Blackmail, or just leverage?
February 18, 2010 7:56 AM   Subscribe

I'm not sure there oughta be a law against this. Is there?

I put down a deposit at my kid's daycare. We left the school after one last incident too many. The owner is saying that we did not give the advance notice he normally requires to recover our deposit.

We left for no small reason. If we do not recover our deposit, I plan to be vocal about the reason, and our unhappy history there, on, and possibly even a dedicated Web site that would return for a Google search.

You are not a lawyer, or at least not my lawyer, but do you know enough about blackmail law to say whether warning the owner of this would qualify? I get the principal behind protecting people from blackmail, but the line confuses me, as it would seem more win-win (or less lose-lose) to be able to lay out all the cards so everyone would know what would happen next.
posted by troywestfield to Law & Government (32 answers total)
What you seem to think is blackmail is not blackmail.
posted by dfriedman at 7:58 AM on February 18, 2010 [3 favorites]

I am not a lawyer, but I'm pretty sure this isn't black mail. Did you sign some form of contract? What does it say about the deposit?
posted by Think_Long at 7:59 AM on February 18, 2010 [2 favorites]

that's not blackmail, but do be careful about how you deliver this - it would be easy to set the owner on a path of indignation if it comes out in an inflammatory fashion.

i would also not intimate that giving the deposit back will keep you from warning other parents. if the reason you're not staying there is because your kid was endangered, you should speak up about the place, regardless, to protect others from bad practices.

there is a regulating body for daycare in your area, and you may want to call them and ask about the conditions required for reporting non-compliance, too.
posted by batmonkey at 8:09 AM on February 18, 2010 [1 favorite]

Instead of creating websites or going on social interaction sites like Yelp and posting nasty things about the daycare center (which quite honestly just makes you look like a bit of a whiner IMO, especially as you are just posting your side of the story), why don't you ask for a personal meeting with the director of the daycare and discuss the situation with her/him without making threats about posting details of your unhappy history?

Explain your misgivings and the reasons why you pulled your kid without giving notice and find out if there is some kind of sensible middle ground you can both reach.

Just what does a deposit at a daycare center cover anyway?
posted by 543DoublePlay at 8:10 AM on February 18, 2010 [1 favorite]

You gave him some money. It is now his money, not your money. You want it back, but he won't give it to you.

What blackmail is there?

I've "been there done that" been wildly pissed over someone taking my money & then not giving it back. At best, this is a civil dispute and you can sue him over the money, but if you have a contract that states what he states, I doubt you'd have any luck.
posted by MesoFilter at 8:11 AM on February 18, 2010

I think the blackmail is what the OP is going to do if he doesn't get his money back.
posted by Solomon at 8:16 AM on February 18, 2010 [1 favorite]

Yeah, this isn't really blackmail. This is really no different than, say, posting a negative review about a former landlord who claimed a right to retain a security deposit. Whether you will get what you want from that course of action is, of course, another matter. But people do this sort of thing all the time.

I do, however, nth the advice to contact the regulating body. If this is a matter of the safe operation of the daycare, you should speak up whether you get the deposit back or not.

posted by devinemissk at 8:18 AM on February 18, 2010

Are you operating on a handshake or did you sign something? When all else fails read the contract.
posted by fixedgear at 8:18 AM on February 18, 2010

I think "I'll tell everyone" will be fairly clear even if you don't make it explicit.
posted by salvia at 8:20 AM on February 18, 2010

You should contact a competent lawyer in your jurisdiction. You should easily be able to find one that will give you a free consultation.
posted by jedicus at 8:20 AM on February 18, 2010

I think the OP is suggesting that s/he might say to the daycare owner: give me some money (the deposit) or I will make public facts that will make you look bad. The OP is asking if this threat might constitute blackmail.

