ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

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Friday, January 23, 2015

Merchantability Applied to Legal Scholarship

Katowice Fair Building Collapse graphic

 

We know that merchantability means passing without objection in the trade. If law review articles were goods, what would that trade be? For law professors, it  seems like it is second and third year law students.  At some level it would also reviewers of works when a professor is considered for promotion. Recently, though, a colleague of mine and I did a bit of research and began to wonder if acceptable in the trade -- as defined by law students and law professors --  is a meaningful strandard within the trade of academia.

Law professors who do research are generally spending the money of others. The actual buyers are, therefore, those who pay  for the scholarship. Let's add that they have no idea what the standard is but would uniformly agree that every article should make someone or something better off and should reflect high quality research. Students and reviewers should be regarded as agents for those paying the bills.

If that is the measure of merchantability (and why wouldn't it be) then editors and reviewers should apply that standard in their own decisions. Clearly they do not and left to their narrow and inappropriate standard for merchantability we have  massive amounts of scholarship that, let's face  it, is written to justify being granted tenure.  There is little verification that most, no matter how carefully done or clever, actually benefits anyone. Some of it -- a small percentage -- is cited but rarely for the substantive points made as opposed to piggy-backing on a fact asserted in the first work.  Morever the research is often sloppy.  Here is an example. I recently read an article that makes the claim that a certain area of law is now consistent with empirical studies. I looked at the cite and it was to another professor who had not actualy done any empirical work and did not quite say what was claimed. And the work cited by that professor was not on the point made in the first article. In fact the most frequent cite is  the hearsay cite in which the author makes a claim because someone else made the same claim.

I expect readers of this will disagree but shouldn't the test of merchatability mean making someone or something (even if a fish) better off and shouldn't documentation be careful and accurate? Don't misunderstand, much of scholarship meets these standards. But much of what currently passes in the trade without objection does not. 

January 23, 2015 in Commentary, Current Affairs, Law Schools, Miscellaneous, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

The Hobbit and the Meaning of a Bargain

I recently saw the last Hobbit movie, The Battle of the Five Armies.  I found it highly entertaining and was delighted to find a discussion about contracts between Bard, the leader of Laketown, and the King of the Dwarves, Thorin Oakenshield, during a pivotal moment in the movie.  The two engage in a back-and-forth about the meaning of a bargain, contract defenses (coercion and duress), and the importance of keeping promises.  In short, all the issues that come up regularly on this blog.  This isn't the first time that contracts have come up in a Hobbit movie. The morality of promise-keeping is an important theme in the movie as it has been in the others. 

Speaking of the Hobbit, the Weinstein brothers have lost their fight against Warner Bros. over the profits to the last two Hobbit movies.  As discussed previously on this blog, the issue involved the meaning of "first motion picture" of each book but not "remakes."  The Hobbit book was split into three movies and the Weinsteins argued that they should get a percentage from each movie; Warner Bros. claimed that they should only get royalties from the first Hobbit movie.  Unfortunately for contracts enthusiasts, the matter was sent to arbitration against the wishes of the Weinstein Bros. who wanted it to play out in court so we may never find out the basis for the arbitrator's ruling.

 

 

December 23, 2014 in Current Affairs, Film, Film Clips, Miscellaneous | Permalink | Comments (1) | TrackBack (0)

Monday, December 22, 2014

Gift or Curse?

After years of conducting research on the genes of various animals, George Doe (a pseudonym), an accomplished biologist with a PhD in cellular and molecular biology, decides to have his own genes examined for fun and to discover whether he may be genetically predisposed to cancer.  He buys a test kit online from one the many companies that provide such services these days.  He is so excited about the process that he also buys a kit for his mother and father as gifts.  They all have their genes tested.  George finds out that he is not predisposed to cancer.  But that’s not it.  He also finds out that another male who has had his own genes tested and is thus registered with the same company is “50% related” to George.  This can only mean one of three things: this other male is George’s grandfather, uncle or … half brother.  After intense and testy family discussions, George’s father apparently admits that he had fathered this other male before marrying George's mother.  George’s parents are now divorced and the entire family torn apart with no one talking to each other.

