The march of the non-disparagement clauses continues.
This time the business is Accessory Outlet, another web-based retailer. Its terms (fine print, as usual) prohibit “any complaint, chargeback, claim, dispute,” or “any public forum post, review, Better Business Bureau complaint, social media post, or any public statement regarding the order,” or threats to take any of these actions, within 90 days of a purchase. Allowing these actions after 90 days is better than never allowing them at all, but it is, of course, within that 90 days that a customer is most likely to want to post about her experience and most likely to need to dispute a charge on her credit card. On Accessory Outlet's website, the customer is not required to click "accept" on these terms or even view them before making a purchase. In fact, the checkout page contains links to different (and innocuous) sets of terms, thus decreasing the chance a customer would go searching for the terms with the non-disparagement and non-dispute clauses.
A new twist from Accessory Outlet is a prohibition on "threats" to take any prohibited actions, and that's the clause the company seemed to be relying on when it told Wisconsin consumer Cindy Cox, who is a veteran of the U.S. Navy and now works with special needs children in her local school district, that she owed the company an additional $250 penalty on top of the $40 Cox paid for an iPhone case. Cox had contacted the company in mid-July to ask to cancel when the order hadn't shipped for 10 days. Accessory Outlet refused to cancel the order, and Cox said she'd contact her credit card company.
That's when Accessory Outlet took it to the next level.
The company warned Cox she'd face a penalty for contacting her credit card company, and when Cox said she had the right to do so, Accessory Outlet wrote her that “[a]s of now,” Cox owed the company “damages” and that the company would engage “multiple collections agencies.” Accessory Outlet’s email further stated, “This will put a negative mark on your credit for 7 years and lower your [credit] score significantly.” The email also informed Cox that “[c]alls to collect the additional fees will continuously be made to your home, cell, and/or work phones." The company subsequently told her it would "add on and [sic] additional fees on an ongoing basis as needed."
When Cox threatened to contact a lawyer and the Better Business Bureau, Accessory Outlet wrote back:
Contact your lawyer, spend more time and money if you wish. You will be billed and the amount we will bill you for will continue to rise with every email and every second we dedicate to correspondence of any kind pertaining to your breach of the terms of sale. Thank you.
After a few more emails, Accessory Outlet wrote Cox the following:
The collections action is separate and based solely on breach of contract and will be done even though you paid for and received the merchandise due to your breach of the terms of sale. Read the agreement or have someone competent do so for you since your emails make it clear you did not read the agreement or do not understand the clauses contained therein. You also obviously do not know how to use the tracking or are ignoring it. Either way you will pay us $250 on top of the order total or have continuous calls to your home, cell, and/or work phones to collect the debt due. You are playing games with the wrong people and have made a very bad mistake given the legally binding contract we have in place. One we have successfully enforced on many individuals the same we will do with you.
"Playing games with the wrong people"? What is this, The Godfather?
Today we filed suit on Cox's behalf in state court in New York (where the company has consented to jurisdiction on its website) seeking a declaratory judgment that Cox does not owe the $250 and that its contract terms are unenforceable. We also seek damages under New York's Deceptive Practices Act.
Oh, and the merchandise? It arrived, in the end (a couple of days after Accessory Outlet's threatening emails), but it was defective -- the iPhone case was warped and wouldn't close around the phone.