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Legal View with Ashleigh Banfield

Holiday Shopping Leads to Some Fights, Arrests; Fined for Bad Review; CNN Honors This Year's Heroes

Aired November 29, 2013 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ASHLEIGH BANFIELD, CNN HOST: Hello everyone. I'm Ashleigh Banfield. It is November 29th. And welcome to "legal view." and it a very happy Black Friday to you.

That's the sound, isn't it? Were you in that little number out late Thanksgiving night last night, or maybe even well before the dawn waking up this morning and hunting down all those rock bottom deals? The holiday shopping season now officially upon us and today is the craziest if not the busiest shopping day of the year, and, my friends, that has been rather obvious.

Sounds like a concert, new kids on the block, shows my age.

According to the National Retail Federation, about 97 million of us Americans are expected to shop in stores and online today, and for many, this Black Friday tradition actually ended up kicking off yesterday.

A bit weird, I get it. More and more stores, though, decided to open their doors on Thanksgiving Day, though, instead of the day after.

And for some, the competition for those door-buster deals got pretty ugly.

Oh, makes you proud to be an American, doesn't it? Our Kyung Lah outside a Walmart store in Los Angeles for us right now.

I'm trying to peek into the middle of that melee to see if you were actually among them, but I think you were smart enough to stay outside and watch it all through the windows.

Kyung, did it get any better?

KYUNG LAH, CNN CORRESPONDENT: Well, it's actually pretty calm here at this Walmart. Things have been very, very steady.

What I was surprised to see is when we got here at 3:00 a.m. local time in Los Angeles, there were people actually shopping, so the shopping did definitely start Thursday.

If you look at Walmart's figures, it's certainly paying off for them. They're estimating 22 million customers in America were in their stores last night. BANFIELD: I have to interrupt you. I'm so sorry. Do you know why I have to interrupt you? And only for the White House would I cut you off.

The official Christmas tree is just rolling up to the White House right now. It's so pretty. It's on this -- Kyung, if you can see a monitor, it's on a lovely horse-drawn cart.

And there's the dog at the back of the Christmas tree. Be at the top of the Christmas tree for anyone looking.

I love the fact that the first lady and her daughters have come out to greet the tree.

By the way, this is kind of a cool tree this year. It's a little not in keeping with tradition. Typically, the tree that goes in the Blue Room at the White House is the winner of a big contest.

I don't know if you know the contest. It's actually the National Christmas Tree Association contest, but this year, it is not that tree.

Let me just listen for a bit.

MICHELE OBAMA, FIRST LADY OF THE UNITED STATES: We are honored to have it. This is the best part of the holiday season when our tree comes.

Check it out. What do you think? Come look on the other side.

UNIDENTIFIED FEMALE: It's big.

OBAMA: It's big? (Inaudible). What do you think of that?

UNIDENTIFIED MALE: It looks beautiful.

OBAMA: So what do you think?

UNIDENTIFIED FEMALE: Love it.

OBAMA: All right.

UNIDENTIFIED MALE: We'll keep it.

OBAMA: We will keep it.

UNIDENTIFIED FEMALE: OK.

UNIDENTIFIED MALE: Thank you very much.

OBAMA: All right, you guys. We will see you a lot over the next week.

BANFIELD: I think that's Bo. I can't tell the difference between their puppy dogs, but maybe there's both there.

I have a very small monitor and I'm trying to make out which of the first pets -- yeah, there they are. They're both there. Sunny and Bo accompanying the first daughters and the first lady as they greet the official Christmas tree that's going to be in the Blue Room at the White House.

And like I said, this is a bit weird this year, because that is not the winner of the official contest. Turns out the winner of the cop test wasn't 18.5 feet high.

And if you think that's stickler-y, detail stuff, it has to be, because the power source in the blue room is in the ceiling. So if the tree isn't high enough, it can't get to the electricity.

So, instead, this is another tree that's coming to us courtesy of the Boteach (ph) family. Very nice, it's beautiful, and I'm sure by the time the Obamas have finished the decorating, it will be even more so.

Kyung Lah, I would never interrupt you for anything other than something that really special. And, you know, it's such a great moment for everybody in America to watch the first family getting ready for the holidays.

