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Automatic renewal clause

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An automatic renewal clause is used in the insurance and healthcare industries

An automatic renewal clause (also referred to as an evergreen clause), is activated towards the end of the contractual period whereby it automatically renews the terms of an agreement except when the contract is terminated (through mutual agreement or contract breach), or one of the contracting parties has sent a letter of contract cessation to others prior to the end of the period.[1][2][3] An example of the clause is illustrated in the following quote: “Each Term shall automatically renew for subsequent periods of the same length as the initial Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Term."[4]

Firms that are involved in contracting for multiple years generally use this clause more often when compared to other firms.[3] Also, firms engage in this legal process to gain economic benefits and reduce their costs.[1] Examples of industries in which it is generally used include insurance, digital media, healthcare, telecommunications, fitness, mining and so forth.[1][5]

Legal complications of the clause inculcate the advance notice time period, extent of contract transparency and grounds for contract termination.[1][6] The clause may be unfairly used by businesses for increased revenues and profitability.[2] Thus the regulation of these clauses is imperative, however, the process of implementing it and the penalties of its misuse vary across different countries and at times, states as well. Countries such the United States, United Kingdom and Australia have enacted laws governing this clause.[1]

Economic rationale

Further information: Economic theory

The Neo-classical model of Economics embedded in the “rationality axiom” assumes economic agents to be rational decision makers. According to the theory, these economic agents leverage the costs and benefits of given options and then choose the option which maximizes their net utility or profitability.[7]

In line with the above theory, economic agents would consider the costs of contract renewal, (re)negotiation and termination prior to the decision making-process . Any changes in the terms of agreement of a contract might result in “transaction costs” which may or may not be greater than that of renewal of the same terms of agreement. Nonetheless, costs are incurred in both the situations. However, contracts cease to apply towards the end of the contracting period thus no costs are borne in the case of contract termination.[1]

The automatic renewal clause becomes an economically viable option in the case of contract renewals. In the case of firms contracting for single periods, contract termination is the optimal decision and the one that the rational consumer is likely to make as the contract would itself cease to exist without any costs. However, firms that intend to contract for multiple periods with each other and given that the terms of agreement would apply in each period, might find that they have to incur costs to renew the contract each time it has been terminated. Thus, in this situation firms might find that the automatic renewal clause is the better solution as no costs have to be incurred for contract renewals in each period except only once to terminate the clause.[1]

Another economically significant aspect of the clause is its impact on the firm’s profitability.[1] Contract termination may negatively impact a firm’s earnings which the management may cater to by increasing the costs of contract termination for consumers.[8] In line with the traditional economic theory, a rational economic actor would opt for the economically superior alternative which in this case would be contract renewal.[1][9]

Further information: Legislatures of the United Kingdom and United States legislation

The enforceability of the automatic renewal clause varies between countries.

United States

The legislation of the United States encompasses a federal and a state jurisdiction. States jurisdictions vary in terms of the regulation of the clause.[10] Some states such as Florida, New York , Michigan, California and Illinois have enacted statutes governing the evergreen clause while others such as Louisiana do not have any such statutes.[1][11][12]

California is a heavily populated and economically significant state. It hosts a number of e-commerce, software development and digital media services' companies.[13] In line with the California Business & Professional Code 17600-06 statute, the clause is enforceable in subscription services' contracts.[14] It details that contracts should be “Clear and conspicuous” which entails "larger in size or contrasting in type, font, or color than surrounding text and in close proximity to the signature."[15]

The Automatic Contract Renewal Act (815 ILCS 601/1) of Illinois emphasizes on contract transparency,"where such contract automatically renews unless the consumer cancels the contract, shall disclose the automatic renewal clause clearly and conspicuously in the contract, including the cancellation procedure", and communication of contract renewal to customers,"Written notice shall be provided to the consumer no less than 30 days and more than 60 days before the cancellation deadline pursuant to the automatic renewal clause", as legally customary for organizations employing this clause in their contracts. The applicability of the act does not extend to "business-to-business contracts" or "banks, trust companies, savings and loan associations, savings banks, or credit unions licensed or organized under the laws of any state or the United States, or any foreign bank maintaining a branch or agency licensed or organized under the laws of any state of the United States, or any subsidiary or affiliate thereof."[6]

