Can they sue me or silence me for a review?

What should I look for in a non-disparagement clause?

Read the exact words. A clause that stops "any negative statement to anyone" is different from one that covers only false statements, or only public posts. Whether a given clause is enforceable depends on its wording, on whether the contract is a form contract, and on the law that applies. Nobody can answer that without the clause in front of them.

Check:

• What it covers: reviews, social posts, statements to the press, statements to regulators.
• Whether it comes with a penalty, such as a fee, a damages amount or a loss of a refund.
• Whether the contract is a standard form the seller used for everyone.
• Which state's law, and which forum, the contract names.

Bring the clause and the full contract to a lawyer.

Is a gag clause void under the Consumer Review Fairness Act?

A gag clause may be void, depending on the clause's wording, the contract and the exceptions.

Scope. The Consumer Review Fairness Act, 15 U.S.C. 45b, makes certain provisions in a form contract void. A form contract is one with standardized terms used by a seller of goods or services and imposed on an individual without a meaningful opportunity to negotiate. Employer-employee and independent-contractor contracts are excluded. The provisions that are void are those that restrict, penalize, or take intellectual property rights in, a "covered communication" by an individual who is a party to a form contract ^[N1].

Who it covers. "Individual" is not defined in the text read, and the text has no business-purpose limit ^[N1]. The FTC's business guidance on the Act does not address business-to-business buyers ^[N1]. So this site does not say the Act covers or excludes someone who bought for a business. A lawyer can.

Exceptions. The Act has exceptions, including for confidentiality duties, defamation-type claims and trade secrets ^[N1]. A false statement of fact is not made safe by this Act.

May apply. If your contract is a standardized form and the clause penalizes an honest review, the Act may apply to that clause.

Where to check. The statute text and the FTC's business guidance on the Act ^[N1]. Then a lawyer.

Can I be sued for defamation if I post a warning about their sales tactics?

Anyone can file a suit. Whether a defamation claim would succeed depends on whether your statement is a provable false statement of fact, or true, or opinion, and on the facts.

Scope. In California, a jury instruction for private plaintiffs says the defendant need not prove a statement true in every detail, so long as it is substantially true. The notes say that truth is an absolute defense to a libel action ^[N6a]. The libel and slander statutes apply only to statements that can be proved true or false, and rhetorical hyperbole gets protection. But "in my opinion he is a liar" can still imply a false fact ^[N6a]. In cases involving public figures or matters of public concern, the plaintiff carries the burden of proving falsity ^[N6a].

Anti-SLAPP. California has a "special motion to strike" for suits brought mainly to chill speech about an issue of public interest. The statute covers statements made in a public place or forum about an issue of public interest. A defendant who wins the motion is entitled to recover attorney's fees and costs. If the court finds the motion frivolous or meant only to delay, the plaintiff can recover fees instead ^[N6b]. Whether it fits a review of a coaching sale is a lawyer's question.

May apply. Both may apply to a California case. Other states have their own rules.

What to do. Describe what happened to you, with dates, rather than what you think the seller meant. Keep the documents that back it up. If a seller has threatened you, or you signed a non-disparagement clause, talk to a lawyer before you post.

Will they make me sign an NDA before they give me a refund?

Some sellers may offer a refund or settlement only if you sign a release or a confidentiality clause. Whether a given one is enforceable cannot be told from outside, and this site will not predict it.

What a refund paper can contain:

• A release, which gives up claims you might have.
• A non-disparagement clause.
• A confidentiality clause.
• A statement that you agree you owe nothing, or that the seller admits nothing.

What to do:

• Ask for the text in writing. Do not sign on the spot.
• Read what you give up. The Consumer Review Fairness Act lists exceptions that include confidentiality duties; how they apply to a refund agreement is a lawyer's question ^[N1].
• Ask the lawyer whether the paper limits what you can tell a regulator.
• Keep the original contract and your records. How do I write a cancellation letter without admitting anything?
• If the offer expires today, ask why. A real refund offer survives a night's sleep.

What to do next

Read your clause, keep your record, and put requests in writing.

Write the cancellation letter

Where to complain

Back to the After You've Signed overview

Tell us what happened in the room

Who writes this site

Coached Into Debt is written by the organization, with no personal byline. More on who runs it. Who runs Coached Into Debt, and why?