FootSmart: Totally Evil or Totally Incompetent?

By | November 7, 2005

Updated 8/29/2015: And… They’re spamming me again. Now, it’s through the “salesforce marketing cloud.” I’ve unsubscribed using the link in today’s spam, and I also sent a complaint to SalesForce. We’ll see if anything comes of it (I doubt it).

Updated 1/31/2006: I’ve put on-line the statement of claim I was intending to use to argue my case in small claims court, as well as Benchmark Brands’ amended response which prompted me to throw in the towel.

I get a lot of spam. More than 99% of it disappears into the black hole of my very effective spam filter, bogofilter, but a little bit of it gets through. Most commonly, what gets through is spam from businesses with whom I’ve done business at some point in the past. Although these businesses shouldn’t be spamming me — I didn’t give them permission to send me bulk email when I bought from them — they usually stop when asked to do so. Alas, that’s not the case for all of them….

FootSmart, a wholly owned subsidiary of Benchmark Brands, Inc., has been spamming me since I purchased (and returned) a pair of slippers from them in May 2003. They’ve sent me at least 39 spam messages, some of them as little as one day apart. I’ve asked them and/or their network service provider to stop spamming me at least 10 times since May 2004, including using the opt-out instructions in their spam. They have falsely told me on 4 separate occasions that they would stop spamming me, starting in March 2005 after they had spammed me 4 times and I’d asked them to stop 6 times. I’ve complained to the Better Business Bureau to no effect (I didn’t even get a response to my complaint).

In March 2005, I sent them a complaint which read as follows:

FootSmart is still spamming me! Amazing! Astounding! Outrageous!

Please be advised that I have decided to continue to accept unsolicited bulk e-mail from FootSmart for a fee of $1,000 per message. Any reply to this message by FootSmart will constitute acceptance of these terms, at which point I will begin billing FootSmart for the messages they send me. Failure to remit payment promptly in response to these bills will result in legal action.

Let me be clear: IF FOOTSMART REPLIES IN ANY WAY TO THIS MESSAGE, THEN YOU ARE ACKNOWLEDGING THAT YOU HAVE RECEIVED IT AND THAT YOU AGREE TO PAY ME $1,000 FOR EVERY UNSOLICITED BULK E-MAIL MESSAGE YOU SEND ME. If you do not wish to agree to this, then don’t reply to this message. Or, if you wish, you may reply to this message and at the same time STOP SPAMMING ME.

I hope I have made myself clear.

They acknowledged my message with a form letter the next day:

Thank you for your recent email request. Your name has been [removed from our catalog mailing list/email promotions list/rent list. You may still receive one or two more catalogs/emails before the removal goes in to effect.] Thank you in advance for your patience. Again, thank you for contacting Customer Service at FootSmart.com. Please let us know if we can offer further assistance.

Since then, they have spammed me 31 times and continue to do so at a rapid clip. When the first spam message arrived after I sent the message above, I sent them, by email and U.S. Mail to Alan Beychok, their CEO, a “net 30” invoice for $1,000. When they had not paid the invoice after 30 days, I filed suit against Alan Beychok and Benchmark Brands in small claims court for $2,000 plus filing fees ($2,000 rather than $1,000 because I’d received subsequent spam messages from them). They have, of course, been notified by the court of the suit, but they have chosen not to respond. The trial date is November 9.

I assume that no one from Benchmark Brands will show up, in which case a default judgment in my favor will be issued and a capeas will be issued for Alan Beychok. My understanding is that the judgment and capeas may be put on Mr. Beychok’s personal credit report, a prospect to which I look forward. I will also, at that time, figure out whether the court in Georgia will recognize the judgment of the Massachusetts court, in which case I may be able to pay a bailiff or sheriff in Georgia to confiscate property from Benchmark Brands’ corporate headquarters to sell at auction to pay the judgment. Otherwise, I will probably sell the judgment debt to a collection agency and let them pursue it. Or I’ll go through several iterations of sending Benchmark Brandes an invoice for subsequent spam, sueing them and getting a default judgment, to build up a sizeable unpaid debt which I will then sell to a collection agency.

Or, alternatively, Benchmark Brands could put a stop to this madness at any time simply by apologizing, stopping spamming me and everyone else they’re spamming, offering concrete proof that they’ve done so, and reimbursing me for the filing fee on my small claims case.

