value for my $19.99 dues?
The member benefits section of the website provides a detailed explanation, but our goal is to provide members with access to a whole host of goods and services, such as low cost insurance, to advocacy campaigns, to discounts with retail partners. As a member of the ECA, you should be spending considerably less each year on goods and services because you’ll have access to them through us at a much cheaper/more compelling rate(s). The list is fairly long and is constantly being updated with new offers, but members can access the full roster of offers on the site.

Since the ECA is a non-profit, are my dues payments tax-deductable?
No. The association is a 501(c)(4) non-profit membership organization. You may be thinking of 501(c)(3) charitable organizations. For more information about the differences between different classifications of non-profits, try here.

Once I join will my membership auto-renew?
Yes. At the time of your registration, you are asked to provide a major credit card so that on your anniversary date you can be automatically renewed for the following year as standard practice – not dissimilar to parallel membership organizations or major online gaming services. Nearing your anniversary date we remind you that your term is coming to an end so that you can take action to update your credit card information or cancel your membership.

Can I choose to have my membership NOT auto-renew online?
The system is presently not set up for this, but due to membership feedback we have been actively working on solutions that should make it so. We’re modeling some of the other leading online games services and membership associations, so the process should be familiar and use best practices.

Wasn’t there a button that I could check to deselect auto-renewing?
For a brief period of time, some users may have seen a non-functioning button that referred to cancelling auto-renewal. This was due to developer error during a system upgrade to the back-end. It was removed as soon as we were made aware to avoid confusion and because it never had that functionality. However, the new enhancements we’re working on will address this option.

What happens if my credit card expires?
The ECA requires all members in good standing to have updated credit cards on file. This is for several reasons, not the least of which is that the system was designed to reduce overhead and back-end expenses. The credit card disclaimer – which can be found right above the section where new members are prompted for their details – explains that the card will not be charged again until your anniversary date (not unlike other non-profit membership organizations, online gaming services, or health club memberships for that matter). If new members are unwilling or unable to fully complete their registration information, we do not process their application. If your credit card expires or is lost/stolen, your profile must be updated so that you have a valid credit card capable of paying your dues on file with the association. The ECA does not automatically update expired credit cards.

Can I cancel my membership at any time?
You may terminate your active membership in the association at any time. However, refund requests will not be processed. Like with any other membership org, many of the benefits are accessible immediately upon joining. If this policy were not in place, people could join the association, take advantage of the benefits and seek a refund immediately afterward. It is disclosed in your Membership Terms & Conditions, which you can find here.

How do I cancel my membership?
While we build out the new accounting module, discussed above, we cannot accept emailed or voicemail cancellation requests at this time. We understand that it may be frustrating, but we ask for your patience while we work to enhance the system. In the interim, if you wish to cancel your ECA membership, simply send us a letter to the address listed below. (A certified letter is not required.) Please include your full membership details (full contact info and in as much detail as possible). Your membership will be terminated once processed and you will receive correspondence back, confirming your cancellation.

Entertainment Consumers Association (ECA)
Attn: Accounting Department
64 Danbury Rd, Suite 700
Wilton, CT *06897

What if I prefer not to send a letter to cancel my membership?
Until the new system is implemented, we can only accept mailed cancellation requests. We thank you for your patience and understanding during this time and will share the details of the update shortly.

Where can I find the ECA’s Privacy Policy, Terms of Membership and Membership Agreement?
As a consumer advocacy organization, the rights of consumers are the ECA’s priority. We also have a fiduciary responsibility to the organization as a whole and to the members individually. For those reasons our policies and agreements are modeled after the leading non-profit membership organizations and are available at the bottom of every page of our website. But for quick reference, our Privacy Policy can be found here and our Membership Terms & Conditions, here.

I’ve joined the association, but am having trouble accessing my account or logging-in.

Welcome! The system will send an authentication email to the address you provided in the first step, as well as a registration message acknowledging your complimentary subscription to ECA Today, our week-nightly HTML-based newsletter. You must click on the link in the authentication email to proceed to step two and finalize your registration. If you received the newsletter email, you will likely also receive the authentication message. Check your spam folder. If you didn’t receive either message, or you didn’t receive the authentication email after a short period of time, it may be that your ISP is blocking the email, or our message triggered something in your router’s filter settings. Just email us for additional help.

Does the ECA offer working journalists complimentary memberships?
We do offer members of the media a limited number of complimentary memberships in the association. For all media inquiries, please email [email protected] to communicate directly with our public relations staff.

How can I find out more about what the ECA is doing or has accomplished?
If you want to know how to get involved in any of the issue areas in which we’re engaged, try our action center here. We also keep members abreast of our activities via our week-nightly HTML-based newsletter, ECA Today, as well as our Monthly Member Newsletter, which broadly keeps you informed. And if you still have a question, comment or concern, you could always try our Forums.

I’d like to get the word out and help recruit new members, is there an affiliate program in place?
Yes. ECA is both a Publisher and Advertiser with Commission Junction, which is how we work with affiliate partners, so we would refer you to their website to connect via their portal, here.
Last edited by ezacharyk; Today at 08:29 PM.

