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Woman Fined For Bad Review Striking Back In Court

Soulskill posted about 5 months ago | from the jury-to-be-fined-for-unfavorable-verdict dept.

The Internet 249

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."

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249 comments

Good (5, Interesting)

jason777 (557591) | about 5 months ago | (#45557921)

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

Fret not (5, Funny)

smitty_one_each (243267) | about 5 months ago | (#45557937)

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

Re:Fret not (2)

HellCatF6 (1824178) | about 5 months ago | (#45557991)

They'll just pop up again somewhere else like bad mushrooms.

Re:Fret not (-1)

Anonymous Coward | about 5 months ago | (#45558111)

i think some ASS TO MOUTH action would make you feel much better about those mushrooms. your mouth to someone else's filthy rancid asshole of course.

Re:Fret not (-1)

Anonymous Coward | about 5 months ago | (#45558183)

Do I stick the mushrooms in your asshole? Asshole, are you cool with felching?

Re:Fret not (-1, Flamebait)

Anonymous Coward | about 5 months ago | (#45558037)

I wish you CONservatives would shut the hell up about the IRS. Your claims of imaginary persecution wrt the imaginary scandal (http://en.wikipedia.org/wiki/2013_IRS_scandal) are ridiculous. Just because your kind is selfish and doesn't want to pay their fair share doesn't make the IRS the bad guys. They are just doing their job unlike the Republicans like you that are obstructionists and keep blocking spending intended to help this country.

Re:Fret not (4, Funny)

Anonymous Coward | about 5 months ago | (#45558099)

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

Re: Fret not (0, Offtopic)

Anonymous Coward | about 5 months ago | (#45558167)

It produced a person who can use his brain?

Re: Fret not (2, Funny)

Anonymous Coward | about 5 months ago | (#45558337)

Anonymous Cowards with multiple personality disorder

Re: Fret not (-1)

Anonymous Coward | about 5 months ago | (#45558357)

Don't forget the VPN account needed to avoid the dreaded "Slow down, cowboy! It's been 6 hours,12 minutes, and 37 seconds since you last posted a comment."

Re:Fret not (-1)

Anonymous Coward | about 5 months ago | (#45558221)

Taxes aren't necessary to fund the government. The fed can do it buy buying govt bonds and refunding the interest to the Treasury, so the govt borrows at zero cost. If private citizens want to help, they can buy bonds too which will then pay them interest; a much better deal than paying taxes.

Re:Fret not (2)

mcvos (645701) | about 5 months ago | (#45558279)

So basically they should just print money?

Re:Fret not (0, Insightful)

Anonymous Coward | about 5 months ago | (#45558971)

They print it right now with reckless abandon. Its not enough. This nation, even with its recognition as a world reserve currency provider, is still sinking ever deeper in debt.

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

Its now at the point if the government handouts cease, there will be rioting in the street that would be remind anyone of the kind of violence one ususally sees in the Middle East.

Re:Fret not (1, Insightful)

Anonymous Coward | about 5 months ago | (#45559111)

So America, prior to Roosevelt is your idea of paradise.... I gotta love you right wingers trying to repeal the 20th century as if the 19th century was some kind of utopia.

Re:Fret not (3, Insightful)

Anonymous Coward | about 5 months ago | (#45558289)

A predecessor to the United States already tried this. It was an abject failure. Did you know that rich people who think "someone" should fund the government almost always mean "someone else, obviously, I've got yachts to buy" ?

Re:Fret not (3, Insightful)

khallow (566160) | about 5 months ago | (#45558317)

Did you know that rich people who think "someone" should fund the government almost always mean "someone else, obviously, I've got yachts to buy" ?

I haven't noticed that being rich had an effect on that particular mindset. The point of government is to give me free shit. Having me actually pay for that defeats the purpose - whether I'm rich or poor.

Re:Fret not (5, Insightful)

the eric conspiracy (20178) | about 5 months ago | (#45558529)

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 (0)

Anonymous Coward | about 5 months ago | (#45558911)

The point of government is to give me free shit.

