by Paul Alan Levy
Until recently, a Dallas, Texas pet-sitting service called Prestigious Pets enjoyed a fairly high rating on Yelp – most of the reviews gave it five stars. There were, however, two one-star dissents, one from Michelle D and one from Tatiana N, each of whom objected, in fairly mild terms, to some of Prestigious Pets' policies. But that was before Prestigious Pets initiated a litigation campaign invoking a non-disparagement clause buried in the fine print of its standard form contract, along with vague claims of defamation, to try to get rid of the one-star reviews.
Today, as a result of adverse reactions from Yelp users all over the country to news stories about the litigation, the company's average Yelp rating has dropped to three stars. Although many of those negative reviews are likely to disappear due to Yelp’s policy of allowing reviews only by actual customers, as of this date, news stories about the litigation also dominate a Google search for the company’s name. Although Prestigious Pets apparently sought to save money on litigation by filing suit pro se against Michelle and Robert Duchouquette in Dallas Justice Court (the Texas equivalent of small claims court), instead of using the lawyer who sent a demand letter on its behalf, it faces a serious threat of having attorney fees awarded against it because the Duchouquettes have filed a special motion to dismiss under Texas’ anti-SLAPP law. Regardless of whether such a non-disparagement clause might ever survive scrutiny under Texas law pending passage by Congress of the proposed Consumer Review Freedom Act, it seems unlikely, for reasons well elucidated by the anti-SLAPP motion, that Prestigious Pets’ lawsuit against the Duchouquettes can succeed.
Although it is the lawsuit against the Duchouquettes that has received media attention so far, Prestigious Pets has also filed suit late last year against Tatiana Narvaez, the only other Yelp reviewer whose opinions about the company were unflattering. This lawsuit, also filed pro se in Justice Court, articulated only a defamation claim but not a claim based on the contract’s non-disparagement clause, and has not yet been served. I tried to contact Prestigious Pets to ask about the lawsuit; neither its owner nor the lawyer who sent a demand letter for it in the Duchouquette case ever called me back, but the company's emailed response, although somewhat garbled, appeared to suggest that the lawsuit is not being pursued. In any event, Alex More, one of the Dallas lawyers who is defending the Duchouquettes, has generously offered to represent Narvaez pro bono in the event Prestigious Pets tries to pursue her.
We can hope, however, that the House of Representatives will soon take up the Senate-passed bill making these clauses illegal nationwide.
While we wait for the House to move forward we might also band together as consumers and review site members and pursue stop gap measures to alert members about companies where their opinions may be selectively suppressed. One suggestion…once a business has been confirmed to use a gag clause in their standard agreement; the review sites policy would initiate a warning tag on the company profile page where their rating is displayed. I think it should be just as prominent as the Surgeon General’s warning on a pack of cigarettes!