Political Wrinkles  

Go Back   Political Wrinkles > Political Forums > Civil Rights & Abortion
Register FAQDonate PW Store PW Trivia Members List Calendar Search Today's Posts Mark Forums Read

Civil Rights & Abortion Discuss Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K at the Political Forums; We’ve been in touch with Jen after numerous readers reached out to Consumerist saying they wanted to help with her ...

Reply
 
Share LinkBack Thread Tools Display Modes
  #1 (permalink)  
Old 11-26-2013, 10:21 AM
foundit66's Avatar
Moderator
 
Join Date: Oct 2007
Location: California
Gender: Male
Posts: 25,608
Thanks: 10,108
Thanked 15,284 Times in 9,267 Posts
Post Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
We’ve been in touch with Jen after numerous readers reached out to Consumerist saying they wanted to help with her case. She’s going to keep us in the loop about her situation, but wanted share a message with those who’ve been supporting her and her husband. “If you could just convey to everyone how much we deeply appreciate all the support the internet has generated, that would be wonderful,” Jen writes. Our readers are the best.
We’ve all seen the social media meltdowns that can ensue when customers write negative things about a company online, which always result in the company looking like the bad guy whether it is or not. But one online retailer has taken that revenge into the real world, slapping an unsatisfied customer with a $3,500 fine and dinging her credit score after she didn’t pay up.
A few years ago, Jen’s husband ordered a bunch of trinkets from a website that appears to deal in the sort of odds and ends one might find at a Spencer’s Gifts. But 30 days after he ordered it, the products hadn’t arrived and PayPal canceled the transaction, she tells KUTV.com.
She wanted to know why the items never showed up, so she did what any logical customer would do and called up the company to get some information. Unfortunately she couldn’t reach anyone, so she channeled her frustration into a negative review on RipoffReport.com.
“There is absolutely no way to get in touch with a physical human being,” it says, accusing the company of having “horrible customer service practices.”
Done and done, right? Wrong. Fast forward three years later when her husband got an email from the company (which means someone works there after all, eh?) demanding that the post be taken down or they would be fined.
The company cited a “non-disparagement contract” within its terms of sale with a clause that it says gives it the right to demand such a fine:
“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 [our company], its reputation, products, services, management or employees.”

If you violate that contract, the clause says a consumer has 72 hours to remove the post or face the $3,500 fine. If it’s not paid, the delinquency is then reported to credit bureaus.
“This is fraud,” the woman says. “They’re blackmailing us for telling the truth.”
She and her husband attempted to get RipoffReport.com to pull the review but were told that wasn’t going to happen, and the credit bureaus say that because the company claims the charge is valid, the credit dent will remain.
When KUTV.com dug a little deeper, the news team found that the company had an “F” rating from the Better Business Bureau in 2010 (two years after the order was placed) for “not delivering products purchased online in a timely manner.”
The company also claimed in an email to KUTV.com via an unidentified person that the $3,500 fine and the alleged threat of removing the post or facing the fine wasn’t blackmail, just a “diligent effort to help them avoid [the fine].”
The news station spoke to a First Amendment attorney who pretty much said exactly what we’re thinking — this is unheard of.
“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.”
He says, and we agree that there’s a pretty darn good chance any judge facing this issue in court would throw out a non-disparagement clause as 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,” he explains.
In the meantime, the couple can’t afford an attorney to fight the clause on the grounds of its likely unconstitutionality but are working with Experian to try and fix the damage done to their credit.
Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K ? Consumerist

To me, this is simple 1st amendment.

There are a LOT of ways that the consumer world is skewed against the consumer and one of the worst (IMO) is the consumer credit rating charade.

Take the above as an example.
The couple involved having to fight to restore their credit rating. Who knows how much time, energy, $$$, and possibly lawyer fees it will take to restore their credit rating against this fraudulent defamation.

Another example is "identity theft". If some guy came to my door and lied claiming to be "Jon Smith" and I gave him $100, does it make any sense that I should be able to inconvenience the real Jon Smith since I was defrauded? If I then caused financial harm or slandered Jon Smith financially, am I blameless?


