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.

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.

Regards,
Stephen Gutman
Legal Department
KlearGear.com, Inc.
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.

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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    That One Guy (profile), May 22nd, 2014 @ 7:12pm

    Seems pretty 'Klear' to me...

    Any company with a 'non-disparagement' clause is one that doesn't believe the quality of it's service/products is high enough to survive under scrutiny, yet is more interested in hiding the problem than fixing it.

    Or in even simpler terms:

    Non-disparagement clause = Go elsewhere, you're not going to be getting your money's worth here.

     

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  2.  
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    Anonymous Coward, May 22nd, 2014 @ 9:02pm

    There should be a warning clearly displayed on the product:
    "Warning, this product manufacturer demands you agree to a non disparagement clause"
    Sort of like the one on a pack of cigarettes.

     

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  3.  
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    Anonymous Coward, May 22nd, 2014 @ 9:10pm

    Seems to me that it's time to have cousin Guido and his boys go talk to this character.

     

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  4.  
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    Bergman (profile), May 22nd, 2014 @ 9:24pm

    Re: Seems pretty 'Klear' to me...

    The problem is, companies with such clauses also usually hide them where you won't be able to find it until it's too late.

     

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  5.  
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    That One Guy (profile), May 22nd, 2014 @ 9:43pm

    Re: Re: Seems pretty 'Klear' to me...

    True, if they know their product/service is bad enough that they'd actually get some use out of a non-disparagement clause, odds are they'll do everything they can to hide such a giant indication of how lousy they are, as such clauses might as well be giant banners proclaiming 'Our service and/or products suck, go elsewhere!'

     

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    Anonymous Coward, May 22nd, 2014 @ 10:00pm

    Re: Re: Re: Seems pretty 'Klear' to me...

    'Our service and/or products suck, go elsewhere!'

    I may have been the first to read that in Zoidberg voice, but I won't be the last.

     

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  7.  
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    That One Guy (profile), May 22nd, 2014 @ 10:14pm

    Re:

    Likely because despite all the bluster, they don't want to go to court to 'defend themselves', as they would be forced to back up their claims with actual evidence, and the other side would almost certainly tear them to pieces.

     

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  8.  
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    Anonymous Coward, May 22nd, 2014 @ 10:39pm

    How is this company still in business?

    This is the scummiest store I have ever heard of. It basically looks like if you buy something there, you better damn well like it, or else they'll destroy your credit score by applying a shiton of bogus fees then immediately sell it to debt collectors. No wonder their customer service is shit; they actively fine customers who have any form of dispute with them. Can you imagine if a big company like Walmart pulled this shit and charged $500 for every customer who had a complaint or had to return something?

     

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  9.  
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    Anonymous Coward, May 22nd, 2014 @ 10:57pm

    Re:

    They're busy trying to pretend the court's actions are invalid and unenforceable, in hopes that no one will bother spending the effort to actually reach them to inflict penalties.

    Genuinely responding to the court like it mattered would cost money.

     

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  10.  
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    That One Guy (profile), May 22nd, 2014 @ 11:17pm

    Re: How is this company still in business?

    ...you better damn well like it...

    Assuming you get it at all. Keep in mind the 'pebble' that started this particular avalanche was due to someone ordering something and never having it arrive, no matter how much they tried to contact the company, and the complaint they filed because of it.

     

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  11.  
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    Anonymous Coward, May 23rd, 2014 @ 12:35am

    The lady of the family did not buy anything from CrapGear. She wasn't bound to this so called ToS which sounds no less than a scam to try and get customers to shut up after being reamed.

    It's certainly fraud to offer something for sale, accept payment, and then not deliver the merchandise. The whole operation sounds like a scam from top to bottom, dressed up to attempt to sound like a reputable company.

    The last thing I would do is give out a credit card number to these yoyos. They've already shown they are quite willing to pad the bill with extra charges and then attempt to make it sound legal. Again, nothing but a scam.

    Of course there will be other people who didn't get the word and attempt to do business until these people are forced to actually pay up for the damages they have caused their customers.

    I can sure tell you one thing. I won't be a customer of theirs. Now let them charge me for that opinion of their business practices as I have never been to their site and will never go there. Nor will they ever get any closer than they are now to my money, which is a long way away.

