fcastro

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.

fcastro

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.

BigElectricCat

Like you, I'm not sure that I agree that this is a reasonable person standard, though.

blainer

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?

xsmasher

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!

noorct

The contract DOES allow Verizon to unilaterally make adverse changes as long as they are not material to the counter-party.

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

god_forbids

thalia

nonzenze

nonzenze

nonzenze

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.

JustThatGuy3

Concerned_Citizen

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.

JustThatGuy3

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.

JustThatGuy3

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.

scoosdad

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

.. IF THE CHANGES HAVE A MATERIAL ADVERSE EFFECT ON YOU

trujunglist

trujunglist

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.

snclfe

Ben Popken

graffiksguru

akalish

graffiksguru

Tank

chrisjames

Concrete terms in contracts benefit both parties, insofar as the contract is mutually agreed upon.

chrisjames

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

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

blainer

The only thing I'd say to this is what was said above.. The contract specifically specifies that THEY may change terms subject to that clause. It does not anywhere say or imply that YOU can, subject to any clause.

The fact that they expressly can does not in any way imply that you can. The contract, as written, does not impart equal rights on both parties, nor does it have to.

tcp100

I'm not sure that it has any bearing either, but that's the sort of niggling little detail that an attorney might seize on. Eg: 'Your honor, clearly the provision that applies to large corporations was never meant to apply to private individuals, especially those who may have no understanding of contracts, accounting and related fields. Clearly the provision is unconscionable when applied to a private citizen, such as my client.'

I'm just spitballing here though.

@BrianH: "The damn phone companies should just stop subsidizing the phones, and de-couple the phone from the contract. (In other words, not *require* a contract. When I was a product manager at Motorola Infrastructure, we were working with a company that was contemplating offering 2 monthly rates, one month-to-month and one for a 2 year contract. It can be made to work.)"

I do the prepaid thing now that I don't have to have a work-provided cell phone. I like the idea that if I don't use it, I don't owe anybody anything.

@jfischer: "The easy test of "reasonableness" is to ask if Version would accept payments that were consistently 15 cents lower than the amount billed as "payment in full" for that billing period."

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?

BigElectricCat

When it comes to contracts the courts seem to consistently be finding that a lot of them go a bit farther than they legally can (e.g. shrinkwrap licenses).

It's one thing for a consumer to not be able to litigate this, but now that you mention it, it's funny how Verizon hasn't taken any of these fights to court to prove that they're in the right with what they're doing. It's not like they can't afford it...

dragonvpm

It is not expressed nor is it implied.

tcp100

Then I brought up the fact that I've been riding the "extended network" a lot since my move to Kansas last week. They let me cancel in a heartbeat. $0.15/mo charged to the consumer they don't care about. Roaming charges payed by Verizon, they do care about. I got lucky. Good luck to the rest of you.

Mike8813

Or, they will have to put a hard and fast limit in there - and you can guarantee it'll be in their favor, not yours.

The current wording lets them handle things like this on a case by case basis.

Again, the issue the OP has, I guarantee, you, is NOT THE FIFTEEN CENTS. That's simply the clever "out" that he's found.

Verizon knows this, and he hammered his point home by criticizing the CSR who even he admitted was polite at first.

If he laid out a reasonable argue to terminate, such as "Your coverage in the area I am in is insufficient, and you have changed the terms of the contract, so I would like to cancel", I think he would have gotten much further. He could have also logically applied the "what if I paid 15 cents short" argument that many have used here.

But no, he took the tack of "Your service sucks, you make me hold a lot, and oh, you gotta do what I want because of the 15 cent fee, in your face!" He wants to cancel his contract for ulterior motives, not legitimately due to the 15 cent fee. He's misrepresenting himself, and has put Verizon on the defensive.

Verizon's response? Basically "Sorry, so sue us."

How do you think the CSR will now treat the next guy who has a legitimate reason to get out of the contract, but may require the benefit of a doubt?