A very sad affair.  Of course, nothing appears to be contractually wrong with this case: at the bottom of one’s profile with www.23andme.com, the company that provided the tests in this case, George and his family had checked a small box indicating for them to do so “if you want to see close family members in this search program.”  The company is said to have close to one million people in its database.  With modern science, close family members can easily be identified out of such data if opting into being notified. 

Here, the company does not appear to have done anything wrong legally.  Quite the  opposite: if anything, the above shows that the buyers in these situations may not be sufficiently mentally prepared for the information they may discover through DNA testing.  Arguably, they should be.  After all, the old adage “watch out what you ask for, you may get it” still rings true.

But isn’t this situation akin to the various other situations we have blogged a lot about here this past year where customers buy various items online and click – or not – on various buttons, thus signaling at least alleged acceptance of, for example, terms of service requiring arbitration instead of lawsuits in case of disputes?  As I have argued, many people probably just clicks such buttons without fully realizing what the legal or, in cases such as the above, factual results may be.  Should online vendors be required either legally to make such check boxes or other online indicia of acceptance a lot more obvious?  Or should they at least be required to do so for reasons of business ethics? 

I think so.  Most working people are exceptionally busy these days.  Frankly, not many of us take the time to scrutinize the various implications - legal or otherwise – of the purchases we make online, especially because the agreements we accept in cyberspace are presented so very differently online, yet are so deceptively similar in legal nature that we probably feel pretty comfortable with simply clicking “I accept” as the vast majority of such transactions present no or only minor problems for us? And aren’t the vendors the party with the very best knowledge of some, if not most, of the problems that arise in these contexts?  How hard would it really be for them to make sure that they use all the “bells and whistles” to truly put people on notice of what typical problems encountered may be, exactly to avoid legal problems down the road?  One would think so, although, of course, customers also carry some of the burden of educating ourselves about what we buy and what that may mean.  This is perhaps especially so when such delicate issues as the above are involved.

For George Doe, the above unfortunately turned out to be much more of a curse that kept on giving instead of a gift that kept on giving.

On behalf of your blogging team here at ContractsProfs Blog: Happy Holidays!

December 22, 2014 in Commentary, Current Affairs, E-commerce, Miscellaneous, Science, Web/Tech | Permalink | TrackBack (0)

Wednesday, December 10, 2014

Carving Out and ICAM

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I read an interesting article the other day about parties to a contract agreeing to a broad arbitration provision and then carving out some issues that would be litigated should a problem arise. As with many others, I am involved in the International Commerical Arbitration Moot and, when I read the article, the issue seemed familiar. That is because this year's problem includes a contract with the following two provisions: 

"Art. 20 All disputes arising out of or in connection with the present contract shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. The seat of arbitration shall be Vindobona,
Danubia, and the language of the arbitration will be English. The contract, including this clause,
shall be governed by the law of Danubia.

Art 21: Provisional measures
The courts at the place of business of the party against which provisional measures are sought
shall have exclusive jurisdiction to grant such measures."

As you would expect, one of the parties in the problem asks for interim relief from the ICC while the other says interim measures are for courts only. Very often, if  not most of the time, the Moot problem is inspired by an actually case. Some years the students are able to find the case and, while it is never quite exactly on point, it can be helpful.

I could not help but wonder if this issue within this year's problem was inspired by a botched effort to carve interim relief out from the general provision. It would be pretty sloppy to draft something like the above but my hunch is that it has happened. 

I am curious to know how other ICAM team coaches have dealt with the issue. In particular, does the word "finally" in Article 20 have any particular signficance?

December 10, 2014 in Commentary, Conferences, Contract Profs, Current Affairs, Miscellaneous, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Styl'n at the International Commercial Arbitration Moot

 

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In a couple of previous posts I've described the International Commerical Arbitration Moot (ICAM) and detailed some aspects of  this year's problem. None of this is news  to the contracts, sales, and arbitration professors around the country who are involved in this activity. Still I am surprised at how many schools do not have teams. I have also noted the possible use of the yearly ICAM problem as a source or inspiration of exam questions. 

