Why caveat emptor
? Well, based on the two slashdot.org
posts below, and assuming that they are true/factual, look at this interesting and alleged example of what some people (not me, you understand) might say seems like a potential case of fraudulent B2C (business to customer) e-commerce on the Internet, followed up by what seems to be a malicious attempt at a manufactured/dishonest punitive revenge for a bad (but apparently justifiable) review by the purchaser on ripoffreport.com
If we make the reasonable assumption that the supplier kleargear.com
would, in general, tend to treat all customers/victims relatively consistently - i.e., in the same manner - then we could ask what sort of consumer protection laws there were/are - if any - against this sort of thing.
I presume the prevailing laws would be as per the state of domicile of the business entity involved (in this case kleargear.com's state), but whatever those laws are, they apparently do not seem to in any event prevent a predatory supplier from seemingly ripping-off and then victimising a "protesting customer" in this manner (QED).
Woman Facing $3,500 Fine For Posting Online Review
Posted by Soulskill on Friday November 15, 2013 @03:13PM
from the hidden-so-well-it-didn't-exist dept.
sabri writes "Jen Palmer tried to order something from kleargear.com, some sort of cheap ThinkGeek clone. The merchandise never arrived and she wrote a review on ripoffreport.com. Now, kleargear.com is reporting her to credit agencies and sending collectors to fetch $3,500 as part of a clause which did not exist at the alleged time of purchase. 'By email, a person who did not identify him or herself defended the $3500 charge referring again to Kleargear.com's terms of sale. As for Jen being threatened — remove the post or face a fine — the company said that was not blackmail but rather a, "diligent effort to help them avoid [the fine]."' The terms and conditions shouldn't even apply, since the sales transaction was never completed."
The point about "...the sales transaction was never completed" is actually irrelevant, since, in contract law, a contract
exists at the point when these 3 things have occurred:
1. Offer. (e.g., I offer to sell you something at a price of $X.)
2. Acceptance. (e.g., you accept my offer at that price.)
3. Consideration. (e.g., you pay me the money $X.)
So, if I then fail to deliver (this is called "non-performance") the thing purchased under this contract - and for whatever reason - then I would be in breach
of contract, and obliged (in law) to refund the monies paid, plus any penalties for non-performance that may have been stipulated under the terms and conditions of sale (which would have formed part of the contract at the time).
If it is indeed true that kleargear.com
subsequently cited "a clause which did not exist at the alleged time of purchase"
(i.e., it was not one of the terms and conditions of sale), then this would presumably be either a mistake or a knowingly deceitful/dishonest) statement.
So it is no surprise that we get the report:
Woman Fined For Bad Review Striking Back In Court
Posted by Soulskill on Friday November 29, 2013 @05:07PM
from the jury-to-be-fined-for-unfavorable-verdict dept.
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."
What I find disconcerting, and why I warn "caveat emptor"
- Assuming that it is true that kleargear.com are attempting " 'fining' a couple for a bad review left four years earlier on RipoffReport".
- Assuming that the alleged rippoff (non-performance) by kleargear.com occurred after the point when the contract was agreed to.
- Assuming it is true that kleargear.com cited "...clause which did not exist at the alleged time of purchase" - and which thus was not part of the contract.
- Assuming that it is true that "KlearGear is hiding behind a DomainsByProxy domain name to making finding their real identities harder."
- Assuming that it is true that KlearGear did "report this ["fine"] as a bad debt to credit reporting agencies".
- Assuming it is true that "Public Citizen is representing the couple and is going after KlearGear for $75,000."
- Assuming that it is true 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."
- then the whole thing rather begins to look like the unravelling of an apparently dubious/fraudulent operation which may have been deliberately set up at the outset to operate in an unscrupulous manner.Therefore:
The question arguably becomes not
"what sort of consumer protection laws there were/are" but "How is it that apparently fraudulent organisations are/have been enabled to set up and operate undetected in this manner for years under prevailing state commercial and consumer protection laws?"
Some people (not me you understand) might say that this shows a serious failing of whatever passes for the state legislature to have in place proper and adequate commercial and consumer protection laws.
These people could be wrong, of course, and it might be that there are in place proper and adequate commercial and consumer protection laws, and that kleargear.com
and others perhaps yet to be revealed have been successful in operating just below the legislated radar, for a number of years. However, if that were the case, then there could be a potentially very large population of consumers who may have been ripped of without recourse by kleargear.com
and others yet to be revealed.
Whatever the case, if it becomes apparent that the consumer who filed the "RipoffReport" might have been unable to stand up for their contractual rights as a consumer, without recourse, and without being subsequently maliciously and deceitfully attacked in a punitive manner by the perpetrator, and only gained recourse and defence after being given assistance by the Public Citizen
organisation, then all consumers had better beware
, because sure as heck there would seem to be grossly inadequate protection for them under prevailing state commercial/consumer law (QED), with all the advantage apparently being on the side of fraudulent companies who are even protected by being able to be effectively and legally anonymous.
I think it stinks.Suggested action:
If you do not do so already, then what you probably need to always do as a matter of course, as a consumer, in any B2C transaction is thus protect yourself by:
- (a) Taking and retaining a copy of details of all online transactions/receipts and related emails and file attachments.
- (b) Taking and retaining a copy of the Terms & Conditions of the transaction as they are at that point in time. (You have to agree to these Ts&Cs by default at the time of the transaction, agreement is not assumed.)
It also helps to educate yourself by reading the Ts&Cs anyway.
Just as a case in point: Around a week ago I purchased a Spinrite software licence for US$89.00, wanting to see if it could restore my failing hard drive. I was aware that there was a possibility that it might not work - and so is/was the supplier, because they have a "30-day unconditional money back if not completely satisfied" refund policy.
The software was unable to run on my hardware (disk drive) - for the simple technical reason that it was not possible to effect a BIOS switch change to enable it.
So I wrote to GRC.com
(the suppliers) and asked for my money back under their refund policy. I got an email in quick response saying that I would be credited via the credit card account I used to make the purchase, no problems. The suppliers GRC.com
would seem to show themselves to be an ethical and honest supplier, and I would buy from them again.
The thing is, I would almost certainly not
have bought the software licence if I had not
read and learned about their refund policy.