Woman Facing $3,500 Fine For Posting Online Review(popehat.com)
popehat.com
Woman Facing $3,500 Fine For Posting Online Review
http://www.popehat.com/2013/11/15/new-from-kleargear-free-speech-only-3500-plus-shipping-and-handling/
14 comments
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The article states that Kleargear hands off delinquent accounts to a collection agency...
Kleargear generates a fraudulent invoice for the alleged breach of contract, and if no payment has been remitted in the 30 day interim, the account goes to collections.
You, and I, could do the same. (hopefully without the fraud)
You, and I, could do the same. (hopefully without the fraud)
Can a collection agency affect your credit without having your ssn? Credit card providers ask for ssn. So do utility companies. But buying something from a company doesn't involve providing an ssn.
[deleted]
As the blog post kindly submitted here points out, the company's conduct appears to be fraudulent, and there isn't the tiniest chance that the woman who made a legitimate factual statement about the company in an online review will have to pay even one cent to the company. Good on Popehat and other sites for spreading the word about how scummy that company is. (By the way, the title of the submission here is misleading, and is not the original blog post title. Popehat's title is "New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling," and that even fits the length limit imposed by Hacker News.)
You can find TechDirt's coverage, which prompted the blog post submitted here with additional legal analysis, at the TechDirt site.
http://www.techdirt.com/articles/20131113/06112425228/online...
The TV news report that got this story rolling:
http://www.kutv.com/news/features/gephardt/stories/vid_474.s...
AFTER EDIT: To answer the question that has come up, which I think is adequately answered by the submitted blog post, companies can report consumers to credit bureaus for nonpayment, including nonpayment of civil judgments. But when those reports are fraudulent, as here, the consumer can also dispute the report, and the consumer should be able to come out with a clean credit record in the end. MANY years ago, my wife ordered a product by mail order, and we discovered the product was defective, and returned it. The company still wanted to bill us, and sent us a letter threatening to report us to a credit agency if we didn't pay. I simply wrote that the product was defective and that we had returned it and we disputed the company's point of view on the company's demand letter, and sent that back by return mail. That was the end of the matter, back in those days. We have a very clean credit history. I speak my mind whenever I think I have been ripped off.
You can find TechDirt's coverage, which prompted the blog post submitted here with additional legal analysis, at the TechDirt site.
http://www.techdirt.com/articles/20131113/06112425228/online...
The TV news report that got this story rolling:
http://www.kutv.com/news/features/gephardt/stories/vid_474.s...
AFTER EDIT: To answer the question that has come up, which I think is adequately answered by the submitted blog post, companies can report consumers to credit bureaus for nonpayment, including nonpayment of civil judgments. But when those reports are fraudulent, as here, the consumer can also dispute the report, and the consumer should be able to come out with a clean credit record in the end. MANY years ago, my wife ordered a product by mail order, and we discovered the product was defective, and returned it. The company still wanted to bill us, and sent us a letter threatening to report us to a credit agency if we didn't pay. I simply wrote that the product was defective and that we had returned it and we disputed the company's point of view on the company's demand letter, and sent that back by return mail. That was the end of the matter, back in those days. We have a very clean credit history. I speak my mind whenever I think I have been ripped off.
But when those reports are fraudulent, as here, the consumer can also dispute the report, and the consumer should be able to come out with a clean credit record in the end.
This isn't what happened. See here: http://m.kutv.com/article?id=106632
Specifically: Jen and her husband also disputed the ding with the credit bureaus but because Kleargear.com says the charge is valid the the ding remains.
I've personally experienced what it's like when credit bureaus decide to mistreat you, so I believe this. She likely has no recourse to dispute it short of hiring a lawyer, which is effectively impossible if she happens to be living paycheck-to-paycheck. (It's hard to grok the mental burden placed on you merely to survive, let alone repel an assault from a big, faceless company unless you've been in a situation like "I have to choose between buying groceries or paying for my dying cat's medical treatment," for example.)
If the reported version of events are true, then what this company did to her is reprehensible and should be punished. Otherwise it will set a dire precedent for other companies to try this in the future.
