Law Passed To Protect Customers From Non-Disparagement Clauses And Other Ridiculous Restrictions

from the back-to-bogus-libel-lawsuits-then,-I-guess dept

Sitting on the president's desk is a bill [PDF] that will finally prevent companies from tying customers up with restrictive contracts at the point of purchase -- including forbidding the insertion of non-disparagement clauses. The bill is called the Consumer Review Fairness Act, but it might as well be called the KlearGear Act, after the infamous tech toy also-ran that gained international notoriety after it ran a customer's credit rating into the ground attempting to collect a $3,500 fee for violating a non-disparagement clause it inserted into its Terms of Use after the customer had already posted her negative review.

There are any number of existing applications for the bill once signed into law. Companies are still including non-disparagement clauses in contracts, despite there being ample evidence all it really does is generate massive amounts of disparagement from parties not bound by the contractual language. It's basically a pre-emptive federal anti-SLAPP law narrowly focused on protecting consumers from litigious companies who feel the "service" part of "customer service" involves a process server. (That being said, there's nothing stopping companies from filing bogus libel lawsuits over negative reviews -- one of many reasons there needs to be a federal anti-SLAPP statute.)

But that's not the only thing the law will prevent. The language will also keep companies from placing a bunch of restrictions on customers as a thank you gift for choosing to do business with them. Paul Alan Levy of Public Citizen points to another all-too-frequent abuse of customers this law will address.

Readers of this blog may recall an article that I posted in late September, taking issue with a proposed contract that the local professional soccer team has transmitted to season ticket holders who are in the process of renewing their season tickets for the coming season. My concern that the contract includes language in which fans waive the right to post “in any media any description, account, picture, video, audio or other form of reproduction of any D.C. United game or any surrounding activities.” Regrettably, despite many fans having objected to the proposed contract, to the extent of telling team sales people that they won’t be renewing if signing this contract is required, and even though the team tried to deflect the adverse coverage by saying that its lawyers would be looking at possible changes to the contract language. However, late last week the team sent out the same contract for signature, and told me privately that the lawyers had decided not to make any changes because the language is “industry standard.”

Nothing says "thanks for supporting our team" like "shut up and stop talking about us." DC United wants to retain strict control of its social media presence, apparently feeling that any "social" aspect should be solely restricted to the official channels. With the new law in place, the ridiculous "industry standard" will no longer be legal. Presumably, this also means it will no longer be the "industry standard."

Levy points out that the law has received the most attention for its banning of non-disparagement clauses, but it's also written to address this sort of contractual overreach.

[I]t forbids a form contract that “prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication,” Section 2(b)(1)(A), and defines “covered communication” to include any “ written, oral, or pictorial review, performance assessment of, or other similar analysis of . . . the goods, services, or conduct of a person by an individual who is party to a form contract.” Section 2(a)(2). The DC United contract that forbids fans from posting written descriptions or pictures of a game (that is, a review or performance assessment of the team’s conduct) is squarely within the law’s prohibition.

While companies should take care to protect their intellectual property and reputations, this can all be accomplished without forcing customers to accept ridiculous restraints in exchange for a product or service. Companies may point to such concerns when writing these clauses, but underneath it all, it's usually just an attempt to control public perception -- either by discouraging negative reviews or shutting down social media postings that don't align with the official company narrative.

Filed Under: anti-slapp, consumer review fairness act, crfa, free speech, gag orders, non-disparagement, non-disparagement clauses
Companies: kleargear

Legislators Introduce Bill Calling For Nationwide Ban On Non-Disparagement Clauses

from the the-'KlearGear-Law' dept

Non-disparagement clauses are one of the stupidest things any company can enact. In most cases, it's almost impossible to enforce them, no matter how artfully crafted. Most aren't. Most non-disparagement clauses found lying around the internet have been lazily copied and pasted from pre-existing bad ideas instituted by other companies.

On top of the legally-dubious aspects, there's the potential for severe backlash -- something that completely underscores the futility of these half-assed gag orders. Instead of heading off criticism, these clauses tend to invite negative reviews, often from internet denizens who've never patronized the company they're bashing at multiple review sites.

But still, these clauses persist. Up until recently, the court of public opinion has had to do most of the heavy lifting when it came to the enforcement of these clauses. Last September, California became the first state in the nation to ban non-disparagement clauses, threatening violators with fines up to $10,000 (for repeated violations).

Now, the federal government is taking another swing at bad companies hiding behind worse legal language.

Today, Representatives Darrell Issa, Eric Swalwell, Blake Farenthold, and Brad Sherman (two Democrats and two Republicans) jointly proposed in Congress the Consumer Review Freedom Act of 2015, which would ban non-disparagement clauses nationally. We at Public Citizen have litigated cases against the use of such clauses (for instance in the KlearGear case, as well as the Cox case). The proposed bill, which is similar to one introduced last session (by Democrats only), also prohibits a business from imposing a clause requiring consumers to sign away their intellectual property rights in communications about the business. We've challenged that type of clause, too. Today's bill authorizes enforcement by the Justice Department and by state attorneys general.

The proposed law includes fines that could add up to real money fairly quickly.

The Attorney General shall bring an action against any business who violates subsection (d) for a civil penalty of not more than $16,000 for each day that the business so requires the use of such a contract by a distinct person.

No company will be penalized for existing clauses but will be expected to remove them as soon as possible. One year after the bill's enactment, any clauses still in existence (or new clauses enacted past this point) will subject companies to daily fines.

As noted above, the bill would also prevent IP landgrabs by companies that allow them to issue DMCA takedown notices targeting critical review they now "own" thanks to the fine print on Terms and Conditions pages.

