Sep 20, 2014
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June 2014 Archive for Janzen Ag Law Blog

RSS By: Todd Janzen, AgWeb.com

Janzen Ag Law is a blog written by Todd Janzen, former Kansas farmer now practicing attorney in Indiana. Topics include all types of legal questions facing modern farmers and agribusinesses, including contracts, environmental regulations, nuisance, big data and privacy concerns, as well as other issues. His email is tjanzen@psrb.com. He tweets from @JanzenLaw. His regular blog columns can also be found at JanzenAgLaw.com.

Legal Rights You Give Up When Agreeing to Arbitration

Jun 26, 2014

Although most people are unfamiliar with the arbitration process, it is common for many form contracts to contain "arbitration" clauses. The Texas Supreme Court recently addressed cotton farmers’ challenge to an arbitration clause in a cotton marketing contract.  The Texas court upheld the arbitration clause but questioned whether a one-sided attorneys’ fees provision favoring the marketer was unconscionable. (Read Texas ag blogger Tiffany Dowell's good summary here).  Having not read the boilerplate common in many contacts, people are often surprised to learn they have consented to arbitration.  The recent Texas case reminded me of my own experiences with arbitration clauses and what four rights clients give up when they agree to arbitrate:

1.   Your right to have your dispute resolved by the judicial system.  Arbitration is meant to be a speedy alternative to the courthouse.  When you agree to arbitrate a dispute, you give up your right to seek redress in a court.  Instead, your dispute is resolved according to the particular arbitration rules selected by your contract. Rather than your dispute being heard in the nearest county courthouse, arbitration will take place in the forum selected by the contract or the arbitrators.  This may mean your dispute is resolved in a state far away.

2.    Your right to have your dispute resolved by a judge or jury.  File a breach of contract action in a court and either a judge or jury will determine (a) whether there has been a breach and (b) to what extent damages are owed.  In arbitration, a contractual dispute is resolved by one or more arbitrators who render a decision and, if deemed necessary, award damages to the prevailing party.  Who are these arbitrators?  That depends on what the contract or arbitration rules require.  They may be industry professionals, retired judges, private practice attorneys, or anyone identified by the contract.

3.    Your right to obtain "discovery" in the judicial process.  One of the central components of court litigation is "discovery," the process by which both plaintiff and defendant are allowed to learn all aspects of their opponent's case.  This means the opportunity to ask the other side to answer questions (interrogatories) under oath, require witnesses to answer questions live in depositions under oath, and require parties to provide documents to support their positions.  Discovery can be long, expensive and grueling process, but it can also be very thorough.  Arbitration typically shortens the "discovery" process, limiting a party's ability to obtain information about their opponent's position.

4.  Your right to an appeal.  If you do not agree with an arbitration award, you have few options to appeal.  You can appeal the award to court, claiming the process was unfair, an arbitrator was biased, or the award was unconscionable.  But courts give great deference to arbitration awards and will overturn them only in rare circumstances.  There must be something outrageous that occurred.  Most likely, the arbitration award will stand and will be binding.

Giving up these rights does not mean you should avoid contracts with arbitration clauses.  Arbitration is intended to provide a streamlined, less expensive means for resolving contractual disputes.  Parties signing contracts with arbitration clauses should consult an attorney and understand what they are giving up and how arbitration will occur, if needed.  The agreement to arbitrate is made at the time the contract is signed, not when a dispute arises.

Before You Click "Accept," Read Your Farm Data Privacy Policy

Jun 06, 2014

If you are like most people, when computer programs ask you to accept their latest privacy policy, you probably just hit "I accept these terms" and get on with using the software.  But recent concern over who controls agriculture's "big data" might have made you pause and think about whether you should just accept the terms provided--or decline and look for something else.  As agribusinesses roll out their farm data collection and analysis programs, take some time to read the data privacy policy that will accompany the program.  Here are some questions to ask as you do:

 

1.  What information will be collected?  Most privacy policies should explain what information will be collected for use by the technology provider.  Keep in mind the data collected by the provider may be more than just the information you manually provide.  The software might also be collecting how you access the program, when you access the program, and why you access the program.   Therefore, the first question to always ask is what information is the provider collecting?

 

2.  What control do I have over data that is collected?  Once you know what information the provider is collecting, your next inquiry should be to determine what control the provider gives you in managing data generated by your farm.  "Control" requires three things:  The right to maintain, alter, and delete your data on your terms.  Can you delete data that has been previously uploaded to the provider or, once uploaded, does the data become the property of the provider?  A good privacy policy should explain that you have the right to cancel service and know that your data is deleted by the provider.

 

3.  How will the provider use the information?  This is the question in farm industry circles.  Once a user provides farm data to a provider, what rights does the provider have in using that data for its own purpose?  Similarly, does the provider have the right to share or sell that data with others?  We all know that Google sells our search terms to advertisers.  Will your provider similarly sell your data to vendors that might want to know, for example, that you are running low on glyphosate?   The privacy policy should explain this. 

 

4.  Is the provider committed to notifying you of future changes?  Finally, when reviewing a data privacy policy, determine whether the provider is offering to keep you informed of changes to its data privacy policies.  Alternatively, the provider may tell you "these terms are subject to change at any time without notice."  Make sure the provider agrees to notify you when changes in policy occur—because they will.  The law and these issues are evolving, and data privacy policies will too.  

 

Remember, by clicking "accept" you are agreeing to be bound by the technology provider's privacy policy—which is a binding contract.  Federal and state laws are mostly void of statutes protecting your farm data privacy, but by reading data privacy policies, you can make an informed decision.     

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