Joseph would like to cancel his Verizon contract without early termination fee by arguing that the recent monthly administrative fee increase is materially adverse, but unfortunately for Joseph, Verizon’s lawyers have filled their customer service reps brains with a bunch of hooey about what materially adverse means. In fact, when Joseph was reading the very clause in the Verizon contract that allows him to what he wants, the call center supervisor laughed at him. According to his account, when he criticized the poor customer service, she started screaming at him. The text of Joe’s attempted EECB, inside…
Ladies and Gentlemen,
I would like to inform you of an issue I am having with your customer service department. Today, 5/7/08, I tried to contact customer service around 5 PM. Unfortunately, every time I was transferred to the department I requested, I received the message “We cannot process your call at this time. . .” and then was disconnected.
I finally reached customer retention nearly an hour later. Among my many calls, of note, I spoke with Stephanie (ext. 7476) and Trish (ext. 7129) at the Cranberry, PA call center. When I informed these CSR’s that I wanted my ETF waived due to the increase in the monthly administration fee being materially adverse, I was put on hold between 5-10 minutes EACH call, presumably so that the CSR could find a way to reject my request. (Although I want to close my account, I want to port my number to another carrier, so I cannot have my account closed before the number is ported).
Both calls escalated to the floor supervisor (once at my request, the other to “confirm that [she] could complete my request.” Both calls were escalated to Danielle (ext. 4075, also at Cranberry, PA). This “Danielle” denied my request to have my ETF waived. During the first call, she was relatively professional, granting my request for an escalation contact number/address. However, when I criticized the poor customer service, she began screaming at me. During the second call, she laughed at me when I read the following clause from the contract:
Our Rights to Make Changes
Your service is subject to our business policies, practices and procedures, which we can change without notice. UNLESS OTHERWISE PROHIBITED BY LAW, WE CAN ALSO CHANGE PRICES AND ANY OTHER CONDITIONS IN THIS AGREEMENT AT ANY TIME BY SENDING YOU WRITTEN NOTICE PRIOR TO THE BILLING PERIOD IN WHICH THE CHANGES WOULD GO INTO EFFECT. IF YOU CHOOSE TO USE YOUR SERVICE AFTER THAT POINT, YOU’RE ACCEPTING THE CHANGES. IF THE CHANGES HAVE A MATERIAL ADVERSE EFFECT ON YOU, HOWEVER, YOU CAN END THE AFFECTED SERVICE, WITHOUT ANY EARLY TERMINATION FEE, JUST BY CALLING US WITHIN 60 DAYS AFTER WE SEND NOTICE OF THE CHANGE.
She then said that the 15c per month charge wasn’t materially adverse. I explained to her that the phrase “material(ly) adverse” has no quantifiable limit; one definition is: “of such a nature that knowledge of the item would affect a person’s decision-making process.” In the canon of law, (any) price is considered as having this nature.
I am hoping that one of you fine people may be able to assist me with this issue. My account information is:
Name: Joseph XXXXX
Phone#: XXXXXXXXXX
Account#: XXXXXXXXXXXXXPlease contact me to discuss this further. I would greatly welcome an effort to restore my opinion of your company. Thank you for your time in consideration in getting this matter resolved.
Sincerely,
Joseph C. Tkocs
If the EECB doesn’t work out, Joe, you can also try some of these phone numbers.
More From Consumerist
-
After Today, You’ll Need Your Wireless Provider’s Permission To Unlock New Cellphones
-
Why Do So Many Servicemembers Not Receive Mortgage Protections They Have Legal Right To?
-
Colorado Family Kept Out Of Own Home For 8 Months By Squatters Claiming Adverse Possession
-
Squatter Takes Over $2.5 Million Bank-Owned Home, Bank Of America Doesn’t Seem To Care
-
Eviction Papers Served To Squatter In $2.5 Million Mansion, But He’s Sticking Around For Now
@BigElectricCat: “IMO, this is exactly the question. If it isn’t “material” to the customer, then is it “material” to Verizon? If so, then why can’t it *also* be material to the customer, thereby triggering the clause in question?”
Just because Verizon won’t agree to it doesn’t mean that it’s material. Verizon won’t accept the change because, by the terms of the contract, they don’t have to determine if the change is material. Certainly you aren’t arguing that this change IS material to Verizon, are you?