Go ahead. Finish your fabulous report now.

LAH: Yeah, and Christmas is arriving now, right? Christmas is arriving now. You really want to go out and shop, right? Maybe not.

But a lot of people certainly were out there trying to shop. Walmart, as I was saying, is actually -- was very -- it paid off for them to open up last night.

In the first four hours, they had some 10 million transactions. So, if you thought the people who went out shopping on Thanksgiving were absolutely mad to do it, well, for at least this big box retailer, it's certainly paying off.

They're predicting record sales for the Black Friday weekend, Ashleigh.

BANFIELD: Oh, man. Well, I hope everybody is in a little bit better spirits, and maybe the spirit of the holiday is today, now that they're over the initial push to get through the front doors. But methinks maybe now.

Anyway, Kyung, be careful. Keep your Kevlar handy in case you have to go back inside. And a happy holiday to you as well, this Thanksgiving weekend, Kyung Lah, live for us in Los Angeles, looking very festive, yourself.

I'm sorry to bring this to you, but I just have to, because this is the real deal, folks. Those holiday deals breed mayhem.

This is at a North Carolina Walmart. This video is going viral, because the hash tag is "brawlmart."

It looks like a football game, for heaven's sake. The man who videotaped this scene spoke earlier to my colleague, Carol Costello. Have a listen.

(BEGIN VIDEO CLIP)

BRIAN SPAIN, VIDEOTAPED WALMART THANKSGIVING BRAWL (via telephone): ... makes you feel kind of helpless.

And then when you look and you see like there's two officers off to the side that are just kind of like standing there, watching all of this happen, and there's nothing going on, I'm like, I thought they would be there to help, to make sure this kind of stuff didn't happen.

But they just kind of watch it happen.

(END VIDEO CLIP)

BALDWIN: Yeah, there, Brian Spain, I agree. That's just obnoxious to see that stuff going on. I'm not sure I could see any little kids in the middle of that.

But Walmart's CEO, for his part, says that the company has taken steps to try to stave off that kind of business, that kind of clashing.

And he spoke this morning on "NEW DAY." Have a listen.

(BEGIN VIDEO CLIP)

BILL SIMON, PRESIDENT AND CEO, WALMART: By and large, our events have changed over the years, and we implemented a couple of protocols and programs.

We had a one-hour guarantee. We took the 21 hottest items and we bought them in deep enough quantities so that there wasn't that frenzy to try to get one.

Anybody who was in our building during that timeframe was guaranteed to get one of those items.

And if we ran out, we'll fulfill them through Walmart.com in the coming days, so they'll have the item for their Christmas or holiday celebration.

So that calmed things down in our stores quite a bit from where they had been many, many years ago.

(END VIDEO CLIP)

BANFIELD: Well, dang. If they had only known that before they went out and slept in the line to get through those doors their fellow Americans.

Some retailers have been taking heat for kicking off Black Friday a whole day early. Last night, in fact, Macy's opened on Thanksgiving for the first time ever.

The CEO of Macy's, Terry Lundgren, defended that decision this morning on "NEW DAY." Have a listen. (BEGIN VIDEO CLIP)

TERRY LUNDGREN, PRESIDENT AND CEO, MACY'S: In our case, we just want to do what our customers want and what our associates want, and so we're being responsive in that way.

I think the fact that 15,000 people versus 11,000 who were here last year at midnight is an indication that people wanted to be here when we opened our doors.

(END VIDEO CLIP)

BANFIELD: So that's all the shopping craziness.

I had a moment of reprieve from that craziness to tell you about the lovely moment at the White House where the Christmas tree just arrived just minutes ago, the Obama family coming out with puppy dogs to greet the trees.

And despite the pomp and circumstance around the tree and the trimmings and the decorations at the White House and Thanksgiving, there's still something going on there.

President Obama is facing a tough reality check tomorrow. Check your calendar, because it's the self-imposed deadline for the ObamaCare Web site, healthcare.gov.

They said it would work for the vast majority of people in America in a smooth and consistent way, so it's going to be a Saturday on a holiday weekend. Will it?

Will we see a repeat of any of the debacle moments when the site launched last month? Our Jill Dougherty, also not taking the day off, working hard at the White House for us to follow everything that's happening.