This isn't what happened. See here: http://m.kutv.com/article?id=106632
Specifically: Jen and her husband also disputed the ding with the credit bureaus but because Kleargear.com says the charge is valid the the ding remains.
I've personally experienced what it's like when credit bureaus decide to mistreat you, so I believe this. She likely has no recourse to dispute it short of hiring a lawyer, which is effectively impossible if she happens to be living paycheck-to-paycheck. (It's hard to grok the mental burden placed on you merely to survive, let alone repel an assault from a big, faceless company unless you've been in a situation like "I have to choose between buying groceries or paying for my dying cat's medical treatment," for example.)
If the reported version of events are true, then what this company did to her is reprehensible and should be punished. Otherwise it will set a dire precedent for other companies to try this in the future.
If only there was a way to "punish" such companies.
I have successfully removed bogus credit dings from my report. You have to follow a lot of steps and document everything well. If the creditor or agency doesn't respond correctly, you can sue them in small claims court for violations of the Fair Credit Reporting Act. The lawsuit always gets their attention!
I followed instructions from this site: http://whychat.5u.com/
No lawyer is needed if you just follow the right procedure and are ready to go to small claims court.
I followed instructions from this site: http://whychat.5u.com/
No lawyer is needed if you just follow the right procedure and are ready to go to small claims court.
This story has the stench of meltdown on it. Like when Jack Thompson slowly lost his sanity, when Charles Carreon lost his marbles when dealing with The Oatmeal, or basically the entire Rightshaven situation...
I have the strong suspicion that this has the potential to get much uglier and more bizarre. Going after this woman three years after she left her comment is not something that a sane company/legal representative in a good position decides to do.
I have the strong suspicion that this has the potential to get much uglier and more bizarre. Going after this woman three years after she left her comment is not something that a sane company/legal representative in a good position decides to do.
Ugh... if a HN title ever needed a change (the current one is "Woman Facing $3,500 Fine For Posting Online Review"), it's this one.
Jen Palmer is not facing a $3,500 fine any more than I'm "facing" the threat of being struck by a meteor on my birthday. She'll pay this horrible company a dime the day Eskimos need to worry about tigers, and I actually can think of a good analogy.
This title seems intended to gin up outrage where there should be none. To be sure, I'm outraged at this company's terrible ethics. But in this case our legal system actually works. News at nine.
Jen Palmer is not facing a $3,500 fine any more than I'm "facing" the threat of being struck by a meteor on my birthday. She'll pay this horrible company a dime the day Eskimos need to worry about tigers, and I actually can think of a good analogy.
This title seems intended to gin up outrage where there should be none. To be sure, I'm outraged at this company's terrible ethics. But in this case our legal system actually works. News at nine.
They reported it to credit bureaus, destroying their credit. They should be sued and penalized for that (in normal dealing that would be fraud if not extortion), however the threat and consequence is very real.
http://m.kutv.com/article?id=106632
http://m.kutv.com/article?id=106632
For anyone who hasn't experienced it: Credit score literally determines your quality of life in America. I couldn't get internet for a new apartment at age 21 because I was "unknown risk" since I'd never bothered to use credit very much.
To be clear, I hadn't missed any bills. I just hadn't used much credit, so they had no data by which to calculate a score for me. Therefore AT&T completely refused to do business with me.
It's crazy how much power these institutions have over your life. That this company was able to ruin her credit for posting a negative review is a huge deal. If they're not penalized for this, then this will set a terrible precedent.
To be clear, I hadn't missed any bills. I just hadn't used much credit, so they had no data by which to calculate a score for me. Therefore AT&T completely refused to do business with me.
It's crazy how much power these institutions have over your life. That this company was able to ruin her credit for posting a negative review is a huge deal. If they're not penalized for this, then this will set a terrible precedent.
Credit score (and stable credit history, utilization, limits) determines your quality of life when your quality of life involves post-paid credit-based services. And whether and on what terms you can get a car loan or home mortgage or margin on an investment account.
If that's surprising I don't know what you're thinking.
I'm surprised though that AT&T didn't let you post a security deposit in lieu of good credit.
If that's surprising I don't know what you're thinking.