How effective a law like this will be in keeping the KlearGears of the nation in line is open to debate. Some shady companies may maintain their US "presence" for only as long as it remains beneficial to them. In the wake of the default judgment against KlearGear for its bogus non-disparagement clause, the company -- which had claimed to be located at multiple locations throughout the US over the past several years -- suddenly revealed itself to be a very French corporation and thus out of reach of the $350,000 fee.

Hopefully, the law -- if implemented -- will deter future companies from ambushing unhappy customers with egregious fees and damaged credit records. The fines mooted here should act as a deterrent, especially when pursuing these fines doesn't appear to hinge on the enforcement of these questionable clauses, but rather their mere existence.

Filed Under: blake farenthold, brad sherman, congress, darrell issa, eric swalwell, free speech, gag clauses, non-disparagement clauses, reviews
Companies: kleargear

Here Are The Companies That Want To Charge You $2,500-$100,000 For Negative Reviews

from the self-inflicted-reputation-wounds-are-surprisingly-pricey dept

Geek gadget also-ran KlearGear gained internet infamy thanks to the following paragraph tucked away on its "Terms of Sale and Use" page:

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.

Tacked onto this absurd redefining of "fair and honest feedback" was a $3,500 fee. This was levelled at a couple who complained about the non-delivery of products it had paid for. This went to court, and the couple was awarded over $300,000 in a default judgement when KlearGear no-showed.

For the most part, this would seem to be a cautionary tale -- something other companies would take into consideration when crafting their own terms of service. But some companies are still apparently willing to dance with the Devil Streisand by including onerous fees tied to the phrase "fair and honest feedback." Not only will the enforcement of this clause likely result in large amounts of public shaming, but in some states, this may actually be illegal.

In the interest of discouraging future KlearGears from dragging their customers' credit ratings through the mud in response to bad reviews, we present a list of companies that still maintain similar clauses on their websites, along with dollar amounts demanded if this clause is violated.

Textbooks on Park - "legal fees and court costs"

Textbooks on Park, a Glen Ellyn, IL, strip mall resident, claims to service College of DuPage students with discounted books and, obviously, textbook rentals. In its rental agreement, it claims the following:

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 rental contract prohibits you from taking any action that negatively impacts Textbooks On Park, Inc. its reputation, products, services, management or employees. Should you violate this clause, as determined by Textbooks On Park, Inc. 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 be billed for legal fees and court costs until such complete costs are determined in litigation. Should these charges remian 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.

It's hard to see what legal fees Textbooks on Park could possibly claim, unless it was actually able to successfully pursue a libel claim -- in which case, there's no reason for any of this wording to be included. Winning a lawsuit would generally avail it of most of these costs, and uncollected damages would, of course, be referred to collection agencies, etc. The only reason this wording is here is to discourage negative reviews.

Reviews at Yelp are mixed, as are those collected by Google. There seem to be some discrepancies between its stated policies and actual behavior. There's no indication anyone's been sued over these reviews, but why take a chance? Textbooks on Park says "support local businesses," but this clause says take your business elsewhere.

Vinotemp International - $2.500

This manufacturer of wine racks, cabinets, coolers and cellars doesn't have its non-disparagement clause posted at its site. Instead, it's hidden in the fine print of the Terms and Conditions sheet packaged with its products. Vinotemp includes a few tweaks, but otherwise the wording is nearly identical to similar offending clauses:

… acceptance of this sales contract prohibits you from taking any action that negatively impacts Seller its reputation, products, services, management or employees, unless you have:

(A) first communicated with Seller, and (B) your statement/claim has been substantiated or validated by a judgment. Should you not follow this process, Seller in its sole discretion, will provide you 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 US $2,500, as liquidated damages, representing a fair estimation of damages, for it would be impracticable or extremely difficult to fix the actual damages…

As usual, uncollected fees will be reported to credit bureaus, etc. Vinotemp's site links to its A+ BBB accreditation, but the company has only been a member since June of this year and has zero complaints on file. A more complete picture can be found at the BBB listing for its previous address, which has 19 complaints and no accreditation. For a longer discussion about Vinotemp's problematic products and service, see this forum discussion at Wine Berserkers.

Final Step Marketing - $2750

This company ostensibly provides marketing services for companies, but its internet footprint doesn't extend past self-reference. Hidden away from many exciting pages filled with buzzwords is Final Step's claim that negative reviewers may be slapped with a bill for $2,750.

3rd Rock Adventures - $3000

Atlanta's 3rd Rock Adventures offers guided tours of points of interest around the world. It also offers you the chance to engage in some "open and honest public feedback" for the low, low price of $3,000. The usual 72-hour removal window applies as does the reporting to credit agencies. 3rd Rock may be a perfectly fine company, but reviews are nonexistent -- not even the expected glowing testimonials most companies post to their own websites.

Various companies - $3500

Here's a fun bunch, all of which seem to have copy-pasted KlearGlear's deplorable clause, including the $3,500 fee. All they had to do is switch out the company name.

• New Wave Energy
• Eyeglass Lens Direct
• Yelp reviews, many of them not impressed with the quality of the product or the turn time.
• For Rent No Credit Check — Website claims company is only subject to UK law, suggesting it's a British company. That doesn't keep it from misspelling its home country ("Great Brittan") twice in the Terms of Use and Sale.
• Single Gourmet of South Florida — Negative reviews here as well as some at its BBB page. The site's sidebar proudly lists five consecutive awards from the "US Commerce Association," a vanity award company with scammy practices.
• Sensational Connections
• Fight Dentist — Exclusively catering to people who beat the shit out of each other for fun and profit (MMA fighters, mostly), Fight Dentist also promises to beat $3,500 out of negative reviewers. This seems unnecessary as reviews collected at Yelp are mostly positive. Fight Dentist does add wording that suggests the real problem here isn't "fair and honest feedback," but convenient villain social media. This precedes the usual non-disparagement boilerplate: "Due to the prevalence of social media sites, email and texting..."

