can i sit at the feet of the master one last time? i have a question that i think speaks to your precise specialty.
No master, just a dude who writes a lot of commercial contracts. And you’ve got ike on the thread now, so you’ll probably get much better and nuanced guidance. I’m sure there are dozens of other lawyers lurking on this thread that either think I’m full of shit, could argue it better, or both.
during the last quarter of 2023 i and i suspect every amerigas customer had to read the entire T&C, 6,700 words, every time we logged in to use the online portal. this was several times in a row. in your industry:
- is there a known technique by which unscrupulous companies will add to the T&C piecemeal to overwhelm customers and make sure they don’t read the T&C?
In my experience, there’s rarely malice behind that process. It’s often incompetence, or just good faith attempts from an in-house legal dept. to react to rapidly changing business practices mandated by the commercial-side executives, or just reacting to changes in the law (this is especially true in the data privacy world right now).
Again, in my experience both as a practicing lawyer and a frustrated consumer - it’s a challenging process. Companies want to tell customers what the deal is, and customers want to know what the deal is. Neither side actually wants to read through all the excruciating details that the lawyers put together.
. are there any states, to your knowledge, that require companies that change their T&C to provide a synopsis of what has changed in the T&C?
Yes. I won’t go into case by case detail, but the trend for years has been that modifications to the terms should be clearly disclosed, if the modifications would be likely to have changed whether you would have entered into the deal in the first place. That’s why we all get those constant “we’ve updated our terms!” emails that nobody ever reads, just like they don’t read the original terms of the agreement either. This primer is getting a little old, but it covers some of the basic landscape. https://www.americanbar.org/groups/business_law/resources/business-law-today/2016-may/online-contracts/
Just to grab one quote and case citation out of that article that may be useful to you: “The communicative value of online interaction similarly influenced the Ninth Circuit in holding that the attempted modification in Douglas v. U.S. District Court, 495 F.3d 1062 (9th Cir. 2007), was ineffective. The dispute in that case arose when a phone service provider changed its online terms to add new service charges, a new arbitration clause, and a class action waiver. It did so without notifying its customers of the changes and simply posted the changes to its website. The plaintiff in Douglas had agreed to automatic billing and therefore had little reason to visit the website on a regular basis. **After becoming aware of the additional charges four years later, the plaintiff sued the service provider in federal court, and the service provider moved to compel arbitration based on the modified arbitration clause. After the district court found the arbitration clause enforceable, the Ninth Circuit reversed, finding that the subscriber had not been given notice of the changes. The Ninth Circuit also felt strongly that parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. This fact, plus the fact that the plaintiff would not have known where to find the changes to the terms of use even if he had visited the website, led the court to hold that the modifications were unenforceable.”
one more thing, if you don’t mind, which means nothing but it’s been sticking in my craw:
slowman is a seasoned businessman who has successfully founded, operated and exited multiple businesses - including an internet website, with terms and conditions that he himself has cited to his own customers from time to time, and has clarified or modified over time as well.
over the last several years michigan’s attorney general filed suit against amerigas - twice - for violating michigan’s consumer protection laws and the attorneys general of at least 2 other states have recently intervened on behalf of their residents against this company. your honor, amerigas is right about my business history. i ran my businesses for 36 years and in that time not one of my customers initiated a lawsuit against me, nor did any state or federal agency. i knew during my time in business that you screw your customers at your own business and legal peril - a lesson amerigas has not learned.
oh, and btw, i decided to pay amerigas in full (and did pay them) and will now sue them for what i paid. of course there’s probably some kind of T&C that says when you pay you concede that you rightfully owe the amount, but i would argue that amerigas not only charged usurious fees every month, the term used by the amerigas representative was, “it’s your credit.” so the threat was there. it’ll cost me gas money and filing fees.
I figured that would get your goat, and in a way, I wanted it to.
I know you are not Amerigas. The fact that you chose to run your businesses in a kinder, gentler way does not mean that what Amerigas is doing is illegal.
I also respectfully note that you and your businesses are/were much smaller than Amerigas, and therefore less statistically likely to draw large scale ire.
I further respectfully note that, while you haven’t been sued, you have over the years felt the need to ban participants (i.e., customers) in this forum, even after they have forcefully argued their positions on why they felt your treatment of them was unfair, or had changed over the years in ways that made it feel like the deal had changed under their feet. Other posters simply left the forum (i.e., stopped doing business with you). Granted, it’s not getting sued, which makes sense because there’s also no money involved in participating in this forum - but I think the analogy is useful to consider. It’s your forum; you run it how you see fit; you tell people to take a hike if they don’t like it. It’s Amerigas’ tank and their gas; you don’t like how they make it available the way they used to - take a hike.
Another related poke in the eye, from Slowtwitch’s own Terms of Use that have your name on them: “This Agreement shall be governed by the laws of the United States and the State of California. BY CONTINUING TO READ AND USE SLOWTWITCH.COM, YOU AGREE TO ABIDE BY THE TERMS OF THIS AGREEMENT.” This is the same dynamic that Amerigas will argue should apply to you - you keep using the service, you agree to the rules that are set out by the vendor.
And in Slowtwitch’s Privacy Policy: “*AMENDMENTS TO THIS POLICY. *Our Privacy Policy may be amended from time to time. Any such changes will be posted on this Privacy Policy page.” Does Slowtwitch give prominent, user by by user notice of changes to your privacy policy? Or do you update the policy; have it show up on the PP page; and then point back to the Terms of Use that say continued use = agreement to abide by the terms? I suspect that if push came to shove, Slowtwitch’s own lawyers would make the same arguments I am making here.