by Paul Alan Levy
In the wake of recent coverage of an attempt by the online trinket company Kleargear.com to ruin the credit of a customer whose wife complained about Kleargear’s failure to send an order of Christmas gifts, in violation of a non-disparagement clause inserted into later versions of the online sales contract, we have heard from other consumers victimized by non-disparagement clauses, including one that is even more offensive than Kleargear's.
Karen Murakami bought a phone charger from the online Accessories Store, and when it did not work she wrote to ask for a new one. After the seller ignored her communications, she sent a more sharply worded missive, warning that she would complain to the Better Business Bureau and seek family help in pursuing legal action. This message drew an aggressive response, sarcastically “thanking” her on the ground that the threat of public criticism and legal action was alone sufficient to make her liable for a $250 fine that Accessories Store said would be sent out for collection under the company's Terms of Service.
The terms of service included the following language:
You agree not to file or initiate any complaint, chargeback, dispute, public comment, forum post, website post, social media post, or any claim related to any transaction with our website and/or company. The following shall also constitute a breach of this agreement: sending any threatening or harassing email . . . or for any other purpose. . . . By using our website, . . .you agree that any breach of this agreement shall constitute liability in the amount of $250 plus any related costs directly or indirectly relating from any such breach.
Murakami expressed surprise at this threat, and said that she objected to the seller’s proposed course of action, but the company took the position that just by responding, she had doubled her liability to a $500 fine:
We are within our rights to enforce the terms of sale agreement which stated that you are liable for $250 in damages us [sic] any related fees which in this case brings the total to nearly $500, and we have the right to collect the balance using a collections agency or wage garnishment and will do so. Thank you.
After Murakami came to Public Citizen for help, we concluded that the non-disparagement clause was so excessive as to be unenforceable, just as in the Kleargear case. We contacted the company (which does not appear to have any public street address – even its domain names have been registered anonymously) to let it know that she was represented by pro bono counsel. Accessories Store never responded, but also stopped threatening to take action against Murakami.
However, consumers should be wary of doing business with the Accessories Store, and with its cognate company Accessory Town, which has identical language in its terms of service.
0 thoughts on “Accessories Store: A Nondisparagement Clause Even Worse than Kleargear”
Louise, what you propose is what the BBB exists for. If vendors now find ways to bully customers into not reporting them to the BBB, they will do so for any other kind of websites blowing the proverbial whistle on their dishonest practices.
The problem lies not with the websites to report them to, but in the tools at their disposable to bully customers into submission. Collection agencies are the scum of humanity, destroying lives and careers without cause. I believe that such power should only lie in the hands of a very controlled organism, where the government has oversight.
The Palmers case is just another example of how such an unbound and apparently unlimited power can do to people.
I propose that an Infoblog be created under the auspices of Citizen Blog where all abusive vendors be exposed along with their quasi-fraudulent NDP clauses.
No personal comment from the abused client would be added, just the facts. That should qualify as a Res ipsa loquitur.
People could refer to that blog before falling prey to the collection of internet vultures. Very soon these predators would be where they belong: Out of business.
This is not a new idea; it is enabled with smarts by CNET. People commenting on what is good or what is not in IT technology. I never buy anything computer related without referring to CNET and one rare honest vendor called Newegg.
Are there any court decisions that have been published about these practices? Any briefs available? It would be good to have some authority to cite to a court demonstrating that these practices are unlawful.
I agree. This won’t stop until prosecutors start finding ways to bring fraud prosecutions against these types of businesses
Companies like that should be declared organized criminal enterprises and their owners imprisoned for the rest of their natural lives.