Updated 10/20/2005: Today, I received this letter via email from Alan Beychok, the CEO of Benchmark Brands:

October 20, 2005

VIA EMAIL AND U.S. MAIL
Mr. Jonathan Kamens

Re: Benchmark Brands, Inc. – CAN-SPAM

Dear Mr. Kamens:

Thank you for your e-mail of October 11, 2005 with the imbedded link to your blog comments about Benchmark Brands. I enjoyed reviewing the postings on your blog and the information on your home page.

I like your writing style and you are obviously tech savvy. However, I tend to agree with your sister that there might be more productive uses of your time and talents. At least with respect to Benchmark Brands, since there have been no comments on your article, one might infer that you have seized on an issue that does not resonate with your public.

Given your technical expertise, I feel confident that had you wanted to, you could have added our e-mail addresses to your spam filter and blocked all further communication from us. My attorneys tell me that the CAN-SPAM Act does not allow individuals such as yourself to pursue a claim under the Act. Those claims are reserved for federal and state agencies as well as Internet service providers. An individual’s control over his own mailbox may be one of the reasons that Congress decided not to give individuals the right to sue under the Act.

Your basic assumption that we will allow a default judgment to be entered in Small Claims Court is incorrect. If necessary, we will enter an appearance and ask that the court either dismiss your claim for failure to state a cause of action or remove it to the regular civil docket. I hope, however, that this will not be necessary. Instead, I would like to accept the offer contained in the posting on your blog. That is, Benchmark apologizes for our internal miscommunication that resulted in your continuing to receive unsolicited e-mail from us following your request that we cease. I have personally seen to it that it will not happen again.

As you proposed, I have also enclosed a check to reimburse you for your filing fees in the Small Claims Court. Finally, although you did not request it, I would be pleased to send you products of your choice up to $100.00 in value. You can contact my assistant, [name elided] at [number elided] with your selections. I do not know why you elected to return the slippers that you bought from us, but I hope that you will consider using our products in the future. I am very proud of the quality and variety of our product line

I would appreciate it if you would notify the Small Claims Court that this matter has been resolved. If I do not receive a copy of an order dismissing the claim by November 1, 2005, I will proceed to file what we need to file with the court.

In the hope that we can put this issue behind us, I look forward to hearing from you.

BENCHMARK BRANDS, INC.

Alan Beychok,
President

AB/bd
Enclosure

I responded with this email message:

Mr. Beychok,

Thank you for your letter. I’m pleased that you’ve finally responded, although I must admit to some disappointment that your response comes over a year after I first complained to your company and over six months after I first complained to you personally.

I am grateful to you for putting a stop to the spam I have been receiving, if indeed you have done so. I am also grateful for your offer to reimburse me for the filing fee on my small claims case. However, if you reread the offer I made in my blog entry, you will see that I have asked for more than what you’ve agreed to. I wrote:

Or, alternatively, Benchmark Brands could put a stop to this madness at any time simply by [1] apologizing, [2] stopping spamming me and everyone else they’re spamming, [3] offering concrete proof that they’ve done so, and [4] reimbursing me for the filing fee on my small claims case.

Although you have fulfilled conditions [1] and [4] given above, you’ve not convinced me that you’ve done [2] or [3]. Although I appreciate your offer to compensate me for the time I’ve spent dealing with your spam, I’m not in this for the money. I’m trying to get you to stop spamming not just me, but others as well. This is why I did not simply tell my email filters to discard your spam.

Can you assure me that whatever caused your failure to unsubscribe me from your spam has been fixed, i.e., that your policies, procedures, and tools have been changed so that the same thing will not occur to others in the future? Can you provide me with some details of what was wrong and what was done to fix it, more than a vague reference to “internal miscommunication,” to prove to me that the problem has been located and addressed? Are you sure enough that you’ve solved the problem that you’re willing to agree, in writing, that if you spam me again, you will pay me $1,000? If you cannot do these things, then I’m afraid that I have no choice but to proceed with my suit.

Please note that I am not attempting to pursue private action under the CAN-SPAM act. I am pursuing action because I sent you email informing you that I would charge you $1,000 per message for any spam you subsequently sent me and indicating that any acknowledgment of my email would constitute acceptance of those terms. Someone from your organization acknowledged my email, and then you continued to spam me. I subsequently sent the same terms and conditions by U.S. Mail, and your company spammed me many times after receiving them. You were also notified about my complaint by the court after I filed my suit, made no attempt to contact me after that notification to resolve the matter, and spammed me many times after receiving that notification.

