by Paul Alan Levy
New Jersey resident Nadiya Oliver was deeply frustrated by her experience with an Illinois company called Fertility Bridges, which sells services connecting couples that are unable to conceive a child on their own with women who are ready to donate their eggs in return for financial assistance with the resulting burdens. After searching the Fertility Bridges web site, identifying what appeared to be an ideal donor, and receiving confirmation from Fertility Bridges that the donor had confirmed her willingness to proceed, Oliver wrote a large check to Fertility Bridges. However, as soon as the company had received Oliver’s payment, Fertility Bridges went dark concerning the donor's availability instead of moving forward with an egg donation. Then, just after Oliver’s check had cleared, Fertility Bridges admitted that the donor was unwilling to go forward with the procedure, without giving any reason, and suggested that she choose another of the company's available donors. But when Oliver asked for a refund of the entire fee that she had paid Fertility Bridges, the company temporized for a while, and then refused. In the circumstances, Oliver suspected that she had been the victim of a bait and switch.
Fertility Bridges’ Invocation of Its Non-Disparagement and Mediation Clauses
Oliver took her complaints about Fertility Bridges to the Better Business Bureau, and in response received a threatening email from Fertility Bridges:
"You directly violated our legal agreement by attempting to post an online review. As such, we are setting the plans in motion for a multi-million dollar defamation case against you. . . . unless you withdraw your unwarranted BBB complaint or any illegal online reviews, we will proceed at lightening [sic] speed in a defamation case against you to minimize as much damage as possible. We have your signed legal agreement clearly stating you will NOT post online reviews."
Fertility Bridges followed up with more emails emphasizing that Oliver’s agreement with Fertility Bridges required mediation and binding arbitration instead of filing a lawsuit over any complaints that Fertility Bridges had violated its agreements with her, and that the contractdesignated San Francisco as the venue and California law as controlling. Fertility Bridges announced that it was invoking mediation over the contentions in Oliver’s public criticism and warned Oliver that she had to participate in the mediation out in California, paying half the predicted $10,000 in costs, or risk a default ruling against her:
"[Mediators] are typically $300 an hour or more and they must account all the hours they spend on the case. Mediation could cost $10,000 and you must be prepared to pay your share."
"This is our attorney's response to your claim below. . . . You can get an idea of all the hours this may all take on behalf of the mediator and what it will cost you. Mediation could cost $3,000-$10,000 or more."
In case Oliver didn’t get the hint, Fertility Bridges explained that keeping her complaints quiet could well be cheaper than putting up with the expensive procedures that it claimed would be needed before Oliver could go public with her complaints:
"It is probably in your best interests to move on and find another donor and save your money for your future child's education and not spend it on mediation . . .."
"If you feel that this is NOT an investment you would like to make and you would like to move on with your family building needs and step away from this time consuming and expensive process . . .."
At that point, Oliver came to Public Citizen for assistance.
The Provisions of the Fertility Bridges Agreement
The key provisions in Oliver’s written agreement with Fertility Bridges were as follows:
"M. ONLINE REVIEWS
"Because of the extremely private and emotionally delicate nature of the egg donation business Recipients agree NOT to post any online reviews anywhere on the Internet without first presenting it to Fertility Bridges for legal review. . . .
"N. APPLICATION OF LAW
"Recipients agree that this Agreement will be governed and interpreted by California jurisdiction. . . .
"Q. SETTLEMENT OF DISPUTES
"Recipients agree to mediation to resolve any disputes. If mediation does not resolve the issues then Recipients agree to binding arbitration to settle disputes [and] in California Jurisdiction. . .. "
These rules undercut Fertility Bridges’ threat to sue for merely posting reviews online, for several reasons. First, given the (oddly-worded) provision subjecting the agreement to California law, even if the clause were construed as forbidding disparaging reviews without prior approval, the clause would be forbidden by the new California law that prevents companies from imposing non-disparagement clauses in consumer agreements. Second, Fertility Bridges itself had insisted on using mediation and arbitration to resolve any “disputes,” and this was a two-way clause that limited its own right to sue, and not just the consumer’s right. And third, the non-disparagement clause itself does not forbid reviews, it just requires submission “for legal review,” and does not even require the consumer to withhold publication pending a favorable response from the “legal review.”
Fertility Bridges Drops Its Legal Claim When Challenged
We wrote to Fertility Bridges on Oliver’s behalf, attaching a copy of her planned public statement to allow “legal review” and gave Fertility Bridges the courtesy of ten days to point out anything in the review that was false or otherwise improper. We received a series of fulminating responses in which Fertility Bridges apparently tried to argue that, although the agreement did not strictly forbid Oliver from speaking publicly, it required at least that she submit her disagreements to mediation before publishing any specific criticism. (It also suggested, for the first time, that the reason why Oliver's intended egg donor withdrew was that she had unexpectedly become pregnant herself). In the end, however, it admitted that the contract did not even require that, but only gave Oliver the opportunity to receive corrections that could protect her from being sued for defamation. It was also apparent that all the talk about mediation was just a sham intended to make it appear to Oliver that it would be too expensive to get through the process required before she could voice her criticisms publicly. But at the same time, Fertility Bridges made clear that it did not have any lawyer dealing with the dispute (hence the threat of imminent libel litigation was pure bluster) and did not have any intention of paying a lawyer to perform the “legal review” that was the excuse for the prepublication submission requirement in the “online reviews” clause of the agreement, saying only that if Oliver published a review, it would be at her own risk of being sued for defamation.
And from our perspective, raising the possibility of suing for defamation is far less problematic, although certainly the company’s unwillingness to specify what about Oliver’s post that it claims is false suggests that it is interested more in intimidation than in the truth. Defamation law allows a company to seek legal redress if a customer makes false statements of fact that truly causes harm to its reputation and its business. But companies don’t need non-disparagement clauses for that – those clauses are only needed to suppress true criticisms and consumer opinions.
Nadiya Oliver was fortunate that, for some reason, a company based on Illinois chose to subject its relationship to California law. But for that clause, Oliver could have been subject to the non-disparagement clause and to the vagaries of how the clause might have been construed in Illinois or New Jersey. We can only hope that Congress passes the Swalwell-Issa bill that is now pending in Congress, which would wipe out such non-disparagement clauses nationwide.
The Substance of Oliver's Complaints
Nadiya Oliver has published her statement about Fertility Bridges here.