Theresa Amato is organizing to fight small-print contract trickery. (Courtesy of Citizens in Charge Foundation.)
Yesterday I wrote about the kind of absurd, unfair, and inscrutable contracts Americans click or sign on every day just to participate in normal commerce. I introduced Theresa Amato of Faircontracts.org, who’s organizing to fight these outrages, all licensed by pro-corporate court decisions, as one of the most pressing public policy problems we face, because, “If you take a look at all the economic problems we have, from the mortgage foreclosure crisis, to student loan debt, to credit card debt—pretty much pick your crisis—underneath everything you’re going to find a fine-print contract.” Today, I’ll tell you about what folks like this are trying to do about it all.
One piece is education—of which these blog posts are a part. “Just haul out your contracts and take a look!” says Amato, rattling off the toxic clauses consumers should look for: ones signing away your day in court in favor of binding arbitration (a non-transparent process that corporations almost always win); waiving liability and the right to take part in class action suits; gagging free speech; granting the contract issuer the right to unilaterally modify the terms. People “can demand that corporations treat them better, and not patronize corporations that have such provisions in their fine print. That of course means they have to read or know about it first.”
She recommends some outstanding recent books on the problem: University of Michigan law professor Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (which contends that many fine print “contracts” aren’t actually legally contracts at all); Seduction By Contract: Law Economics, and Psychology in Consumer Markets, by NYU Law’s Oren Bar-Gill; The Fine Print: How Big Companies Use ‘Plain English’ to Rob You Blind, by the legendary investigative reporter David Cay Johnston.
And, hey! Check out, I josh you not, this hip-hop joint, “Fine Print,” which Amato commissioned from the social justice rapper Lonnie Ray Atkinson:
Think about freedom, the freedom that they reppin’. Free to agree or else you get to steppin’. But that ain’t freedom, freedom means choice. The right to participate, the right to a voice.
The power to negotiate at the point of signing , power to enforce the dotted line. A level playing field where everything’s see through . And you can understand what you just agreed to.
If you ain’t got that, then you ain’t got freedom . Contracts shouldn’t make you weep when you read ‘em. From your economy to your government you better check who’s writing the fine print.
But educating yourself about the contracts you sign (even via dope beats) is but a first step—and a deeply inadequate one. Says Amato, “I don’t want to get into the frame of blaming the victim here—of blaming the consumer. Because it is not rational for a consumer to have to read forty pages of fine print to buy a product.” After all, as I pointed out yesterday, a lot of these contracts are written at a twenty-seventh grade reading level, designed not to be understood. That has to change. One way, of course, is changing the law. She says, “We as a society should be able to do better than this. Contracts should be easily accessible; but most importantly, they should be fair—as in, easy to understand and not containing or hiding deceptive or abusive provisions that harm consumers who have no idea no idea that these provisions exist in the contract.”
Laws could require any company that issues business-to-consumer standard-terms language to make those terms available on their website and posted at their place of business, so people can comparison shop. In her home state of Illinois, Faircontracts.org had allies in the state legislature introduce just such a a bill, the Consumer Contract Right to Know, because right now comparison shopping on your own next to impossible: Amato had one of her legal interns call up the top six rental car companies to email their boilerplate contracts, and not a single one would do it. The bill got a “subject matter hearing” of less than a few minutes in the Illinois Senate Judiciary Committee, in which the senior counsel of the Illinois Retail Merchants Association rather ridiculously said it was unacceptable to them because it would permit businesses to see their competitors’ contracts. It never came up for a vote.
Surprise, surprise: the powers that be are not particularly enthusiastic about the notion of empowering consumers through fair, transparent contracts—something Amato learned with a vengeance when she tried to push another bill in Springfield, the Consumer Contract Plain Language Act. The big trade associations, from the Chamber of Commerce to the Cable Television and Commerce Association to something called the “Competitive Energy Association” came out in force to lobby against it. And what would this fearsome legislative enactment have demanded? Contracts “written in a clear and coherent manner using words with common and everyday meanings,” in “type of readable size and no less than 10-point font,” not containing provisions “that permits the unilateral modification by the covered entity to the disadvantage of the consumer without explicit consumer consent after the execution of the contract.” Oh, no. Can’t have that. This bill went nowhere (though it’s been reintroduced, and will probably go nowhere again).
But don’t despair: other tactics, ones bypassing the corrupt halls of our legislatures, have worked to push for reform. The contracts you’re expected to sign when you do business with a bank have been especially onerous. The Pew Charitable Trusts undertook a study of 250 types of checking accounts and found the median length of disclosure documentation at the twelve largest banks was sixty-nine pages—and that these same banks we taxpayers have so generously bailed out with our tax dollars especially love to bury hidden fees and penalties within the thicket to make money off our supposedly “free” checking accounts. Pew then publicized and leveraged the study to pressure the banks—reeling from a successful grassroots uprising against Bank of America for its proposed five dollar “swipe fee”—to adopt plain-language disclosures that fit on a single page of paper.
Consumers, it turns out, can have power. Their voices, though, have to be amplified and aggregated—by top-down public-interest organizations like Pew, in this case; but what if we did the amplifying, aggregating—and organizing—ourselves? The sky would be the limit. And that is where Faircontract.org’s ideas start looking visionary—and where, potentially, you come in.
Explains Amato: “What should happen is that people should view the contract as a product or a service that also has the potential to harm you. So that you’re not just buying the underlying product or service; you’re also buying the contract that goes with it. And so it’s important to think of what is in that contract. And when people find out negative things that are in that contract, there should be one place that everyone can go and put their information that they’ve learned about their contract, so they can share their information—like crowd-sourcing, or a review guide.”
Think of it this way: Yelp for contracts.
“And so this is what needs to be developed, and I would like to work with someone who would be interested in working on it. Because we have cumulative knowledge that can help change the behavior of corporations. Just like there’s been a success movement against the imposition of the five dollar fee that Bank of America was going to charge, we should be able to do that every day with every position in a contract that we don’t want to be imposed upon us as intelligent consumers. Most people go into a contract thinking , that will never happen to me,’ or ‘this product will be fine’—they are in a positive optimistic mode. And so they don’t consider when something goes wrong with this product, or the service. And that’s when you learn that there are all these nefarious terms in the contract. They rely on us being disaggregated, there being no motivation or ability, not wanting to plow through these terms, and not being able to share what we know when the terms are applied against us.”
So let’s aggregate. Want to help? Want to be one of the coders to create Yelp for contracts? Go to Faircontracts.org. Get in touch with Theresa. Because, like Lonnie Ray Atikinson raps, “ain’t no freedom if we ain’t free of the fine print.”
Read the Rick Perlstein's previous post on nefariious contract terms.