• March 22, 2019

In Mark Twain’s The Adventures of Tom Sawyer, one of the most famous scenes in American literature, Tom Sawyer persuades the various neighborhood children to trade him small trinkets and treasures for the “privilege” of doing his tedious work, using reverse psychology to convince them it is an enjoyable activity.

Clio, by Themis Solutions, Inc. is a  cloud-based software company for legal practice management, client intake, and client relationship management.

It happens to be LEVENTHAL pllc’s practice management software, which we love almost more than any other software that we use in our practice. But that does not stop us from making fun of the company. Clio is pulling the same maneuver as Tom Sawyer.

Essentially, Clio customers are urged to give testimonials bragging about themselves and, presumably, their love of Clio and, in return, they are literally “awarded” with “small trinkets and treasures.”

We admit that this is an insignificant and shallow Minnesota Litigator post (in contrast to most, which, regular readers know, are weighty and profound) but, in our view, it scratches the surface of an important and difficult question: how should the law draw a line (if at all) between marketing as persuasion vs. marketing as manipulation vs. marketing as deception? For a long time now (since the 1970’s, in our view), the pendulum has swung hard in favor of “the free market” and “caveat emptor.”

There was a spasm of what might be called “conscience” after the 2008 meltdown (with the creation of the federal Consumer Finance Protection Bureau, for example) but that effort is being euthanized by the current administration.

Maybe it is best to let Clio free-ride on gullible clients who feel compelled to give Clio valuable advertising without compensation except for silly trinkets, meaningless swag, and free tickets to a trade show? But, at a certain point, is it not appropriate to sue the Tom Sawyers of the world for unfair and deceptive trade practices?

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