Please die now if you honestly believe that.

Re:Fret not (1)

Anonymous Coward | about 5 months ago | (#45558897)

Wow, you're out there.

Re:Fret not (4, Insightful)

DavidClarkeHR (2769805) | about 5 months ago | (#45558053)

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:Good (0)

Anonymous Coward | about 5 months ago | (#45558009)

Out of business is not good enough. I hope the owners/managers whoever responsible for this goes broke personally.

Hope the judge says 75k isn't enough... How about ALL YOUR MONEY! ALL OF IT! GONE! HOW'S THAT YOU SCUMBAGS AT KLEARGEAR!

Re:Good (2, Insightful)

bagorange (1531625) | about 5 months ago | (#45558041)

Out of business is not good enough

Dead right.
The right wing are forever claiming that corporations are people. Let's see these lowlifes in jail, and I will believe the rightists for once.

Re:Good (0)

Anonymous Coward | about 5 months ago | (#45558935)

Odd how you were modded as a troll but you've identified a major problem - corporations cannot be executed.
PAY ATTENTION SLASHTARDS
This is what's happening - corporations and government are in an ever rapidly speeding game of "fuck someone with money". Corporations fuck people to take their money, and then the government fines corporations to take some of the money from them.

Re:Good (5, Insightful)

FlyHelicopters (1540845) | about 5 months ago | (#45558015)

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 (2)

BattleApple (956701) | about 5 months ago | (#45558187)

I find it interesting that they're already blocked by the proxy server where I work... but, nice.

Your request was denied because of its content categorization: "Business/Economy;Suspicious"
GET "http://www.kleargear.com/"

Re:Good (5, Informative)

jonfr (888673) | about 5 months ago | (#45558765)

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 [sitejabber.com]

Re:Good (5, Interesting)

linuxrocks123 (905424) | about 5 months ago | (#45558705)

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 (0)

Anonymous Coward | about 5 months ago | (#45558887)

They'll probably just pop up somewhere else under a new name. It's like those various "free" credit report companies. They come and go all the time, but most people don't think enough to go after the parent umbrella corporation. So much shady shit in that regard, I'm surprised it hasn't been made illegal.

Rip Off Report (-1)

Anonymous Coward | about 5 months ago | (#45557975)

A cesspool of shit and lies. Hopefully the judge throws out this case in favor of the $75,000 fine, and fines Rip Off Report for the countless libel that spews off that site without any legal ramifications whatsoever. Fuck Rip Off Report in the butthole

Re:Rip Off Report (-1)

Anonymous Coward | about 5 months ago | (#45558185)

kill yourself

Re:Rip Off Report (1)

Anonymous Coward | about 5 months ago | (#45558587)

The "company" (I use the term very loosely because I am sure it's just some dinky server sitting in your mom's basement) KlearGear is guilty of fraud for changing contract terms after the fact and for stealing this woman's money without providing her with the product she ordered.

I hope you enjoy getting pounded in the ass, because fraud carries a prison sentence of 5-10 years.

Waiver of rights (5, Insightful)

Anonymous Coward | about 5 months ago | (#45557977)

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 (2, Insightful)

arbiter1 (1204146) | about 5 months ago | (#45558013)

that "never acting to harm KlearGear" clause is not legally binding IMO. Since in this case it violated her first amendment right to say that she had bad service from KlearGear. For them to say in a contract she couldn't do that is complete BS. as for suring for 75grand, i would sued for a lot more then that.

Re:Waiver of rights (2, Insightful)

Anonymous Coward | about 5 months ago | (#45558035)

Unless KlearGear is run by either the Federal or a state government, how can they be violating the First Amendment?

Re:Waiver of rights (0)

AK Marc (707885) | about 5 months ago | (#45558231)

They can't. They aren't going after them for civil rights violations. Try to keep up.