I'm surprised though that AT&T didn't let you post a security deposit in lieu of good credit.
> They reported it to credit bureaus, destroying their credit. They should be sued and penalized for that (in normal dealing that would be fraud if not extortion),
That does sounds like fraud (and/or extortion). It seems to me that, as stated in TFA, the credit bureaus won't perpetuate any fraud they are aware of. I doubt that Jen's credit will be "destroyed" at the end of this affair.
> however the threat and consequence is very real.
I'll grant the "threat" is real. Someone is certainly threatening this poor woman. As far as "consequences" go? No, there won't be any.
That does sounds like fraud (and/or extortion). It seems to me that, as stated in TFA, the credit bureaus won't perpetuate any fraud they are aware of. I doubt that Jen's credit will be "destroyed" at the end of this affair.
> however the threat and consequence is very real.
I'll grant the "threat" is real. Someone is certainly threatening this poor woman. As far as "consequences" go? No, there won't be any.
Except there have already been consequences. There has already been a financial penalty applied and creditors sent to collect it. You are trying far too hard to make your original, wrong comment accurate, when it was a wrong conclusion based on an incomplete understanding of this story.
The subjects complained to the credit agencies and were essentially told to get lost (credit companies have no interest in playing conflict resolution agents, especially given that their bread is buttered by creditors). They have a chance now simply by getting as much publicity as possible (and the outrage and attention which you specifically claim isn't necessary in your post), television networks and others acting on their behalf, however that doesn't make the reality of this bizarre and abusive situation from being real.
The subjects complained to the credit agencies and were essentially told to get lost (credit companies have no interest in playing conflict resolution agents, especially given that their bread is buttered by creditors). They have a chance now simply by getting as much publicity as possible (and the outrage and attention which you specifically claim isn't necessary in your post), television networks and others acting on their behalf, however that doesn't make the reality of this bizarre and abusive situation from being real.
> Except there have already been consequences. There has already been a financial penalty applied and creditors sent to collect it. You are trying far too hard to make your original, wrong comment accurate, when it was a wrong conclusion based on an incomplete understanding of this story.
That is mentioned nowhere in TFA. In fact, TFA explicitly states that it would be fraud to report such debts to the credit bureaus. To wit:
> Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.
(from TFA). Now you say:
> The subjects complained to the credit agencies and were essentially told to get lost (credit companies have no interest in playing conflict resolution agents, especially given that their bread is buttered by creditors).
Again, this tidbit appears nowhere in TFA. Reading through to the linked stories, it does appear there. That doesn't change the fact that the title is an incorrect summary of the linked article. The article is a legal analysis of the expected long-term consequences. Which again, states that there are unlikely to be any.
At least for the customer - it sounds like this company is well and truly screwed.
> They have a chance now simply by getting as much publicity as possible (and the outrage and attention which you specifically claim isn't necessary in your post), television networks and others acting on their behalf, however that doesn't make the reality of this bizarre and abusive situation from being real.
They would've been much better served by getting a lawyer to begin with, and letting the system work. The linked article is a pretty good indication that consumer attorneys dream of cases like these. Outrage and attention, while certainly good fodder for the portion of the public that loves to be outraged and pay a minute of attention to the cause-of-the-week, is ultimately an ineffective method of resolving messes like these.
The only resolution will come through boring legal work. Everything else is window dressing.
EDIT: this whole story is a pretty good affirmation of the fact that people who "can't afford a lawyer" usually can't afford not to have a lawyer.
That is mentioned nowhere in TFA. In fact, TFA explicitly states that it would be fraud to report such debts to the credit bureaus. To wit:
> Once again — if KlearGear asserts falsely that someone accepted a contractual term, and asserts a debt based on that false statement, and reports that debt to credit agencies, that's fraud. It's not just a civil wrong, it's a crime.
(from TFA). Now you say:
> The subjects complained to the credit agencies and were essentially told to get lost (credit companies have no interest in playing conflict resolution agents, especially given that their bread is buttered by creditors).
Again, this tidbit appears nowhere in TFA. Reading through to the linked stories, it does appear there. That doesn't change the fact that the title is an incorrect summary of the linked article. The article is a legal analysis of the expected long-term consequences. Which again, states that there are unlikely to be any.
