Contracts of Adhesion: Inaccessibility and Lack of Consumer Protections onTerms ofUse Agreements

Contracts of Adhesion: Inaccessibility and Lack of Consumer Protections on Terms of Use Agreements

Michael Sun Edited by Gwen Ha

Michael Sun is a third-year political science major from Orange County. His hope is to pursue a fulfilling career in law after graduating from UC Santa Barbara. He is thankful for the opportunity to learn and connect with my fellow pre-law peers in contributing to the first edition of the UCSB Undergraduate Law Journal.

ABSTRACT

Consumers today find themselves bound by contracts of adhesion in the form of Terms of Service (ToS) agreements required to access most or all their services. ToS agreements (aka Terms of Use, Terms and Conditions, Conditions of Use, User Agreements) are legally binding documents between service providers and users seeking access to a service; common elements of a ToS agreement include verbiage outlining the rights and responsibilities of the user, privacy policies, intellectual property statements, liability/accountability provisions, etc. Several observants have noted the increasingly anti-consumer nature of industry-standard ToS agreements due to the prevalence of amend-at-will-without-notice clauses, binding arbitration clauses, and the non-negotiabilityof said terms. The issue of anti-consumerism within ToS agreements has garnered attention from lawmakers who propose legislation such as the ‘TLDR’ Act, which would require service providers to display a “summary statement”

making their terms “easy to understand” while disclosing information on recent data breaches and what sensitive personal data they collect. However, the issue with contracts of adhesion is not limited solely to a lack of understanding-more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. Courts should consider three categories of justifications for strengthening consumer protections vis-à-vis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers meaningless; Congress should place regulations building on consumer protections by prohibiting mandatory arbitration and banning waivers of right to class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industry-standard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue.

INTRODUCTION

A Contract of Adhesion is a legal agreement between two parties with disproportionate bargaining power, wherein one party enjoys substantially more power in setting the terms of the contract than the other. Also known as standard form contracts or ‘boilerplate’ contracts, adhesion contracts are characterized by the inability of the minority party to negotiate terms ex-antethe terms are often presented as a ‘take it or leave it’ agreement drafted by the party of superior bargaining strength and standardized across any number of consumers. The vast majority of economic contracts are contracts of adhesion-they apply to billions of commercial transactions every year, and most consumers who wish to participate in the modern economic system find themselves inevitably bound by the standard form contract. Common examples of adhesion contracts are Terms of Service (ToS) agreements, Enduser license agreements (EULAs), liability waivers, contracts for

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cellular/internet services, insurance, car purchases, and an untold number of other commercial transactions.

The development of a modern consumer economy driven by billions of near-instantaneous consumer transactions conducted daily necessitated the advent of standard form contracts to facilitate economic efficiency and prevent the costs of doing business from reaching astronomical levels.1 However, the power imbalance inherent in these type of agreements have led courts to question the conscionable and subsequent enforceability of adhesion contracts-this is especiallythe case given the prevalence of amendat-will-without-notice clauses, binding arbitration clauses, and the nonnegotiability of said terms.

These factors contribute to increased perceptions of anti-consumer behavior and practices which are exacerbated by consumers’ inaccessibility in reading and comprehending the terms they assent to, and their inability to negotiate upon these terms. The issue of anti-consumerism within ToS agreements has garnered attention from lawmakers who propose legislation such asthe ‘TLDR’ Act, which would require service providers to display a “summary statement” making their terms “easy to understand” while disclosing information on recent data breaches and what sensitive personal data they collect.

However, the issue with contracts of adhesion is not limited solely to a lack of understanding-more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. Courts should consider three categories of justifications for strengthening consumer protections vis-à-vis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers

1 Llewellyn, K. and Prausnitz, O., 1939. The Standardization of Commercial Contracts in English and Continental Law. Harvard Law Review, 52(4), p.700.

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meaningless; Congress should place regulations building on consumer protections by prohibiting mandatory arbitration and banning waivers of the rightto class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industry-standard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue.

