December 18, 2016

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How One Couple Fought For The Legal Right To Leave A Bad Yelp Review

The Yelp Inc. logo is displayed in the window of a restaurant in New York in 2012.

Scott Eells/Bloomberg via Getty Images

The story of a new law starts with some online Christmas shopping gone wrong.

In the winter of 2008, John Palmer of Layton, Utah decided to buy his wife Jen a couple of holiday tchotchkes. Things like desk toys and keychains.

The order, from the online retailer KlearGear, never arrived.

After a testy back and forth with the company’s customer service, Jen Palmer did what many thousands of consumers do every month: She posted about her negative experience on an online business review site.

“I posted the review and then we forgot about it,” she says.

But four years later, they received an email from the company demanding they take the review down. The company said they had violated a “non-disparagement” clause in the terms of service — a caveat in the fine print that restricts customers from publicly reviewing their experience with the company.

The company said the Palmers would be subject to a $3,500 fine if they didn’t comply.

The Palmers refused to take down the review or pay the fine. A few months later the couple found their credit had taken a major hit — KlearGear had passed the fine on to a collection agency and reported it to several credit bureaus as an unpaid bill.

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They went to the press and found legal representation from Public Citizen, a consumer rights advocacy group.

“The purpose of a non-disparagement clause is to have a hammer with which to hit consumers who haven’t said anything false,” says Paul Levy, a lawyer with Public Citizen. “But you can make them take it down, and you can seek damages, you can seek attorney’s fees, what might you.”

Levy says gag clauses like these can limit truthful speech and deprive consumers of valuable information when choosing where to spend their money.

After a lengthy legal back and forth, the Palmers won a default judgment in federal court and their credit was restored.

But their case was an extreme example.

“Surely 95 percent of the time consumers simply remove the review, rather than stand behind their words, in order to avoid any potential legal action,” says Eric Goldman, a law professor at Santa Clara University School of Law.

He says it’s likely that the use of these gag clauses is much more widespread than it appears.

“So the number of lawsuits are fairly rare because there’s a much larger group of reviews that have been removed under the threat of lawsuits,” Goldman says.

The KlearGear case attracted media coverage around the country and helped gain the attention of legislators. California passed a law outlawing the use of non-disparagement clauses to limit customer reviews in 2014. Online review platforms like Yelp and TripAdvisor joined the effort to pass federal legislation.

It culminated last week, when President Obama signed the Consumer Review Fairness Act into law after it passed unanimously in the Senate last month. It prohibits businesses from putting non-disparagement clauses into terms of service.

Those clauses “will not work in court. And they will expose the business that tries to use those techniques to potential liability,” Goldman explains. He points out that under the law, businesses will still have the ability to combat false reviews through defamation law.

Not everyone is happy about the new law, however. Joe Sullivan, an Atlanta business attorney who regularly advises businesses on how to deal with negative online reviews, says he’s heard some pushback from businesses, none of whom wanted to speak on the record.

“It wasn’t necessarily a solution in search of a problem,” he says, “but it was something where it wasn’t a widespread practice.” Sullivan says there wasn’t much incentive for companies to use this kind of fine print to sue customers.

He says some businesses view the law as an effort by consumer review sites to grow their customer base.

Despite the concerns of some businesses, Jen Palmer is happy that the new law means customers like her will not face legal retaliation in the future.

“I’m very glad to hear that this seems to be the one thing that Congress can agree on,” she says. “I’d definitely call it the best Christmas present of all, to make sure that nobody else has to go through this.”

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Sunday Sports: Mike Pesca's Theory On NFL 2016

Slate’s Mike Pesca has a word for the National Football league this year: mediocrity. Mike make his case and also previews today’s big games.

AILSA CHANG, HOST:

It’s time for sports.

(SOUNDBITE OF MUSIC)

CHANG: It’s Sunday. And if you’re a football fan, you’re probably getting ready to watch your team this afternoon. Not to upset you, but our friend Mike Pesca has a word for this year’s NFL, and it is mediocrity. He’s the host of slate.com’s podcast “The Gist” and he joins us from Slate Studios in New York to tell us more.

Thanks for being with us, Mike.

MIKE PESCA, BYLINE: Sure.

CHANG: OK. So what is so mediocre about football this year?

PESCA: Huh, well, I can’t explain it by throwing out phrases like point differential, standard deviation – I won’t do that.

CHANG: No idea what you mean.

