A couple months back, we told you of the Texas couple that was being sued for a few thousand dollars by a petsitter over a negative Yelp review that allegedly violated a “non-disparagement” clause in the petsitter’s contract. That suit was quickly dropped, but a new complaint filed by the petsitting business has ramped up the allegations and the dollar amount, now seeking between $200,000 to $1 million in damages.
For those coming late to this story, in Oct. 2015 the Texas couple hired a local petsitting operation to watch after their dogs and a Betta fish while they were on vacation in California. In a subsequent Yelp review, the pet-owners expressed their dissatisfaction with the service, taking issue with the company’s fees and billing, an apparent lack of updates from the sitter, the fact that the sitter didn’t leave the house keys behind as requested. The couple also claim that their fish might have received sub-optimal care in their absence.
The original lawsuit was filed in a justice of the peace court, accusing the couple of violating a non-disparagement clause in their contract with the petsitters.
These non-disparagement — or “gag” — clauses, which generally penalize customers for making negative comments about a transaction (even when the comments are true and accurate), have been the topic of increased scrutiny in recent years.
California outlawed such clauses in consumer contracts two years ago, and the U.S. Senate has passed a bill that would do so on a nationwide basis. An identical measure, with bipartisan support, was recently introduced in the House.
Interestingly, the petsitters’ non-disparagement clause seems to be nearly identical to the one previously used by online retailer KlearGear, which failed gloriously in its efforts to collect thousands of dollars from a customer who dared to share her honest opinion of her experience with the company.
The petsitters dropped their initial complaint against the couple, but in late March filed a more extensive lawsuit in Dallas County district court.
This complaint not only continues to allege violations of the non-disparagement clause, but adds allegations of defamation and business disparagement.
In the lawsuit, the petsitters contend that when the couple returned home from their trip, they “admitted that their two dogs were well cared for,” but then proceeded to launch an “ongoing campaign to tell the world” that the petsitters “almost killed their fish or at least potentially harmed it.”
The plaintiffs claim that all the negative attention brought by news stories based on the customers’ statements has resulted in “numerous rape and death threats… in addition to other forms of harassment such as identity theft, impersonations, crank calls, etc.”
Facing upwards of $1 million in damages, the couple is currently being aided by Paul Levy, an attorney with Public Citizen. You may remember Levy from the recent saga of the former dentist/convicted felon who tried to unmask an anonymous YouTube user in an effort to scrub the internet of reports of his previous bad actions.
“The non-disparagement clause says that you shouldn’t do anything to damage the reputation of the company,” Levy recently told CBS Dallas/Fort Worth, which was first to report this story. “You’d think that what really damaged the reputation of the company was bringing the suit in the first place.”
The court will soon be asked to determine whether or not the petsitters’ lawsuit is a SLAPP — a Strategic Lawsuit Against Public Participation. Generally speaking, SLAPPs are frivolous lawsuits intended to strongarm the defendant into ceasing an activity that irritates the plaintiff.
Texas state law includes what is known as an “anti-SLAPP” statute, allowing for defendants in these cases to seek dismissal of the case.
Levy tells Consumerist that he’s in the process of drafting an anti-SLAPP motion in the petsitter lawsuit. That motion is due to be filed next week.
You might have noticed if you clicked the above link to the original Yelp review, you are greeted by a window explaining that “this business has issued legal threats and/or taken legal action against reviewers for exercising their free speech,” while reminding visitors that businesses do not have the right to remove honest reviews of firsthand experiences with these companies:
by Chris Morran via Consumerist
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