CouponCabin, LLC owes me money, but their T&C may prevent me from suing

[megamawax]

What is the name of your state? Indiana

I had a membership account with CouponCabin, LLC, a cashback website wherein members click through their website in order to earn cashback from purchases made at a merchant's website. Back in January, they sent me an mail stating that I had cash back pending in my account but there was a problem with my payment method. I contacted customer service. The CSR assured me that my account was in good standing and that I could continue to earn cash back, but there was no way to fix the payment method issue, and that I would have to receive paper checks as opposed to electronic transfers. During the course of the conversation, I grew frustrated with the lack of answers and transparency and voiced a legal concern. The CSR immediately terminated my account. However, the CSR assured me that I would receive a final payment. The CSR even stated that they would contact the Chief Financial Officer in order to expedite the matter. No payment was ever sent, which violates their own Terms and Conditions:

Termination of Your Membership
In addition to any other provisions of this Agreement, CouponCabin reserves the right to terminate your membership at any time with or without notice due to your violation of anything in these Terms or as otherwise provided for or in accordance with these Terms. If your membership is terminated by CouponCabin, CouponCabin may refuse to pay some or all of the amounts credited to your account if such amounts appear or are suspected (as determined in the sole and exclusive discretion of CouponCabin) to have been earned in violation, or after violation, of these Terms or to have been otherwise unlawfully obtained. In the event your membership is terminated and payment of some or all of the amounts in your account is made to you, any such payment made in an amount less than the account minimum will be subject to a $3.00 payment fee as specified in Section 4.C.III. above. Should your account be terminated by CouponCabin, you are prohibited from rejoining under or registering a new account, unless expressly invited to do so by CouponCabin.

I contacted CouponCabin on multiple occasions and even mailed their legal department a formal demand letter. Their lawyer responded to my demand letter, but the response ignored my request for payment and instead focused on my dissatisfaction with their customer service and what they perceived to be repeated threats of legal action. The lawyer provided me with an email address if I wanted to direct my lawyer to contact them. I contacted him telling him that I would act as my own lawyer do to the small sum of money involved ($76.86). My attempts at communication were ignored.

I'd like to sue them as it would seem as though my case is very solid, and I suspect that this company regularly steals money from members after terminating their accounts, but I have an excerpt here from CouponCabin's Terms and Conditions (from back in December when I was still a member). From my reading of this, I'm worried that CouponCabin would request that the venue be changed to Lake County, IN even if my claim is filed in Delaware County, where I live, and that they would have their motion granted because of these T&C. However, I don't know if all of this is enforceable. This is all very confusing and frustrating because CouponCabin is blatantly violating its own Terms and Conditions by not paying, and yet they may be able to lean on these same Terms and Conditions to make it virtually impossible for me to compel their compliance with these same T&C.

As it is, I'm already out money from them, but if I can't actually appear in the court that I'd be required to appear in and they don't offer to settle, I'd essentially be throwing more money away by filing a claim in court. What I really need is some basic advice regarding what I can expect from this situation. It feels very much like the system is rigged against me.

1. DISPUTE RESOLUTION
   1. Binding Arbitration
      Except for the exclusions and restrictions set forth below in this Section 16, you and CouponCabin agree that any and all disputes, claims or controversies between you and CouponCabin arising out of or relating to this Agreement (including the interpretation, making, performance, breach or termination thereof) or any use of the Services (“Claims”) shall be settled by final and binding arbitration before a single arbitrator under the Comprehensive Arbitration Rules and Procedures (“Rules”) of JAMS by a single arbitrator appointed by JAMS in accordance with the Rules, or by such other arbitration association as mutually agreed by the parties. Arbitration proceedings shall take place in Lake County, Indiana, in the English language. Judgment on the award rendered by the arbitrator shall be final and may be entered by any court having jurisdiction over the parties for purposes of enforcement. The arbitrator shall not have authority to award punitive damages. For purposes of this Agreement, “Claims” includes without limitation the validity, enforceability or scope of this dispute resolution section (with the exception of the enforceability of the class action waiver provision set forth below) and “CouponCabin” means CouponCabin and its parents, subsidiaries and affiliated companies and each of their respective owners, officers, directors, employees and agents. This arbitration undertaking is made pursuant to and in connection with a transaction involving interstate commerce, and shall be governed by and construed and interpreted in accordance with the Federal Arbitration Act at 9 U.S.C. Section 1, et seq. This arbitration provision shall survive termination of this Agreement. If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization.
   2. 
      