I am no legal expert, but this is not wildly different from a quickly-googled definition of blackmail ('Blackmail is the crime of threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand made upon the victim is met.' from here).
posted by beniamino at 8:23 AM on February 18, 2010

Stick to the facts.
posted by jeffamaphone at 8:25 AM on February 18, 2010 [1 favorite]

"Blackmail is the crime of threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand made upon the victim is met."

A key element is that the demand must be for something to which the blackmailer does not believe he has a legal right, i.e. the demand must be unwarranted. It's probably more important that the belief in that legal right be reasonable than it be strictly correct, but this may vary from jurisdiction to jurisdiction.

So right off the bat, you've got that working for you. Demanding something to which you believe you have a right, and threatening legally-permissible action if said demand is not met is not blackmail.

But you have two things working against you, specifically your contract, and the issue of defamation.

You need to read your contract carefully, or better yet, have a legal professional read it for you. Depending on how the deposit language is structured, the day care operator may be entirely within his rights to keep your deposit, as leaving early may constitute a breach which renders the deposit forfeit. This would mean that even if what you are threatening is legal in and of itself--more on that later--you'd be running the risk of blackmail because you have no right to your deposit, making your demand unwarranted. More to the point, if the contract does say that you have a right to your deposit, you don't need to worry about the rest of it. Simply make a demand on the contract as such. No other threat is needed. If he won't comply, consider suing him.

But defamation is another issue. Unless you can prove that what you say is true, you run the risk of exposing yourself to a claim for defamation, i.e. the communication of a claim that may give another a negative image. Truth is a defense to defamation in the United States, but you're going to need some evidence there. If you go public with your complaints, he can easily sue your for defamation, and unless you can prove that what you say is entirely true, you're going to lose. Even if you win, it's likely to cost you more in defense costs than you'd stand to recover if he just handed over the money.

In short: I understand that you're pissed, but this is probably more trouble than it's worth. I can't see the deposit being more than a couple of hundred bucks, and trying to do something about this is likely to cost you far more than your deposit. Sometimes you just gotta take your legal lumps and plan better next time.
posted by valkyryn at 8:27 AM on February 18, 2010 [1 favorite]

Why would you hold that threat over him, when you have a not-insubstantial responsibility to be vocal about your negative experience?

Whether you get the money back or not, if you had a bad experience, you could help other people by informing them.
posted by infinitefloatingbrains at 8:32 AM on February 18, 2010 [1 favorite]

Oops. The hyperlinks got away from me. I mean, here is a link that talks about blackmail/ extortion. Here is one that talks about libel and slander--another potential issue that you may want to watch out for. I would be careful about how you phrase it but as long as you post something like "I think they unfairly withheld the deposit for no good reason" instead of "those cheap $#%^ stole my money!" you should be okay
posted by _cave at 8:43 AM on February 18, 2010

If your child's safety was put at risk, then you should simply report the daycare facility to the licensing bureau. If you are in the US, that bureau is actually your county's Department of Social Services. While the daycare should be State licensed, what this actually means is that the effort is handled at the county level. In many states, complaints against a daycare, investigations and findings of violations are publicly available and easily accessible. Many parents check these reports when looking at daycare centers. They are available on the Department's website. If you file a complaint with the DSS, they will investigate and the daycare will have to correct the situation if it is on-going. They face potential fines, loss of license and closure if they do not.

As for your money, look at your original contract to see what you agreed to. Also, determine if the amount is worth the effort.
posted by onhazier at 8:51 AM on February 18, 2010 [1 favorite]

At my son's preschool, the deposit is equivalent to one-half of the first month's tuition (so, if the tuition is $1000, the deposit is $500). In the enrollment agreement, it is specified that in order to get the deposit back, the departing family must request it in writing - which in reality means checking off the box "please return my deposit" on the form you fill out to withdraw. The deposit is returned less any outstanding fees, tuition, etc., which is really the whole point of requiring a deposit to begin with.

Did you owe the daycare owner any money when you left the school? Fees, outstanding tuition, etc? What is the policy regarding return of deposits? Is it in writing?