I’m sure you’ll be able to send a great attorney to represent Benchmark Brands at the hearing, and I’m sure that he/she will be able to make all kinds of fancy arguments to the court about why my claim should be dismissed or transferred to regular court. However, it’s hardly a “slam dunk” that your attorney will be successful, because procedural rules in small claims court are rather informal. Furthermore, I imagine that paying for several hours of a local attorney’s time, or paying to fly one of your attorneys from your headquarters to Boston, will set you back at least a few hundred dollars.

What I’m asking you to do instead is the right thing to do, and it will cost you nothing if you actually do it. Simply put procedures in place (if you haven’t already done so) to ensure that when people ask you to stop spamming them, you actually stop; provide some proof that you’ve done this; and put your money where your mouth is by agreeing to pay me if it turns out that you’re wrong.

I hope that we can reach a mutually agreeable resolution to this matter. I look forward to your reply. In the meantime, I will hold onto your check, if/when it arrives, rather than cashing it.

Sincerely,

Jonathan Kamens

Updated 10/27/2005: This letter from Benchmark Brands arrived on October 24:

October 24, 2005

VIA EMAIL AND U.S. MAIL
Mr. Jonathan Kamens

Re: Benchmark Brands, Inc. – CAN-SPAM

Dear Mr. Kamens:

This will be the last communication that you receive from me. I believe that my previous response to you was fair and respectful. I also believe that it addressed your concerns. I am sorry that you consider it to be inadequate. However, I will not discuss with you the internal workings of my company; nor do I recognize you as a spokesperson for my customers or other persons with whom we communicate electronically.

Benchmark Brands does not distribute Spam mail. It communicates electronically with its customers and visitors to its website in accordance with the terms of use and the privacy policy posted on the FootSmart site.

I have done all that I am willing to do to address your complaint. I hope that you will reconsider your position and agree to resolve your concerns based on my previous letter. If I do not hear from you by November 1, 2005, I will assume that you intend to proceed with the matter in small claims court.

BENCHMARK BRANDS, INC.

Alan Beychok,
President

AB/bd

True to his word, Mr. Beychok sent both of the letters reprinted above on paper as well as by e-mail. And true to his word, Mr. Beychok enclosed a check with the first letter. The odd thing, however, is that the amount of the check is for $21 less than the filing fee Mr. Beychok said he would pay. The filing fee for the case was $40. This is clearly indicated on the notice which the court mailed to Mr. Beychok (“PLAINTIFF’S CLAIM: The defendant owes $2000 plus $40 court costs for the following reasons…”). And yet the check he sent me is for only $19. I suppose it doesn’t matter, since I’m not planning on cashing it, but it’s rather odd, don’t you think? It would seem that Mr. Beychok was about as honest about paying the filing fee as his company is about claiming they don’t spam people and following through when they tell people that they’ll stop.

Updated 11/7/2005: Benchmark Brands sent me and the small claims court this cover letter and this answer to my claim. They’re trying to get away with having their answer serve as an appearance so that they don’t have to show up. I’ve called the court to ask if they can get away with that, but they said I need to call back in the morning.

Updated 11/8/2005: I’ve prepared a detailed statement of claim against Benchmark Brands, which I intend to submit to the Court tomorrow. The beginning of the statement is a summary of my claim which will serve as the basis of my oral testimony. I’m not going to open up access to this statement until after the hearing, because I see no reason to share it with the defendant in advance of trial, but if you’re interested in seeing in it, send me e-mail and I’ll give you access.

Updated 11/8/2005: The clerk’s office confirmed that the answer filed by the defendant is not sufficient — they still have to show up for the hearing — and it also is not sufficient for just their attorney to show up — an officer of the corporation has to show up as well. If they don’t show up at all, or if only the attorney shows up, it’ll be up to the clerk-magistrate to decide what to do, but there’s a good chance he’ll issue a default judgment in my favor.

Updated 11/9/2005: I showed up in court today, but Benchmark Brands didn’t. One would think that this would result in a default judgment in my favor, but since no one from the court called the defendant to tell them their written answer wasn’t sufficient and they had to appear, the clerk decided to grant them a continuance until November 30.

