If you want to cross a bridge, my sweet
Ursula — “The Little Mermaid”
You’ve got to pay the toll
Take a gulp and take a breath and go ahead and sign the scroll!
Flotsam, Jetsam, now I’ve got her, boys
The boss is on a roll
This poor unfortunate soul!
Lowe’s final offer finally arrived by EMAIL and it was the same underwhelming number as was communicated and expected.
I actually got two EMAILs where the first one invited me to sign a document with the somewhat laughable body text saying “Thank you for allowing Lowe’s the opportunity to address your concerns. Please find attached a copy of Lowe’s Final Resolution.” followed almost immediately by a second one that proclaimed that I had “filled out and signed” this attached document which I most certainly did not do.
I imagine the filling and signing was by the district manager but that was unclear from the text of the EMAIL.
I hadn’t even agreed to any of the terms as the settlement number offered is the same one that they’ve offered all along and it was accompanied by the somewhat ominous demand that I execute a “Release of All Claims” to “amicably resolve this matter” with the clear consequence that they won’t pay up unless I agree to their terms.
My apologies, I meant to say agree to their terms sight unseen because the release form they want me to sign isn’t attached.
I understand that “amicably resolve this matter” is a legal term of art which means coming to an agreement without the need for a lawsuit or court proceedings/arbitration but one can’t help but feel that being told to effectively accept their offer as well as likely onerous terms in the release form that Ms Christina was clearly unwilling to even discuss or answer questions about with no opportunity to review said terms strains the traditional definition of “amicable” in the English language as much as is possible.
This whole process and dispute has been anything but friendly and a fair negotiation and we’re now at the point where I’m being offered a settlement that is being dictated in it’s entirety by Lowe’s.
It then goes on to try to characterise the amount as reflective of “all issues identified during meetings and discussions between the consumer and Lowe’s” which it most certainly is not. It’s reflective of all Lowe’s is willing to offer and the whole point of the dispute was that I felt it was insufficient given the utter incompetence of the first installer and the appalling behaviour of some of the representatives of Lowe’s during these past few weeks of that did the company’s reputation no favours at all.
I think it’s patently clear that Lowe’s genuinely could care less about and gone to great pains to ignore my side of this sorry situation no matter how much evidence was provided to them at various points in the many conversations.
I think my favourite bit of this letter is “this letter is tendered for purposes of settlement discussions only and should not, in any way, be construed as an admission of liability or wrongdoing on the part of Lowe’s”.
I get it that the lawyers insisted on that line however it’s rather absurd on the face of it because if Lowe’s truly believed they’d done nothing wrong in this whole sorry mess, I think it’s a pretty safe bet that they’d have told me to pound sand and offered nothing if they felt they could get away with it.
But when Ms Christina admitted on a recorded conversation that Miguel’s bill needed to be paid (though we disagreed vehemently and still do on who should be paying that bill and whether it should be treated as a separate claim) and also admitted to the delayed installation which as her rationale for the offer, it’s hard to really take that line at all seriously even though the lawyers do.
A Sneak Preview Of What Is Likely Coming My Way…
Ms Christina was very successful at stonewalling me on any questions about what terms and conditions Lowe’s is likely going to send my way in their “Release of All Claims” if I give in and give them what they apparently want.
Fortunately for us poor unfortunate souls there is this thing called the Internet and I was able to find two recent variations on what Lowe’s sent to other similarly situated unfortunate souls and I think it’s entirely plausible that they’ll be substantially similar if not identical in substance to what I’m going to be provided.
