Chilling effects for the holidays.

November 15, 2013 12:43 PM

With the holiday shopping season upon us, it might be prudent to read the terms and conditions of a sale before posting a negative review on line. Jen Palmer found this out the hard way.
posted by pjern (58 comments total)

No, citizen, this is merely well considered and measured forward thinking by job-creators.
posted by digitalprimate at 12:47 PM on November 15, 2013 [4 favorites]

Um, they never sent the product so there never was an actual sale to have terms. Tell them to go pound sand.
posted by The 10th Regiment of Foot at 12:48 PM on November 15, 2013 [34 favorites]

Yeah, exactly. No contract because no consideration, I would think.
posted by clockzero at 12:49 PM on November 15, 2013

Oh, and blah, blah First Amendment, blah...
posted by The 10th Regiment of Foot at 12:49 PM on November 15, 2013

Yes- but since they can't afford a lawyer, well...
posted by showbiz_liz at 12:49 PM on November 15, 2013 [2 favorites]

what sale? No sale occurred. Since the company did not provide the product, no consideration was given for the contract. Therefore no contract existed. Therefore, the company has no right to enforce any contractual claim.
posted by Ironmouth at 12:49 PM on November 15, 2013 [3 favorites]

They should report it to the Federal Trade Commission. What they are doing is illegal and criminal fraud because they are reporting to a third party that a contract existed when it did not.
posted by Ironmouth at 12:50 PM on November 15, 2013 [23 favorites]

You should add the name kleargear to the post tags so the FPP shows up in google search results for the company.
posted by elizardbits at 12:51 PM on November 15, 2013 [34 favorites]

Ironmouth: "They should report it to the Federal Trade Commission. What they are doing is illegal and criminal fraud because they are reporting to a third party that a contract existed when it did not."

Plus extortion.
posted by zarq at 12:51 PM on November 15, 2013 [8 favorites]

Gagging orders are standard practice in law, not surprised to see a retailer trying it. Gagging orders, like laws that only the rich can afford, mean there is effectively no rule of law in many areas: you are not allowed to know the truth, and if you find out the hard way there is nothing you can do about it.

I hope people realise how this harms ordinary people - even if you and I don't fall foul of these, we all pay higher prices as a result because the bad guys win.

And sure, this particular company might be shamed and lose sales this one time. But it just means that next time they'll just flood the review sites with false positives instead.
posted by EnterTheStory at 12:59 PM on November 15, 2013

"I'll see your fine, and raise you a RICO."
posted by TheWhiteSkull at 12:59 PM on November 15, 2013 [4 favorites]

As for Jen being threatened - remove the post or face a fine - the company said that was not blackmail but rather a, "diligent effort to help them avoid [the fine]."


True diligence would consist of not assessing the fine in the first place.
posted by ogooglebar at 1:08 PM on November 15, 2013 [2 favorites]

According to Popehat its doubtful that the non-disparagement clause even existed at the time of the sale 3 years ago.

So what we may have here is simple fraud.
posted by COD at 1:10 PM on November 15, 2013 [1 favorite]

"Jen Palmer's husband ordered her a number of trinkets from the website kleargear.com"

Jen says she tried to call the company but could never reach anyone. So frustrated, she turned to the internet writing a negative review on ripoffreport.com.

So aside from the transaction not being completed, it was Jen's husband who (may or may not have) entered into some kind of agreement with kleargear, which may or may not be valid. However it was Jen who posted about the experience. So they can't really threaten Jen, since she was not part of the experience nor her husband who did not make the post.

Maybe they can't afford a lawyer to go on the defensive, but they should be able to find one willing to work on contingency to go on the offensive and sue the company for a large number of things I'm sure a lawyer could find in this case.
posted by mikepop at 1:11 PM on November 15, 2013 [1 favorite]

Wow, I'd be all up in the State Attorney General's Bidness about this. And raising holy hell with Pay Pal, et. al.

Then I'd sue them.

I'm also gripped by an urge to call their toll free number repeatedly to cause them to lose money and block others from attempting to buy things from them.

So basically, I'd be the complete asshole that I am.
posted by Ruthless Bunny at 1:11 PM on November 15, 2013 [2 favorites]

Maybe they can't afford a lawyer to go on the defensive, but they should be able to find one willing to work on contingency to go on the offensive and sue the company for a large number of things I'm sure a lawyer could find in this case.

Exactly! There are plenty of folks out there that would take this one on for a nice retainer!
posted by The 10th Regiment of Foot at 1:13 PM on November 15, 2013

a. The clause did not exist at the time of the transaction.
b. The clause, even if it did exist, is almost certainly not enforceable.
c. Even if it did exist and was enforceable, there was no sale and thus no contract.

