Online Retailer Says If You Give It A Negative Review It Can Fine You $3,500

from the yeah,-that-sort-of-thing-would-NEVER-backfire dept

Lots of quasi-legal action has been taken over negative reviews left by customers at sites like Ripoff Report and Yelp. Usually, it takes the form of post-review threats about defamation and libel. Every so often, though, a company will make proactive moves (usually bad ones) to head off negative reviews.

Nicci Stevens sends in this report from Salt Lake City's KUTV, which details the actions taken by one company against a dissatisfied purchaser who left a negative review at Ripoff Report.

For Christmas several years ago, Jen Palmer's husband ordered her a number of trinkets from the website kleargear.com. But for 30 days, Kleargear.com never sent the products so the transaction was automatically cancelled by Paypal, Jen said.

Wanting an explanation, 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.

"There is absolutely no way to get in touch with a physical human being," it says. And it accuses kleargear.com of having "horrible customer service practices."

That was the end of it, Jen thought, until three years later when Jen's husband got an email from Kleargear.com demanding the post be removed or they would be fined.

Kleargear, unfortunately, was not simply bluffing. Up until August 2013 at least (the date of the last crawl by the Internet Archive), Kleargear had this atrocious bit of wording on its "Terms of Sale and Use" page.

Non-Disparagement Clause

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.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Nice. I'm not sure what part of "fair and honest feedback" includes threatening unhappy purchasers with a $3,500 fine for publicly expressing their displeasure, especially considering Kleargear has made the clause entirely "eye of the beholder" by including the phrase "in its sole discretion." There's nothing "fair or honest" about this policy or the people looking to enforce it.

It's especially shady considering the page has now been yanked by Kleargear. It no longer exists in its sitemap and reroutes to its "Bestsellers" page if the URL is typed directly into the address bar. The "Terms of Use" link simply puts you right back on its generic "Help" page. The nasty clause is gone and it's only gone because Matt Gephardt at KUTV started asking questions.

Why would Kleargear insert such a customer-unfriendly bit of wording into its "terms of sales?" Maybe because its reputation used to be atrocious. (I mean, more so...)

There are many posts in addition to Jen's on Ripoffreport.com as well as other online consumer complaint boards. In 2010, the company was slapped with an "F rating" by the Better Business Bureau for "not delivering products purchased online in a timely manner," says the BBB's website. Kleargear.com today has a "B" rating.

This clause makes you question the validity of its shiny "B" rating. (Not that a BBB rating isn't questionable in its own right…) If it's been heading off complaints with borderline extortionary tactics, that "B" is worthless. When Gephardt finally got an (anonymous) response from someone with Kleargear on its "Smile or Get Fined" policy, the person reached defended the $3,500 fee, stating that the threat towards Jen wasn't "blackmail," but rather "a diligent effort to help them avoid the fine."

Obviously, the company doesn't truly believe this tactic is truly justifiable or it wouldn't have memory-holed the page with the non-disparagement clause. Even worse, it's made no move to undo the damage it has already done to this customer's credit by sending the unpaid, completely bogus fine to collections.

According to the Internet Archive, that clause didn't exist in 2008, when Jen wrote her review, so there's no way the company can claim that charge is legitimate, even by its own shady metrics. It actually doesn't appear until June of 2012, suggesting that its battle to raise its BBB rating wasn't going as well as it had hoped, but rather than overhaul its customer service, it decided to bill its way back to the top at $3,500 a review.

Now, it would appear that if you're dissatisfied with your Kleargear experience, you're free to let the internet know about without getting hit with a $3,500 bill... for the moment. The clause may have been removed because the company's currently feeling a little heat, but if it was willing to use this sort of underhanded tactic to quiet unsatisfied customers, then there's a good chance it will put something like this back in its "Terms of Sales" once it feels the worst has blown over.

Or maybe, just maybe, it will finally, after a half-decade, make an attempt to fix the underlying problem.