The following post from 2017 became relevant today when I prepared to comment on a story last week on Politico:
Passengers and their survivors won a $265 million court settlement with Amtrak after a 2015 derailment in Philadelphia killed eight people and injured hundreds more. But if such a crash happened today, the victims would not be able to sue. That’s because of a clause the passenger rail line quietly added to its ticket purchases in January, which forces disputes into arbitration with no right to go before a judge or jury.
The change is bringing objections from consumer advocates, who note that it covers scenarios ranging from ordinary ticketing complaints up to wrongful death, and even includes minors who had the tickets purchased for them. And it could soon get Congress’ attention. The language has flown under the radar so far, but may burst into view when the House Transportation Committee holds a hearing on Amtrak next week.
“It is one of the most anti-consumer and passenger clauses I’ve ever seen,” said Julia Duncan, senior director for government affairs at the American Association for Justice, which represents trial lawyers.
I realized that the post I was preparing to write was already written. Here it is, with a addition. [Some other posts on the topic of fine print—yes, it’s a perpetual source of annoyance for me— can be found here.]
I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does do it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,” and the lawyer shrugs and says, “Whatever you say! It’s your contract”?
[11/11/2019 addition: I first started thinking about this problem when I was signing up for a membership in Holiday Spas, the once popular health club chain that appears to be kaput. One of the fine-print provisions in the contract stated that the member would hold the club harmless for any physical injury, accidental or intentional, committed on the member by an employee. I crossed it out and told the representative, “I’m not signing that. It’s a non-enforceable term; it literally means one of your staff could beat me with a barbell and I couldn’t sue you.” “Yeah,” the rep said. “A lot of our lawyer members cross that part out. “So,” I continued, “you just have your lawyers put that crap in to bluff naive members out of suing when they can, right?”
“That’s about it,” he shrugged.]
WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages. 22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”
The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won.
This was essentially a re-run of a funnier version of the same stunt from 2014, when the cybersecurity firm F-Secure ran a similar experiment in London, operating a WiFi hotspot that anyone could use if they signed an agreement promising to give up their firstborn child. The key provision was called the “Herod Clause,” and six people still signed it.
It isn’t really funny, though, that lawyers will be complicit in the slimy “fine print” scam, and thousands upon thousands are. I believe that a lawyer would be unethical to put the Herod Clause or Purple’s “community service clause” in a contract. Lawyer’s aren’t supposed to help clients play tricks on careless people, for laughs or profit.
Jonathan Turley, writing about the Purple stunt, says that “it is a disgrace that there has not been greater effort to combat these knowingly complex and convoluted contracts,’ and blames lawmakers for not making them illegal.
How about blaming the legal profession for not enforcing its rules against a lawyer engaging in misrepresentation and deception. and declaring the practice unethical for lawyers to facilitate?
After all, it is.