By Kathryn Honecker, Chair of Rose Law Group Class Action Department, and Clark Wu, Law Clerk
Phoenix, Arizona | January 11, 2018
In our last article, “Did I give up my rights with my online purchase?” we explained why you need to check your contracts and terms of service for buried arbitration provisions and the ability to opt-out of such provisions. Now, you’re probably wondering how you opt-out.
Here are some guidelines to keep in mind when writing an opt-out notice:
Follow the Instructions. Opt-out provisions normally provide very specific instructions on how you can opt-out of arbitration. If you don’t follow those instructions, your opt-out may be invalid, and you may be forced to use arbitration to resolve any future dispute. To ensure that your opt-out notice is accepted, therefore, you must read and follow the company’s instructions very carefully. This means making sure that you timely send your opt-out notice before the deadline expires, use the format prescribed, include any necessary forms or paperwork, and include all other information required in the opt-out instructions.
Only use a Permitted Notice Method. Some opt-out provisions require notice be sent by mailing a letter via U.S. Mail to a certain address. Others may allow you to opt-out by simply sending an email to a certain email address. Pay attention to the method(s) allowed. If you have a choice of methods, opt for one that provides a time and date stamp, such as email. If it doesn’t specify a method, then it is your choice, but select a method that provides you with proof, such as certified mail or email. If the provision requires delivery by “First Class Mail” or “U.S. Mail,” note that neither UPS nor Federal Express will qualify; go to the post office.
Use Certified Mailing. If you’re asked to send by mail, you may want to send it by certified mail return receipt requested, so you have proof that the company timely received it. This may also notify you if there are any potential issues with your mailing so that you may take additional action. For more information about certified mail, check out the United States Postal Service’s How to Send Certified Mail: A Complete Guide to USPS Certified Mail.
Identify Yourself. It is important to clearly identify yourself, both legally and in the manner the company would know you. For example, if your account is still in your maiden name, you would want to include both your maiden name and your married name, if that is your current legal name. To ensure that your letter is properly processed, be sure to include additional identification such as account numbers, order numbers or codes, and even email addresses and telephone numbers that are associated with your account or transaction with the company.
Be Direct. Be as clear as possible. This is an instance where shorter is better. There is no need for a lengthy letter. All you need to do is clearly state your intentions to opt-out of the arbitration clause. You can even parrot the wording used in the opt-out provision. That way, the company can’t come back and say that they were unsure that you intended to opt-out out of the arbitration agreement.
Watch the Calendar. Timing is of the essence, here. Most arbitration provisions only provide for a short opt-out period that will be tied to a specific date. As an example, many contracts will allow consumers to opt-out of arbitration within thirty (30) days from the date that the contract is signed (or you clicked the box or made the purchase). Some also require that it be post-marked by a certain date, while others require that the company actually receive it by the opt-out deadline. Closely read the opt-out instructions to make sure your opt-out notice won’t be rejected as untimely.
Date the Notice. Because the date is so important, you must always date your opt-out notices. This will also avoid potential fights with the company regarding when you sent your notice, in the event the company misplaces the envelope with the post-mark.
Watch the Address. Always be sure to mail or email your opt-out notice to the specific address provided in the opt-out instructions. It is also of equal importance to address the notice to the right person or department in charge of processing the opt-out letters if such a person or department is identified in the instructions. The failure to do so may result in a delay in the processing of your opt-out notice, or even the loss of your opt-out right.
Review the Notice. Double check your identification information, date, address, and any other information to ensure that there are no errors. You don’t want to lose your right to opt-out over a careless mistake.
Keep Records. It is of utmost importance to keep a detailed record of your communications with the company. That way, you can always provide documentation if the company challenges whether or not you actually elected to opt-out of the arbitration provision. If you don’t receive a confirmation from the company regarding your opt-out notice, you can always follow-up with consumer service to ensure that your opt-out request was processed.
Sample Opt-Out Notice. You may wonder what an opt-out notice looks like, so we’ve provided, for your convenience, an opt-out notice sample with this article.
Disclaimer: This article and sample opt-out notice are for guidance purposes only, and may have omitted important information that is relevant to you or required under the terms and conditions at issue in your transaction. Please make sure to closely follow the instructions provided in your contract’s opt-out provision and include all necessary information. You may also wish to contact an attorney to assist you with this process.
