Practicing Law In The Age Of E-Commerce: 
Navigating A Dispute With E-Bay

February 8, 2019

Written By: Julian Castignoli

Associate Attorney

Even though I am technically considered a millennial, I distinctly remember a time when technology was not an integral part of my life. Today, it would be foolish to fail to recognize its significance in my daily life and prevalence in the practice of law on many different levels. One of the bigger players in the e-commerce world today is eBay, Inc., a company that provides an online auction and shopping platform to its users. I recently represented an eBay user in a dispute with the company, which resulted in a successful and cost-efficient disposition for my client. Drawing on my experience, I hope to shed some light on the unique process of navigating a dispute with eBay, Amazon, Etsy and similar e-commerce giants. 
    

Although it may not be so obvious to a non-lawyer, the obvious starting point with navigating such a dispute is eBay’s “User Agreement”, which of course, is a legally binding contract between the user and eBay. I have no doubt that the vast majority of eBay users have never read this document and just accept its terms with one click of the mouse. Perhaps the most important sentence within the introductory provision of the User Agreement is the following statement: “Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved.” It should also come as no surprise that the User Agreement is littered with various disclaimers, limitations of liability and exclusions of damages. Applicable law regarding the enforceability of those provisions can vary from jurisdiction to jurisdiction. 

 

One of the more significant tactical decisions a commercial litigator will have to make is whether to attempt to resolve a dispute via alternative dispute resolution or litigation. Courts strongly favor the use of alternative dispute resolution mechanisms such as arbitration, and seek to enforce arbitration clauses whenever possible. Different types of commercial or consumer disputes present unique considerations in this regard, and dealing with eBay was certainly different from other types of such disputes I have handled. In many contexts, litigation may seem like the only answer, but arbitration is often preferred over litigation for several reasons (speed, cost, efficiency, simplicity, etc.). In my case, arbitration was even more appealing. The procedure outlined in the “Agreement to Arbitrate” within eBay’s User Agreement highlights several of those distinct advantages. The Agreement to Arbitrate also mandates that all claims against eBay are to be resolved through arbitration, and gives the eBay user the alternate option of asserting a qualifying claim in small claims court. Additionally, any claim that is pursued outside of arbitration in the courts of a state other than Utah faces the possibility that it will be removed or transferred to a court in Utah.  

 

The prospect of pursuing a claim against eBay may seem like a daunting one. We here at Jacobi, Case & Speranzini, P.C. relish the challenge, and have the skills, experience and mindset needed to tackle unique challenges like this, to do so aggressively and to advocate on your behalf no matter who your adversary might be.  

 

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