Everyone's flag waving about principle here, but trying too hard to win some battles can make you lose the war.

tcp100

Additionally, your determination of materiality based upon what Verizon would do is fatally flawed. The contract does not allow the counter-party to make ANY changes to the contract, material, adverse, both or otherwise. If it did, then you would be right, but the contract vests this power in the company, so your argument is specious.

blainer

I've got a marvelous idea - why don't you actually show them where they aren't providing you with top notch service on a consistent basis after numerous call-ins, plan changes, and the like.

Seriously demonstrate where they have fallen down, not where they've added a $1.00 or two to your annual wireless spending. This is fucking pointless to argue, though. People would much rather have an easy out in life than to be committed to anything.

tmlfan81

Consider the following. You claim that a $0.15 increase in fees is not materially adverse. So, Verizon raises the fee by 0.15 this month, and now your contract includes that $0.15 increase, as you agreed to the change(by not cancelling your service).

Next month, Verizon institutes another $0.15 increase. Total change in your contract from what you signed is $0.30, but since your contract changed in-between, the actual change is $0.15, and that's not materially adverse.

If Verizon does this for 12 consecutive months, they will have changed the original contract by a total amount of $1.80 a month and raised the amount you owed them by $10.50 for the year, but has done so by avoiding making a materially adverse change to your contract, even if you were to consider a fee hike of $1.80 to actually be materially adverse.

When the fees go up, your contract is modified. When the next change occurs, the baseline is your current contract, and not the initial contract. If you take them to court claiming an adverse effect due to the repeated bill increases, Verizon will pull your next-to-most-recent contract and show that the difference between the contract you agreed to and the new addition is a difference of $0.15 per month, and the question before the court will be whether the $0.15 increase is a materially adverse effect. Your claim is that, no, it isn't, and thus, the fact that Verizon has raised their rates each month and caused a cumulative change of $1.80 is irrelevant, because the change from the contract you agreed to isn't $1.80, it's $0.15.

A series of changes which are not materially adverse cannot become a materially adverse change, because you've agreed to the change at each stop along the way, and the only change you can dispute, the current one, is, by definition, not materially adverse.

Thus, it is better to accept the definition commonly argued here that it is any material change(a change in fee, etc, as opposed to correcting a typo or something) in order to avoid the death by 1000 paper cuts.

thefncrow

Books on contracts spend entire chapters on this simple concept, so there is no excuse for Verizon to attempt to dismiss that the amount of money is the basis for failing a "test of reasonablness".

The easy test of "reasonableness" is to ask if Version would accept payments that were consistently 15 cents lower than the amount billed as "payment in full" for that billing period.

jfischer

Why do the wireles companies tie their service to specific phoneS? Why can't I just buy the best phone (for me) out there and use the best service provider i want (e.g. what I do for cable TV or internet service)? Why do they have an early termination fee in the first place? Wouldn't the best way to win and retain customers be to just have the best prices and best quality of service?

I don't happen to feel that it's worth my time to get out of a contract just to jump over to someone who is (IMO) just a little bit better (or sometimes just different) than my current provider, but if these companies spend so much time writing contracts which sometimes border on abusive then I don't think they should be crying when their vict... err customers use those same contracts to save themselves as much money as they can.

dragonvpm

When Sprint PCS started out, they had no contract, and you paid full price (~$300) for the phone.

It didn't work for long, because people, simple as they are, would rather get the phone for "free" and submit to a 1 year (then later 2 year) contract.

Honestly, when I buy a cell phone, I ask the ETF fee. I figure that into my costs and the chance that I'll cancel.

I bought a Sprint broadband card last week - and they have a $175 ETF. The card itself was only $29. I realize that if I cancel, that's a $204 card I paid for, which is probably close to what it really costs. If I stick through the contract, my "rebate vests", and there's a "break even point" where the time left in the contract = the ETF, so it wouldn't matter if I canceled at this point.

There seems to be an attitude as of late that there's a "right" to get out of an ETF when you sign a contract. This seems to be a new concept, but there really isn't.

