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(KUTV Utah)   Company that fined a negative reviewer $3500 about to learn how the Internet works   (kutv.com) divider line 210
    More: Dumbass  
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14008 clicks; posted to Geek » on 15 Nov 2013 at 7:49 PM (40 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



210 Comments   (+0 »)
   
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2013-11-15 06:44:06 PM
Just change the review.

"I loved the fact that I couldn't reach a human being. Their hold music was fantastic and I got to listen to two hours of it before they disconnected me abruptly."
 
2013-11-15 07:03:48 PM
Seems to me a Terms of Sale is only enforceable (and I doubt this one is regardless) if an actual sale has occured in which money is exchanged for goods and services. No such exchange took place, so no sale occured, and no TOS is in play.
 
2013-11-15 07:15:18 PM
My vote is to find the company and destroy it.
 
2013-11-15 07:19:52 PM

aimtastic: Seems to me a Terms of Sale is only enforceable (and I doubt this one is regardless) if an actual sale has occured in which money is exchanged for goods and services. No such exchange took place, so no sale occured, and no TOS is in play.


That's what I was thinking, no sale, no contract.  I suspect the couple will have a case against the company providing the company stays in business.
 
2013-11-15 07:23:13 PM
Can I third the idea?  If kleargear is going to go after them for breach of contract, maybe they should consider the fact that they breached the contract first?

/This is one of the times I think tort reform can have negative consequences
//They should be able to afford a lawyer on a contingency basis
 
2013-11-15 07:25:01 PM
A term of sale contract that explicitly forbids badmouthing a product? Yeah, good luck trying to enforce that.

I'm not a lawyer, but I didn't think that unrelated actions to commerce could be tied to an act of commerce, especially on a level outside of a federal government (which would run into 1st amendment protections in that case). Any attempt to curtail consumers is, on the surface, indefensible just on the subjective nature of words and tone alone.

"Oh, I had SUCH a wonderful experience. There was absolutely ZERO PROBLEMS at all with shipping times, and they NEVER did a double charge on my account. 100% recommend."
 
2013-11-15 07:44:32 PM
So here's the part I'm curious about: How many people have actually paid said fine? Just wondering, because this sounds completely and totally like BS.  It sounds like something Monster Cable would do.

\and that whole "wtf is kleargear?" part of it, too
 
2013-11-15 07:55:12 PM

Lord Jubjub: Can I third the idea?  If kleargear is going to go after them for breach of contract, maybe they should consider the fact that they breached the contract first?

/This is one of the times I think tort reform can have negative consequences
//They should be able to afford a lawyer on a contingency basis


They would need an attorney defending them against the fine.

This clause, is not going to be enforceable. Particularly because the transaction was never consummated in the first place.
 
2013-11-15 07:57:07 PM

basemetal: aimtastic: Seems to me a Terms of Sale is only enforceable (and I doubt this one is regardless) if an actual sale has occured in which money is exchanged for goods and services. No such exchange took place, so no sale occured, and no TOS is in play.

That's what I was thinking, no sale, no contract.  I suspect the couple will have a case against the company providing the company stays in business.


If anything, they could file a suit claiming damages through [insert legalese here] due to their credit being tarnished through this TOS crap.  If they could afford the lawyer.
 
2013-11-15 07:57:39 PM

Lord Jubjub: Can I third the idea?  If kleargear is going to go after them for breach of contract, maybe they should consider the fact that they breached the contract first?

/This is one of the times I think tort reform can have negative consequences
//They should be able to afford a lawyer on a contingency basis


Tort reform is always a bad idea, because tort reform = hard limits on the penalties companies can take for ruining lives. "Frivolous" lawsuits are anecdotal welfare-queen bullshiat.
 
2013-11-15 07:58:38 PM
Big time BS. Not only is it ridiculous to muzzle your customers just because you suck, but since a sales was not made -- i.e., kleargear was the first to violate the contract -- the Palmers shouldn't be held to it anyway, right?

Bring them to court, sue the shiat out of them to get your credit mess cleared AND for the usual "fark you" of whatever they can manage.

That all said, they kleargear just bought themselves $3500 worth of bad press. Thanks you, Internet!
 
2013-11-15 08:04:00 PM

Anonymous Bosch: Lord Jubjub: Can I third the idea?  If kleargear is going to go after them for breach of contract, maybe they should consider the fact that they breached the contract first?