For professors who are interested in starting a team there are many things to consider other than substance. These involve selecting and preparing a team.  Here at Florida this means trimming a class of 30 or so  hopeful students down to a team of 4 to 6.  It is a complicated task. We try as much as possible to hold try outs that resemble the actual competition in Vienna.  Other coaches know that the ICAM competition requires students to know the facts and law with precision and to have certain mannerisms that the mainly European judges find appealing.  For example, speaking slowly is critical since many if not most judges will have English as a second language. Also, the closer the English spoken is to British English, the better. Why? Most of the arbitrators will have learned English abroad. The use of virtually any slang means you should move up your departure date from Vienna because you will not go far in the competition.  "Gonna" must be "going to." "Wanna" must be "want to." No "big bucks." No "you guys." etc.  If there such a thing as an eloquent yet casual style, that seems to work best. Yes, theater is involved and the coaches are directors as much as teachers. Even "costumes" seem to count. I watched a rather uncomfortable session in which an arbitrator dressed down a competitor who had, well,  "dressed down"  by not having the top button of his shirt buttoned. I think most coaches would agree the competition starts when the students arrive at the U.S. departure airport because from that point forward they may be rubbing shoulders with the arbitrators they will encounter in Vienna. 

 

November 20, 2014 in Contract Profs, Film, Miscellaneous, Television, Travel | Permalink | TrackBack (0)

Friday, October 17, 2014

Documentary on Forced Arbitration

The Alliance for Justice has released a documentary on forced arbitration called Lost in the Fine Print.  It's very well-done, highly watchable (meaning your students will stay awake and off Facebook during a viewing), and educational.  I recently screened the film during a special session for my Contracts and Advanced Contracts students.  It's only about 20 or so minutes and afterward, we had a lively discussion about the pros and cons of arbitration.  We discussed the different purposes of arbitration and the pros and cons of arbitration where the parties are both businesses and where one party is a business and the other a consumer.  Many of the students had not heard about arbitration and didn't know what it was.  Many of those who did know about arbitration didn't know about mandatory arbitration or how the process worked.  Several were concerned about the due process aspects.  They understood the benefits of arbitration for businesses, but also the problems created by lack of transparency in the process.  I thought it was a very nice way to kick start a lively discussion about unconscionability, public policy concerns, economics and the effect of legislation on contract law/case law.  

I think it's important for law students to know what arbitration is and it doesn't fit in easily into a typical contracts or civil procedure class so I'm afraid it often goes untaught.  The website also has pointers and ideas on how to organize a screening and discussion questions.

October 17, 2014 in Commentary, Current Affairs, Film, Legislation, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Want to make sandwiches? First, sign this non-compete...

Jimmy John's, a sandwich chain that frankly I had never heard of but which has over 2,000 franchise locations, apparently makes its employees sign pretty extensive confidentiality and non-compete agreements , as reported by Bob Sullivan and this Huffington Post article.  It's not clear to me what trade secrets are involved in making sandwiches, although I am a big fan of more transparency when it comes to what goes in my food and how it's made. As Bob Sullivan points out, in this economy, employment-related agreements for most employees are typically adhesion contracts. Making workers sign non-competes to get a job makes it much harder for them to get their next job.  In this case, the employee is prohibited from working for two years at any place that makes 10% of its revenue from any sandwich-type product (broadly defined to include wraps and pitas) that is within 3 miles of any Jimmy Johns location.  Given that there are 2,000 such locations, it could make it difficult for some food industry workers to find other jobs.

