Right to Gripe

  • 09 February, 2024
  • 31 MB

This week on the Justice Team Podcast, Brett Schreiber, founder and partner at Singleton Schreiber, dives deep into California’s “right to gripe” law, a pivotal statute safeguarding consumers’ freedom of speech against corporate giants. Brett unravels how certain tech companies are skirting the law by embedding clauses in their terms of service that unlawfully muzzle customers from posting negative reviews. With fines for violating this law ranging from $2,500 to $10,000 per infraction, Schreiber’s firm is challenging these companies, opening a call to action for attorneys to refer affected clients. Tune in to discover how Singleton Schreiber is championing consumer rights and leading the charge against corporate overreach.

Brett Schreiber, Singleton Schreiber


Bob Simon (00:07):
Welcome to this episode of the Justice Team podcast on the Justice Team Network. This is practical advice to lawyers and educating you on new types of cases, how to deal with those cases. And today, we have probably the best trial lawyer that I personally know and the most successful is Brett Schreiber coming to us from sunny San Diego. But you have offices like all over the country now, don’t you?

Brett Schreiber (00:28):
Something like that. Yeah, I think we’ve got … We’re approaching our 20th.

Bob Simon (00:32):
20 offices?

Brett Schreiber (00:33):
Yeah, something like that. We’re about to open two more in the southeast.

Bob Simon (00:36):
I didn’t know that.

Brett Schreiber (00:37):
Mississippi and Atlanta. Yeah. Leticia Johnson has just joined our firm as a partner, and her husband Derek is actually the national president of the NAACP.

Bob Simon (00:48):
Well, there you go. And so Brett is very, very passionate about civil rights. And candidly, he’s probably made enough money to retire for generations, but he’s altruistic and wants to change the world for the better, which we do talk about a lot. And he’s going to talk about this thing called the right to gripe, the anti-gripe law and the way that a lot of consumers are essentially being screwed over.

Brett Schreiber (01:09):
Yeah, no, indeed. So if you go back about 15 years ago, Bob, there was a number of states that were dealing with companies that were trying to prevent consumers from speaking out about bad consumer experiences. And in fact, in New York, there were companies that were actively going after consumers who had posted negative reviews about them online.

Bob Simon (01:31):
Can you give us an example?

Brett Schreiber (01:33):
I think the quintessential one was it was either a florist or a bakery or something. Just-

Bob Simon (01:40):
Always the bakeries.

Brett Schreiber (01:41):
Always the bakeries. Always causing trouble. And so they come after a consumer who had posted some negative reviews. And this got some press, not a lot. But there was a couple of intrepid legislators in California and they said, “No, that’s not going to happen here.” And so we passed a law, it’s under the civil code 1670.8, which is known as the right to gripe law, which protects people’s free speech to speak out against corporations and large entities that do them wrong.

Bob Simon (02:16):
But then how does that work? If I’m a consumer and I go to Ralph’s and I have a bad experience with roast beef and I want to post a bad Yelp review at Ralph’s, how can they come after me for just griping or complaining?

Brett Schreiber (02:31):
Well, they shouldn’t. And that’s exactly what California law is trying to protect. And there’s a lot of corporations that have done it the right way. Most entities out there are doing this the right way, and they recognize that we have a First Amendment right to free speech and they respect it. There is a large though, but very almost Bay Area focused, very tech-centric focused group, that decided that they were going to write into all of their terms of service of all of their websites and all of their apps, that you lose your First Amendment right by hopping in an Uber or logging into their website.

Bob Simon (03:09):
So you mean whenever we got the updated terms of service from Uber couple years ago and you just click the button because you need to get your ride. So what were the pitfalls of that? What are they trying to do?

Brett Schreiber (03:20):
Well, what I think the goal is that these companies recognize the value of their brand. And so this is what as lawyers call, it’s a prior restraint on speech. They want to prevent people from speaking out about them in an online setting. And so they put these provisions in there that give them the right to cancel your ability to even use their service or to access their platforms. But that’s in direct violation of California law.

Bob Simon (03:45):
Well, so tell us about the California law and let’s apply it to … Let’s do the Uber situation.

Brett Schreiber (03:49):
Sure. So California not only passed a law that protects your right to gripe, that protects your free speech, but it also created what’s known as a private attorney general action, which basically means that any consumer who has been using one of these services logged [inaudible 00:04:08]-

Bob Simon (04:08):
I never knew that PAGA meant Private Attorney General Act. Oh my gosh.

Brett Schreiber (04:13):
Yes. And so oftentimes when you’re talking with legislators, they’ll call it a PRA, private right of action, or a PAGA, is a private attorney general act. It basically allows an average consumer to stand up and deputize themselves essentially to enforce California law. And California decided because it was so important that this ability to speak freely be protected, that they added some teeth to it. And that includes that anytime a company violates this statute, basically forcing you to be gagged, what they call non-disparagement, you can’t say anything. You can’t talk smack about the company. Anytime they do that the first time, it’s a $2,500 violation. The second time, it’s a $5,000 violation. And if it is a willful violation because they’re doing it over and over again, as we know Uber has literally done millions of times, it’s $10,000 per violation.