I almost wondered if this wasn't a blessing for President Obama that the tree is arriving, the Thanksgiving turkeys are pardoned and everybody is catatonic from so much turkey that they may not pay attention to this big deadline tomorrow.

What's the White House doing?

JILL DOUGHERTY, CNN CORRESPONDENT: Well, actually, that's an interesting point, because some Republicans have said that was deliberate. This was all kind of rolled out, this artificial deadline, around the holidays so that nobody would pay attention.

But, obviously, we are paying attention, and as far as we know, we are on track to do what their goal is.

But remember, their goal is to get it working to the point that they can get 50,000 people online at the same time. And if it goes over that, that's where the issues could come up.

Remember, back in October, they had over like 200,000 people. They couldn't get on. So what they've done is they've created this kind of virtual waiting list or waiting line where people would register and just get their names in there and then be contacted later to sign up.

They also say, Ashleigh, they've increased the speed. Because the pages were loading just every six seconds, which is really slow. They say they have that down now to one second. And, also, the error rate is below 1 percent. It used to be 6 percent.

These are all details. So we'll have to see what happens tomorrow, the deadline on Saturday, and as we've been telling you all along, they do have a tech team and they're working around the clock, hopefully getting this to where they want this to be.

BANFIELD: Yeah. But you know, it's like breaking a big story on a Friday night. It doesn't get nearly the angst that it does during the weekdays.

Happy holidays to you, Jill. You look warm and cozy out there in the cold, crisp air. It's nice to see you.

DOUGHERTY: Thank you.

BANFIELD: All right, so you've probably done a little online shopping at some point in your life, right? You get that bad service, or it just doesn't go right. And you see those comment columns and you want to get in there and write a bad review.

Take a very deep breath before you do that. The nasty-gram can come back to haunt you, even if it's true.

I want to introduce you to a couple who says their credit rating has been ruined because they just wrote a bad review online.

And you need to know your rights, and what rights they have, those retailers, what you give up to them when you shop online.

A cautionary tale coming up right before Cyber Monday.

(COMMERCIAL BREAK)

BANFIELD: Welcome back, and happy holidays to you, if you're watching from home.

You know when you do that online shopping for your holiday gifts, and I know a lot of you are going to be doing that, perhaps nothing can tick you off more than really bad customer service or just when the whole thing doesn't work out.

That can be today on Black Friday or it can be Cyber Monday, too, or really any time. And if you are really incensed, you just might be tempted to fire off one of those nasty reviews that you're allowed to do online. Right?

Here is your very careful warning, courtesy of LEGAL VIEW. Be super careful, because, as Pamela Brown explains right now, there's this couple in Salt Lake City, and they complained just like that, typed it out. And now they're paying for it big time with a ruined credit rating and a $3,500 fee.

(BEGIN VIDEOTAPE)

PAMELA BROWN, CNN CORRESPONDENT (voice-over): John Palmer bought a few Christmas gifts for his wife, Jen, on the website kleargear.com in 2008, never imagining he'd still be paying the price five years later. The Palmers say the items they ordered never arrived. The transaction was canceled.

JEN PALMER, CHARGED $3,500 FOR POSTING NEGATIVE REVIEW: After 30 days or so, PayPal said, hey, there's no activity here. They turned around and gave the money back into my husband's account and effectively canceled the sale.

BROWN: After repeated calls to Klear Gear to find out what happened, Jen Palmer posted this review of the company on ripoffreport.com saying in part, "there is absolutely no way to get in touch with a physical human being. No extensions work."

Fast forward three and a half years. The Palmers received this e-mail appearing to be from Klear Gear stating they'd be fined $3,500 if the negative review wasn't taken down in 72 hours.

PALMER: We were shocked that somebody would actually attempt to do this because that's -- it's ridiculous that anybody would turn around and try to extort us like this.

BROWN (on camera): Have you ever heard of anything like that?

HITHA PRABHAKAR, CHIEF RESEARCH OFFICER, HP RETAIL ADVISORY: I've never heard of anything like this happening to the consumer, only because retailers mainly protect the consumer.