Re:Waiver of rights (1)

Anonymous Coward | about 5 months ago | (#45558645)

Did you bother reading what I responded to?

Since in this case it violated her first amendment right to say that she had bad service from KlearGear.

Re:Waiver of rights (2, Insightful)

AK Marc (707885) | about 5 months ago | (#45558779)

Yeah, parse that for me. If "the legal system" allowed her to be punished for exercising her right to speech, then Congress (or someone else) passed a law abridging the right of freedom of speech.

Re:Waiver of rights (2)

BronsCon (927697) | about 5 months ago | (#45558073)

Even moreso, my understanding is that the transaction, upon which the contract was reliant, was cancelled by KlearGear, which would render the contract null and void, would it not?

Re:Waiver of rights (5, Interesting)

Anonymous Coward | about 5 months ago | (#45558217)

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 (5, Interesting)

mysidia (191772) | about 5 months ago | (#45558463)

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 (1)

Anonymous Coward | about 5 months ago | (#45558105)

that "never acting to harm KlearGear" clause is not legally binding IMO. Since in this case it violated her first amendment right to say that she had bad service from KlearGear. For them to say in a contract she couldn't do that is complete BS. as for suring for 75grand, i would sued for a lot more then that.

Well, since KlearGear never actually shipped her the product, it's hard to make any claim that there is a contract in place at all, and if there is, KlearGear broke it by accepting payment and not shipping product.

Re:Waiver of rights (-1)

Anonymous Coward | about 5 months ago | (#45558117)

> violated her first amendment right

Wrong. You Republicans may always lie and claim that the Constitution grants you rights, but in the real world, us adults know for a fact that it only grants a small number of rights to the subjects of the USA. As the USOC recognized, the first amendment only grants the right from government restrictions on free speech. Other entities such as companies or schools are not required to grant you the right to free speech. Please stop treating the Constitution like a religious document. It is not. It is very limited and very specific.

Re:Waiver of rights (5, Insightful)

jmac_the_man (1612215) | about 5 months ago | (#45558225)

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 (2, Insightful)

Anonymous Coward | about 5 months ago | (#45558293)

The idea that 'people have natural rights' is not falsifiable. Your disgreement with the OP is an entirely religious one.

Re:Waiver of rights (4, Interesting)

Shakrai (717556) | about 5 months ago | (#45558341)

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 (3, Insightful)

artor3 (1344997) | about 5 months ago | (#45558359)

By that logic, we have the right to rape and murder.

Re:Waiver of rights (1)

Anonymous Coward | about 5 months ago | (#45558483)

technically yes, you do have the right, but you will be accountable for what you did

free speech works the same way, you will be held accountable for it

and i believe this is also the reason why anonymity and free speech is very powerful combination,
you can freely say anything you want without being held accountable

Re:Waiver of rights (1)

artor3 (1344997) | about 5 months ago | (#45558949)

But with free speech, the government cannot punish you, only your fellow citizens (at least, that's how it's supposed to work). Surely you don't think it should be the same with murder?

If your idea of a "natural right" is anything a human being is physically capable of doing, then the term loses all meaning.

Re:Waiver of rights (0)

Anonymous Coward | about 5 months ago | (#45559119)

How is this insightful? It is fucking idiocy, like the rest of anti-gun thinking.

Re:Waiver of rights (5, Insightful)

Kjella (173770) | about 5 months ago | (#45558591)

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 (1)

Anonymous Coward | about 5 months ago | (#45559013)

...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. ...

You fail to understand what "right to life" means. Right to Life is not the "Right to never die" or "not be killed".

Right to Life means you are not compelled to lay down and let the lion eat you. You have a right to defend yourself with lethal force if your life is threatened. For animals, right to life is defended with tooth and claw. For humans, our best weapon is the brain, and the ability to create and use tools that come with it. Your right to life is preserved by shooting the lion in the face when he attacks.

Now replace Lion with Mugger, Thug, Gang-Member, or some other name for criminal goblin-types that have no respect for your rights.

