Lawsuit Says Bank of America Stifles Free Speech with Provision that Prohibits Users from Badmouthing Bank

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A proposed class action alleges a provision in Bank of America’s online banking service agreement that prohibits customers from making any statement that might expose the bank to “liability, reputational harm or brand damage” is illegal and designed to “prop up” Bank of America’s stock price while denying the public accurate information they may need to make informed decisions. 

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The 12-page lawsuit emphasizes that California prohibits any contract or proposed contract for the sale or lease of consumer goods or services from including a provision whereby the consumer waives their right to make any statement regarding the seller or lessor concerning the goods or services. The case contends that the non-disparagement provision in Bank of America’s online banking service agreement violates California law given that it “stifle[s] [consumers’] right to free speech” and the right of citizens in the state to “hear lawful discourse.” 

“Defendant’s strong-arm tactics to silence injured parties were and continue to be intentionally exercised to protect Defendants’ self-promoting public image for commercial and other benefits,” the complaint alleges. 

As the case tells it, much of Bank of America’s business relies on “the popularity of their product offerings nationwide.” As such, the bank has a “significant incentive” to keep negative publicity, including negative online reviews and comments, to a minimum, the suit says. Though the California Civil Code protects the right of citizens to voice their opinions, observations and experiences about the products and services they receive in the state, Bank of America, under the threat of suspension of a user’s access to online banking services, aims to restrict negative statements from customers as a matter of business strategy, the filing alleges. 

In particular, the suit says, the Bank of America online banking service agreement at issue provides that by applying for, activating, downloading or using any of the bank’s services, users are bound by a provision that bans them from using the services in any manner that exposes Bank of America to “liability, reputational harm or brand damage.” 

Moreover, the bank maintains that it alone determines what amounts to reputational harm or damage and threatens to penalize any user who runs afoul of the agreement by terminating or suspending their use of its services, the complaint adds. 

“But Defendants’ efforts to silence their customers and prospective customers is clearly prohibited by California law,” the lawsuit asserts. 

The suit looks to represent all persons residing in California who applied for, enrolled in, activated, downloaded or used any Bank of America online banking services, including those accessible through the bank’s website. 

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