Well, this is interesting. After months of dead air, the person behind the company behind the thin-skinned thug d/b/a KlearGear has finally issued a statement on its decision to charge a couple $3,500 for posting a negative review, along with ruining their credit. In an email sent to Ars Technica (and other sites, apparently), Vic Mathieu of the France-located Descoteaux Boutiques claims this company, the purported owner of KlearGear.com was never "served properly under the Hague Convention," and will be seeking to vacate the recent default judgment against it secured by Public Citizen and its clients, John and Jen Palmer.
With the company's twisted history out of the way, Mathieu goes on to claim that the Palmers did agree to the Non-Disparagement Clause (and its $3,500 fine) when they purchased items (that they never received) back in 2008.
In written communication to Mr. Palmer on 4 June 2012, we informed him that the disparagement clause in our conditions of sale was present the 22 December 2008 when he has certified to us that he has read, understood and agreed to it:
The structure of our sales contract, referenced in your order check-out screens which we have on file from December 22, 2008, had three forks (today there are two): http://www.kleargear.com/help.html, http://www.kleargear.com/termsofuse.html and http://www.kleargear.com/tsaddendums.html.
As was noted when this story first broke last November, the Non-Disparagement clause did not exist in 2008
. It didn't appear on KlearGear's site until June 2012
. (More in-depth analysis of the changes to KlearGear's Terms of Sale/Service can be found here
.) Mathieu is now claiming it was always present -- just at a different URL. (This URL simply redirects to the Help page
The problem with this assertion is that it simply isn't true. The Internet Archive has no record
of the TSA Addendums URL. It could be that IA was blocked from archiving it or that it was active for such a short period that it was never crawled, but a look at the history of the site map shows that page didn't exist in 2007
-- or any other year
Here's every KlearGear URL archived by IA
. It's not in there either. (Yes, I scrolled through 5,000+ URLs.) It could be that the Addendums were served via a Java popup or something similar but Mathieu clearly specifies a URL. He also claims to have "record" of this being agreed to by the Palmers, but apparently "forgot" to attach that piece of evidence.
Mathieu is claiming the Palmers agreed to a non-existent clause on a non-existent page in 2008. The clause still wasn't present when Jen Palmer wrote her negative review in 2009. The Palmers heard nothing about it until 2012 -- not coincidentally the year the Non-Disparagement clause debuted. Mathieu declaring this self-serving email to be KlearGear's "first and only
statement" ensures he can never be called out for lying.
But Mathieu's not done making things up.
Kleargear's Non-Disparagement Clause was never deleted from our online store in November last year, as it has been wrongly stated; it was simply relocated with other content on the new URLs (the aforementioned clause can now be found at http://www.kleargear.com/termsofuse1.html).
(reinstating the temporarily vanished Non-Disparagement Clause), as can be verified at the Internet Archive. On October 26th, the original Terms of Sales page (along with the offending clause) was still live
. By November 16th (a few days after the story began spreading), the page was automatically redirecting traffic to Kleargear's "Best Sellers" page. It may not have been deleted, but it certainly wasn't accessible. It was buried and it wasn't accessible for nearly three months.
Mathieu wraps up the letter by playing the most pathetic of victim cards.
Ironically, if Mr. Palmer had simply approach Kleargear first last fall and requested a stay to finance their new furnace -- we would have worked with him. We are human beings. Instead, he has chosen a public forum.
Really? Because there's plenty of evidence out there that Kleargear (and its multiple associated companies) are completely
unapproachable. Not only did the Palmers try to contact the company, but so did several others.
From the original story by Matt Gephardt at KUTV
Wanting an explanation, Jen says she tried to call the company but could never reach anyone…
Ken White at Popehat
When we tried calling Kleargear.com we were unsuccessful in getting through to anybody. By email, a person who did not identify him or herself defended the $3500 charge referring again to Kleargear.com's terms of sale.