I am pleased progress is being made, I still strongly feel they need to send an email to all members stating that the disable auto renew feature was never functioning. Also, while they say the feature was only available for a short time, there are indications it was available as far back as March and as late as the end of October (thanks blisskr for finding these posts). I wouldn't consider that a short period time, certainly its long enough to necessitate personal notice to all of their members. Please also note a mod responds to the March post and makes no mention of its non-functionality. I would also think that means they should have known about the button as early March, yet it was not removed until several months later. Additionally, according to several CAGs, the nonfunctional button gave verification that the auto renewal feature was canceled. It's very difficult to trust someone with your credit card information if such a major mistake is left on their website for months.


................

I am well aware that this is not a deal and many will flame me and say this is the wrong forum or that this is a re-post. However, at one point it seems like the majority of CAGs gave these people their credit card information in order to sign up for a paid or "free" membership. It should be emphasized that everyone who became a member(including free ones) had to give their credit card info, in case you have forgotten. Many if not all who signed up immediately canceled the auto renew billing feature using the website. It appears that it is now ECA's stance that anyone who did this did not actually cancel because it was never a working part of their website. They claim that the auto renew feature was only available for a limited time and never actually did anything because of some glitch, but anecdotal evidence from CAGs suggest it was online for several weeks and possibly months. Up to this point, they have refused to adequately accept responsibility for this mistake and have failed to personally notify their members of this problem. The original thread where I got this info from is found here, full credit should be given to Cager arcane93 for pointing all this out in this thread.

The ONLY way you can cancel your membership is by a letter through some form of TRACEABLE mail.

send your cancellation here, which according to their terms must be sent 30 days prior to your renewal date:
[FONT=&quot]Attn: Accounting, ECA, 64 Danbury Road, Suite 700, Wilton, CT 06897-4406. [/FONT]

What info is needed to cancel?
Just say you want to cancel and include your full name and email.

THERE IS NO WAY TO TURN OFF AUTO RENEW- you can only cancel your membership, they say here that "You will be notified a month before hand of your account expiring. So you have time to cancel if you decided to do so." But according to section 4 of their terms you must cancel 30 days prior to your renewal date. Obviously, this is highly problematic.

---for those concerned about potential unwanted charges: the charge shows up as: "ENT. CONSUMER ASSOC" Phone number 203-761-6180 CT"

Here are some tidbits from the ECA mod's themselves, taken from their forum:

Was there a button for auto-renewing?
Yes, for some browsers, but it wasn’t intended to be there, wasn’t a working option and was removed as soon as we became aware

Why can’t we terminate via email?
Because the org has grown too large to handle the volume and requiring a mailed piece separates those who are serious from those who are lazy or finicky – joining and leaving repeatedly – and it gives us written documentation, a paper trail to reconcile against

Notable Parts of their terms of service:

[FONT=&quot]5.[/FONT][FONT=&quot]Right to update Credit Card Account Information[/FONT][FONT=&quot]. If the credit card provided by Member to ECA has expired during an attempt to bill fees per section 4, ECA will revise the expiration date and proceed with billing using the same credit card account.
 
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[quote name='Lawyers Guns N Money']I don't want to really get into a legality debate, but according to that 9th Circuit ruling, a change in a TOS (or any other contract for that matter) is only a "proposed" change until it's accepted by all parties involved. There's nothing in the Terms that say we accept any future changes they decide to make, only that they have the right to propose them.

I'm not an attorney, but that 9th Circuit ruling was pretty clear. I don't necessarily think it's "illegal," but any changes in the TOS wouldn't be binding until accepted.[/QUOTE]

This. Think of any service or game you have purchased which have made you look at the TOS again and accept it because it was changed. World of Warcraft does this all the time. I think I've even had to do it with Ebay and M&I Bank Online.
 
[quote name='Lawyers Guns N Money']I don't want to really get into a legality debate, but according to that 9th Circuit ruling, a change in a TOS (or any other contract for that matter) is only a "proposed" change until it's accepted by all parties involved. There's nothing in the Terms that say we accept any future changes they decide to make, only that they have the right to propose them.

I'm not an attorney, but that 9th Circuit ruling was pretty clear. I don't necessarily think it's "illegal," but any changes in the TOS wouldn't be binding until accepted.[/QUOTE]

[quote name='InFlames215']This. Think of any service or game you have purchased which have made you look at the TOS again and accept it because it was changed. World of Warcraft does this all the time. I think I've even had to do it with Ebay and M&I Bank Online.[/QUOTE]

CT isn't in the 9th Circuit, and that case is in no way binding on the circuit CT is in, the 2nd Circuit. Circuits frequently disagree and have contradictory holdings, which is often persuasive for the Supreme Court to take up an issue to resolve the discrepancies among the Circuits. The 9th Circuit's holding may persuade the 2nd Circuit if the same issue should arise before their courts, but its not binding precedent.

What case are you referring to in the 9th Circuit?
 
[quote name='kodave']CT isn't in the 9th Circuit, and that case is in no way binding on the circuit CT is in, the 2nd Circuit. Circuits frequently disagree and have contradictory holdings, which is often persuasive for the Supreme Court to take up an issue to resolve the discrepancies among the Circuits. The 9th Circuit's holding may persuade the 2nd Circuit if the same issue should arise before their courts, but its not binding precedent.