Most cell companies will still sell you an unsubsidized phone with no contract, you know. But take a wild guess how much the price difference on the phone will be? If you said "About the cost of the ETF", you're right.

tcp100

And by the way, $0.15 is totally not materially adverse, this guy can sue if he wants but he'll lose, and yes, it might be different if they changed it by a different amount or did it more often, but then we'd be discussing a different EECB, wouldn't we?

mrlogical

elmuchachos

I'm not saying here what I think SHOULD be. (Although in this case, honestly, I don't think a fifteen cent charge warrants refund of the subsidy of your phone equipment, which is what an ETF amounts to - I could go on for hours though on what I think should be in cell contracts; one thing for sure should be a coverage clause along with a truth in disclosure of all fees.)

I don't think Verizon will act ethically, I don't think what Verizon does is usually right. I just know that they will, in this case, probably win.

My argument overall is that by starting these battles over such petty things as fifteen cents (and the OP's attitude towards the CSRs did not help) you are going to be making Verizon less and less amicable to contract termination without fee than they already are.

tcp100

The last term alone is 9.22 x 10^18 grains. At about .02 g/grain of rice, that's about 184,467,440,740,000 kg of rice, or more than you can deal with.

ludwigk

The damn phone companies should just stop subsidizing the phones, and de-couple the phone from the contract. (In other words, not *require* a contract. When I was a product manager at Motorola Infrastructure, we were working with a company that was contemplating offering 2 monthly rates, one month-to-month and one for a 2 year contract. It can be made to work.)

Deliver good service at a reasonable price, and you (Sprint/Verizon/AT&T) won't have so much trouble....

BrianH

It's not an issue of what the situation _should_ be, it's an issue of what the situation _is_. Bottom line, if the OP says "this is materially adverse," and Verizon says "no its not," and charges you an ETF. You can then either (a) pay, (b) sue, or (c) take a hit to your credit report.

JustThatGuy3

The hope was we could come up with a plausible enough definition that the customers (most of which knew diddly about contract law) would believe us and accept that whatever change or minor fee increase we were implementing was NOT a materially adverse change.

Most customers are not educated enough to realize the opportunities available to them to cancel without ETF and companies take advantage of that.

dragonfire81

If they went to court, a judge or jury would decide whether a reasonable person would regard $0.15/month as material, to the degree that it would affect their purchase decision.

Let's also remember that the OP has specifically said that he DOESN'T view the charge as material - he's not switching because of the charge, he's trying to use the charge as a pretext to do something he wanted to do anyway (leave).

If he really was leaving because of the charge (i.e. trying to use the clause the way it was clearly intended), then he'd stay if they offered to give him a one-time credit of $3.60 (two years of the surcharge, which would cover him through the end of his contract, even if he signed up yesterday).

JustThatGuy3

BigElectricCat's point is at least related to one that I made. Contracts are supposed to be a meeting of the minds, between two more or less equal parties. In this case, Verizon has the money and lawyers to throw away on litigation for years until they get the precedent they want. The average customer does not.

Your arguments seem very close to those of free market fanboys, except instead of 'the market will correct itself', you say 'the courts will correct the market'. That's all well and good, except your arguments make a very big (and unrealistic, in my opinion) assumption: That Verizon will act ethically.

Do you honestly believe that putting more power in Verizon's hands in such a contract dispute is wise? Do you really think that Verizon would not do everything they could to contest and draw out such cases until their opponents gave up, regardless of the validity of the consumer's complaint? Most people don't have the resources for lengthy court battles, nor would they want to have one when just paying the ETF would be cheaper.

If you allow Verizon to decide, or leave it to the courts to decide what 'materially adverse' means on a case-by-case basis, then the materially adverse change clause is meaningless, because consumers will NEVER get out of an ETF. Verizon will force it into the courts every time, where the odds are stacked in their favor by simple virtue of their deep pockets. I don't see how thinking otherwise could be anything but naive.