So let’s go through the sample and I’ll provide my take on the various provisions…
RELEASE OF ALL CLAIMS
The undersigned, [REDACTED] (hereinafter, “undersigned” or “Releasor”), for payment of [REDACTED AMOUNT OF DOLLARS] and other good and valuable consideration, receipt of which is hereby acknowledged, on behalf of himself, their heirs, executors, administrators, successors, assigns and all other persons or entities who could make a claim through the undersigned, does hereby UNCONDITIONALLY RELEASE AND FOREVER DISCHARGE LOWE’S HOME CENTERS, LLC, ITS PARENT AND ALL SUBSIDIARIES AND AFFILIATES THEREOF (hereinafter, “Lowe’s”) and its respective employees, agents, counsel, and assigns, from any and all claims of liability, damages and/or demands for any future consideration in any way related to, or arising out of sales contract numbers…
This is pretty standard boilerplate but one thing immediately comes to mind:
“All other persons or entities who could make a claim through the undersigned” would seem to imply that I can release and waive Miguel’s separate claim for his labour even though I have no authority or power of attorney to do so and cannot imagine being granted either as it’d be wholly inappropriate for me to act on his corporation’s behalf without such authority.
I only provided his bill to Lowe’s as a courtesy to try to make the settlement process more efficient and trusting Lowe’s to pay for his services they’d demanded in good faith but it seems clear that even though Ms Christina agreed he should be paid, I’m still effectively being stuck with the bill and Lowe’s is essentially completely walking away from their obligations to him.
I’m no lawyer but a court might not let them get away with trying to substitute my signing this form as a binding agreement upon Miguel in this fashion. At least I’d hope that no court would allow Lowe’s to pull such a stunt because that would set a terrible precedent that corporations would surely love to abuse.
Confidentiality
Releasor agrees that this Confidential Settlement Agreement and Release of All Claims, as well as the alleged facts giving rise to Releasor’s claims, shall remain confidential and shall not be shared with any third party, including but not limited to, any media outlet or public forum. Releasor agrees to keep the terms of this claim and settlement confidential, except when compelled to disclose them in response to a valid order or other decree from a court of competent jurisdiction. To the extent that the terms of this settlement are disclosed in any legal proceeding, the parties will assent to the sealing of said proceedings or the terms of the settlement. The parties acknowledge that the confidentiality provision is made in exchange for One Dollar and zero cents ($1.00) consideration out of the above referenced settlement amount.
Wow! I was already of the opinion that Lowe’s is pretty miserly in terms of accepting responsibility for their part in this debacle but screwing me out of a dollar of the settlement for the privilege of being subject to a rather sweeping gag order would make Ebenezer Scrooge smile in admiration.
This non-disclosure provision read literally doesn’t seem to allow the bound party to provide an ending to their story, even if they’re actually happy with the settlement and resolution. That was the primary reason I was arguing that Lowe’s insisting on such a provision in this case was absurdly stupid and I stand by that opinion even having had a couple of days to think upon it.
It might be amusing to write a happy ending I don’t really feel in my heart at this point in time and publish it after the signature date to see what they might do in that instance. Somehow I can’t imagine them going nuclear with the “you violated the non-disclosure agreement” in that instance as the might if I were to just go scorched Earth myself and blast them with the ending that I’d write in a heartbeat if I were to just let my emotions take over the keyboard which just reinforces the hypocrisy of demanding such a provision in the first instance.
When they say “shall not be shared with any third party” other than a court order, it begs the question if that includes state or Federal regulators such as the North Carolina Attorney General or the Federal Trade Commission?
Non-disclosure and confidentiality agreements cannot legally be used to prevent disclosure of behaviours on the part of the party seeking confidentiality that are unlawful or against public policy but if the bound party is prohibited from seeking redress from regulators and law enforcement, it could have a very chilling effect on bringing such behaviour to light.
Generally, courts have found such agreements that are overly broad, contain “unconscionable” provisions, have unrealistic time frames or the agreement overwhelmingly favours one party over the other (such as a coerced agreement or a “take-it-or-leave-it” offer) in terms of negotiating power to be unenforceable.
This was especially troubling when the #MeToo lawsuits started flying and these sorts of agreements were ruthlessly used to silence victims of sexual abuse/harassment to allow the abusers to continue to abuse others until they were ultimately found to be unenforceable and legislation (the Speak Out Act of 2022 among others) enacted to specifically prevent them from being used with victims of sexual abuse.