   3. Severability
      If any clause within this dispute resolution section (other than the class action waiver clause set forth above) is found to be unenforceable by any court or arbitrator, that clause will be severed from this dispute resolution section and the remainder will be given full force and effect. If a Claim proceeds in court or is not subject to arbitration, you and CouponCabin waive, to the fullest extent allowed by law, any right to jury trial.
   4. Excluded Claims
      You and CouponCabin agree that the following will not be subject to arbitration (“Excluded Claims”): (1) any Claim relating to the validity or infringement of any party's intellectual property right (such as trademarks, trade dress, copyright and patents), (2) any Claim relating to or arising from allegations associated with unauthorized use of or access to the Services in violation of any of the provisions of Section 3 (Use of the Site and Services) of this Agreement; (3) any Claim where you or CouponCabin are seeking preliminary injunctive relief (including a temporary restraining order); and (4) any Claim proceeding on an individual (non-class, non-consolidated, non-representative) basis filed in a court that is limited to adjudicating small claims (small claims court proceeding).
   5. Fees
      In the event that either party initiates a proceeding involving any Claim (except for any Excluded Claim) other than an arbitration in accordance with this Section 16, or initiates a proceeding involving a Claim other than in the forum specified in Section 17 below, the other party shall recover all attorneys' fees and expenses reasonably incurred in enforcing this agreement to arbitrate and the forum to which the parties have herein agreed.
2. CHOICE OF LAW AND FORUM
   The Services (excluding third party linked sites) can be accessed from all 50 States as well as from other countries around the world to the extent permitted by the Services and applicable law. As each of these places may have differing laws, by accessing the Services, both you and CouponCabin agree that the statutes and laws of the State of Indiana shall apply to any and all Claims, without regard to conflicts of laws principles thereof. For any Claims that are not subject to arbitration or that proceed in court, you and CouponCabin agree that the exclusive jurisdiction and venue for proceedings involving any such Claim shall be the courts of competent jurisdiction sitting within Lake County, Indiana, and you and CouponCabin hereby waive (i) any argument that any such court does not have personal jurisdiction or that any such court is not appropriate or convenient and (ii) to the fullest extent allowed by law, any right to jury trial. Any legal proceedings shall be conducted in English. CouponCabin makes no representation that materials and content found on, provided by or through or included as part of the Services are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. This Agreement shall not be governed by the United Nations Convention on Contracts for the Sale of Goods.

 

[PayrollHRGuy]

A. Once your account was terminated they didn't have to pay you. At least according to the agreement.
B. Do you really want to risk a sum that could easily reach into the thousands of dollars for the chance of getting $76.86?

 

[megamawax]

A. Once your account was terminated they didn't have to pay you. At least according to the agreement.
B. Do you really want to risk a sum that could easily reach into the thousands of dollars for the chance of getting $76.86?

Why would they not have to pay me after my account was terminated? Their terms and conditions state the opposite: "If your membership is terminated by CouponCabin, CouponCabin may refuse to pay some or all of the amounts credited to your account if such amounts appear or are suspected (as determined in the sole and exclusive discretion of CouponCabin) to have been earned in violation, or after violation, of these Terms or to have been otherwise unlawfully obtained."