     

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  12.  
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    Anonymous Coward, May 23rd, 2014 @ 12:44am

    don't dis the first

    business transactions are exempt from First Amendment rights

    In Cohen v Cowles Media (1991), the Supreme Court found that the First Amendment did not prohibit the recovery of damages “under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information.”

    In reaching that decision, though, the court first found that there was indeed state action, once the machinery of the courts became engaged.
    The rationale of our decision in New York Times Co. v. Sullivan (1964), and subsequent cases compels the conclusion that there is state action here. Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment.

    Then, among other distinctions, the court distinguished the case from Hustler Magazine, Inc. v. Falwell, (1988), observing:
    Nor is Cohen attempting to use a promissory estoppel cause of action to avoid the strict requirements for establishing a libel or defamation claim. As the Minnesota Supreme Court observed here, "Cohen could not sue for defamation because the information disclosed [his name] was true." Cohen is not seeking damages for injury to his reputation or his state of mind.

    A business non-disparagement clause seems to look towards protecting reputational interests. But it may attempt to evade “the strict requirements for establishing a libel or defamation claim”.


    (H/T Alan E. Garfield, “Promises of Silence: Contract Law and Freedom of Speech”)

     

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  13.  
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    Anonymous Coward, May 23rd, 2014 @ 12:59am

    Response to: Anonymous Coward on May 23rd, 2014 @ 12:35am

    Don't worry, they've already contacted the credit bureau about the charge they put on your credit for your negative opinion.

     

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  14.  
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    David, May 23rd, 2014 @ 1:33am

    Re: Re: Seems pretty 'Klear' to me...

    The problem is, companies with such clauses also usually hide them where you won't be able to find it until it's too late.

    In this particular case, it would appear that they have hid them away in the future.

     

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    David, May 23rd, 2014 @ 1:38am

    Re:

    Did you run a virus scan afterwards?

     

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    David, May 23rd, 2014 @ 2:12am

    Reading comprehension?

    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.

    He said they started eliminating Kleargear.com's social media channels in 2012. As a market-oriented business, that meant disposing of its inventory at market value, in this case their reputation. They might have been overselling it a bit, but you can't deny that they managed to get it down to zero before closing time.

     

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  17.  
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    Anonymous Coward, May 23rd, 2014 @ 3:25am

    Re: Response to: Anonymous Coward on May 23rd, 2014 @ 12:35am

    This is a good argument for using one off credit card numbers for internet orders from sketchy companies.

     

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  18.  
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    Anonymous Coward, May 23rd, 2014 @ 4:16am

    Are any of these people real?

    Besides Gutman, that is. Is there any proof that these other people actually exist?

     

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  19.  
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    Anonymous Coward, May 23rd, 2014 @ 4:20am

    So they want you to fax them a copy of your credit card with no details blurred out?
    No misuse possibility in sight.

    Seems legit.

     

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  20.  
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    Anonymous Coward, May 23rd, 2014 @ 4:42am

    Re: don't dis the first

    "the Supreme Court found that the First Amendment did not prohibit the recovery of damages “under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality given to the plaintiff in exchange for information.”"

    How is this even close to being applicable here?

     

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  21.  
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    Anonymous Coward, May 23rd, 2014 @ 4:44am

    any chance of the customers going again for defamation?

     

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  22.  
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    Baron von Robber, May 23rd, 2014 @ 6:49am

    KlearGear is changing their name.

    From henceforth, they will be called StearKlearGear.

     

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  23.  
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    Scote, May 23rd, 2014 @ 8:32am

    "our rate of dispute is below 0.1%, less than 1 in 1,000 customers,"


    Reminds me of a used parachute salesman. "We haven't had a single complaint!"

    Well, yeah, dead customers can't complain, and neither can ones who are threatened with a $3,500 "fine". You can *never* trust the complaint record of a company with such a clause, which means you can't trust it's reputation.

    A non-disparagement clause in a retail contract means "Shop elsewhere"

     

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  24.  
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    Roger Strong (profile), May 23rd, 2014 @ 8:45am

    Other storefronts?

    Since KlearGear isn't self-owned, but is actually a front for Descoteaux Boutiques, there's an obvious next question: What other companies and online storefronts do these people control?