Rights exist, but you must exercise and protect them. They are not a magic shield.

Re:Waiver of rights (3, Insightful)

Impy the Impiuos Imp (442658) | about 5 months ago | (#45558495)

> The idea that 'people have natural rights' is not falsifiable. Your disgreement with the OP is an entirely religious one.

BS. The "government" doesn't exist -- only people and things exist. To say "the government" grants you rights means other people grant you rights. How in god's name did they get this awesome power? Why do you think it's proper to get on bended knee and beg for rights from them?

People can't "grant" rights, but they sure as hell can take away others' rights. Stop lying supine for your masters, begging for your life, and your right to live, liberty, property, and happiness.

Re:Waiver of rights (2)

dwywit (1109409) | about 5 months ago | (#45558717)

But for nearly all intents and purposes, the government *does* exist. It is a legal construct, and the people elected to represent our interests possess the power, via legislation, to affect many aspects of your life. You're right that "other people grant you rights", but they don't do it as individuals, they do it via the legal entity known as government. One of the things that's handy about having a "government" grant you rights, pass legislation, etc, rather than individuals is that you don't have to re-affirm legislation every time there's an election. Collectively, we agree to the legal construct because life would be chaos otherwise.

Re:Waiver of rights (1, Insightful)

Sique (173459) | about 5 months ago | (#45558743)

You got it reverse. Of course people can grant rights. All your rights are granted by other people. You as yourself don't have any rights. It's just an agreement between people that you have rights. They are not inherent to your being. If you don't believe it go into the next civil war zone and then tell me about your rights to property or free speech or due process. Those rights don't exist in a civil war zone, because there are no people there willing or able to grant you those rights.

It's that big association of people often referred to as "society" or "state", that is able to keep up the rights you seem to believe are your own. As soon as you move out of that association, you also lose the rights you were granted.

Re:Waiver of rights (3, Insightful)

tpstigers (1075021) | about 5 months ago | (#45558459)

The purpose of the Constitution is to limit the power of the federal government. Period. It grants no rights, nor does it assume that anyone has any sort of "natural rights". The Bill of Rights is simply a list of things the federal government is not allowed to do.

Re:Waiver of rights (1)

Anonymous Coward | about 5 months ago | (#45558981)

The purpose of the Constitution is to limit the power of the federal government. Period.

Where did you read that? The preamble says:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Why would they waist so much ink if all they meant was:

We the people of the United States, in order to limit the power of the federal government, do ordain and establish this Constitution for the United States of America.

Maybe because the constitution also established the federal government and delegated its powers to executive, legislative and judicial branches, defined what they would be and how they would be chosen (etc, etc, etc...)?

Re:Waiver of rights (2, Informative)

ArbitraryName (3391191) | about 5 months ago | (#45559021)

Where did you read that?

The 10th Amendment.

Re:Waiver of rights (0)

Anonymous Coward | about 5 months ago | (#45559065)

The 10th Amendment.

The 10th Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

How does that support your statement that "The purpose of the Constitution is to limit the power of the federal government. Period." ? It doesn't. All it says is that according to the 10th ammendment the rest is up to the states or the people. No where does it say that the purpose of the constitution is to limit power of federal governement, because the purpose was to define it. Perhpas you meant that the purpose of the 10th ammendment of the bill of rights was to limit the power of federal government?

(yes, I am an incorrigible pedant, but this is important shit!)

Re:Waiver of rights (1)

tgd (2822) | about 5 months ago | (#45558181)

First amendment is about what the government can't restrict you.fromdoing, not anyone else.

Re:Waiver of rights (3)

mysidia (191772) | about 5 months ago | (#45558465)

First amendment is about what the government can't restrict you fromdoing, not anyone else.

The government includes the courts, and all the laws passed by the federal government and state legislatures ---- including contract law.

No contract that purports to accomplish something, that is illegal or outside the government's power in the first place, has the force of law.

