Beruflich Dokumente
Kultur Dokumente
(202) 588-1000
BY FAX to 214-559-4390
and email to brichmond@pcrfirm.com
April 11, 2016
Bill S. Richmond, Esquire
Platt Cheema Richmond PLLC
Suite 212
3906 Lemmon Ave.
Dallas, Texas 75219
Dear Bill:
It is unfortunate that your clients have sought to further chill the Duchouquettes' free speech
by upping the ante, transforming their former pro se complaint in the Texas Justice Court into a
complaint in District Court seeking up to a million dollars in damages. However, Public Citizen is
ready to help the Duchouquettes stand up to this bullying.
My purpose in writing this letter is to give your clients one last chance to dismiss their
District Court complaint and to accept responsibility for the costs that their Justice Court complaint
imposed on the Duchouquettes, before we file an anti-SLAPP motion under the Texas Citizens
Participation Act ("TCPA") in District Court as well as the counterclaims that we describe below.
Our clients recognize that your clients are a small business and its owner, and it is not the
Duchouquettes' goal to put them out of business-just to rid themselves of this suit and recover the
attorneys' fees they have been billed to defend it so far. Therefore, we hope that we'll be able to
resolve the matter amicably before our next court filing and the press attention that is likely to
accompany it.
To explain our position and why your clients may wish to settle the matter, I will lay out the
legal landscape as I see it in some detail, in the hope that it helps you drive home to your clients
some of the risks they face in proceeding fu1ther.
Levy Affidavit
Exhibit lG
1 ~"
Co. v. Sullivan, 376 U.S. 254, 288 (1964); Cox Texas Newspapersv. Penick, 219 S.W.3d 425, 433
(Tex. App. - Austin 2007, pet. denied). Even if there may be cases in which the operator of a
company might be able to sue for defamation on the theory that things said about the company are
really about him personally, that analysis would not apply here because Mc Whorter's leadership of
the company is not well-known publicly and was not at all known to the defendants. Nor, indeed,
does Kalle Mc Whmier have any claim under the non-disparagement clause, for several reasons
above and beyond those enumerated below showing that Prestigious Pets LLC does not have tenable
claims: (a) she is not a party to the contract and hence has no standing to enforce it; (b) the nondisparagement clause does not forbid making statements that disparage her; and (c) whatever may
have been said about the LLC, nothing was said about her. Each of these grounds stands as an
independent bar to her proceeding under the nondisparagement clause claim.
Consequently, Kalle McWhorter has no valid claims and hence evidence about
communications relating to her, which you attached to your March 24 letter to Alex More, is
irrelevant. I urge you to dismiss her claims so that we need not bring a motion to dismiss against
them based on the TCP A. 1
The New Complaint Does Not Present Defamation Claims That Would Withstand a Motion
to Dismiss Under the TCPA.
The defamation claims in your district court complaint are also subject to dismissal under
the TCP A, notwithstanding the elaboration that you have built into the district court complaint and
notwithstanding the executed affidavit from Amanda Jones that you have sent. Each of the
following grounds is a basis on which our planned anti-SLAPP motion should be granted:
1. Insufficient pleading. As in most states, Texas requires that defamatory words be set
forth verbatim in a complaint for defamation; it is not enough to recite their substance and effect.
Perkins v Welch, 57 S.W.2d 914, 915 (Tex. Civ. App. - San Antonio 1933, no writ); see also
Granada Biosciences v. Barrett, 958 S.W.2d 215, 222 (Tex. App.-Amarillo 1997, pet. denied). The
small excerpts of words that you allege in paragraph 20 of the complaint do not meet this pleading
standard.
2. Defamation claims may not be brought over opinions. A defamation claim may be
brought only over false statements of fact, not over statements of opinion. The only defamatory
words that your complaint sets forth relate to the statements made in the Yelp review to the effect
that your pet sitter, Ms. Jones, "overfed" the fish, "almost killed" it, or "potentially harmed" it.