@tcp100: There certainly is something in there to stop Verizon from removing the out. If Verizon wants to be able to modify the contract, they’re going to have to leave the customer an out, and I think it’s clear that they do want to be able to modify their terms, so them getting rid of the out is not a possibility.
If Verizon wants to change their contract to define materially adverse, they can, and it’s their right to do so. If you don’t like the terms, don’t sign the contract, but those terms will be available up front. Further, ironically, any change to the definition of “materially adverse” is a materially adverse change, and so any such rewrite would allow any and all Verizon users out of their contracts.
Whether or not he’s cancelling because of the 15 cent change doesn’t matter. If the 15 cent change is materially adverse, then it’s materially adverse, and it doesn’t matter if his real reason for cancelling is that he doesn’t like the color of the paper his bill is printed on, any materially adverse change lets him out of the contract without an ETF.
You seem to be under the impression that the clause is there to allow out people who want to cancel based on the change, when this isn’t true at all. When Verizon decides to change the contract, you either have to accept or reject the changes. If you stay, you accept. If you don’t want to accept the changes, you have to cancel the contract. Maybe you’ve wanted to cancel for some time, you have a litany of complaints, and only that ETF was stopping you from canceling your service.
If the change was materially adverse, and I’d claim that it is, then you have an opening to cancel your contract without an ETF, and the “why” doesn’t matter a single bit. The “why” could be “Verizon has installed wiretapping devices in the fillings of my teeth”(or something similarly crazy), but if Verizon alters the contract and the change is materially adverse to the customer, Verizon is contractually bound to let the user out without an ETF, or to provide relief in order so that such a change has no adverse effect.
I agree that he’s not cancelling because of the $0.15 fee increase. Verizon could give him a credit for $0.15 times the number of months remaining in his contract, and that would resolve the materially adverse change and leave him without an out to cancel without an ETF, and that’s what they should likely do. But the change is most definitely materially adverse, and arguing that it is not is incorrect.
@thefncrow: No- I’m arguing that issues like this will cause Verizon to not put the Materially Adverse clause ambiguously in future contracts, for other customers.
While in some cases that may be good, in others, that may be bad. If they narrowly define it, I would guarantee that it would favor them, not the consumer.
I think that the contract, as is, allows interpretation on a case-by-case basis. In this case, I think Verizon rightfully told the guy to pound sand. I still contend that “materially adverse” is not an arbitrary threshold that can be dreamed up by one party to the contract.
So, you’re interpreting “material” as meaning “anything that changes the substance of the contract” and “adverse” in a negative way. I can see that.
However, one might also interpret the phrase unto itself as meaning “negative with a degree of substance”, such as in this definition of “material”:
“12. of substantial import; of much consequence; important: Your support will make a material difference in the success of our program. “
Using that definition (Dictionary.com sources it from Random House Unabridged Dictionary) – I’d say that Verizon could easily argue that the 15 cents was not material.
@tcp100: The ambiguous definitions actually work in favor of the companies, not the consumers. They give vague responsibilities of each party, assuring customers that the ambiguity swings in their favor, not the company’s. Of course, just the opposite holds true when the consumer needs to confront the company, they swing it back in the company’s favor.
Concrete terms in contracts benefit both parties, insofar as the contract is mutually agreed upon.
@chrisjames: Though I agree this squabbling over 15 cents is going to cost consumers in the end, somehow, just like the EECB is losing effectiveness with some companies.
@tcp100: yeeh, it’s a buck eighty a year to us, but with 60.7 million subscribers, it means an additional 9.1 million dollars a month to the bottom line at verizon. it only takes a couple months to add up to a lot of money.
I know the what the term “materially adverse” means, I just find it hard to believe that $1.80 more a year is materially adverse to anybody.
Granted though, since its not spelt out in the contract, technically they should be allowed to get out of the ETF.
I’d like to see a youtube video of the screaming part, cut back and forth with the Verizon guy saying, “Can you hear me now?”. Would that just be the best?!
Side note, Ben if your going to XXX out his last name, you should probably do it after the sincerely part too. Not trying to knock you at all, just wasn’t sure if you knew you missed it.
@graffiksguru: I didn’t X it out, he did.
@tcp100: Wow – at first I thought you were a “reasonable person” until you stipulate that minimum wage is $61.70/hour. In CA it’s currently $8/hour and I know that’s higher than a lot of other places.
If Verizon really wanted to avoid this, they’d just waive the new fee for anyone trying to terminate their contract. I bet that would be more effective than laughing at customers.
