As millions of consumers are considering Equifax's offer of one-year free credit monitoring and other services, concerns over their terms of service have been raised. Although Equifax has not done enough for victims, taking their meager offering of a year of free TrustID Premier service is enticing for many consumers.
Taking Equifax's Offer Waives Your Legal Rights
Unfortunately, in order to take the offer, you must agree to the Equifax terms of service. Buried in the 14,000 words of the terms of service is a clause which states if you accept Equifax's offer, you waive your legal right to sue Equifax for their breach of security. The terms also bar you from joining a class action lawsuit.
The only options available to you are arbitration and small claims court, which will limit your damages to as little as $2,500 or at most $15,000 depending on your state.
“You must pursue your Claim in arbitration or small claims court.”
Fortunately, also buried in the Equifax terms of service is how to opt-out of the arbitration clause. By opting out, you preserve your right to sue in court or to join a class action lawsuit. You may also retain the option to go after Equifax in arbitration or small claims court if either of those are better for you. (The actual language of the arbitration opt out in Equifax's Terms of Service is quoted at the bottom of this article)
Opt Out & Preserve Your Rights
To opt out, you must send to Equifiax within a very specific timeframe, a very specific letter, to a very specific address. As you can probably tell by the last sentence, it appears Equifax doesn't want to make it easy for you to opt out.
Deadline: 30 Days
You have 30 days from the date you first accept the Equifax terms of service to opt-out. For most consumers, the clock starts the first time they use a service, sign up for a program, or purchase something from Equifax. According to the Terms Of Service (TOS), there must be a valid postmark on the letter before the 30-day deadline.
If You Took the Breach Offer
If you are taking (or recently took) the Equifax offer for a year of free TrustID Premier service, you have 30 days from the date you signed up to send the letter. Waiting until the 30 days expires will result in losing some your legal rights. Send the letter as soon as possible, which means today unless you are literally not able to do it.
If You Already Use Equifax Services
For those who already use Equifax service, or have in the past, it is likely your deadline has already passed. You should still send an opt-out letter, however, even if the deadline is long-since past.
The law is a very grey area, and your lawyer may be able to use the breach to argue you should have the right to opt-out with a new deadline, especially if you take the offer for the one-year free service. Sending a letter within 30 days of the breach announcement gives your attorney one more tool to use in fighting Equifax.
Send A Certified Letter & Keep Copies
No matter your situation, you should send an opt-out letter to Equifax. Make sure to send it Certified Mail so you have proof of the date you sent it and get a confirmation from the Post Office that the letter was received. (You can also add a Return Receipt, which will force a signature from the Equifax representative who receives the mail.) Post Office confirmations are usable in court to prove when you opted out, and that Equifax got the letter.
You will also want to keep copies of the letter to prove the content of the letter. Scan or take digital pictures of the letter and the certified receipt from the Post Office and save them. You also will want paper copies of both as backups.
What The Letter Should Say
In the TOS, Equifax has made clear what the letter needs to state. The company also made clear if you don't have everything in the letter they want, you will not be opted out of the arbitration clause. For the letter to be effective it needs the following items:
Your Name
Your Address
Equifax User ID
Clear statement of your desire to opt-out.
To protect yourself, I suggest you give each item it's own heading in the letter and include the following information in the 4 items.
Your Names
Begin by stating your full legal name. Then include a statement saying your credit is also reported with the following names and include your Maiden name if applicable. In the 'following names' part, list the versions of your name which appear on your credit reports. You can see this list by acquiring a free credit report from www.annualcreditreport.com. You can also go to the Consumer Financial Protection Bureau's website for directions.
All Addresses
Include your current address with a statement that you are currently residing there. You may also wish to list your previous addresses if you have moved recently, noting they are some of your previous addresses.
Equifax User ID
In addition to clearly listing and labeling your Equifax User ID, also list the e-mail address you gave Equifax when signing up for services. This will provide Equifax with two methods of identifying you in their system.
Do not include your Social Security number. Equifax's TOS don't require it, and adding it to the letter will create another potential risk for sensitive information to be stolen.
Clear Statement
Make a clear statement that you do not wish to be bound by the arbitration provision found within any of Equifax's terms of service or other product/service agreements. After making your statement, add the following sentence. I do not wish to resolve disputes with Equifax through arbitration. This is the the exact wording used by Equifax in their TOS, except changing the word "You" to the word "I".
Address
Mail the letter (Certified Mail) to the address listed in their TOS for the opt-out. Do not use their corporate office or any other address you have found for Equifax.
Equifax Consumer Services LLC,
Attn.: Arbitration Opt-Out
P.O. Box 105496
Atlanta, GA 30348
Equifax Actual Terms of Service Language:
Right to Opt-Out of this Arbitration Provision. IF YOU DO NOT WISH TO BE BOUND BY THE ARBITRATION PROVISION, YOU HAVE THE RIGHT TO EXCLUDE YOURSELF. Opting out of the arbitration provision will have no adverse effect on your relationship with Equifax or the delivery of Products to You by Equifax. In order to exclude Yourself from the arbitration provision, You must notify Equifax in writing within 30 days of the date that You first accept this Agreement on the Site (for Products purchased from Equifax on the Site). If You purchased Your Product other than on the Site, and thus this Agreement was mailed, emailed or otherwise delivered to You, then You must notify Equifax in writing within 30 days of the date that You receive this Agreement. To be effective, timely written notice of opt out must be delivered to Equifax Consumer Services LLC, Attn.: Arbitration Opt-Out, P.O. Box 105496, Atlanta, GA 30348, and must include Your name, address, and Equifax User ID, as well as a clear statement that You do not wish to resolve disputes with Equifax through arbitration. If You have previously notified Equifax that You wish to opt-out of arbitration, You are not required to do so again. Any opt-out request postmarked after the opt-out deadline or that fails to satisfy the other requirements above will not be valid, and You must pursue your Claim in arbitration or small claims court.
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Joshua Escalante Troesh is a tenured professor of Business at El Camino College and the founder of Purposeful Finance. His career, including as a former credit union Vice President of Marketing, offers insight into what the Equifax data breach means for consumers. He can be reached for comment at info@purposefulfinance.org.