Seasonal Clearance Sales and Binding Arbitration - Dillard's Terms of Use

    While browsing the sales on Dillard's website, a notice appeared at the bottom of the page concerning terms of use. I'll admit that I don't pay particular attention to these, but this one made it very clear that the update included a binding dispute resolution and arbitration clause, and that continued use of the website constituted consent to said clause. Driven by curiosity, I clicked through to the terms of use...

    And was greeted with a very broad arbitration and dispute resolution clause:

"To the fullest extent permitted by applicable law, any dispute or claim (whether based in contract, tort, fraud, misrepresentation, or any other statutory or common law legal theory) arising out of or relating in any way to these Terms of Use, your visit to the Site, your relationship with Dillard's, or to any purchase, return or other transaction with Dillard’s (including claims relating to Dillard’s advertisements and disclosures, email and mobile SMS messages sent by Dillard’s, or Dillard’s collection or use of your information) (“Dispute”) shall be resolved through binding arbitration, rather than in court. Dispute shall be interpreted broadly and includes claims that arose before the existence of these Terms of Use or claims that may arise after the termination of these Terms of Use." (https://www.dillards.com/c/faqs-notices-policies)

    The above is one paragraph out of two pages outlining the process drafted by Dillard's lawyers for dispute resolution. This may not be a concern for the occasional small purchase, but let's throw out a hypothetical:

    You've just graduated law school and are building out a professional wardrobe. You've done your homework and have particular construction techniques, fabrics, etc. in mind to balance longevity and budget. During a sale, where all purchases are final, you buy several suits based on the product information present on the website, putting down a not-insignificant amount of cash. In the excitement, you glossed over the little terms of use pop-up at the bottom of the screen. When your suits arrive, they are not what you read in the details. You know your possible causes of action, so you pick up the phone loaded for bear, only to be directed to the terms of use. You are now funneled into the "mandatory informal dispute resolution process" contained in 16(a) of the terms of use.

    Arbitration clauses are a fact of life for consumers, and have increasingly been tacked onto contracts (for example, cell phone and internet providers) where you have little freedom negotiate. In some instances, you may be able to strike or amend them in settings where negotiation is the norm, and with enough time and willpower - say, purchasing a car or major appliances at a local showroom.

    But, these examples are dissimilar to a company sliding an arbitration agreement into their website's terms of use - because large ticket purchases or term contracts tend to come with paperwork you're expected to read and sign. Here, it's entirely possible to "miss" the notice and be forced to either waive your rights or litigate the invalidity of the terms of use. And in an age where online shopping is much more expansive than just books and clothing (Amazon Pharmacy, for example), is the convenience of online shopping worth waiving your rights in the event of a problem?