I would not have been so generous. There is no provision in Massachusetts small claims rules for written answer to serve in place of an appearance, which makes sense given that the clerk needs to be able to elicit testimony from both sides to render an informed decision. A partner at Goodwin Procter, a prominent law firm, should be expected by the court to know its rules. There was no legal basis for the defendant’s request for its written answer to serve in place of an appearance, so the court should have proceeded as if the request did not exist and issued a default judgment for the plaintiff.

Updated 12/27/2005: After 5:00 P.M. on November 28, less than two days before the second scheduled small claims hearing, a courier from Benchmark Brands’ attorneys showed up with a second response to my claim. This response was much longer and more detailed than the first one. I decided that enough was enough. I really didn’t have the time to read and digest the amended response and rework my own response to it.

Instead, I faxed both the attorneys and the court this letter indicating that I was dropping my claim. I do not have time right now, but when I do have a bit more time, I’ll put on-line the response I wrote to their first response; their second response; and the letter I sent dropping the claim.

I doubt I would have won in small claims court. It’s much more likely that the magistrate would have transferred my case to the regular civil docket, where it would have been even more time-consuming (assuming that I did it pro se) or expensive to pursue. So I think I took it about as far as I could.

I hope that the expense and trouble that Benchmark Brands incurred defending against my suit will convince them that it’s worthwhile to put procedures in place to ensure that they don’t spam people in the future.

Updated 1/31/2006: I’ve put on-line the statement of claim I was intending to use to argue my case in small claims court, as well as Benchmark Brands’ amended response which prompted me to throw in the towel.

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35 thoughts on “FootSmart: Totally Evil or Totally Incompetent?

  1. Anonymous

    I enjoyed reading these posts years ago when I worked for FootSmart. I have personally been screamed at in a meeting by Alan. He is a narcissistic asshole of epic proportion.

    Sadly his fine company announced today that it will be closing its doors. Employees were read a lovely poem (below, and I’m totally serious. He read this to his employees that were suddenly unemployed…), then he simply walked out of the room. What a guy.

    The Frozen Bird
    A little bird was flying south for the Winter. It was so cold the bird froze and fell to the ground into a large field.

    While he was lying there, a cow came by and dropped some dung on him.
    As the frozen bird lay there in the pile of cow dung, he began to realize how warm he was.

    The dung was actually thawing him out!
    He lay there all warm and happy, and soon began to sing for joy.

    A passing cat heard the bird singing and came to investigate. Following the sound, the cat discovered the bird under the pile of cow dung, and promptly dug him out and ate him.

    Morals of the story:
    (1) Not everyone who shits on you is your enemy.
    (2) Not everyone who gets you out of shit is your friend.
    (3) And when you’re in deep shit, it’s best to keep your mouth shut!

    Reply
  2. Sue

    Wow, the arrogance of this company is sickening. I just tried to talk with their “customer service” (call center) and they were very rude. I will never shop with this company again.

    Reply
  3. Jim

    Mr. Kamens,

    Why don’t you find something better to do with your time. As an outsider viewing the messages between Alan and yourself, I am baffled by your lack of willingness to accept a generous apology. Okay, so you receive a couple messages here and there when you don’t want to. EVERYBODY DOES. Perhaps you feel a bit more special than everyone else (virtually every internet user) that receives spam mail? Get a life…

    Reply
    1. jik Post author

      Why don’t you find something better to do with your time.

      http://blog.kamens.us/2005/10/10/something-better-to-do/

      As an outsider viewing the messages between Alan and yourself,

      I somehow doubt you are an outsider. Your comment was posted from an IP address in or around Atlanta, Georgia, which coincidentally enough is where FootSmart is headquartered. And it’s hard to believe that any outsider would bother to offer such an irrational and stupid defense of FootSmart as you offered here.

      I am baffled by your lack of willingness to accept a generous apology.

      Words are cheap. Actions speak louder than words. And all that.

      The way FootSmart treated me shows their true colors. The way they’ve treated the many other people who also complained about them here shows their true colors. A snarky apology from a slimy CEO isn’t worth the paper it’s printed on.

      Okay, so you receive a couple messages here and there when you don’t want to. EVERYBODY DOES.

      Reputable businesses don’t send spam.