Merthyr Motor Auctions (UK) - $3902

Actual price is £2,500.00 GBP, so your bad review damages may fluctuate with the exchange rate should you happen to reside outside of the UK. Again, the inclusion of this non-disparagement boilerplate is inexplicable considering reviews of the company are overwhelmingly positive. (Or does it mean it's working?)

Church Freedom - $5000

This organization aims to "free" churches from the normal non-profit status and reorganize them as corporations to allow them to escape certain aspects of regulation, including taxes. In addition to hitting negative reviewers with a $5,000 fee, Church Freedom also threatens to do the same to people who file disputes/chargebacks or issue refund requests improperly.

Cronus Corporation - $5000

Not entirely sure what this company does other than generate buzzwords ("Digi-DNA® is the application suite that provides unified marketing metrics, integrated marketing services, sponsorship ROI enhancement, metadata management…") but its web footprint is dominated by companies that spell their names differently -- and those companies don't charge customers for negative feedback.

Ink 4 Cake - $5000

Edible ink purveyor which seems to have a few issues, although mileage seems to vary from product to product. Also: $5,000 non-disparagement fees.

Token Energy (UK), Axtexs Fitness (UK) - $5463

Both companies will charge you £3,500.00 GBP for discouraging words, but Token Energy shaves 24 hours off the usual timetable for disparaging review removal (from 72 hours to 48).

Portascope.com Inc. - $6000

Niche marketer specializing in video endoscopy systems for veterinarians. Nearly doubles the established KlearGear standard with its $6,000 non-disparagement fee, but still can't find the time to fill out the boilerplate pasted into its Privacy page.

From time to time Portascope.com Inc. may use agents or contractors who will have access to your personal information to perform services for Portascope.com Inc. (such as DATABASE MAINTENANCE, FURTHER EXAMPLES)...

Now, we arrive at our grand champion of the non-disparagement clause wars. Or would be if its site hadn't gone offline sometime in the past couple of weeks. Fortunately there are screenshots and cached versions.

Acer Capital Recovery - $100,000

Seeing is gaping in disbelief.


The money quote:

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 TOS prohibits you from taking any action that negatively impacts Acer Capital Recovery llc™, its reputation, products, services, management or employees. You hereby agree to liquidated damages of $100,000.00 USD plus costs and actual damages for violating this provision.

$100,000 minimum for negative reviews. That's ballsy. Of course, you can write any amount you want into your non-disparagement clause as long as you a) never enforce it and b) don't seem to exist outside of a (now dead) website.

Below are the offices of this collection company.


Seems legit.

The simple fact is these clauses don't work. If someone decides to enforce them, they're going to have a hard time collecting on them, especially once they get taken to court for enforcing clauses bordering on illegality. If the review is truly libelous, the court system is on their side and damages will be awarded, so attempting to price this out in advance is nothing more than a really lousy intimidation tactic.

If the company is horrible enough, word will spread even with the policy in place. And if a company with a terrible reputation attempts to shut up its critics with sky-high fees, the Streisand Effect takes over, putting them in an even deeper hole, as negative reviews pour in from internet denizens.

The best defense against these clauses is a good offense: public shaming. Perhaps a little advance adverse notoriety will result in the yanking of these clauses, and those formerly deploying these will actually learn to engage in open and honest feedback using the original definitions of those words.

Filed Under: gag orders, negative reviews
Companies: 3rd rock adventures, acer capital recovery, axtexs fitness, church freedom, cronus corporation, eyeglass lens direct, fight dentist, final step marketing, for rent no credit check, ink 4 cake, kleargear, merthyr motor auctions, new wave energy, portascop

California Outlaws Consumer-Silencing Non-Disparagement Clauses

from the seeking-redress-in-form-of-head-punching-tabled dept

In one state, at least, non-disparagement clauses like the one KlearGear tried to use to extract $3,500 from unhappy customers, will be illegal. California governor Jerry Brown has just signed a bill that will prevent companies from silencing customers with non-disparagement clauses buried in Terms and Conditions pages.

Here's the relevant text of the bill:

(a) (1) A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.

(2) It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

(b) Any waiver of the provisions of this section is contrary to public policy, and is void and unenforceable.

Violating this could result in a fine of $2,500 for a first violation (up to $10,000 for "flagrant" violations), which unfortunately means KlearGear (which is specifically referenced in the discussion of the bill) would still net $1,000 -- at least the first time it gets away with it. (Which it hasn't, and apparently never will -- that clause has been removed from its website. Also, no one can seem to find an actual human being connected to the company selling so much stuff it can barely be described in a ridiculous press release.) Since most companies aren't willing to charge the equivalent of a low-end used car for negative reviews, this bill pretty much ensures no one will be seeking to enforce non-disparagement clauses in California. Simply having the clause -- even if it's never enforced -- could result in a fine.

This is a win for consumers, at least as far as it can be enforced. As has been noted here, there's more than a few companies combining crappy service with hefty fines that don't seem to actually exist outside of a Mailboxes, Etc. addresses. Laws are tough to enforce when you can't find anyone to hold accountable. The worst part is that by the time most consumers discover they're dealing with a company that will charge them for negative reviews, these companies already have their credit card information and can start adding these charges to their balances.

The good news is that it's illegal in this state. Preemptive action can be taken to uncover these illegal terms and conditions in order to either push the companies towards complying with the state law or (better) getting them to drop these clauses altogether.

