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I called in to tell a company something. The people I could reach on the phone are definitely agents of the company, and they definitely got my message. But they told me that they couldn't internally handle what I had told them, and asked me to tell the company the same thing again by postal mail at my own expense, because the only internal procedure the company had to accept this sort of message worked that way.

(This is, of course, a message opting me out of something I have a legal right to opt out of, so it is in the company's best interest to design its internal procedures to minimize the number of opt-outs processed.)

Is a company allowed to claim that it doesn't know something, even if its agent knows it? Or do I need to care about the internal machinery of companies and go to at least some threshold of effort to send my messages in ways understandable to that machinery?

What is that threshold? At what point does adversarially-designed corporate process stop shielding the company from legally knowing things and start to get it in trouble for doing things it legally knows it shouldn't do?

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    The usual question, what is the jurisdiction?
    – o.m.
    Dec 12, 2023 at 4:52
  • 3
    There's a big difference between "know" and "can take action on".
    – Barmar
    Dec 12, 2023 at 15:29
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    It's one thing to intentionally place barriers in the way of communicating certain kinds of messages to the company, and a different thing to establish standard procedures and mechanisms for handling various business communcations. Both behaviors can be present at the same time, but you should not assume a priori that a company's insistence on you communicating with them via the channels they have designated for such communication is meant to to deter you from communicating at all. Dec 12, 2023 at 16:34
  • 1
    You may be interested to follow the case of Alicia Paxson vs Google. Her husband died due to following Google Maps directions at night in an unfamiliar neighborhood. He drove off a collapsed bridge and drowned. The catch is that in 2020 someone told Google about the collapsed bridge, but Google didn't stop directing people over it. bbc.com/news/world-us-canada-66873982
    – piojo
    Dec 13, 2023 at 15:30
  • Where do you suppose the line should be drawn? By that definition, if I as an employee of an international fast food chain walk into another one of their restaurant and tell one of the the staff there that I quit, that that should count as officially giving notice to the company?
    – Flater
    Dec 14, 2023 at 3:27

4 Answers 4

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Short Answer

As a practical matter, if you want to opt-out from something and they want you to send them a letter saying so in the mail, send them a letter (via certified mail) and be done with it.

It isn't worth the trouble to try to enforce you opt-out rights by any other means of notice, when this one can be used without any room for them to question the validity of your notice in any future dispute.

It costs less than $6 U.S. to send a certified letter (and there are cheaper options that cost less than $2 U.S. to get proof of mailing, which is all you need). Mail outside the U.S. is similarly cheap. And, this doesn't require any special legal training or knowledge.

In contrast, it would cost thousands of U.S. dollars to litigate the notice issue alone on the merits, in a future dispute, even if you won in the end, which wouldn't be 100% certain, and this would delay your efforts to enforce your rights by weeks or months, even if you win.

Long Answer

As usual, there are different rules for different situations.

When The Means Of Giving Notice Is Specified By Law

Service of legal process is valid only certain senior officers and employees of a company pursuant to Federal Rule of Civil Procedure 4 and parallel state law court rules and statues.

Similarly, many states specify exactly how notice must be given to exercise certain legal rights, such as a notice of a landlord to a tenant to vacate a property, a notice of an intent to file a mechanic's lien, a notice of a personal property lien under the Uniform Commercial Code, or a notice of a deadline to file objections to the validity of a trust.

Subpoenas must be hand delivered personally to the actual person who is supposed to personally testify or comply with the subpoena pursuant to Federal Rule of Civil Procedure 45 and parallel state court rules and statues.

Statements Made Under Penalty Of Perjury, Or With An Oath Or Affirmation

In the case of statements made by a company official under penalty of perjury (or with an oath or affirmation), generally only the actual knowledge of the company official making the statement is relevant for criminal perjury.

But sometimes the statement of a company official made under penalty of perjury in an official capacity (or in an oath or affirmation) is binding on the company for civil and administrative litigation purposes based upon the knowledge of anyone in the company (and may give rise to legal penalties or sanctions, or a finding of fraud by the company for civil purposes, if the statement made is not true).

Notice Rules Established By Contracts

Contracts frequently specify an exclusive means by which notice must be given.