I tried to get a comment from KlearGear. I tweeted their Twitter account. I left a message on their Facebook page. I repeatedly called "Rob Key," their "Media Relations" person, at the number they provided; it was constantly busy over two days. I called the main number on their website; the recording always says that a customer representative is unavailable on this time and to check the website.
Cyrus Farviar at Ars Technica
Neither KlearGear nor Descoteaux Boutiques responded to repeated requests for comment via phone and e-mail. A call to the Paris number listed on the e-mail for Descoteaux Boutiques resulted in an automated message in Canadian-accented French and then English saying to call back during European business hours, which Ars has already done more than once.
From the Better Business Bureau
The BBB contacted the company at the Michigan mail drop address instructing the company to immediately remove the incorrect BBB logo and reference from their site.
While the company did not respond to the BBB, all references to the BBB has been removed from the company's website.
Mathieu also claims his company was completely blindsided by news of the lawsuit's default judgment, claiming Descoteaux Boutiques wasn't notified until April 22nd of this year. As Scott Michelman of Public Citizen points out in his response (below), that's rather hard to believe. The news was everywhere
. And there's plenty of evidence that indicates someone
involved with KlearGear knew things were swiftly moving from bad to worse to actionable.
Someone answered Matt Gephardt's email during his investigation and defended the atrocious policy. Someone running the KlearGear site scrubbed the TRUSTe certification
KlearGear never earned off the site
December 5th, roughly two weeks after it was first noted and called out
. And, as the BBB noted, someone removed the false "A+" rating as well. Then there's the vanishing Non-Disparagement Clause as well, which was buried behind a redirect to the "Best Sellers" page.
Scott Michelman from Public Citizen has issued a response to Mathieu's BS letter:
On Monday, several news outlets received a statement from the email address vic.mathieu [at] kleargear [dot] com making assertions regarding the lawsuit Palmer v. KlearGear.com, pending in federal district court in Utah.
The email’s accusation that, as the Palmers’ attorney, I misled the court about KlearGear’s whereabouts or about any aspect of service, is entirely false. In accordance with applicable federal and state rules of procedure, we served the Palmers’ complaint on KlearGear at the Grandville, Michigan, address listed on its website, as documented in papers filed with the court and as confirmed by the court’s own judgment.
(This address is all over its website
. Not only is it at the footer of the home page, but it's also listed in the "About" page, as well as designated as the address for its legal team/copyright agent
The email’s statement that KlearGear lacked notice of the case is difficult to believe, given the widespread national and international press coverage over six months and the fact that news reports from the fall of 2013 contain statements from KlearGear itself regarding the Palmers. Additionally, the email acknowledges that the author was aware of the litigation a month ago. Yet the company allowed the case to proceed to judgment, making no effort during that time to move the court for relief from default.
Most important, Monday’s email does not answer the claims at the heart of this case: that KlearGear used one-sided contractual fine print to try to bully unsatisfied consumers into silence, abused the credit reporting system when the Palmers would not pay KlearGear’s extortionate demand and then defamed the Palmers in the press.
If KlearGear decides to appear in court at long last, we welcome the opportunity to demonstrate that the Palmers are entitled to relief, either because of the company’s default or on the merits.
Surfacing months after the fact to claim everyone else is wrong doesn't make Mathieu or his company(ies) look any more trustworthy. In fact, his email/statement makes KlearGear look even worse. KlearGear's resemblance to a barely-functioning subsidiary owned by an absentee landlord is now confirmed. (More evidence of KlearGear's unwillingness/inability to fill orders can be found at its no-longer-active FAQ/forum
, where the most-viewed posts all deal with customer service problems.)
As Mathieu states in his email, people who don't like KlearGear's Terms of Sales can always shop elsewhere, which has always been true. (And I can't think of a single reason why anyone would shop there going forward…) But that sort of statement means nothing when the company blindsides people with Terms of Sales that weren't in place when the order was in the process of being ignored by KlearGear.