Just the very fact that Verizon can’t seem to understand the simple idea of “if the shoe was on the other foot” makes me want to call them and cancel using this as an excuse. But, I’m waiting for the new iPhone.
@JustThatGuy3:
You keep bringing up the fact that there has to be a reasonable person somewhere in there to help decide what is materially adverse and not materially adverse. However, Verizon’s own contract states
So really, it’s all about YOU, not some so-called “reasonable person.” You can be as unreasonable as you want, they say YOU, meaning by your own definition. If I define “shit” as “great to eat”, well fuck, that’s not really very reasonable to a normal person, but hey, I like it, so who are you to say differently?
On another note, I find it somewhat hilarious at how easy Verizon makes it sound to terminate without ETF. “Just call us up within 60 days, no problemo!”
While everyone here is arguing over the OP’s right to cancel or not cancel over fifteen cents or that he should suck it up and pay the $1.80 more a year, you guys is missing the point of what he’s actually trying to do:
While it doesn’t specifically say so in the story, he probably thinks his Verizon service is not worth what he was paying for it before it went up the lousy 15 cents, and he’s trying to use the change as an legal reason to get out of his contract without the ETF.
Consumerist has advocated this approach in the past and has alerted us to various minor changes in contracts like this to be able to get an escape from services we’re sick of paying for. Stop whining about fifteen cents, this is not about that at all.
@snclfe:
If you’re attacking someone else’s math, it helps if you get your own right.
Federal minimum wage: $5.85/hr (currently – it rises in July)
0.15/5.85= 0.026 of an hour
60 minutes per hour * 0.026 hours = 1.56 minutes = about 1 minute, 34 seconds.
So, this price increase amounts to about 1 minute, 34 seconds of minimum wage effort per month, pretty darn close to what tcp100 claimed.
It’s YOUR math that’s way off – looks like you took a whole year’s worth of charges ($1.80), and tried to figure out what the hourly wage would be if $1.80 = 1 minute, 45 seconds. The result you got is off by a factor of 12.
@trujunglist:
Yes, they do say that. Your assumption that this means that YOU get to determine what’s “materially adverse” is, well, just not true. You’re welcome to believe that, but it’s not how contracts work. Think of it this way – what if they wanted to change the contract to correct an incorrectly spelled world, and you said “that’s materially adversely impacting me, the contract now has an even number of letter Q’s in it, and I find that morally offensive.” You’re welcome to try that strategy, but it’s not going to get you anywhere if/when you take it to court.
@savvy9999:
Material means any. Because otherwise they could just do one small increase every month to get around any restrictions.
@Concerned_Citizen:
No, it just doesn’t. If the contract meant “any,” they just had to leave out the word “material.” Material means that not all revisions that are adverse to you constitute grounds for cancellation.
There is an objective standard for what counts as material. Anything less than $5 ($.15 x entire 24 month contract) is just not going to cut it.
“Material means any. Because otherwise they could just do one small increase every month to get around any restrictions.” No, because no court on the planet would see a string of $.01 increases and determine that, since each is de minimis, the whole thing is. That kind of logic should cease to be convincing when you pass age 5 and realize that other human beings are capable of assessing an entire situation.
“You’re welcome to try that strategy, but it’s not going to get you anywhere if/when you take it to court.” I should caution you that most courts will slap you with fines (“sanctions”) for filing frivolous motions and wasting the court’s time if you try this more than once.
This happened to my husband. He wanted off Verizon and they increased the text message rate by one cent. He called in and they said he wasn’t eligible because although he had a text messaging plan, he had only used it to send three text messages since he’d had the phone. He said that of course he was entitled, they were breaking their end of the contract and per their own policy had to let him out of his contract without a fee. The lady finally offered a 50% slash in the fee but my husband stuck to his guns and asked to be transferred to someone else because she flat out refused to do anything more. He remained calm and polite and within minutes, they had no choice but to let him out of the contract without an ETF. Over three text messages. We went out for dinner that night
None of you are accountants, eh? Lack of materiality can apply to MILLIONS of dollars, if your company’s transactions are typically way larger than that. There is no person in the United States to whom 15 cents a month is “material.” Your YEARLY budget would have to be something like $100, and in that case you wouldn’t have cell service anyway.
@blainer:
“Certainly you aren’t arguing that this change IS material to Verizon, are you?”