What case are you referring to in the 9th Circuit?[/QUOTE]
Here's the arstechnica article: http://arstechnica.com/tech-policy/...ing-terms-of-service-without-notification.ars

Douglas v. Talk America is they case they refer to.

Seems like basic contract law to me, as a layman. Changes to a contract aren't binding until accepted by the parties.
 
[quote name='kodave']This isn't directed at anyone in particular, but I keep hearing about how this TOS is "illegal"...

Literally the ECA can change the TOS to say whatever they want without telling us, and unless there is a specific law on point saying "You can't do this or say this in a TOS/contract," its is what it is until someone challenges it in court. The Uniform Commercial Code has been enacted by many states and has sections about good faith and fair dealing which rapidly changing a TOS may violate, but I have no idea what laws are on the books in CT about this, if they could conceivably apply to the ECA, and if a judge is indeed likely to interpret such laws against the ECA. Plus a lot would depend on how common law principles of contract law are interpreted in that state.

The ECA's TOS is shitty from the standpoint of they're supposed to be protecting consumers, but at the same time, it's a pretty standard TOS that, if I had to guess, wouldn't be legally unreasonable. Because while we feel having to send a letter to cancel seems ethically unreasonable for an online consumer group to ask of us, I'd wager that's not legally unreasonable. You'd have to get a pretty radically progressive judge to say that snail mailing a letter is unconscionable, not to mention the kind of precedent that would set (although I'm sure many consumers wouldn't mind that). It's not like we have to sacrifice a goat and then buy Hal a new house or something to opt our of our contracts.

If you really think that ECA's TOS is legally unconscionable, call up a lawyer in CT and have them start doing legal research in preparation for a case to do something about it . Otherwise crying how its "illegal" really does no one any good.

And, I think we got our point across to the ECA that their TOS sucks on an ethical level, so hopefully the new TOS will be more ethically fair to us consumers.[/QUOTE]

Just an FYI coming from a lawyer: the UCC has no bearing here. The UCC is only concerned with goods contracts and banking/secured transaction contracts. A membership with the ECA is more akin to a services contract, governed by common law and statutory law.

As to whether the ToS is unconscionable, likely not. It's shaped like the majority of ToS contracts that have been upheld by courts in the past. The only thing that would be "illegal" would be the lack of notification the ECA provided when it unilaterally changed the terms of the contract. Whenever one party seeks to change a contract, it must notify the other party of those changes and obtain agreement (intent to enter into the new contract) from that party.
 
I think kodave is right here, I haven't seen any compelling evidence that the ECA is violating any laws. That said, the TOS are nothing more than a contract, and you can't write into a contract that you can change it unilaterally as much as you want. While this isn't really illegal, I think if ECA were to try to enforce these TOS in a court of law they wouldn't really hold up. Obviously if they were to change their TOS to say that the new membership is $3000 a day and we have 24 hours to opt out, that wouldn't be legally enforcable.

EDIT: [quote name='Ardrid']The only thing that would be "illegal" would be the lack of notification the ECA provided when it unilaterally changed the terms of the contract. Whenever one party seeks to change a contract, it must notify the other party of those changes and obtain agreement (intent to enter into the new contract) from that party.[/QUOTE] Looks like I was beaten to it. This is absolutely correct, its a services contract and can't be changed unilaterally.
 
[quote name='Lawyers Guns N Money']Here's the arstechnica article: http://arstechnica.com/tech-policy/...ing-terms-of-service-without-notification.ars

Douglas v. Talk America is they case they refer to.

Seems like basic contract law to me, as a layman. Changes to a contract aren't binding until accepted by the parties.[/QUOTE]

Well, you misread the article to start with:

But what if the original user agreement involved signing away rights to be notified of subsequent changes? There is some question as to whether this ruling would also affect that type of agreement, but as Eric Goldman of the Technology & Marketing Law Blog says, it's relatively safe to assume that the decision applies to this situation, "despite contract provisions putatively permitting unilaterally posted website amendments which put the onus on users to check back frequently for updates."

As TechDirt points out, many lawyers are still pushing this type of unilateral change stipulation as part of new terms of service agreements.

The court itself never said their holding applies to situations where the user contracts away their right to be notified of subsequent changes. Merely, some blogger arstechnica contacted or looked up has a personal opinion that this would apply to situations like ours.

But in fact, that same blogger revisited this case and said this:

The case *might* stand for the proposition that websites cannot unilaterally amend their user agreements simply by posting new terms to the website, making it a significant case that would invalidate a broad swath of current online user agreements. On the other hand, we're not exactly sure what the case says because the court opinion is cagey about the exact sequence of events and contract terms at issue.

http://blog.ericgoldman.org/archives/2007/08/douglas_v_talk.htm

And in fact another blogger on that original article points out lawyers all over the country are including such terms like the one we agreed to, to be included in contracts. And basically it comes down to our freedom to contract away our rights and our responsibility to read the TOS of the contract we signed. If you weren't sure what you were signing away, you should have called a lawyer and walked away from the enticement of Amazon discounts.