PESCA: I will just say this. Yes. The biggest reason is the eyeball test. You look at these teams, you don’t get the impression – even the great ones, or the ones who have the best record, you don’t say to yourself – my God, who could beat the Patriots or the Cowboys or the Raiders or the Chiefs? Because not only have teams beat them, they don’t look forceful. And they don’t look so omnipotent from week to week.

I will cite – there is a site called Football Outsiders, and every year, they do a very advanced number-crunching. And they say the best teams in the league this year are the worst best teams we’ve ever had. And they’ve also saying that the worst teams – now the Browns are a winless team. They could go un-winned, which is the opposite of undefeated, this year. But compared to the other two teams that didn’t win a game, they’re much, much better than that.

But it really is this clustering in the middle, where teams – even the great teams – aren’t blowing out the bad teams. And it doesn’t seem like the games are crisp on every play and with every – on both sides of the ball. And that’s what I mean by mediocre, and I do think the fans are feeling it.

CHANG: Wait – so basically, you’re saying that the best teams aren’t as good as they think they are. And the worst teams aren’t as bad as we think they are. But isn’t that the case any year?

PESCA: Well, I would say this – if the NFL were just a league of 32 coins and there were a bunch of flips, the bell curve would dictate that there’d be some teams with really good records and some teams with bad records and some teams with 800 records. And that’s what we’re getting.

But it’s not – it’s a little bit different from most years because the Patriots, who are the best team – there have been other Patriot teams that win by an average of 12, 13 points – usually, the best team in the league will win by double-digit points. That’ll be their average margin of victory. Last year, the Panthers and the Cardinals both had an average margin of victory of double-digits points. This year, the Patriots aren’t at that point. That’s just one of the many factors to say the greats aren’t the greatest.

CHANG: So does your theory of mediocrity explain why TV ratings are down?

PESCA: I think it plays into it. I think that you look at all these matchups, and maybe it’s not unbelievably exciting, especially early in the season when you’re not sure if teams are going to be good. Now with playoffs on the line, there’s a lot of incentive for, say, if you’re a Tampa Bay Buccaneers fan. Even if your team was bad, now it’s pretty good. Well, now if they beat the Dallas Cowboys, that means a lot in terms of their playoff chances.

But I would say this – the overall ratings decline has been a little bit exaggerated. A lot of that is “Thursday Night Football.” My big theory is those games are terrible. Also, they wear awful uniforms.

CHANG: (Laughter).

PESCA: There was this Seattle drag show I recently heard about that would find the uniforms of the Seattle Seahawks demure by comparison if you look at what they were wearing on Thursday.

(LAUGHTER)

CHANG: OK. In the 20 seconds we got left, let’s talk about the big games being played today. Which ones are you keeping an eye on?

PESCA: I mentioned Tampa Bay and Dallas.

CHANG: Yep.

PESCA: New England and Denver will be a good game. Whoever wins the Lions against the Giants, they’re going to the playoffs. But let’s also look at the Bills and the Browns because if the Bills lose to the winless Browns, I believe their coach will get fired. Also, people of Buffalo are being offered $10 to shovel out the stadium.

CHANG: OK.

PESCA: You also get a free game ticket. However, they’re selling for six bucks on StubHub.

CHANG: Mike Pesca, host of “The Gist” podcast at slate.com.

Thanks, Mike.

PESCA: You’re welcome.

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Dolls With Disabilities Escape The Toy Hospital, Go Mainstream

Dominika Tamley and her doll “Isebelle” ride the train together in Chicago. Like Dominika, Isebelle has a hearing aid. “She’s like a mini-me,” Dominika says. Kevin Irvine hide caption

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Kevin Irvine

When Dominika Tamley chose “Isebelle,” her American Girl doll, she picked a toy whose hair and eye color matched her own. But the 10-year-old is quick to point out that’s not the only way the doll resembles the real child who plays with her.

“She’s like a mini-me,” Tamley explained with pride. “Because she has a hearing aid and I have a hearing aid.”

American Girl has for years offered a wide variety of accessories reflecting a range of disabilities. Arm crutches, leg braces, a sporty red wheelchair and allergy-free lunch sets. You can order a doll without hair — like a child with cancer — or one outfitted with a diabetes kit that includes insulin pumps, pens, glucose tablets and a blood sugar monitor.

“The designer who worked on that had Type 1 diabetes, and it was a really personal item for him to create,” said Stephanie Spanos, a public relations manager at American Girl. The designers developed the diabetes kit with the input of doctors, nurses and dietitians at American Family Children’s Hospital in Madison, Wis., Spanos added. “We introduced that at the very beginning of 2016 and it’s been in and out of stock all year.”

