For months, we’ve been following the saga of the Texas couple who were first sued by their petsitter for $6,766 over a negative Yelp review, only to have that case dropped and re-filed as a full-on defamation lawsuit seeking up to $1 million in damages. Now, the couple is asking the court to just through the entire case out because it should be prohibited by Texas state law.
Just to back up a bit for latecomers: The Dallas-area couple posted a Yelp review in Oct. 2015 for a local petsitting service, in which they detailed concerns with the company’s fees and billing, along with claims that the sitter hired to look after their pets wasn’t exactly great with providing updates, and what they contend was potential harm done to their fish.
That resulted in the petsitter filing a claim in a justice of the peace court, seeking the $6,766, not for defamation, but for violation of a “non-disparagement” clause in the contract the couple signed with the petsitter.
These clauses, which penalize customers for daring to write or say anything negative about a transaction (even if it’s true), have been in the news in recent years, after online retailer KlearGear failed in its efforts to collect thousands of dollars from a woman who griped online about a purchase.
(Interestingly, the non-disparagement clause in the petsitter contract is virtually identical to the one used by KlearGear.)
California recently made such clauses illegal in the state, and a federal measure outlawing these gag clauses unanimously passed the Senate several months ago and appears destined for a vote by the House later this summer.
But then, after the disparagement-related lawsuit had made national news, the petsitter dropped that complaint, only to re-file a more extensive lawsuit in a state court.
The petsitter continues to allege violation of the non-disparagement clause, but claims to be a victim of defamation and business disparagement, and that the negative attention has resulted in “numerous rape and death threats… in addition to other forms of harassment such as identity theft, impersonations, crank calls, etc.”
At the time, we reported that the couple had paired up with noted attorney Paul Levy from Public Citizen, and that he was preparing a response to the lawsuit. That motion to dismiss [PDF] was filed this morning, and makes the case that the petsitter’s complaint should be dismissed under a Texas law protecting free expression.
Lawsuits intended to quiet free speech are knowns as SLAPPs (strategic lawsuits against public participation), which is why a number of states have so-called anti-SLAPP statutes that allow for expedited review of the case before exorbitant amounts of time and money are wasted on frivolous lawsuits.
The Texas Citizens Participation Act is an example of an anti-SLAPP statute, allowing the defendants in cases involving issues of speech to seek a dismissal if the plaintiff can’t “establish by clear and specific evidence a prima facie case for each essential element of the claim in question.”
The defendants argue that any statements made by the couple about the petsitting service or about the Yelp review are “precisely the type of speech that the statute protects,” and that any statements made by the couple to the media regarding the first lawsuit brought by the petsitter are protected by the right to petition, as the issue of non-disparagement clauses is a topic that is currently being actively debated by federal and state legislators.
As for the specific claims made by the plaintiffs, the couple contends that each of these fails under the slightest scrutiny. The defamation case against the petsitting company falls short, according to the motion, the defendants’ statements were neither false nor statements of fact, nor were they made with the requisite degree of fault, and finally that the petsitter cannot establish damages as a result of the defendants’ actions.
And because the defamation claim fails, say the plaintiffs, so must the business defamation claim as that has more stringent requirements than mere libel.
Regarding the non-disparagement clause, the plaintiffs argue that it’s unconscionable and unenforceable because it’s too one-sided. Beyond that, they contend that only the husband signed the contract, but it was the wife who wrote the allegedly offending Yelp review, and “a contract cannot bind a nonparty.”
The petsitters contend that the husband nonetheless violated that non-disparagement clause by making statements in media interviews after the original lawsuit was filed. But the defendants argue that anything the husband said after the lawsuit was filed is protected by judicial communications privilege, which protects all parties involved in a lawsuit.
In a blog post about the case, Levy says there are counterclaims in the offering alleging the petsitter violated the Texas Deceptive Practices Act, “but we hope the case will be resolved on a motion to dismiss, avoiding the need to bring such claims.”
by Chris Morran via Consumerist
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