I'm not going to look up the subsequent case law following the case as I don't have the time, but just a cursory Google-ing of this case and other related terms doesn't bring up anything more recent where the 9th Circuit held that it indeed applies to contracts like ours.

We have contracted that right away with the ECA, and we only have ourselves to blame for that.

Don't take arstechnica.com as legal advice either.

That case is merely one ruling which the 9th Circuit apparently made complicated and might have had a lot to do with their dislike of the arrogance in the contract language itself. It's far from clear law and as I stated before, it is in no way binding upon the 2nd Circuit and might not even be on point for a hypothetical case involving the ECA.
 
[quote name='kodave']You'd have to get a pretty radically progressive judge to say that snail mailing a letter is unconscionable, not to mention the kind of precedent that would set (although I'm sure many consumers wouldn't mind that). It's not like we have to sacrifice a goat and then buy Hal a new house or something to opt our of our contracts.[/QUOTE]

I'm staying out of the legal arguments, not being a lawyer and all, but I don't think that anyone (at least anyone with any sense) is arguing that the ECA's requirement of a snail mail letter in and of itself is illegal or unconscionable. Rather, I think that the argument is about this particular text from the ToS:

ECA reserves the right, at its sole discretion, to change the terms and conditions of this Agreement at any time, with or without notice to any Member
Is it legal for the ECA to say that they're allowed to change their terms and conditions without notice, and yet still consider members to be bound by them? I have no idea, and I'm personally not inclined to even speculate, though I would question how I could be bound to and expected to follow terms and conditions of which I have potentially not even been made aware. However, let's not confuse the subject by shifting the argument to something that is clearly not the issue.
 
[quote name='Ardrid']Whenever one party seeks to change a contract, it must notify the other party of those changes and obtain agreement (intent to enter into the new contract) from that party.[/QUOTE]

But what if one party contracts away their right to be notified of changes? This happens in TOSes all the time and clearly those TOSes exist and have been upheld by courts. I think you're overstating the matter. I'd love to see a statute or case law on point for TOSes in contracts such as the ones we're in with the ECA saying this is the case.

It's my feeling that just because companies notify us of changes to TOS, they're doing it to be fair and to legally cover their own asses in the event someone wants to drag them into court, not because they're necessarily compelled by law to do so.

But I am not a lawyer, nor do I play one on TV. I just have some amount of education in this area.
 
Whether they're legally right or not, it still stinks of hypocrisy. Hiding behind their own Terms when they've claimed to stand up for consumer rights in this area. I'll just be glad when I get my notice of cancellation and wash my hands of them.

It'll sure make me more skeptical of anything that Hal gets involved in going forward.
 
[quote name='arcane93']Is it legal for the ECA to say that they're allowed to change their terms and conditions without notice, and yet still consider members to be bound by them? I have no idea, and I'm personally not inclined to even speculate, though I would question how I could be bound to and expected to follow terms and conditions of which I have potentially not even been made aware. However, let's not confuse the subject by shifting the argument to something that is clearly not the issue.[/QUOTE]

This, I think, is why people keep pointing out the 9th circuit. They pointed out that TOS are a contract and one party can not just change a contract and the other side not have any say. Because like someone earlier pointed out, they could theoretically find the day that the most people are set for renewal, and change the day you have to cancel by, change the cost of renewal to something extremely outrageous, and theres nothing you could do about it. You can not be held to a contract you've never been presented with, much less agreed to.

I realize that CT is not in the 9th circuit jurisdiction, but it sets a precedent and a huge defense for a lawyer to stand on. I really doubt very many other courts would see it diferently
 
[quote name='Warlock82']Anyways, that Ars article was great. Glad to see some of these sites questioning Hal's response.

In any case, I'm not too worried anymore. They will inevitably add an online cancellation method now, so I'll just wait for that.[/QUOTE]

This should be posted in the OP, as it is the most logical answer; the law stuff is getting boring. :drool:
 
[quote name='kodave']But what if one party contracts away their right to be notified of changes? This happens in TOSes all the time and clearly those TOSes exist and have been upheld by courts. I think you're overstating the matter. I'd love to see a statute or case law on point for TOSes in contracts such as the ones we're in with the ECA saying this is the case.

It's my feeling that just because companies notify us of changes to TOS, they're doing it to be fair and to legally cover their own asses in the event someone wants to drag them into court, not because they're necessarily compelled by law to do so.

But I am not a lawyer, nor do I play one on TV. I just have some amount of education in this area.[/QUOTE]

I agree that clearly TOS like this exist all over the place, but I don't believe any drastic changes made unilaterally have ever been held up in court. If I'm wrong about this by all means please post a case where this was upheld. However based on everything I've ever learned about contracts, this isn't a valid term for a contract.