At least for the customer - it sounds like this company is well and truly screwed.
> They have a chance now simply by getting as much publicity as possible (and the outrage and attention which you specifically claim isn't necessary in your post), television networks and others acting on their behalf, however that doesn't make the reality of this bizarre and abusive situation from being real.
They would've been much better served by getting a lawyer to begin with, and letting the system work. The linked article is a pretty good indication that consumer attorneys dream of cases like these. Outrage and attention, while certainly good fodder for the portion of the public that loves to be outraged and pay a minute of attention to the cause-of-the-week, is ultimately an ineffective method of resolving messes like these.
The only resolution will come through boring legal work. Everything else is window dressing.
EDIT: this whole story is a pretty good affirmation of the fact that people who "can't afford a lawyer" usually can't afford not to have a lawyer.
Knock on some wood pronto, lest you get struck by a meteor on your birthday :(
It is my understanding that the company has actually sold the fraudulent $3,500 debt to a debt collector. The woman in this case has an excellent defamation case against the companies and a claim for treble damages (I believe) and attorney fees under FDCPA. She should contact an attorney and file a claim against this company. Between that damages and attorney fees, they may be looking at a $50-80k bill at the end of this all, plus the bad publicity. And I hope they are made to pay, because this is outrageous.
They reported her refusal to pay the $3,500 "fine" to the credit bureaus. A common way of dealing with such a thing is to file a small claims suit for the maximum amount in your jurisdiction for defamation. For example, in my jurisdiction the maximum is $8,000. The fact they are saying negative things about her is undisputed since it is in black and white on her credit report. So the next thing is for them to prove that the negative things they are saying are true. They won't be able to prove their one-sided contract that never offered consideration is valid. Then they'll move on to damages and she states in the article she was repeatedly denied credit and offered credit at less favorable terms.
This little stunt of theirs should cost them a lot of money.
This little stunt of theirs should cost them a lot of money.
"In an effort to ensure fair and honest public feedback ... this sales contract prohibits you from taking any action that negatively impacts KlearGear.com"
That's some great doublespeak right there.
That's some great doublespeak right there.
New: over the past couple of hours, the woman herself has posted a number of comments on Reddit clarifying:
http://www.reddit.com/user/kaett
http://www.reddit.com/user/kaett
Reviews are a tough spot. On the one hand, reviews can be very damaging to businesses, so it is important that some measures are in place to ensure that the review is honest and genuine, and on the other hand its important that consumers can openly review a product/company without being scared of reprisals.
Clearly, in this case, KlearGear are in the wrong, but I also think that there are cases where legitimate businesses have been seriously damaged by competitors, or just difficult customers writing unfair bad reviews.
Unfortunately the only solution to this I can think of would be a review of reviewers, which would just confound the problem.
Clearly, in this case, KlearGear are in the wrong, but I also think that there are cases where legitimate businesses have been seriously damaged by competitors, or just difficult customers writing unfair bad reviews.
Unfortunately the only solution to this I can think of would be a review of reviewers, which would just confound the problem.
> I also think that there are cases where legitimate businesses have been seriously damaged by competitors, or just difficult customers writing unfair bad reviews.
This is a big problem for small businesses and people alike, but the actual solution to this is the opposite of what most people's first instincts would be. Ironically, it's the existence of laws against libel/slander that makes fake reviews and false negative content online such a big deal for people going forward.
Because these laws exist, people are conditioned to believe that most of what they read online is true because otherwise legal action would be taken and it would get removed. But few people and small companies have the resources to track down every false review or fake negative comment and find out who did it and make legal challenges.
If you're an average small business, you don't have an easy way to mount a serious challenge against a site like RipOffReport when an unknown competitor starts writing nasty fake reviews about you online that you never shipped a product or whatever. If you're an average person, you have very little recourse if somebody goes and falsely writes that you have an STD on a site like Dirtyphonebook or whatever. People and companies with large amounts of resources are protected by libel/slander laws, but the average person or small company isn't really.
In a society with no laws against libel and slander, people would be a lot more skeptical about the veracity of negative comments that they see online and do a lot more research before buying a product or believing some negative comment was false.
