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

Good

[jason777]

I hope they put them out of business. What a scumbag company.

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:Good

[linuxrocks123]

Question for anyone who knows: how the hell did KlearGear report a debt to a credit reporting agency in the first place? The credit reports are indexed by SSN, and they only have other identifiers like credit card numbers to go by if you don't have that. They paid by PayPal. Doesn't PayPal hide your credit card number from the merchant? With just a name, how did they report it? Does anyone know?

Re:Good

[jonfr]

They say on the front page that they are experiencing unexpected and sharp increase in volumes of orders. That means they are delaying all shipping for 48 business hours. Since working hours are around 8 hours normally, this means 6 days delay at least on shipping when people order from this website. But that is something they should not do, since it is unlikely they are going to get what they did order.

They are also faking reviews and other such things. Claim and information on the fake reviews can be found in the comment on the site I am linking to.

Details: http://www.sitejabber.com/reviews/www.kleargear.com

Re:Good

[tysonedwards]

Easy... They had the person's full name and address, probably more relevant contact information.

Think of it this way... a call to Equifax, Experian or Transunion to submit a complaint saying "This person placed a very large order with us, but then reversed payment after the fact. Here is their name, address, phone number, email, dog's middle name, ..."

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.

Fret not

[smittyoneeach]

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

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:Fret not

[Anonymous Coward]

Awww...Look what the public education system produced!

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

[shikaisi]

Ding Ding Ding Ding

Is that you, Hector Salamanca?

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.

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

[Anonymous Coward]

I seem to recall it beeing seedier than even that.

IIRC, at the time the transaction was said to take place, KlearGear had not yet even PENNED that clause in their contract, and as such any such term was never a term even presented to the customer at the time of said transaction.

In the venerable wors of Darth Vader: "I am altering the deal, pray I don't alter it further."

Essentially KlearGear is claiming a breach of contract that was never even presented to the customer, as grounds for their dickishness.

If true, the woman's lawyers are going to can their spammy asses.

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

[Shakrai]

Actually the idea is readily demonstrable in the real world. Take the right to keep and bear arms, which society still hasn't figured out how to effectively take away even in the most controlled of environments, as evidenced by the plastic shank sticking out of some poor bastard in the prison shower. It is the quintessential 'natural right', one that all human beings are born with, and one that is impossible to completely deprive them of. Free speech is the same, you can punish someone after the fact if you're an oppressive regime that doesn't recognize it, but you can't actually stop them from exercising it in the first place.

Re:Waiver of rights

[mysidia]

IIRC, at the time the transaction was said to take place, KlearGear had not yet even PENNED that clause in their contract, and as such any such term was never a term even presented to the customer at the time of said transaction.

That is even worse for KlearGear; as it changes the violation from harassment, FCRA violations (for reporting a false loan, from which no goods or services were exchanged) and FCBA violations --- into fraud.

Changing your "terms" after the fact, and pretending as if your new terms apply to a previous sale, so you can extort your customer, is fraud.

Re:Waiver of rights

[meerling]

Courts have already declared that those kinds of 'agreements' (this includes EULAs) can not remove rights, no matter what the agreement says.
They're allowed to talk about it, and in a negative fashion, so long as they stick to facts and their opinions. (NDAs are a bit different.)
For that matter, the clause saying you can't badmouth them apparently didn't exist at the time those people interacted with that company. So the company is trying to retroactively change the agreement, which is illegal.
The threats the company sent, sure look like blackmail, or at least some form of illegal attempt to influence imo. (ianal)
Don't forget that the company never delivered the contracted goods, so the contract was invalidated by them for failure to fulfill the contract. Heck, even the credit card company agreed to that and revoked payment.
That company also used the logos of the Better Business Bureau and TRUSTe improperly, without permission, and I believe, illegally. I know of know other reason to fake having endorsement by such "trust" organizations as those for any reason other than to run a con. Add that with the companies attempts at avoiding contact and keep as many details secret as they can, and you really have to wonder about their motives. In my case, it's more of a just how extensive and widespread their guilty actions are rather than a more common question of their guilt.

By the way, if that company were to legally prevail, it would be a horrible precedent. It would probably by about 3 seconds before most companies had the same kind of B.S. 'agreements' employed. You wouldn't be able to say or do anything bad about any company lest you be 'charged' a huge penalty. You probably couldn't even recommend a competitors product or store to a friend, since that would be an action that negatively affects a company. And when it comes to abusing laws, it's it's not a matter of if, it's only a matter of when.

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

[Solandri]

Contracts restrict the first amendment right to free speech (which only applies to the government) all the time. A non-disclosure agreement is a perfect example.