I found this link which is fairly interesting. I know it's from a district court in Texas but it's still interesting. I don't think anything like this has ever made it to the supreme court.

http://sharealike.org/wp-content/uploads/sharealike/2009/04/harris_v_blockbuster_illusory_tos.pdf
 
[quote name='kodave']But what if one party contracts away their right to be notified of changes? This happens in TOSes all the time and clearly those TOSes exist and have been upheld by courts. I think you're overstating the matter.[/QUOTE]

I'd argue, here and before the bench, that the common (and likely CT statutory) law reading of contracts controls and no amount of contractual language to the contrary changes that. When dealing with a services contract, new or changed terms effectively creates an offer to enter into a new contract. Under standard principles, I have to agree to those new terms for the contract to become legally enforceable. For me to agree to those new terms, I have to receive notice of them. Silence is only acceptance if I know of the terms and do nothing that is contrary to them.

An interesting argument one could make is that if ECA is claiming that they are able to change the terms of the contract at will, and without notice, then it follows that the members could do the same, provided the ECA didn't take care of that little hole. After all, they're parties to the contract as well.
 
And let me be clear, I think they should have to notify us of any changes to the TOS at least by email and give us the option to opt out of our contract if we don't agree to those changes. And hopefully that's the direction the law is going to start moving in, like it did in Douglas v. Talk America, Inc.

But that case alone hasn't changed the very nature of contract law, invalidated hundreds of thousands of TOSes, or anything like that. The 9th Circuit tries to be on the cutting edge and often they're overturned for it.

So I do wish that case and what it could possibly stand for clearly applied here, but it just doesn't.

Like I said before, if someone wants to try and make history, go call up a CT lawyer and perhaps you can change the state of contract law over in the 2nd Circuit.
 
The armchair Lawyers are going a bit overboard. Can anybody sum up the kast 50 pages or so - from the above comment I take they are working on giving us "back" online cancellation?
 
[quote name='Lawyers Guns N Money']
It'll sure make me more skeptical of anything that Hal gets involved in going forward.[/QUOTE]

yeah, whether this started out as "this would be a good thing for the gamer community" or "this is something that the gaming community could use, lets make money off them" it has turned into "screw the gamers, my wallet's more important, and I don't care what anyone thinks or says"

And if he's gonna do it with this, he's willing to do it again with something else. I still think the idea of The Eca was a good one, but I will never trust them again, and I will always be skeptical of any future companies of turning into this.
 
[quote name='manumana10']I realize that CT is not in the 9th circuit jurisdiction, but it sets a precedent and a huge defense for a lawyer to stand on. I really doubt very many other courts would see it diferently[/QUOTE]

It's not BINDING precedent though. As I stated before, circuit courts are free to disagree with each other and are under no obligation to make their decisions in the same way as previous circuit courts.

It most definitely is persuasive case, but the 2nd Circuit could literally say "I don't care what those liberal hippies in the 9th Circuit are doing, the 2nd Circuit will make own decision in this case of first impression."
 
[quote name='Ardrid']I'd argue, here and before the bench, that the common (and likely CT statutory) law reading of contracts controls and no amount of contractual language to the contrary changes that. When dealing with a services contract, new or changed terms effectively creates an offer to enter into a new contract. Under standard principles, I have to agree to those new terms for the contract to become legally enforceable. For me to agree to those new terms, I have to receive notice of them. Silence is only acceptance if I know of the terms and do nothing that is contrary to them.

The other interesting piece of their ToS is that if the ECA is claiming that they are able to change the terms of the contract at will, and without notice, then it follows that the members could do the same, provided the ECA didn't take care of that little hole. After all, they're parties to the contract as well.[/QUOTE]

And you're free to argue that all you want.

But the bottom line is, that's not the state of contract law as it applies to terms of service agreements like we're in.

This is a new legal issue that's probably going to be more and more heavily litigated in the future.

But until someone calls up a lawyer in CT and takes the ECA to court over this, the TOS still stands.
 
[quote name='Ardrid']I'd argue, here and before the bench, that the common (and likely CT statutory) law reading of contracts controls and no amount of contractual language to the contrary changes that. When dealing with a services contract, new or changed terms effectively creates an offer to enter into a new contract. Under standard principles, I have to agree to those new terms for the contract to become legally enforceable. For me to agree to those new terms, I have to receive notice of them. Silence is only acceptance if I know of the terms and do nothing that is contrary to them.

The other interesting piece of their ToS is that if the ECA is claiming that they are able to change the terms of the contract at will, and without notice, then it follows that the members could do the same, provided the ECA didn't take care of that little hole. After all, they're parties to the contract as well.[/QUOTE]

agreed except for the last part, as they specifically say in the TOS that they may make changes, but they do not mention any options for us.
 
[quote name='Darkprime']Someone needs to get CNN or another major outlet to cover this story. I think that scale of bad press will get them to fix this problem[/QUOTE]
It's not sensational enough. Someone needs to get shot over some disagreement in MW2 before gamers get mainstream press coverage. :joystick:
 
[quote name='bobright']The armchair Lawyers are going a bit overboard. Can anybody sum up the kast 50 pages or so - from the above comment I take they are working on giving us "back" online cancellation?[/QUOTE]

If by armchair you mean actively practicing in an Attorney General's office, then, yes, I'm an armchair lawyer :)

Just trying to help those who are interested in the legal component sift through the questionable legality of the ECA's actions.
 
[quote name='kodave']And you're free to argue that all you want.

But the bottom line is, that's not the state of contract law as it applies to terms of service agreements like we're in.