But make me a bank, and that's exactly what happens with identity theft.

The above situation with some companies having a "You can't say anything bad about us" clause has other examples. This isn't the first I've heard of it.
Below is another example of an attempted lawsuit because the customer posted a negative review on a business.
Casey Movers Threatens To Sue Me Over Bad Review - 1918
__________________
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.”
~Abraham Lincoln
Reply With Quote
  #2 (permalink)  
Old 11-26-2013, 10:31 AM
Scholar
 
Join Date: Nov 2012
Posts: 2,666
Thanks: 347
Thanked 1,955 Times in 1,179 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Basic 1st amendment violation. The only way I can see the company having a case is if the negative review was fraudulent. Sounds to me like they need to get a good contingency fee lawyer and sue the piss out of this company.
Reply With Quote
The Following User Says Thank You to loboloco For This Useful Post:
  #3 (permalink)  
Old 11-26-2013, 11:23 AM
MrLiberty's Avatar
professional curmudgeon
 
Join Date: Mar 2009
Gender: Male
Posts: 30,506
Thanks: 21,953
Thanked 18,612 Times in 11,938 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Since the transaction was never completed there was no sale. I would assume that the violation of the contract fall then on the company not the consumer. So the consumer would be within their right to post negative feedback and not be in violation of the terms of sale.
__________________
Sometimes by losing a battle you find a new way to win the war.

Donald Trump
Reply With Quote
  #4 (permalink)  
Old 11-26-2013, 11:50 AM
Idealogically Promiscuous's Avatar
Do I Look Like a Bitch?
 
Join Date: Oct 2007
Location: West Hollywood, CA
Gender: Male
Posts: 11,087
Thanks: 4,153
Thanked 6,673 Times in 3,956 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by MrLiberty View Post
Since the transaction was never completed there was no sale. I would assume that the violation of the contract fall then on the company not the consumer. So the consumer would be within their right to post negative feedback and not be in violation of the terms of sale.
Damn, MrL. You surprise me sometimes.
__________________
Say "what" one mo' goddamned time. I dare ya. I double dog dare ya.
Reply With Quote
The Following User Says Thank You to Idealogically Promiscuous For This Useful Post:
  #5 (permalink)  
Old 11-26-2013, 12:07 PM
faithful_servant's Avatar
PW Enlightenment
 
Join Date: Jun 2008
Location: Beautiful conservative Central Oregon
Gender: Male
Posts: 19,290
Thanks: 6,030
Thanked 8,067 Times in 5,535 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Caveat emptor. They agreed to the deal and the conditions contained in that contract. It sucks that a company would put that in their terms, but the fact is that it is there and they chose to accept those terms as a condition of their transaction. Having said that, a VERY strong case could be made that since the company didn't fulfill their obligations, then the customers have no obligation to fulfill theirs. Outside of that, the company has a valid claim. I'd also like to see this company sued for misrepresentation due to their incredibly poor delivery record.
Reply With Quote
  #6 (permalink)  
Old 11-26-2013, 12:29 PM
Idealogically Promiscuous's Avatar
Do I Look Like a Bitch?
 
Join Date: Oct 2007
Location: West Hollywood, CA
Gender: Male
Posts: 11,087
Thanks: 4,153
Thanked 6,673 Times in 3,956 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by faithful_servant View Post
Caveat emptor. They agreed to the deal and the conditions contained in that contract. It sucks that a company would put that in their terms, but the fact is that it is there and they chose to accept those terms as a condition of their transaction. Having said that, a VERY strong case could be made that since the company didn't fulfill their obligations, then the customers have no obligation to fulfill theirs. Outside of that, the company has a valid claim. I'd also like to see this company sued for misrepresentation due to their incredibly poor delivery record.
No contract can negate constitutional rights. It's the same issue with leases that say you may not own a firearm. They are unconstitutional.
__________________
Say "what" one mo' goddamned time. I dare ya. I double dog dare ya.
Reply With Quote
The Following User Says Thank You to Idealogically Promiscuous For This Useful Post:
  #7 (permalink)  
Old 11-26-2013, 01:09 PM
faithful_servant's Avatar
PW Enlightenment
 
