The title is sensationalist. McDonald's has an arbitration clause for their app that you can't opt out of. And if you agree to it, the app lets you get free fries on Fridays. McDonald's is not giving out free fries when you would otherwise want to sue them or as a reward specifically for agreeing to arbitration.
It's not sensationalist at all. Let's say you buy a child's meal through the app and your daughter ends up dying of E coli contracted from the meal. Because you used the app, you theoretically can't sue them, only use arbitration which as everyone knows tends to favor the large corporation paying them (and would never return a result of a large punitive fine like a jury might).
The intent is almost certainly for people to install the app so they can receive ads and information on deals and other push notifications, which drives them to McDonalds like other royalty program, not so they can agree to arbitration.
The title of this submission "McDonalds is giving free French fries in return for waiving the right to sue" is also editorialized compared to the linked article's title "McDonald's New Terms And Conditions Have People Deleting The App" which is directly against the HN guidelines.
Since you're so very concerned about accuracy then no, the article title is correct and you are mistaken.
Lawsuits are things that occur within a public court of law, by definition.
Two parties concluding a dispute privately, without government involvement, is not a lawsuit. Even if someone does sue over the arbitration contract itself should apply, that's a separate legal question from the underlying tort.
> A father brought a civil suit after his son had been sexually assaulted and stalked at boarding school by another student when he was 12. He argued that St. John’s was on notice of the perpetrator’s strange behavior towards the child, knew of other incidents of physical and sexual assaults on other students on campus and breached its duty to protect them.
> The court found that the arbitration agreement was valid and enforceable and ordered all claims into arbitration.
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> Family members brought a wrongful death lawsuit after 90-year-old resident Charlotte Fischer died from an assault allegedly committed by a Colorow employee. The county coroner ruled her death a homicide. According to reports, a nurse’s assistant allegedly threw her against a wall and fractured her hip; he was charged with third-degree assault.[5] When Fischer entered the facility, her daughter filled out the admissions paperwork. Among the documents signed as part of the entry packet: an arbitration agreement compelling arbitration for any claim arising from or relating to Fischer’s relationship with the facility.
> the Colorado Supreme Court disagreed, ruling that only substantial compliance with the formatting requirements of the Act was needed and, as such, the case could be forced into arbitration.
The point of the fries is not as a reward for accepting the arbitration clause. I can't imagine a native speaker who reads the headline and interprets it any other way. It's pure clickbait.
> usage of the app ToC has nothing to do with being harmed by their food, employees, condition of property etc.
In an ideal world, yes, a regular consumer could just make that observation and *poof* common sense would prevail... but I'm very cynical that it'll work that way in practice.
The multi-billion dollar global corporation and its battalions of lawyers will say that your tort falls under the words "arising from" and is resolved "exclusively" by private arbitration:
> You agree that [...] any claim or dispute (whether in contract, tort, or otherwise) you may have [...] arising from or related to the online services or these terms will be resolved exclusively by final and binding arbitration
Are there examples of consumers cheaply and easily escaping this kind of language without spending oodles of time and money trying to "put the system on trial" first?
It’s not a common sense folksy thing; it’s how arbitration agreements work. It’s not a blanket covering of all dealings with a company by default. So you wouldn’t fight an uphill battle to get to use the court system; you would just be there and McDonald’s could not remove you with totally unrelated software paperwork. No language to escape. Does that make sense?
(I’m not saying it’s easy to sue a large company once in court. I think everyone understands that would be a complex process and either require legal funds assistance or such a lucrative case (e coli, boiling coffee) that good lawyers would accept contingency.)
> it’s how arbitration agreements work [...] It’s not a blanket covering of all dealings with a company by default.
Again, I agree that's how things ought to be, but in practice it seems like the "wrong" outcomes are still happening anyway.
For example [0] a company allegedly sold a customers products contaminated with bedbugs--a physical, tangible good with a harmful defect--and one guy started a class-action lawsuit over it. However the company managed to get a judge to cancel the lawsuit and force everything back into arbitration, based on the website ToS.
If you read the details [1] you'll see the consumer made all the sensible arguments just like the ones you're saying would easily prevail against McDonalds... but they didn't work.
Wayfair's terms are different; they govern the broader business relationship.) In this case the judge should've done the 'common sense' thing and allowed the case to proceed despite the ToS--but that would've actually gone against the agreed terms, unlike what we are talking about with McDonald's app.
It's a troubling case and I understand why you are afraid of judges accepting spurious arguments from corporate defense, and I understand how many people don't appreciate how the difference in wording affects them and so can be intimidated.
Well no, but is it ever that overt? Its still bad: It’s a ridiculously one-sided arbitration clause that most customers don’t fully understand & “agreement” is using the app.
Maybe it’s worse because they are doing it preemptively without saying it aloud until it’s too late.
This whole practice of “by breathing in our airspace you’ve agreed to arbitration” has to stop.