Bob Simon (05:10):
Per violation?

Brett Schreiber (05:11):
Per violation.

Bob Simon (05:12):
That adds up very quickly.

Brett Schreiber (05:14):
Very quickly.

Bob Simon (05:15):
So all of our lawyers that are out there that are listening that have represented a lot of rideshare victims or rideshare drivers and UM/UIM arbitration or whatever they want to call it these days. So what should we be doing and looking for when we’re advocating for those victims, as it applies to this California law that you’re prosecuting?

Brett Schreiber (05:35):
Well, as it applies to rideshare in particular, and Uber has obviously had a long history of this, they force consumers to enter into an agreement even when they start litigation. Releasing of records requires you to engage both in confidentiality and in a non-disparagement provision, which is exactly what 1670.8 Of the civil code says you can’t do.

Bob Simon (05:59):
So wait. So if you push that app on Uber, you’re agreeing to their terms of service, which includes these things they’re not supposed to be able to do. So if you file a lawsuit or essentially make a demand letter on your behalf, are you then violating those “terms of service” that they have?

Brett Schreiber (06:15):
A hundred percent. And number one, and number two, Uber has taken it so far in their litigation strategy that they require you to continually sign confidentiality and non-disparagement provisions during the course of the litigation, all the way up and through as a mandatory condition of settlement, in direct violation of California law.

Bob Simon (06:34):
So lawyers out there are listening. If you get pushed into by counsel for Uber Rights or whomever, and they want you to continue to sign this confidentiality agreement, can’t you just bite back with the statute and say, “No, sir. No, ma’am”?

Brett Schreiber (06:46):
You could. Or alternatively, you could say, “Throw me in that Briar patch.” And next thing you know, you have an actionable claim against Uber.

Bob Simon (06:54):
Wow. To me, this sounds so crazy that a company like this would even attempt to do something so brash.

Brett Schreiber (07:03):
Well, I think at the end of the day, what you got to recognize is these companies place an incredibly high value on their brand and on their image, and they recognize the importance. It can cost them potentially thousands, if not millions of dollars, if these negative reviews are floating to the top of Google. And so they recognize that that value is significant. And I believe that this is an intentional decision that many of them made from the jump, that they want to keep their brands as squeaky clean as possible. And it’s the old adage, the answer is money. What’s the question?

Bob Simon (07:41):
So follow the green. But in this situation, if your Uber, so that you could put in your terms of service. But what happens when a consumer says something, you don’t have to do anything about it. But once you do something about it, that’s a violation.

Brett Schreiber (07:53):
Exactly. Well, once you’ve acted on it, like I said, making purchases through their website, engaging with any of these companies, I think there’s an argument that many of them will have … T-Mobile for instance is one. As a condition of having T-Mobile, you are agreeing that you are never going to disparage them. As a condition of using Cash App or making a purchase on Lowe’s Home improvement, you are agreeing to be suppressed in your speech. You are not allowed to disparage them as a condition of sale.

Bob Simon (08:25):
Well, isn’t a lawsuit against them a disparage?

Brett Schreiber (08:28):
Well, I think you have a litigation privilege when it comes to the lawsuit against them, but this is trying to prevent you before any of that happens. And so the area that we’re really looking at right now as well is any of the dating sites. Match.com owns all of them. So there really is only one. They’ve just simply-

Bob Simon (08:44):
Even Farmers Only?

Brett Schreiber (08:50):
I think the thing about the dating sites is the same thing. They also recognize that they got to stay as squeaky clean as possible. And so they have created terms of service that are designed to chill speech. And I think what it comes down to, and I think the lawyers will remember this back from constitutional law, but it’s a common sense concept, this is one of those situations that is capable of repetition but incapable of review. They can keep doing it over and over again. And you never really know the chilling effect that it has because unless someone decides to stand up and do something about it, it will go on.

Bob Simon (09:33):
So for our listeners or viewers, if you’re watching on YouTube or on the Apple Channel listening, what should they be looking for … If we say, I got to go to Schreiber Singleton with a case, what are the criteria you’re looking for on the statute?

Brett Schreiber (09:49):
Well, what we’re primarily looking for is it is pretty simple. If you go to the statute itself, it makes it unlawful for any contract or proposed contract for the sale or lease of goods or services that waives your right to make any statement regarding the seller or its agents or concerning those goods or services. And if you then threaten someone that you will enforce it, then again, it is invalid and it is a violation. And that’s what every one of these do. If I really were to wind back the hands of time, I believe what probably happened here 15 some odd years ago was that there was a group in the Bay Area, a couple of large big law firms that drafted the first terms of service for whether it was Amazon or GoDaddy or you name it, and everybody pretty much copied and pasted.

Bob Simon (10:41):
Yep. That’s usually what happens in that world.

Brett Schreiber (10:43):
And so that’s what we see. And we see a lot of companies outside of that area not have this. That recognize that, hey, the internet and everything else is a marketplace of ideas. But we have a number of companies here. And like I said, there are many of the big ones. Amazon is another one and Uber, and like I said, Lowe’s and Match.com.