A law preventing these is good, and there needs to be more of them, but the best steps are still preventive. Plenty of sites keep an eye out for consumers and are usually the first to call out this behavior. Enough public outcry and these sites are either blackballed or shuttered completely. The threat of enforcement may be enough to deter some behavior, but when it comes down to it, the entity that best serves the public's interests is still the public.

Filed Under: california, free speech, non-disparagement clauses, opinions, reviews
Companies: kleargear

KlearGear Apparently Healthier Than Ever, Announces Plans To Start F**cking Customers Through Amazon Fulfillment

from the the-fakest-of-paper-trails dept

In what may come as a surprise to no one, KlearGear's parent "company," Descoteaux Boutiques, has decided to rid itself of the toxic online retailer. But it's not because of horrible policies, nonexistent customer service or the $300,000 judgement against it. It's because KlearGear is so hot right now. (h/t to Techdirt reader Jeff Cohen.)

PARIS, Aug. 28, 2014 /PRNewswire/ -- International giftware developer, distributor and retailer Descoteaux Boutiques (DBS) has completed negotiations for the sale of its remaining retail holdings Gift World and Kleargear at 5.3 times projected 2014 EBITDA.

DBS began divesting its retail assets in 2011 after reacquiring outstanding shares of stock from its largest creditors, exporter Shenzhen Technology Gifts and North American fulfillment contractor Chenal Brands, exchanged in a minority debt-for-equity swap with six creditors under a conciliation procedure in 2006. The sale of these final properties is expected to close within 90 days, during the final phase of DBS' restructuring.

Three brick-and-mortar Gift World shops located in France and the United Kingdom are not included in the deal and will cease operations in January 2015.

Earnings at 5.3 times projection, eh? Makes you wonder what the projection was. And as for "Gift World," these brick-and-mortar retail shops should be easily closed seeing as they don't seem to exist anywhere but in this press release.

KlearGear has apparently shrugged off the damage to its reputation and has big plans for the future.

Gadget and geek culture merchant Kleargear.com (http://www.kleargear.com), whose calendar 2014 revenue year-to-date has climbed 92% above the same period in 2013, will complete the transition of its North American fulfillment operations to Amazon Fulfillment in October when its contract with Chenal expires.

"We believe this move will help improve order fulfillment speed during the holiday shopping season by more than 30%," said CEO Christophe Monette. "Our transition to Amazon's wider, more robust fulfillment network will help us remain competitive and accommodate Kleargear's remarkable growth rate which accelerated in 2013 and has already exceeded our current year forecast."

Considering KlearGear's fulfillment speed has hovered near zero for most of its existence, a 30% boost isn't promising much. I consider this statement by the non-existent CEO to be about as worthless as anything else the company has claimed. I don't see KlearGear working with Amazon at any point ever, but if it does, it may soon find that the online giant has a very low tolerance for lousy retailers with abysmal customer service practices and policies.

There's more but it hardly matters. Supposedly employee displacement will be minimal. Descoteaux Boutiques credits its "North American outsourcing" for this, but my educated guess is that there aren't really any employees to displace.

A new phone number appears at the bottom of the press release [(646) 810-9268] which traces back to New York City, but it's as useless as any other phone number the company has provided. Callers are greeted with an opening spiel in French before being spoken to in English. Callers inquiring about Descoteaux's retail holdings (Gift World, KlearGear) are asked to press "1." Doing so results in the message "Invalid selection. Please try again."

The same goes for every other number on the keypad, except for 8, which dumps you into the company's directory (where no selection of numbers/letters will put you in touch with a person) and 9, which replays the message you just heard. After 3 or 4 invalid selections, the phone system says "Bye" and disconnects the call.

Callers are also invited to remain on the line for the next available operator, but after five seconds or so the call is disconnected with another recorded "Bye."

No company or person named in the press release (other than Lee Gersten) has much of an internet footprint, if they have anything at all. Any websites that exist are nearly static. Descoteaux Boutiques' site carries nothing but useless contact info and a link to this press release. (The link to the French version of the release doesn't work.)

Chenal Brands' retail holdings are fronted by this site.


Three of the four links on the page (About Us, Clients, Contact Us) link to this very page. "Expertise" leads to this set of hilarious claims.


And every bullet point links to… the same page you're already on.

Also of interest: KlearGear's former parent "company" Descoteaux Boutiques finally got around to registering a KlearGear trademark in April. The USPTO granted it in the first week of August. In the application, Descoteaux is listed as the owner of the mark with its supposed address in France, but lists a US zip code of 75013. This doesn't link back to any of KlearGear's other "addresses" (Michigan, Delaware, San Antonio, Texas) but instead to a Dallas, TX suburb -- probably the result of picking five digits at random rather than indicative of any physical presence. Update: As multiple comments point out, the postal code does appear to be a valid French postal code, rather than a US one.

No buyer is named in the press release and there's not a single claim in it that can be verified. The only conceivable reason this press release even exists is as a piss-poor effort to publicly distance Descoteaux from KlearGear. It's instant deniability. Descoteaux can't answer any questions about KlearGear because it "sold" it. It also distances it from J. Lee Gersten, the only principal in the debacle who seems to have any sort of a paper trail. ("In connection with the asset sale, DBS' head of North American retail operations, J. Lee Gersten, has left the company effective immediately.")

The story probably isn't over yet, but it looks like Descoteaux's already trying to write the ending… or at least, tear several pages out of the back.

Filed Under: fulfillment, lee gersten, scams
Companies: amazon, chenal, descoteaux boutiques, gift world, kleargear

Another Online Retailer Thinks It Can Charge Customers For Complaining; Now Facing Lawsuit In New York

from the the-way-to-make-money-without-providing-products-or-services dept

KlearGear's unprecedented $3,500 charge for customer complaints tossed whatever little reputation it had down the drain and it's abusive actions earned it a $300,000 judgement when a former customer took it to court. Of course, the company only exists as a half-assed website and handful of remailing services. Someone named Vic Mathieu claimed the company is actually run by Descoteaux Boutiques out of France, and as such, is out of reach of the judgement.

