Final Calls for International Conference on Contracts at St. Thomas University in Miami Lakes, Florida February 20-21, 2014

I just wanted to encourage those who are considering proposals for presentation at  the 9^th International Conference on Contracts to be held at St. Thomas University in Miami February 21-22, 2014 to send them on to me right away as nearly all panels are full at this point.  If you're interested in being a moderator, just send me an email. Of course if you would just like to come and attend, there will be plenty of good presentations to be had.  The Call for Papers, as well as travel and registration information, is available at the Conference website is at http://www.contractsconference.com/kcon/KCON9__Miami.html.  Our Law Review is doing a Symposium around the Conference and still has a few spots for papers that it will consider for publication no later than January 15, 2012.  Please let me know if you're interested in the symposium issue and I will put you in contact with the symposium editors.   One of our participants, Michael Pinsof, is trying to get a group of people together to see the show the Assassins, which is playing at the Arsht center here in Miami.  Michael Pinsof can be reached at mpinsof@sbcglobal.net if you would be interested in this event.

This is going to be a really wonderful conference this year all-conference honoree is Linda Rusch. Prof. Robin West (Georgetown) will be giving the planetary speech on Saturday and Kingsley Martin (KM standards) will be giving the talk at Friday's luncheon. 

Confirmed Participants include:

Kristen            Adams - Stetson University

Bader  Almaskari - University of Leicester, England

Rachel Arnow-Richman- University of Denver

Reza    Baheshti - University of Leicester, England

Wayne Barnes - Texas A&M University

Daniel  Barnhizer - Michigan State University

Thomas  Barton  - California Western School of Law

Shawn  Bayern - Florida State University

Christopher  Bisping - University of Warwick

Allen   Blair   

Amy    Boss -  Drexel University

Steve   Callandryllo - University of Washington

Miriam Cherry - University of Missouri

Kenneth Ching - Regent University

Neil Cohen      - Brooklyn Law

Nicolas Cornell - University of Pennsylvania - Wharton

Gerrit   De Geest - Washington University School of Law

Sidney Delong            - Seattle University

Scott    Devito - Florida Coastal School of Law

Xingyan Ding - University of Sydney

Timothy Dodsworth - University of Warwick

Pamela Edwards - CUNY School of Law

Zev Eigen        - Northwestern University School of Law

Seyed Reza Ektekhari - Islamic Azad University - Gonabad Branch

Jamie   Fox - Stetson University

Caio     Gabra  - Federal University of Rio de Janeiro

Larry   Garvin - Ohio State University

Peter    Gerhart - Case Western

Katie   Gianasi - Husch Blackwell L.L.P.

Jim       Gibson - University of Richmond

Suren   Gomtsyan        - Tilburg Law School - Netherlands

Jack     Graves -  Touro Law Center

Ariela  Gross - USC Gould

Danielle Hart -Southwestern Law School

Max     Helveston - DePaul University

Catherine         Imoedemhe - University of Leicester, England

Lyn      K.L. Tjon Soel Len - University of Amsterdam

Hila     Keren  - Southwestern Law School

Nancy  Kim -   Cal Western University

Charles Knapp            - UC Hastings College of Law

Christiina Kunz - William Mitchell College of Law

Lenora  Ledwon - St. Thomas University

Peter    Linzer  - University of Houston

Joasia   Luzak  - University of Amsterdam

Colin   Marks  - St. Mary's University

Kingsley Martin - KM Standards

Jennifer Martin - St. Thomas University

John     Mayer  - CALI

Meredith Miller - Touro Law Center

Juliet    Moringiello      - Widener University Scool of Law

Murat  Mungan - Florida State University

John     Murray - Duquense University

Masaki Nakabayashi - University of Tokyo

Marcia Narine - St. Thomas University

Wendy            Netter Epstein - DePaul University

Karl     Okamoto - Drexel University

Joe       Perillo  - Fordham University

Amir    Pichhadze - University of Michigan (SJD Student)

