Utah

Unlawful gag clauses found in multiple Utah home builder contracts

Published

1 year ago

July 21, 2023

Unlawful gag clauses found in multiple Utah home builder contracts

HIGHLAND, Utah — When Tony Capone deliberated moving back to Utah, building a home instead of buying an existing one was an attractive option.

“What that would do for us is to give us 10 months to a year to figure out the logistics,” Capone said, “and then we’ll be able to move the family in due time once the house is complete.”

Capone shopped around and ultimately found the perfect spot in Salt Lake County.

“We were enamored with the views,” Capone gushed, “and we were to the point where we’re about to sign the contract.”

Capone is an attorney and had previously practiced real estate, so reading real estate purchase contracts was something at which he was proficient.

In this contract, there was one red flag too big to ignore.

“There’s a non-disparagement clause and a very, very rigorous one,” Capone said.

The terms outlined the “buyer…agrees not to disparage Seller in any public or private format including…social media, website, public or private meeting…regarding the construction, habitability, workmanship, or any other condition of the Property or provision of this REPC.”

In short, Capone would not be allowed to say anything negative about his experience with the builder or the home they built him, even if the experience was true.

Violating that agreement meant losing the home’s warranty and paying the builder “liquidated damages of $2,500.” “I was shocked to see even in private,” Capone said. “I mean, if I can’t confide in my family in private about issues, like, what can I do?”

Capone reached out to the builder’s agent, asking the clause to be removed.

In an email, he was told, “[the company] doesn’t make changes to their contract…sections of the contract have to stay the way they are written.”

Capone didn’t sign and walked away from the builder.

Not enforceable

KSL Investigators decided not to name which builder Capone nearly contracted.

As we dug into the issue, we found multiple builders using non-disparagement clauses in their real estate purchase contracts.

In one case, we saw the exact same clause in the contracts of two different developers, also threatening to void the homeowner’s warranty and assess damages.

“That’s unlawful under the Federal act,” said Jeff Hunt, a First Amendment attorney with Parr Brown.

The federal act to which he refers is the Consumer Review Fairness Act.

In 2016, Congress decided consumers should be allowed to share their honest experiences about a company in a public forum without fear of retribution.

The Act outlawed these types of gag clauses in contracts that cannot be altered. “If you have one of these illegal clauses in your contract, it’s just void as a matter of law,” Hunt explained. “It’s not enforceable, but it doesn’t prevent the company from continuing to do that.”

That’s where the Utah Division of Consumer Protection comes in, which can enforce the Act.

“This law is really important for a couple reasons,” said Division Director Katie Hart. “One is we’d never want to have consumers not be in a position to speak honestly about the goods and services that they receive. It’s almost a suppression of speech.”

“Number two is it doesn’t create a very level playing field for businesses,” Hart explained. “If one allows for honest feedback and the other doesn’t, but you don’t know which ones those are, how do you make an informed decision?”

Hart indicated the Division has not received any specific complaints that would violate the Consumer Review Fairness Act but has seen these clauses in other complaints to the Division.

“I don’t think a lot of people know or realize that these are illegal to have in the contract,” Hart said.

There are specific rules under the Act to protect businesses from bad actors.

“You have to be honest,” Hart explained, “It has to be related to the thing that was under the contract. You have to be honest in your reviews. You cannot be vulgar, harass people, you can’t put personal information.”

Complaints made to Hart’s office are investigated, and if a company is found to have violated the Act, they could be fined.

“There are administrative penalties of up to $2,500 per violation,” Hart explained, “and they can also be subject to an enforcement action from the Division of Consumer Protection, the Utah Attorney General’s office, or from the Federal Trade Commission.”

According to data from the Federal Trade Commission, at least seven companies were dinged for violating the Act since 2019. In some cases, the companies were made to notify their customers that the clause in the contract was not enforceable.

Why do these clauses exist?

KSL Investigators reached out to five different builders with gag clauses in their contracts, trying to find out why they exist.

Of those five builders, one responded with “no comment.” We did not hear from the remaining four companies.

We reached out to the Utah Home Builders Association for comment on these clauses and did not hear back.