Due to the pervasiveness of adhesion contracts, more emphasis needs to be placed on strengthening consumer protections in the substantiation and enforcement of the standard form contract. Although U.S. consumer protection mechanisms already exist out of recognition of this, the decentralized nature of legal remedies and reliance on the litigation process means its weakness lies in the unequal reality of who has access to the government and courts.2

I. ADHESION CONTRACTS –STATUS QUO

A. BRIEF HISTORY OF ADHESION CONTRACTS IN COMMON

LAWJURISPRUDENCE

The concept of the adhesion contract originated within French civil law when the famous French civilist Raymond Saleilles, in discussing party autonomy as defined by the recently promulgated German Civil Code, defined the adhesion contract (contrat d’adhésion) as “preformulated stipulations in which the offeror’s will is predominant and the conditions are dictated to an underdetermined number of acceptants and not one individual party”.3 It entered American jurisprudence when the Harvard LawReview published an influential article by Edwin W. Patterson in 1919, which was

2 Waller, S., Brady, J., Acosta, R., Fair, J. and Morse, J., 2022. Consumer Protection in the United States: An Overview. [online] Papers.ssrn.com. Available at: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1000226> [Accessed 7 May 2022]. 3 Bolgar, V., 1972. The Contract of Adhesion: A Comparison of Theory and Practice. The American Journal of Comparative Law, 20(1), p.53.

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solidified by Freidrich Kessler’s famous comparative article on adhesion contracts published in the Columbia Law Review . 4

The concept was subsequently adopted by most American courts, when the Supreme Court of Californiaendorsed their adhesion analyses in Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862, 882 n.10 (1962), affirming the conception of the standard form contract as defined by Patterson and Kessler, and invoking the doctrines of ambiguity and unconscionability which serve as the basis for determining enforceability in adhesion contracts today.5 Adhesion contracts are a category of contracts that contain the following characteristics:

(1) Drafted by the party of superior bargaining power and signed by the party of weaker bargaining power (2) Non-negotiable; typically offered on a ‘take-it-or-leave-it’ basis6 (3) Standardized or ‘boilerplate’ language (4) Drafted for an indefinite number of signees

There are three different types of adhesion contracts:

(1) Browse-wrap contracts-agreements in which users or customers assent to simply by accessing or using the website. Browse-wrap agreements often cover a user’s browsing of a Web site or agreement for a transaction in which the user can browse the terms but does not have to assent by express means. Browse-wrap contracts may require consumers to click through multiple hyperlinks to read and agree to the terms and conditions.

4 Patterson, E., The Delivery of a Life-Insurance Policy, 33 Harvard Law Review, 198 (1919); see also Friedrich Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 Colum. L. Rev. 629 (1943). 5 SCOCAL, Steven v. Fidelity & Casualty Co. , 58 Cal.2d 862 available at: (https://scocal.stanford.edu/opinion/steven-v-fidelity-casualty-co-27180) (last visited Friday May 6, 2022). 6 Andrew A. Schwartz, Consumer Contract Exchanges and the Problem of Adhesion, 28 Yale J. on Reg. 313 (2011), available at https://scholar.law.colorado.edu/articles/448.

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Therefore, courts usually do not enforce browse-wrap contracts because of the procedural unconscionability of buried terms.7

(2) Click-wrap contracts-agreements in which users assent by means of an immediately available pop-up box stating, “I Agree”. Clickwrap legality stems from foundational e-signature law and clickwraps must meet the same standards as other legal agreements; therefore, courts generally enforce click-wrap contracts.8

(3) Sign-in-Wrap contracts-online agreements requiring the user to assent to the terms and conditions by affirmatively signing up for the website or service when the terms and conditions are available only by clicking on a hyperlink”. Sign-in-Wrap contracts require that users electronically accept the terms by clicking “I accept” or

“I agree” as the last step of the signup process before allowing consumers to use their products or services. Courts generally enforce Sign-in-Wrap agreements.9

Adhesion contracts are typically deemed enforceable in common law jurisdictions. When determining enforceability, courts look at the type of adhesion contract, as well as examining the doctrine(s) of: duty-to-read, ambiguity, reasonable expectations, and unconscionability.