1
In light of indications that Ms. Mc Whorter and her staff submitted phony positive reviews
to the Yelp web site in order to generate a positive image on Yelp, if our planned anti-SLAPP
motion is denied, we will need to explore in discovery the possibility that they might also have
submitted phony negative messages to their own web site to gin up a damages claim. We therefore
ask your clients to preserve all records of communications through the Prestigious Pets web site,
including IP logs, as well as all emails and other records pertaining to their business.
Even if your complaint survives the TCPA motion, your clients should know that their
defamation claim faces additional problems. We note Jones' assertion in her affidavit that Michelle
Ducnouquette told her to feed the fish "a pinch of food one or two times a day." That is not what
your sitter was told, but it is also notable that the version that Ms. Jones attested in her affidavit
contradicts what your clients' previous lawyer represented that she had said. According to the third
bullet point in the October 30, 2015 cease-and-desist letter from Tom Fleisher, "the sitter has
repeatedly stated that she was going directly off the instructions on the back of the bottle of fish
food"; Mr. Fleisher represented both that the sitter "was never shown how to care for the fish" and
that "you [the Duchoquettes] did not tell the sitter how much to feed the fish." We will be interested
to learn whether the problem is that Jones lied to Mr. Fleisher or whether Mr. Fleisher misstated
what she told him, but in any event it will be our contention that your client is bound by the
representations that were made on its behalf and on which Michelle Duchouquette relied in changing
her Yelp review in an effort to accommodate your client's objections.
5. No evidence that the Duchouquettes violated a legal duty. To survive a special motion
to dismiss, the TCPA requires that the plaintiff produce "clear and specific evidence." Civil
Proactice and Remedies Code, Sec. 27.00S(c). Your clients are unable to meet this standard with
respect to the Duchouquettes' requisite level of fault for a valid defamation claim, and we believe
that we will meet the preponderance of evidence standard in showing that they did meet the
applicable standard of care. In this regard, your obligation will be to prove that one or both of the
Duchouquettes made false statements of fact with actual malice-that is to say, with knowledge of
falsity or reckless disregard of probable falsity. This is the applicable standard with respect to both
the original post that Michelle Duchouquette placed on Yelp, and the revisions that Michelle
Duchouquette made in response to Mr. Fleisher's letter, because Yelp users comprise a community
of consumers who have a common interest in learning about local businesses. Even within the Yelp
community, reviews of a given business such as Prestigious Pets will only appear when a user
conducts a search either for a particular kind of business or for Prestigious Pets by name. Moreover,
by posting on Yclp, Michelle Duchouquette communicated only with members of that community.
Under the Texas common interest privilege, she had a qualified privilege that you can overcome
only by meeting the actual malice standard. Hanssen v. Our Redeemer Lutheran Church, 938
S.W.2d 85, 93 (Tex. App. -Dallas 1996, writ denied). 3
The same actual malice standard applies to your clients' defamation claims based on
statements that both Robe1t and MichelJe Duchouquette made after they learned that Prestigious Pets
had brought their pro se Justice Court complaints not only against them but also against a separate
Yelp critic, Tatiana Narvaez. Neither Narvaez nor Michelle Duchouquette had signed any contract
containing a nondisparagement clause; Robert Duchouquette, for his part, had not made any
statements disparaging Prestigious Pets. At that point, by bringing two legally frivolous lawsuits,
against three different defendants, based in part on the nondisparagement clause in its contract, your
client had voluntarily entered into the substantial public controversy over the lawfulness and
enforceability of nondisparagement clauses in consumer contracts and, hence it became a limited
purpose public figure on which the defendants were entitled to comment unless, as required by the
New York Times standard, 76 U.S. at 284-286, you can make a showing by clear and convincing
evidence that false statements of fact were made with actual malice.
The Claims Under the Nondisparagement Clause Are Also Subject to Dismissal under the
TCPA.