This is a new legal issue that's probably going to be more and more heavily litigated in the future.

But until someone calls up a lawyer in CT and takes the ECA to court over this, the TOS still stands.[/QUOTE]

I'm not really disagreeing with you, but I just don't really understand why a Terms of Service agreement is different from any other Service Contract. Maybe you can shed some light on this?
 
[quote name='kodave']It's not BINDING precedent though. As I stated before, circuit courts are free to disagree with each other and are under no obligation to make their decisions in the same way as previous circuit courts.

It most definitely is persuasive case, but the 2nd Circuit could literally say "I don't care what those liberal hippies in the 9th Circuit are doing, the 2nd Circuit will make own decision in this case of first impression."[/QUOTE]

I don't disagree that the 2nd circuit could rule entirely different from the 9th, they can do whatever they want. Just simply saying that it has been said by a court before, so it is a valid interpretation, and can make a solid defense in court, if anyone took them to court.


*I am not a lawyer, and though I've had some legal classes, if anyone really cares about the legality of these issues, please contact a lawyer, preferably one in CT, or that is familiar with CT business/non-profit law"
 
[quote name='jaynatch']I'm not really disagreeing with you, but I just don't really understand why a Terms of Service agreement is different from any other Service Contract. Maybe you can shed some light on this?[/QUOTE]

The issue is really the fact we've contracted away our right to be notified of any changes to the TOS which sets forth each parties rights and duties.

I fully agree there are principals of contract law that could very well say we can't contract away such a fundamental right. There might even be state or federal laws that say such a thing.

But so far no one has been able to provide any case on point showing where a contract like ours has been thrown out because of their unilateral right to change the TOS. The one case from the 9th Circuit isn't 100% clear or on point, and it was the first time the 9th Circuit ever dealt with such an issue.

Furthermore no one has been able to provide any statute saying we can't contract away our right to notification of changes.

If someone could please point these out anywhere, then I'd gladly re-examine them and change my own personal stance.

But until either of those occur, all you're arguing on is the principles of contract law, and a court may not agree with your interpretation of how those principles of contract law apply to the issue at hand.

So there's nothing cut and dry about this issue at all. It's highly complicated and probably will be heavily litigated in the future.

If you strongly feel this contract has violated your rights at contract law, call a lawyer in CT.
 
[quote name='Ardrid']If by armchair you mean actively practicing in an Attorney General's office, then, yes, I'm an armchair lawyer :)

Just trying to help those who are interested in the legal component sift through the questionable legality of the ECA's actions.[/QUOTE]

Pfffft! AG's office? You aren't qualified to discuss the law until you've taken a handful of accounting classes towards a BA and have a 98% average!
 
[quote name='chakan']Can we please, please, please not start that again?[/QUOTE]

i second that.

i'd like to know if, and when is IGN gonna respond to this - I have not seen/heard anything from them about the ECA or their affiliation, since this whole thing... (unless i missed it)
 
[quote name='Dead of Knight']For some reason I'm LMAO at the Titanic picture.... it inherently shouldn't be very funny, but for some reason, it cracks me up. Great job Haggar.[/QUOTE]

[quote name='Josef']I laughed for nearly two minutes...Bravo, sir! :applause:[/QUOTE]



Thank you, thank you. :)
 
[quote name='kodave']The issue is really the fact we've contracted away our right to be notified of any changes to the TOS which sets forth each parties rights and duties.

I fully agree there are principals of contract law that could very well say we can't contract away such a fundamental right. There might even be state or federal laws that say such a thing.

But so far no one has been able to provide any case on point showing where a contract like ours has been thrown out because of their unilateral right to change the TOS. The one case from the 9th Circuit isn't 100% clear or on point, and it was the first time the 9th Circuit ever dealt with such an issue.

Furthermore no one has been able to provide any statute saying we can't contract away our right to notification of changes.

If someone could please point these out anywhere, then I'd gladly re-examine them and change my own personal stance.

But until either of those occur, all you're arguing on is the principles of contract law, and a court may not agree with your interpretation of how those principles of contract law apply to the issue at hand.

So there's nothing cut and dry about this issue at all. It's highly complicated and probably will be heavily litigated in the future.

If you strongly feel this contract has violated your rights at contract law, call a lawyer in CT.[/QUOTE]

Still doing some research on Lexis but I've pulled this from a Supreme Court of Connecticut case, captioned Lar-Rob Bus Corporation v. Town of Fairfield et al., 170 Conn. 397: "For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties 'must assent to the same thing in the same sense . . . if they are to vary the contract in any way."

EDIT: Some additional principles that the ECA ran afoul of: "A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do. Past consideration does not constitute legal consideration in the law of contracts. Past consideration will not support a new promise." "Continued employment (membership in our case) is not sufficient consideration to support a modification to a contract. Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn. App. 741.

Attempting to narrow down the focus to contracts that appear to waive the right to notice.

EDIT: Bingo. Found a clause that is almost exactly what we're dealing with. From an unreported opinion out of the Connecticut Superior Court, caption Norton v. Commercial Credit Corp., 1998 Conn. Super. LEXIS 2833: "Unless otherwise expressly stated elsewhere in this Handbook, the Company, for any reason, may unilaterally, in its sole discretion, create, amend, supplement, modify or eliminate any benefits, rules or policies without prior notice to employee."

