This article was originally published on Medium.
We’ve all seen ads like these or similar all over the web —a limited time free offer for some miracle product — in this case, it's Avalure's ReNew Eye Serum/magical wrinkle remover cream:
A few months ago, my dear wife decided to click one of these ads (a gift for me, I have super wrinkly eyes). What unfolded next was a ridiculous, super shady scam that, unfortunately for Avalure (the maker of this magic eye cream), relies upon a pile of ridiculous and completely unenforceable claims— also known as Avalure’s Terms and Conditions. I use the term “unfortunately” with respect to Avalure because there are probably a billion better targets for a scam based on phony legal terms than the wife of a lawyer / founder/ CEO who focuses on online legal terms and writes about the bad ones.
What follows is a critique (read: dismantling) of Avalure’s tactics - a roadmap for class action lawyers on the prowl:
“You should have read our fine print, lady.”
So as previously stated above, my lovely wife filled out a form to order a sample of some mystical eye serum - well actually 2 forms because they need to grab your contact information BEFORE they dupe you into providing credit card information:
Notice that these forms make all sorts of super conspicuous statements about (exclusive) trials, super cheap shipping, etc. Missing is any sort of disclaimer that no fairies or mystical beasts were harmed in the making of the wrinkle-potion, but I digress. As far as my wife was concerned, she had just ordered a trial of bottled witchcraft that would make my salty-tired-eyes a thing of the past!
Then, seemingly random charges started appearing on our credit card:
So my wife sprung into action doing something I would never consider doing in a million years — she called a customer service number. We think it was 888–772–9017 but who the hell actually knows because they have a web of numbers plastered all over the place on all sorts of sites. Once she was able to speak to someone/something, likely an apprentice to a warlock, the following unthinkable words were uttered “You should have read our fine print, lady.”
At that point she called me giddy with excitement. “Can you help me figure out why these loser eye-sauce people are charging our credit card? The creature on the phone claims I agreed to legal terms or something.”
So let the games begin.
THE WORST CLICKWRAP LEGAL TERMS STRATEGY EVER.
To figure out which, if any, legal terms were associated with ordering the magical eye cream, I first took a look at the order forms shown above. As clearly everyone knows (especially judges), the minimum requirements for clickwrap terms to be binding are conspicuous notice and clear manifestation of acceptance. In layman’s terms, that means 1) making sure people are clearly aware that legal terms are lurking and they have an opportunity to review them, and 2) that some action - like clicking a button or checking a box - is unambiguously meant to signal acceptance of those legal terms.
So as for the forms above, Avalure's forms are not even close to meeting those requirements:
No notice anywhere on the form or the page does it state that legal terms exist. No notice that clicking on anything means "I am accepting legal terms." As you’ll see in this animation, I can click “Complete Checkout” without having ever seen ANYTHING about legal terms.
But hey look - if I scroll down all the way..I MIGHT see a tiny, little, itty-bitty reference to “Terms." That’s called a “browsewrap," and a shitty one at that. Those things don’t work very well - just ask Zappos. But that isn’t the only clickwrap employed by these wrinkle-free promising wizards. Here is another on some other shady landing page:
Confused as to what you agreeing to? What about in this disaster:
Another company called Transunion thought they could get away with just slapping references to all sorts of legal terms into a registration form, which looked like this:
Looks very similar and confusing, huh? And strangely similar to being COMPLETELY UNENFORCEABLE! A class action lawsuit against Transunion was allowed to proceed because a judge refused to enforce the “Service Agreement” above, citing that a reasonable person would have no idea what the hell they were accepting by clicking “I Accept & Continue to Step 3.”
So to recap, all of these click-through agreements are incredibly sneaky, provide no notice, and queue up nothing as far as affirmative consent. Not to mention the utter confusion all of the pages are seemingly designed to create:
No way this potion contract is enforceable - no way. And if it’s not, then the folks behind it lose all the legal protections it’s intended to afford them. Including the class action waiver and arbitration provisions in their “fine print” that they HOPE will force consumers to settle any disputes 1:1 in front of an arbitrator.
Have fun class action lawyer David from the comments above!