October 14, 2014 in Current Affairs, Food and Drink, Labor Contracts, Miscellaneous | Permalink | Comments (3) | TrackBack (0)

Monday, October 6, 2014

New Jersey Supreme Court Finds Arbitration Agreement Unenforceable for Lack of Notice

The New Jersey Supreme Court rendered a decision on September 23 that found an arbitration provsion unenforceable because the language was insufficient to alert a reasonable consumer that she was surrendering a constitutional or statutory right.  The plaintiff, Patricia Atalese, entered into a contract with U.S. Legal Service Group, L.P. (USLSG) for debt adjustment services.  Atalese paid USLSG approximately $5,000  for its services.  She alleged that USLSG did very little for her and further, that it failed to mention that it was not a licensed debt adjuster in New Jersey.  She sued, alleging that USLSG violated the Consumer Fraud Act and other consumer law.

The contract contained the following provision:

Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees.

 The NJ Supreme Court found that despite arbitration's "favored status," not every arbitration clause, "however phrased," will be enforceable.  NJ consumer law required that consumer contracts be written in a "simple, clear, understandable and easily readable way."  Arbitration clauses, like other contractual clauses, must also be phrased in "plain language that is understandable to the reasonable consumer."

Here, the arbitration clause was on page 9 of a 23 page contract.  It provided no explanation that the plaintiff was waiving her right to sue in court for breach of her statutory rights.  The provision also did not explain the meaning of arbitration or indicate how it differed from a court proceeding.  Finally, the court found that it was not written in plain language that would be "clear and understandable to the average consumer that she is waiving statutory rights."  The court concluded:

"In the matter before us, the wording of the service agreement did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue her statutory claims in court.  That deficiency renders the arbitration agreement unenforceable."

Very nice work, Supreme Court of New Jersey, for recognizing that "reasonable consumers" should not be expected to sift through fine print and make sense of legal mumbo jumbo.

Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees. - See more at: http://caselaw.findlaw.com/nj-supreme-court/1678725.html#sthash.yAibodjp.dpuf
Arbitration: In the event of any claim or dispute between Client and the USLSG related to this Agreement or related to any performance of any services related to this Agreement, the claim or dispute shall be submitted to binding arbitration upon the request of either party upon the service of that request on the other party. The parties shall agree on a single arbitrator to resolve the dispute. The matter may be arbitrated either by the Judicial Arbitration Mediation Service or American Arbitration Association, as mutually agreed upon by the parties or selected by the party filing the claim. The arbitration shall be conducted in either the county in which Client resides, or the closest metropolitan county. Any decision of the arbitrator shall be final and may be entered into any judgment in any court of competent jurisdiction. The conduct of the arbitration shall be subject to the then current rules of the arbitration service. The costs of arbitration, excluding legal fees, will be split equally or be born by the losing party, as determined by the arbitrator. The parties shall bear their own legal fees. - See more at: http://caselaw.findlaw.com/nj-supreme-court/1678725.html#sthash.yAibodjp.dpuf

October 6, 2014 in Miscellaneous, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Monday, September 29, 2014

Smoking and the Dangers of Disclosure

The NYT had an article about e-cigarette label warnings today that was eerily appropriate given our symposium on Omri Ben-Shahar and Carl Schneider's book, More Than You Wanted to Know:  The Failure of Mandated Disclosure. The reporter must have been following our blog symposium and seems to have come up with an example that supports the arguments made by Ben-Shahar and Schneider.  The article explains how big tobacco companies have been putting warning labels on their e-cigarette packages that are more extensive than those on their tobacco cigarettes.  There are several possible explanations for why they are doing this, ranging from the least cynical (they want to be good corporate citizens) to the more cynical (they are trying to set up their smaller e-cigarette competitors for later regulation, possibly reduce demand for e-cigs to boost sales of tobacco cigs, and protect themselves from liability). 