And the court said: "The language quoted in the handbook is so one sided as to be almost unconscionable and against public policy. Accordingly, the court finds the promise by the employer (CCC/Primerica/Travelers) to be no consideration to the plaintiff. [T]his court finds any agreement by the plaintiff ... to be without consideration, invalid and unenforceable."

I think we can all agree that an employment contract is a services contract and analogous to a membership agreement/contract. There's your law, folks.
 
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BBB sent me an email today. Said ECA has to respond by 12/22 and that they'll contact me for more information after the ECA makes their statement.
 
I wasn't reading the thread over the weekend.. and have to thanks on the "BA argument, 98% of the class, etc...", a break from ECA madness. LMAO.

By the way, when are we going to send the mass letter?
 
[quote name='Ardrid']Still doing some research on Lexis but I've pulled this from a Supreme Court of Connecticut case, captioned Lar-Rob Bus Corporation v. Town of Fairfield et al., 170 Conn. 397: "For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties 'must assent to the same thing in the same sense . . . if they are to vary the contract in any way."

Attempting to narrow down the focus to contracts that appear to waive the right to notice.[/QUOTE]

Thanks for looking on Nexis... I've seen many similar holdings and stuff, but that doesn't appear to be on point after a quick skim.

That case is an issue of just how many school buses the district was contractually obligated to use and a letter that came after claimed to have modified the original contract but the court rejected it as modification of the original contract. Open any contracts textbook and there's a million cases about a later document purporting to modify an earlier one.

That's says nothing at all about whether or not we can contract away our right to notice of modifications of the TOS. If we HADN'T contracted it away, OF COURSE mutual assent is needed for modification. But we did contract it away, so I think it's a whole different ball game. And you CAN contract away rights, its just a matter of whether the rights are so fundamental that no one can contract them away in the manner that they're contracted away.

So again, either there's got to be something that uses those fundamental principles of mutual assent and other contract law to say we can't even do such a thing, or we're basically back to what appears to be an unlitigated issue in CT / 2nd Circuit.

Again, if any of this was as blatantly illegal as we'd like to believe, it'd have been more heavily litigated by now and there'd be more case law to rely on. This is truly a new issue for the courts.
 
I was just going to respond saying all this legal analysis is getting out of hand. You cannot just interpret a statute on your own, the only thing that matters is the past interpretations by courts. Laws are very complex and often vague, they are only one aspect of the law, court rulings fill in a lot of the vagueness. I see someone else with legal training beat me to the punch and is actually citing sources.

I'd rather not give my own legal interpretation over the internet, but to me it doesn't really matter- a consumer advocacy organization should never act in such a way that it even gets to this point.

The only thing I'd comment is, I have no idea if the Connecticut law is even the relevant statute, civil procedure is very complex, especially with an organization
that exists primarily on the internet.

If you all enjoy discussing legal interpretations over the internet, that's fine, but the majority of the stuff I've read has a lot if problems...with the exception of the latest posts on the topic.
 
[quote name='kodave']
Again, if any of this was as blatantly illegal as we'd like to believe, it'd have been more heavily litigated by now and there'd be more case law to rely on. This is truly a new issue for the courts.[/QUOTE]

TOS are not a truly new legal issue, but someone with access to Lexis is either a law student or lawyer, so they probably have more basis for interpretation than you do...The other limited comment I'd make is just because something is written in a TOS by no means whatsoever makes it legal.

By the way a good lawyer could argue for or against any interpretation of a statute. There are rarely black and white answers with the law.

Again, I really don't think the legality of ECA's TOS is all that important, they should just do the right thing by virtue of what they stand for.
 
[quote name='caltab']I'd rather not give my own legal interpretation over the internet, but to me it doesn't really matter- a consumer advocacy organization should never act in such a way that it even gets to this point.[/QUOTE]

Exactly. This is the point that's getting lost in all of this legal bickering. Honestly, I don't even really care whether the ECA's terms are legal or not, as long as it doesn't get to a point (and I don't think that it will) where I have no choice but to contest them in a court to get out of my membership (and really, at that point, they'd be breaking the snail mail cancellation portion of their terms as well, so it would be cut and dried). Otherwise, it's really a moot point, because I don't intend to press any kind of charges regardless. I don't have the time to deal with it, and the returns wouldn't be worth the effort and expense.

What matters to me is that, regardless of the legality of it, the ECA's actions are ethically unconscionable and entirely contrary to what they supposedly represent. Honestly, I'm glad for the sake of those people who do plan to remain as members that the ECA says they're working on the issues, and I hope that they do manage to fix them. However, the reality is that no amount of changes that they can make can regain my trust, in their competence if not their intentions, at this point. And really, that's all that I need to know.
 
There's not even really any damages at this point, unless they charged you without notice. Really, the remedy, if the tos are somehow in violation of the law, would be for them to change them, which they probably already are doing.
 
[quote name='kodave']Thanks for looking on Nexis... I've seen many similar holdings and stuff, but that doesn't appear to be on point after a quick skim.