1. THE DUTY-TO-READ DOCTRINE

The duty to read is a principle persisting within American jurisprudence that sets the foundation for much of U.S. contract law that holds all contracting parties responsible forthe terms for which they signed, as each party has a responsibility to read their contracts,

7 Jerez v. JD Closeouts, LLC, 36 Misc. 3d 161. 8 Caspi v. Microsoft Network, 323 N.J. Super. 118. 9 Berkson v. Gogo LLC, 97 F. Supp. 3d 359.

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and one or more parties’ failure to do so does not diminish the force of the contract.10 This notion is exemplified in the following statements:

It is beyond cavil that a party accepting an offer has an absolute duty to read and understand the terms of an offer, and failure to do so will not diminish the force and effect of the resulting contract.11

A person signing an agreement has a duty to read it and, absent a showing of fraud, if the person is capable of reading and understanding the contract then he is charged with the knowledge of what the contract says.... He cannot avoid the consequences of what he signed by simply saying that he did not know what he signed.12

While the duty-to-read doctrine is the basis of general contract law, the disproportionality of bargaining power coupled with the inherent nonnegotiability of adhesion contracts means courts may look less favorably on the party of superior bargaining strength when determining the contract’s enforceability. Empirical evidence suggests that the vast majority of consumers do not read their contracts; moreover, consumer contracts may be written in a way expressly intended to dissuade consumers from reading them.13 Depending on the type of adhesion contract used, courts can strike down adhesion contracts if the contract is ambiguous or if relying on the duty to read necessarily leads to an unconscionable outcome.

10 Charles L. Knapp, Is There a "Duty to Read"?, 66 Hastings L.J. 1083 (2015). Available at: http://repository.uchastings.edu/faculty_scholarship/1282 11 66 VMD Assocs. v. Melick-Tully & Assocs., No. L-6584-07, 2oii WL 350316o, at *5 (N.J. Super. Ct. App. Div. Aug. ii, 2011). 12 Nunn v. C.C. Midwest, 151 S.W.3d 388, 402 (Mo. Ct. App. 2004). 13 Uri Benoliel & Shmuel I. Becher, The Duty to Read the Unreadable, 60 B.C. L. Rev. 2255 (2019), https://lawdigitalcommons.bc.edu/bclr/vol60/iss8/2

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2. THE DOCTRINE OF AMBIGUITY

The doctrine of ambiguity, also known as the contra proferentemdoctrine, is a rule of contractual interpretation that holds in cases of interpreting legal agreements, cases of ambiguity are strictly construed unfavorably to the drafter of said agreement.14 In recognition of this rule, drafters of contractual agreements are called to ensure the terms of the agreement are as clear and explicit as possible, and the scope of the agreement covers as many reasonably foreseeable contingencies as possible. Ambiguity materializes when a document’s language leads a reasonable reader to two or more equally plausible interpretations.15 While the duty-to-read doctrine maintains that a consumer’s failure to read or understand the terms of their contract does not diminish said contract’s force (often resulting in unfavorable outcomesfor consumers), the doctrine of ambiguity emerges as a defense to the duty-to-read doctrine. In cases of ambiguity in contractual agreements, courts tend to rule unfavorably toward the drafter of the agreement. However, in the case of adhesion contracts, which by design are drafted for an indefinite number of consumers who by and large are unable or unwilling to read and interpret their contracts, courts are forced to look beyond a contract’s mere substance, but its intent .

3. THE DOCTRINE OF REASONABLE EXPECTATIONS

The doctrine of reasonable expectations is the principle providing that the objectivelyreasonable expectations of a consumer regarding a contract’s terms shall be honored even though the painstaking study of the contract’s

14 88 Colum. L. Rev. 1849 (1988) Insurance As Contract: The Argument for Abandoning the Ambiguity Doctrine 15 John F. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Denv. U. L. Rev. 241 (2002).