     

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  25.  
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    Anonymous Coward, May 23rd, 2014 @ 9:51am

    Re: Re: don't dis the first

    How is this even close to being applicable here?

    The extension of state action from promissory estoppel to contract is suggested in the paper I linked.

    Consider the overall environment, as further described by KlearGear's statement:
    The non-disparagement agreements are not new among employees, partners and customers across the globe.


    In that overall environment, California attorney Seth Heyman recently wrote on “Using terms and conditions to prohibit bad reviews”. He concluded his short piece by saying
    … Until the issue of their enforceability is determined, you may want to consider adding a non-disparagement clause into your company website’s T&Cs. There are few enough weapons at a company’s disposal to fight unfair reviews, and even if a gun isn’t loaded, waving it in someone’s face will probably discourage them from stealing your wallet.


    Now, California Assembly 2365 would declare these non-disparagement clauses unlawful as a matter of public policy. But that would be just in California, and only if the bill is enacted.

     

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  26.  
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    skeptacular (profile), May 23rd, 2014 @ 10:07am

    To be fair....

    I detest and disdain Kleargear, and I have posted about them numerous times, but, in truth the concept of a non-disparagement clause is not entirely without merit.

    Imagine a psycho customer, an imagined slight, and a vendetta to trash the vendor (in this case the victim.) This is what NDCs are supposed to be for, club-fisted though Kleargear's use of it. And don't pish posh the idea, either. Any perusal of the early days of the Web reveals this rhetorical situation to be (or have been) quite real. I think everyone's take on KlearGear's owners as egocentric bully scam artists is right on the money. I think NDCs need to be written in more restricted, fairer language. However, I don't think you can judge a company on merits solely by the fact they have one. It ought to be one of several factors carefully scrutinized in your judgements.

     

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  27.  
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    Anonymous Coward, May 23rd, 2014 @ 10:11am

    Re: To be fair....

    Imagine a psycho customer, an imagined slight, and a vendetta to trash the vendor

    Why doesn't this situation fall inside the existing torts of defamation, libel, etc.?

     

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  28.  
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    s, May 23rd, 2014 @ 10:27am

    Uh, no.

    No, a non-disparagement clause has no place in any ordinary retail sales contract. It is pure censorship designed to prevent true criticism of the company from seeing the light of day. False claims of fact are already subject to defamation suits, so your post is nothing but a straw argument.

     

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  29.  
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    David Markland (profile), May 23rd, 2014 @ 10:29am

    Is KlearGear any more than one person?

    Is there any evidence that KlearGear is more than one person using assorted identities?

    I haven't spent as much time researching this as the obsessive compulsive side of myself would like, but I have googled just about every new name that has popped up associated with KlearGear in their various press releases. There is only one person who seems to come up with a social media presence, and that is Will Bermender, the CEO of Chenal Media the supposed owner of Kleargear, who has a detailed profile on LinkedIn
    http://linkd.in/Ssv0Jv
    One of the original articles on Rip Off Report suggest as much, noting Bermender does use aliases:
    http://bit.ly/1vSP8UB
    I think analyzing the law is pretty moot at this point -- if journalists, or even casual observers, are really interested in this story, they'll start trying to find out who the man is behind the curtain, and how they can continue to get away with such a shoddy business for so long.

     

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    Scote, May 23rd, 2014 @ 10:36am

    Re: Is KlearGear any more than one person?

    I'm more than a little skeptical about KlearGear being owned by a French company, or that any of the different names actually correspond with different people.

    KlearGear's rather incredible claims of lack of service seem entirely consistent with some yahoo trying to pull a fast one by making up a supposed foreign owner of the company. And making up a fake owner would appear consistent with the kind of seemingly sociopathic actions of KlearGear in regards to the non-disparagement claus, and never backing down even when KlearGear's position is clearly untenable.

     

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    Anonymous Coward, May 23rd, 2014 @ 11:12am

    This doesn't work when my five-year-old tries it, why do these guys think it will work for them?

    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.
    Protip: waiting for your opponents to "conduct themselves properly" will get you nothing but your own ass handed to you in court.

    Once they've sued you, you're participating whether you like it or not. Judges take an awfully dim view when parties to a suit stamp their feet like a petulant child and scream "I can't hear you, I can't hear you!"