That said, the real problem is not the fraud that Kleargear is perpetrating, but the credit reporting system that allows fraudsters to extort fees from consumers with the credible threat serious financial consequences.
posted by Nothing at 1:14 PM on November 15, 2013 [22 favorites]

mikepop: ""Jen Palmer's husband ordered her a number of trinkets from the website kleargear.com"

Jen says she tried to call the company but could never reach anyone. So frustrated, she turned to the internet writing a negative review on ripoffreport.com.

So aside from the transaction not being completed, it was Jen's husband who (may or may not have) entered into some kind of agreement with kleargear, which may or may not be valid. However it was Jen who posted about the experience. So they can't really threaten Jen, since she was not part of the experience nor her husband who did not make the post.

Maybe they can't afford a lawyer to go on the defensive, but they should be able to find one willing to work on contingency to go on the offensive and sue the company for a large number of things I'm sure a lawyer could find in this case."

You beat me. How there could exist contract when the company's half remains unfulfilled and then to have that non-existant contract spread to others in the household of the contractee is ridiculous.

I am so tempted to start up a pseudonymous review blog just to say terrible things about them. Let them fine me when I never did business with them.
posted by Samizdata at 1:21 PM on November 15, 2013 [3 favorites]

Yeah, unenforceable. This is bait for the "hurf durf all banks are evil" comments, but the real bummer here is that the credit card company apparently didn't let them dispute the charge, which is how this should have resolved.
posted by eugenen at 1:21 PM on November 15, 2013 [1 favorite]

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

What? Someone should also do a ripoff report on Rippoffreport. Not that she should have had to take down her post but in trying to resolve it, she runs into this ridonkulous road block? Why $2,000? Is it a gold-embedded post or something?
posted by Marie Mon Dieu at 1:26 PM on November 15, 2013 [9 favorites]

Presumably that's the same fee that charge companies.
posted by MCMikeNamara at 1:28 PM on November 15, 2013 [1 favorite]

How much does Metafilter charge to have a comment removed?
posted by Hairy Lobster at 1:35 PM on November 15, 2013

$20, same as in town.
posted by m@f at 1:37 PM on November 15, 2013 [9 favorites]

If you have to ask...
posted by Atreides at 1:37 PM on November 15, 2013 [3 favorites]

Should have seen it coming...
posted by Hairy Lobster at 1:39 PM on November 15, 2013

...the credit card company apparently didn't let them dispute the charge, which is how this should have resolved.

But PayPal did cancel the transaction, so there was no charge to dispute. The real flaw is with the credit reporting system. When Jen disputed the ding on her credit report, the credit agency simply asked Kleargear, "Is this ding valid?" and Kleargear said, "Yep, it's valid!" so it stayed.

Jen's real problem is that this ding is preventing her from getting credit. In the old days before credit scores and risk-based lending, she could have explained the situtation to a prospective lender, who might say, "Yeah, that's bullshit, we won't count it against you." But nowadays, there's no way for a lender to separate that one item out of a credit score.
posted by ogooglebar at 1:40 PM on November 15, 2013 [6 favorites]

I've got an idea, let's run the government like a business!!!
posted by Pogo_Fuzzybutt at 1:45 PM on November 15, 2013 [5 favorites]

It's not really a flaw in the credit reporting system. The credit reporting system serves the merchants, not the consumers. It's working exactly as intended, for the benefit of the merchants.
posted by COD at 1:49 PM on November 15, 2013 [3 favorites]

There's this awesome new trend of local TV channels going after minor white collar crimes like this. I freaking love it so much. Especially the New York channels. They're like "Fraud? Fuggitaboutit!"
posted by Potomac Avenue at 1:52 PM on November 15, 2013 [2 favorites]

ogooglebar: "When Jen disputed the ding on her credit report, the credit agency simply asked Kleargear, "Is this ding valid?" and Kleargear said, "Yep, it's valid!" so it stayed."

This makes no sense to me. All three major credit score reporting agencies provide a process for contesting anything that appears on your credit report. All three also have customer representatives who address complaints and contested claims on a case-by-case basis. They should be able to investigate this and amend the report accordingly, especially if she's being subjected to extortion by the merchant.
posted by zarq at 1:54 PM on November 15, 2013

zarq, I think you're assuming the credit rating agencies have an incentive to conduct business in a fair, transparent and efficient manner.
posted by justsomebodythatyouusedtoknow at 1:57 PM on November 15, 2013 [5 favorites]

This is utterly ridiculous, and I completely agree with what everyone has said above.

