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15 Nov 2013

Consumer Fined $3,500 for writing a negative review.

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.com says Jen violated a non-disparagement clause. It turns out that, hidden within the terms of sale on Kleargear.com there is a clause that reads:

"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."

The clause goes on to say if a consumer violates the contract they will have 72 hours to remove your post or face a $3500 fine. If that fine is not paid, the delinquency will be reported to the nation's credit bureaus.

"This is fraud," Jen said. "They're blackmailing us for telling the truth."

But Jen says she was not always so defiant. After receiving the threat she says she was terrified. She contacted Ripoffreport.com to ask that the post be removed but Ripoffreport.com won't let her without paying $2000 she says.

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.

Now as a result, Jen and her husband are amassing rejection letters from lenders as they apply for loan to buy a new car and fix their home's furnace.

"I have the right to tell somebody else these guys ripped me off," Jen said.

Furious, Jen decided to Get Gephardt.

As we began looking into this, we quickly learned that Jen is not alone in her frustrations with Kleargear.com. 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.

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. As for Jen being threatened - remove the post or face a fine - the company said that was not blackmail but rather a, "diligent effort to help them avoid [the fine]."

Jeff Hunt is a First Amendment attorney in Salt Lake City. We asked him to weigh in on Jen's story.

"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," Hunt said. "I've never seen anything like it."

Hunt says he thinks there is a good chance a judge would say that non-disparagement clause is unconstitutional.

"I have a serious question about whether a court would enforce that kind of covenant because it's massively over broad and against public policy," Hunt said.

As for Jen and her husband, they say they can't afford a lawyer. Get Gephardt has put her in touch with the media relations people at the credit bureau, Experian. She hopes one final appeal will get the ding removed. 

There is some question as to whether or not that non-disparagement clause existed way back in 2008 when Jen wrote that negative review. Kleargear.com says it did but website archives from 2008 don't show it the clause.

Either way, Jen says she wants others to be warned: If you buy anything from kleargear.com and you don't like the product or the service they say you are contractually forbidden from telling anybody about it. If you do, expect a bill. If you don't pay the bill, expect them to ding your credit.

Aource:http://www.kutv.com/news/features/gephardt/stories/vid_474.shtml

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