     

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  32.  
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    John Fenderson (profile), May 23rd, 2014 @ 12:10pm

    Re: Re: Re: don't dis the first

    Wow. Seth Heyman is a special kind of scumbag, isn't he?

     

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  33.  
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    John Fenderson (profile), May 23rd, 2014 @ 12:14pm

    Re: To be fair....

    Such psycho customers do exist, of course. But the reviews they write are obvious psycho reviews, and not taken seriously by many. The damage done is minimal.

    "I don't think you can judge a company on merits solely by the fact they have one."

    I do, and I will judge companies that have such language in their terms of service very harshly regardless of what their intentions are. In effect, what such companies are saying is that if you want to do business with them you have to give up some free speech rights. That's a line way, way too far.

     

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  34.  
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    Anonymous Coward, May 23rd, 2014 @ 1:13pm

    Re: This doesn't work when my five-year-old tries it, why do these guys think it will work for them?

    'conduct yourself properly' is sooo lame when compared to 'govern yourself accordingly'.

     

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  35.  
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    Anonymous Coward, May 23rd, 2014 @ 2:05pm

    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.

    How are KlearGear's terms of service not adhesive? The fact that you can choose to shop elsewhere does not render an unsigned, non-negotiable, take-it-or-leave it contract any less adhesive. If a physical retail store could not get away with such terms, why should a web site?

     

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  36.  
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    skeptacular (profile), May 24th, 2014 @ 11:21am

    Re: Uh, no.

    Incorrect, for the reasons I've already outlined.

     

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  37.  
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    skeptacular (profile), May 24th, 2014 @ 11:28am

    Re: Re: To be fair....

    It does. However that logic would, at its most distilled, reduce law to a few more than the 10 Commandments (minus a few, plus a few.)

    New law doesn't always break new jurisprudent ground, sometimes it streamlines it, or focuses it, or clarifies it in cases where the more general admonition is neither efficient nor expedient.

    Moreover, the good old internet provides additional questions of identity, proximity, and fallibility - as this case amply showcases.

     

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  38.  
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    skeptacular (profile), May 24th, 2014 @ 11:49am

    Re: Re: To be fair....

    I don't disagree with you, but one might say the same of any libel. If you would respond that some libelous speech is convincing, pernicious, and hard to detect, again, I would agree... and say exactly the same regarding NDCs.

     

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  39.  
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    Anonymous Coward, May 24th, 2014 @ 6:25pm

    Re: Re: Re: To be fair....

    Why doesn't this situation fall inside the existing torts of defamation, libel, etc.?
    It does. However that logic would…

    You misread the thrust of my question. The core of the question is whether truthful statements on matters of public concern are to be suppressed by the power of the state.

    What does a contractual non-disparagement clause really buy? How does “disparagement” differ from defamation? Is truth a defense to a claim of “disparagement”?

    Those are core questions. At the edge, the questions go much further. Just for one instance among many—off the top of my head: Might sworn testimony before a Congressional committee ever amount to “disparagement”? For which liability may attach? Or do all reasonable contracts privilege that sworn testimony before Congress?

     

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  40.  
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    Joe, May 25th, 2014 @ 4:19am

    Irony: Wouldn't those kind of terms violate their merchant account agreements? Kind of like the stores that try to ask for ID on transactions with cards that expressly forbid asking for one...

     

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  41.  
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    Joe, May 25th, 2014 @ 4:28am

    Re: Re: To be fair....

    Well I already would have refused to use them if I saw that term. I imagine they think they're clever and figure no one will read the agreement. I already refused to purchase (and told why in an email) a certain chili pepper breeder's variety because of unconscionable terms.

    The joke might be on them if there's criminal or multiple-damages penalties in some states or countries they operate in for such terms. There really should be financial penalties for having a contract like this knowing that more than a few of your customers will just click through.

     

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  42.  
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    Joe, May 25th, 2014 @ 4:33am

    Re: Uh, no.

    This smacks of being arrested and sent to prison for telling an inconvenient truth about a sheriff or other government employee that countries like the law the UK had on their books. Just because the contract says something does not make it legal, despite how many times supporters of the trolling company say it.

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Joe, May 25th, 2014 @ 4:41am

    Re: Re: How is this company still in business?