No matter what the situation is with the deposit, if you pulled your child because of safety issues, level of care, or anything like that, PLEASE contact the licensing body (and if it's not licensed, DEFINITELY contact the licensing body). They WILL follow up, and you could be saving someone down the road at least your level of frustration, if not protecting another child from significant harm.
posted by Lulu's Pink Converse at 8:53 AM on February 18, 2010 [1 favorite]

Post to the consumerist. usually they are good about getting money back. usually all it takes is for your story to get out on that site.
posted by majortom1981 at 9:08 AM on February 18, 2010

Follow up any complains with the licencing body for your daycare.

If you believe you are owed the deposit, write the owner a letter outlining the reasons why, and send it registered mail. If they don't give it to you, file a claim in small claims court.

Also, these are people's kids we're talking about here. If you have such an "unhappy history" with this place, why would the return of your deposit be enough to keep you silent? If there are issues there, then there are issues, and you should make them known to someone who can do something - specifically the licensing agency. If your child is at an unlicensed facility, then I would consider it my duty to tell other parents. Either you think this place is a good place for all kids or for no kids. Saying "If you don't pay me I'll tell" only makes you look like a whiny fruitcake.
posted by anastasiav at 9:10 AM on February 18, 2010

I prefer not to get into certain details -- I originally wanted to describe a different, hypothetical situation, but realized that wouldn't work -- but I will say that some responses seem to assume that I did not first try to talk with the owner, did not first warn other parents, or did not first report the daycare to its sanctioning body. These would not necessarily be safe assumptions.

For those not clear on the blackmail part of the question, beniamino sums it up nicely. To me, it's equivalent to a dissatisfied diner saying he does not want to pay for part of his mail and getting no satisfaction. If he says "I just want to be clear on this; if I leave here unhappy, I'll tweet this. By my math, it will probably cost you more in lost business than it would to rectify this with me" (or whatever), is that blackmail? But I laid out the specifics I did because there are no doubt differences, such as whatever we signed several years ago when we surrendered the deposit.
posted by troywestfield at 9:13 AM on February 18, 2010

If you are truly concerned...

1. Report the daycare to the proper licensing body.
2. Sue in small claims court for your damages (the deposit you are seeking).

However, be prepared to be countersued for any monies the daycare operator is out such as tuition for a withdrawal period (it's quite common for daycares to have "you must give us a two week notice" type thing).

I'm a parent too, and have been in a situation where my child required surgery after an injury occured at daycare. It was described to me as a "boo-boo" on the phone. When I arrived to pick her up, her shirt was covered in dried blood--it bled quite profusely--and nobody could tell me exactly what happened, how the injury occured, what she was cut on, etc.

We withdrew her immediately and considered suing for the tuition we'd already paid, but realized we didn't observe the two week withdrawl timeframe in the contract we'd signed, so the daycare owner could countersue and we'd be out even more.

BTW, in the end I did report the daycare to the state licensing agency, and my child's health insurance company followed up for subrogration on the claim.
posted by FergieBelle at 9:30 AM on February 18, 2010 [2 favorites]

troywestfield, the situation you describe with the diner is technically illegal. The diner has received a service for which he is obligated to pay, and unless there is some material--and when lawyer-types say "material" we generally mean something close to "pretty freaking important"--problem with the meal, the fact that he isn't satisfied is no justification for not paying. If the meal was not actually delivered, or was inedible, that's one thing. But not being up to the diner's exacting standards is not going to work. The fact that restaurants put up with this sort of nonsense has far more to do with their being in the service industry and needing repeat custom than it is with their legal rights.

But your situation appears to be even less appropriate than that one. You (presumably)signed a contract stating the terms of your child's attendence at this day care facility. The diner is simply operating under the implied contract all restaurants operate under. You are party to an explicit contract, presumably in writing, presumably with defined terms. Those terms included the specifics of your deposit and would include your rights to have your deposit refunded. While it may be the case that you do have a right to the deposit--I'm not your lawyer and don't have enough facts to tell even if I were--nothing you've said so far indicates that you do. Given that you do not appear to have a legitimate claim, demanding your deposit under threat of negative publicity--even true publicity--would probably be blackmail. It's certainly wrong.

