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Hidden Attacks on Consumers: Non-Disparagement Clauses

Kevin Faulk Sept. 28, 2016

In 2008, John and Jen Palmer bought about $20 worth of knick-knacks from a company called Kleargear. When the products never showed up, the Palmers wrote a negative review of Kleargear.

Kleargear felt that the truth should not be publicized and sent the Palmers a bill for $3,500.

How could Kleargear do this? Its excuse was that the Palmers had agreed in the terms and conditions of their purchase to a “non-disparagement clause.” This basically says that you can never, ever say anything bad about the other party to the contract.

The story of the Palmers and Kleargear escalated into a series of lawsuits that took years. You can read about it here. The good news is that the lawsuit led to a California law preventing enforcement of these clauses, Civil Code Section 1670.8:

A contract or proposed contract for the sale or lease of consumer goods or services may not include a provision waiving the consumer’s right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.
It shall be unlawful to threaten or to seek to enforce a provision made unlawful under this section, or to otherwise penalize a consumer for making any statement protected under this section.

So, if a business tries to silence you or quash your negative reviews, don’t let them! Fight back. Find a lawyer and make sure that the business knows that it does not have the right to prevent you from telling the truth.