      Reputable businesses unsubscribe people who ask to be unsubscribed.

      Businesses which send spam or fail to unsubscribe people who ask to be unsubscribed put themselves in the company of spammers advertising counterfeit watches, erectile dysfunction pills and penis enlargement.

      If that’s the company that Alan Beychok wants to keep, that’s his right, and it’s my right to call him out on it.

      Reply
  4. Jennie57

    Just had a horrible experience with Footsmart. They refused to take a pair of shoes back claiming they were not in the original condition. They did not fit. I couldn’t have stood up in them they fit so poorly. I carefully rewrapped them even putting the tissue back in the toes. I mailed them back requesting a larger size and I had the same experience as all of the above comments about returning items to Footsmart. Four weeks after mailing them back, they sent them back saying they weren’t in the original condition. I called and spoke to customer service and heard the same script that a person above had heard too. What a racket and yes, I agree, the company is taking advantage of the elderly with these policies. I wonder if anyone has filed a complaint with an elder abuse agency?

    Reply
  5. C.P.

    They are STILL spamming! I can not get them to remove my email address from their pathetic newsletter. I would never ever buy anything from them, they are so pathetic. Word gets around fast these days and they are getting a very bad reputation on Facebook.

    Reply
  6. Amy

    My mother is a cancer patient. As a gift to cheer her up, I bought her a pair of espadrilles from Footsmart, the size of which ran too large to fit her feet. She returned them at her own expense after trying them on in order to exchange them for a different size, and the warehouse, like in Anne Calderwood’s account, refused the return, claiming that the shoes were worn outside–an impossibility in my mother’s case. My mother was very agitated about this; in her condition she doesn’t need the multiple stresses of being lied to by the company, being rendered powerless as a consumer by the company, her daughter getting ripped off, and having a now usesless pair of shoes taking up room in her life.

    If there is a class-action lawsuit forming regarding their return policies toward the elderly or toward gift items, I’d like to know. I’ve also demanded that my name and address be removed from their mailing lists, but given Jonathan’s experience, I suspect the aggrivation will continue.

    Reply
  7. Eve Nichol

    Can I please have the address of the President of Benchmark. I believe my experience with their company (FootSmart) and the breathtakingly poor, even hateful (including making racial remarks without even knowing my race!) warrants a letter in which they might consider changing a “policy” or two. I will not give the name of the customer service person, however, because he was poorly trained, and I sure don’t want him to get laid off. But this was so bad I feel I HAVE to write to someone high up. I think it’s the right thing to do, since I like the website, and many of their products, which I’ve purchased at stores, are very good. Thank you.

    Eve

    Reply
  8. Anne Calderwood

    Buyer beware that footsmart is running a scam regarding their returns policy. My unused christmas gift which I had sent back for an exchange was returned back to me with an anonymous note from a returns warehouse in Tennessee that said the shoes were not returned unworn. Customer service said because they are in another state they never see the returns and go by the word of an anonymous warehouse person and simply disregard the word of the consumer and have no mechanism to to re-evaluate the product and no interest in doing so. I know footsmart sells their products to alot of elderly people who are easily taken advantage of by such policies. I will never buy from this company again. Does anyone know of any legal action that might be taken regarding consumer fraud in this type of situation? Thanks.

    Reply
  9. Interested

    I am being interviewed by Benchmark brands for a position in Atlanta and I would like to speak with some of the Former employees.
    please write me at [email protected]

    Reply
  10. PZ

    Thank you for providing the email address, although my guess is that he ignores anything that comes to him from customers OR they have changed the email address for him.

    The fact that this company does not adhere to its own stated return policy is beyond maddening to me. I’ve resorted to requesting assistance from my bank as they still have not processed my return – nor have they stated when they will do so…and it is now beyond the date when it should have been done according to their own policy.

    Reply
  11. Kate

    I too wished that I had read this blog before ordering from Footsmart! Their return policy differs SO much from any other mailorder company that I have dealt with. I have spoken to over 3 people on the telephone and have been told 3 different stories. It is easy to say “Caveat emptor”, but it is wrong for a company like this to continue getting away with their flimsy policies.