It would be something else to say "I think I have a claim against you upon which I can prevail in court, but I'll walk away if you pay me." That's called "settling a claim." That claim could include reporting them to the authorities there is legitimate grounds for doing so. Indeed, this is the whole basis of plea bargaining: the prosecutor has a legitimate claim which he is willing to mitigate or waive entirely in exchange for cooperation of some sort. But the reason this is okay and blackmail is not is because it involves a legitimate demand coupled with an offer to settle things with a minimum of fuss. In the diner's case--and it would seem in yours--you have no legitimate right to what you're asking for, you just ain't gettin' no satisfaction. Unfortunately for you, "satisfaction" is probably something which isn't guaranteed by the contract, though clearly you'd have to read it closely to figure that out.

Ultimately, whether or not you have such a claim isn't something that can be determined 1) by the information you've given here, or 2) without competent legal counsel. Either threaten proper legal action--and be prepared for him to tell you to go to hell, because I can't see a winning claim here--or suck it up.
posted by valkyryn at 10:04 AM on February 18, 2010 [1 favorite]

Maybe you need to present your case differently. Something like "I am not someone withdrawing my child early without notice. I am an unsatisfied customer. You should be giving me back, not just my deposit but what I paid for an unsatisfactory service. I may be willing to settle for just the deposit. Unsatisfied customers, as you probably know, will substantially hurt your business so why not cut your losses while I'm making it easy for you?"
posted by Obscure Reference at 10:24 AM on February 18, 2010 [2 favorites]

Obsucre reference has it.

The deposit is there to guarantee you a space in the program, and dissuade you from withdrawing your child from the program for convenience/scheduling/trifling reasons (i.e. things that are your fault). You seem to be implying that the reason for your child leaving is their fault, and for redress of grievances, they should give you your deposit back at the very least.
posted by Jon_Evil at 10:41 AM on February 18, 2010

Jon_Evil: That's certainly my take. valkyryn shook me up with their use of the word 'legitimate,' but I am not being frivolous; there was an incident, and they didn't address it well enough (in my opinion) for me to feel that my kid was safe there. So advance notice wasn't possible.

I don't want to discount feedback just because it wasn't what I asked, but I am not interested in my legal recourse. The sum (and the principal) are not significant enough for me to go to court over it. But spending 20 minutes writing on yelp and telling my story on a simple Web site would be worth it to me, as well as cathartic. If the wording truly makes all the difference, I want to know about it, but Obscure Reference does have the gist of it. If I could get my deposit back and the daycare could not have my account on the Internet, it would seem a shame if the law prevented me from telling them as much, and the outcome instead was lose-lose; even one parent who doesn't send their kid to this daycare after reading my story costs the daycare more money than returning my deposit does.

For those who think I have a responsibility to go public anyway, I take your point; it's hard without going into specifics, isn't it? I can say that other parents did not pull their kids out; probably a number of them would have liked to, but they were concerned about the trauma associated with relocating kids that age. So it's not like I know about Radon or something. It was serious enough for me to leave, but others interpreted it differently.
posted by troywestfield at 11:08 AM on February 18, 2010

troywestfield, what I said was not intended to "shake you up" as much as it was intended to get you to read the contract. That's the lesson here.

Why am I going on about this? Well first of all, most consumers sign contracts they haven't read all the time, and then they're surprised when the legally-binding agreements they've entered into don't work quite the way they want them to. I'll take any opportunity I get to encourage consumers to read the documents they sign. But with respect to this particular situation, it's entirely possible that this whole conversation is unnecessary, as the contract may provide that you get your deposit back under these circumstances, especially if the events you're complaining about constitute a significant breach of the contract. If that's true, all you need to do is ask. No need to bargain, no need to threaten, just point to the right page and say "Hey, we both signed this, I want my money."