The Consumerist has come across another online retailer that thinks it can charge customers if they even think about complaining, one that also has no real representatives and whose address is a UPS store.

If you were put off by KlearGear.com’s ridiculous “Non-Disparagement” fee, which penalizes customers for sharing their bad shopping experiences with the public, another online retailer is apparently trying to go one further, by not only banning customers from saying bad things online, but by also forbidding them from even bringing up the threat of a complaint or a credit card chargeback.

Buried at the bottom of the Terms page for OnlineAccessoryOutlet.com, you’ll find the following insanely overreaching stipulations (bolded for emphasis):

“You agree not to file any complaint, chargeback, claim, dispute, or make any public forum post, review, Better Business Bureau complaint, social media post, or any public statement regarding the order, our website, or any issue regarding your order, for any reason, within this 90 day period, or to threaten to do so within the 90 day period, or it is a breach of the terms of sale, creating liability for damages in the amount of $250, plus any additional fees, damages – both consequential and incidental, calculated on an ongoing basis.”

The Terms also claim the customer agrees that, even after the 90 days are up, the “sole method of dispute resolution in all cases… shall be binding arbitration to take place in New York City, with all expenses paid by the respective parties.”

Yes, this is from the same company that states this on its About Us page:

We stand behind every sale and make every effort to satisfy each customer. Our goal is to ensure each customer has the most pleasurable and stream-lined ordering process when using our site, and that they save the most money always.

Nothing about the company's reputation backs that up. In addition to the experience of the customer filing a lawsuit against Accessory Outlet (with the assistance of Public Citizen -- PDF link), numerous complaints can be found elsewhere on the web. Almost every complaint is the same: Accessory Outlet ships crappy knockoffs of name-brand products... if it ships anything at all. Customer service, what there is of it, largely consists of stalling tactics and threats.

There's nothing customer-friendly about its Terms of Service and its return policy is just as antagonistic.

Final sale items may not be returned or exchanged for any reason - they are sold as-is, with all sales final… Additional Restrictions: All Lifeproof, Otterbox, Mophie and Apple brand products are not eligible for return or exchange for any reason. Special order, customized, or personalized items are not eligible for return or exchange for any reason. All cosmetic items are not eligible for return or exchange. All refurbished/reconditioned products are final sale, with no returns or exchanges permitted.

Oddly enough, Lifeproof, Otterbox and Apple products are the ones listed most in complaints. According to customers, these are not authentic products, but are cheap knockoffs with design issues and cosmetic flaws. Some are completely unusable.

Trying to cancel or modify an order after submitting will also trigger a $250 fee. "Breaching" the extremely restrictive return/exchange policy will do the same thing.

The ultimate problem here is not just the lousy products backed by worse policies enforced by truly abysmal human beings. It's that Online Accessory Outlet is nothing more than a roving scam operation designed to take money from people in exchange for terrible products. The company has no real address, no real point of contact and has operated a variety of websites featuring the same products and policies. Everything posted on its site with the intent of touting its "trustworthiness" is a lie, as the Consumerist discovered.

For fun and giggles, we’ve written to the three other organizations touted on the site — Angie’s List, buySAFE, and Trusted Shops — to confirm that these endorsements are also false.

We’ve heard back from a rep for buySAFE, who confirmed that Accessory Outlet is not certified.

“The seal you see is an old, bad copy of a buySAFE seal,” explains the rep.

And a rep for Angie’s List says there is no way Accessory Outlet could have won a Super Service Award — which requires perfect scores — because it has no reviews on the site.

“They have no reviews, which equals no grade,” explains the Angie’s rep. “They aren’t SSA winners and shouldn’t be using the badge.”

And a rep for Trusted Shops, which does not certify companies in the U.S. says Accessory Outlet is definitely not certified by the service.

The lawsuit names "Accessory Outlet" at onlineaccessoryoutlet.com. But the Better Business Bureau -- while noting that the company does not have the A+ rating it claims to on its website -- lists two other URLs the company has used.

http://www.eaccessoryoutlet.com/

http://www.trueaccessory.com/

The first URL redirects to onlineaccessoryoutlet.com and the other to nothing at all. It has also done business as Acctown (also with an F rating from the BBB), which still has a functional website and carries much of the same wording in its Terms of Service (although there is a $50 price break -- $200 instead of $250 for thinking about complaining). It may be even worse, considering simply using the website supposedly makes you subject to the terms and conditions.

You agree not to file or initiate any complaint, chargeback, dispute, public comment, forum post, website post, social media post, or any claim related to any transaction with our website and/or company. By using our website, making any purchase, or conducting any transaction with us, you agree to all terms and conditions stated herein. Any action in breach of this agreement that causes reversal of any payment in full or in part shall result in a collections action for the full or partial order total (the amount reversed) plus an additional $50. You agree that any breach of this agreement shall also constitute liability in the amount of $200 plus any related costs directly or indirectly relating from any such breach. These costs shall be collected using a collections agency and/or civil action in New York. You agree that the exclusive forum for any dispute or claim relating to any transaction conducted through our website shall be New York.

Acctown also has its own set of complaints about shoddy products and orders that never arrived.