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provisions would negate those expectations . 16 The doctrine of reasonable expectations goes beyond contra proferentemas it may lead courts to rule unfavorably against the drafter of a contract even in cases where language is clear and unambiguous. This principle is appliedin insurance law as a defense to a contract’s enforcement-however, the adhesive nature of most insurance contracts may lead courts to adopt this principle out of recognition to instances where an adhesion contract leads a reasonably intelligent consumer to misconstrue the terms of their agreement. This principle is exemplified in the following statement by the Supreme Court of Arizona on how the doctrine of reasonable expectations can be applied to adhesive insurance contracts with unambiguous language:

Where the contract terms, although not ambiguous to the court, cannot be understood by the reasonably intelligent consumer who might check on his or her rights, the court will interpret them in light of the objective, reasonable expectations of the averageinsured...,17

It is worth noting the doctrine of reasonable expectations remains controversial within insurance law, and while the principle has proliferated within some jurisdictions, others have refused or been reluctant to do so.

4. DOCTRINE OF UNCONSCIONABILITY

The doctrine of unconscionability is a principle derived from Section 2-302 of the Uniform Commercial Code which leads courts to rule unfavorably

16 Keeton, Robert E. “Insurance Law Rights at Variance with Policy Provisions.” Harvard Law Review 83, no. 5 (1970): 961–85. https://doi.org/10.2307/1339729. 17 682 P.2d 388, 397 (Ariz. 1984) (adopting RESTATEMENT (SECOND) OF CONTRACTS § 211 (1981)

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towards the drafter of an agreement if the terms of said agreement are so ‘unfair’ or ‘one-sided’ that its enforcement would “shock the sensibilities” of the court.18 In the case of adhesion contracts, the disproportionality of bargaining power, non-negotiability of terms, and standardized boilerplate terms can lead draftees of an agreement to create terms that any reasonable person may deem oppressive or unfair.

Courts tend to strictly rule unfavorably towards a contract’s drafters when the enforcement of the said contract would be unconscionable. Therefore, it is an important justification for courts to act out of recognition of unfair bargaining practices that occur en masse due to the size and scale of the modern consumer economy.

III. JURISDICTION (U.C.C. § 2-302)

(1) “If the court as a matter of law finds the contractor any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionableresult.” –U.C.C. § 2302

The principle of unconscionability finds its basis in sections2-302 of the Uniform Commercial Code (U.C.C.). The U.C.C. is a comprehensive code addressing most aspects of commercial law and is generally viewed as one of the most important developments in American jurisprudence.19 The U.C.C. is a model code; therefore, its provisions do not have a legal effect in any given jurisdiction unless U.C.C. provisions are enacted by individual state legislatures as statutes. All U.S. states, including the District of Columbia,

18 70 U. Chi. L. Rev. 1513 (2003) The Philosophical Dimensions of the Doctrine of Unconscionability 19 Law.duke.edu. 2022. Uniform Commercial Code (UCC). [online] Available at: <https://law.duke.edu/lib/research-guides/ucc/> [Accessed 7 May 2022].

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Puerto Rico, and the Virgin Islands have enacted the U.C.C. either in whole, or in part. Fourteen states20 have adopted Article 2 of the U.C.C. concerning Sales.21

While section 2-302 was first proposed in the 1940s, the principle of unconscionability was applied long before the code’s introduction. Although section 2-302 is substantially just a restatement of common law (with the concept of unconscionability tracing back to English common law at least as early as 1663),22 U.C.C. § 2-302 represents the first statutory embodiment of the concept of unconscionability, codifying unconscionability as a defense to all actions, legal or equitable, based on sales contracts.23

II. INACCESSIBILITY AND A LACK OF CONSUMER PROTECTIONS ON ADHESION CONTRACTS

The development of a modern consumer economy driven by billions of nearinstantaneous consumer transactions conducted daily necessitated the advent of standard form contracts to facilitate economic efficiency and prevent the costs of doing business from reaching astronomical levels.24 However, the power imbalance inherent in these adhesion contracts hasled legislators to question their conscionablyand the anti-consumer practices they enable. Due to the pervasiveness of adhesion contracts, more emphasis needs to be placed on strengthening consumer protections in the substantiation and