One question, though, and I don't mean this as a derail; the "First Amendment Attorney" quoted in the piece says that the company "forced the consumer to relinquish their first amendment rights".
This is incorrect, right? I agree that the company is alleging that she is bound by these terms but, even if she were subject to this nonsense gag requirement, that would be independent from the First Amendment which specifically prohibits government interference in speech, right?
I apologize if this is a derail; that just sounds like bad lawyering to me.
posted by staccato signals of constant information at 2:00 PM on November 15, 2013 [2 favorites]

There's this awesome new trend of local TV channels going after minor white collar crimes like this. I freaking love it so much. Especially the New York channels. They're like "Fraud? Fuggitaboutit!"

Here in the PNW, you would "Get Jesse!"
posted by It's Raining Florence Henderson at 2:02 PM on November 15, 2013 [2 favorites]

Paging Dr. 4chan.
Dr 4chan to the asshole-smiting phone please.
posted by lalochezia at 2:09 PM on November 15, 2013 [7 favorites]

Screw the credit reporting agencies with a rusty spork. Parasites.
posted by gottabefunky at 2:16 PM on November 15, 2013

They should be able to investigate this and amend the report accordingly, especially if she's being subjected to extortion by the merchant.

I do not work for a credit reporting agency, but I do work for a credit union. Occasionally, our borrowers have disputed information that we have reported to credit agencies. When this happens, we receive, by mail, a report of the tradeline (the item that appeared on the credit report), the borrower's description of why he or she is disputing the item, and the agency's request that we verify or correct the information. All we have to do for verification is check the box that says "The information is correct as reported", sign it, date it, and mail it back in the enclosed pre-addressed envelope.

Of all the times we have done so, that has been the end of it. Perhaps there are instances when the credit agencies' representatives investigate further and make the corrections themselves. I've just never seen it happen.
posted by ogooglebar at 2:27 PM on November 15, 2013 [3 favorites]

Given that they don't seem to, y'know, actually sell things, I wonder if this extortion is in fact kleargear's business model.
posted by ostro at 2:27 PM on November 15, 2013 [4 favorites]

justsomebodythatyouusedtoknow: "zarq, I think you're assuming the credit rating agencies have an incentive to conduct business in a fair, transparent and efficient manner."

True.

ogooglebar: "Perhaps there are instances when the credit agencies' representatives investigate further and make the corrections themselves. I've just never seen it happen."

Ugh. Thanks for explaining. I didn't know.
posted by zarq at 2:29 PM on November 15, 2013

I'm also gripped by an urge to call their toll free number repeatedly to cause them to lose money and block others from attempting to buy things from them. So basically, I'd be the complete asshole that I am.

Let me complete your training - you call from a pay telephone. That costs even more for a toll free call as I remember.

The credit reporting system serves the merchants, not the consumers. It's working exactly as intended, for the benefit of the merchants.

Not the merchants - the banks.
posted by rough ashlar at 2:33 PM on November 15, 2013

It's not really a flaw in the credit reporting system. The credit reporting system serves the merchants, not the consumers. It's working exactly as intended, for the benefit of the merchants.

This isn't even cynicism. It's the absolute truth. There is no incentive, other than the few weak protections that appear in the Fair Credit Reporting Act, for the credit reporting agencies to do anything with credit information except to collect it and report it.
posted by ogooglebar at 2:34 PM on November 15, 2013

Not the merchants - the banks.

Sometimes, merchants carry their own credit accounts. Insurance companies, employers, and landlords also use credit reports. But COD is basically right - the system only serves consumers to the extent that it makes it easier for them to borrow.
posted by ogooglebar at 2:39 PM on November 15, 2013

Hey it looks like they have a facebook page! Sweet!
posted by Big_B at 2:39 PM on November 15, 2013 [2 favorites]

> I am so tempted to start up a pseudonymous review blog just to say terrible things about them. Let them fine me when I never did business with them.

Why should they have to resort to making up bullshit fines if you're straight-up libeling them? The law would be on their side, no matter how loathsome they are.
posted by ardgedee at 3:19 PM on November 15, 2013

Why is anyone calling this a "fine" as if it had some legal status? It's at worst a charge, but it's really extortion. And she wasn't the customer!
posted by etaoin at 3:22 PM on November 15, 2013 [4 favorites]

If she paid via Paypal, how is Kleargear dinging her credit report / have access to information with which to ding her credit? Is all they need a name and address?
posted by mrbill at 3:38 PM on November 15, 2013

I'm pleased to report that googling their name results in the majority of the first page of search results being about their larceny.
posted by arcticseal at 3:56 PM on November 15, 2013 [2 favorites]

So much wrong in this article.

The first amendment doesn't bind consumers, vendors or credit bureaux.

Not delivering or not paying don't invalidate a contract, they are breaches of contract and never performed contracts are sued upon a thousand times a day.