Re:Waiver of rights (5, Interesting)

meerling (1487879) | about 5 months ago | (#45558475)

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 (5, Interesting)

Solandri (704621) | about 5 months ago | (#45558617)

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 (2)

Pinhedd (1661735) | about 5 months ago | (#45558671)

The first amendment has nothing to do with this. It simply prevents the government from creating any law which abridges the freedom of speech. The freedom to speak about certain matters is something that the government cannot take away from you without a damn good reason, however the freedom to speak about certain matters is something that individuals can sign away on their own.

Non disclosure agreements are incredibly common contracts in the business world that in effect are in effect unilateral or bilateral restrictions on one's freedom of speech. Breaching an NDA can result in civil liability as well as various criminal offences under some trade secret acts.

NDAs have been found to be enforceable many times in the past as they are often necessary to protect sensitive private information and provide a legal vehicle for redress in the event of such disclosure. However, I agree that a judge would find that a clause prohibiting criticism of a product would be unconscionable, but not for reasons of violating the first amendment.

Re:Waiver of rights (1)

gnasher719 (869701) | about 5 months ago | (#45558771)

that "never acting to harm KlearGear" clause is not legally binding IMO. Since in this case it violated her first amendment right to say that she had bad service from KlearGear. For them to say in a contract she couldn't do that is complete BS. as for suring for 75grand, i would sued for a lot more then that.

Bad but correct reviews are not harmful. To the contrary, they force the company to improve their products and services, which can only improve their profits in the long term.

Re:Waiver of rights (2)

cirby (2599) | about 5 months ago | (#45558093)

The problem with that line of attack is... KlearGear apparently added that part after this all happened.

No, you can't take action against someone for a "contract" you put up after you did something wrong. They also deleted the web page with the "contract" after someone pointed that out.

Not to mention that KlearGear never actually sent the items in question, and PayPal cancelled the purchase automatically.

Re:Waiver of rights (4, Insightful)

russotto (537200) | about 5 months ago | (#45558145)

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 (0)

Anonymous Coward | about 5 months ago | (#45558347)

The term is ex post facto... 'After the fact'. The constitution expressly prohibits this, not that it stopped Bush from pardoning telcos from eavesdropping after the fact.

Re: Waiver of rights (0)

Anonymous Coward | about 5 months ago | (#45558629)

The term is ex post facto... 'After the fact'. The constitution expressly prohibits this, not that it stopped Bush from pardoning telcos from eavesdropping after the fact.

This would be relevant if Kleargear was the government and their ex post facto sales clause was a law they passed to retroactively prosecute. As they are not the government, the constitution doesn't regulate their operation. This sales clause is not legal, but you'll need to find a lawyer to tell you why.

Re: Waiver of rights (0)

Anonymous Coward | about 5 months ago | (#45558655)

I'm not disagreeing that what you mention was wrong, but that segment is in regards to ex post facto punishments. Generally you can't pardon someone until after they've done simething wrong, so it's (almost) always ex post facto.

Re:Waiver of rights (2)

mysidia (191772) | about 5 months ago | (#45558237)

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.

My understanding is: while the buyer placed an order and paid: the retailer never delivered their order. Therefore, the order was unfulfilled, AND, there was not completion of the "contract" as agreed; therefore, if true, then there was no contract, or the retailer was in breach, because:

Certain elements must be met for a contract to exist:

  • An offer
  • Acceptance by competent persons having the legal capacity who exchange consideration to create mutuality of obligation
  • Proof of some or all of these things may be done in writing --- although contracts can be made entirely orally, or by other conduct.
  • Remedy for breach can be compensatory damages or specific performance. Only the party at loss of the benefit of the bargain; or expectancy damges ("injured party's interest in realizing value to be gained from the expectance of the other party fulfilling their promises")

However..... If the buyer never received the gear from KlearGear --- then Consideration was not exchanged; therefore, the terms of the sale weren't fulfilled.