The current address for Online Accessory Outlet is a remailer. Its contact person (found through complaint sites, not its actual site) is likely as authentic as the glowing 5-star reviews artificially pumping up its rating (as True Accessory) at TrustPilot. Roger Klein, the supposed "Marketing Director" of True Accessory/Online Accessory Outlet updated the company's Manta profile at some point, claiming it's been in business since 2011. True Accessory's history at the Internet Archive only traces back to early 2014, which is in line with the complaints filed. (Feb. 2014 is the first archived version. Complaints begin piling up in March.) The horrendous terms of service went into place almost immediately, although the fees started at $200 rather than $250. Despite the website being shut down, a Facebook page for True Accessory (sporting a very suspicious 2,158 likes) is still live, though apparently unattended.

Unlike KlearGear, contact through email has been successful for customers with complaints, although those complaints are met with threats. (Its only listed phone number now simply states "Customer service is not available" and dumps you directly into voice mail.) From the lawsuit:

Accessory Outlet emailed Cox back, stating that Cox would face a $250 penalty for contacting her credit card company, that Accessory Outlet would send her account to a collections agency, and that "[t]his will put a negative mark on your credit for 7 years and will also result in calls to your home and/or work." The email continued: "Further, additional fees for any correspondence with your card issuer will also be billed to you on an hourly basis and a flat rate $50 fee for the dispute or claim."

A later email was even more direct about the company's desire to punish Cox for complaining.

Contact your lawyer, spend more time and money if you wish. You will be billed and the amount we will bill you for will continue to rise with every email and every second we dedicate to correspondence of any kind pertaining to your breach of the terms of sale. Thank you.

The problem with pursuing shady companies like this is that there's no one to hold accountable. Multiple addresses and multiple URLs suggest someone's trying to make as much money as they can before being forced to bury one name and resurface as a "new" business. So, all you can do is try to steer people away from these companies. The Streisand Effect is greatly blunted when the entity on the other end obviously doesn't care what customers think of them, just as long as it attracts enough suckers to make its sales of cheap knockoffs profitable.

Filed Under: clickwrap, credit score, criticism, retailer, reviews
Companies: accessory outlet, kleargear, online accessory outlet, onlineaccessoryoutlet

KlearGear Revamps Website; New Address Traces Back To Scammy Penny Auction Site

from the coincidence-or-something-nastier? dept

KlearGear is on the move! Not content to simply dodge judgments against it by pretending to be a French corporation rather than the variety of remailers it appears to be, KlearGear has revamped its website and given itself a brand new address.

Gone are the legal threats claiming it has the "right" to charge customers $3,500 for bad reviews. Also gone are the claims that it will fight every chargeback to the death with a variety of tactics including reporting unhappy customers to a scam site shut down by the Federal Trade Commission and an ever-escalating number of punitive charges.

KlearGear's subtly updated site now shows the following as its new address.

427 North Tatnall Street
Wilmington, Delaware 19801-2230

KlearGear used to be "located" at a strip of nondescript warehouses in Grandville, Michigan. But that's all in the past now. The new KlearGear is nominally a Delaware corporation, one that shares its address with yet another scammy business, penny auction site Zbiddy, which boasts an absolutely gaudy 424 customer complaints over the last three years.

Zbiddy seems to have nearly as many pissed-off customers as KlearGear. Winning bidders report their items never arrived. Many more complaints call out the company for charging their credit cards $60-99 immediately after registration, without them ever placing a bid or winning an auction. Like other equally abysmal auction sites, Zbiddy lures people in with the chance to obtain stuff for low, low prices. And like other auction sites, it requires a credit card before a potential bidder can do anything. And (again) like equally shady sites, Zbiddy sells packages of bids, without which bidders can't even participate in auctions.

And, like KlearGear, customer service is nearly nonexistent and many, many people have complained about spending money but receiving nothing in return. At this point, Zbiddy's reputation is so thoroughly trashed that it has sought to hide its name behind a slightly less sketchy penny auction site, BeezId.

It appears that whoever actually runs KlearGear (whether it's Havaco Direct, Chenal Media or French company Descoteaux Boutiques) may have a fistful of scammy companies under his purview -- or at least has the dubious fortune of choosing the same remailer address as Zbiddy. KlearGear may be completely unrelated to Zbiddy, but customers of both suffer from the same form of abuse: not receiving the products they've paid for.

Various attempts have been made to scrub KlearGear's reputation since news of its $3,500 bad review fee surfaced. A very thorough expose of KlearGear's many corporate figureheads posted at RipOff Report notes that someone using the account "Havaco Direct" attempted to hire a freelancer to crank out 10 glowing reviews (all from separate email/IP addresses) and post them at ResellerRatings.com. (A 2011 request from Havaco Direct asks for the generation of 240 unique email addresses created by 240 unique IP addresses -- itself more than a little shady.) A quick scan of ResellerRating reviews pre-dating 2013's Streisanding shows KlearGear's inability to fulfill orders has been a problem (or not, if you're just running a scam) since day one.

Also of interest are recent DMCA takedown notices sent by a supposed representative of KlearGear with the made-up-on-the-spot name of "Consumer Guardian." Since the beginning of this month, it has sent out three notices to Google asking for the delisting of the expansive Ripoff Report noted above, further research into the company's inner workings by a blogger at Blagnet and Ken White's post at Popehat. So far, every request has been turned down. Searching for "Consumer Guardian" gets you the metaphoric phone book, which is presumably the impetus behind the bland name currently abusing the DMCA system.

Other findings:

1. The supposed address of Descoteaux Boutiques is also found on KlearGear's website. However, that address links back to an outsourcing firm (7-Conseil), one that also seems incredibly light on verifiable details. Who's behind it isn't exactly clear, but nowhere in the details will you find Vic Mathieu or the supposed company he claims owns KlearGear.

2. Placing an order with KlearGear now routes you through Yahoo!. On the shopping cart pages, one of KlearGear's lies resurfaces.


