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.