    Actually, breaking the contract would pretty much make such terms null and void, right? Failure to deliver in a reasonable time is a pretty damn obvious form of breaking the contract. The judge could actually be pretty vicious if they wanted to be if they keep on pushing it. I'm surprised that they're not facing the same issues as some other companies had where no payment processors wanted to deal with them.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Joe, May 25th, 2014 @ 4:45am

    Re: Re:

    Worse yet, is all the state's Attorney Generals deciding to poke their noses into their other dealings. Where there's smoke, there's fire.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, May 26th, 2014 @ 12:24pm

    Re: Re: Re: don't dis the first

    How is this even close to being applicable here?
    The extension of state action from promissory estoppel to contract is suggested in the paper I linked.

    Followup: The Garfield paper appeared in the Cornell Law Review in 1998.

    In 2007, the Sixth Circuit decided Compuware v Moody's Investors Services, and in a carefully-limited holding, applied Sullivan's actual malice standard to a contract claim:
    IV. The Breach of Contract Claim

    The district court required Compuware to show actual malice in order to prevail on its breach of contract claim. On the specific facts of this case, we affirm the district court's application of the actual-malice standard to this claim. . . .

     . . . We find that the present case is like Falwell in that Compuware is attempting to use its breach of contract claim to avoid the actual-malice standard.

    We emphasize the limited nature of the holding in this case. . . .

    We emphasize that this case does not involve (and thus our holding does not affect) a party's right to agree to, or to sue for the breach of, an express contractual provision. . . .


    Nevertheless, despite the limited holding of this case, it does reject the idea that there is a bright-line distinction between quasi-contract and contract: “The Law Is a Seamless Web”.
     . . . If the law is a seamless web, then the categorization of legal doctrine into discrete fields (torts, property, contracts, and so forth) does not accurately capture the nature of the law. A classic example of this idea can be found by examining the line between torts and contracts. . . .

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Skeptacular, May 26th, 2014 @ 12:54pm

    Re: Re: Re: Re: To be fair....

    Got it. Well, your expanded point almost answers itself. The keys lie in the terms "truthful statements", "public concern", and "power of the state".

    The initial triggering transaction was one covered by civil law. This need not and does not directly involve the State as a party. It is, at its basis, "business law" in which contracts may have been abrogated, but no law of the state was presumed, within the context of that abrogation, to have been broken. NDCs exist because there is no certainty that a given applicable statement is, in fact, truthful. It is a determination between NGEs, again, no state involvement required.

    Contract "law" is only enforced via contract. Defamation does not rise to the level of criminal law, thus the penalties for it are set, either in the contract, or in the penalty phase of a finding and judgment supporting one or the other party to whom the contract applies. Just as infractions thereof don't rise to a level beyond civil law, neither does it do so as a legal matter of PUBLIC concern, whoever much we may decry it.

    All taken together, and though civil law is bracketed within the governmental framework of laws, it is not suppressed or manipulated by, as you say, the power of the State. Contract law is as we see it because it endeavors to protect parties beyond the scope of actual legislated law. Finally, ridiculous as it may seem, it is held to be in force until challenged. Thus if my contract says if you step in a crack on my sidewalk you owe me $100, it is presumed to be correctly drafted…until challenged. Thus all the crappy contracts and suspicious "fine print" we see.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Skeptacular, May 26th, 2014 @ 1:04pm

    Re: Re: Uh, no.

    Absolutely! Contract law can be, and often is garbage! They can't arrest you and throw you in jail, but they can make your life miserable. The key is there is always supposed to be some trigger by which you AGREE to it, and thus, to be bound by it. Otherwise the entity covered by the contract runs afoul of the law for that reason alone. It is a constant and eternal fight to argue those point in each laborious case….but that's the system!

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Sandy Patterson, May 26th, 2014 @ 1:49pm

    Re: Re: Is KlearGear any more than one person?

    Mathieu = Will Bermender, the wizard behind the curtain. The French company is made up. The guy is most probably sitting in his 2238 Buroak Ridge, San Antonio house laughing at all of you, especially at the media. Somehow, the government allows him to keep committing fraud after fraud and the media just plays right into it all. Pathological liars exist. Media, if you want to get to the bottom of this, you'll look at Will B, and stop playing his game.

     

    reply to this | link to this | view in thread ]


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