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Terms is terms. - Blather. Rants. Repeat.
A Møøse once bit my sister ...
Terms is terms.

By far the biggest Black Friday story here, if you can believe the endless CNN feed I was fed at the car dealership yesterday, was this one, from days to even years ago. It's a sick tale of lawyers, but a cautionary tale for all of us:

Matthew says: "A woman paid for items from kleargear.com but never received them, so she wrote a bad review of the site on ripoffreport.com. Three years later she received a $3500 bill from Kleargear, stating that she'd violated the 'non-disparagement clause' to which she agreed when she paid for the items."

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

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

Apparently, this outfit did exactly what they said they would do- invoiced the woman for $3,500 and reported her to credit bureaus, resulting in serious dinging that kept her family from getting credit, including a car and a furnace replacement. Those kinds of consequences are covered by a federal law called the Fair Credit Reporting Act, and pro bono organizations are stepping up to clear the complainer's name and stop their conduct of this kind.

I've seen this secondhand under similar circumstances of Good Legislative Intentions Gone Bad. About a year ago, a former client got charged with shoplifting- it was minor, unthinking and probably depression-related, and the ultimate criminal charges were dismissed. But before the merch had even re-cooled on the store shelves, a lawyer for the merchant had contacted the client, demanding a ridiculous amount of "civil penalty" set forth in a state statute which wasn't intended to punish people in such circumstances but was being used for that very purpose.  I sent a nastygram back, threatening the lawyers with potential claims for violating other federal laws in their demand, and they ultimately turtled on it- but sheesh.

Most lawyers- including the CNN talking heads, not to mention  this one- would tell you that such stupid terms in a "terms of service" agreement are likely to be held unenforceable, especially where the complainant never actually consummated the sale and there were therefore no "terms" to attach to it. But that's a Phyrric form of victory if you need to hire a lawyer to defend a suit or clean up your credit- just getting tagged with one of these things, however frivolously, is half the losing battle.

Just yesterday, I needed to update one of my Amazon apps in order to download something- and the revised "terms and conditions" came to 54 pages of blinding black type. Of course I hit "I agree," even after having heard about this story, because who has time for that crap?

Please comment if you agree with this assessment- but be aware: I charge $250 an hour plus disbursements for disagreeing with you;)

This entry was originally posted at http://captainsblog.dreamwidth.org/172951.html. Please comment here, or there using OpenID.
4 comments or Leave a comment
tilia_tomentosa From: tilia_tomentosa Date: December 1st, 2013 02:02 am (UTC) (Link)
So just how much do you charge for disagreeing? :P
captainsblog From: captainsblog Date: December 1st, 2013 02:05 am (UTC) (Link)
You couldn't afford it;)
tilia_tomentosa From: tilia_tomentosa Date: December 1st, 2013 02:12 am (UTC) (Link)
bktheirregular From: bktheirregular Date: December 1st, 2013 08:26 am (UTC) (Link)
Hm ... well, aside from the FCRA violation, the merchant's probably already on shaky ground because it didn't fulfill its end of the contract - took her quid, didn't follow through with the quo, and I wouldn't want to go to court to demand someone perform on a contract when my client's clearly in breach...
4 comments or Leave a comment