Wednesday, April 23 2014, 09:23 AM MDT
Defiance May Soon Pay Off for Couple Fined Over Negative Comments
(KUTV) Talk about putting the shoe on the other foot. The Layton, Utah husband and wife who were fined for voicing their opinion about an online company could soon be collecting from that company.
As Get Gephardt first reported last November, Jen Palmer was angry after products her husband John ordered from the website kleargear.com never arrived and they couldn't get answers.
"You can't get a hold of anyone [at kleargear.com]," Jen said. "You can't get anybody on the phone. You can't get anybody live. None of the extensions work."
Jen said as much on the internet complaint board ripoffreport.com way back in 2008. Years later, it turned out to be a costly negative review for her and her and John.
Kleargear.com says that by posting the review, Jen violated a "non-disparagement" clause that is buried in kleargear.com's terms of sale. The penalty for doing so was a $3500 fine that John was ordered to pay.
"This is fraud," Jen said. "They're blackmailing us for telling the truth."
When John and Jen refused to pay, kleargear.com sent the account to a collection agency and John's credit rating was destroyed. The move made it impossible for John and Jen to refinance their home, buy a car or even get credit to repair a broken heater in their home. Still, John and Jen remained defiant.
"At this point it's already blackmail," she said. "There is no way were going to bend to [pay the fine]."
Months later, that refusal to bend seems like it is about to pay off. The Washington D.C. based Public Citizen Litigation Group saw John and Jen's story and stepped in to represent them.
Public Citizen lawyer Scott Michelman helped the couple sue kleargear.com in federal court. Kleargear.com didn't respond the lawsuit. Court records filed this week show that the complaint was sent to several physical addresses for kleargear.com including a Michigan address where it "apparently reached someone at KlearGear.com," because it was twice, "returned by the U.S. Postal Service as 'refused,'" according to court documents.
The court clerk declared kleargear.com to be in default on March 11, 2014. Eight days later, Michelman proposed a default judgment which reads, "kleargear.com is liable to [jen and her husband] for violating the fair credit reporting act, for defamation, for intentional interference with prospective contractual relations, and for intentional infliction of emotional distress."
Michelman told Get Gephardt Thursday that he expects the judge will sign the motion and order kleargear.com to pay restitution to John and Jen.
The proposed default judgment does not say how much kleargear.com will be asked to pay. Rather, Michelman has asked for a future hearing where the judge would determine the penalty. A letter sent to kleargear.com by Michelman before the lawsuit was filed said John and Jen would ask a court to award $70,000.
As for the non-disparagement clause on kleargear.com's website, it disappeared shortly after the original Get Gephardt report aired but has since returned. Consumer who choose to do business with kleargear.com and are unhappy with that service are again forbidden from telling anybody about it by the company. Kleargear.com says that the fine for doing so is $3500.
Also named in the lawsuit was the collection agency that reported John as a deadbeat to the nation's credit bureaus, Fidelity Information Corporation. In February, the $3,500 fine against John was dropped by Fidelity Information which also restored John's credit score. As a result, John and Jen dismissed the collection agency from the suit.
By Matt Gephardt
(Copyright 2014 Sinclair Broadcasting Group)