Web Hosting Talk : Web Hosting Main Forums : Dedicated Server : Can I sue?

[brettweir]

I have two dedicated servers with a webhosting company. I had them setup the two servers to be connected via two NIC cards and a cross-over cable. I am running a web application that users pay to use. I experienced terrible performance on the servers as more users starting to use the application. I sent many emails and had many calls to the host company about the performance problem. On every occasion, they said the servers where fine and the problem must be with my web application. The hosting company had said on five occasions that the NIC cards were configured correctly (both at full-duplex and 100mbs) and there where no network problems. Because of the continued performance problems, I had to refund many customers. Two months after the problems appeared, and after at least my 10th email about the problems, they said they found the problem - one of the NIC cards was at full-duplex and one was at half-duplex. I have five emails from them saying that both cards where at full-duplex. Their incompetence and outright lies about the cards being configured correctly has caused my company to lose a ton of revenue. My question is, do I have any legal recourse against them for their incompetence?

[etLux]

I think it would be wisest to seek the counsel of a bona fide attorney, probably one versed in Internet law, if you wish to pursue this.

NO, you can't sue them!

I have never known a web hosting company to be sued. Why? Read the TOS.

[etLux]

You know, anywhere but on the Net, with the general outline of circumstances framed above -- you'd never even make it to court, because they'd settle in a flash to avoid getting their posteriors stomped.

I am of course unaware of the full details of your own circumstances; however, in most cases, services on the Net (like hosting, etc.) are performed without written contracts. Terms of Service (TOS) agreements are likewise written so broadly and vaguely that they permit anything short of openly committing mayhem and stealing unattended children.

It's still a whole lot like the Wild West in here, and trying to go into court on something like this -- with either non-existant legally binding contracts or TOS agreements you could fly the Hindenberg through -- is next door to impossible.

[alchiba]

Actually, you can sue anyone you care to. But generally the only winners in a lawsuit are the lawyers. You'd be better served to work out something with the host.

[Chicken]

Get a copy of your TOS, go to a lawyer and ask them. Really, I'm just a webmonkey.

[etLux]

That's what I said in the first place... lol.

[Dylan]

Kind of reminds me of some reason incidents:

One of our clients wanted to sue us for civil damages because one of our servers hard drives crashed.

Another one wanted to charge us for losing their files when the hdd crashed and they also threatened to go to their bank and dispute their credit card transaction.

Another wanted to sue us for $100'000 because one of our hostees *apparently* had copyrighted material on their site.

None went to court.

The only time I've been to court was for something bonkers.
I was summosed as a witness for something that I didn't see or know about. Mysterious! How screwed up is that??? I must admit, everybody had a good laugh.

[Racin' Rob]

Originally posted by Chicken
Get a copy of your TOS, go to a lawyer and ask them. Really, I'm just a webmonkey.

I thought you were a chicken?

[etLux]

Despite traditional evolutionary wisdom, the fact is, chickens and monkeys are actually very closely related. Personally, I confuse the two all the time. Is the one with the scales the one that goes "Oink"?

[kunal]

Its all an illusion my freind, all an illusion.

[Steve_S]

Hello brettweir,

Sorry to learn of your trouble. Have you asked the company in question for a "credit" on your charges?

Maybe no charges for an agreed on time frame or free hardware/software upgrades to your servers.

This kind of "deal" is always better than that long road of legal action.

HTH

[cburgy]

It really depends on what state your in. Even though every hosting company has a TOS, a LOT of them are VERY vague and many parts of the TOS won't stand up in court if you have a good attorney. The best thing to do is consult an attorney about their contract and the allegations you are making. If you live in Illnois for example, you have a pretty good chance of getting some sort of refund. If you can show that they knew that the card was misconfigured from the beginning then you will get a pretty good payout on damages. You really need to talk to an attorney so you can file a motion so they can't delete any email messages, etc.


Cheers,
Chris Burgy

**This is my personal opinion, I am not a legal counsel. Please consult an attorney for a fully accurate description of your options**

[Duster]

Here's what I would suggest:

1. Compile a reasonable estimate of your actual losses. You'll need to document actual earnings and show a track record of earnings in order to show losses. Don't get crazy with "we could have made xxx dollars if we had grown..." No judge will want to hear "I coulda been a contender" stories. If you can't do this, it is likely nothing else will matter. Judges need proof, not fantasies, to make a ruling on losses.