The other word is contract of adhesion, or standard form contract [wikipedia.org] or ("shrink wrap agreement") ----- terms and conditions are set by one of the parties. The other party has little or no ability to negotiate more favorable terms and is thus placed in a "take it or leave it" position.

While these types of contracts are not illegal per se, there exists a very real possibility for unconscionability. In addition, in the event of an ambiguity, such ambiguity will be resolved contra proferentem against the party drafting the contract language.

The doctrine of unconscionability is a fact-specific doctrine arising from equitable principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.)

[...] Courts in the United States have faced the issue of shrink wrap contracts in two ways. One line of cases follows ProCD v. Zeidenberg which held such contracts enforceable (e.g. Brower v Gateway), and the other follows Klocek v. Gateway, Inc, which found them unenforceable. These decisions are split on the question of assent, with the former holding that only objective manifestation of assent is required while the latter require at least the possibility of subjective assent.

Re:Waiver of rights (1)

Kjella (173770) | about 5 months ago | (#45558727)

Playing the devil's advocate here, I'd see many situations where it'd be reasonable to ask that the details be kept secret even if the transaction is not completed, for example if you're negotiating a buyout under an NDA. What if you're negotiating the sale of the entire inventory? A big part of it? A small part of it? A single item? I can sort of understand companies that want to say we want this resolved by the terms of the agreement and in court if necessary, but you can't try to publicly blackmail us by going to the media with it. On the other hand, I really feel you should be able to tell about someone who screwed you over.

Re:Waiver of rights (1)

jthill (303417) | about 5 months ago | (#45558803)

We the people need the right of fair dealing. We can't have weird contractual conditions imposed.

We do. The legal term for terms like these is "unconscionable [cornell.edu]".

Re:Waiver of rights (0)

Anonymous Coward | about 5 months ago | (#45559039)

First off, there could be no contract ... as there was a total failure of consideration by Kleargear by not providing the goods the couple bought. No consideration ... no contract.

Second, You can't subsume people's rights in a contract (be they consumer rights, constitutional rights or whatever).

Third, these turkeys really need to be reamed badly. They give US private enterprise a bad name, and they are lower than whale poo. Fines are probably out of the question, as they'll hide behind some corporate veil ... what is REALLY needed is some jail time for the officers of the company, some shareholder asset retention and some serious aggravation to be showered on all and sundry who had anything to do with running this turkey.

Whatever happened to... (0)

Anonymous Coward | about 5 months ago | (#45558005)

good ol' fashioned ass whippings? I mean a lot of things like this would come to a screeching halt.

Re:Whatever happened to... (3, Funny)

Concerned Onlooker (473481) | about 5 months ago | (#45558065)

I don't think so. A lot of people are into that sort of thing.

Re:Whatever happened to... (1)

c0lo (1497653) | about 5 months ago | (#45558261)

I don't think so. A lot of people are into that sort of thing.

Yeah... think of the lost jobs and taxes... what would happen if nobody has to pay for spanking or whipping any more?

Just wait for more EULA's and the TPP / ACTA (1)

Joe_Dragon (2206452) | about 5 months ago | (#45558029)

As with some EULA tied to software than can have stuff it in that says if you don't follow our rules then you are licensed to use this site.

Now under the unauthorized access to a computer network law that can make it an felony.

also the ACTA / TPP can set the bar real low as well.

Re:Just wait for more EULA's and the TPP / ACTA (5, Insightful)

ledow (319597) | about 5 months ago | (#45558071)

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:Just wait for more EULA's and the TPP / ACTA (3, Insightful)

Nerdfest (867930) | about 5 months ago | (#45558123)

Well, it used to be that nothing trumped the Constitution, but that seems to have changed too.

Re:Just wait for more EULA's and the TPP / ACTA (0)

jklovanc (1603149) | about 5 months ago | (#45558405)

The First Amendment bars the government from making certain laws. It has no bearing on clauses put into private contracts.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Is there anything in that about creating a contract that states that certain things can not be said and setting up penalties for breaking the contract? The First Amendment is about Government/citizen interaction not citizen/citizen interaction.

