from the reputation-still-feeling-protected? dept
It looks like another company wants to ruin its reputation by "protecting" its reputation. Paul Alan Levy of Public Citizen is helping an unhappy customer fight back against the litigious threats of Fertility Bridges, which allegedly promised her one thing, but delivered another.
After searching the Fertility Bridges web site, identifying what appeared to be an ideal donor, and receiving confirmation from Fertility Bridges that the donor had confirmed her willingness to proceed, Oliver wrote a large check to Fertility Bridges. However, as soon as the company had received Oliver’s payment, Fertility Bridges went dark concerning the donor's availability instead of moving forward with an egg donation. Then, just after Oliver’s check had cleared, Fertility Bridges admitted that the donor was unwilling to go forward with the procedure, without giving any reason, and suggested that she choose another of the company's available donors. But when Oliver asked for a refund of the entire fee that she had paid Fertility Bridges, the company temporized for a while, and then refused. In the circumstances, Oliver suspected that she had been the victim of a bait and switch.Oliver took her complaint to the Better Business Bureau. Shortly thereafter, she received a threatening email (the first of several) from Fertility Bridges stating that the agreement it had failed to uphold on its end had been violated by Oliver's complaint.
"You directly violated our legal agreement by attempting to post an online review. As such, we are setting the plans in motion for a multi-million dollar defamation case against you. . . . unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews."The provisions the threatening email alluded to are these:
"M. ONLINE REVIEWSFertility Bridges' own agreement immediately undercuts its threats of a (baseless) "multi-million dollar defamation case," as it binds both parties to mediation and arbitration. The parts about California's jurisdiction undercut the rest.
"Because of the extremely private and emotionally delicate nature of the egg donation business Recipients agree NOT to post any online reviews anywhere on the Internet without first presenting it to Fertility Bridges for legal review. . . .
"N. APPLICATION OF LAW
"Recipients agree that this Agreement will be governed and interpreted by California jurisdiction. . . .
"Q. SETTLEMENT OF DISPUTES
"Recipients agree to mediation to resolve any disputes. If mediation does not resolve the issues then Recipients agree to binding arbitration to settle disputes [and] in California Jurisdiction..."
[G]iven the (oddly-worded) provision subjecting the agreement to California law, even if the clause were construed as forbidding disparaging reviews without prior approval, the clause would be forbidden by the new California law that prevents companies from imposing non-disparagement clauses in consumer agreements.The combination of legal errors might cause one to wonder what sort of lawyer helped compose the threatening emails sent to Oliver. Levy tried to speak to Fertility Bridges' legal representation on behalf of Oliver. His attempt was met by Fertility Bridges tugging at its suspenders and claiming it was just a humble, small-time fertility consulting company that didn't much care for big city lawyerin' -- despite its succession of escalating emails suggesting Oliver would be sued into the ground for attempting to badmouth the company.
In fact, for all of its assertions that any review or complaint about its services would first need to be viewed by Fertility Bridges' legal team before publication, the company appears to have no legal representation retained to handle this task. In an email conversation with Levy, the company (comically) makes it clear it would need to retain a specific type of lawyer to handle Oliver's challenge of its non-disparagement clause. [All spelling and grammatical errors in the following are quoted directly. Emphasis added.]
Thanks for your prompt response. If the Olivers feel the need to post something on the Internet, we can't stop them. As you have read we do not have a gag clause, we ask that they present to our attorney or mediator to verify the facts are truthful and void of medical privacy data so that they do not subject themselves to libel.I assume once an actual lawyer is retained by Fertility Bridges, all communication along these lines will cease. The non-disparagement clause Fertility Bridges claims isn't a non-disparagement clause is actually unenforceable in California -- the state it's chosen to handle its litigation in. And if Oliver's review actually contains defamatory statements, there are legal remedies the company can pursue that have nothing to do with its shady "run it by our [nonexistent] lawyers first" clause. As Levy points out, given the legal remedies readily available, the only reason to insert language like this into service agreements is to discourage unhappy customers from making their complaints public.
Do have them post away and we will hire a separate attorney who focuses specifically on false claims (not truthful ones - since those are ok to post and have always been.) As you know different attorneys specialize in different types of the law so we will hire one who specializes in this. We are not lawyers and don't intent to be. Our goal is to create a service that helps and leave the legal matters up to the experts.
We have an attorney who is responding to their NJ claim but we don't feel she has the expertise to advise on libel claim since it will be important to learn the details of libel once we head into mediation with the client.
Will you serve as their lawyer defending them against their lies they are intending to write online? Are you libel attorney?
If you feel there is anything else we need to know about this case, please pass all and we will share with our with a specialized libel attorney when we hire one. 9 days is too short a time to find and hire This special kind of attorney so we will do this after posts are made and take the right amount of time to find the right one. Once they are made, we will know how extreme the situation is, exactly the nature of their post and we will have a chance to state our response refuting their claims in the public forum they are posting on and what potential damages that might occur as a result. I am sure there is some case law that already defines what the legal remedies are for posting libelous remarks online and we will aim to find an attorney who knows.