2. If the amount you can document is substantial enough, you should talk to an attorney and get his/her opinion on what kind of case you have and how much it will cost you, both on settling and if you go to trial. Be sure to take a copy of the TOS and or AUP with you (and print them out NOW in case they are changed later.

Know that TOS are not absolute and may not protect hosts from all suits. They are expected to provide a certain level of service according to the standards of the industry (oops - ;-D) Things like reasonable effort count heavily. If you can demonstrate that they did not make a reasonable effort to correct the problem, it's another factor in your favor.

Getting statements from two or more system administrators (not connected to you fiscally) that checking and verifying the settings of the two NIC cards right away (rather than insisting they were set properly and letting 2 months elapse before discovering their error) would probably satisfy the burden of proof. In civil cases, the preponderance of evidence is what wins. If you have more proof that they are bunglers than they have that they know what they are doing and made a reasonable effort, you win.

3. Talk, don't yell or threaten, to your hosting company and explain the situation.
a. they made mistakes repeatedly (they kept insisting thing were okay and they weren't)
b. it cost you money, xx amount of dollars according to your documentation
c. you feel they should make amends - what do they intend to do about it

You can mention that you've consulted with an attorney regarding the case, but don't threaten legal action, at least not at this point. Tell them you want to see what can be worked out and give them the benefit of the doubt. Reputable companies (even those with buffoons in tech support) will want to make amends and may be offended by the threat of legal action. I've known many business owners that would go to great lengths to satisfy a customer unless or until they threaten legal action. Then the answer they get is (_x_), or a polite equivalent.

Too many people threaten legal action without following through for this to be much of a threat. There's time enough to get tough later if they prove to be unrepentent.

Practical example: just this week, I had a trademark infringement (my second, though I've had 6 copyright infringements). I sent a polite and firm notice advising he had made a mistake by choosing an illegal name. I wasn't a [_!_] about it. I even offered to reimburse him for the registration fee. the end result: today I heard from him, it was indeed an innocent error, and he has already advised his registrar to transfer the domain to me.

It turns out it was registered to a member of my forum who just couldn't find any other available names. I helped him out with a few URLS that might help as well as a few suggestions I think might be available. He thanked me for my patience and was left somewhat satisfied. It might not have gone so easily or rapidly if I had come down hard at the onset. He certainly wouldn't feel the same way about me and the site.

I suppose my point is to remember Teddy Roosevelt's philosophy, "Speak softly and carry a big stick."

[Jason Ellis]

Originally posted by cburgy
It really depends on what state your in. Even though every hosting company has a TOS, a LOT of them are VERY vague and many parts of the TOS won't stand up in court if you have a good attorney. The best thing to do is consult an attorney about their contract and the allegations you are making. If you live in Illnois for example, you have a pretty good chance of getting some sort of refund.

Actually, this advice isn't quite accurate. Almost all hosting company Terms of Service agreements include a statement of legal venue (i.e. "The Terms of Service of this agreement shall be interpreted and enforced pursuant to the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules. In all cases, venue of the courts will lie in the Commonwealth of Massachusetts and the federal courts located in the Commonwealth of Massachusetts.")

What this means is that whether or not the customer lives in Illinois is pretty irrelevant - any lawsuit must be brought (in this case) in Massachusetts. And, even if your attorney can somehow get an Illinois judge to throw out the venue clause, and the trial does get held in Illinois, the TOS agreement must be interpreted and enforced based on Massachusetts laws.

And yes, this type of clause has been upheld by courts for decades, so it'd have to be a *really* special circumstance to convince a judge not to enforce this. In other words, you'll spend more in attorney's fees trying to get the venue changed to Illinois than the case itself is worth.

But, realistically, your best option when dealing with a web host of any type is to try to settle out of court. A court case is extremely costly for both parties, and while a large ISP like Verio or Web2010 might be capable of defending themselves against a case, the average (small) web hosting company is going to just go out of business the day they are served papers, because there's no way the majority of hosting companies can afford to defend themselves against a lawsuit. Sad but true.

Anyway, just a little bit of information from the other side of the fence.

Good luck, and I hope you can come to a fair settlement.

Jason