Michael Pinsof - Attorney

Lucille Ponte   - Florida A&M University, College of Law,

Deborah Post - Touro Law Center

Michael Pratt -            Queens University

Cheryl  Preston - Brigham Young University

Val Ricks - South Texas College of Law

Roni    Rosenberg - Carmel Academic Center, Law School, Israel

Linda   Rusch  - Gonzaga University

Amy    Schmitz - University of Colorado

Mark    Seidenfeld - Florida State University

Gregory           Shill -   University of Denver

Frank   Snyder - Texas A&M University

Jeremy Telman - Valaparasio University

David  Tollen  - Adili & Tollen, L.L.P.

Manuel  Usted - Florida State University

Robin  West -Georgetown University

Alan    White  - CUNY School of Law

Robert Whitman - University of Connecticut

Pat       Williams - Columbia Law School

Monica            Woodard - St. Thomas University

Eric      Zacks   - Wayne State University

Dustin Zacks   - King, Nieves & Zacks

Deborah          Zalesne - CUNY School of Law

Candace          Zierdt - Stetson University

I look forward to seeing many of you in February.  Please direct any paper proposals or questions to me at JMartin@STU.edu.

Upcoming International Contracts Conference at St. Thomas University School of Law

I just wanted to encourage those who are considering proposals for presentation at  the 9^th International Conference on Contracts to be held at St. Thomas University in Miami February 21-22, 2014 to send them on to me in the coming weeks.  The Call for Papers is already out and the Conference website is at http://www.contractsconference.com/kcon/KCON9__Miami.html.  Our Law Review is doing a Symposium around the Conference and still has a few spots for papers that it will consider for publication no later than January 15, 2012.  Please let me know if you're interested in the symposium issue and I will put you in contact with the symposium editors. If you are not interested in presenting, but would like to moderate a panel, please let me know as I am in need of moderators as well.

This is going to be a really wonderful conference this year all-conference honoree is Linda Rusch. Prof. Robin West (Georgetown) will be giving the planetary speech on Saturday and Kingsley Martin (KM standards) will be giving the talk at Friday's luncheon. 

Confirmed Participants include:

Kristen  Adams – Stetson University

Bader Almaskari - University of Leicester, England

Reza  Baheshti - University of Leicester, England

Wayne Barnes –  Texas A&M University

Daniel  Barnhizer – Michigan State University

Thomas Barton  – California Western School of Law

Shawn Bayern –  Florida State University

Amy Boss – Drexel University

Steve   Callandryllo – University of Washington

Miriam Cherry –  University of Missouri

Kenneth Ching – Regent University

Neil Cohen      –  Brooklyn Law

Gerrit   De Geest  – Washington University School of Law

Sidney Delong –  Seattle University

Scott Devito  –  Florida Coastal School of Law

Zev Eigen –  Northwestern University School of Law

Larry   Garvin –  Ohio State University

 Katie Gianasi –  Husch Blackwell L.L.P.

Jim Gibson –  University of Richmond

Ariela  Gross   –  USC Gould

Nancy  Kim     –  Cal Western University

Christina Kunz –  William Mitchell College of Law

Lenora  Ledwon – St. Thomas University

Joasia   Luzak  –  University of Amsterdam

Kingsley Martin  –  KM Standards

Jennifer Martin –  St. Thomas University

John Mayer     –  CALI

Murat  Mungan –  Florida State University

Dr. John Murray – Duquense University

Marcia Narine –  St. Thomas University

Wendy Netter Epstein – DePaul University

Karl Okamoto – Drexel University

Joe Perillo –  Fordham University

Amir    Pichhadze – University of Michigan (SJD Student)

Michael Pinsof - Attorney

Lucille Ponte   – Florida A&M University, College of Law,

Deborah Post –  Touro Law Center

Michael Pratt –  Queens University, Canada

Cheryl Preston  –  Brigham Young University

Val Ricks  –  South Texas College of Law

Roni Rosenberg –  Carmel Academic Center, Law School, Israel

Linda Rusch    –  Gonzaga University

Mark Seidenfeld – Florida State University

Gregory Shill – University of Denver

Frank   Snyder –  Texas A&M University

Jeremy Telman –  Valparaiso University

David  Tollen  – Adili & Tollen, L.L.P.

