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Yelp Review Lands Couple In Court

First Amendment not carte blanche to bash a business online

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PLANO (CBSDFW.COM) – Robert and Michelle Duchouquette are pet people.

“We have Bogey, Barley and Gordy,” said Michelle listing their dogs and fish.

But two dogs and a fish would have made the couple’s recent trip to Napa a bit crowded, so they left their pets at home in Plano.

Michelle used Yelp to find a pet sitter and said Prestigious Pets in Dallas stood out.

“It looked very good, I’ll try it out,” thought Michelle.

The company sent someone over for a “meet and greet” after she called.

Michelle said she wasn’t crazy about some of the policies, including having to request an update daily through the company and not the actual sitter.

“She wouldn’t give us her cell phone number,” said Michelle.

But, the Duchouquette’s agreed, the reviews were great, and with the trip coming up they were short on time, so they signed the contract.

While away on their trip they checked their ‘beta cam’ – a little camera they use to record their fish.

“I saw the fish water was all cloudy so I sent an email about that,” said Michelle.

Their fish Gordy was fine but the couple said the whole experience wasn’t.

“I didn’t like that they didn’t leave my key… didn’t like that they messed up the billing,” said Michelle.

Thus, she emailed the company and wrote a review on Yelp.

“It’s constructive. Everything in there would help him if he’d read it,” said Robert Duchouquette about the above linked review.

The owner of Prestigious Pets posted a rebuttal on Yelp disputing her review point-by-point.

The owner stated many of Michelle’s issues were addressed in the “meet and greet” session at the Duchouquette’s home.

Next they got a cease and desist letter from an attorney.

“I was beyond shocked and a bit scared,” said Michelle.

Despite her fear, Michelle didn’t take the review down.

“I think my review was fair. I went point-by-point on the things about the policies of the company I didn’t like,” said Michelle.

Not long after the she posted, Prestigious Pets filed a lawsuit against the couple seeking more than $6700 dollars in damages, according to court documents.

“My husband said there’s a police officer coming to the house to serve you,” said Michelle.

The court documents also show that the business is suing over the non-disparagement clause in the contract, which prevents someone from taking any action that negatively impacts the business.

Nicole Williams in an anti-trust and trade regulation attorney at Thompson & Knight.

She’s not involved in the case but has had clients who have wanted to put similar clauses in contracts.

“I advise against it. The public backlash from those clauses hasn’t been good. They generally cast a company in a light they don’t want to be cast in,” said Williams.

Williams said the clauses may not even be enforceable.

“There are a lot of challenges that can be made to that clause that they are against public policy, that they infringe first amendment speech,” said Williams.

Typically, the clause is in the small print, under “terms and conditions” or on the back of the contract, making it easy to skim over.

Williams said portions of the clause in the Prestigious Pets contract appeared to have been copied and pasted from another non-disparagement contract.

“A large portion of this non-disparagement clause in this contract was taken from a clause challenged in Utah by a company called Klear Gear,” said Williams.

According to court documents, Klear Gear charged a couple $3,500 for a negative review and put it on their credit report.

The company was challenged and lost in court.

The case led to California banning the clauses in 2014 and the Consumer Review Freedom Act of 2015, which passed in the Senate and is currently awaiting a house committee.

The clauses are legal in Texas so if someone finds one in a contract, Williams said, they can always cross it out before signing.

“If you express your concern and you cross it out and they choose that they don’t want to service you, then maybe you don’t want to do business with that company,” said Williams.

The owner of Prestigious Pets would not agree to an on-camera interview but said in part through email:

We are honest people seeking protection from dishonest individuals, not other honest ones.   Fair and honest feedback is not the issue here.

Keep in mind that JP court costs nothing to either party and is a free public service.  Asking for a judge to help us review any issue is not a charge/overcharge, a scam, a service that wasn’t provided, or a refund that is owed.  A judges decision may not even be in our favor.  Or we may even choose not to follow through.

Being dog walkers, we definitely do not have legal degrees, and had to seek assistance from professionals for a service agreement. We typically spend up to, and even more than an hour sometimes, meeting and going over questions/concerns with any new potential customers in person. Just as a customer is free to choose if they’d like to use our service, we also choose if we feel comfortable being able to provide it, and reserve the right to refuse. We may not be the right fit for everyone, and so are extremely upfront to ensure that expectations align. There are no tricks. And we will never “sell” or force our services upon anyone. If for any reason there isn’t a good fit, we would much rather help one find another service that might be better for them. We don’t mind assisting anyone with finding the right care for their specifications, even if we aren’t the ones providing it. This is how we approach any new relationship. 

Do you or someone you know need Consumer Justice? Call CBS11 Consumer Justice Reporter Cristin Severance at 817.586.7211.

(©2016 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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