United Kingdom

The clause is regulated under the Consumer Rights Act 2015 in the United Kingdom which "aims to protect consumers against unfair contract terms and notices". Just as in the case of the Automatic Contract Renewal Act (815 ILCS 601/1) of Illinois, this act also emphasizes on contract transparency with regards to contract duration and cancellation, "Your customer needs to know how long their contract is due to run and how to cancel it (if they don’t want it renewed)". It highlights that "fair terms" should be employed in the contract to prevent consumers from harm. Examples of the unfair terms, listed below, have also been described in the act.[16]

  • “This will be a rolling contract that will automatically renew unless you contact us 24 hours prior to renewal in order to cancel.”[16]
  • “After expiry of the initial term, 3 months’ notice of cancellation is required…”[16]

The above two examples link to the provision of insufficient information to the consumer and inclusion of "Over-lengthy notice periods" in contracts.[16]

Commercial uses

Commercial contracts in the leasing, digital media, insurance, telecommunications and fitness industries often inculcate the evergreen clause in their terms of agreement.

Lease contracts

Main article: Lease

The clause is employed in Business to consumer, business-to-business and business-to-government lease contracts.[17][18]

Twin Metals has an auto-renewal mineral lease for the Superior National Forest of Minnesota

Twin Metals, a U.S based mining conglomerate, has signed multiple, auto-renewal mineral leases with the Federal Government of United States. One of which allows the conglomerate to mine in the Superior National Forest of Minnesota for copper and other metals.[19] During 2016, the United States Department of Agriculture noted concerns regarding the environmental damage in the Superior National Forest as a result of mining. This led to a point where an appeal was put forth for the prohibition of mining practices in the "234,000 acres" of Superior National Forest land for "20 years". However, the presence of the clause permitted Twin Metals to legally retaliate against the decision.[18]

Radio Rentals, a U.K. based consumer goods and services company specializing in appliance retail and rental,[20] adopted a 2-3-4 years rental policy whereby consumers who were unable to afford an item rented it for a period of 2, 3 or 4 years. The commercial contract was inclusive of evergreen clause and detailed that the rented item must be purchased towards the end of the rental period to prevent the contract from renewing automatically for another rental term.[17]

Digital Media

Main article: Digital media

A number of digital media companies have been reported to adopt a unique marketing approach . In line with it, consumers are allowed to use the services offered for a limited period of time without any costs. Towards the end of this period, unless cancelled by the consumer, they are automatically subscribed to the service.[21]

Amazon Prime is an auto-renewing subscription service

Amazon.com, an American e-commerce multinational corporation, offers a multitude of online services such as Amazon Prime, Amazon Web services, Alexa and so forth to its consumers.[22] Amazon Prime is a paid subscription service which provides consumers with exclusive content and services and these subscriptions renew automatically towards the end of the period.[23] A similar business model has been adopted by online audio services' companies such as SoundCloud and Apple Music[24] [25]

Insurance policies

Main article: insurance

In terms of insurance policies, the clause is widely used by companies such as UnitedHealth Group Incorporated (USA), Allianz SE (Germany), Nippon Life Insurance Company (Japan), Life Insurance Corporation of India, Zurich Insurance Group Ltd (Switzerland), MLC Limited (Australia) and so forth.[26][27][28][29][30] Given the types and coverage of insurance policies, certain insurance contracts such as property and medical have been noted more by media agents -such as newspapers- than others to inculcate this clause.[2][30] The notice transmission and active cancellation periods of auto-renewals for these policies vary by country and region. In some cases, insurance companies may also increase the monthly payments for certain types of insurance policies in successive renewal periods.[5]

Miscellaneous

Mobile phone services in the telecommunications industry and gym memberships in the fitness industry are also auto-renewed.[1]

In 2019, Mobile telecommunications network (MTN) company launched a subscription based mobile phone service in South Africa. The service was a 1MB mobile data plan that renewed automatically charging consumers "40c per megabyte every time they ran out of data" . Following this, it was highlighted that this was simply another form of an Out-of-Bundle Data Usage plan. As a result of the consumer backlash, the company was forced to withdraw its data plan.[31]

Some gyms may renew their long term memberships with an advance notice of less than a month

Ashbourne Management Services is a UK based company mainly involved in the fitness industry. The company overseas and offers services for the development and management of gym contracts and collection of gym subscription fees.[32] The company was found to renew its long term contracts (usually more than 12 months) with an advance notice of less than a month. Complaints were filed against this practice by two individuals which were deemed as just by the court with the ruling in the favor of the claimants.[33]