I wonder how one can tell if one has agreed to a particular T&C at any point. Do companies have to maintain an api so I can query if I have agreed to a particular version of the T&C?
Yes, all should - if you cannot with 100% surety tell what a user said yes to the contract is void.
I've successfully litigated against 4 companies that did not.
Also all the bs with "if you use our site you automatically agree with our terms" is a lawsuit waiting to happen - the law is clear - the user must give clear and unequivocal consent - and it is also not ok to "agree with x, y and z by clicking here" that would require informed consent on x y and z seperately.
I just went to view them and I got the below text at the top of the page. I am agreeing to their T&C if I view their website?
"Our Terms and Conditions have changed. Please take a moment to review the new McDonald’s Terms and Conditions by clicking on the link. These include a binding arbitration provision and waiver of your right to a trial in court, including your right to a jury trial, as well as updates to the arbitration and dispute resolution process. By continuing to use our website, you are indicating that you have reviewed and agree to these Terms and Conditions including the binding arbitration provision. You are also indicating that you understand that you are agreeing to a legally binding contract and intend to do so."
my title, which I got from a mastodon post, is editorialized, but not sensationalized. it puts together two very critical components of what McDonalds is doing, which otherwise are both widely publicized but not directly connected. McDonalds is making it possible for people to get free food, at least one day of the week, for the rest of the year, by downloading an app and clicking a checkbox. And the purpose of clicking that checkbox is very prominently about waiving one's right to sue in court. if you go to McDonald's site right now without any pre-existing cookies at https://www.mcdonalds.com/us/en-us/deals.html , you get this banner:
> Our Terms and Conditions have changed. Please take a moment to review the new McDonald’s Terms and Conditions by clicking on the link. These include a binding arbitration provision and waiver of your right to a trial in court, including your right to a jury trial, as well as updates to the arbitration and dispute resolution process. By continuing to use our website, you are indicating that you have reviewed and agree to these Terms and Conditions including the binding arbitration provision. You are also indicating that you understand that you are agreeing to a legally binding contract and intend to do so.
They are very prominently noting the "right to trial in court" being waived; they refer to it three times in a five-sentence paragraph. This is on a fast food website where people are buying burgers and fries, is someone's "right to a jury trial" usually a thing in someone's mind when they go to a fast food chain to download an app and get fun prizes and stuff? It seems to be for McDonalds itself. Then they try to claim that clicking this banner is a legally binding contract, even though it has no idea what my name or address is; which is ludicrous for a website. But for the app, and by the time you're getting your free food, it's likely a little more well thought out.
It seems extremely obvious that McDonalds is trying to get as many of their customers as possible to click this button and reduce the number of people with the right to sue them in court. The "free french fries" thing is unusually generous, which means clicking this button is worth a lot of money for them.
None of this seems "sensationalist" to me. It seems perfectly clear and obvious once the two pieces are put together. Hence I put these pieces together in my headline and a lot of other people have gotten it now too.
The fries and the arbitration are unconnected. The missing context that is the terms and conditions for using their app is important for understanding what's happening. You can't claim these are "two very critical components of what McDonalds is doing" and then leave out the critical detail that it's tied to the terms of service of their mobile app.
They're pushing the app and offering free fries for installing the app, while the app has a "poison pill" where you agree to give up your rights. The title is pretty fucking dead on.
This shit desperately needs to just be made illegal across the board.
How does this work if, say, I agreed to these terms, but then I walked into a McDonald’s and bought a scalding hot coffee without using the app? Would I still have grounds to sue if I got burnt since I never interacted with the app in this transaction but I previously agreed in the app?
edit: the terms say (emphasis my own)
> any claim or dispute […] you may have with McDonald’s or any other Members of the McDonald’s System arising from or related to the online services or these terms will be resolved exclusively by final and binding arbitration
So I suppose that this really only applies to lawsuits related to the use of the app and that any foodservice claims are still valid? IANAL.
By this reading, I think this statement in the article is incorrect.
> Essentially, the new terms state that, if a customer tries to sue over hot coffee, for example, they can't take their case to trial.
I think the terms would apply if you could put in orders through the app. I’m assuming you can (I don’t go to McDonald’s).
So, if you order a gluten free burger using the app, and a software bug messes up you order? You pick it up at the counter, and they give you a regular burger. You end up getting sick and having expenses or missing income, you can’t sue them in court, I guess.
What I don't understand is, besides the legal part, where all the common sense went. I mean is it really unknown to everyone that hot coffee is actually hot and may burn you? Whose liability is that you forgot that a hot drink should cool down a bit? Shall McDonals cool it down for you and then you'll sue them because the hot coffee is not anymore hot but just warm?
Posting just for those who are not aware, in the 90's McDonalds was sued for this exact thing [1].
The person had 3rd degree burns and was hospitalized for 8 days after spilling the coffee.