Re:Just wait for more EULA's and the TPP / ACTA (1)

mysidia (191772) | about 5 months ago | (#45558479)

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.

It's true, but the EULAs also typically require binding arbitration, and preclude class actions ---- the courts tend to respect those terms.

Also; the arbitrators used to conduct the binding arbitration, tend to be more sympathetic to the business than to the consumer.

While consumer law may always win in theory ----- it becomes more muddled, when the big company is able to select the venue, in which any challenge to the agreement will be conducted.

Re:Just wait for more EULA's and the TPP / ACTA (1)

Anonymous Coward | about 5 months ago | (#45558493)

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.

Oh? Is that what happened when the court ruled that Blizzard's EULA retroactively caused sales to not have really happened, thereby making their game only playable by the terms of the suddenly-binding EULA, which is what contained the words, that once they were retroactively made binding, caused the retail transfer of title to have not occurred (thereby making the EULA become binding)?

(If what I just said sounds stupid and circular, don't blame me.)

Re:Just wait for more EULA's and the TPP / ACTA (1)

Arker (91948) | about 5 months ago | (#45558993)

There are a lot of protections built into contract law here.

Unfortunately they all seem to be ignored lately. No way is a EULA a valid contract on its face, yet courts have enforced them nonetheless.

KlearGear.com - geeks rule... (1)

Anonymous Coward | about 5 months ago | (#45558121)

Some geek's rules: "Thou shalt not steal", "Thou shalt not bear false witness against thy neighbor.", "Thou shalt not covet.".

Interesting,.. (0)

labiator (193328) | about 5 months ago | (#45558139)

Only the one link to Inc 500 works from their recommendations / As seen in...
Maybe we need to contact Media relations Maven
Margaux Banet
Media Relations
KlearGear.com
2939 Wilson Ave SW
Grandville, MI 49418-3502
Phone (616) 965-2426
Fax (616) 965-2427

One question (1)

jonr (1130) | about 5 months ago | (#45558203)

Not that many people check or even know what it is, but why would any sane person give money to a website who uses domainbyproxy?

The biggest problem for KlearGear (1)

Tancred (3904) | about 5 months ago | (#45558485)

in the case, it seems to me, is that they never delivered on their end of the sale, yet still seek to enforce the other side of the contract.

Of course, it's a BS, should-be-unenforceable clause of the contract that may not have even been in the contract at the time. The above seems like the easiest way to win the case, but hopefully Public Citizen can get some precedent set for it as unenforceable.

asdf (5, Informative)

BradMajors (995624) | about 5 months ago | (#45558489)

"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

Re:asdf (0, Funny)

Anonymous Coward | about 5 months ago | (#45559001)

KlearGear.com Legal Department
1060 West Addison Street
Chicago, IL 60613

FTFY

Google Streetview says (0)

Anonymous Coward | about 5 months ago | (#45559035)

Their 'Legal Department' is in a strip mall next to a railroad track.

good news for Everclear! (1)

beckett (27524) | about 5 months ago | (#45558569)

Any publicity is good publicity! we're talking about the drink, right? oh crap.

Arrogance plus ignorance (1)

Anonymous Coward | about 5 months ago | (#45558631)

I always find it amazing how the companies/individuals exhibiting the greatest levels of both arrogance and ignorance are also just plain stupid enough to think they're the only ones who will get away with acting like an all-time dick.

Just these two posts on this site will likely cost them several to many thousands of dollars. My suggestion: People here should help spread the word about this mess to friends and relatives. Since KG.com is so concerned about their image, I think we should help people see what they're really like.

Uhmm.... (0)

Anonymous Coward | about 5 months ago | (#45558757)

The sale was never completed, so how can they be bound by the terms of service?

Also, what about the contact information on your credit report? Didn't they fight the collection agency?

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