Key Issues

Termination

Contracts inclusive of the auto-renewal clauses can be terminated on the grounds of contract breach, mutual agreement of parties and some peculiar circumstances[2]

The parties may wish to renegotiate or change the legal agreement. This could be achieved by dissolving the current contract and drafting a new one with the renegotiated obligations. In the case where one party has failed to honor its contractual obligations, the contract would terminate regardless of the clause and in some cases, compensations and settlements might be due. It should be noted, however, that some countries have laws governing the time length of contractual breach after which the contractual relationship can be voided.[1] Lastly, contracts can also be cancelled on the basis of certain circumstances in areas such as healthcare.[2]

The contract will also be cancelled if the one party informs the other of its intent to discontinue the contractual relationship within the advance notice period detailed in the terms of agreement.[34] Generally, this letter of intent is either provided some time before a specified number of days prior to the end of the contract, "This agreement shall automatically renew for another one (1) year term, unless either party provides notice to the other of its intent to terminate this agreement not less than thirty (30) days before the end of the then current term." or during a specified number of days before the end of the contractual period, "This agreement shall automatically renew for another one (1) year term, unless either party provides notice to the other of its intent to terminate this agreement within thirty (30) days of the end of the then current term." The letter of intent can be issued at any point in time before the specified number of days in the first case, while in the second one it must be issued within the highlighted number of days.[35]

Deceptive practices

Apart from the legalities associated with the clause, a major issue linked to its usage is that of deceptive practices such as consumer fraud, unjust enrichment and violations of trade practices.[1][4] Companies often inculcate this clause in their contracts to increase their revenues and profitability. Often, it is used in conjunction with other unfair trade practices such as overpricing.[4]

This is largely due to contract transparency whereby firms do not communicate enough or explicit information to consumers regarding the consent and advance notice time period of the auto-renewal clauses present in their contracts or subscriptions. As a result, consumers feel deceived and at an unfair advantage when their contracts have been auto-renewed without their agreement [4]

Stericylce's auto-renewal practices were deemed as unethical and unfair for consumers.

Stericycle

Main article: Stericycle

Stericycle is multinational corporation which specializes in health care specifically the waste disposal of medical and pharmaceutical products.[36] In 2017, the company was accused of inflating it prices for a particular segment of its customers and auto-renewing their contracts without adequate contract transparency.[37] The customers were largely government employees. As a result the government of Illinois had to bear losses because of the company's unethical business practices.[38] In line with the Consumer Fraud and Deceptive Business Practices Act,[39] Stericycle was penalized in excess of millions not only for the losses but also for the violation of the act.[40]