--- EDIT ---
Just adding that, IIRC, this is _the_ reason coffee cups say "caution: contents of this are hot" (or whatever to that effect).
Also notable that the hospitalized person initially only requested that McDonald's pay for the medical care, a request which was refused. That this case has become the poster child for "crazy lawsuits" is really a triumph of corporate PR.
Their coffee was stored and served far too hot compared to any other place. They also had over 700 claims from the coffee in 10 years.
> McDonald's required franchisees to hold coffee at 180–190 °F (82–88 °C)
> coffee they had tested all over the city was served at a temperature at least 20 °F (11 °C) lower than McDonald's coffee
> They also presented the jury with expert testimony that 190 °F (88 °C) coffee may produce third-degree burns (where skin grafting is necessary) in about three seconds and 180 °F (82 °C) coffee may produce such burns in about twelve to fifteen seconds. Lowering the temperature to 160 °F (71 °C) would increase the time for the coffee to produce such a burn to 20 seconds.
and the vast numbers you hear about in this settlement are a result of that. All the victim wanted was medical expenses covered.
> Liebeck sought to settle with McDonald's for $20,000 to cover her actual and anticipated expenses.
The case is well documented and was not just "the coffee was hot", the coffee was served 20 degrees hotter than other establishments, with no special warnings, in a cup that was not rigid enough, and the company had hundreds of previous cases of people being burned by it they ignored.
Yes, you should know that coffee is actually hot and may burn you. Likewise, McDonalds should know how hot is too hot and not serve its coffee at dangerous temperatures.
In case you're unaware of the context, in short:
McDonald's launched a smear campaign against the lady who spilled hot coffee on her lap. The elderly lady was in the passenger seat of a parked car at the time, and the coffee was so hot that it fused her labia and she needed multiple skin grafts to recover. She asked McDonalds to check their coffee equipment (surely it was malfunctioning if coffee was that hot) and asked them to pay her medical bills, but they refused. During the trial, it was discovered that McDonalds had received hundreds of complaints about the temperature of their coffee and done nothing. The jury awarded her more than she was asking, which amounted to something like the profit from one day's coffee sales.
When you make coffee, the water cools, eg the rat-tails from an espresso being made (with water at 85-95 C) have a large surface area which leads to cooling as the coffee enters a cup. A ceramic cup/mug will leech out heat, despite being kept warm (about 40 C?). Drip coffee often sits on a heater, but the temperature is relatively low.
McDonalds reportedly used higher temperatures to extract more coffee, and kept their coffee very hot, enough to cause third degree burns in the Hot Coffee case IIRC. They had many complaints and refused to lower the temperature.
So, McDonalds don't need to cool it so much as not heat it so much. Drinking temperature is below 70 C, McDo were reportedly giving it to people at 90+ C, reports say 20 C above industry norms; hotter than being temperatures.
Blaming customers who are very familiar with buying coffee for not knowing you purposeful heat it to a much higher temperature would be crass in the extreme. Like selling Chicken Korma (a very mild curry) and putting ghost peppers (very hot spicy peppers) in it, and refusing to add a warning or anything when lots of people complained.
It looks like MacDonalds will cover the arbitration costs of anything over $250, so it's probably a lot easier to take them to arbitration than suing them. That being said, arbitrators might side with large corporations more than a judge would. Alsom, IANAL but part 11 of the settling disputes section seems to say that it's still possible to do a class action lawsuit against them.
Would this hold up in court. I've heard those forms you sign that waive your rights before going to e.g. a haunted house don't mean anything if you get injured.
Like everything, probably yes but up to a point, as decided by a judge.
For example if you order an item and they happen to be out of it and your party is ruined, you would almost certainly not be able to sue for damages in court. If your child ate the food and died, you would almost certainly be able to take it to court.
Good riddance. Even if we set aside the legal controversy, the app itself is a usability nightmare. The McDonald's corporation must believe that its app users are so hungry and desperate that they're willing to endure a nonstandard UI flow, endless offers to upsell and/or earn more points, and a strangely inverted menu hierarchy that resembles no order I've ever placed in my life.
I think this is an ongoing issue with the current legal framework, there is no way for a lower level set of regulations to override higher level regulations, that should be it, a contract shouldn’t allow to give up upper level regulations
I don't eat McDonald's for my health, but back when I did they give out a lot of free food and big discounts. More than the other fast food chains who's apps I've tried. A bunch of my friends have the app.
Pretty much every single person in a drive-thru window. App orders are prioritized over walk-ins. McDonalds' isn't a fast-food restaurant so much as a fulfillment center.
We really need to ban arbitration in contracts of adhesion. Arbitration has a role to play in contracts where both parties genuinely agree to it, but in a take-it-or-leave-it situation, they should not be allowed to be imposed by the contract author.
My sense is that there should just be a blanket ban on forced arbitration clauses. If a dispute arises between two companies, they can still agree to handle it through arbitration, but the right to sue should always exist until it is waived for a specific complaint.
