That’s the title of a symposium to be held Friday, April 4, 2014 at the Georgetown University Law Center in Washington, D.C.
The question the symposium will ask?
What have you “agreed” to in the fine print?
It’s usually some ugly stuff like — you can’t take the company to court. It’s usually forced arbitration.
The company can change the contract at any time. You can’t.
Things like that.
The symposium is being sponsored by Georgetown’s Consumer Law Society.
And by Citizen Works.
The keynote speaker will be consumer advocate Ralph Nader.
Theresa Amato is the executive director of Citizen Works.
“It’s an all day event that will feature regulators, practitioners, professors and advocates who work on and think about the issues of fine print, boilerplate,” Amato told Corporate Crime Reporter in an interview this week. “Most people encounter fine print usually as an annoyance of some sort or another when they are buying a product or service. Typically on-line you see the contract and you click ‘I agree.’ The contracts are very long. Almost no one reads them. Often, you don’t get all of the terms when you buy the product. The details come in the box when the product is delivered.”
“At the conference, we will discuss the everyday challenges that consumers face in the fine print across multiple industries — cell phones, cable contracts, student loans, payday loans, mortgages. Everybody faces the fine print at some point and usually often. We all are consumers of various products and services.”
The event is being kicked off by the chairwoman of the Federal Trade Commission (FTC), The Honorable Edith Ramirez.
“In the middle of the day, we are hearing from the general counsel, Meredith Fuchs, of the Consumer Financial Protection Bureau (CFPB),” Amato said.
“The first panel will discuss the challenges consumers face. The panelists will discuss how these contracts have become longer and how difficult they are for people to understand. We have to look to other solutions beyond consumer education.”
“The second panel of the day will talk about what should and shouldn’t be in the fine print. The panelists will discuss particular terms. Should there be pre-dispute forced arbitration? Should there be non disparagement clauses? There are, unbelievably, clauses in some of these contracts that you can’t talk about the product or service negatively or you will be in violation of the contract. There are waivers of liability. Consumers often “agree” to waive all kinds of rights and responsibilities of the vendor, often without knowing that they have given up a variety of rights, including their ability to have their day in court. The vendor gets to determine and dictate where any kind of dispute and what law would apply if something goes wrong with the product. People waive the liability of the vendor, they waive the ability to hold wrongdoers accountable should something go wrong.”
“The third panel will look at whether disclosure has failed and if so what can be done about it. Disclosure is often the least common denominator that most regulators can agree to. People should at least be told. But telling people, disclosing more and more and more and more, so that we have contracts that are 75,000 words long, longer than Shakespearean plays — has not worked. Is it because we haven’t made good disclosures and we can improve the situation with better disclosures? Or is that disclosure just won’t work in helping to affect behavioral outcomes and other methods should be tried?”
The fourth panel of the day will discuss particular reforms — what’s next?
“The final keynote speech will be by consumer advocate Ralph Nader at 5 pm.”
Amato says disclosure in its current form doesn’t work.
“For the most part, disclosure has not been proven to work,” she says.
People are signing onto contracts they don’t read and can’t understand. The contracts they are signing onto are harmful to their interests.
What’s Amato’s fix?
“We could get rid of harmful provisions in the fine print. There could be outright bans,” she says.
What are the elements that should not be in a contract?
“At the top of the list — unilateral modification and pre-dispute forced arbitration,” she says. “Unilateral modification destroys comparison shopping. You never know what’s the final deal.”
“The other one is a pre-dispute forced arbitration provision. It strips you of your right to go to court. And it sets up a private system of determining disputes, a private system of arbitration not subject to the regular laws. An arbitrator doesn’t have to apply any particular set of laws that contain consumer protections. It doesn’t create precedent. The arbitrator tends to be of the industry’s choosing.”
“If you are a company and are always hiring arbitrators, it is more likely that the arbitrator is going to look more kindly upon the company that continues to hire him or her than the consumer going against the company. The arbitration forum can also be costly to consumers. And studies have shown that consumers don’t do well in terms of outcomes if they even go through with the entire process.”
Other than those two, what would you prohibit?
“Choice of forum and choice of law. You don’t want to sign a contract, when you live in New York, and find out that you have to arbitrate in South Dakota.”
[For the complete transcript of the Interview with Theresa Amato, see 27 Corporate Crime Reporter 15(12), April 7, 2014, print edition only.]