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The “Diabetes Care Kit,” designed to fit American Girl dolls, comes with insulin pumps, pens, glucose tablets and a blood sugar monitor. American Girl hide caption

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American Girl

American Girl dolls, which can cost more than $100, often come with a built-in back story, such as Nellie, the Irish immigrant orphan, or Cécile, the Creole girl growing up in 1850s New Orleans. Some activists remain irked that no American Girl comes with a built-in back story related to a disability. (A petition to add one last year, during the 25th anniversary of the Americans with Disabilities Act, was unsuccessful.)

Still, more and more mainstream companies are adding characters with disabilities to their roster of toys. Earlier this year, Lego introduced, for the first time, a figure of a little boy in a wheelchair. Significantly, he’s not in the hospital — instead, he’s part of a city park set, representing people with disabilities out in the world. And in 2013, Toys R Us added its Journey Girls line of dolls, with accessories including wheelchairs and crutches.

Is this good business? Or just good public relations?

“It’s not about PR for us,” said the chief merchandising officer of Toys R Us, Richard Barry. “Our job as a company is to make sure we have the best assortment for all kids.” Barry pointed out that Toys R Us catalog has also started including children with disabilities in its photos of kids playing with the company’s toys.

Representation of kids with disabilities was harder to find at a big-box store in the suburbs of Washington D.C., where Rebecca Cokley took me shopping. Cokley is executive director of the National Council on Disability, and the first female little person to have worked in the White House. She’s 4 feet 2 inches tall and white, with red hair and freckles. “My family is interracial and interspatial,” she said. “My husband’s average height and African American. And, so, our kids are biracial dwarf kids.”

There were all kinds of toys Cokely liked in the aisles — she’s a Lego nerd and a big fan of Batgirl, a character with her own deep connection to the disability community. But it was nearly impossible to find a single toy that represented disability. In the Barbie aisle, we found chef Barbies, vet Barbies and gymnast Barbies.

A Lego figure in a wheelchair was introduced at the 67th International Toy Fair in January 2016. He comes in the “City” set, a community of figures shown playing and working in an urban park setting. Daniel Karmann/AFP/Getty Images hide caption

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Daniel Karmann/AFP/Getty Images

“Why can’t one of these come with a hearing aid?” Cokely wondered. And Mattel has stopped making Becky, Barbie’s friend who uses a wheelchair (although you can still find Becky dolls to buy on secondary retail sites online.)

“And look — there’s Barbie’s inaccessible dream house!” Cokely said. “It’s got a working garage, but the elevator is too small for a wheelchair.” It would be tough for Becky to come over for a visit.

We had more luck in the Star Wars aisle. Cokely noticed a Luke Skywalker doll that comes with a prosthetic arm. “That counts!” she exclaimed, with a wry aside: “People do tend to claim Vader, but I don’t know if that’s a good thing or a bad thing.”

Aside from Luke, only one other toy (among many hundreds) explicitly represented a disability: Nemo. The friendly orange clownfish from the Pixar movie has one shortened fin, and the store sold a stuffed plush version.

“Both Finding Nemo and Finding Dory have been phenomenal resources for parents with disabilities,” she said. “Not only in terms of showing good examples of kids with disabilities, but also the challenges of being that overprotective helicopter parent.” She pointed out that some toys – such as My Little Pony — have been embraced by some disability activists, but that so much of the toy section represented missed opportunities.

“Why don’t we have any GI Joes that are disabled vets?” Cokely asked. “Think about that, what that would mean to a young boy whose dad’s a vet or whose mom’s a vet. To see their parents’ experience reflected in the toys — that would be massive.”

Research by social psychologist Sian Jones of Goldsmith University of London, as well as that of others, shows that all children benefit from playing with toys representing disability — it heightens empathy.

And activist Rebecca Atkinson, who runs the Toy Like Me website in the United Kingdom, told me she’d love it if every toybox included a wheelchair and a seeing-eye dog for children to play with. (Atkinson’s website points consumers towards toys that represent disability, and also creates playful images meant to inspire manufacturers, such as princesses with eye patches and scars, and superheros with tracheostomies.

This isn’t a niche market, Cokely added. One in four people will experience a disability at some point in their lives. “Everyone has a family member with a disability,” she said. “Everyone knows someone with a disability.”

And playing with toys in an imagined world where, just like in real life, people walk or use wheelchairs or have hearing aids is a world where kids can imagine other kids — disabled and otherwise — as friends.

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