KlearGear Rep Delivers NEW 'Final' Statement About Company's Legal Battle, Trashes Complaining Customers It Hit With A $3,500 Fee
from the unbridled-jackassery dept
KlearGear, via Vic Mathieu, apparently likes the hole it's in, but is still finding it a bit too cozy for its liking. In an amended "final" statement sent to Ars Technica, Descoteaux Boutiques' (apparently overseas owner of KlearGear) Mathieu digs deeper. (h/t to an anonymous Techdirt commenter)
The expanded statement below concludes our public comment about the case of Palmer vs. Kleargear.com.I thought this was concluded yesterday...
After the payment method of John Palmer was declined for an order in December 2008, he was belligerent toward our customer care staff and threatened to defame Kleargear if he did not receive free merchandise and other consideration.Even if this is true (and there's no reason to believe it is until Mathieu provides some proof of this), this doesn't explain why nothing was pursued until 2012 (something Mathieu points out in his previous "final" communication), conveniently after KlearGear added its Non-Disparagement Clause.
Such a customer behavior is rare but it has become a increasing problem for many companies today. DBS' head of retail for North America, Lee Gersten, spends nearly half of every year in the United States and Canada and cites this problem as one of the reasons that we started to eliminate Kleargear.com's social media channels in 2012.First off, shouldn't the North American "head of retail" spend more than "nearly half" the year in the area he services? Secondly, the social media channels didn't go dead until late 2013, shortly after the Palmers' story went national. Either KlearGear's social media handlers are grossly incompetent or this is nothing more than desperate revisionism.
While buySAFE protects our customers' interests on every transaction and can confirm that our rate of dispute is below 0.1%, less than 1 in 1,000 customers, this track record is not public and dissatisfied consumers have a stronger voice.I've reached out to buySAFE for confirmation on this claim. I will update when an answer is received.
The non-disparagement agreements are not new among employees, partners and customers across the globe.The fact that other stupid companies and people exist doesn't make KlearGear's policy any less stupid.
There is no contract of adhesion; Kleargear.com operates in the consumer discretionary sector, which does not provide essential services, so that consumers are free to shop elsewhere. Our sales contract is enforceable under the laws of the United States because business transactions are exempt from First Amendment rights.Except that you would need to complete a sale for it to be enforceable (and even in this case, it's far from a foregone conclusion). The Palmers never received the items they ordered, so no "sale" was actually made. It takes two parties to make a sales contract enforceable, and KlearGear didn't hold up its end.
In our opinion, the arguments and the actions of Public Citizen's Scott Michelman are irresponsible and uninformed, at best, and constitute an abuse of process at worst. Mr. Michelman seems to be an unscrupulous attorney who has made considerable efforts to incite a biased "media storm" to hide this fact.I'm sure angering the opposing attorney is sound business decision. [eyeroll] And Michelman had nothing to do with the "media storm." Since Mathieu can't seem to keep up, I'll provide a short point-by-point timeline.
1. Palmers order -- but never receive -- merchandise. (2008)
2. Jen Palmer posts negative review at Ripoff Report. (2009)
3. KlearGear contacts the Palmers to let them know they're being fined $3,500 for the negative review. (2012)
4. Matt Gephardt of KUTV investigates. (2013)
5. Story goes national, a.k.a. the "media storm." (November 14, 2013)
6. Public Citizen sues KlearGear on the Palmers' behalf (November 26, 2013)
First the storm -- then the lawsuit.
Despite this tactic, or perhaps because of it, Kleargear's revenues in the third calendar quarter of 2013 increased by 124% compared to the same period in 2012 - and revenue for the year to date in 2014 is up 72% compared to 2013.Citation, please.
If DBS is presented with an order for judgment on the above-mentioned civil action, which is void on the basis of defective service alone, we will not honor it.Might want to reread the Hague Convention. As pointed out by a commenter in the last article, it appears DBS was properly served at KlearGear's Michigan address.
"Another proper method of service is to serve a subsidiary corporation. ... Service within the forum state is not governed by the Hague Convention."Mathieu continues:
In addition, such an invalid judicial resolution will not serve to dissuade Kleargear or other retailers from binding their customers to non-disparagement terms.Every company is free to be as stupid as they want to be...
If and when Mr. Michelman and Public Citizen decide to conduct themselves properly, we will participate in this dispute as any honorable corporate citizen would.You wouldn't know the meaning of the word "honorable" if it slapped you with a $3,500 non-enforceable fee four years after it failed to deliver purchased items.
Mathieu claims a stellar customer service record, but its customer service has been routed through Zendesk (who I've also reached out to for comment/information) and its policies related to customer service matters range from the questionable to the abusive.
In addition to the $3,500 Non-Disparagement Clause, KlearGear has, over the years, also charged a non-refundable "Dispute Fee" to customers' credit cards, which is deployed in case of a chargeback or a refund request. If KlearGear is unable to collect the Dispute Fee, it will:
forward your account to our external collections agency and assess an additional $500.00 Collection Fee.Any dispute also carried with it the chance that KlearGear would report the customer to BadCustomer.com. The only thing preventing KlearGear from doing this today is the fact that BadCustomer.com was shut down by the FTC for participating in a billing scam that extracted $275 million from credit card users' accounts over a 4-year period. Here's how its chargeback policy works in practice.
Due to a recent dispute filed with your credit card bank in connection with your Order #29296 on 11-Sep-2012, you now owe an additional $50.00 per our Chargeback/Dispute Policy that you agreed to at the time of your purchase (available here: http://www.kleargear.com/help.html). If you do not pay this fee within 30 days of the date of this notice, your delinquent account will be forwarded to our collections firm, credit bureaus TransUnion, Experian, and Equifax, and you will owe an additional $500.00 Collections Fee per our binding sales contract.A look at the pre-Jen Palmer complaints to Ripoff Report shows a distressing commonality: KlearGear likes charging credit cards -- shipping products and/or answering customer complaints, not so much. Multiple customers report that phone calls and emails went unanswered. But if someone decides to issue a chargeback after waiting weeks for their purchase, KlearGear's "legal department" swiftly springs into action to threaten users with hefty fees and damaged credit ratings.
To pay this fee, please fax a copy of both sides of your credit card to our Legal Department at (210) 745-421 and reference your Order #29296. Alternatively, you may send a check to us at the address below.
We regret that we must charge this dispute fee, however your dispute violated our sales contract and was premature and without merit. Once again, please be aware that should you dispute your chargeback fee or later cancel a check payment you will incur additional chargeback and collection fees. A copy of this message is being provided to your credit card bank in connection with this dispute and the related chargeback dispute fee. Whether or not you cancel your dispute with your credit card bank, this dispute fee is not refundable.
Please be advised that you will not receive another notice regarding this debt before your account is forwarded to our collections agency.
Until Mathieu is actually willing to provide some proof of the claims he's made, the company's online reputation will continue to speak for itself. KlearGear's relationship with its customers is toxic. Mathieu has invited everyone to shop elsewhere. I say take that offer.