I tend to be in the more cynical camp.  Big tobacco companies are both attempting to protect themselves from liability by setting forth as many potential dangers of their product as they can, and they are positioning e-cigarettes as "just as" dangerous, if not more, than plain old tobacco cigarettes.  The article notes something that readers of the book and blog already know - the disclosures have little effect on consumer purchasing decisions because nobody reads them.  The strategy of big tobacco supports the arguments made by Ben Shahar and Schneider that disclosure hurts rather than helps consumers except there's one crucial difference -  the companies are putting these extensive disclosures on the labels themselves.   They are not mandated. By voluntarily disclosing the harms of e-cigs, big tobacco companies both protect themselves from liability and avert regulation.  Doing away with mandated disclosure wouldn't prevent this kind of strategic selective disclosure --selective and strategic in the sense that these companies are only forthcoming with certain products and with certain types of disclosure.  It's revealing that one of the companies claiming that e-cigarettes warrant more extensive disclosure than their tobacco counterparts is RJ Reynolds, which succesfully sued the FDA to prevent mandated graphic warnings on cigarette packages.

So - the battle about disclosure continues to rage....

 

September 29, 2014 in Books, Commentary, Contract Profs, Current Affairs, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

Planet Money Episode 570: The Fine Print

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The folks over at NPR's PlanetMoney have a new episode titled "The Fine Print." And it delivers!  By their description:

On today's show, we read our homeowners insurance policy.

The details are amazing. Lava! Vermin! Falling objects! And, hiding in all the fine print, the story of how insurance works — and what makes it break.

The episode happens to have relevance to our ongoing symposium and even features a conversation with Daniel Schwarcz, one of the symposium contributors.  If you listen, you'll hear Prof. Schwarcz admit that, to be sexy, insurance law might just need a little airbrushing.

Definitely worth listening - Enjoy!

September 23, 2014 in In the News, Miscellaneous, Teaching, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, September 11, 2014

California law against non-disparagement clauses

This is big - Governor Jerry Brown just signed a bill into law that would prohibit non-disparagement clauses in consumer contracts.  The law states that contracts between a consumer and business for the "sale or lease of consumer goods or services" may not include a provision waiving a consumer's right to make statements about the business.  The section is unwaivable. Furthermore, it is "unlawful" to threaten to enforce a non-disparagement clause.  Civil penalties for violation of the law range from up to $2500 for a first violation to $5000 for each subsequent violations.  (Violations seem to be based upon actions brought by a consumer or governmental authority, like a city attorney.  They are not defined as each formation of a contract!)  Furthermore, intentional or willful violations of the law subject the violator to a civil penalty of up to $10,000.

We've written about the dangers of non-disparagement clauses on this blog in the past.  It's nice that one state (my home state, no less!) is taking some action.  Will we see a California effect as other states follow the Golden State's lead?  As I've said before, those non-disparagement clauses aren't such a good idea- now would be a good time for businesses to clean up their contracts.

 

September 11, 2014 in Current Affairs, In the News, Legislation, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2014

Some additional thoughts about the Salaita case

As Jeremy Telman previously noted, the unhiring of Steven Salaita has caused quite a stir in academic circles.  There was even an article in the Chronicle of Higher Education briefly discussing the contractual issues, which included the arguments made by Prof. Michael Dorf and Prof. David Hoffman.  I think they both have good arguments but I tend to think  this is a real contract and not an issue of promissory estoppel.  The reason I believe this has to do with what constitutes a "reasonable interpretation" under these circumstances.  I think both parties intended a contract and a "reasonable person" standing in the shoes of Salaita would have believed there was an offer.  The offer was clearly accepted.  What about the issue regarding final Board approval? Does that make his belief there was an offer - which he accepted -  unreasonable?  I don't think so given the norms surrounding this which essentially act as gap fillers and the way the parties acted both before and after the offer was accepted.  I think the best interpretation - really, the only reasonable one given the hiring practices in academia - is that the Board approval was a rubber stamp but one that could be withheld if the hired party did something unexpected, like commit a crime.  In other words, I think there was an offer that was accepted and that the discretionary authority of the board to approve his appointment was subject to the duty of good faith and fair dealing - i.e. the Board would only withhold approval for good cause.  I don't think this was a conditional offer - the language would have to be much more explicit than it seemed to be and to interpret it that way would constitute a forfeiture (which courts don't like) - and yes, I considered whether it could be a condition to the effectiveness of a contract.  That question caused me some angst but I still don't think it was given the hiring norms in general, and the way the parties acted. 

