Is there a way to turn the tables on the purveyors of sneakwrap? At least in some instances, it might very well be possible to take matters into our own hands by sending service providers back our own "terms and conditions" for them to keep our business.
You've probably noticed how virtually every utility bill or financial statement you get in the mail each month comes with a whole new set of fine print terms that you are supposedly agreeing to by continuing the service. William Woodward, a law professor at Temple University, has noticed this too, and a few years ago he decided to try a little legal exercise with some of his service providers by sending them back his own "Terms and Conditions of Continuing Service" form along with his check. "There is no reason that a consumer cannot have her own form and do battle with a business that has tried to take away important rights by sending out its one-sided form to the consumer," he wrote. "There even seems to be a little poetic justice in it."
Woodward's specific concern was the dispute resolution terms many vendors employ to prohibit class action lawsuits and/or mandate arbitration. His terms therefore basically took the approach of simply preserving his (and the vendor's) right to use the courts. Under the contract law concept of "Battle of the Forms" his terms cancel out the vendor's terms, leaving both parties with the rights they should have. "The approach is benign in the sense that it doesn't purport to change the phone rates or the like but, rather, simply brings consumer rights back to where they were -- and ought to be -- before the arbitration or no-class-action clause arose," he said.
In Woodward's "Battle of the Forms: What You Can Do To Preserve Your Constitutional Right to Go to Court Against Businesses That Rip You Off" -- which can be seen here -- he explains how this works. He also provides a sample form he created to send to Sprint that can easily be modified to send to other vendors.
Anyone who is interested in giving it a try should keep a couple of things in mind, Woodward notes. While the idea of conflicting terms canceling each other out is well tested in business-to-business disputes, he doesn't know of any cases that have been tried involving consumers. So there's no guarantee it will work.
And there is a real possibility that the vendor will cancel your service rather than accept your terms. "This is because the form obtains the vendor's agreement if the vendor does not terminate service, just as the vendor's form purports to get your agreement if you continue to receive service," Woodward says. "You should be prepared for this and be willing to secure alternative services if the vendor decides to end the relationship."
Woodward says that the form he sent to Sprint resulted only in a "we're considering it" response from the company. In another case, however, he actually got a little bonus out of the deal. "I bought several hundred dollars worth of merchandise at Pottery Barn, and they said I could save ten percent if I opened a Pottery Barn credit card," Woodward says. "So I did. When the terms for the credit card came later in the mail, they included a mandatory arbitration clause, so I sent my own form back. Pottery Barn then canceled the account, but I kept the discount. I'd do it again."
Clearly, there are some forms of sneakwrap that don't lend themselves to Woodward's approach. "With Internet transactions, for example, it is pretty hard for the consumer to send a form back," he says. "The same goes for one-shot purchases of software where, if a contract is formed at all, it's formed on opening the box or installing the software. Any terms the consumer tried to add later would be an attempted modification that would fail."
So, if you're up for it, pick your fight carefully. Services like credit cards or long distance make sense, because there are plenty of alternatives. But I'm certainly not going to try it with SBC or my friendly local power company.
But at least this is one way we can choose when and where we fight back against sneakwrap. And if enough of us do so, maybe some of these companies will think twice about all the fine print they keep sending us in the mail. And that would indeed be poetic justice.
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