We can talk a lot about better reviews and reviews of reviews but all of these are susceptible to the same issues.
This is a big problem for small businesses and people alike, but the actual solution to this is the opposite of what most people's first instincts would be. Ironically, it's the existence of laws against libel/slander that makes fake reviews and false negative content online such a big deal for people going forward.
Because these laws exist, people are conditioned to believe that most of what they read online is true because otherwise legal action would be taken and it would get removed. But few people and small companies have the resources to track down every false review or fake negative comment and find out who did it and make legal challenges.
If you're an average small business, you don't have an easy way to mount a serious challenge against a site like RipOffReport when an unknown competitor starts writing nasty fake reviews about you online that you never shipped a product or whatever. If you're an average person, you have very little recourse if somebody goes and falsely writes that you have an STD on a site like Dirtyphonebook or whatever. People and companies with large amounts of resources are protected by libel/slander laws, but the average person or small company isn't really.
In a society with no laws against libel and slander, people would be a lot more skeptical about the veracity of negative comments that they see online and do a lot more research before buying a product or believing some negative comment was false.
We can talk a lot about better reviews and reviews of reviews but all of these are susceptible to the same issues.
My instinct is that online reviews are wildly unreliable and suspect. I certainly don't think they enjoy any sort of legal oversight.
I will take a large plurality as reliable, and someone able to write in the correct tone could certainly mislead me (that is, I will look at an individual review on its apparent merits), but I sure don't expect a couple of good or bad reviews to mean anything.
Also, the encyclopedia I ordered did not contain any murder mysteries, one star because I can't put no stars.
I will take a large plurality as reliable, and someone able to write in the correct tone could certainly mislead me (that is, I will look at an individual review on its apparent merits), but I sure don't expect a couple of good or bad reviews to mean anything.
Also, the encyclopedia I ordered did not contain any murder mysteries, one star because I can't put no stars.
"But few people and small companies have the resources"
And that's the key phrase in this entire thing. For everyone who says, "oh, they're in the right, they should hire an attorney", they're either more naturally litigious than I am or have never actually had to hire an attorney and prosecute a case in court. The name of the game is intimidation and harassment. KlearGear is absolutely betting that their customers don't have the resources to combat their meritless lawsuits.
And that's the key phrase in this entire thing. For everyone who says, "oh, they're in the right, they should hire an attorney", they're either more naturally litigious than I am or have never actually had to hire an attorney and prosecute a case in court. The name of the game is intimidation and harassment. KlearGear is absolutely betting that their customers don't have the resources to combat their meritless lawsuits.
I don't think explicit "reviews of reviewers" is necessary, with enough data you can compute a trustworthiness score based on how their past reviews match up against other reviewers, or an Amazon style "Was this review helpful?" poll (which I suppose is a review of reviewers).
I assume this is how Yelp and others do it.
I assume this is how Yelp and others do it.
I find Amazon works pretty well. When you have tens of thousands of customers of a product not everyone is going to grok, some are going to call you a poopy head.
If me and my co-authors cultivate a critical mass of reviewers, respond to the bad reviews that genuinely misunderstood something, and have enough traffic on the pages to generate enough "useful" scores on reviews, it all works out in the end.
If me and my co-authors cultivate a critical mass of reviewers, respond to the bad reviews that genuinely misunderstood something, and have enough traffic on the pages to generate enough "useful" scores on reviews, it all works out in the end.
Sounds vulnerable to a sybil attack.
we already have laws that deal with this sort of thing (which has been going on in print media for hundreds of years). online reviews are no different
Yes, but anonymity on the web makes it much harder enforce these laws online.
Computer printers enabling home publishing might make it harder to enforce libel laws, but a shift in enforcement difficulty need not require new laws.
If I invented a new sort of zip-lock baggy that was completely impermeable to smell, that would make the enforcement of several laws more difficult, but should my invention prompt new laws? No, that would be an overreaction.
If I invented a new sort of zip-lock baggy that was completely impermeable to smell, that would make the enforcement of several laws more difficult, but should my invention prompt new laws? No, that would be an overreaction.