At least one other Utah builder has explained why these clauses made it into their contracts.

According to an article by The Herald Journal in May 2022, Visionary Homes opted to drop the clause after pushback from a Providence city councilman who felt the clause was “anti-consumer, anti-American,” and “in violation of consumer protection laws.”

In a statement made to the Herald Journal, Visionary stated “The purpose of the non-disparagement clause was to protect Visionary Homes against persons who sought to damage the company’s reputation by spreading falsehoods and half-truths. It was never intended as a tool to silence discontent, nor is it a ‘gag order.’”

Visionary told The Herald Journal they had never enforced the clause prior to axing it from their contracts.

KSL reached out to Visionary Homes for comment but did not receive a response. Hunt explained developers and contractors do have options available against those that damage their reputation with lies and fake reviews.

“They can sue you for defamation if you get your facts wrong,” Hunt said.

As for Capone, he said it took some time to find a builder without the non-disparagement clause or was willing to negotiate the contract.

He hopes more can be done to make sure consumers are getting all the facts with the biggest purchase of your life.

“Really, the economy is meant so that those that are providing exceptional service rise to the top,” Capone said, “and if we don’t know where the issues lie, then we can’t weed out those bad actors.”

Have you experienced something you think just isn’t right? The KSL Investigators want to help. Submit your tip at investigates@ksl.com or 385-707-6153 so we can get working for you.

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Utah

Former Utah quarterback Brandon Rose transfers to UMass

Published

7 hours ago

January 9, 2025

Press Room

Former Utah quarterback Brandon Rose transfers to UMass

Former Utah quarterback Brandon Rose has transferred to UMass, marking a fresh chapter in his collegiate career. The 6-foot-2, 210-pound signal-caller was among a handful of Utah quarterbacks to leave the program during the latest transfer cycle, seeking new opportunities to showcase his talents.

Rose’s time at Utah was marked by development and perseverance, highlighted by moments of promise before injury setbacks. In the 2024 season, Rose saw action in three games, starting one. In his first collegiate start against BYU, he displayed his dual-threat abilities, throwing for 112 yards and two touchdowns while adding 55 rushing yards. Unfortunately, a season-ending injury in that game cut short his promising campaign. Earlier in the season, Rose made his collegiate debut in Utah’s season-opening win over Southern Utah and later completed seven passes for 45 yards in a second-half appearance at Houston. After redshirting in 2022 and not seeing the field in 2023, Rose’s eventual move to UMass offers a chance for a new beginning.

Rose entered college with a strong resume from Murrieta Valley High School in California. Rated as a three-star pro-style quarterback, he amassed 7,521 career passing yards and 74 touchdowns. As a senior, he led his team to a Southwestern League championship, earning league MVP honors. That year, he recorded 3,002 passing yards, 33 touchdowns, and 236 rushing yards. Despite a shortened junior season, he threw for 1,415 yards and 11 touchdowns while completing 70% of his passes. His sophomore year was equally impressive, with 3,087 passing yards, 30 touchdowns, and 395 rushing yards.

UMass provides Rose with a platform to compete and potentially secure the starting quarterback role. Known for his accuracy and mobility, he brings valuable experience and a hunger to prove himself at the collegiate level. With a history of overcoming challenges, Rose’s transfer to UMass signals a promising opportunity for both him and the Minutemen.

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Utah

Meet Derek Brown, Utah's newly elected attorney general

Published

15 hours ago

January 9, 2025

Press Room

Meet Derek Brown, Utah's newly elected attorney general

SALT LAKE CITY — After taking the official oath of office on Wednesday, Derek Brown has become Utah’s newest attorney general.

Now that he’s in office, what’s next? He joined Inside Sources to talk more about his priorities for office.

Below is a partial transcript of this interview as well as the full podcast.

KSL NewsRadio modified this interview for brevity and clarity.

HOST TAYLOR MORGAN: What are your priorities as you take office?