20 These states are Arizona, Arkansas, California, Georgia, Kansas, Kentucky, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Oklahoma 21 US Legal, I., 2022. States Adopting the UCC – Uniform Commercial Code. [online] Uniformcommercialcode.uslegal.com. Available at: <https://uniformcommercialcode.uslegal.com/states-adopting-the-ucc/> [Accessed 7 May 2022]. 22 William B. Davenport, Unconscionability and the Uniform Commercial Code, 22 U. Miami L. Rev. 121 (1967) Available at: https://repository.law.miami.edu/umlr/vol22/iss1/8 23 The Yale Law Journal, 1954. Section 2-302 of the Uniform Commercial Code: The Consequences of Unconscionability in Sales Contracts. 63(4), p.560. 24 Llewellyn, K. and Prausnitz, O., 1939. The Standardization of Commercial Contracts in English and Continental Law. Harvard Law Review, 52(4), p.700.

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enforcement of the standard form contract. Although U.S. consumer protection mechanisms already exist out of recognition of this, the decentralized nature of legal remedies and reliance on the litigation process means its weakness lies in the unequal reality of who has access to the government and courts.

A. S. 3501: TLDR ACT

One promising legislative development in the realm of bolstering consumer protections on adhesion contracts is the precedential U.S. Senate Bill S. 3501, termed the “Terms-of-Service Labeling, Design, and Readability Act (‘TLDR’ Act)”. Introduced in the 117th Congress in 2022, this bill purports to: (1) inform consumers of how their data is collected and used; (2) empower consumers to compare simple and standardized ToS Agreements across vendors; (3) facilitate independent oversight and study of ToS contracts. The bill language would require draftees of adhesion contracts to create concise, easy-to-read, machine-readable summary statements located at the top of any existing ToS page. Summary statements are required to contain information on the collection and user of consumer data, and the legal liabilities of the consumer using the service (including their rights to content, mandatory arbitration, and class action waivers). The bill would provide enforcement mechanisms for violation of this law by authorizing the Federal Trade Commission to treat violations as an ‘unfair or deceptive practice’ and authorizing State Attorneys General to bring civil action against violators of this law on behalf of at least 1,000 affected residents of their state.25

25 GovTrack.us. 2022. Text of S. 3501: TLDR Act (Introduced version) - GovTrack.us. [online] Available at: <https://www.govtrack.us/congress/bills/117/s3501/text/is> [Accessed 7 May 2022].

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B. PROPOSED SOLUTIONS

Although the TLDR Act represents an important first step in bolstering consumer protections on adhesion contracts, the legislation is limited in its focus on consumer readability and understanding. However, the issue with contracts of adhesion is not limited solely to a lack of understanding-more focus needs to be made on regulating the contents of the terms themselves, rather than simply informing consumers. I propose the following solutions in going beyond consumer readability and implementing a more robust protective framework on adhesion contracts:

1. PROHIBITION OF MANDATORY ARBITRATION CLAUSES

Mandatory Arbitration is a form of alternative dispute resolution (ADR) in which each party submits their disputes and evidence to an arbitrator, as opposed to receiving judicial attention through the trial process.26 In cases of unconscionability in adhesion contracts, consumers’ only remedy often lies in the court system through the litigation process. Mandatory Arbitration Clauses exacerbate the disproportionality in bargaining power and leverage institutional advantages draftees of adhesion contracts often enjoy when disputes arise. Therefore, Mandatory Arbitration Clauses should be prohibited in standard form contracts as it is not equitable to allow firms to circumvent the judicial process by removing consumers’ right to litigation.

26 US Legal, I., 2022. Mandatory Arbitration Law and Legal Definition | USLegal, Inc.. [online] Definitions.uslegal.com. Available at: <https://definitions.uslegal.com/m/mandatoryarbitration/#:~:text=Mandatory%20Arbitration%20Law%20and%20Legal%20Definitio n%20Mandatory%20arbitration,contract%20term%20that%20prevents%20judicial%20 attention%20from%20disputes.> [Accessed 7 May 2022].