But, frequently, in litigation, a court will find that failure to give notice by the method specified in the contract is not a material breach of the contract, or is not a substantial breach of the contract, if the person to whom notice was supposed to be given received actual notice of the matter to be communicated, and the court will instead treat the notice that was given in a manner not conforming to the contractual requirement as valid if the person to whom the notice was directed received actual knowledge of the matter as a result.

Showing The Malicious Intent Of A Company

In criminal prosecutions and in certain kinds of civil litigation where intent (usually willfulness, e.g., in a fraud case) is relevant, typically, only actual knowledge of the board of directors and senior management team and the actual knowledge of people assigned by the company to deal with a particular matter is relevant.

The Common Law Constructive Knowledge Rule For Agents And Its Exceptions

Still, there are many circumstances when the general common law rule of agency law that a company has constructive knowledge of everything known to all of its agents and employees is the law.

For example, in a case alleging that a personal injury or property damage caused by the negligence of the company, the knowledge of any agent or employee of the company can be used to establish a case that a company acted negligently.

The main exception to the general constructive knowledge rule would be in cases where an officer or employee is adverse to the company, such as a case where the officer or employee is embezzling money from the company, in which case the knowledge of the bad actor and their co-conspirators is not attributed to the company (at least, in litigation over the bad acts in question).

Another arguable exception to the rule that a company has constructive knowledge of everything known to its agents (although there isn't nearly as much case law supporting this exception as there is case law supporting the general rule), is that arguably, you have to communicate to someone who has apparent authority to receive a particular kind of information, or at least, to someone who has apparent authority to deal with the kind of matters being communicated to the person.

A court is unlikely to apply the doctrine of constructive knowledge of an agent to, for example, knowledge of a privacy policy opt-out notice given to a janitor or a rank and file employee in the hardware division of company where you are a consumer of its software.

But a court is unlikely to let a company off the hook for liability if, for example, a customer communicates information about their customer-company relationship to a customer service representative, even if the company wants to have a policy of ignoring those communications, if that policy isn't backed up by a contract.

But see, in a harsh exception to the general rule, Colorado Revised Statutes § 38-10-124 (requiring courts to ignore oral communications between potential borrowers and authorized agents of a financial company regarding offers to allow the potential borrower to borrow money from the company, even if it is in a legally consented to recorded oral communication and would otherwise give rise to a valid contract or legal claim and it would otherwise constitute fraud to deny that the conversation took place as claimed).

Is a company allowed to claim that it doesn't know something, even if its agent knows it? Or do I need to care about the internal machinery of companies and go to at least some threshold of effort to send my messages in ways understandable to that machinery?

There is no formal "the company doesn't have its sh*t together" exception the the rule that the company has constructive knowledge of information provided to an agent. The whole purpose of the constructive knowledge rule is to create a strong legal incentive for large corporate bureaucracies to quickly and accurately share information with the people in the organization who need to know it.

Obviously, of course, this constructive knowledge rule is a legal fiction. In any big bureaucratic organization, it isn't uncommon for the left hand to not know what the right hand is doing. As a practical matter, if your goal is to make sure that the company acts in a way consistent with what you have communicated to it, it is best to follow the channels of communication that they request (and to do so in a way that you can document credibly after the fact if there is a dispute that you made the communication).

Application To These Facts

I called in to tell a company something. The people I could reach on the phone are definitely agents of the company, and they definitely got my message. But they told me that they couldn't internally handle what I had told them, and asked me to tell the company the same thing again by postal mail at my own expense, because the only internal procedure the company had to accept this sort of message worked that way.

(This is, of course, a message opting me out of something I have a legal right to opt out of, so it is in the company's best interest to design its internal procedures to minimize the number of opt-outs processed.)

Often, a requirement like this would be specified in a contract or term of service agreement or some similar written policy to which you either expressly agreed, or were bound to in a contract-of-adhesion by using their services.

If so, the contractual provision on notice requirements would generally be upheld unless they are unconscionable or contrary to an applicable statute or regulation.

A Real World Example Of The Constructive Knowledge Rule's Impact

Some companies go to great lengths to prevent their employees and agents from have communications in which they might gain knowledge through less formal means of communications like phone calls with people outside the company.