Manuel Usted – Florida State University

Robin  West    –  Georgetown University

Robert Whitman – University of Connecticut

Eric Zacks – Wayne State University

Deborah Zalesne  – CUNY School of Law

Candace Zierdt  –  Stetson University

I look forward to seeing many of you in February.  Please direct any paper proposals or questions to me at JMartin@STU.edu.

 

-JSM

Small Businesses Sometimes Learn Hard Lessons About Check Fraud

Dr. Luis Fabelo, a Miami Dentist, recently found out that he'd lost about $500,000 in a check fraud scheme perpetrated by an employee (now former employee).  The employee, Elizabeth De Leon, allegedly stole patient checks made out to the dentist and then deposited the checks into her own account through Wells Fargo's ATM machines.  The dentist discovered the losses when alerted by a patient whose payment was not posted.  The dentist then checked the security cameras on premises and was able to uncover the wrongdoing.  The employee had deleted account records while at the office or during social functions.  After she left his employ, she did the same fraud at another office.  De Leon is now facing charges for grand theft and fraud.  Wells Fargo refused to return the funds to Dr. Fabelo.

But what about the losses of Dr. Fabelo?  Dr. Leon has brought suit against Wells Fargo claiming it "has no system, policy, and/or procedure in place to verify the depositor/account holder, was entitled to cash the checks."  Sure the theft of the checks appears to raise the issue of a conversion claim under UCC 3-420, but there is more to this.  Under UCC 3-405, where an employee delegates responsibility to an employee and entrusts the employee with indorsing checks, if the employee converts the check for his own use, the bank is generally not liable.  So, the message to employers is take care in hiring those entrusted office employees.  The rule is not absolute, though, it continues on:

If the person paying the instrument or taking it for value or for collection fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss resulting from the fraud, the person bearing the loss may recover from the person failing to exercise ordinary care to the extent the failure to exercise ordinary care contributed to the loss

Here is the heart of Dr. Fabelo's argument against Wells Fargo, I suspect (unless the employee was not actually an entrusted employee). Does a bank exercise "ordinary care" when it allows ATM deposits of checks deposited into an account other than that of the payee (i.e. third party checks)? Alternatively, does a bank take the loss when it takes these items. This is a far less clear issue than the general rule of employer responsibility. In today's marketplace thieves have the ability to avoid discovery of check fraud through ATM, smart-phone and other remote deposit mechanisms where identity is not verified by banks. I suspect that Wells Fargo is not alone in permitting deposit of third party checks remotely. If banking practice includes this type of remote deposit of third party check, then Dr. Fabelo will have a tough case to make out.
 
The ability of a customers to do remote depositing surely is a convenience benefit, but also carries with it a potentially higher increase in fraud as there is convenience for the thieves as well.  See, Mobile Check Boom Brings Risks.  Many banks put daily and monthly limits on the higher risk deposits, though, as well as placing holds on account funds.  In the case of Dr. Fabelo, the types of security procedures used by Wells Fargo will surely be at issue.  With the rapid changes in banking pushing more customers into remote banking features, banks are well advised to continue to assess risk strategies to reduce the level of fraud in this area.  UCC 3-405 makes clear that banks have a role to play in mitigating the risk of emerging banking practices to put in place the right safeguards. 

As to small business owners, UCC 3-405 makes clear that they should continue to carefully screen employees to ward off this type of theft as well.  Otherwise, the hard lesson of substantial loss may come as a hard one.