The problem in this case is that KlearGear failed to fulfil their part of the contract (didn't deliver the goods), but then are trying to say the other party is still bound by the contract terms. You cannot hold the other party accountable to a contract while you willfully ignore it. There is no longer a valid contract because KlearGear broke it. The negative reviews are basically the woman saying KlearGear broke the contract.

Re:Waiver of rights

[rossz]

Also, "The Federalist Papers". A must read for anyone who wishes to understand the thinking behind the creation of our Constitution.

Re:Waiver of rights

[Mr. Shotgun]

Oh it gets even better than that, the husband was the one placing the order. Meaning Kleargear is trying to assert a contract that was never fulfilled ( never delivered the product) using a term that was not present at the time of signing (Non-disparagement was added after) based on the actions of the wife, who didn't agree to anything. IANAL, but I am pretty sure that is against the law, fraud being at least one.

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

[Zeinfeld]

The contract clause is unenforceable for multiple reasons. The first amendment has a bearing on one of them.

First there is no contract, The goods were never delivered, KlearGear failed to perform its obligation, there was never an exchange of a consideration. Therefore no contract.

Second, the original agreement was with the husband, the comments were made by the wife.

Third, the contract terms were added after the original agreement as is demonstrated by the Way Back Machine archives

Fourth, even if there had been a contract it would be a contract of adhesion. The seller defines the terms and the buyer has a weak negotiating position. In such cases civilized jurisdictions (i.e. not necessarily a corrupt jurisdiction) generally strike out clauses that are surprising or contrary to normal practice absent clear proof that the buyer was aware the term existed. A line of text in a fifty page contract in 6pt type is not normally enforceable.

Fifth, the term in question was unconscionable which means that it offends the basic principles of commerce and/or society. Constitutional precedent and in particular the first amendment is frequently used to establish that a clause is 'unconscionable'. Kleargear is not 'violating' the first amendment but the courts are not going to enforce a contract term whose purpose is to take away constitutionally protected rights.

Sixth, even if all the above were not so, the claim for $3,500 is a liquidated damages clause and thus invalid. As a matter of public policy, corporations are not allowed to set fines.

Seventh, the amount was clearly in dispute. Thus the reporting to Experian was in breach of the fair credit reporting act.

I am sure that there are weaker claims out there, but I can't think of one offhand.

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: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.

asdf

[BradMajors]

"KlearGear is hiding behind a DomainsByProxy domain name to making finding their real identities harder.

KlearGear.com Legal Department
2939 Wilson Ave SW
Grandville, MI 49418-3502
Phone (866) 598-4296

Kleargear is maildrop, claims 2% tornado donations

[Anonymous Coward]

The Kleargear.com address at 2885 Sanford Ave. SW in Grandville MI is really a mail forwarding/disguised address popular with companies doing horrible things to people, and is run by a company called Mailbox Forwarding, Inc.: The mail-forwarding service is not unfamiliar to the BBB. “Over the years, we’ve had many issues with businesses that use that address”

Here's another address for them, thanks to this press release through United Business Media's PRNewswire. If they try to retract it, here's a copy at The Sacramento Bee:

Christophe Monette, CEO of Kleargear parent Descoteaux Boutiques, has been pleasantly surprised...

Margaux Banet
2885 Sanford Ave SW #19886
Grandville, MI 49418
United States

Descoteaux Boutiques
ZAC Paris Rive Gauche
118-122 Avenue de France
75013 Paris
France

And this press release also says "Kleargear is donating 2% of net sales between November 17th and December 17th to The American Red Cross in support of our friends and neighbors affected by Sunday's devastating tornado outbreak across the Midwest." Who wants to bet any of their money gets to anyone who's ever seen a tornado? Best to check on the legitimacy of these charity solicitations of course. Michigan Attorney General Bill Schuette has been making charity fraudsters one of this pet projects lately: See "A Michigan Crackdown On Charity Fraud". I'll bet Schuette's office would be more than happy to hear about any problems from companies that happen to officially give their state of residence as Michigan and claim to help Michigan tornado victims. The Michigan Attorney General has a specific phone number for Questions About Charities.

Of course, maybe the French address is fake too. They're a bit pickier about that in France though, I think. Anyone have the contact info for the corporation regulators or charity regulators in Paris?

Also: The BBB gave Kleargear.com an F rating, before Kleargear.com inserted this ruin-your-customers-lives clause in their terms and then faked the A+ rating on their website. For those of you who can't see popups on the BBB site: As of November 28, 2012, the BBB became aware that the company's website is displaying a BBB Accredited Business logo and BBB Rating A+; however, the company is not a BBB accredited business and the BBB rating is not A+. The BBB contacted the company regarding these issues and this matter is pending the company's response. As of November 28, 2012, the BBB discovered that some pages of the company's website display the BBB Accredited Business Logo and state "BBB Rating A+", when neither is true. The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site. This matter is currently pending.