"There's no excuse for what KlearGear did," Michelman said. "We want to prevent consumers from being taken advantage of with regard to their credit."
The harm imposed on the Palmers wasn't just theoretical, Michelman points out in the letter, detailing the numerous times the denial of credit affected their lives. In addition to the inability to obtain financing for a new furnace, the Palmers experienced a delay of a car loan, denial of a credit card, and the inability to sell their home and purchase a new one. The Palmers also say the negative credit report has deterred them from seeking to refinance their home or secure a home equity loan for roof and window repairs.
"Obviously we would like this resolved sooner than later," Jen Palmer said. "It has gone on long enough. It never should have happened in the first place. I don't want to conjecture their thought process. We want this resolved as quickly and peacefully as possible."
Michelman said it's not the first time he has seen a business try to muzzle its critics through the use of non-disparagement clauses or legal devices to stop customers from writing negative reviews. One method he has seen is a company assigning over to itself copyright of a customer review. Earlier this year, Public Citizen represented a customer in Greenville, S.C., who was sued by an eBay seller after she gave the seller a low-star rating.
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Michelman said these companies' terms are so "unconscionable" that a court will likely not enforce them, which often happens when a term is imposed on a party that has no choice but to agree to it.
"So these contracts are 'take it or leave it.' They are not negotiated between parties of equal bargaining power," he said. "A consumer going to a website to buy a product may not see or read through the terms of service by clicking 'I agree.'"
Michelman also said that the "non-disparagement" clause was not even on the website when John Palmer placed his order in 2008.
"That's another reason KlearGear's conduct in this situation is unsupported and incredibly unfair to the Palmers," Michelman said.