NightSteel

blainer

tcp100

--
"The middle ground is represented by the formulation would [or would not] reasonably be expected to result in a MAC, meaning that a reasonable person would (or would not, as applicable) expect the one or more items in question to result in a MAC. In this context, expect is best thought of as meaning "regard (something) as likely to happen,"with likely, in turn, meaning "a degree of probability greater than five on a scale of one to ten." In all but the most exceptional contexts, this would be the appropriate formulation to use"

Obtuse, but I think it's implied. I'm not sure what bearing the b2c vs b2b has on it?

tcp100

TheBigLewinski

Although, to be honest, I wonder if that clause is enforceable in court. Courts are pretty good about not addressing issues until they are specifically brought up, so if no one has ever fought to cancel their account w/o an ETF because the contract was changed in their favor then it might be one of those severable clauses.

That was part my earlier point. Just because it's in writing, in a contract doesn't make it legal or enforceable.

dragonvpm

Because it eliminates ambiguity. Such specificity would do away with complaints of this nature.

@blainer: "The words 'material' and 'adverse' have specific legal definitions. Your seem to be claiming that the word 'material' should simply be ignored when reading the contract. I wonder, why do you think they added the qualifier 'material' at all?"

"Material" is also ambiguous. Why not be specific and establish a level that both parties know from the outset, so that litigation can be avoided?

BigElectricCat

I don't see that in your Fordham link, but on page 20, I do see something that echoes my comment above; the actual *establishment* of what constitutes "materially adverse" in the wording of the contract.

Also, I don't have time to read the whole thing, but so far, that Fordham link doesn't appear to address business-consumer issues. It appears more aimed at business-business issues. Can you please point me to the pages on which the 'reasonable person' standard is discussed?

BigElectricCat

pigeonpenelope

Fivetop

blainer

blainer

"when I criticized the poor customer service, she began screaming at me." doubt that. seriously doubt that.

I think this is a case of a guy who wanted to get his way because he thought he was right and when he was told he wasn't, he got ugly

I am Joseph T., the submitter. Please let me assure you that as an avid consumerist reader and a soon to be law school student, I was in every way professional. Yes, Danielle definitely did yell and laugh at me. If anyone has any questions on this incident, I would gladly answer them to the best of my ability.

TKOtheKDR

"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"

Protip: Save your complaints about customer service until you're done dealing with them. "Hey, why won't you help me out, oh, and BTW you suck" will get you nowhere.

tcp100

I personally think that any change to the contract, whether it be in price or services offer, is one that should null and void the contract.

Imagine if you started paying 15 cents less a month every time. How quick do you think your service would be cut off?

Pretty damn quick.

Scuba Steve

flamincheney

Do you think that he wouldn't be porting his number and cancelling if Verizon said "Fine, we've credited you with the cost of the admin fee for the rest of the contract; hence, you will not be charged."

That might legally remedy the breach, and I'm not sure how a remedy like that works in contract law - or if once that milestone has been passed, it's over.

He probably hurt himself by griping about hold times and other things - he'd have much more of a leg to stand on if his ONLY complaint was the fee change. (I've seen this a lot - people like to muddy the water in complaints by adding details like "AND I had to hold for a really really long time!", as if that'll help. It won't. They don't feel sorry for you. They won't feel sorry for you. Stick to the issue at hand.)

His only remedy, if Verizon doesn't give in, is to sue.

tcp100

On the other side, couldn't the customer gain any headway through the AG's office or FCC?

Regardless predatory contract laws in this country should be strengthened. How can you ask the populace to continue supporting an economy that gives nothing back? They just take, take, take and we are all supposed to just sit there and take the lashings.

flamincheney

Not everything in a contract is necessarily legal. This is why they have severability clauses (i.e. "if any part of this contract is found to be unenforceable the rest of it remains valid"). So you could agree to certain rules and those rules could later be found to be unenforceable regardless of what the contract said.

Furthermore there has to be a meeting of the minds "e.g. I pay you $x for y and you give me y, not z which is a lot like y, but not exactly like it". Once you decide that you want $x+$0.15 (for instance) I have the right to decide that this contract is no longer in my best interest. Maybe your competition will only charge me $x+$0.05 or heck maybe they charge $x-$1.00 for z and I decide that this is more in line with what I want.