References

  1. ^ a b c d e f g h i j k l m Kovač, Mitja; Vandenberghe, Ann-Sophie (2015). "Regulation of Automatic Renewal Clauses: A Behavioural Law and Economics Approach". Journal of Consumer Policy. 38 (3): 287–313. doi:10.1007/s10603-015-9286-4.
  2. ^ a b c d e Prives, Glenn (2013). "Evergreen Clauses: Be Aware of the Pitfalls". Journal of Business Law and Governance. 6(1): 1-3.
  3. ^ a b Curry, William Sims (2008-11-05). Contracting for Services in State and Local Government Agencies. CRC Press. ISBN 9781420078336.
  4. ^ a b c d "Beware The 'Evergreen Clause,' Automatic Renewal".
  5. ^ a b Ellson (2010). "Renewal without consent is many insurers' policy. The Times".
  6. ^ a b Automatic Contract Renewal Act, 815 ILCS 601/1 USA. (2004)
  7. ^ Goodwin, Neva; Harris, Jonathan; Nelson, Julie; Rajkarnikar, Pratisha; Roach, Brian; Torris, Mariano (2018). Microeconomics in Context. London: Routledge. ISBN 978-1138314566.
  8. ^ Sovern, Jeff (2005). "Towards a New Model of Consumer Protection: The Problem of Inflated Transaction Costs". doi:10.2139/ssrn.648052. ISSN 1556-5068. {{cite journal}}: Cite journal requires |journal= (help)
  9. ^ Posner, Richard A. (2011). Economic analysis of law. Aspen Publishers. (8th ed.). New York: Aspen Publishers. ISBN 9780735594425. OCLC 671238458.
  10. ^ Scheb, John M. (John Malcolm), 1926- (2002). An introduction to the American legal system. Scheb, John M., II, 1955-. Albany, NY: West/Thomson Learning. ISBN 0766827593. OCLC 46683601.{{cite book}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
  11. ^ "Statutes & Constitution :View Statutes : Online Sunshine". www.leg.state.fl.us. Retrieved 2019-05-16.
  12. ^ "Automatic renewal provision of contract for service, maintenance or repair unenforceable by contractor unless notice thereof given to rec..." NY State Senate. 2019-01-22. Retrieved 2019-05-16.
  13. ^ "www.ca.gov | California State Portal". Retrieved 2019-06-06.
  14. ^ "2011 California Code :: Business and Professions Code :: DIVISION 7. GENERAL BUSINESS REGULATIONS [16000 - 18001] :: ARTICLE 9. Automatic Purchase Renewals :: Section 17600". Justia Law. Retrieved 2019-06-06.
  15. ^ Muhs, John (September 2018). "Evergreen Clauses" (PDF). Michigan Bar Journal: 22–25.
  16. ^ a b c d The Consumer Rights Act, J Bus L159. (2015)
  17. ^ a b Silk, Marty (2017-03-29). "'Rent now, pay forever'? Radio Rentals faces class action over misleading consumers". The Sydney Morning Herald. Retrieved 2019-05-16.
  18. ^ a b Du, Susan. "A Chilean mining company lays claim to Minnesota's water". City Pages. Retrieved 2019-05-16.
  19. ^ Kraker, Dan. "Trump administration gives Twin Metals new lease on copper-nickel mining". www.mprnews.org. Retrieved 2019-06-06.
  20. ^ "About Us | Rental Information | Radio Rentals". www.radio-rentals.com.au. Retrieved 2019-05-16.
  21. ^ Koren, Grinshpoon(2018). "License to Bill: The Validity of Coupling Automatic Subscription Renewals with Free Trial Offers by Online Services". Fordham Intellectual Property, Media and Entertainment Law Journal. 28 (2): 301–352.
  22. ^ "About Amazon". US About Amazon. Retrieved 2019-06-06.
  23. ^ "Make Everyday Better With Prime". Amazon. 2019.
  24. ^ "About SoundCloud - Listen to music". SoundCloud. Retrieved 2019-06-06.
  25. ^ "Apple Music". Apple (Australia). Retrieved 2019-06-06.
  26. ^ "UHG - Unified Healthcare Group - connecting business & healthcare". Unified Healthcare Group. Retrieved 2019-06-06.
  27. ^ "Life Insurance Corporation of India - Home". www.licindia.in. Retrieved 2019-06-06.
  28. ^ "Home AU | Zurich Australia". www.zurich.com.au. Retrieved 2019-06-06.
  29. ^ mlc. "Superannuation - Super Accounts, Funds & Products | MLC Australia". www.mlc.com.au. Retrieved 2019-06-06.
  30. ^ a b Commission, c=au;o=Australian Government;ou=Australian Government Australian Securities & Investments (2018-06-25). "Renewing your insurance". www.moneysmart.gov.au. Retrieved 2019-06-06.{{cite web}}: CS1 maint: multiple names: authors list (link)
  31. ^ "MTN has abandoned plans to opt all its users into a 40c 1MB "bundle" from this week". BusinessInsider. Retrieved 2019-06-06.
  32. ^ "Club Management Software | Ashbourne Membership Management". Ashbourne. Retrieved 2019-06-06.
  33. ^ Armstrong, CMS Cameron McKenna Nabarro Olswang LLP-John. "Warning to membership traders as High Court rules that terms in gym contracts are unfair | Lexology". www.lexology.com. Retrieved 2019-06-06.
  34. ^ "Is Your Automatic Renewal Clause Enforceable? - Corporate/Commercial Law - United States". www.mondaq.com. Retrieved 2019-06-06.
  35. ^ "Law 4 Small Business (L4SB) | Albuquerque, NM Business Law Attorneys & Business Lawyers". Law 4 Small Business, P.C. (L4SB). Retrieved 2019-06-06.
  36. ^ "Overview". Stericycle. 2019.
  37. ^ "The Class Action Chronicle - Summer 2017". JD Supra. Retrieved 2019-06-06.
  38. ^ "Lexology". www.lexology.com. Retrieved 2019-06-06.
  39. ^ Consumer Fraud and Deceptive Business Practices Act, 815 ILCS /505/1 , USA.
  40. ^ "Clear as Mud: Illinois Courts Continue to Grapple With The "Adequacy" Of Consideration for Non-Compete Agreements". The National Law Review. Retrieved 2019-06-06.
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