BROWN (voice-over): The e-mail cited this obscure non-disparagement clause in the terms of use contract that says, "your acceptance of this sales contract prohibits you from taking any action that negatively impacts kleargear.com." Legal experts warn more and more companies are adding this type of language in the fine print as protection.

PAUL CALLAN, CNN LEGAL ANALYST: The First Amendment does not protect certain kinds of free speech. And you can sign a contract giving away your free speech rights if it's a fair contract. This contract though is not fair and, frankly, it would be thrown out by any court.

BROWN: We found other examples of non-disparagement clauses in customer agreements, including this one from a vacation rental company threatening to charge customers up to $10,000 in damages if a post containing "unreasonable negative sentiment" isn't removed. The company told CNN it "stands by its practice."

The Palmers couldn't take down the review and refused to pay up. Klear Gear apparently then reported the bills as unpaid to a collections company.

PALMER: It was bad enough that when we went to get a second cars, it took them a month to find a bank that was willing to finance us because of the huge ding that this puts on our credit.

BROWN: CNN tried multiple phone numbers listed on Klear Gear's website, all of them disconnected. Kleargear.com did respond via e- mail to our affiliate KUTV defending its actions. The Palmers say they're taking their fight all the way to court.

PALMER: We don't want them to get away with this. Apparently we're not the only people that they have done this to. We're just the only ones who are fighting back. And we're not giving up.

BROWN: The Better Business Bureau is now investigating and has put the company on alert. Now to protect yourself during this busy holiday shopping season, retail analysts suggest that you read all the fine print and make sure a company is legitimate. And if you do write a negative review, make sure it's accurate. Because a company can sue you for libel even if it doesn't have that clause.

(END VIDEOTAPE)

BANFIELD: Pamela Brown doing our reporting for us. Thank you for that. Klear Gear defended its actions saying that the president for the Palmers to take down the comment was not blackmail but instead, quote, "a diligent effort to help them avoid the fine." Okay, then.

I want to bring in CNN's legal analyst and defense attorney, Danny Cevallos. So my first question to you is are you kidding me? Seriously they can get away with this?

DANNY CEVALLOS, CNN LEGAL ANALYST: You know with the advent of the internet, the concept of fine print has taken on a whole new meaning. Now people are routinely clicking "I agree" on pages and pages of legal obligations that they simply did not read. Our culture is going to have to make a decision on how to deal with this. Those agreements, in theory you've read them and they're enforceable. But with a case like this, this is a contract where somebody, even the husband didn't even write this review and he's being dinged. He's not even someone who wrote the review and they're holding him to that contract term. Which is in all likelihood unenforceable.

BANFIELD: Right, and in every criminal case I've ever covered where an e-mail or a search in Google has come up, the defense is how do you know who was on the keys. Plenty of people are in a household with one computer. How can you prove who is on the keys. Here is the other thing that bugs me. If I don't like the way you did your legal analysis today, can I just fine you and turn it into a credit rating? To ding your credit rating? It seems pretty one-sided.

CEVALLOS: Yeah, I'm pretty sure by the way that you can fire me any time you like, Ashleigh. But when it comes to the credit report, it is illegal to report to a credit agency a debt that does not exist. So if that's what this company did, if that contract is unenforceable and there is no debt, because it was an imaginary debt, if that's so, then they reported to a credit agency a debt that did not exist, and that is a big no-no. But practically speaking, this probably goes on every day. The reality is most citizens don't want to go through a lawsuit, they don't have the money and they simply don't have the time and resources.

BANFIELD: Oh, it's just so frustrating. I so feel for them because I think every one of us has wanted to write a review. And by the way, this isn't even talking about libel yet. If you say something that isn't true online, you're opening up a whole other kettle of fish there. But this is just a legitimately truthful, in their opinion, review of the service and they're getting hit on the chin with it. Danny Cevallos, nice to see you. And you are so not fired, my friend. We adore you.

CEVALLOS: Oh, thank you.

(LAUGHTER)

BANFIELD: Happy holidays, Danny. Oh, my heavens.

This has to be one of the most expensive soda spills in history. Have you seen this? Oh, yikes! That looked like an accident. Or did it? Brooklyn Nets'coach Jason Kidd gets hit with a $50,000 fine what the NBA says was no accident. It was a stunt to get a time-out.