At no point did they claim that I violated their T&C during the earning of this money. In fact, their customer service representative said that my account was in good standing prior to terminating my account, and after terminating my account the CSR said that I would be receiving a check.

 

[adjusterjack]

but their T&C may prevent me from suing

That's right. You have agreed to binding arbitration. If you sue in court you'll have wasted your court and service fees as the case will be dismissed in favor of arbitration.

 

[megamawax]

That's right. You have agreed to binding arbitration. If you sue in court you'll have wasted your court and service fees as the case will be dismissed in favor of arbitration.

This is not correct. Their T&C state the following:

1. Excluded Claims
   You and CouponCabin agree that the following will not be subject to arbitration (“Excluded Claims”): (1) any Claim relating to the validity or infringement of any party's intellectual property right (such as trademarks, trade dress, copyright and patents), (2) any Claim relating to or arising from allegations associated with unauthorized use of or access to the Services in violation of any of the provisions of Section 3 (Use of the Site and Services) of this Agreement; (3) any Claim where you or CouponCabin are seeking preliminary injunctive relief (including a temporary restraining order); and (4) any Claim proceeding on an individual (non-class, non-consolidated, non-representative) basis filed in a court that is limited to adjudicating small claims (small claims court proceeding).

Also, in the letter I received from their lawyer in response to my demand letter listed both arbitration and Small Claims Court as options.

 

[PayrollHRGuy]

Why would they not have to pay me after my account was terminated? Their terms and conditions state the opposite: "If your membership is terminated by CouponCabin, CouponCabin may refuse to pay some or all of the amounts credited to your account if such amounts appear or are suspected (as determined in the sole and exclusive discretion of CouponCabin) to have been earned in violation, or after violation, of these Terms or to have been otherwise unlawfully obtained."

At no point did they claim that I violated their T&C during the earning of this money. In fact, their customer service representative said that my account was in good standing prior to terminating my account, and after terminating my account the CSR said that I would be receiving a check.

Since we don't have the entire agreement being mean to one of their CSRs upset may well be in violation of the agreement.

But I can guarantee that the CSR doesn't have the power to bind the company to anything.

They are in Indiana? Are you and if so how far from Lake County, Indiana?

 

[megamawax]

They have an Indiana address, and their lawyer receives mail in Indiana, though the rest of the company operates out of Chicago. I'm a few hours away from Lake County.

The way I read the termination clause, the money has to be earned unlawfully or in violation of their Terms and Conditions in order for them to deny payment. That didn't happen, nor did they ever claim such a thing. In fact, they've refused to mention money at all other than the email I received notifying me that I had cash back pending in my account and the email from the CSR telling me that a check was forthcoming.

I wasn't mean to the CSR prior to my account being terminated. My account was terminated for saying this: "I will accept my check and hope that I one day have an opportunity to cash it, but I will also be looking into whether I have any legal recourse here due to what is clearly a significant problem with transparency at CouponCabin."

Their T&C from when I was a member (there have been updates since) can be found here: https://web.archive.org/web/20181216172320/https://www.couponcabin.com/terms/

 

[adjusterjack]

(4) any Claim proceeding on an individual (non-class, non-consolidated, non-representative) basis filed in a court that is limited to adjudicating small claims (small claims court proceeding).

Missed that.

My account was terminated for saying this: "I will accept my check and hope that I one day have an opportunity to cash it, but I will also be looking into whether I have any legal recourse here due to what is clearly a significant problem with transparency at CouponCabin."

Bad idea to threaten or imply litigation. Gives the enemy time to circle the wagons.

The first time the enemy sees the L word coming from you should only be when the summons and complaint are served.

 

[megamawax]

Missed that.



Bad idea to threaten or imply litigation. Gives the enemy time to circle the wagons.

The first time the enemy sees the L word coming from you should only be when the summons and complaint are served.