The non-disparagement claims fail for several reasons. First, many of the statements that
your clients claim violated the non-disparagement clause were made by Michelle Duchouquette, not
Robert. Michelle was not a signatory to the contract containing the non-disparagement clause, and
so she cannot be bound by it. The contractual claims based on Michelle's statements fail on their
face.
Second, as noted above, Kalle Mc Whorter has no cause of action under the contract because
she is not party to the contract; and also as noted above, your contention that Amanda Jones was an
independent contractor whose commitments did not bind Prestigious Pets undercuts any claim by
the LLC under the contract.
Third, the non-disparagement clause is unconscionable under Texas law and therefore
unenforceable. In re Olshan Found. Repair Co., 328 S.WJd 883, 892 (Tex. 2010). "In general, the
term 'unconscionability' describes a contract that is unfair because of its overall one-sidedness or
the gross one-sidedness of its terms." Arthur's Garage v. Racal-Chubb Sec. Sys., 997 S.W .2d 803,
815 (Tex.App.- Dallas 1999, no pet.). Among the considerations regarding unconscionability is
whether "legitimate commercial reasons ... justify the inclusion of' the challenged terms. Id. at
815-16.
The non-disparagement clause is entirely one-sided and sweeping in its scope. It prohibits
one party for "taking any action that negatively impacts Prestigious Pets, its reputation, products,
services, management, employees or independent contractors." The clause therefore prohibits any
criticism of the company or its employees or contractors. It prohibits this speech regardless of
whether it is related to the contract, is stated in private, or is true. The prohibition reaches beyond
speech to "any action" that "negatively impacts" the company; the acts of terminating a contract
with Prestigious Pets, opening a business that would compete with Prestigious Pets, or
recommending a different pet-sitting company would all apparently qualify as actionable, because
they all would "negatively impact" the company. Perhaps even Robert's very legal pleadings would
fall within the prohibition, as seeking to dismiss the lawsuits Prestigious Pets has filed and to
Finally, Prestigious Pets responded to the Duchouquettes' motion to dismiss under the TCP A
by dismissing the pro se lawsuit that it had filed in the Texas Justice Court, attempting to deprive
the Justice Court of jurisdiction to rule on the Duchoquettes' motion. But under section 27.004(a)
of the Civil Practice and Remedies Code, the Duchouquettes were entitled to a hearing on their
motion; under section 27.00S(a) they were entitled to a ruling on their motion; and the Justice
Court's failure to rule on that motion constituted an appealable denial of the anti-SLAPP motion.
Moreover, under the California anti-SLAPP statute, on which the Texas law was modeled, when a
plaintiff dismisses its action in response to an anti-SLAPP motion, the defendant becomes the
prevailing party on the anti-SLAPP motion and is entitled to an award of attorney fees unless the
appellate court decides that, on the existing record in the lower com1, the anti-SLAPP motion should
have been denied. Pfeiffer Venice Properties v. Bernard, 101 Cal. App.4th 211, 218, 123 Cal.
Rptr.2d 647 (Cal. App. 2 Dist. 2002); Kyle v. Carmon, 71 Cal. App.4th 901, 917-918, 84 Cal.
Rptr.2d 303 (Cal. App. 3 Dist. 1999); Tourgeman v. Nelson & Kennard, 222 Cal. App. 4th 144 7,
1457, 166 Cal. Rptr. 3d 729, 738 (Cal. App. 4 Dist. 2014). And your clients placed no evidence in
the record below supporting their claims on the merits. Consequently, we are filing an appeal from
the denial of the TCP A motion, and we will argue on appeal that the only issue to be decided is the
amount of attomey fees to be awarded.
Conclusion
We urge your clients to consider carefully whether it is in their interest to proceed any fu11her
with their litigation against Robe1i and Michelle Duchouquette. Two weeks ago, defendants'
counsel Alex More told you that so long as Prestigious Pets was willing to dismiss its claims and
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>aul Alan Levy