KlearGear very definitely does not have an A+ rating with the Better Business Bureau "as of 8/23/14." (This is a very recent update. The sitemap xml shows every page was last updated on 8/22.) Western Michigan's BBB notes that KlearGear isn't even accredited, thanks to its earlier false claims about its BBB rating. San Antonio's BBB (dating back to when KlearGear pretended to be located there) has very generously given KlearGear a "no rating." Delaware's BBB doesn't even have KlearGear listed at its fake local address. So, once again, KlearGear is lying about its rating, but it's hiding it from its critics and using it during the ordering process to give potential customers the completely false assurance that it's a trustworthy company.

3. KlearGear is hiring. And the email address to contact is wow@kleargear.com, which also doubles as its "Customer Care Center" email address, so don't expect to hear back on your application any time soon.

KlearGear -- whoever's actually behind it -- still owes the couple, whose credit it wrecked, over $300,000. But it appears it's well-practiced in the art of hiding behind meaningless names, nonexistent media contact people and a host of shell companies that exist solely as mailboxes. 7-Conseils, the French company that is actually registered at the address listed on KlearGear's site, has been in existence since 2008, but its website still claims to be under construction. The longer-running Chenal name also has a bare-bones website and a bogus address. Vic Mathieu's grandstanding at Ars Technica did little more than show that whoever are running the shop (and whatever their actual names are), have nothing but contempt for every person they've screwed. KlearGear may not be associated with the scammy Zbiddy, but both entities deploy the same tactics (bogus charges, confrontational response to criticism) and have the same abysmal customer service record. What may look like nothing but a coincidence may actually be just another shady operation by the crooked braintrust behind KlearGear.

Filed Under: ecommerce, reputation, scams
Companies: beezid, chenal media, descoteaux boutiques, havaco direct, kleargear, zbiddy

KlearGear Told To Pay $306,750 For Bogus Attempt To Shakedown Customer For Bad Review

from the but-can-they-collect? dept

We've been covering the story of Kleargear for a while now. As you may recall, the company sneakily put a $3,500 "non-disparagement clause" in its online terms of service, saying that you agreed to pay that much if you gave the company a negative review. Jen Palmer left a negative review over some stuff that her husband, John, bought that they never actually got. This happened long before the non-disparagement clause existed. Despite that (and the dubious enforceability of such a clause anyway), Kleargear demanded the $3,500. And when the Palmers rightly refused to pay up, it sent the amount to a collections agency and messed up the Palmers' credit, causing significant hardship for the couple. At this point, Public Citizen stepped in to sue KlearGear. For a while KlearGear played a disappearing game. It didn't respond to Public Citizen's initial letter, then it ignored the lawsuit (and put back the non-disparagement clause on its website after briefly taking it down). Based on that, the Palmers got a default judgment against the company.

Then, suddenly, a "representative" of the company named Vic Mathieu magically appeared spouting all sorts of nonsense and trying to defend everything the company had done. Of course, neither KlearGear nor it's apparently French-based owner Descoteaux Boutiques actually did anything in court, and thus, the court has ordered KlearGear to pay up to the tune of $306,750 in both compensatory and punitive damages.

Of course, collecting on that award may take some work. It's still not entirely clear who is behind Kleargear, statements from Vic Mathieu notwithstanding. It's possible that the company is really owned by this French company, which will make collection difficult for a variety of reasons. Or that whole thing may be a sham in itself, meaning that no one knows who's actually involved at all. Chances are, the Palmers are unlikely to see much money here. Still, what amazes me is that Kleargear itself is still in business. I'm somewhat surprised the company didn't just up and move to a different domain. But, instead, it's still there. One hopes that people doing some shopping do some searches first on the company to find out about its practices.

Filed Under: default judgment, jen palmer, john palmer, non-disparagement clause, vic mathieu
Companies: kleargear

KlearGear Rep Delivers NEW 'Final' Statement About Company's Legal Battle, Trashes Complaining Customers It Hit With A $3,500 Fee

from the unbridled-jackassery dept

KlearGear, via Vic Mathieu, apparently likes the hole it's in, but is still finding it a bit too cozy for its liking. In an amended "final" statement sent to Ars Technica, Descoteaux Boutiques' (apparently overseas owner of KlearGear) Mathieu digs deeper. (h/t to an anonymous Techdirt commenter)

The expanded statement below concludes our public comment about the case of Palmer vs. Kleargear.com.

I thought this was concluded yesterday...

After the payment method of John Palmer was declined for an order in December 2008, he was belligerent toward our customer care staff and threatened to defame Kleargear if he did not receive free merchandise and other consideration.

Even if this is true (and there's no reason to believe it is until Mathieu provides some proof of this), this doesn't explain why nothing was pursued until 2012 (something Mathieu points out in his previous "final" communication), conveniently after KlearGear added its Non-Disparagement Clause.

Such a customer behavior is rare but it has become a increasing problem for many companies today. DBS' head of retail for North America, Lee Gersten, spends nearly half of every year in the United States and Canada and cites this problem as one of the reasons that we started to eliminate Kleargear.com's social media channels in 2012.

First off, shouldn't the North American "head of retail" spend more than "nearly half" the year in the area he services? Secondly, the social media channels didn't go dead until late 2013, shortly after the Palmers' story went national. Either KlearGear's social media handlers are grossly incompetent or this is nothing more than desperate revisionism.

While buySAFE protects our customers' interests on every transaction and can confirm that our rate of dispute is below 0.1%, less than 1 in 1,000 customers, this track record is not public and dissatisfied consumers have a stronger voice.

I've reached out to buySAFE for confirmation on this claim. I will update when an answer is received.

The non-disparagement agreements are not new among employees, partners and customers across the globe.

The fact that other stupid companies and people exist doesn't make KlearGear's policy any less stupid.