Even if you give yourself the unilateral option to make specific changes to the contract, I still have the option to back out of the contract if those changes don't suite me. That is basic contract law.

dragonvpm

In reality, any change to the price term is considered material because it changes the obligations of the parties.

Black's law dictionary includes the price as a material term of a contract, and notes that a "Material Alteration" to an instrument is "an act done to an instrument after its execution, whereby its meaning or language is changed."

There are very few immaterial changes to contracts. If the change is immaterial, why make it?

cef21

Yeah, they "could", but they didn't, and maybe there was a reason that they did not - billing systems or whatever it may be.

My argument wasn't about what they could or couldn't do as far as their billing systems was concerned, so I understand you clearly - no reason to get juvenile about it.

JustThatGuy3 has it right, though, we can argue what's materially adverse to you and me forever - but in the end it's up to a judge, and if Verizon doesn't budge, that's your only recourse.

You can go ahead and sue over a 15 cent increase - I'm saying I'm going to guess that most people won't, and if that is truly the ONLY THING making you want to leave the contract (if the OP was being honest, then a remedy to the fee would be an acceptable recourse) then this person is "abusing the system" a bit.

The "15 cents more every month" argument is not the same, either. There's clearly a difference between a single, one time change and a pattern of repeated ones. A series of immaterial changes can definitely add up to a material change.

tcp100

Most people today are a part of a home-owners association. In order to move into the neighborhood, you have to agree to their rules and conditions. If you agree to the rules, if you break them, even if it's "reasonable", the court will rule against you because you agreed to the rules.

If the rules say no wind mills, you can't put up a wind mill, even if its 2-inches tall.

Since Verizon doesn't specify what Materially Adverse means, we must assume the letter of the law. In this case, Materially Adverse is what the other side considers. If Verizon changed the price to be one-cent higher, then you still can be materially adversed by this.

Verizon doesn't know your financial situation; they don't need to know. Since there is no statute in the contract that says "material adverse is 1% above your contract price" or the like, then it's down to the least common denominator.

I agree; $0.14 is not a lot a month. But that's not the point. The point is that verizon is changing the terms of the contract. Taking back the home-owners association analogy, if the HOA decided to allow you to have a windmill, you *STILL* have to agree to the new change and the HOA must give you the right to object.

(I realize that this isn't a perfect analogy since most HOA contract include changes to the rules and you're still bound to them.)

mike

NightSteel

A proper contract is supposed to be one where 2 parties agree on certain terms and conditions by which goods and/or services will be exchanged (often) for money.

Here's a question. Would it be ok if the change was +$0.15/month applied once every other year? Once a year? once a month? once a day (which would add $54.75 to your monthly bill by the end of one year)?

Without the prohibition against "unconscionable" contracts, the "materially adverse" clause could be reworked and Verizon could just skirt whatever arbitrary limit they imposed ($1.00 / month say) and you couldn't do anything about it.

Fortunately, contract law doesn't work that way and Verizon should know better. I suspect they're doing this largely to discourage the people who will take a give up after hearing no a few times.

dragonvpm

I'd define materiality in this case as "enough that, if this had been in the contract from the beginning, I wouldn't have signed up."

That being said, at the end of the day, materiality is what a court says it is. That's true of all laws and contracts.

JustThatGuy3

It becomes "materially adverse" when I decide it does. If you disagree, we settle it in court.

As to your ability to pay $0.15/month less, sorry, but the contract gives Verizon the right to change the contract, not you. You could argue that the provision was unconscionable, but again, you need a court to decide that.

JustThatGuy3

eben56

This argument is a fallacy. Let's think about this, shall we? "You may get out of your contract without ETF if we make materially adverse changes to it. For the purposes of this contract, materially adverse means 'between 20c/month and 30c/month'."

Putting a maximum amount on 'materially adverse' is, frankly, ridiculous. I can't imagine that such a contract clause would be held legally binding by anyone. "They signed the contract, Your Honor! We raised the fees 35c/month, which they agreed to!" Man, would it take a terrible judge to sign off on THAT.

