in What You Need To Know Published on September 8, 2017

If You Use Equifax’s Data Breach Help Site, You May Lose Your Right to a Class Action

[Update: Equifax has added the below language to the "FAQs for Consumers" section on Equifaxsecurity2017.com, which appears to clarify that the arbitration clause in the site's terms and conditions applies to the services offered by the site itself, not to the data breach. (Per Ars Technica)]

Late Thursday, Equifax, one of the country’s “Big Three” credit monitoring firms, announced it was the victim of a massive data breach possibly affecting more than 143 million consumers. The company noted in its statement on the incident that information compromised in the hack, which Equifax says it discovered on July 29, includes consumers’ Social Security numbers, names, addresses, driver’s license numbers and credit card information.

To help consumers figure out if their information may be compromised, Equifax set up Equifaxsecurity2017.com, on which individuals can sign up for credit monitoring and identity theft protection through Equifax-owned service TrustedID Premier. Some media outlets, however, appear to have come across a red flag found within TrustedID Premier’s terms and conditions that could very well pose problems for consumers who may be looking to hold Equifax responsible through a class action lawsuit.

[Note: As the ink dried on its statement announcing the breach, Equifax was hit with a multibillion-dollar lawsuit in Oregon alleging the company was negligent in choosing to pinch pennies rather than invest in proper cyber-safety security measures that could have prevented the hack. Today, a second proposed class action was filed against Equifax in Georgia over similar allegations. And none of this is to mention allegations that three Equifax senior officers reportedly sold nearly $1.8 million-worth of stock shares just days after the company discovered the data breach.]

According to reports from TechCrunch and CNET, the terms and conditions users agree to for use of Equifaxsecurity2017.com appear to include a waiver that could prevent consumers from participating in any class action lawsuits against the Equifax stemming from the breach.

“Some language in the terms of service for Equifax’s program, Trusted ID, have raised concerns that enrollment in the program prevents consumers from participating in a class action lawsuit,” CNET’s Sharon Profis wrote, adding the publication has yet to hear back from Equifax after reaching out for comment.

The pertinent parts of the terms and conditions found on TrustIDPremier.com are as follows (emphasis ours):

ARBITRATION. PLEASE READ THIS ENTIRE SECTION CAREFULLY BECAUSE IT AFFECTS YOUR LEGAL RIGHTS BY REQUIRING ARBITRATION OF DISPUTES (EXCEPT AS SET FORTH BELOW) AND A WAIVER OF THE ABILITY TO BRING OR PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION. ARBITRATION PROVIDES A QUICK AND COST EFFECTIVE MECHANISM FOR RESOLVING DISPUTES, BUT YOU SHOULD BE AWARE THAT IT ALSO LIMITS YOUR RIGHTS TO DISCOVERY AND APPEAL.

Except as otherwise expressly provided in this Agreement, all claims, disputes, or controversies raised by either You or TrustedID, Inc. arising from or relating to the subject matter of this Agreement or the Products (“Claim” or “Claims”) shall be finally settled by arbitration in the county (or parish) where you live or where You and TrustedID, Inc. otherwise agree using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators.

This arbitration will be conducted as an individual arbitration. Neither You nor We consent or agree to any arbitration on a class or representative basis, and the arbitrator shall have no authority to proceed with arbitration on a class or representative basis. No arbitration will be consolidated with any other arbitration proceeding without the consent of all parties. This class action waiver provision applies to and includes any Claims made and remedies sought as part of any class action, private attorney general action, or other representative action. By consenting to submit Your Claims to arbitration, You will be forfeiting Your right to bring or participate in any class action (whether as a named plaintiff or a class member) or to share in any class action awards, including class claims where a class has not yet been certified, even if the facts and circumstances upon which the Claims are based already occurred or existed.

If the parties cannot agree upon the identity of the arbitrator within fifteen (15) days following the date, then a single arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute injunctive or other forms of equitable relief at any time in any court of competent jurisdiction.

This agreement to arbitrate involves interstate commerce and is made pursuant to the Federal Arbitration Act, 9 U.S.C. sections 1-16 (the "FAA"). Any claim or dispute as to the enforceability of this arbitration provision's restrictions on your right to participate in or pursue a class action or class wide arbitration shall be decided by a court and not an arbitrator.

Notwithstanding anything in this Section, either You or TrustedID, Inc. may bring an individual action in small claims court as long as (i) the claim is not aggregated with the claim of any other person, and (ii) the small claims court is located in the same county (or parish) and state as Your address that You most recently provided to TrustedID, Inc. according to TrustedID, Inc.’s records in connection with this Agreement.

Interestingly, the above section seems to leave room for the possibility of consumers fighting the enforceability of the arbitration provision, which, if found to be unenforceable, would allow for disputes to be handled through a class action lawsuit.

This story is developing. Check back with ClassAction.org for updates.

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