-JSM 

Echo of Support for the Lifetime Achievement Award for Linda Rusch

Jeremy Telman over at the Contracts Prof Blog posted over there about the Lifetime Achievement Award that Linda Rusch will receive at the Ninth Annual International Conference on Contracts February 20-21, 2014 to be held at St. Thomas University in Miami, Florida.  I must echo Jeremy's praise of Linda's accomplishments.  Linda is a retired professor of law as of August 2012 and now is getting to enjoy the great outdoors. She was the inaugural holder of the Frederick N. and Barbara T. Curley Professor in Commercial Law at the Gonzaga University School fo Law from 2005-2010. She was also a co-director of the Law School’s Commercial Law Center.  And, of course, Professor Rusch has been involved in the revision of the Uniform Commercial Code in many capacities and is the recent past Chair of the Business Law Section of the American Bar Association.  It is great to see her contributions to contract and commercial law recognized!

 

If you are considering presenting at the February Conference, the call for papers is currently OPEN. 

Papers and works-in-progress are welcome from those who study Contracts from any perspective, whether doctrinal, pedagogical, theoretical, empirical, historical, economic, critical, comparative, or interdisciplinary. Works that take an international or civil law approach are also welcome. Junior scholars are particularly encouraged to participate. Those interested in proposing and organizing panels (3-5 presenters) on specific themes are especially encouraged to do so. Individual submissions should be made by a brief abstract (one page is sufficient) of the paper or WIP that includes contact information for the author(s). The deadline is Monday, December 16, 2013 with proposals submitted earlier will be accepted on a rolling basis. Proposals submitted after the deadline will be accepted on a space-available basis. Submissions should be directed to: Professor Jennifer S. Martin (me) at jmartin@ stu.edu.

 

-JSM

Keeping it simple: Financial Advice on an Index Card

I heard about the the 4X6 inch index card financial advice on NPR this week.  This advice comes from University of Chicago Professor Harold Pollack.  My first thought is that he would be a business school prof, but Professor Pollack does social services work.  The simplicy of the program is good, but the last piece of advice is cut off in the picture (and gives away his true calling):

Promote social insurance programs to help people when things go wrong.

This, of course, brings to mind the current debate in Congress over spending and attempts to defund healthcare, food stamps and other programs.  Perhaps the nation's finances would be in better order if Congress consulted Professor Pollack.  Simple advice, yes, but probably sound in basics.  Typically that is enough for ordinary people to keep up with and improve their finances.

-JSM

KCon 2014 Call for Papers

Papers are invited for the 2014 Contracts Conference at St. Thomas University in Miami, Florida.  The Conference website is up at http://www.contractsconference.com/kcon/KCON9__Miami.html and able to take registrations, including information about hotel registration.  Here is the call for papers. 

 

KCON9

The 9th Annual Conference on Contracts

The Call for Papers is OPEN.

For information,

contact Professor Jennifer S. Martin

at jmartin@stu.edu

February 21-22, 2014

CALL FOR PAPERS

 Submissions are cordially invited for the 9th Annual International Conference on Contracts, the largest annual scholarly and educational conference devoted to Contracts and related areas of commercial law. Papers and works-in-progress are welcome from those who study Contracts from any perspective, whether doctrinal, pedagogical, theoretical, empirical, historical, economic, critical, comparative, or interdisciplinary. Works that take an international or civil law approach are also welcome. Junior scholars are particularly encouraged to participate. Those interested in proposing and organizing panels (3-5 presenters) on specific themes are especially encouraged to do so.

Individual submissions should be made by a brief abstract (one page is sufficient) of the paper or WIP that includes contact information for the author(s). Individual submissions will be placed on panels with like submissions. Panel proposals should include the name and contact information of the moderator or organizer, and a summary of the proposed papers or works in progress. There is no publication commitment for the conference, but organizers of individual panels are free to arrange for publication on their own.

Submissions

Deadline is Monday, December 16, 2013.

Proposals submitted earlier will be accepted on a rolling basis. Proposals submitted after the deadline will be accepted on a space-available basis. Submissions should be directed to:

Professor Jennifer S. Martin

jmartin@ stu.edu

 

Sneaky Credit Card Charges

Credit card delinquencies have gone way down  to the levels of the 1990s.   Some younger consumers have forgone credit cards entirely (perhaps due to their already high levels of student loan debt).  For those using credit cards, though, the landscape remains buyer beware.  "Grey" charges of about $14.3 billion are attached to credit card statements for subscriptions and memberships with renewal charges.  A whopping 35% of credit card statements get hit with these annually.

