The saga of the couple fined $3500 for writing a negative review of a company back in 2008 continues and now, it’s going to court.

Public Citizen announced today that they have filed a lawsuit on behalf of the couple in federal court in Utah.  The full complaint (PDF) against the company, KlearGear.com, and Fidelity Information Corp., the debt collection agency that went after the couple, asserts that Jen and John did not actually owe the money to begin with because the fine in question is ridiculous.  “Ridiculous” not being a legal term however, the suit actually says:

According to KlearGear, this critical online review constituted a violation of a “non-disparagement clause” in KlearGear’s online Terms of Sale and Use that forbade anyone who did business with KlearGear from “taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.” This clause, however, did not appear in the Terms of Sale and Use when John did business with KlearGear; rather, the clause was added more than three years later. And even if had been present at the time of John’s transaction, the clause would be unenforceable under basic principles of contract law and under the First Amendment.

Public Citizen issued a legal letter to KlearGear in late November demanding that the company contact credit agencies to fix the couple’s problem, as well as paying $75,000 in damages and removing the “non-disparagement clause” from their terms of use.  In the letter, Public Citizen said that if KlearGear did not act, they would sue.  KlearGear has not acted, so Public Citizen is following through with the suit.

Public Citizen is seeking two outcomes from the suit: first, compensation and punitive damages for damaging Jen and John’s credit score and all the rippling problems that has caused in their lives.  And second, a declaration from the court that the couple does not owe money just for criticizing a retailer online.

Online reviews come up often in lawsuits.  Late last year, the state supreme court in Virginia ruled that reviews did not have to be pulled from sites like Yelp until after they were proven libelous.  Remember, kids: Negative statements are only libel or slander if they’re not actually true.  Somehow, though, that doesn’t stop many companies from trying to fix their reputations by attacking displeased customers, rather than fixing the problems the customers were ticked off about to begin with.

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