/This is one of the times I think tort reform can have negative consequences
//They should be able to afford a lawyer on a contingency basis

Tort reform is always a bad idea, because tort reform = hard limits on the penalties companies can take for ruining lives. "Frivolous" lawsuits are anecdotal welfare-queen bullshiat.


But McDonalds! And the coffee!

/And the second or third degree burns derived from the hotness of said coffee
 
2013-11-15 08:09:12 PM

Snarcoleptic_Hoosier: Anonymous Bosch: Lord Jubjub: Can I third the idea?  If kleargear is going to go after them for breach of contract, maybe they should consider the fact that they breached the contract first?

/This is one of the times I think tort reform can have negative consequences
//They should be able to afford a lawyer on a contingency basis

Tort reform is always a bad idea, because tort reform = hard limits on the penalties companies can take for ruining lives. "Frivolous" lawsuits are anecdotal welfare-queen bullshiat.

But McDonalds! And the coffee!

/And the second or third degree burns derived from the hotness of said coffee


That one always pisses me off when people bring it up.

The coffee was over temp by a ridiculous margin and the cup was so flimsy it had very little structural integrity if the lid was off.

Lady deserved the money.
 
2013-11-15 08:13:09 PM
The couple should sue the company for the value of the loans they were denied. You can't enforce a Term of Sale when the sale was cancelled with no goods being purchased.
 
2013-11-15 08:14:04 PM
When we tried calling Kleargear.com we were unsuccessful in getting through to anybody.

Oooo, that's a finin'.
 
2013-11-15 08:17:03 PM
Let's see...$3500 from klearwhatever or $2000 from ripoffreport. And there's lots of bad reviews about klearwhatever on ripoffreport.

Maybe they share a bed?
 
2013-11-15 08:21:04 PM
She contacted Ripoffreport.com to ask that the post be removed but Ripoffreport.com won't let her without paying $2000 she says.

LOLWUT?
 
2013-11-15 08:26:54 PM
think they dont ship goods on purpose and then just make money off of negative fine revenue
 
2013-11-15 08:28:00 PM
I don't think a "don't' bad mouth us" clause is even enforceable in the first place.  Even if the sale did go through.
 
2013-11-15 08:29:33 PM
I sure hope Fark doesn't have a TOS where Drew can send robots to butt-rape you if you mention "goat, see?".
 
2013-11-15 08:30:19 PM
My question for the lawyers:

Can anyone but a court impose a "fine"?? WTF is up with that terminology?

It's like those mediators they put you in front of during disability hearings. They call them judges but they aren't.
 
2013-11-15 08:31:16 PM
Sounds like kleargear at kleargear.com are going to find out that 'people from the internet' are easily motivated to respond to douchy practices. If I were a lawyer at kleargear, it a kleargear owner I'd get busy contacting this woman to at least get some positive spin on this for kleargear, otherwise if anyone googles kleargear they will get a whole heap of links telling them how much kleargear sucks.
 
2013-11-15 08:40:21 PM
Anonymous Bosch:
Tort reform is always a bad idea, because tort reform = hard limits on the penalties companies can take for ruining lives. "Frivolous" lawsuits are anecdotal welfare-queen bullshiat.

No, they really aren't. There's quite an industry in the US featuring third-rate lawyers who aren't good enough to win real cases, but who can fill out lots of forms to file suit for amounts just small enough to be profitable, but not large enough for the target to have to fight it. If you sue for $10,000 and the legal bills will be $100,000, most businesses and insurance companies will settle.

Most people never heard about the bulk of frivolous lawsuits, because most of them aren't funny enough to make the papers, but there's always a "man sues because his beer was flat" or something similar working its way through any local court system.
 
2013-11-15 08:42:09 PM

Peki: My question for the lawyers:

Can anyone but a court impose a "fine"?? WTF is up with that terminology?

It's like those mediators they put you in front of during disability hearings. They call them judges but they aren't.


they place a levy/lien on you for a debt.  See they send you a bill for the fine and also send that bill to say equifax and equifax says "hey these douches aren't paying this debt" and so they downgrade your credit based on a bill that you haven't paid that is attributed to you.  No court necessary.  When you challenge the fine...that is when a court gets involved.  Kleargear will likely be burned to the ground by any decent lawyer.  Besides...it isn't libelous if its true.  Freaking sociopaths.  Nagative reviews aren't libel unless they are false.  And to determine libel...well that would require a civil charge in court and obviously they didn't do that...so they can't impose a fine based on the fact that...they don't like her opinion.