So, whether debit or credit card, make sure that you review the statement for these charges.  With the Iphone and other Apple products having such popularity, there are plenty of subscriptions through Apple that are auto renew and tied to a card.  The Wall Street Journal today ran a piece about the difficulty that consumers encounter when trying to cancel renewable services (in that case, a security system).  In that case, the consumer was allegedly misled into signing a contract extension.  Sounds like a good case for a claim of fraud in the inducement perpaps?  Misrepresentation by the security tech? 

In the end, consumer vigilance is still the best tool.  Be proactive with your statements.  And, it is really easy to give your card number to less than scrupulous providers.   In the Internet world, it is easy to click on the terms and conditions (WSJ, Those Wordy Contracts).  But in many cases, consumers can prevent these debacles from ready what they sign and being careful about giving out their card numbers.

If there are charges that should not be there, it takes time to do battle on these, but contact the credit card company.

                                                                                                                                                  - JSM

Ave Maria School of Law looking for Contracts and Commercial Law Faculty

Ave Maria School of Law invites applications for multiple faculty positions from entry-level and lateral candidates, pre- or post-tenure.  Ave Maria particularly welcomes applications from candidates with teaching and research interest in Contracts, Business Organizations, Sales, Negotiable Instruments, Secured Transactions, and related commercial subjects.  Applicants should have superior academic credentials; a record, or the promise, of excellence in teaching and legal scholarship; and an interest and commitment in exploring his or her teaching and research interests in an institution that strives to integrate the Catholic intellectual tradition into teaching, scholarship, and service.  Entry-level applicants may demonstrate scholarly promise by publications in scholarly journals or scholarly works in progress.  In the case of any applicant with tenure, a distinguished record of teaching and scholarship is required.  Interested candidates should send their materials to Professor Patrick T. Gillen, current chair of the Appointments Committee.    Applications can be e-mailed to Professor Gillen at ptgillen@avemarialaw.edu or can be mailed to his attention at 1025 Commons Circle, Naples, Florida 34119.  Resume review will begin immediately and continue until the positions are filled.

Ave Maria School of Law, providing legal education enriched by the Catholic Faith, seeks employees whose education, experience and beliefs are consistent with its mission.  Ave Maria School of Law is an EQUAL OPPORTUNITY/AFFIRMATIVE ACTION employer that values diversity, including diversity in religious affiliation, and strongly encourages applications from persons of diverse backgrounds willing to support the institutional mission; it requires compliance with all state and federal laws governing employment discrimination. 

 -JSM

 

Banks behaving badly: Evictions of Military Families

The New York Times today ran an article about banks foreclosing on the homes of deployed military families.  See, Banks Find More Wrongful Foreclosures Among Military Families.  The Servicemembers' Civil Relief Act provides protections to military service members on important financial issues, including evictions and mortgage foreclosures, which should have prevented many of the reported cases.  The SCRA is a key protection that perhaps needs further promotion to ensure that banks comply.

- JSM

Courts Continue to Examine Mixed Goods Cases

In mixed-sales transactions, those involving goods and services, most courts apply a predominant purpose test to determine if Article 2 of the UCC applies to the transaction applying sections 2-102 and 2-105. See, e.g., Warshaw v. QBE Ins. Corp., 78 U.C.C. Rep. Serv. 2d 434 (D. Mass. 2012)(providing that “where a contract implicates both goods and services, the test to determine the applicability of art[icle] 2 is whether ‘the predominant factor, thrust or purpose of the contract is . . . the rendition of service, with goods incidentally involved.’”). Under this test, Article 2 applies if the transaction is predominantly for the sale of goods, but does not apply if the transaction is predominantly for the provision of services. Courts continue to look at how this test works in individual cases.