GUEST DEREK BROWN: I think the key to that is transparency. When I served in the House of Representatives, I learned that people appreciate when you are open and you make it clear to them what you’re doing. And as people understand what we’re doing in the Attorney General’s Office, we’ll see successes, there will be an increase in trust … That’s just the natural outgrowth of transparency, and I’m going to be doing a number of things proactively so that we build that feeling of not just transparency but [also] trust.

MORGAN: My understanding is that you and your family have put your assets into a blind trust … and you have officially stepped down from any non-profit boards. Is that correct?

BROWN: That’s correct… I just feel like it makes sense, in light of this position, to just eliminate any potential conflicts of interest in advance. I’m a little sad to do it because these are great people. I love being there, making a difference. But at the same time, I feel like we’ve got those organizations onto a good footing.

People make Utah great, not government, says Gov. Cox at inauguration

MORGAN: [How] would you explain your role to listeners? What does the Utah attorney general do primarily?

BROWN: We have 280 attorneys, and they provide legal counsel for all the boards, commissions, and agencies of the state. Everything from the University of Utah to UDOT to DMV… So there’s literally 280 attorneys that do every conceivable area of the law… It is the largest law firm in the state of Utah, so my job is to make sure it’s also the best, most efficient, most well-funded, and well-respected law firm in the state of Utah.

Listen to the podcast below for the entire interview.

We want to hear from you.

Have a story idea or tip? Send it to the KSL NewsRadio team here.

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Utah

RECAP: Panthers 4, Utah Hockey Club 1 | Florida Panthers

Published

23 hours ago

January 9, 2025

Press Room

RECAP: Panthers 4, Utah Hockey Club 1 | Florida Panthers

“Sometimes they go in, and sometimes not,” Boqvist said. “I feel like our line played pretty well. We’re working hard and winning a lot of pucks down low, trying to play with speed. When we have time and space to do stuff, we will.”

From there, penalties proved costly for the Panthers.

After coming up short on their first two trips to the power play in the period, the third time was the charm for Utah as Logan Cooley lit the lamp to cut Florida’s lead to 2-1 at 13:41.

Stomping out any would-be comeback for Utah, Boqvist regained the two-goal cushion for the Panthers when he cashed in on the empty net from deep in his own zone to make it 3-1 at 17:59.

At 19:38, Eetu Luostarinen tacked on another empty-netter to make it 4-1.

Finishing strong, the Panthers led 12-3 in scoring chances at 5-on-5 in the third period.

“I liked the bench,” Maurice said. “I liked the mood of it. They’re pulling for each other, supporting each other, battling and grinding. Understanding we come into this building, these teams come wired for us and are ready. Get out of the first period even. We’re good on the road like that. Then I thought we built. Halfway through the first period we got our game going.”

THEY SAID IT

“He’s earned it. We’ve used him at left and right wing, and he’s played center for us. He’s played with different people. He’s a really competitive guy.” – Paul Maurice on Jesper Boqvist

“Speed, skill, hard work. He works really hard, but he also has that ability to take over games with his speed and skill. He has a great shot. We’ve seen that all year in practices and games. He’s fun to watch. He’s one of those players where it’s just a matter of time until he breaks out, and he’s breaking out right now. It’s been fun to watch.” – Aleksander Barkov on Jesper Boqvist

“He’s so good, right? It’s so fun to watch. Playing against him for a couple years, it’s not easy.” – Jesper Boqvist on Sergei Bobrovsky

CATS STATS

– Carter Verhaeghe extended his point streak to three games.

– The Panthers are 7-for-8 on the penalty kill over their last two games.

– The Panthers have four players with at least 30 points this season.

– Sergei Bobrovsky is the third goaltender to earn a win against 33 NHL franchises.

– Sam Bennett won a team-high nine faceoffs.

– Matthew Tkachuk and Jesper Boqvist each recorded five hits.

– The Panthers held Utah to just eight shot attempts at 5-on-5 in the third period.

WHAT’S NEXT?

Grab your popcorn.

Meeting for the third time this season, the Panthers will try to improve to 3-0-0 against the Boston Bruins when the two rivals clash at Amerant Bank Arena on Saturday at 1 p.m. ET.

For tickets, click HERE.

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