There was, however, an implied term in the contract that Salaita would not do anything or that no information would come out that would change the nature of the bargain for the university.  For example, if it turned out that he didn't really have a PhD or that he plagiarized some of his work, that would be grounds for the Board to refuse to approve his appointment.  In that case, the Board could refuse to approve his hiring without breaching its good faith obligation.

The real dispute here is whether Salaita's tweets constituted a breach of that implied term (i.e. did it undermine the bargain that the university thought it was getting?)  I think that's really what the disagreement in the academic community is about and why the real contractual issue has to do with interpretation - and the meaning of academic freedom.

 

August 25, 2014 in Commentary, Current Affairs, Labor Contracts, Miscellaneous | Permalink | Comments (4) | TrackBack (0)

Wednesday, August 6, 2014

Online Contracts Here and Now

Here is my interview  with  Jeremy Hobson of NPR's Here and Now on the subject of online contracts. 

August 6, 2014 in Commentary, Current Affairs, In the News, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

23andMe's Wrap Contracts

H/T to Eric Goldman for sharing with the list a new case from Judge Lucy Koh of the federal district court of Northern California.  Tompkins v. 23andMe provides a detailed analysis of 23andMe's wrap contracts.  The case involves the same Terms of Service presented as a hyperlink at the bottom of the website's pages, and then later, post-purchase and at the time of account creation, as a hyperlink that requires a "click" in order to proceed (which I refer to as a "multi-wrap" as it's neither browsewrap nor clickwrap but a little of both).  The court says the former presentation lacks notice, but the latter constitutes adequate formation.  Eric Goldman provides a detailed analysis of the case here.  

Not surprisingly, the Terms contained a unilateral modification clause which was briefly discussed in the context of substantive  unconscionability.  It was not, however, raised as a defense to formation, i.e. to argue that the promises made by 23andme were illusory.  

July 7, 2014 in Commentary, E-commerce, Famous Cases, Miscellaneous, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Symposium Issue on Contract Law in 2025

The Duquesne Law Review recently published a symposium issue on "Contract Law in 2025" -- I've pasted links to the contributions below:

 

Back Home

 

Drafting Our Future: Contract Law In 2025

SYMPOSIUM ARTICLES

The Judicial Vision of Contract: The Constructed Circle of Assent and Unconscionability
John E. Murray, Jr.

 

The Future of Fault in Contract Law
Robert A. Hillman

 

Two Alternate Visions of Contract Law in 2025
Nancy S. Kim

 

The Future of Many Contracts
Victor P. Goldberg

 

A Eulogy for the EULA
Miriam A. Cherry

 

The Death of Contracts
Franklin G. Snyder & Ann M. Mirabito

 

July 1, 2014 in Miscellaneous, Recent Scholarship, Web/Tech | Permalink | TrackBack (0)

Friday, June 27, 2014

Maybe That Non-Disparagement Clause Wasn't Such a Good Idea....

Several months back, I blogged about KlearGear's efforts to enforce a $3500 nondisparagement clause in their Terms of Sale against the Palmers, a Utah couple that had written a negative review about the company.  It was a case so bizarre that I had a hard time believing that it was true and not some internet rumor.  Even though the terms of sale most likely didn't apply to the Palmers --or to anyone  given the improper presentation on the website-- KlearGear reported the couple's failure to pay the ridiculous $3500 fee to a collections agency which, in turn, hurt the couple's credit score.  The couple, represented by Public Citizen, sued KlearGear and a court recently issued a default judgment against the company and awarded the couple $306,750 in compensatory and punitive damages.  Consumerist has the full story here

Congratulations to the Palmers and Scott Michelman from Public Citizen who has been representing the couple.  And let this be a warning to other companies who might try to sneak a similar type of clause in their consumer contracts....