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2. PROHIBITION OF AMEND-AT-WILL-WITHOUT-NOTICE

CLAUSES

Amend-at-Will-Without-Notice Clauses involve language enabling draftees of boilerplate contracts to change the terms of a legal agreement without the express affirmation of consumers. These clauses are often written in such a way to allow draftees to amend said terms without notifying consumers, and in the case said terms are not amenable to consumers, consumers are expected to terminate the agreement out of their own accord. Some courts have deemed Amend-at-will-Without-Notice clauses as unenforceable because such clauses, by their very nature, do not necessarily require the unambiguous, manifest consent of the provisions amended.27 However, Amend-at-Will-Without-Notice clauses are particularly problematic when consumers are also subject to Mandatory Arbitration Clauses, or lack sufficient wherewithal to receive judicial attention through the litigation process.

3. PROHIBITION OF WAIVERS OF RIGHT TO CLASS ACTION

Waivers of Right to Class Action are legal provisions prohibiting consumers from engaging in class and collective action against draftees of their adhesion contracts. Waivers of Right to Class Action find their legal basis in invoking the Federal Arbitration Act (9 USC §§ 1-16) (FAA), an act of Congress that provides for judicial facilitation of a private dispute resolution through arbitration.28

27vLex. 2022. Nguyen v. Barnes & Noble Inc., No. 12–56628.. [online] Available at: <https://case-law.vlex.com/vid/nguyen-v-barnes-noble-891226665> [Accessed 7 May 2022]. 28 Content.next.westlaw.com. 2022. The use and enforceability of class action waivers in arbitration agreements in the United States | Practical Law. [online] Available at: <https://content.next.westlaw.com/practicallaw/document/I9f163d1a04d111e798dc8b09b4f043e0/The-use-and-enforceability-ofclass-action-waivers-in-arbitration-agreements-in-the-United-

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The issue with Waivers of Right to Class Action as applied to standard form contracts, is these contracts by their very nature are drafted for an indefinite number of consumers, often resulting in large groups of collectively affected individuals when a dispute arises. By barring consumers from engaging in representative action, draftees of adhesion contracts are able to raise the costs of seeking judicial attention in instances of unfair or unconscionable practices, effectively denying certain individuals access to judicial remedies the court system is able to provide.

4. EXPANDING THE DOCTRINE OF UNCONSCIONABILITY

Lastly, courts should consider expanding the Doctrine of Unconscionability to take into account novel developments in the drafting and signing of adhesion contracts in the digital age. Courts should acknowledge the evolving role the unconscionability doctrine has played in common law jurisdictions since its introduction in the 20th century and consider the inherent unconscionability of many standard form contracts prevalent in consumer settings.29 For as long as legislative and statutory procedures are unable to sufficiently provide consumer protections for individuals affected by unconscionable terms contained in adhesion contracts, courts should utilize the unconscionability doctrine to enforce good faith bargaining practices and punish deceptive or unfair boilerplate terms, which certain legislative bodies seek to amend.

States?contextData=(sc.Default)&transitionType=Default&firstPage=true&viewType= FullText> [Accessed 7 May 2022]. 29 Scholarship.shu.edu. 2022. [online] Available at: <https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1675&context=student_scholar ship> [Accessed 7 May 2022].

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CONCLUSION

Billions of consumers today find themselves bound by contracts of adhesion in the form of Terms of Service (ToS) agreements required to access most or all their services. These adhesion contracts are characterized by disproportionality in bargaining power and are unreadable/non-interpretable by the average consumer, which raises concerns about unconscionability in the drafting and signing of these types of agreements. In order to protect consumers from unfair or deceptive business practices, lawmakers should consider implementing legislative and procedural measures such as the ‘TLDR’ Act, which recognizes the inherent unconscionability of many standard-form contracts. Courts should consider three categories of justifications for strengthening consumer protections vis-àvis ToS Agreements: (1) the doctrine of unconscionability (U.C.C. 2-302) already exists out of recognition to unfair bargaining processes applying to all contracts cases, (2) Non-negotiable terms and mandatory arbitration agreements make simply informing consumers meaningless; Congress should place regulations building on consumer protections by prohibiting mandatory arbitration and banning waivers of the right to a class action, (3) while contracts are a state law issue, the Federal Arbitration Act preempts state law on the majority of commercial contracts; the size and scope of industry-standard ToS agreements readily meet the definition of interstate commerce, justifying Federal action on this issue.

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