Then again, it's also entirely possible that the contract is a one page piece of crap which is absolutely no help at all. Day care centers aren't exactly known for their legal or business savvy, so this is a real possibility. But there's no way of telling unless you read and understand it. That should be your first step as you consider your options. You don't need a lawyer to ask for what you're owed under the contract, but you can't know what you're owed until you read it.

One final caution: don't underestimate the possible exposure you may incur from posting negative information on the internet. The line between a bad review and defamation is murky, and while the former is protected speech, the latter is not.
posted by valkyryn at 11:43 AM on February 18, 2010

If there were safety violations, failure to care properly for your chilld, then your legal theory might be that they breached the contract first. You then (under the theory) get to leave the contract with your deposit. Have you tried to explain this? And that you intend to keep pushing for your money back through (public) legal channels? As civil legal disputes are generally public matters (unless the judge says otherwise), it is usually considered kosher to discuss or reference such a dispute. In other words, a statement describing one's legal conflict -- I felt that I had to pull out my kid when they failed to meet their end of the bargain, and I didn't get my deposit back -- is usually considered lawful. A statement with blanket descriptions unrelated to a legal dispute -- so and so is a child abuser, or whatever -- gets into other territory that is generally more complicated.
posted by ClaudiaCenter at 12:15 PM on February 18, 2010

valkyryn: contract signed several years ago, and we've moved since. Nearly no chance I could locate it. I'm not above asking the owner to produce what we signed, and seeing if he does; we're still keeping it civil.

I actually scan (speed-read, not with a scanner) everything I sign. But obviously I don't remember the terms years later, and while I do take note of clauses to which I object, that hasn't always prevented me from signing anyway (although I have gotten a couple of clauses stricken). And when we signed, we didn't anticipate the events that transpired, so advance notice of withdrawal probably seemed reasonable to me at the time.

Let me focus on the how-it's-worded aspect of this. If saying "Gimme my money or I'm going public" were blackmail, or could possibly later be determined to be blackmail, am I protected by stating it differently? Example: The owner says no refund, and I say "That's too bad. I wanted to keep this amicable. But obviously this leaves me with a bad taste in my mouth, and I think it's only fair to warn anyone who researches your daycare online. This is what I plan to do ..." It seems materially the same to me; if the owner then asks if I would stay quiet if he returned my deposit, is that blackmail?
posted by troywestfield at 1:17 PM on February 18, 2010

Let me focus on the how-it's-worded aspect of this. If saying "Gimme my money or I'm going public" were blackmail, or could possibly later be determined to be blackmail, am I protected by stating it differently?

You are asking specific questions about actions that may expose you to civil or criminal liability. Seriously, talk to a competent lawyer in your jurisdiction. Most lawyers will give you a free consultation and lay out your basic options.

No one here--not even an attorney--can (or should) give you a specific answer because we don't have the facts. We don't know what the contract said, we don't know the details of the incidents you refer to, we don't even know what jurisdiction you're in. And since it would be foolish of you to disclose that information in a public forum, you really should contact an attorney.
posted by jedicus at 2:02 PM on February 18, 2010

What jedicus said. You're on ambiguous ground here, and there's a possibility that this guy could cause far more trouble for you than you could for him. I certainly don't have enough information to form any kind of opinion about the strength of your legal position--and as jedicus indicates, I wouldn't even if I could--but it doesn't look like you have enough information either.

Caution is advised.
posted by valkyryn at 6:16 AM on February 19, 2010

Thanks very much to everyone for the advice.
posted by troywestfield at 6:38 AM on February 19, 2010

If you truly feel that your child was endangered, Yelp (IMHO) isn't the appropriate venue. The childcare licensing board is.
posted by k8t at 3:28 PM on February 20, 2010

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