That case is an issue of just how many school buses the district was contractually obligated to use and a letter that came after claimed to have modified the original contract but the court rejected it as modification of the original contract. Open any contracts textbook and there's a million cases about a later document purporting to modify an earlier one.

That's says nothing at all about whether or not we can contract away our right to notice of modifications of the TOS. If we HADN'T contracted it away, OF COURSE mutual assent is needed for modification. But we did contract it away, so I think it's a whole different ball game. And you CAN contract away rights, its just a matter of whether the rights are so fundamental that no one can contract them away in the manner that they're contracted away.

So again, either there's got to be something that uses those fundamental principles of mutual assent and other contract law to say we can't even do such a thing, or we're basically back to what appears to be an unlitigated issue in CT / 2nd Circuit.

Again, if any of this was as blatantly illegal as we'd like to believe, it'd have been more heavily litigated by now and there'd be more case law to rely on. This is truly a new issue for the courts.[/QUOTE]

You're missing the point. The underlying facts of Lar-Rob are irrelevant and not dispositive of the issue before us. What matters is the legal holding as it relates to contract modification. Furthermore, the Superior Court's decision in Norton, a case which factually dealt with a services contract containing the issue you're looking for, clearly indicates that unilateral contract modification without notification to all parties is practically unconscionable, against public policy, and unenforceable as a matter of law. These aren't my interpretations. They are the interpretations of the Connecticut judicial system.

Just because the issue hasn't been litigated doesn't mean the terms aren't "illegal per se". No one thought the arbitration clause that credit card companies slipped into their ToS weren't improper either...until they were challenged. That's why we have cases of first impression.
 
[quote name='caltab']TOS are not a truly new legal issue, but someone with access to Lexis is either a law student or lawyer, so they probably have more basis for interpretation than you do...The other limited comment I'd make is just because something is written in a TOS by no means whatsoever makes it legal.

By the way a good lawyer could argue for or against any interpretation of a statute. There are rarely black and white answers with the law.

Again, I really don't think the legality of ECA's TOS is all that important, they should just do the right thing by virtue of what they stand for.[/QUOTE]

TOSes are nothing new, but the idea that we can't contract our rights away to not be notified of modification of the TOS doesn't appear to have been litigated, otherwise there would be evidence of it through a search on Lexis, and just as evidence that it exists all, there'd be more discussion about it on legal and tech blogs.

Hell, just go back to Hal Halpin's article on EULAs... He says they'd likely not stand up in court, and that might be all very fine and true, but until someone takes it that far, there's no way of knowing for certain. That's why Hal is advocating for standardized EULAs because there's nothing on point that directly makes any of these crazy complicated EULAs invalid.

All of my discussion on the legal aspects of this have just been to make a point that there's nothing blatantly illegal about this as many people want to think. There's just discussion that these are wrong and shouldn't be upheld, but we're still waiting for the law to catch up with that idea and for these ideas to be litigated.

That's why I've said at the end of several posts now, call a lawyer if you want to challenge the TOS because its going to take tons of hours to research an argument against it because there's nothing that's already been litigated that is the golden ticket out of such a TOS that we've entered into.
 
[quote name='Ardrid']Furthermore, the Superior Court's decision in Norton, a case which factually dealt with a services contract containing the issue you're looking for, clearly indicates that unilateral contract modification without notification to all parties is practically unconscionable, against public policy, and unenforceable as a matter of law. These aren't my interpretations. They are the interpretations of the Connecticut judicial system.

Just because the issue hasn't been litigated doesn't mean the terms aren't "illegal per se". No one thought the arbitration clause that credit card companies slipped into their ToS weren't improper either...until they were challenged. That's why we have cases of first impression.[/QUOTE]

Right, and I've been saying that this is practically a case of first impression. Because when you're going to rely on a Superior Court case as one of your main cases, that's fairly weak. (But that's not to say I don't agree with that holding)

So someone go file suit in CT state court and tell them that by the theories of contract law the state court has accepted, this TOS is unenforceable.

But like I've said all along, until someone does that, we're all still left here with our pants down and holding our dicks in our hands.
 
[quote name='kodave']
But like I've said all along, until someone does that, we're all still left here with our pants down and holding our dicks in our hands.[/QUOTE]

Do I have to stop once someone does? :(
 
[quote name='confoosious']This legal back and worth is making me fall asleep.

What's the development on things that actually matter?[/QUOTE]

The elders have decided we need more vespine gas. (This thread is going nowhere.)
 
[quote name='georox']The elders have decided we need more vespine gas. (This thread is going nowhere.)[/QUOTE]

There's no where really for it to go until the ECA says or does something, since they made the stunningly wise decision to shut down their forums, we have little to actually comment on. It seemed like every time they said something, they were just making the problem worse.
 
Everytime they answered someone's question on the forums.. they'd just ignore the main part. They cliam to be working on things but there is no news on the main page of the ECA or anything... this is riiduclous.
 
[quote name='georox']Explanation on why everything on their end vanished/went quiet: They are amassing a great quantity of purple Flavor-Aid.[/QUOTE]

Winter BBQ party Hotdogs and Flavor-aid for all members ?
 
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