Woman Fined For Bad Review Striking Back In Court 249
An anonymous reader writes "Here's an update to the earlier Slashdot story about KlearGear.com 'fining' a couple for a bad review left four years earlier on RipoffReport: Not only did KlearGear report this as a bad debt to credit reporting agencies, but KlearGear is hiding behind a DomainsByProxy domain name to making finding their real identities harder. Now Public Citizen is representing the couple and is going after KlearGear for $75,000. The TV station that broke this story, KUTV, now reports that RipoffReport will likely be on the couple's side. The BBB and TRUSTe say their logos were used by KlearGear.com without permission, and credit reporting agency Experian is also investigating."
Waiver of rights (Score:5, Insightful)
The main claim is that the puchase was a contract that imposed the condition of "never acting to harm KlearGear". That could encompass pretty much anything you do. Did you consume a resource that resulted in higher costs to them, did you loan the item to a friend and the friend did not like it. So many accidental ways to breach the "contract"
We the people need the right of fair dealing. We can't have weird contractual conditions imposed. I am not a lawyer so don't know how to put it.
Normal actions, including criticism should not result in violations.
Re:Rip Off Report (Score:5, Insightful)
Re:Waiver of rights (Score:3, Insightful)
Re:Good (Score:5, Insightful)
Yea, based on the facts as offered, they can go rot...
Re:Waiver of rights (Score:2, Insightful)
Unless KlearGear is run by either the Federal or a state government, how can they be violating the First Amendment?
Re:Good (Score:2, Insightful)
Out of business is not good enough
Dead right.
The right wing are forever claiming that corporations are people. Let's see these lowlifes in jail, and I will believe the rightists for once.
Re:Fret not (Score:5, Insightful)
All of the company staff will get IRS jobs. They've shown the proper mindset.
IRS? Nah. Wall street. We never did fix those problems.
Re:Just wait for more EULA's and the TPP / ACTA (Score:5, Insightful)
Nothing trumps basic consumer law and contract fairness.
Too many people forget this.
The EULA's can say what they like. If it's deemed unreasonable, especially if it's one-sided, courts will just ignore those portions of it.
I think commenting your own opinion on a product/service you used can't really ever be deemed unreasonable until it becomes harassment, and that's relatively easy to determine and prose cute for.
Fact is, all this company have done is said they'll sue their own customers unless they never have a problem and/or never tell anyone about it. It's a perfect way to lose customers.
They can claim anything they like, but that doesn't mean that a court will back them - especially not when they breached the contract themselves first (thus making all the other party's obligations under that contract null and void).
Just because someone says "But you signed/agreed to this", it doesn't mean that you are bound by it. It's a complete fallacy. It just means that you have to prove it's unreasonable rather than, in the case of not signing it, do nothing.
There was a lot of cases about whether automatic "if you park here, you are agreeing to pay a £100 'fine'" signs put up by private landowners. Loads of people ignored them and paid fines. And then courts said that it was unreasonable and not legal. And now those landowners are having to pay all that money (and expenses) back.
A contract has to be fair and reasonable, or it's not a contract at all. And yet you can still be held by your side of the contract (e.g. providing the damn service you were required to) while having all your provisos (e.g. NDA's or termination clauses) rendered void. It all depends on the balance of contract law.
But, honestly, don't agree to such things in the first place (this person says they didn't, for instance), and don't let people get away with such things when they can't keep their own side of the agreement.
Re:Just wait for more EULA's and the TPP / ACTA (Score:4, Insightful)
Well, it used to be that nothing trumped the Constitution, but that seems to have changed too.
Re:Waiver of rights (Score:5, Insightful)
Yeah, the "fine" fails on so many levels. A contract term added after the formation of the contract, enforced based on a contract that KlearGear breached (by not delivering), enforced on someone who was not the contracting party (the person posting the review was not the person who made the purchase), and unconscionable to boot.
Based on all this and my knowledge of the integrity of the legal system, my bet is the Palmers will lose their suit and KlearGear's fine will be upheld, with the Palmers paying KlearGear's attorney fees.
Re:Waiver of rights (Score:5, Insightful)
The Constitution doesn't grant ANY rights. The Bill of Rights recognizes is a non-exhaustive list of rights of the natural rights of free people. These rights predated the Constitution, and people are entitled to them with or without the Constitution.
As the USOC [sic - the Supreme Court???] recognized, the first amendment only grants the right from government restrictions on free speech. Other entities such as... schools are not required to grant you the right to free speech.
Again, the government didn't GRANT you the rights listed in the first amendment (because the rights were there already), but the government is required to RESPECT the rights that you already had. This applies to all governmental institutions, which includes most schools.
Please stop treating the Constitution like a religious document. It is not.It is very limited and very specific.
It's obvious you have NO IDEA what you're talking about.
Re:Fret not (Score:3, Insightful)
A predecessor to the United States already tried this. It was an abject failure. Did you know that rich people who think "someone" should fund the government almost always mean "someone else, obviously, I've got yachts to buy" ?
Re:Waiver of rights (Score:2, Insightful)
The idea that 'people have natural rights' is not falsifiable. Your disgreement with the OP is an entirely religious one.