    Reply
  12. Debby

    I want to pull my hair out! I bought something last March of 2008, and Footsmart promised me they wouldn’t send emails other than ONE to confirm shipment. I deleted the first ones. but in March I asked them to remove my name from their mailing lists. In April, I received 13 emails. I asked them again to remove me. They always send that same form letter saying they will. In May, they stepped it up and I received 19 emails. I sent another request telling me I HATE FOOTSMART! In June, I’ve received 12 more my June 23, and I’ve sent 3 more requests for them to remove me. I finally decided to get a CEOs name and send them a letter. I wasn’t shocked to see this is happening to others. FOOTSMART IS EVIL!!!!!!! I returned my $150 purchase just for the principle, but the stuff was crap anyway.

    Reply
  13. Fdjim

    Keep up the slipper wars! I guess there’s nothing on TV anyway.

    Reply
  14. LAR

    All I can say is CAVEAT EMPTOR – buyer beware when dealing with Alan Beychok, Benchmark Brands, and Footsmart.

    I worked for Alan for almost two years and he is the most unethical, money-grubbing business owner I’ve ever been associated. He would sell his mother if it would make a buck. He actually includes phantom charges (such as a $2 “insurance charge) because he can do so and even goes so far as to make it difficult for consumers to opt-out or recover the fee.

    Here’s a typical scenario – a woman purchases a pair of slippers for $15, is charged $10 shipping and $2 insurance charge, and then when she wants to return it, is charged a $10 restocking fee. She will pay $22 to buy and return a $15 pair of slippers. When I confronted Alan about this kind of approach, he responded, “I do it because I can. Customers don’t have to buy from me and if they do, I’m not required to make it easy for them to get their money back”.

    He treats employees just as poorly. As an example, he hired his first VP of Marketing, a very accomplished executive who managed a $150M business previously and relocated his family for the job. This individual cleaned up Alan’s mess, and provided greater visibility into the company’s performance and accountability within the team. What happened? Alan eliminated the job and let that person go after 8 mos. because he didn’t feel in-control over the business even though the Internet side of the business grew 50%. He treats the company like his checkbook and is convinced everyone – employees, customers, even vendors – are out to steal from him. Like I said – buyer beware.

    Reply
  15. MS

    I too have worked for Alan, and he is a jerk. The only thing he strives for saving as much money has he possibly can. The call center has to be one of the worst in the industry, and the way he goes through people at that company its any wonder how its still in business. Alan says he is a man of his word, but falls flat on his face every time he says that.

    Reply
  16. jik Post author

    I personnaly worked for Alan for 5 years…

    It is difficult to be objective about about someone for whom you’ve worked for that long.

    … and know first hand that he strives to provide quality products and service to all his customers.

    Well, regardless of what he “strives” for, he doesn’t seem to be doing a very good job of it.

    Reply
  17. sheila

    I am sorry you had a bad experience. I personnaly worked for Alan for 5 years and know first hand that he strives to provide quality products and service to all his customers. One of my responisibilities was to oversee customer returns/refunds. You would not believe some of the the things we had to handle.

    Reply
  18. Dian Gifford

    I ordered a pair of Spenco arch supports from Footsmart.com, and used their guidelines to specify the size. I also paid an extra $10 for expedited 3-4 day shipping by FEDEX. The item arrived 8 days later. The arch supports were far too large to fit into any of my shoes. When I called Footsmart to (1) return the item and (2) get a refund on the expedited shipping, I was told that it is my own fault for ordering the wrong size (even though I followed their directions). They will not refund the extra shipping because the parcel arrived 4 days after they sent it (but 8 days after I received a confirmation of my order). PLUS, to add insult to injury, they charge a $6.95 return fee!

    Please keep on badmouthing these corporate thieves!

    Reply
  19. Holly

    I wish I had read this blog before I placed an order with Footsmart. They say they will credit my credit card for order not received. WE’LL SEE.

    They talked in circles and blamed each other for the problem. Thanks JK

    Reply
  20. jik Post author

    Some email I received recently:

    I know you have given up on your fight with Alan Beychok & FootSmart but I thought I would share some information with you.

    In the statement Footsmart sent to the courts they state the response you received when you sent your every e-mail you sent will cost you $1000 dollars e-mail was an automatic computer generated e-mail. That is not true. Every customer e-mail has to be responded to by a Footsmart employee. They cut and paste generic responses into e-mails because they receive the same questions and complaints over and over but they are still processed manually. There’s only 2-3 customer service reps that handle e-mails, so it would be very easy to narrow it down if they wanted.