NightSteel

jtheletter

You're obviously unaware of the cross-cloning of the Hulk, Angel, and Galactus the government is currently working on.

EyeHeartPie

Gokuhouse

Okay, so what's the right definition?

NightSteel

pigeonpenelope

blainer

I previously said: BigElectricCat is right, the contract as written does not use the reasonable person standard, so until Verizon starts writing their contracts that way, they are stuck being legally obligated to let people out over fee increases, no matter how small.

That should be:

BigElectricCat is right, the contract as written does not define a specific threshold or standard of 'materially adverse'. Thus, the simplest definition of it *should* be the one used. With the caveat that IANAL, I think rbf2000's interpretation is the right one.

Also, the contract as written does not use a reasonable person standard, so regardless of that idea's merit, it does not apply in the existing case.

Therefore, given that the contract does not define a threshold or standard of 'materially adverse', any increase in rates, fees or any other charges levied by Verizon is materially adverse.

NightSteel

"I have to admit that I don't know the legal definition of a materially adverse change. If someone could find it for all of us, that might help. However, my understanding of it is, a change that results in actual negative effects for the customer, no matter how small."

The very fact that the word "materially" is in there means that your definition (any effect, no matter how small), is by definition incorrect. Materially is a _limitation_ on adverse, is means that not all adverse changes qualify.

For example, if Verizon added a clause saying that persons who magically grow to 100 feet tall, turn green, and sprout wings, must pay $9 extra per month. That wouldn't be material provision, since the clause would never impact anyone.

As to the reasonable person standard, that's how a lot of contract disputes get resolved. Even extremely well-drafted contracts have elements that are slightly ambiguous, and the reasonable person standard is a key elements that courts use to resolve disputes over what the contract actually requires. For example, if you have a provision half way through a contract between Bob and Joe that says "Bob will pay Joe $44/month," and then Bob makes the claim that, for that clause only, "Bob" refers to some _other_ guy named Bob, it's highly unlikely a reasonable person would agree with him.

At the end of the day, again, contract disputes are resolved by courts. That's what they're there for. I maintain that, if you actually took this to trial, the charge would not be deemed as materially adverse. That being said, we will never know unless someone actually does sue over it.

JustThatGuy3

pigeonpenelope

blainer

jtheletter

[en.wikipedia.org]
i'm still working on submitting working links so if this doesn't work when you click on it just copy/paste... anyway, this is the wikipedia version of material adverse change in case people want to review

pigeonpenelope

VereErmoo

The definition of material isn't as difficult as the non-lawyers on this board are making it out to be. It simply means, as shown in a earlier post, "of such a nature that knowledge of the item would affect a person's decision-making process." The notion that it involves the first Black's definition regarding matter is ridiculous.

rfb2000 is also incorrect when he states, "But other than internal administrative changes, it doesn't matter how big or small the change is - nobody has the right to make you accept a Contract change." If the contract says that you have to accept a contract change, and I believe that this one does, then you have to accept a contract change.

blainer

They don't have to. Words like that have a fairly well defined legal meaning -- including a threshold underneath which a change just does not qualify.

nonzenze

midwestkel

In the same way Verizon doesn't want to set a precedent for getting out of the ETF, the consumers shouldn't allow them to set a precedent of allowing seemingly minor contract changes and charge increases. In my opinion (based on common sense, not law) the official position that $.15 isn't materially adverse is an interpretation that is ABSOLUTELY materially adverse.

KyleOrton

By raising it to 85 cents,, the increase is a 21% jump is what Verizon is charging for this "service." I have a hard time seeing how a 21% jump in price does not qualify as material.

SoSeksi

"when I criticized the poor customer service, she began screaming at me." doubt that. seriously doubt that.

I think this is a case of a guy who wanted to get his way because he thought he was right and when he was told he wasn't, he got ugly.

pigeonpenelope

WhoMee

There's a reason it says "materially adverse," not just "adverse." There are certain changes that are so de minimus that they don't affect the validity of the contract as a whole.

MayorBee