Join Date: Jun 2008
Location: Beautiful conservative Central Oregon
Gender: Male
Posts: 19,290
Thanks: 6,030
Thanked 8,067 Times in 5,535 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by Idealogically Promiscuous View Post
No contract can negate constitutional rights. It's the same issue with leases that say you may not own a firearm. They are unconstitutional.
If you agree to the terms of the contract it most certainly can. I can hire someone with the requirement that they do not discuss political issues while they are on company property and the law will back that contract 100%. The 1st is not carte blanche to say whatever you want, whenever you want, it is protection against the gov't stopping you from speaking your mind.
Reply With Quote
  #8 (permalink)  
Old 11-26-2013, 01:14 PM
Idealogically Promiscuous's Avatar
Do I Look Like a Bitch?
 
Join Date: Oct 2007
Location: West Hollywood, CA
Gender: Male
Posts: 11,087
Thanks: 4,153
Thanked 6,673 Times in 3,956 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by faithful_servant View Post
If you agree to the terms of the contract it most certainly can. I can hire someone with the requirement that they do not discuss political issues while they are on company property and the law will back that contract 100%. The 1st is not carte blanche to say whatever you want, whenever you want, it is protection against the gov't stopping you from speaking your mind.
You can restrict within certain parameters but you cannot negate the 1st Amendment (nor any amendment) entirely with a private contract. So long as it is not a trade secret, a court gag order, or a nondisclosure clause about a particular incident, the first amendment will trump the contract EVERY TIME. Asking employees to refrain from cursing or discussing politics can only be enforced within certain parameters that impact the organization and THAT'S IT. They walk off the premises after they clock out or are away on a break, you can't enforce that requirement at all. Certain parameters.

This will get tossed out. They are going to make a mint off suing these bastards, too. Watch.
__________________
Say "what" one mo' goddamned time. I dare ya. I double dog dare ya.
Reply With Quote
  #9 (permalink)  
Old 11-26-2013, 01:17 PM
faithful_servant's Avatar
PW Enlightenment
 
Join Date: Jun 2008
Location: Beautiful conservative Central Oregon
Gender: Male
Posts: 19,290
Thanks: 6,030
Thanked 8,067 Times in 5,535 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by Idealogically Promiscuous View Post
You can restrict within certain parameters but you cannot negate the 1st Amendment (nor any amendment) entirely with a private contract. So long as it is not a trade secret, a court gag order, or a nondisclosure clause about a particular incident, the first amendment will trump the contract EVERY TIME. Asking employees to refrain from cursing or discussing politics can only be enforced within certain parameters that impact the organization and THAT'S IT. They walk off the premises after they clock out or are away on a break, you can't enforce that requirement at all. Certain parameters.

This will get tossed out. They are going to make a mint off suing these bastards, too. Watch.
I think that it will get tossed as well, but not on a 1st Amendment basis. It'll get tossed based on the fact that the company negated the contract by their failure to deliver, leaving the customer free to say whatever they want.
Reply With Quote
  #10 (permalink)  
Old 11-26-2013, 01:19 PM
Idealogically Promiscuous's Avatar
Do I Look Like a Bitch?
 
Join Date: Oct 2007
Location: West Hollywood, CA
Gender: Male
Posts: 11,087
Thanks: 4,153
Thanked 6,673 Times in 3,956 Posts
Default Re: Customer Writes Negative Review After Never Receiving Order, Site Fines Her $3.5K

Quote:
Originally Posted by faithful_servant View Post
I think that it will get tossed as well, but not on a 1st Amendment basis. It'll get tossed based on the fact that the company negated the contract by their failure to deliver, leaving the customer free to say whatever they want.
That would be the easy way, yes.
__________________
Say "what" one mo' goddamned time. I dare ya. I double dog dare ya.
Reply With Quote
Reply

Tags
$35k, after, customer, fines, her, negative, never, order, receiving, review, site, writes

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are On
Pingbacks are On
Refbacks are On

Forum Jump


All times are GMT -5. The time now is 04:55 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.

Content Relevant URLs by vBSEO 3.2.0