/popcorn @ hearing
 
2013-11-15 08:45:35 PM
Yeah they need to get a lawyer who will take the case on contingency as this is likely as close to a slam dunk as you can get.
 
2013-11-15 08:49:10 PM
I tried to call Kleargear and all I got was a busy tone.
 
2013-11-15 08:49:39 PM

TDBoedy: they place a levy/lien on you for a debt.


Yeah, okay, then. The word fine is probably being used then to make people think they've already gone to court and gotten a ruling.

/Fnords. Fnords everywhere.
 
2013-11-15 08:52:31 PM
Car_Ramrod
2013-11-15 08:21:04 PM


She contacted Ripoffreport.com to ask that the post be removed but Ripoffreport.com won't let her without paying $2000 she says.

LOLWUT?

She ought to post that in a negative review of rippofreport.com on rippofreport.com
 
2013-11-15 08:55:49 PM
FARK should be able to destroy. SMASH FARK SMASH!!
 
2013-11-15 08:56:53 PM

OnlyM3: Car_Ramrod: She contacted Ripoffreport.com to ask that the post be removed but Ripoffreport.com won't let her without paying $2000 she says.

LOLWUT?
She ought to post that in a negative review of rippofreport.com on rippofreport.com


For this particular scam to work Kleangear must own ripoffreport.com. ;)
 
2013-11-15 08:58:23 PM
Company threatens civilian for posting negative commends = OUTRAGE.

obama creates a website for you to report people who disagree with him = bookmark.

// seems consistent.
 
2013-11-15 08:58:54 PM
FTA:  Jeff Hunt is a First Amendment attorney in Salt Lake City. We asked him to weigh in on Jen's story.

"I think this is outrageous that a company like this would force a consumer to relinquish their first amendment rights to speak about their product as a condition of sale," Hunt said. "I've never seen anything like it."

Hunt says he thinks there is a good chance a judge would say that non-disparagement clause is unconstitutional.


Um, I'm not a lawyer, but on re-reading the First Amendment, it pretty clearly applies to the Government. I think there might be a tort claim in there somewhere, but neither the U.S Government nor the State of Utah violated their First Amendment protections.

Any actual lawyers (as opposed to Fark Lawyers) want to weigh in on that ?

/For the record, I think the TOS are unreasonable.
 
2013-11-15 09:01:23 PM

A_bomb37: The coffee was over temp by a ridiculous margin


This.  By way of examples most references I seen state the home coffee makers run at around 140 degrees the coffee she was burned by was between 180-190 degrees.  And McDonalds had received hundreds (700 between 1982 and 1992) of complaints about coffee temperature before this event and had even settled at cases to a total tune of $500K.  180 degree water can cause third degree burns in 3 seconds.  She had burns over 16% of her body and 6% were third degree.  At the trial her attorneys presented evidence that lowering the temperature to 160 °F (71 °C) would increase the time for the coffee to produce such a burn to 20 seconds, which meant she might have been able to get the sweatpants she was wearing away from her skin.  McDonalds own expert admitted that drinking coffee that hot would burn the mouth and throat if immediately consumed.  Stories about the event all say that she did her best to get out of the seat but could not move fast enough.

A_bomb37: Lady deserved the money.


It is also worth noting that the millions of dollars($2.7 million) was two (2) days worth of coffee sales.  And she had offered to settle for much much less (at one point she just wanted the amount of the medical bills and expenses which are generally reported to be $20K).  And a court appointed mediator recommended they settle for $200K before the trial but they refused.  And she spent 8 days in the hospital for treatment which included debridement and skin grafts.  During this period, Liebeck lost 20 pounds (9 kg, nearly 20% of her body weight), reducing her to 83 pounds (38 kg).

Oh and the decision was appealed by both McDonald's and Liebeck in December 1994, but the parties settled out of court for an undisclosed amount less than $600,000.  And for one small detail, she was sitting in the passenger seat of a parked car.

But hey, who needs context and actual details... McDonalds and media talking heads managed to deflect and reduce facts to spin a story and did so like a boss.   They played the same kind of maneuver that Ford tried with the pinto, cost of litigation vs risk and managed to win in terms of public relations.  And her suit and the juries reason for the punitive damage amount was meant to get them to turn the temperature down on their coffee.

They still have not turned the temperature down.