    I also thought you might want to call Alan up and say hi. His home number is xxx xxx xxxx his cell phone number is xxx xxx xxxx his direct office number is xxx xxx xxxx his email is [email protected]. they had to hide his from the public because every other employee has the first initial/last name combo ([email protected]) for their e-mails.

    I know everything is finished. I just wish I could have helped you last year!

    A Former Benchmark Brands employee

    Reply
  21. jik Post author

    OK, so I’ve put on-line the rest of the documents related to this incident, i.e., my statement of claim and Benchmark’s November 28 amended response. I’m posting a comment about this in case anyone is RSS’ing the comments on this entry. If so, go read the update to the main blog entry dated today to get the links to the rest of the documents.

    Reply
  22. Steve

    Mental note to self: Don’t shop at Footsmart and be sure to tell all my friends.

    Reply
  23. jik Post author

    They sent me an amended response less than two days before the second hearing. It was too much for me to deal with, so I decided to throw in the towel. See above for more details.

    Reply
  24. Joe

    So – what happened? you had all this run-up to small claims court and now…?

    Reply
  25. Angwantibo / Merril

    This is pretty cool. The total cost of attorney fees should approach $1000. If you add in the time of the corporate officer, I think you have well made an imprint on this company. I bet they’ll be much more responsive to requests to be removed from their spam list from now on!

    Cool beans!

    Reply
  26. Steve

    Summer is right on. They charge a fortune for shipping.

    I think they are only successful because they are the only company in their space. Anyone want to start up an online and catalog retailer to take them on? Drop a post here. We’ll chat!

    Reply
  27. Fenwick of Fotheringhay

    I think that it’s good that the court is requiring the presence of their attorney and of a responsible officer of the corporation, and that their written answer is held to be insufficient.

    I hope that this will at least get the attention of Alan Beychok, and that Footsmart and its parent, Benchmark, will learn from pain where they refused to learn from precept.

    It appears that some people just can’t take a hint, and for them a 2×4 frequently is required as an attention-getting tool.

    I don’t see how false advertising could be applied here: they didn’t advertise anything and then fail to deliver on it. They simply continued to send mail to your address after you warned them of the consequences.

    Go get ’em!

    Reply
  28. jik Post author

    Applying false advertising law to this situation seems like too much of a stretch.

    Reply
  29. Seth Gordon

    Can you add a claim for false advertising to your complaint (possibly as a class action)? After all, FootSmart has conceded that you followed the procedure that they advertised for opting out of email from them, and they kept sending you email.

    Reply
  30. Summer

    Hello I was glad to see someone had took the time to let the
    world know of your troubles. I had returned 90% of items ordered
    from this company (footsmart). Can’t believe the lack of quality of
    their products. I was also alarmed of the rate of their fedx delievery
    charges, I thought it was a bit on the extreme high side.

    I noticed the box stated 3 pounds. I was charged close to 20.00 of
    which they also charged me .55 insurance with out telling me.
    When I went to the post office I was told that it weight over 4 pounds.
    So I can;t wait to see how much their going to deduct from their
    ‘SmartTag” to have it sent back.

    I recall seeing something on the cable network about some companies
    are getting kick backs from charging high rates. NO doubt this is
    happening here….. consider the source.

    I’m so done with that site… I’m lucky in the fact that I didn’t
    give them my email address.

    I still think this ass who responded to you functions in denial and
    could care less of what you went through it’s plain to see that
    by his letters.

    Bravo to you Mr. Jonathan Kamens, the world loves ppl like you.

    Reply
  31. Sargon

    Ah, what an amusing story to read!

    Yes, Alan is correct that the CAN-SPAM Act does not apply to your situtation but that isn’t the basis for your case is it?

    I have done my fair share of work in the e-commerce/interactive space and you do have a fair shot in small claims court. However, most cases that win in small claims court involving spam are typically for deliberate acts around deception (headers, adult content, return addresses, etc).

    I would focus on the documented fact that Benchmark Brands has send you multiple unsolicited messages and that their internal processes failed – be sure to document the time you lost.

    In regards to dismissing your suit for “cause of action” simply go to Google and cross reference this term with “spam.” You have plenty of support out there with all the law suits floating around out there!

    Good luck!

    Reply

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