Look, I used my brain a little

In response to Prof. Froomkin’s post noting that I failed to speculate about the legal implications of my experience with Dell, I’d now like to speculate on the legal liabilities facing Dell when they transferred me to a phone sex line the other day while I was on hold trying to get my computer problem fixed. (Geez, even the commenters on Prof. Froomkin’s blog are getting on my case now…)

The first thing that actually came to mind when I was writing a complaint letter to Michael Dell and the only two other Dell employees whose names I could find on the web site (I wrote the letter while I was on hold after I hung up and called back) that maybe I should blackmail them or cc my letter to major media outlets. But blackmail didn’t seem like a good idea (I just finished filling out my bar application and I have no criminal past, (other than 2 speeding tickets in 1993 and maybe three parking tickets in my entire life) so I don’t want to go back and add that I’ve been convicted of anything, so I’ll steer clear of legal problems) and it’s too much trouble to look up addresses of media outlets. (Not to mention – my story is slightly hard to believe and if, back when I was a reporter, I had gotten a letter like this, I probably would have said ‘ok, sure, whatever’ and thrown it away).

Ok, anyway, back to the legal implications:

1. Infliction of emotional distress (intentional or unintentional)

I was emotionally distressed, but not for the reason you might think. Although I am not that type of person to use phone sex, I don’t, in general, think it’s something that should be banned or outlawed. I’m a very tolerant person and I’m all about the free market economy, so if people want to get their jollies from phone sex – and other people can make money charging for it – then I have no problem with it existing.

Also, this cause of action might be hard for me to win on. For the most part, I was amused, surprised, shocked and angry. I can’t really say I was all that emotionally distressed. I was annoyed because I had already spent so much time dealing with Dell that I knew it would be another 20-30 minutes before I could get another human being on the line.

On the other hand, I was angry that this happened. (But not too angry – I mean how can you not laugh at this situation, right?) And I was emotionally distressed by the fact that something had delayed my tech support issue. So maybe I’d have a slight chance on this one.

2. Breach of contract

Dell has a duty to fulfill the terms of the warranty which covers my computer. By connecting me to a phone sex line, have they breached the duty? But I hung up the phone after a couple of minutes of listening to the phone sex line (I thought it might be a joke or public service announcement or something; I know, I know that’s a pretty stupid thought but I was kind of incredulous that this had actually happened so I kept listening for a couple of minutes), and talked to someone else about this problem, so the contract hasn’t quite been breached yet. (by the way, to anyone who is actually wondering about the computer, I sent it off to Dell…thanks to my awesome wife for letting me commandeer her computer until mine comes back…also I can’t tell you how happy I am that before law school I bought a USB backup hard drive, a little thing that I hook up to my laptop once a week and that backs everything up so as a result I only lost a day or two of stuff)

3. Negligence

There has to be some kind of breach of a duty here. I see a problem with the fact that it was not reasonably foreseeable that this would occur, but my feeble legal mind (torts was a looooooooong time ago) doesn’t know what to do with this lack of foreseeability. Is this a Cardozo thing – the fireworks going off on the train tracks? I’m really not sure. In any case, we don’t really have injury so I don’t know how the negligence would happen, unless the emotional distress is the injury.

4. A violation of obscenity or indecency laws
I don’t know anything about obscenity laws, but surely this is obscene. On the other hand, is it? What I heard was the recording that apparently happens before you get to the phone sex. The woman was saying, in a sultry voice, things like “we have the hottest girls” and “we know what you want” and “pay $xx.xx per minute” and “it’s OK if you don’t have a credit card…just press the pound sign and you can pay by personal check.” So other than her tone of voice and the things she suggested in vague terms, it wasn’t really obscene.

Are the obscenity laws stricter for minors who are subjected to obscenity? I don’t know. I’m not a minor but it’s not implausible that a minor could call and have this happen. But I’ve read enough caselaw to know that that’s not a very strong argument: “Jury, you must convict because a minor could maybe possibly happen upon this awful thing, even though the minor didn’t, in fact, come across it.”

Anything else?