(COMMERCIAL BREAK)

BANFIELD: Our top story, the shopping frenzy that is Black Friday. Such a tradition. Something we're not all that proud of. I know you're with me. We're also following other big stories making headlines as well today.

Let's get you started. That fireball, take a look at it. It was triggered. Wow. That was triggered by a pipeline explosion in Missouri last night. It happened at the Panhandle Eastern Pipeline Company. Here is the good news, nobody hurt. And that fire that you see right now is out, finally.

With only eight seconds left, his team out of time-outs and down two points to the L.A. Lakers. Oh! That's a nasty spill. The Brooklyn Nets coach Jason Kidd spilling his soda. Bump. Oh! All over the court. One of his players bumping into him, looks pretty innocuous, right? No. Watch Jason Kidd mouthing, what looks like the words "hit me" just before it happened. Look. Hmm. Hard to see in that angle, but when you get close up, you really can see him say it. Watch. Hit me. Did you really -- oh. Do you know why? Because they've got to stop and clean up the soda and that gives him time with his team to draw up a final play. Did I mention he didn't have any time-outs? Yeah, it did not matter because the Nets lost the came. The NBA cried foul on this one, and they said that Kidd intentionally did that, spilled his drink, and they slapped him with a $50,000 fine. That's one expensive soda.

Scientists are saying that it looks like the comet ISON survived its brush with the sun yesterday after all. Astronomers and astrofiles watched the solar encounter expecting the comet to perish, but no. ISON had other plans, or at least some or part of it had other plans; it reemerged after sweeping about 700,000 miles above the sun's surface. Nerds of the world, I know you are thrilled, I know I am. Here at CNN, we are preparing for one of our own favorite holiday traditions, CNN HEROES, an all-star tribute. It's a celebration of the top ten heroes of the year and their extraordinary work helping other people. It makes you feel very, very small because of the massive undertakings these people do, regularly. And right now we would like to introduce you to one of them, one of our heroes, Dale Beatty, a wounded soldier who is making sure that every veteran can make it home again.

(BEGIN VIDEOTPAPE)

STAFF SGT. DALE BEATTY, VETERAN: All veterans have been taught to be responsible for the guy to your left and the guy to your right. And no matter what, you're going to bat for them, if they need you.

UNIDENTIFIED MALE: Last man, go.

BEATTY: We wouldn't leave one of our soldiers behind on the battlefield. But we do it so often here at home.

UNIDENTIFIED MALE: I did three tours in Vietnam. My injuries included my right leg, left elbow, and lower back. For 35 years no one cared.

BEATTY: Every war is forgotten when the next war starts. People welcome me home and say they love us and that I'm their hero. I knew after meeting other veterans that wasn't the case for all of us. And these other guys who struggle, they need a hand up. It's my mission to help other veterans get the support and homes they need from their communities.

UNIDENTIFIED MALE: This is the young man why we're all here today.

BEATTY: It's just getting the community engaged around a couple of simple changes to someone's house or an entire house built from the ground up. We want to make their life easier, safer, just better.

UNIDENTIFIED MALE: I could not get my wheelchair in and out my front door because I had steps with no handrail. And it made me less of a social person.

BEATTY: We were able to build a deck and a ramp. There used to be a concrete sidewalk here and we busted all that up and got it out of here. It doesn't sound like a lot, but the impact that it made was tremendous, and their emotions are being rehabbed as well.

UNIDENTIFIED MALE: They made me realize the challenges that I've had to endure meant something. It jump-started me back into life. Purple Heart Homes said "welcome home." It's great to be home after 40 years.

BEATTY: Regardless of when you serve, where you serve, we're all the same. We're all veterans. They just need to know that somebody does care about them.

(END VIDEOTAPE)

BANFIELD: So awesome. Find out if Dale Beatty is the CNN hero of the year. Watch this Sunday evening to see all of them in the star tribute at 8:00 eastern. And plus there is one unbelievable moment, an act of generosity that brought everybody in the audience right up to their feet. I'm not going to give it away, no spoiler alert here. You've got to watch on Sunday, but it's really well worth is. It's a great night.

We've got such a treat for you coming up next. How about hiring your own personal shopper this holiday season?