If the change is “material” to Verizon, then why can’t it also be “material” to the customer?
@BigElectricCat: The change is NOT material to Verizon. Verizon can reject any change by the counter-party and sue to collect monies due buy not collected, however, because the contract does not entitle the counter-party to unilaterally make changes.
The contract DOES allow Verizon to unilaterally make adverse changes as long as they are not material to the counter-party.
Nothing like having non-lawyers saying that a .15$ increase isn’t materially adverse. And who the hell dragged the reasonably person standard into this?
In fact, as someone else pointed out, any change in the price of the contract is materially adverse. The minute difference in the amount doesn’t even factor in. Nice try though!
@tcp100: “material adverse” is not a “fuzzy term” it’s a legal term.
As you say, the customer signed a contract with Verizon – and the contract says that if Verizon makes a material adverse change, the customer can get out of jail for free. So who’s scamming who here?
@noorct: I’m a lawyer and I couldn’t disagree with you more. Your conclusion renders the addition of the word “material” to be useless. How do explain this? What is your definition of material?
Like you, I’m not sure that I agree that this is a reasonable person standard, though.
@blainer: “The change is NOT material to Verizon.”
Well, I have to respectfully disagree with you here. Clearly, Verizon thinks that a 15-cent change to the billing rate is material, or else they wouldn’t be making the change at all. IANAL, but I can’t fathom such a thing as a *non-material* change to a billing rate. Perhaps you could elaborate on that point?
@blainer: “Verizon can reject any change by the counter-party and sue to collect monies due buy not collected, however, because the contract does not entitle the counter-party to unilaterally make changes.”
It clearly does allow the customer to terminate the contract, however, which is the heart of the matter. I think the case hinges on the question of materiality, and who gets to determine what is and is not material to the customer for the purpose of the contract. That’s why I suggested, by way of an example, an explicit limit earlier in this thread. By not being explicit, IMO Verizon is trying (intentionally or not, I can’t say) to cast *itself* as the determiner of what is and isn’t material to the customer. Frankly, I think that’s unconscionable.
@blainer:
“The contract DOES allow Verizon to unilaterally make adverse changes as long as they are not material to the counter-party.”
No argument. As I said, I think the case hinges on the matter of materiality, and who gets to determine what is and is not material to the customer. I don’t see how or why Verizon should be permitted to determine that (and not the customer).
@blainer: “Your conclusion renders the addition of the word “material” to be useless.”
Which is, again, why I suggested establishing a explicit limit of materiality earlier in this thread. Respectfully, I think that your conclusion also renders the word “material” useless.
@blainer: “How do explain this? What is your definition of material?”
In the absence of an explicit definition (which, again, I recommended upthread), I’d judge any billing increase to be material.
15 cents does not equal zero. If a billing change of 15 cents a month is to be considered non-material under the terms of a contract, then spell it out. IMO, Verizon is not only in the wrong here, but also put itself in this position.
Hi all,
I am going to recap what my girlfriend has been going through. Early in April I found about verizons text increase .15cents to .20 cents. It was 60 days after they had mailed the notification of increase hidden on the last page of the bill (literally last page on the bottom).
Regardless I called up and was able after escalation to get a note placed on my account to have it terminated without ETF. I just recently ported to Sprint SERO. My contract was actually coming to an end in a month which is why I think they noted my account.
Ok so my girlfriend calls up same day with all the same info and scripts I used and they would not let her out of the contract. She then went and filed a complaint with BBB. Verizon representative contacted her back and said the same thing the supervisors said and was then suppose to give her a call back within 24hrs (never happened). They refused to waive the ETF and the battle lingered on till last week when we then found out that Verizon was also increased administration costs.
So again she called up and this time stated that she was within her 60 days to cancel. Again she escalated it to a supervisor who refused to waive the ETF and instead offered the credit which she refused.
So then (after reading over at the consumerist.com site) we email blasted a list of execs at verizon. The verizon rep who was headed up the BBB complaint gave her a call back and pretty much reiterated that they will not waive the ETF. Yesterday we did a fax blast to various verizon phone numbers and emails again (aka carpet bomb). But no one has contacted us back.
I think we WILL be taking verizon to small claims court. I am also thinking of trying to record 1 more conversation with a supervisor with consent. It is absolutely disgusting that verizon thinks they can change the terms of a contract at whim. I will keep everyone posted on the situation.
Does anyone have any advice on taking Verizon to small claims court over this increase?