General Mills found itself in a PR nightmare last week when word got out of its new policy that essentially prevents customers from suing the company if they had downloaded a coupon, subscribed to an e-mail newsletter, or taken advantage of a promotional offer:
In other words: It just became nearly impossible to get a deal on a General Mills product without forfeiting your rights to sue the company. Even if your kid with a peanut allergy eats a Fiber One bar with trace amounts of peanuts and gets sick. For this reason, the Times reports that the new terms could come under strict legal scrutiny.
The outcry quickly forced the corporation to back down, but Leah Libresco points out that these policies are becoming more common, even though they’re often illegal:
In 2010, a British gaming company parodied the contractual creep of end user license agreements (EULAs) by adding a clause to theirs that stated that customers must sign over their souls in order to play; some companies have slipped in language almost equally absurd. Dentists using contracts from a company called “Medical Justice” inform their customers that, in order to have their teeth cleaned, they must surrender their ability to write bad reviews of the practitioner. …
Each of these provisions is about as unenforceable as the gaming company’s claim on your soul, but the legality of the language only matters if a customer actually plans to contest the contract in front of a judge. A suited representative from the company saying, “You did sign” can have a chilling effect on victims, who back away from a dispute and never learn that the provisions would have been voided.
Alison Griswold adds that General Mills’ policy probably wouldn’t have been enforceable:
AT&T, Sprint, eBay, Amazon, and Dropbox are just a handful of the companies that have introduced arbitration clauses and class-action waivers into their terms of service—aka those dense pages of legalese that only the rarest of users ever bothers to read in full. “Class action waivers are everywhere,” says Florencia Marotta-Wurgler, a professor at New York University School of Law. Her research shows that fewer than one in 1,000 people will click on website links to view the full terms of a contract before hitting “I agree.” …
When consumers aren’t made to explicitly agree with terms of use, a major change like a class-action waiver won’t be considered enforceable unless the company can demonstrate it gave “reasonable notice.” This notification needs to be fairly prominent, so the initial update on the General Mills website may not have made the cut.
And Adam Serwer looks at the role SCOTUS has played in shielding corporations from lawsuits:
In 2010, the Supreme Court ruled in Rent-A-Center v. Jackson in favor of a company that compelled its employees to sign a forced arbitration agreement as a condition of employment, even if the employee had no meaningful way of refusing the agreement other than by walking away from the job. In 2011, in AT&T v. Concepcion, the high court made it far more difficult for consumers to file class-action lawsuits against companies ruling that federal law protected the fine print in a cell phone contract that barred consumers from bringing them.
So companies know that those agreements that we tend to gloss over when we’re buying a phone or signing up for a credit card, that set up terms through which the company itself will rarely lose, are perfectly safe.
The Dish 