Bob Simon (11:04):
But what triggers the damages for you here to be able to say, “Hey, I would like to take that case”?

Brett Schreiber (11:08):
So anytime someone has used Cash App or GoDaddy and has access that site, according to this, this gives you a private right of action. And so those are the cases that we’re currently pursuing. We filed about 20 cases currently in a class setting. Some of these are probably going to get sent to arbitration, and those are going to be a mass arbitration. And I think this is … I’ll tell you this. One of as we know the deterrent effect of the civil justice system, we’ve already seen the vast majority of these corporations that we’ve already named, have all changed their terms of service already. So this stuff matters. What we do matters.

Bob Simon (11:52):
Big change.

Brett Schreiber (11:53):
And we can actually engage. We can use this license to change society.

Bob Simon (11:59):
So let’s talk about attorneys out there that are listening to use their license to get cases directly to you. So on the attorney share app, if they want to put Singleton Schreiber, Brett Schreiber, the top of their waterfall, what type of case, if you had to script it for them, what are they looking for and how can they just put you at their waterfall to push the case directly to you to have a track?

Brett Schreiber (12:19):
So for cases like these right now, the ones that we’re continuing to look for in acquiring clients is basically people within your own network. So these are oftentimes your own clients and former clients and people you can just directly reach out to. You have in your CRM, you have their contacts. If they’ve used Match.com or one of its entities, which is just about anybody who’s ever used a dating site, if they’ve made a purchase through Lowe’s, if they use T-Mobile, if they’ve ever gone ahead and done their own payroll through Intuit or QuickBooks, or they’ve sent anybody money on Cash app, those are all viable claims. And those are going to be more likely a mass play as opposed to a class play. And the way to do that is we need to bring … Again, these companies don’t believe that 5,000 people will file 5,000 arbitrations.

Bob Simon (13:16):
Wow. Then it forces them to do something about it.

Brett Schreiber (13:18):
But we will, because under those terms, they have to pay the arbitration fees.

Bob Simon (13:23):
Yeah. So attorneys listening out there to use your license for the greater good. You could probably send out a letter to your clients or an email through your CRM and ask if they have used any type of those websites. And if they have, you can just send them right to Singleton Schreiber. Right?

Brett Schreiber (13:40):
There you go. We’ll be happy to help them.

Bob Simon (13:42):
Seems pretty easy to me. And then how long do you think it’s going to be until these bad actors stop?

Brett Schreiber (13:48):
Well, like I said, we’re interesting because we’ve had a number of them filed in the Bay Area, several in LA, several in San Francisco, depending upon where the companies are. The vast majority of them have already changed their terms of service. Many of them have come back, and the defenses that they raised were nothing if not expected, which is, “Well, sorry, you didn’t really violate the law.” They seem to not even believe it when they say that. And then the other thing is, “Well, you weren’t harmed. No one actually stopped you to speak.” But that’s what a private right of action is all about. It doesn’t have to be reactive. That’s why we create these.

Bob Simon (14:32):
Them alone, forcing you to sign that adhesion contract essentially is actionable.

Brett Schreiber (14:37):

Bob Simon (14:37):
There you go.

Brett Schreiber (14:38):
That’s it.

Bob Simon (14:39):
So the anti-gripe law, right to gripe, you got to fight for your right. I know you’re a Big Beastie Boys guy.

Brett Schreiber (14:46):

Bob Simon (14:47):
By the way, Brett and I both have fantastic beards if you’re watching on our show, and I think we’re probably the only two trial lawyers of the year in San Diego that had fantastic beards one years apart.

Brett Schreiber (14:55):
That’s a true statement.

Bob Simon (14:56):
True statement.

Brett Schreiber (14:57):
So yeah, you got to fight for your right.

Bob Simon (14:59):
For your right to gripe.

Brett Schreiber (15:00):
To gripe.

Bob Simon (15:01):
So fighting for your right to gripe, when did the statute come out? Do you know? It’s got to be newer?

Brett Schreiber (15:06):
No, actually it’s been on the books. It’s been hiding in plain sight for one decade.

Bob Simon (15:09):
Really? That blows my mind. All right, well, I’m going to start sending out a letter to our clients. I’m going to hit it by VP of marketing, who’s right outside to send out to our CRM just to start, ask if they have had any adhesion contracts essentially. And we’ll funnel them over to Singleton Schreiber.

Brett Schreiber (15:24):
And let freedom ring.

Bob Simon (15:27):
Let freedom ring. Brett, how do people find you? Best way?

Brett Schreiber (15:30):
Best way, singletonschreiber.com. You can also find me on Instagram. I’m at @brettscribe, S-C-R-I-B-E. And that’s probably easy.

Bob Simon (15:42):
That’s easy. Yeah. All right, ladies, gentlemen, thank you for listening to this episode of the Justice Team Podcast. Go to www.justiceteamnetwork to see it there or on the Apple Channel. And we’re probably going to have Brett back to talk about some other interesting ways for you to monetize your license as a lawyer and help the greater good.

Brett Schreiber (15:58):
Thanks, Bob.

Bob Simon (15:58):
Thanks, man.

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