June 27, 2014 in Current Affairs, In the News, Miscellaneous, True Contracts, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Terms of Use as Entertainment

Miriam A. Cherry

(The next John Grisham?)

We here at the contracts prof blog are frequently in a lather over adhesive contracts.  Terms of use run amok, arbitration clauses are routinely enforced, and non-compete clauses prevent teenagers from seeking gainful employment.  Yet, where's the outrage from other quarters?  One problem, as John Oliver notes in this hilarious (and effective) bit on net neutrality, is that some things are just too BORING to grab consumers' attention.  Towards the end of the clip (about 10:10), he states this truth:  "If you want to do something evil, put it inside something boring."  He speculates that Apple could put the entire text of Mein Kampf inside its user agreement and we would just hit "Agree." 

That's really the problem with Terms of Use - they are just too boring that except for a few contracts profs, most people don't want to think about them.  They just want them to go away.  One solution is to make them more interesting.  John Oliver's approach to net neutrality - to make it ridiculously funny yet informative - is one way to awaken the sleeping consumer into righteous outrage.  Apparently the FCC's comment site temporarily shut down after he encouraged viewers to voice their displeasure.  Of course, South Park has already poked fun at the iTunes agreeement.  That didn't result in a boycott of Apple's products because there was no "call for action."  It did, however, raise the issue for many and has become a useful cultural reference point on the state of consumer helplessness in the face of TOS.

Another way to provoke interest in the subject might be to write an imaginative futuristic tale of a world controlled by EULAs, like Miriam Cherry has done here.  Her fast-paced story is a mashup of Girl with a Dragon Tattoo, Boilerplate and Ender's Game - beach reading for contracts profs!

June 12, 2014 in Miscellaneous, Recent Scholarship, True Contracts | Permalink | Comments (2) | TrackBack (0)

Tuesday, June 10, 2014

The (Im)morality of Disclosure and Contract Design

I've been thinking a lot about contract design, disclosure and consent recently, and had a chance to read Tess Wilkinson-Ryan, A Psychological Account of Consent to Fine Print, 99 IOWA L. REV. 1745 (2014) which (from the abstract):

 "aims to unpack the beliefs, preferences, assumptions and biases that constitute our assessments of assent to boilerplate.  Research suggests that misgivings about procedural defects in consumer contracting weigh heavily on judgments of contract formation, but play almost no role in judgments of blame for transactional harms.  Using experimental methods from the psychology of judgment and decision-making, I test the psychological explanations for this disjunction, including motivated reasoning and reliance on availability heuristics." 

Wilkinson-Ryan concludes that, while disclosures may not have noticeable effects on the assent process (i.e. whether consumers read or understand terms), they have "enormous effects on how we understand transactional harms."  In other words, we are more likely to understand that the consumer has consented and that the consumer is to blame for having consented if the particular disputed issue has been disclosed. 

Wilkinson-Ryan covers the same territory that Eric Zacks covered in a couple of earlier articles having to do with contracting behavior by firms and the effect of contract design on how consumers perceive their moral obligations.  In the first article, Contracting Blame, 15 Univ. of Penn. J. of Bus. L. 169 (2012) Zacks (I’m quoting from the abstract again):

 “explores the impact of the cognitive biases of judges and juries in the context of contract preparation and execution....This Article makes a novel link between behavioral literature and contract preparation and suggests that contract preparers may be able to manipulate adjudicators’ cognitive biases systematically. Exclusive of the economic bargain, contract provisions can provide attributional 'clues' about the contracting context that inform and reassure judicial interpreters that a particular contracting party is more blameworthy than another....In light of the significant implications of the existence and prospective use of such attributional clues for contract law theory and judgment, this Article proposes a broader contextual and adjudicative focus when contemplating contract law reforms.”

In the second, Shame, Regret and Contract Design, 97 Marquette L. Rev. (forthcoming), Zacks argues (again from the abstract):

“(c)ontracts can encourage individuals to feel shame, to blame themselves, to believe that contracts are sacred promises that should be specifically performed, to utilize faulty judgment heuristics when determining contract costs, and to rely on misperceived social norms with respect to challenging or breaching contracts. This may influence them not to breach or challenge an otherwise uneconomical, unconscionable, or illegal contract.” 