Re:Fret not (Score:3, Insightful)
Did you know that rich people who think "someone" should fund the government almost always mean "someone else, obviously, I've got yachts to buy" ?
I haven't noticed that being rich had an effect on that particular mindset. The point of government is to give me free shit. Having me actually pay for that defeats the purpose - whether I'm rich or poor.
Re:Waiver of rights (Score:4, Insightful)
By that logic, we have the right to rape and murder.
Re:Waiver of rights (Score:4, Insightful)
Re:Waiver of rights (Score:3, Insightful)
> The idea that 'people have natural rights' is not falsifiable. Your disgreement with the OP is an entirely religious one.
BS. The "government" doesn't exist -- only people and things exist. To say "the government" grants you rights means other people grant you rights. How in god's name did they get this awesome power? Why do you think it's proper to get on bended knee and beg for rights from them?
People can't "grant" rights, but they sure as hell can take away others' rights. Stop lying supine for your masters, begging for your life, and your right to live, liberty, property, and happiness.
Re:Fret not (Score:5, Insightful)
Ding Ding Ding Ding
You have identified the fundamental problem with our system of government.
Couple the principle of free shit with that of lack of term limits and fiat money and I am amazed we have gotten this far.
Re:Waiver of rights (Score:5, Insightful)
That must be the most ill-conceived post I've seen in /. on all my years here, and that's saying something. Just because you can't prevent anyone from doing something (murder, rape or holding a speech) doesn't make it a "right". Punishing someone after the fact does take the "right" away, you really think saying something then facing an execution squad is free speech? As for "natural" rights, I consider that a joke. Try arguing your "right to life" with a hungry lion, rights only exists between entities that recognize those rights. If your government doesn't recognize freedom of speech, the difference between having it and not having it is entirely philosophical.
Most people, even those who like to pretend they only care about negative rights care about positive rights. If you say something and the government wants to hang you from the nearest tree but the law won't let them that's a negative right. If you say something and the community wants to hang you from the nearest tree but the police or the law won't let them that's a positive right. What's really your "freedom" of speech worth if the Taleban will kill you for it and nobody will care? Not very much.
Re:Waiver of rights (Score:2, Insightful)
It's that big association of people often referred to as "society" or "state", that is able to keep up the rights you seem to believe are your own. As soon as you move out of that association, you also lose the rights you were granted.
Re:Waiver of rights (Score:3, Insightful)
Re:Fret not (Score:0, Insightful)
We have grown dependent on freebies and handouts as our government tries to "domesticate" its citizenry into the role of owned beasts of burden.
Its now at the point if the government handouts cease, there will be rioting in the street that would be remind anyone of the kind of violence one ususally sees in the Middle East.
Re:Fret not (Score:1, Insightful)
So America, prior to Roosevelt is your idea of paradise.... I gotta love you right wingers trying to repeal the 20th century as if the 19th century was some kind of utopia.
Re:Fret not (Score:2, Insightful)
Re:Fret not (Score:5, Insightful)
What freebies and handouts would these be? By developed nation standards we do not spend that much on social welfare programs.
Re:Good (Score:5, Insightful)
Can anyone comment reliably on whether this strategy actually holds up in the US? Here in the UK, I would expect that knowingly and deliberately running a company into the dust like that would be grounds for piercing the corporate veil [wikipedia.org].
Re:Good (Score:4, Insightful)
EU....electronics connections
You are actually complaining about things like the rule that phones must be chargeable over mini USB?
Apple's refusal to do this properly is one of the reasons I have a different kind of phone, despite happily using their computers.
This rule is a seriously good move, allowing you to be near certain that your phone will be chargeable when you are at a friend's house without your charger.
Corporations would never do this without being forced. In fact they would do the opposite, and deliberately use mutually incompatible charger connections.
Re:Waiver of rights (Score:5, Insightful)
The classic example is signing a contract whereby you sell yourself into slavery.
Even if you willingly sign such a contract, and receive the money from the buyer, it still has absolutely no force under US law, since it's against the law there for one human to own another.
Re:Waiver of rights (Score:5, Insightful)
based on the actions of the wife, who didn't agree to anything.
Ah.... that is indeed another wrinkle. Marriage does not give a spouse the ability to legally sign and bind the other spouse to contracts. Utah is not even a community property state. Therefore, any value from the Kleargear contract would be separate property --- the wife would not be party to the agreement, and would have received no consideration from it. The husband is legally unable to bind the actions of the wife.
Clearly, they would have known that the order was not placed by the reviewer, by examining the contents of the order form. The fact that Kleargear chose not to, can only be attributed to an attempt to maintain a false pretense (deception); for the purpose of damaging another individual, by impeding their rights, and/or eliciting financial gain ("defrauding the husband out of $3500").
Read: 18 U.S.C. 1343 Wire fraud [cornell.edu]
Re: Fret not (Score:3, Insightful)
Re:Fret not (Score:4, Insightful)
Because you're thinking maintenance costs as entitlements. You're so used to living in a peaceful, lawful society you think it's the natural state of things rather than something that was won by ensuring Joe Beggar has options besides starving or mugging you. Or maybe you're simply subconsciously assuming the opportunities inherent in frontier period America still exist today, and any disenfranchised person can simply go West and grab some land to farm.
Or, to put it another way: Breaking Bad Canada.