For instance, in Audio Visual Artistry v.Tanzer, No. W2012–00216–COA–R3–CV, 2012 WL 6697600, at *1 (Tenn. Ct. App. Dec. 26, 2012), the court considered whether a contract for the installation of a “smart home system” during the construction of a new home was one for the sale of goods. Stephen Tanzer (“Tanzer”) and Audio Visual Artistry (“AVA) contracted for the sale and installation of electronic and entertainment equipment in Tanzer’s home, which was under construction. The contract, which was for a custom home theater, music, phone and lighting system, itemized the pricing for the contract into components that included equipment, labor, and cable, with the equipment forming the bulk of the price. A dispute developed over the functionality of some components of the Tanzer system. AVA filed suit for breach of contract to recover unpaid invoice amounts and Tanzer filed a counter-complaint. Accordingly, the court correctly ruled that Article 2 governs transactions where goods and services are bundled if “the goods element predominated.”

The court outlined four factors key to application of the predominant purpose test: (1) the language of the contract; (2) the nature of the seller’s business; (3) the purpose of the contract; and (4) the amounts paid toward the goods and services components of the contract. Although the AVA-Tanzer transaction involved a service, the installation of the smart home system during the construction phase, the court concluded that the contract was distinguishable from other construction agreements typically outside the scope of Article 2. The language of the contract, which repeatedly referred to the purchase of equipment and the installation of the components into the home, did not change the moveability of the goods sold. Moreover, AVA’s business was the sale of “smart home” components of multiple manufacturers, with installation being incidental to the sales aspect. Additionally, even Tanzer described the contract as one for electronic equipment and the contract amounts paid for the equipment far outweighed the installation charges, indicating that the contract was predominantly for the sale of goods.

- JSM

Banks Providing Payday Loans

It seems at least Wells Fargo is now offering payday loans, though they call theirs a "direct deposit advance." (See Wells Fargo FAQ).  A large number of states prohibiting payday loans and an even larger number opposed to any federal charter for payday lenders.  (see Center for Responsible Lending).  It seems that some lenders are turning to setting up shop on the Internet, states that allow these loans or even in foreign countries.  (see Major Banks Aid in Payday Loans, New York Times).  While there is plenty to dislike about this product, how its marketed, the price, etc., there are also complaints against major banks that have been permitting withdrawals on these loans, even where the loans are illegal in the first place. 

Customers should be able to discontinue automatic withdrawals of any variety by a simple request to the bank.  Banks that don't comply with customer requests do so that their own peril.  Notice of a stop payment would seem to make any further transactions not properly payable under section 4-401 and prohibited under the Electronic Funds Transfer Act at the very least. There are some reports that the banks truly are attempting to increase overdraft fees by forcing customers on the edge to continue making auto-withdrawlas over a stop payment request.  While I am not surprised that banks might overreach at times, customer persistence may help to stomp this out.  Or at least an industrious attorney or law student who is able to remind banks of the rules of Article 4 and Regulation E under the Electronic Funds Transfer Act 205.10 (allowing customers to stop payment).

-JSM

Yet another entrustment case. Buyer wins.

