A Utah couple is taking on an online retailer after they received a $3,500 fine for leaving a negative review of the company.
Jen and John Palmer started to have a problem with Klear Gear in 2008, when they made a purchase and never received what they ordered. They waited 30 days, but PayPal cancelled the purchase and returned the money to John’s account because Klear Gear never processed the purchase for shipment. After the Palmers’ bad experience with the merchant, they decided to tell their story to Ripoff Report, an online complaint site. In their report, the Palmers said their customer service was terrible and it was difficult to reach a human being when calling the retailer’s phone number.
Fast forward a few years, after the Palmers have moved on, and Klear Gear wrote the couple, demanding that they remove the negative review within 72 hours or they would have to pay a fine, saying the couple violated the company’s “non-disparagement clause”. During an interview with KUTV, Jen had this to say:
This is fraud. They’re blackmailing us for telling the truth.
Also, KUTV found the clause in the terms of service.
In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts Kleargear.com, its reputation, products, services, management or employees.
Terrified from the threat, Jen tried to get Ripoff Report to remove the review, but they refused to do so. Klear Gear contacted the credit bureau, damaging their credit rating, making it difficult for the Palmers to purchase a car and a new furnace.
Jen felt that her first amendment rights were ignored.
I have the right to tell somebody else these guys ripped me off.
KUTV tried to call Klear Gear to get their side of the story, but just like the Palmers, KUTV wasn’t able to reach anybody. A representative later sent an email to the new station defending their $3,500 fee, saying it wasn’t a threat, it was a “diligent effort to help them avoid the fine.”
According to Yahoo, the clause in the terms of service didn’t become effective until 2013, so KUTV asked them about it and they said it was there in ’08, but when KUTV checked their archives, they didn’t find the clause.
Jeff Hunt, a First Amendment Attorney from Salt Lake City, believes the actions taken by Klear Gear are ridiculous.
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. I’ve never seen anything like it.
He also believes that a judge would side with the Palmers because he or she would rule the non-disparagement clause unconstitutional.
I have a serious question about whether a court would enforce that kind of covenant because it’s massively overbroad and against public policy.
In an interview with CNN, Jen said she plans to keep up the fight against Klear Gear.
We don’t want them to get away with this. We are apparently not the only ones that they have done this to, but we are the only ones who are fighting back. And we’re not giving up.
For more on this story, check out the video below.