There is no contract of adhesion; Kleargear.com operates in the consumer discretionary sector, which does not provide essential services, so that consumers are free to shop elsewhere. Our sales contract is enforceable under the laws of the United States because business transactions are exempt from First Amendment rights.

Except that you would need to complete a sale for it to be enforceable (and even in this case, it's far from a foregone conclusion). The Palmers never received the items they ordered, so no "sale" was actually made. It takes two parties to make a sales contract enforceable, and KlearGear didn't hold up its end.

In our opinion, the arguments and the actions of Public Citizen's Scott Michelman are irresponsible and uninformed, at best, and constitute an abuse of process at worst. Mr. Michelman seems to be an unscrupulous attorney who has made considerable efforts to incite a biased "media storm" to hide this fact.

I'm sure angering the opposing attorney is sound business decision. [eyeroll] And Michelman had nothing to do with the "media storm." Since Mathieu can't seem to keep up, I'll provide a short point-by-point timeline.

1. Palmers order -- but never receive -- merchandise. (2008)

2. Jen Palmer posts negative review at Ripoff Report. (2009)

3. KlearGear contacts the Palmers to let them know they're being fined $3,500 for the negative review. (2012)

4. Matt Gephardt of KUTV investigates. (2013)

5. Story goes national, a.k.a. the "media storm." (November 14, 2013)

6. Public Citizen sues KlearGear on the Palmers' behalf (November 26, 2013)

First the storm -- then the lawsuit.

Despite this tactic, or perhaps because of it, Kleargear's revenues in the third calendar quarter of 2013 increased by 124% compared to the same period in 2012 - and revenue for the year to date in 2014 is up 72% compared to 2013.

Citation, please.

If DBS is presented with an order for judgment on the above-mentioned civil action, which is void on the basis of defective service alone, we will not honor it.

Might want to reread the Hague Convention. As pointed out by a commenter in the last article, it appears DBS was properly served at KlearGear's Michigan address.

"Another proper method of service is to serve a subsidiary corporation. ... Service within the forum state is not governed by the Hague Convention."

Mathieu continues:

In addition, such an invalid judicial resolution will not serve to dissuade Kleargear or other retailers from binding their customers to non-disparagement terms.

Every company is free to be as stupid as they want to be...

If and when Mr. Michelman and Public Citizen decide to conduct themselves properly, we will participate in this dispute as any honorable corporate citizen would.

You wouldn't know the meaning of the word "honorable" if it slapped you with a $3,500 non-enforceable fee four years after it failed to deliver purchased items.

Mathieu claims a stellar customer service record, but its customer service has been routed through Zendesk (who I've also reached out to for comment/information) and its policies related to customer service matters range from the questionable to the abusive.

In addition to the $3,500 Non-Disparagement Clause, KlearGear has, over the years, also charged a non-refundable "Dispute Fee" to customers' credit cards, which is deployed in case of a chargeback or a refund request. If KlearGear is unable to collect the Dispute Fee, it will:

forward your account to our external collections agency and assess an additional $500.00 Collection Fee.

Any dispute also carried with it the chance that KlearGear would report the customer to BadCustomer.com. The only thing preventing KlearGear from doing this today is the fact that BadCustomer.com was shut down by the FTC for participating in a billing scam that extracted $275 million from credit card users' accounts over a 4-year period. Here's how its chargeback policy works in practice.

Due to a recent dispute filed with your credit card bank in connection with your Order #29296 on 11-Sep-2012, you now owe an additional $50.00 per our Chargeback/Dispute Policy that you agreed to at the time of your purchase (available here: http://www.kleargear.com/help.html). If you do not pay this fee within 30 days of the date of this notice, your delinquent account will be forwarded to our collections firm, credit bureaus TransUnion, Experian, and Equifax, and you will owe an additional $500.00 Collections Fee per our binding sales contract.

To pay this fee, please fax a copy of both sides of your credit card to our Legal Department at (210) 745-421 and reference your Order #29296. Alternatively, you may send a check to us at the address below.

We regret that we must charge this dispute fee, however your dispute violated our sales contract and was premature and without merit. Once again, please be aware that should you dispute your chargeback fee or later cancel a check payment you will incur additional chargeback and collection fees. A copy of this message is being provided to your credit card bank in connection with this dispute and the related chargeback dispute fee. Whether or not you cancel your dispute with your credit card bank, this dispute fee is not refundable.

Please be advised that you will not receive another notice regarding this debt before your account is forwarded to our collections agency.

Regards,
Stephen Gutman
Legal Department
KlearGear.com, Inc.

A look at the pre-Jen Palmer complaints to Ripoff Report shows a distressing commonality: KlearGear likes charging credit cards -- shipping products and/or answering customer complaints, not so much. Multiple customers report that phone calls and emails went unanswered. But if someone decides to issue a chargeback after waiting weeks for their purchase, KlearGear's "legal department" swiftly springs into action to threaten users with hefty fees and damaged credit ratings.

Until Mathieu is actually willing to provide some proof of the claims he's made, the company's online reputation will continue to speak for itself. KlearGear's relationship with its customers is toxic. Mathieu has invited everyone to shop elsewhere. I say take that offer.

Filed Under: jen palmer, john palmer, vic mathieu
Companies: descoteaux boutiques, kleargear

French KlearGear Rep Fires Off Email Defending Company's Actions, Claims Suit Against It Wasn't Served Properly

from the offers-nothing,-far-too-late dept

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 2009 -- 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).

The new terms of use page ("termsofuse1") first appeared in February 2014 (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…

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.

Ken White at Popehat:

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.

Filed Under: jen palmer, john palmer, non-disparagement, vic mathieu
Companies: descoteaux boutiques, kleargear