Credit bureaus exist so companies can MAKE loans, which is how they make money, not so they can deny loans for spurious reasons, which costs money. False dings are as much a threat to a credit bureau's business as absence of true dings.
posted by MattD at 4:12 PM on November 15, 2013 [2 favorites]

Big_B: "Hey it looks like they have a facebook page! Sweet!"

Not anymore, it seems.
posted by brokkr at 4:14 PM on November 15, 2013

The nondisparagement clause was added in 2012, but her husband (not even her!) ordered the goods in 2008.
posted by Sticherbeast at 4:15 PM on November 15, 2013 [1 favorite]

It looks like a method to take advantage of people who are especially lacking in both resources and saavy to fight this kind of patently bogus credit trolling, and these people appear to be especially lacking in resources and saavy.
posted by anazgnos at 4:21 PM on November 15, 2013

As I was searching, I found a delightful product on Kleargear's own sire that sums up their approach to customer service.





Because every desk needs a grenade.

Everyone has their fair share of complaining to do now and then, but frankly, no one wants to hear it. So when you've had as much as you can take, pull out the Complaint Department Grenade as John from accounting tells you his sob story about his cheating wife and blah blah blah.

Shaped like a real grenade, this handy device tells onlookers to take a number for their turn to whine. It makes an amusing office gag or can be used to alert others of how little you care.

Perfect for IT Departments and Call Centers.
posted by louche mustachio at 4:27 PM on November 15, 2013 [1 favorite]

Credit bureaus exist so companies can MAKE loans, which is how they make money, not so they can deny loans for spurious reasons, which costs money. False dings are as much a threat to a credit bureau's business as absence of true dings.

Not disagreeing with you, but credit agencies surpassed their useful purpose of providing a measure that could be used as a proxy to determine a person's creditworthiness w/r/t loans years ago. They (FICO scores) are now being used as a way to deny people jobs, housing and insurance. Given the huge negative impact this can have on people's livelihoods and lives, the credit agencies should either be held or hold themselves (ha!) to a higher standard than just fucking up someone's FICO score because some shady business said so.

People give lawyers a lot of shit but considering that businesses generally put profitability above being generally responsible/decent and the government basically does what the businesses tell them to - there's not much else that protects everyday people from total abuse and exploitation.
posted by triggerfinger at 7:49 PM on November 15, 2013

Perhaps there are instances when the credit agencies' representatives investigate further and make the corrections themselves. I've just never seen it happen.

I had a spurious "debt" go to collections after the company responsible was totally unresponsive. I disputed it, waited weeks to hear anything, finally got a tiny letter in the mail that their investigation said the debt was valid. Total fucking bullshit.
posted by Steely-eyed Missile Man at 9:33 PM on November 15, 2013

Furious, Jen decided to Get Gephardt.

I stared at this sentence for like 5 minutes trying to understand what it meant: was it a reference I wasn't getting? is getting Gephardt like 'going Galt'? Before I figured out it was the name of the feature.
posted by Uther Bentrazor at 1:14 AM on November 16, 2013

Triggerfinger -- businesses pay huge subscription fees to the credit bureaux, and would not continue to do so if they had any reason to believe the information was systemically inaccurate -- and this is true for everyone who uses them, including landlords, insurers and employers, each of whom loses money if they don't write a lease or policy, or hire a second-best person, because of defective information or bad interpretation of the same at the credit bureaux.

If I were this couple, I wouldn't focus on the credit bureaux as much as I would focus on their customers. If Citibank denies you a credit card because an extortionist put a ding on your Experian, it's a senior Citibank official to whom you should send your letter, because he's the one paying tens of millions of dollars a year to Experian.
posted by MattD at 7:04 AM on November 16, 2013

Yeah, that's going to have a big effect, I'm sure.
posted by Steely-eyed Missile Man at 8:07 AM on November 16, 2013

As long as there are more applicants than positions, credit bureaux are incentivized to err on the side of lowering individuals' credit scores. HR departments typically need reasons to narrow their search, not to broaden it.
posted by Sticherbeast at 8:44 AM on November 16, 2013

...businesses pay huge subscription fees to the credit bureaux, and would not continue to do so if they had any reason to believe the information was systemically inaccurate...

I can't agree with you 100% on this. A business will use credit reports, not because they're highly accurate, but because they're better than nothing. Credit agency subscribers don't really have any leverage to improve accuracy. The agencies provide information "as is", and claim it's up to the subscribers who report to ensure accuracy. Yeah, there are three major credit agencies, but subscribers can't really play one against the others, because they all have a high level of errors. Furthermore, because many creditors do not report to all three, lenders are often forced to pull reports from all three to get as complete a picture as possible. This isn't the kind of situation to encourage error-free reporting.
posted by ogooglebar at 9:32 AM on November 16, 2013