Woman Fined For Bad Review Striking Back In Court

An anonymous reader writes "Here's an update to the earlier Slashdot story about KlearGear.com 'fining' a couple for a bad review left four years earlier on RipoffReport: Not only did KlearGear report this as a bad debt to credit reporting agencies, but KlearGear is hiding behind a DomainsByProxy domain name to making finding their real identities harder. Now Public Citizen is representing the couple and is going after KlearGear for $75,000. The TV station that broke this story, KUTV, now reports that RipoffReport will likely be on the couple's side. The BBB and TRUSTe say their logos were used by KlearGear.com without permission, and credit reporting agency Experian is also investigating."

Comments

Waiver of rights

[Anonymous Coward]

The main claim is that the puchase was a contract that imposed the condition of "never acting to harm KlearGear". That could encompass pretty much anything you do. Did you consume a resource that resulted in higher costs to them, did you loan the item to a friend and the friend did not like it. So many accidental ways to breach the "contract"

We the people need the right of fair dealing. We can't have weird contractual conditions imposed. I am not a lawyer so don't know how to put it.
Normal actions, including criticism should not result in violations.

Re:Waiver of rights

[russotto]

Yeah, the "fine" fails on so many levels. A contract term added after the formation of the contract, enforced based on a contract that KlearGear breached (by not delivering), enforced on someone who was not the contracting party (the person posting the review was not the person who made the purchase), and unconscionable to boot.

Based on all this and my knowledge of the integrity of the legal system, my bet is the Palmers will lose their suit and KlearGear's fine will be upheld, with the Palmers paying KlearGear's attorney fees.

Re:Waiver of rights

[jmac_the_man]

The Constitution doesn't grant ANY rights. The Bill of Rights recognizes is a non-exhaustive list of rights of the natural rights of free people. These rights predated the Constitution, and people are entitled to them with or without the Constitution.

As the USOC [sic - the Supreme Court???] recognized, the first amendment only grants the right from government restrictions on free speech. Other entities such as... schools are not required to grant you the right to free speech.

Again, the government didn't GRANT you the rights listed in the first amendment (because the rights were there already), but the government is required to RESPECT the rights that you already had. This applies to all governmental institutions, which includes most schools.

Please stop treating the Constitution like a religious document. It is not.It is very limited and very specific.

It's obvious you have NO IDEA what you're talking about.

Re:Waiver of rights

[Kjella]

That must be the most ill-conceived post I've seen in /. on all my years here, and that's saying something. Just because you can't prevent anyone from doing something (murder, rape or holding a speech) doesn't make it a "right". Punishing someone after the fact does take the "right" away, you really think saying something then facing an execution squad is free speech? As for "natural" rights, I consider that a joke. Try arguing your "right to life" with a hungry lion, rights only exists between entities that recognize those rights. If your government doesn't recognize freedom of speech, the difference between having it and not having it is entirely philosophical.

Most people, even those who like to pretend they only care about negative rights care about positive rights. If you say something and the government wants to hang you from the nearest tree but the law won't let them that's a negative right. If you say something and the community wants to hang you from the nearest tree but the police or the law won't let them that's a positive right. What's really your "freedom" of speech worth if the Taleban will kill you for it and nobody will care? Not very much.

Re:Waiver of rights

[Zontar The Mindless]

The classic example is signing a contract whereby you sell yourself into slavery.

Even if you willingly sign such a contract, and receive the money from the buyer, it still has absolutely no force under US law, since it's against the law there for one human to own another.

Re:Waiver of rights

[mysidia]

based on the actions of the wife, who didn't agree to anything.

Ah.... that is indeed another wrinkle. Marriage does not give a spouse the ability to legally sign and bind the other spouse to contracts. Utah is not even a community property state. Therefore, any value from the Kleargear contract would be separate property --- the wife would not be party to the agreement, and would have received no consideration from it. The husband is legally unable to bind the actions of the wife.

Clearly, they would have known that the order was not placed by the reviewer, by examining the contents of the order form. The fact that Kleargear chose not to, can only be attributed to an attempt to maintain a false pretense (deception); for the purpose of damaging another individual, by impeding their rights, and/or eliciting financial gain ("defrauding the husband out of $3500").

Read: 18 U.S.C. 1343 Wire fraud

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both.

Re:Rip Off Report

[__aarzwb9394]

Do you have an interest that you need to declare?

Re:Good

[FlyHelicopters]

I don't normally wish doom to a private company, but in this case...

Yea, based on the facts as offered, they can go rot...

Re:Fret not

[DavidClarkeHR]

All of the company staff will get IRS jobs. They've shown the proper mindset.

IRS? Nah. Wall street. We never did fix those problems.

Re:Just wait for more EULA's and the TPP / ACTA

[ledow]

Nothing trumps basic consumer law and contract fairness.

Too many people forget this.

The EULA's can say what they like. If it's deemed unreasonable, especially if it's one-sided, courts will just ignore those portions of it.

I think commenting your own opinion on a product/service you used can't really ever be deemed unreasonable until it becomes harassment, and that's relatively easy to determine and prose cute for.

Fact is, all this company have done is said they'll sue their own customers unless they never have a problem and/or never tell anyone about it. It's a perfect way to lose customers.

They can claim anything they like, but that doesn't mean that a court will back them - especially not when they breached the contract themselves first (thus making all the other party's obligations under that contract null and void).

Just because someone says "But you signed/agreed to this", it doesn't mean that you are bound by it. It's a complete fallacy. It just means that you have to prove it's unreasonable rather than, in the case of not signing it, do nothing.

There was a lot of cases about whether automatic "if you park here, you are agreeing to pay a £100 'fine'" signs put up by private landowners. Loads of people ignored them and paid fines. And then courts said that it was unreasonable and not legal. And now those landowners are having to pay all that money (and expenses) back.

A contract has to be fair and reasonable, or it's not a contract at all. And yet you can still be held by your side of the contract (e.g. providing the damn service you were required to) while having all your provisos (e.g. NDA's or termination clauses) rendered void. It all depends on the balance of contract law.

But, honestly, don't agree to such things in the first place (this person says they didn't, for instance), and don't let people get away with such things when they can't keep their own side of the agreement.

Re:Fret not

[the eric conspiracy]

Ding Ding Ding Ding

You have identified the fundamental problem with our system of government.

Couple the principle of free shit with that of lack of term limits and fiat money and I am amazed we have gotten this far.

Re:Fret not

[nomadic]

"We have grown dependent on freebies and handouts as our government tries to "domesticate" its citizenry into the role of owned beasts of burden."

What freebies and handouts would these be? By developed nation standards we do not spend that much on social welfare programs.

Re:Good

[Anonymous Brave Guy]

Can anyone comment reliably on whether this strategy actually holds up in the US? Here in the UK, I would expect that knowingly and deliberately running a company into the dust like that would be grounds for piercing the corporate veil.