I reached out to the North Carolina Attorney General’s Consumer Protection Division to see if they had any general policy positions on what sort of provisions would make a non-disclosure/confidentiality agreement unlawful and/or unenforceable but was referred to seek a private attorney as a civil matter.
Releasor agrees to immediately cease communication with media, including social media, if any, and destroy any video and photographs taken regarding the construction project relating to the contract numbers listed above, whether or not said video and photographs were filmed by Releasor or a third party. Releasor further agrees that she will not provide or post any additional video and/or photographs described herein to any third party, media or social media. Moreover, subject to the destruction obligations above, Releasor agrees to keep the existence of any video and photographs described herein confidential. A breach of this confidentiality provision is a material breach of this Agreement, subject to liquidated damages in the amount of the monetary consideration recited herein.
How exactly is the bound party supposed to compel a media or social media outlet they don’t exercise any control over to take down photographs and video from previous interactions or indeed anything that had been disclosed like trying to engage customer support over social media?
They can certainly ask but if they’d engaged the help of the local news “troubleshooter” to bring light to the issue to encourage a settlement from the other party, I doubt they would be successful in telling that media outlet that “all is well now, you can lose the photos/video” and actually have that media outlet take down the content.
Likewise, anyone who had already seen the posting and then shared it with their social network (re-tweeting, etc) would be free to decide whether they’d wish to take down the content or not.
This section also fails to include any indication of the time frame covered by the confidentiality portion of the agreement. Unlike non-disclosure agreements (particularly for employment), confidentiality clauses don’t enjoy the same protections in case law against overly broad restrictions and duration but that doesn’t mean that a court can’t toss the provisions if the court finds them to be overly burdensome or unenforceable.
In fairness, the next section notes that the confidentiality and non-disparagement provisions of the agreement agreement are only effective and enforceable only after the date it is signed and notarised but that could have been made explicitly clear by noting that the entire agreement only comes in force at that point.
Nondisparagement
In addition to maintaining the confidentiality of this claim, settlement and video/photographs described herein, Releasor stipulates and agrees that he will not make any oral or written statement or take any other action, including making any statements to a third party, media and social media, that disparages, criticizes or may be considered harmful, derogatory or detrimental in any manner whatsoever to the name or business reputation of Lowe’s, its employees, its management or its practices. Releasor understands and agrees that his entitlement to the settlement amount described herein is conditioned on him not disparaging Lowe’s in any manner as described above. Please note that this confidentiality/ Nondisparagement agreement and Release of All Claims is effective the date signed.
This section is more than a little troubling for how overly broad the restrictions are to the bound party.
I don’t think anyone who has been reading along to this point really has any doubts that I’ve not been a fan of Lowe’s behaviour since their first installer tried to flood the kitchen due to dreadful incompetence and the several weeks spent dealing with their overly bureaucratic procedures and policies in trying to seek redress of my grievances.
I can understand that they really don’t want me speaking out further on this matter because they’ve not exactly covered themselves in glory to this point with a couple of exceptions. I’ve experienced the entire gamut of employee reactions at various points in this saga ranging from sincere sympathy and understanding (Ms Kayla, the store manager) to aggressively rude, condescending, and overbearing bordering on epic villainy (“Appeasement Team” Joe) and varying levels of indifference and/or incompetence amongst the “customer support” teams in between.
The people in the street that I’ve mentioned this tale to are pretty uniform in their opinion that Lowe’s royally screwed up this installation and it’s given them pause whether they want to sign up for a similar experience even though I’ve mentioned it during those conversations that this was one case where Lowe’s completely fell at the fence which was surprising given a previous track record that was generally positive except for one dodgy refrigerator repair guy on their payroll who got caught intentionally destroying my refrigerator by crimping a critical line to the compressor.
But the first question that arises when I read that provision is “am I forever barred from ever criticising Lowe’s should I actually engage with them in the future on a completely unrelated matter and I am unsatisfied with their efforts in that instance”?
