The Customer Service Survey

Of Course You Don't Intend to Kill Puppies. But Hypothetically Speaking....

by Peter Leppik on Fri, 2018-05-11 13:55

Recently, Sun Country Airlines, formerly a Minnesota-Nice local favorite reconstituted as a Nickel And Dime Ultra Low Cost carrier, stranded a couple planeloads of customers in Mexico because of a blizzard in Minneapolis.

Cancelled flights are not all that unusual in Minnesota during the winter, but Sun Country's strategy for dealing with it was. They simply refunded the passengers' remaining airfare and told them to find their own way home. The (now former) customers were not offered any meals or lodging, nor any assistance in finding another way home.

Nor did Sun Country offer to book those passengers on another Sun Country flight: as the airline patiently explained to passengers and the media, those were the last Sun Country flights from Los Cabos and Mazatlan for the season and the airplanes were needed elsewhere. And because there were no more flights, there were no Sun Country representatives on the ground to help passengers, either.

Naturally this didn't go over well. The couple hundred dollars for the refunded tickets (remember, Sun Country is now an Ultra Low Cost Carrier) wasn't even remotely enough to book a last-minute flight on another airline. It's likely that some passengers had to borrow from credit cards or friends just to get home.

The crazy thing is, Sun Country was probably within its rights. The company's Contract of Carriage (a 30-page document almost no passenger, including myself, has read in detail) only says is that the airline will try to provide transportation if they cancel a flight "to the extent reasonably possible." In this situation, someone at the airline made the decision that it would be too hard or too difficult to figure something out. So they decided to exercise their option to punt.

This highlights the huge gap between what companies are legally or contractually required to do, and what their customers expect them to do. Short of war or bankruptcy, no passenger expects that their airline will just leave them sitting in an airport in Mexico with no money, no ticket home, and no assistance. But Sun Country wrote its contract so it could do exactly this, and I'm sure that every other airline does exactly the same thing.

Nor are the airlines alone. These sorts of one-sided, unreasonable terms of service are everywhere, from Wells Fargo claiming its contract prohibits customers from suing it even when the reason for the lawsuit is because the customer never agreed to the contract, to Facebook giving itself permission to track everything you do and everywhere you go, online and off, and use that information in almost any way it wants.

It's fair to assume that these contracts go far far beyond what customers think they're signing up for when they click "agree." Not even the companies think these contracts are reasonable, judging from how quickly they back down from the PR stink when they actually try to exercise these rights they've given themselves: after a few days of bad publicity, Sun Country announced it would reimburse customers for the cost of getting home. Wells Fargo eventually said it wouldn't force customers with fraudulent accounts into binding arbitration. And Facebook admitted that letting people's personal profiles into the hands of shady political operatives was a mistake.

The problem is that Terms of Service agreements are generally written by lawyers, and the job of a lawyer writing a contract is to reduce or eliminate the chances that the client will be sued. So when a company is allowed to write its own ToS agreement without any negotiation with an actual customer, the lawyer will cover every base possible and write it so the customer agrees to everything that might possibly happen whether or not the company plans to operate that way.

(I can just imagine a lawyer at a conference table advising his client, "Of course you don't intend to kill your customers' puppies. But hypothetically speaking, some day a customer's puppy might die because of some mistake the company made, and the customer could claim that you meant to do it, or even enjoyed it. Juries love puppies, so we should head this off and just put in the contract that the customer gives us permission to maliciously and gleefully murder his puppy.")

When a crisis comes up it's tempting for a company to think it's OK to actually do the things it wrote into the terms of service. If leaving passengers stuck in Mexico gets your airline out of an expensive pickle and you're legally allowed to do it, it's hard to say no. If you can interpret your customer contract in a way that avoids years of litigation around millions of fraudulent accounts, the temptation will be extreme. But of course this will only make things worse, because at the end of the day meeting your customers' expectations (to say nothing of regulators' and lawmakers' expectations) is far more important than merely staying within the bounds of what's legally required.

The solution is both obvious and very difficult in the real world: Write terms of service agreements according to how you intend to treat customers, not according to what will minimize legal risk in every possible situation. If you don't give yourself the contractual right to abandon customers in Mexico, you're much less likely to actually do it when the crunch happens.

This requires having someone to advocate on behalf of customers, someone to ask the lawyers, "If you don't intend to kill my puppy, why give yourself the right to do it?" With the recent Facebook data leaks and the new GDPR regulations in Europe, there's been more of a spotlight on how long, unreadable, and egregious many of these contracts really are. So maybe we're in a moment when consumer contracts can be rewritten to reflect the customer experience companies intend to provide, rather than giving them legal cover for almost any sort of misbehavior.

One can only dream...

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