For example, one major mortgage servicing company that I dealt with on behalf of a probate estate had a special department that was in charge of handling the mortgage accounts of customers who had died. But this company didn't allow anyone in that department to have a business telephone or email account of any kind, so that all communications with the company had to be in writing via mail and Federal Express. The company claimed (dubiously) that this was because members of that department were "not trained in customer service."

On the other hand, this same company repeatedly denied that the mortgage borrower in question was dead, even after it had received a certified death certificated transmitted to it by return receipt mail to their designated address. So, I wouldn't exactly offer up that company as a model, and this company probably lost lots of lawsuits as a result of its dysfunctional communications practices and due to courts not giving credit to its bureaucratic policies.

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Yes

An agent can only act within their actual or apparent authority (see s769B of the Corporations Act).

If they explicitly tell you that your request exceeds their authority, then the company “does not know” or, at least, cannot act upon the request.

Of course, such restrictions on authority must be reasonable; if you tell a supermarket cashier the building is on fire, the company knows, if you tell them the CEO and CFO are engaging in insider trading, the company probably doesn’t know. In some circumstances a company has a positive duty to seek out knowledge, companies that stop the flow of such knowledge have failed in that duty.

In addition, there may be legal or contractual limitations on how certain information may be legally communicated. Communication outside those channels is not valid and may be treated as if it does not exist.

At the same time, the legal standard for many things is not whether the company knew, but whether it should have known. A company with needlessly poor or restrictive limits on what it can learn, is likely to be deemed to have known.

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    As a general statement, this is wrong. As a counter-example, Dutch civil servants have limited authority, but a legal duty to forward such messages. The Dutch government "knows". (but this may cause forwarding delays.)
    – MSalters
    Dec 12, 2023 at 15:48
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    By this reasoning, the typical corporation knows nothing. Usually a different standard is applied, like whether a corporation's officers or directors know about something.
    – Corbin
    Dec 12, 2023 at 17:26
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    This is ridiculous.
    – bdb484
    Dec 12, 2023 at 19:10
  • @MSalters this appears merely to be a specific legal exception to the general principle. The legal exception either defines certain authorities which an organisation cannot withhold from its agents, or requires them to facilitate access to such agents who do have such authority, depending on how you interpret the function of forwarding the message.
    – Will
    Dec 13, 2023 at 8:57
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    @Will : my point is to show that "authority to respond" is legally distinct from "responsibility to forward internally". A responsibility to forward is not an agent authority, as it is a specific mandated action to take. It is therefore not a decision. You'd need to have an agent with the authority to discard a message for the information not to be known more widely in the organization, but such a decision to discard would be made on behalf of the organisation.
    – MSalters
    Dec 14, 2023 at 12:29
4

YES

In the United Kingdom Companies must have a Registered Office which is their official address where correspondence, legal notices etc may be delivered. Other offices of the business will often have a sign stating that they will only accept correspondence at that address.

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I think one possible threshold is whether they are told in a durable form or not (i.e. in writing).

Just murmuring something to a market trader while he's busy selling fruits and vegetables, for example, isn't the same as handing him a paper note with your name, address, and issue.

I think the same applies to phone. Just because someone has a phone and you have their number, it doesn't necessarily follow that all matters can be handled verbally that way - the person at the other end of the line might respond "you've caught me on the hop, send me a letter instead".

However, if you are dealing with a corporation that clearly conducts routine business in a certain way, then engaging in that way is likely sufficient.

For example, if the market trader takes cash in person, then it's reasonable to think he can take a small note likewise in person, at the market during trading hours.

If a company takes phone orders, then it can take a short dictated note by phone. If it accepts orders by email, then it can accept routine correspondence by email.

If notice is in fact given in a particular way to a company agent, and you can prove it was given, and if there isn't a legitimate objection to how the manner of giving notice made it indigestible or unrecordable, then I think the notice will be treated as given.

I don't think the specific design of the company procedures matters in its own right.

What matters is whether there is justification for refusing notice in certain ways, and whether any standard procedures that weren't followed (if that is used to justify why a notice wasn't acted upon by the company) were actually reasonable or whether it is an illegitimate excuse by the company for ignoring a notice already validly given.

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  • This answer would be better if it contained references to laws or cases that support your assertions. At present, it's hard to confirm the veracity of the claims. Dec 15, 2023 at 11:42

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