It seems there with regularity appear cases that well illustrate the "entrustment" doctrine, often concerning artwork that falls into ownership by a buyer in the ordinary course.  UCC section 2-403 governs the rights of buyers in the ordinary course who receive the goods from a merchant dealing in goods of the kind, even where the merchant did not have authorization to sell from the actual owner of the goods.  Application of this section was at issue in the case of Joseph P.Carroll Ltd. v. Baker concerning ownership of the painting Untitled (1943) by John D. Graham (“the Painting”).  Craig Baker (“Baker”) purchased the Painting in a private sale, but later consigned the Painting with a third party gallery owned by Lawrence Salander (“SOG”) for sale.  In 2000, John P. Carroll Ltd. (“Carroll”) expressed an interest in the Painting but did not purchase it from SOG until 2007.  Four months after the sale, Baker discovered the sale and confronted SOG; however SOG had declared bankruptcy in the interim and, consequently, Baker was not paid for the painting.  Applying section 2-403, the court determined that Baker entrusted the painting to SOG, a merchant.  Because Carroll was a buyer in the ordinary course that purchased the Painting in good faith and without knowledge of the rights of Baker, SOG effectively transferred all of Baker’s rights to the painting to Carroll. Therefore, Carroll held title to the painting.  See also Lakes Gas Co. v. Clark Oil Trading Co., 875 F. Supp. 2d 1289, 1305–06 (D. Kan. 2012) (finding that summary judgment precluded where there were genuine issues of material fact as to whether Lakes effectively entrusted its propane to Stevenson to sell to third parties, as to whether Clark Oil comported with usual or customary practices in buying propane from Stevenson, and as to whether Clark Oil qualified as a buyer in the ordinary course within meaning of the section 2-403).

While indeed this is a harsh result to the former owner of the painting, the message is that those who entrust valuable objects to others should look into filing a Financing Statement in the proper office to protect the interest.

                                                                                                   -JSM

 

Thanks to Frank Synder and Texas Wesleyan

I'd like to echo Meredith Miller's thanks over at Contracts Prof Blog and add my own to Professor Frank Synder and Texas Wesleyan School of Law for hosting the Eighth International Contracts Conference this past weekend.  I am pleased to announce that St. Thomas University School of Law will host next year's conference February 21-22, 2014 in lovely Miami.  So, save the dates for a great weekend of paper presentations and contract (and often commercial) law discourse.  We will start accepting paper and panel proposals in the coming months when the Call for Papers is announced.

More to come on this soon.

                                                                                                                                     -JSM

Revolving door of contract terms?

At the International Contracts Conference, there was plenty of references and discussion of companies changing terms and conditions whenever they see fit to do so (see AT&T litigation; Apple).  AT&T readily notes that it changes terms "from time to time.  as does Apple.   As another example, Facebooks' multiple terms and conditions changes have resulted (see, e.g.,  new instagram changes), like AT&T, more than a bit of grumbling from users. 

So, is there anything to be done about this?  Seems not.  A contract just isn't what it used to be in terms of mutual assent it appears.  Now we all agree to an agreement that allows unilateral modification.  I am hardly convinced that consumers actually agree to this, but the overreaching of sellers in is well documented.  Pete Seeger once said, “Education is when you read the fine print. Experience is what you get if you do not.” It seems now, it might not matter whether we read the fine print terms or not.  Hardly encouragement to read these darn provisions.

Other than suing the seller, consumer options seem limited.  When Facebook, Inc. made its debut as a publicly traded company, and changed its terms and conditions, some Facebook users attempted to creatively try to block resuse of profile content.  Basically, the users began posting status updates citing provisions from the Uniform Commercial Code in order to protect their content. The notice, in part, read:

By the present communiqué, I hereby notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents, and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punishable by law (UCC 1-308, 1-103, and the Rome Statute).

Commentators did not seriously believe that posting this notice on a Facebook page would have any legal impact on privacy. Moreover, the Uniform Commercial Code is not really implicated here.  It is hard to see how the UCC really helps, as much as I admire those who wield its provisions by section number.  The bottom line is that one cannot take back what they have already consented to, even if the consent is to an ever changing set of terms. Specifically, all users when opening their accounts agree to Facebook’s Statement of Rights and Responsibilities (SRR). Contained within the SRR are the site’s privacy policy and its terms and policies. By opening their account and clicking the “sign up” button, all users have accepted these terms and stated they have read these policies. Therefore, one cannot alter their acceptance to these policies nor can they restrict the rights of entities who are not parties to that agreement by posting a contradictory legal notice on their page. 

While the Facebook user tactic has no teeth to it, it represents an ever present issue that consumers will face concerning terms and conditions, particularly those that companies can, and do, change frequently.  All without any additional consent. 

 

                                                                                                       - JSM and Raymond Alvarez