A lack of a reasonable time frame indicating the date when I’m free to speak my mind on this issue suggests that Lowe’s might well be inclined to think along those lines and a court might well find that to be an unconscionable provision and unenforceable.
More troubling is just how one-way this provision is…whilst Lowe’s expects me to keep my opinions of them and their behaviour to myself once I sign on the dotted line, there seems to be no prohibition against Lowe’s retaliating and disparaging me whenever they wish and for however long they may choose to do so.
Not that I imagine myself to be really worth their time to engage in such shady and unethical behaviour, there’s nothing here explicitly stopping any vindictive individuals in their employ from doing so and there’s at least one of their employees that I dealt with that I genuinely would not be surprised if they were to avail themselves of that avenue of retribution.
Excessively lopsided provisions of contracts have occasionally been grounds for courts to set aside the offending clauses if not invalidate the agreement entirely.
Additional Terms
Releasor agrees that the consideration given by Lowe’s as settlement is the compromise of disputed claims and that the payment made hereunder is not to be construed as an admission of liability on the part of the party or parties hereby released by whom liability is expressly denied.
This is pretty much the same as was in the letter I was sent via EMAIL…see above.
Releasor additionally agrees to indemnify and hold Lowe’s harmless from any claim, demand, judgment, order, lawsuit, obligation or other liability, including, but not limited to, attorney’s fees, costs, expenses and any claim of subrogation from any third party, including without limitation insurance carriers, (1) arising from, out of, or relating to the subject matter of this release or the consideration paid pursuant to the same or (2) arising from, out of, or relating to the undersigned’s continued use of, or subsequent sale, assignment or transfer to a third party of any account, product or property (whether personal or real) at issue. It is further agreed that in the event other parties are responsible to me/us for damages as a result of theses accidents/incidents, the execution of this agreement shall operate as a satisfaction of my/our claim against such other parties to the extent of the pro rata share of the parties herein released.
So how is this supposed to work when there’s a extended service contract covering the refrigerator that was sold by Lowe’s?
Should I need the thing mended and heaven forbid they send the same dodgy bugger round that they did years ago who intentionally destroyed the original refrigerator bought for this house, would Lowe’s try to use this provision to disclaim any responsibility for that contractor’s actions in a completely unrelated situation ad infinitum?
Indeed, would they try to get out of performing their duties under that contract entirely and were they to try, am I still bound by the confidentiality and non-disparagement provisions of this agreement?
This overly broad provision could lead to also sorts of abuse of their customers by Lowe’s. I’d be shocked if a court would allow them to get away with it but that is only if the consumer can even make it through the courthouse door with their claim and complaint which is not a sure thing with the onerous court filing fees and other legal costs that may not be recouped as the United States legal system generally isn’t a “loser pays winner’s attorney’s and legal fees” unless a contract or law allows for it.
Speaking of which, of course it’s the bound party in this instance who will get stuck with Lowe’s legal fees regardless of how and why they might arise precisely because of this break between the US courts and the English law that were their immediate predecessor.
The undersigned affirmatively represents that no promise, inducement or agreement not contained herein has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital. The undersigned expressly waives and assumes the risk of any and all claims for damages which exist as of this date, but of which the undersigned does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known would materially affect the undersigned’s decision to enter into this Agreement. The undersigned assumes the risk that the facts or law may be other than what the undersigned believes.
I would imagine that whatever litigation led to “which the undersigned does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise” in this provision must have been a real doozy!
Other than that, this is standard boilerplate.
The undersigned affirmatively represents that s/he has full authority to execute this Release.
Only to the limits of my authority which as discussed above only applies to me.
I can’t control what other parties might wish to do going forward and it’s unreasonable to try to expect me to exercise such control without explicit legal authority.
THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT.
If the one that’s sent to me looks like this one, I do feel I’ve got a firm grasp on it’s contents as well as the many deficiencies in it that are potentially unlawful and/or unenforceable based on my understanding of contract law and relevant cases concerning non-disclosure/confidentiality/non-disparagement agreements.
