Wells Fargo adds a class action waiver

Effective February 2012, Wells Fargo is adding the following language to its agreement with customers:

Binding arbitration
If you have a dispute with the Bank, and you are not able to resolve the dispute informally, you and the Bank agree that upon demand by either you or the Bank, the dispute will be resolved through the arbitration process as set forth in this part. A “dispute” is any unresolved disagreement between you and the Bank. It includes any disagreement relating in any way to services, accounts or matters; to your use of any of the Bank’s banking locations or facilities; or to any means you may use to access your account(s). It includes claims based on broken promises or contracts, torts, or other wrongful actions. It also includes statutory, common
law, and equitable claims. “Disputes” include disagreements about the meaning, application or enforceability of this arbitration agreement. This arbitration agreement shall survive any termination of your account(s). YOU AGREE THAT YOU AND THE BANK ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT. As the sole exception to this arbitration agreement, you and the Bank retain the right to pursue in small claims court any dispute that is within that court’s jurisdiction. If either you or the Bank fail to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses incurred by the other in compelling arbitration. Arbitration procedure; severability You or the Bank may submit a dispute to binding arbitration at any time, regardless of whether a lawsuit or other proceeding has been previously commenced. NEITHER YOU NOR THE BANK SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION, OR TO INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY...

This comes in the wake of the AT&T Mobility v. Concepcion Supreme Court decision back in April.

Just another incentive to move to a credit union, I suppose.

Oddly, I was unable to find any news coverage of this change.

The Delaware Court of Chancery

Many people are aware that Delaware is a very popular place to to incorporate, with Delaware's Division bragging that 63% of the Fortune 500 are incorporated in Delaware.

Less commonly known, perhaps, is that Delaware retains a court of "equity". I read through Quillen and Hanrahan's (1992) A Short History of the Delaware Court of Chancery. They describe it as such:

The role of procedural and doctrinal inflexibility in the decline of England's Chancery Court contrasts with the determination of Delaware's Chancellors over two centuries to eschew broad rules in favor of specific holdings and carefully crafted remedies that address the particular circumstances of the case at hand. The secret of Delaware equity rests in two old concepts, both English in origin. First, equity is a moral sense of fairness based on conscience.⁽⁸⁾ Second, equity is the recognition that the universal rule cannot always be justly applied to the special case.⁽⁹⁾ Equity is the flexible application of broad moral principles (maxims) to fact specific situations for the sake of justice. Delaware has preserved the essence.⁽¹⁰⁾

Moral maxims and fairness based on concepts? Such an idea must sound quaint to most lawyers and particularly to legal positivists. And it seems somewhat ironic that corporations would choose to be located so near to such an ambiguous concept.

After reading the article, I can't say that it really seems that Court of Chancery has been revolutionary in applying moral principles. Certainly I haven't heard of its involvement in remedies for the frauds of the mortgage crisis. There was some mention that it had done some work to protect minority shareholders, although I'm a bit skeptical. It is noteworthy that it was a decision from it that was affirmed in Brown v. Board of Education (while other lower court decisions were involved, apparently the Chancery's was the one affirmed).

Trimming old stuff

Lately I've been trying to go through my bookmarks and cut stuff. Many of my bookmarks are cool sources of reference information. I don't use these often but they could be handy sometime. Others are articles that I plan to read but still haven't read after several years. The former I should probably keep, but the latter I feel like I should definitely read and then cut out. Then again, I'm not sure of that - what if I want to refer to the articles in the future? Maybe I could keep a separate little folder of articles, or write an article about the interesting articles. But that's a lot of work. One thing I try to do is add them to Wikipedia since then I can find it through my contributions, but some of this information really shouldn't be in Wikipedia. In the long-run, I want to record everything I've read somehow in a database, along with notes on how extensively I read it, as I do for the books that I read. Which reminds me of how I need to write up that program, as well as a program which makes it easier to track where I'm spending all my time. But for that I need to study more programing. Sigh.

It's hard going. I got down to the Economics folder of my bookmarks and started reading through QuickMBA, where I got through about half of it. It is a great site - the accounting section is particularly nice for someone like me who does not have a strong accounting background.

I also glanced to some of the old blogs linked from here. With a couple exceptions I haven't really read any of them with any regularity in the past year or so, probably longer. In my trimming quest, I started with Barely Legal (and quickly drifted from there to the hilarious In It But Not Of It). Barely Legal is probably the funniest of the blogs (example), and also has a great message: law school is not all its cracked up to be. See, for example, Law School Student Story #4. Law is something that I get constantly sucked into learning about. It's handy to know about bankruptcy law, trusts and securitization, and the dirty details of corporate taxation, but ultimately it distracts me from what I keep telling myself I need to learn about: programming, math, and science, in that order. So I'll be trying to trim excessive legalese out of my life, and I may be recording some of what I've read here while I do that.

The worst word: notwithstanding

Working in a legal environment with no law degree, I'm frequently confused. Notwithstanding is of the words that continues to bother me.

This is a terrible word that I suspect was used historically in a different way than it is used today. Think about it.

Breaking it into two words gets: not withstanding. That it, something does not withstand some contrary contrary statement. Under this reasoning, if I say that "you'll get a bunch of money, notwithstanding some other person's asserting a more legitimate claim for that money", you would get money but if some other person had a more legitimate right, you wouldn't get money.

In fact, the word means the exact opposite. It means "regardless". So if I said the above statement in a legal context, I would be saying that "you'll get a bunch of money even if someone else asserts a more legitimate claim for that money". Thus, it is very easy to confuse those who don't speak legalese.