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KlearGear can’t collect $3,500...

Discussion in 'Computer & Technology' started by slowmo, May 16, 2014.

  1. slowmo

    slowmo Well-Known Member

    Judge: KlearGear can’t collect $3,500 from couple that left negative online review
    Never-delivered $20 purchase begat a bad review, which led to litigation.
    by Cyrus Farivar

    Who wouldn't order from a nice-looking website like this?

    A federal court judge has ruled in favor of a Utah couple who criticized an online retailer for not delivering a less-than-$20 order in December 2008. That ruling was published on Thursday.

    According to Jennifer Palmer, the original order consisted of “a perpetual-motion desk toy and a bendable smiley-face keychain” that were to be Christmas gifts to her from her husband John.

    After repeatedly attempting to contact the company by phone and e-mail, the couple reached a customer representative, who claimed that the items had never been paid for and had been cancelled.

    By February 2009, Jennifer Palmer posted a review on RipoffReport.com lambasting the company and its poor customer service.

    Over three years later, her husband John Palmer received an e-mail demanding that the review be deleted within 72 hours or that he pay $3,500 as he was in violation of the company’s “non-disparagement clause” of its terms of service. However, such a term did not appear in the Terms of Sale and Use that the Palmers had agreed to when they placed their order in 2008.

    When the Palmers refused to pay or take down the review, KlearGear sent a collection agency to them for this money, which damaged their credit by August 2012. By December 2013, the Palmers filed suit in federal court in Utah, asking the judge to issue a declaratory judgment in their favor, saying that the Palmers’ “debt” was “null and void.” The couple also wanted the judge to rule that John Palmer had not agreed to this “non-disparagement clause,” which is in violation of the First Amendment of the Constitution.

    They were represented by Paul Allen Levy, a well-known First Amendment attorney who works for Public Citizen, a non-profit organization.

    The online firm in question, KlearGear.com, did not appear in court to challenge the suit, and the judge issued a default judgement earlier this month.

    “Our reaction to the result is that we're relieved and very happy to have confirmation that John owes nothing, and also relieved to know that nobody can come after us in the future attempting to collect on this ‘debt,’” she told Ars by e-mail.

    The company did not respond to Ars’ repeated phone calls to the company’s listed 866 phone number, nor was there any response at the French phone number of Descoteaux Boutiques in Paris, which owns the URL KlearGear.com.

    The judge will hold a ruling in early June in federal court in Salt Lake City to determine damages.

    Jennifer Palmer also told Ars that the experience has changed how they interact online.

    “The only changes we've made in how we speak, act, and shop online is that we are more likely to stay with trusted sites, like Amazon or ThinkGeek, we are more likely to study the reviews others have left about products or vendors, and we are much more likely to leave reviews of our own,” she said. “This whole ordeal has shown us just how important it is to communicate our experiences, both good and bad.”

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    This is a real jewel of an outfit. I remember reading this some months back before they decided to take it to court and there is more not mentioned in this article.

    So many businesses have tried to control the bad reviews by making false claims that eventually what was known as anti-SLAPP (Strategic Lawsuits Against Public Participation) laws have been made in most states. California has one of the stronger set of laws dealing with this.

    First, the TOS was not there when the order was placed and this is mentioned in the article. Second was even if John Palmer had agreed to this mess, it wasn't him that made the negative review. It was his wife who had no connection to the TOS, having never ordered anything from them herself.

    Last, among the damages caused the couple by the bad credit was the cancellation of their credit cards and the inability to pay cash for a new furnace when the old one crapped out. It was a few weeks before they could save the money since the credit cards no longer worked. This is what will cost KlearGear who could not send the items paid for.

    Now KlearGear played fast and loose while dealing with the Palmers over this matter. First they changed their TOS some time after the fact to something that would never hold up in court and delayed answering after the first contact. Then they took down the TOS only to reinstate it later. KlearGear temporarily disappeared from the net, only to resurface with another domain. No story on why that happened.

    The thing to learn here is that having a thin skin and attempting to control bad reviews rarely works out for the company attempting to do it in a dirty fashion. The streisand effect puts lighting on the companies reputation. There are rumors that the Palmers weren't the only customers having this sort of kick back on bad reviews. So this may again surface later.
    Lasted edited by : May 16, 2014

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