Review of reviewers is totally the way to go! It sounds like a "now you have two problems" situation, but it really isn't. Starting from the one reviewer of reviewers you know you can trust (yourself) you can build out to a network of trusted reviewers.
If anyone's interested in working on open source solutions to this problem, feel free to email me. It's kind of my thing:)
If anyone's interested in working on open source solutions to this problem, feel free to email me. It's kind of my thing:)
Funny you mention this because a friend and I were sick of video game review sites leaving obviously paid for 10/10 reviews (here's looking at you, Eurogamer). So we put together plans to build a "review the reviewers" website where people could leave feedback on a particular reviewers integrity, honesty, trends and so on.
We never did finish it but I have lots of code, docs, ideas and research from that time and I'd be happy to help with your idea if you pursue it.
We never did finish it but I have lots of code, docs, ideas and research from that time and I'd be happy to help with your idea if you pursue it.
Yeah, a web of trust style weighting of friends-of-friends-of-friends isn't a bad idea at all. Current social networks doing that sort of thing tend to only care about immediate friends, which is only very narrowly useful. Good luck with your project.
The title should be changed to match the title at the site, which is "New From KlearGear: Free Speech, Only $3,500 Plus Shipping And Handling".
Their ridiculous non-disparagement clause purports to apply to all forms of communication (or perhaps to all forms of communication that are "published", depending on how you read the thing). In this particular case, they are trying to enforce it against an online review, but that's an irrelevant detail. The title here emphasizes that irrelevant detail too much.
Their ridiculous non-disparagement clause purports to apply to all forms of communication (or perhaps to all forms of communication that are "published", depending on how you read the thing). In this particular case, they are trying to enforce it against an online review, but that's an irrelevant detail. The title here emphasizes that irrelevant detail too much.
As this picks up more media attention, the total number of customers that this will deter will greatly offset the $3,500 fine the company may end up receiving. Karma will prevail.
Sadly the valuable link juice and unintentional promotion from any media outlets that pick it up from this could actually do them better in the long term. Whilst people will soon forgot their appalling behaviour, the search engines don't. At least that's what I have observed in the past, things may have changed since then.
Also, having to hire a lawyer to defend themselves against criminal fraud charges will cost them a lot more than $3500.
The timing couldn't be worse for them, with this publicized at the start of the holiday shopping season.
Talk about credit ratings -- their Dun & Bradstreet likely won't look so hot in a couple months.
Which I find 100% delightful and just. Reap what you sow, KlearGear. Thou art sleazy, scummy f-wads. Happy holidays!
Talk about credit ratings -- their Dun & Bradstreet likely won't look so hot in a couple months.
Which I find 100% delightful and just. Reap what you sow, KlearGear. Thou art sleazy, scummy f-wads. Happy holidays!
Isn't there yet another way the contract is invalid (since they go through a few already)? It's stated in the article that the customer never received the item they paid for. Isn't the contract contingent on both parties following through (the customer paying, the business delivering paid for service or goods)?
Also, according to one of the original news reports, the husband ordered and (supposedly/arguably) agreed to the terms - but it was his wife who posted the review. She never agreed to the terms and thus cannot be bound by them.
Just because you put a bunch of crap in your T&C's doesn't make it law and legal regardless whether or not someone agrees to it or not.
How about finding out which lawyer wrote that TOS and getting him/her disbarred?
Question: what ability do most companies have to report something to credit bureaus? I mean, selling my stuff with just Stripe and a DBA, I certainly can't, as far as I know. Credit-card companies themselves certainly can, on the other hand.
Is there a way for "normal" small businesses to affect your credit score based on any kind of non-payment of bill? How do businesses "acquire" this ability? Can anybody just tell a credit score company, "X didn't pay me money, knock their score down"?
I'm just wondering if this is a bluff, which it probably is.
[Edit: Googling it a bit reveals that there are two methods. One is to hand the debt over to a collections agency -- you'll receive less of it, but they'll automatically report to a credit bureau if it's not paid. The other is to become a member of the three main credit organizations, but that involves membership fees etc., so presumably only makes sense if you deal with a lot of consumer billing already where this is a regular occurrence.]