 
The takeaway from these three articles?  Firms are manipulating consumers through disclosure and contract design into performing contracts without real consent.  The question then is what to do about it.

Wilkinson-Ryan’s article raises interesting questions about whether disclosure requirements have unintended consequences.  I think her article provides additional support for Omri Ben Shahar and Carl Schneider's book, More Than You Wanted to Know:  The Failure of Mandated Disclosure (Princeton, 2014).*  But rather than concluding that disclosure is a lousy way to address the problem of consent (which it often is), I came to a slightly different conclusion based upon one of her studies. That study found that "making the firm's behavior more salient changed how subjects ranked the blameworthiness of the parties." Wilkinson-Ryan notes that, "(u)nless participants are prompted to think about the firm's drafting process as a set of choices, the drafter's role is not a salient factor in judgments of blame." In my book, Wrap Contracts, and elsewhere, I argue that courts should stop focusing on consumer's "duty to read" and focus instead on the company's "duty to draft reasonably."  In other words, courts should consider whether the drafting firm could have presented and drafted the contract terms in a better, more understandable fashion rather than on whether the adherent "should" have noticed the terms. This shifts the burden of form contracting - and Wilkinson-Ryan's studies suggest, the moral blame -- from the non-reading consumer to the bad-drafting, morally culpable, company.   Of course, requiring companies to draft reasonably (as distinguished from providing “reasonable notice”) doesn’t get us all the way there – but it may help shift the focus away from blaming the adherent-victim  to thinking about the immorality of the drafting firm.


*This blog plans to host a symposium on their book sometime in the fall so stay tuned.

**Boycott Amazon and buy this book from the publisher's website. 

June 10, 2014 in Commentary, Miscellaneous, Recent Scholarship | Permalink | TrackBack (0)

Tuesday, May 27, 2014

Author Meets Reader Salon on Wrap Contracts

Law and Society Association's Annual Meeting is only a few days away.  There will be an Author Meets Reader Salon on my book, WRAP CONTRACTS on Friday, 5/30, 8:15am-10:00am in the Duluth Room. Shubha Ghosh (Wisconsin), Danielle Kie Hart (Southwestern) and Juliet Moringiello (Widener) will be joining me in what promises to be a lively discussion about those pesky clickboxes and pop-ups on your screens.  If you are attending the meeting, please stop by and join us!  

May 27, 2014 in Books, Conferences, Contract Profs, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Saturday, May 24, 2014

Mutuality and Wrap Contracts

As I've noted in a prior post, there is a lawsuit pending against Google for email scanning which was recently denied class status.  Something that's puzzled me about wrap contracts generally, including Google's, is that many of them don't seem to be contracts at all - and not simply because of the (lack of) consent issue.  They typically contain modification at will clauses and termination at will clauses.  In contracts class, I teach students that generally (with the exception of employment contracts) these clauses lack mutuality unless constrained in other ways, such as a notice period.  While there may be consideration (use of service in exchange for...data?  eyeballs?  not clear), there is no consideration if the promises are illusory and don't actually bind a party.   Google's terms of use, for example, state:

"You can stop using our Services at any time, although we’ll be sorry to see you go. Google may also stop providing Services to you, or add or create new limits to our Services at any time."

and this unilateral modification clause:

"We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service."

Google then isn't bound to actually provide anything according to its Terms of Use. 

In the email scanning case, Google is making the argument that consent to email scanning was obtained in the context of "consenting" to the Terms of Use.  But if these "contracts" are not really contracts because they lack mutuality, then can Google really claim that their users "consented" to the email scanning?  Is there blanket assent to terms outside of the context of a contract? 

 

 

 

May 24, 2014 in Commentary, E-commerce, Miscellaneous, Web/Tech | Permalink | Comments (2) | TrackBack (0)