My Lucky Charms were too soggy this morning. I’m going to sue.
If you are a consumer products or services company such as General Mills, this is how you see the world: full of very crazy people and very smart lawyers, which you view as a very bad combination that is more than willing to take you to court over the moisture levels of breakfast foods. Or misleading labels. Or unproven health claims. Silly stuff like that.
Which is part of the explanation of why General Mills, the owner of popular brands such as Betty Crocker, Pillsbury, Green Giant, Nature Valley, Yoplait, Old El Paso, and Progresso, has changed the legal terms for using its web site, or even buying one of its products. As the New York Times pointed out in a delightful piece of reporting, if you so much a download a coupon from the General Mills website it’s the equivalent, in the company’s view, of signing a contract that prohibits you from suing or joining a class action suit against it. Parsing General Mills’s privacy and legal sections will cost you about 7,000 words of reading time, but the operative ones are as follows: “These terms are a binding legal agreement (‘Agreement’) between you and General Mills.” You probably didn’t think that buying a pint of Häagen-Dazs vanilla would imply a contractual obligation on your part.
If the Bisquick hits the fan, in other words, you can’t go running to court. You are required to deal with the company in a private arbitration — hey, Mills will even pick up the cost. So downloading a 50-cent-off coupon on your next purchase of Hamburger Helper discounts your legal recourse. Sure seems like Big Business operating in a this-is-why-we- hate-them-model, with the corporate legal department playing its traditional starring role. “General Mills is proud to market some of the world’s most-trusted brands,” the company says in the introduction to this fine print.
It’s you that Mills doesn’t trust.
There’s a ton of fine print in our everyday lives that we almost have to ignore. Each time you download an iPhone operating system update, for instance, up pops an agreement a mile long. I still don’t know what it says, but knowing Apple it probably claims that you should be grateful Apple even lets you own one of its precious gadgets. Don’t even think about legal action. And have you ever read your cable service agreement? I dare you.
Forced arbitration isn’t all that unusual. It’s part of every brokerage agreement, for instance. If you lost a lot of money because your broker sold you risky junk bonds when you thought you’d be getting safer treasury bonds, any dispute coming out of it goes to arbitration. And it’s common among corporations, too, which makes sense if they want to avoid litigation. (Oddly enough, I found a New York state court case in which General Mills sued to void a mandatory arbitration clause in a contract it had with another company.)
But what’s outrageous here is that General Mills seems to be seeking shelter from class action or consumer advocate cases even if it engages in bad corporate behavior: violating nutritional labeling laws, say. Consumers in Florida and California, for instance, sued the company over health benefit claims made by its Yoplait YoPlus and Nature Valley products. The company says its health and nutrition claims are correct — and doesn’t see why it should be subject to a class action claim. You got a beef over yogurt, let’s go to arbitration.
There’s a lot at stake. For decades, the corporate bar and the tort bar — which handles personal injury and class action cases — have been a war over who can sue and under what conditions. Corporations see themselves as victims of overzealous (read ambulance chasing) lawyers. And that’s been true in some abusive disputes such as asbestos litigation. To some degree legislators have agreed with them. Bad corporate behavior, though, never seems to go out of fashion. And given the ineffectiveness of regulators or legislators in reining it in, tort lawyers have acted as the biggest restraint against misbehaving companies.
So maybe as consumers we have to turn the tables on the corporate lawyers. Dear General Mills, please read and endorse this e-mail agreement which states the terms under which I am willing to become a consumer of your trusted brands. You understand that I can’t trust you, because corporate behavior since the Pure Foods Act of 1906 has told me not to. I understand that if my Betty Crocker cake fails to rise— my bad. As for everything else, all bets are off. And by the way: By clicking on this article, you’ve already agreed.