Final Thoughts On Lowe’s Release Form
Interestingly enough, this release does not contain a severability clause (i.e. if a single provision is held to be unlawful or unenforceable by a court, the rest of the agreement survives intact) which seems a shocking omission that might well bind the court into tossing the agreement entirely if even a single provision falls afoul of the law.
The lack of reasonable time frames may not necessarily doom the agreement were it to be challenged in court but it certainly won’t help it in the grand scheme of things.
What is much more problematic is the way this agreement is being brought into being.
I’m expected to agree to the settlement number prior to actually seeing the terms under which it will be paid and what is expected of me if and when I sign the release. Just because I was able to find examples of what I might expect to have tossed at me is nowhere near the same of being offered the terms up-front so that I can make an informed decision as to whether to accept them or not.
There is no provision offered to negotiate out any of the many problematic aspects of the agreement and is being imposed on a “take-it-or-leave-it” basis which strongly argues to a very unfair balance of negotiation power. Indeed, the prediction I made on that first Saturday that Lowe’s would have no incentive to negotiate in good faith has most certainly come true pretty much in every contact subsequent to the successful delivery of the refrigerator.
On balance, the agreement overwhelmingly benefits Lowe’s and is much more onerous in terms of indemnification and duties imposed upon the bound party and such blatantly one-sided agreements have also been known to be tossed out in their entirety by courts as unconscionable and against public policy after being challenged.
I don’t equate this agreement as quite as abusive as the ones that allowed victims of sexual abuse to be silenced leading to further victims of sexual abuse who couldn’t be warned in time to prevent the crimes (see Harvey Weinstein for probably the most egregious example of this) but the fact that Lowe’s feels the need to unilaterally impose such draconian terms for such a paltry settlement isn’t too far away from being ripe for massive abuse either.
Ursula and Willy Wonka and anyone else who would parachute onerous and one-sided contracts upon their victims would be proud of what Lowe’s has managed to create with this one. 🙁
UPDATE: I’ve finally seen the form they wish me to sign and it’s substantially similar to the sample I’d found on the Internet (quelle surprise) with some slight and rather surprising differences:
The undersigned and his/her subsidiaries, affiliates, beneficiaries, heirs, assignees and assigns and attorneys, if any, agree that the settlement amount recited in this Release as well as the alleged facts giving rise to the undersigned’s claims shall remain confidential and shall not be shared with any third-party, including, but not limited to, any media outlet or public forum. The parties acknowledge that the confidentiality provision is made in exchange for $1.00 consideration out of the above referenced settlement.
A breach of this confidentiality provision is a material breach of this agreement with liquidated damages equal to the amount provided to the undersigned in exchange for this Release. Disclosure as required by a proper court order or to the undersigned’s attorneys, accountants or tax professionals will not be considered a breach of this confidentiality provision.
- The confidentiality clause is decidedly more terse than the one I found and doesn’t have the paragraph about ceasing communications with the media. It’s arguable that this version of the clause could be construed as even more broad in scope which might well be problematic for Lowe’s in the very unlikely event the release would ever be litigated in court.
- There’s no non-disparagement section/language at all which is somewhat surprising given the lengths they’ve gone to stifle the consumer’s expression of their opinion of Lowe’s in the past given the sample release form above. Maybe they’ve come to the conclusion that there’s really no way they can rehabilitate their image in this case and that’s unfortunate because it’s been a wrong assumption on their part all along. They’ve had multiple opportunities to do the right thing and they’ve stubbornly refused to do so. That being said, even though I’m apparently clear to disparage them all I wish without directly referencing the underlying reasons, I think the written narrative of this saga is sufficient enough to convey my opinion and stands well enough on it’s own. But it’s nice to know that I’m free to give my general opinion of doing business with Lowe’s to whoever may ask and let them draw their own conclusions as to why I am of that opinion.
- There’s no language concerning the effective date of the confidentiality clause but as discussed above, even without such a clause there is no way they could legally enforce those terms prior to the release being signed which hasn’t happened yet and may or may not be signed.