Return to Vendor

Originally appeared in the November 2001 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Return to Vendor


Judging by the passion and vituperation the topic evokes on Internet consumer complaint sites, video rental late fees may be the number one legal issue facing average Americans. The complaints are eerily similar:

“I rented There’s Something About Mary from the 3-day section and returned it exactly on time …”

“I rented There’s Something About Mary from the 5-day section and returned it exactly on time …”

“I shoplifted There’s Something About Mary and Her Sisters from the adult section and returned it exactly on time …”

Much of the ire is directed against Blockbuster, which in June settled a class action over excessive late fees by agreeing to dole out $460 million in discount coupons to almost 40 million customers. The hitch? An $85 late fee for not using the coupon by noon on the following day! Just kidding, Blockbuster.

Consumer advocates have identified two principal causes of late fee disputes: confusing rental policies and intransigent clerks.

Confusing rental policies. Many late fees result from misunderstandings regarding return policies. Industry officials deny the policies are confusing, but check out this 3-day rental provision found in small print on the back of a rental agreement used by a popular chain:

3-day rentals are due back in 2 days, except on weekends when they are treated as 1-day rentals, unless we really need them back in a hurry, in which case you have exactly one hour to fast forward through that sucker; except during Monday Bonus Specials, when 3-day rentals may be kept 5 days, provided said 5-day period begins running on the previous Tuesday. Save time and trouble by conveniently paying your late fees in advance.

Intransigent clerks. “When was the video returned?” is the great imponderable of modern times. Many disputed late fees involve a “he says/computer says” argument over when the customer actually returned the video.

Of course, the truth is that video stores have no idea when videos are returned. This is because, despite the fact that it’s a multi-billion-dollar-a-year business, the best idea the video industry has come up with in 25 years for verifying video return times is the unimpeachable “jam them in the bin” system—also referred to as the “Scanner? What’s a scanner?”-system.

When late fee disputes arise, your fate is in the hands of the highly-flexible video store clerk. For their uncanny ability to never budge under any circumstances, video store clerks should be hired to negotiate U.S. arms treaties. Here’s a typical colloquy:

Clerk: The computer says you owe $4,328.53 in late fees for Tootsie.

You: That’s impossible. I returned that video the day after I rented it—16 years ago!”

Clerk: That’s not what the computer says, which means you must be a despicable liar. Can everyone in line hear me?

You: But I swear, I returned it on time! Look, here’s a character affidavit from my mother, polygraph results showing I’ve never returned a video late my entire life, and a time-stamped surveillance tape of me actually returning the video on time.

Clerk: Would you like any popcorn or candy to go with your late fees?

Of course, there’s always the appeal process to the store manager who, relying on the computer’s expert testimony, will affirm the clerk’s finding of fact that you are indeed a liar.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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