Well, yes, I do wish that I had acted more wisely in the moment. The whole situation had gotten me very frustrated because I was told that I could only receive paper checks from that point forward and that there was nothing that could ever be done about it, and yet my account was in good standing, and they would not explain anything to me, so I said something stupid. On top of that, my bank, WellsFargo, had sold the branch where I initially opened my account to some podunk bank that doesn't have any branches where I live, so I didn't think I'd be able to ever deposit a paper check unless I visited my parents. Anyway, what's done is done. The question now is whether or not I can get the money I'm owed. I don't see any reason why CouponCabin shouldn't have to pay me because I broke no laws or any of their T&C while earning the money. It seems clear that I can sue them in Small Claims Court or take them to arbitration. I don't want to do arbitration, though, because I hear that this isn't necessarily a fair and unbiased process, though the JAMS website does seem to imply that regardless of what a company's T&C state, I ought to be able to have arbitration take place where I live. If I go with SCC, though, it seems like I might be forced to either file in the county where they are located or file in my county and hope that they decide to just pay me the piddling sum rather than file a motion to change venue. If not for their T&C, I would think that because the transactions took place where I live, I would have to standing to sue them here. It seems unfair to me that they can violate their T&C in order to steal my money, but I have to abide by their T&C if I want to hold them accountable.

 

[Zigner]

...so I didn't think I'd be able to ever deposit a paper check unless I visited my parents.

You could use their smartphone app for mobile deposits, or even go oldschool and mail the check to a branch for deposit.

 

[Zigner]

It seems unfair to me that they can violate their T&C in order to steal my money, but I have to abide by their T&C if I want to hold them accountable.

From a legal perspective, your statement doesn't work. You allege that they violated the T&C, but that hasn't been determined to be true. It's simply your contention and needs to be proven. That's what arbitration (or small claims court, in this case) is for.

 

[megamawax]

You could use their smartphone app for mobile deposits, or even go oldschool and mail the check to a branch for deposit.

The app for my new bank is pretty terrible. I tried to deposit a check with it, and it didn't work. Every time I add the amount and clicked the button to take a picture of the check, everything would reset. I've since been able to get it to work, but it's still kind of wonky. As for mailing the check, I've had too many things get lost in the mail to trust USPS with that. At this point, though, it's all moot. I'm no longer a member. I just need to get one check from them.

 

[megamawax]

From a legal perspective, your statement doesn't work. You allege that they violated the T&C, but that hasn't been determined to be true. It's simply your contention and needs to be proven. That's what arbitration (or small claims court, in this case) is for.

I understand this, but that doesn't make the situation any less frustrating. Even though I know they are violating their T&C, the court doesn't yet know this despite how open and shut the case appears to me to be.

 

[PayrollHRGuy]

They have an Indiana address, and their lawyer receives mail in Indiana, though the rest of the company operates out of Chicago. I'm a few hours away from Lake County.

So you are going to drive a few hours, probably at least twice, to maybe get 77 bucks?

 

[megamawax]

So you are going to drive a few hours, probably at least twice, to maybe get 77 bucks?

That's the problem, isn't it? This is a company that offers their services in all 50 states and other countries. In order to resolve a dispute, you have to travel to Lake County, IN. I live relatively close, but if there's a hearing at 8 or 9 am, I probably have to travel there the night before, stay in a hotel, and then get up early to appear in court. There could be multiple hearings and a trial. Imagine trying to resolve this issue if you lived hundreds or thousands of miles away. It is virtually impossible to hold this company accountable unless you live right there, and even then you have to decide if filing paper work, paying fees (though they'd be recouped if you win) and appearing in court is all worth it for small sums of money. In order to do that, it has to be about principle more than the money. This company (and probably most companies that operate online only) can do whatever they want without having to worry about people suing them. How many other people have had their accounts terminated and money withheld? There could be hundreds or thousands of others, all with relatively small amounts of money that they determined aren't worth fighting to recover. The legal system does not offer any good solutions when it comes to resolving disputes with companies that are far away.