/Sources include: Wikipedia, Public Herald, citizen.org, and the New York Times
 
2013-11-15 09:02:02 PM
The good folks at Popehat are all over this. Their opinion is that kleargear may be guilty not merely of douchebaggery, but actual criminal fraud.

The technical term for what they are doing is, apparently, a "contract of adhesion", which in layman's terms means they are about to be farked worse than a twinkie in Federal lock-up.
 
2013-11-15 09:09:15 PM
OnlyM3: obama creates a website for you to report people who disagree with him = bookmark.

I am unsatisfied with this post, I expected griping about the stupidity of anti-consumerism and instead I found political bullshiat, would not read again.
 
2013-11-15 09:09:21 PM
It's a series of tubes!
duh
 
2013-11-15 09:11:10 PM
czetie: The good folks at Popehat are all over this.

According to that link the terminology wasn't even on her site when she attempted to purchase the item.
 
2013-11-15 09:11:16 PM
So you can't badmouth Kleargear if you've made a purchase...but I haven't, so I'm free to tell everyone that Kleargear could be described with words such as scam, failure to deliver, late delivery time, bad customer service, fraud, rip-off, thievery, swindle, phony, extortion...
 
2013-11-15 09:12:15 PM
One of my friends brought this exact story up the other day. He is a corporate lawyer and he was saying that these people need to contact their state's Attorney General's office because this is very illegal. He was saying depending on the state, the Attorney General's office loves going after cases like these. Then he said once the Attorney General is done with them they need to file a claim in small claims court for the jurisdictional maximum.
 
2013-11-15 09:17:30 PM

Target Builder: Sounds like kleargear at kleargear.com are going to find out that 'people from the internet' are easily motivated to respond to douchy practices. If I were a lawyer at kleargear, it a kleargear owner I'd get busy contacting this woman to at least get some positive spin on this for kleargear, otherwise if anyone googles kleargear they will get a whole heap of links telling them how much kleargear sucks.


It would seem that Kleargear's website has crashed and that their FB page has mysteriously disappeared. Hmmm.....
 
2013-11-15 09:24:44 PM
I'd like to point out that those of us who have never purchased anything from or interacted with this scumbag company are in no way affected by any such clause.  We're free to go around proclaiming them the child molesters of their industry, and good luck proving that any given one of us caused actionable damages to their slimy reputation.
 
2013-11-15 09:25:48 PM
The second return in a google for kleargear  is "kleargear complaints."

Sorry kleargear, you've made your bed.
 
2013-11-15 09:27:40 PM
Looks like I'm going to need to talk about this on my radio show tomorrow and warn my listeners to stay away from buying anything from this company.
 
2013-11-15 09:34:02 PM

Snuffybud: It would seem that Kleargear's website has crashed and that their FB page has mysteriously disappeared. Hmmm.....


Their website is working fine for me.
 
2013-11-15 09:35:44 PM
It has begun

There are many reviews as a result of this story coming out, but there are also ones dating before this story. Apparently not only do they "fine" you for posting negative reviews, but they will charge you an additional $50 if you file a complaint with Pay Pal or whoever you used to make your payment. How in the hell are these guys still even in business?
 
2013-11-15 09:37:49 PM
Jen and her husband also disputed the ding with the credit bureaus but because Kleargear.com says the charge is valid the the ding remains.

Yep, gotta love our complete farked up credit reporting system.  Automatically takes the side of any company that claims you owe them money as long as they say so.
 
2013-11-15 09:41:21 PM
To the Wayback Machine! I read that the douchey language was inserted in their TOS after the 'sale' ostensibly took place.
 
2013-11-15 09:43:12 PM

Stone Meadow: Snuffybud: It would seem that Kleargear's website has crashed and that their FB page has mysteriously disappeared. Hmmm.....

Their website is working fine for me.


It was down when I posted, it's working now for me too. However their comment/complaints/inquiry link leads to a dead page!
 
2013-11-15 09:43:52 PM

ongbok: It has begun

There are many reviews as a result of this story coming out, but there are also ones dating before this story. Apparently not only do they "fine" you for posting negative reviews, but they will charge you an additional $50 if you file a complaint with Pay Pal or whoever you used to make your payment. How in the hell are these guys still even in business?


Although the most recent reviewer (from today) says he contacted customer service, who confirmed the no negative review policy, I cannot find anything like that on their ToS page. Anybody else find it?
 
2013-11-15 09:46:08 PM
Kleargear kicked my dog and raped my futon.
 
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