PUBLIC CITIZEN LITIGATION GROUP

1600 20TH STREET , N.W ,

WASHINGTON, D.C. 20009-1001

(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.

The Newly Identified Plaintiff, Kalle McWhorter, Has No Viable Claims

Your new complaint alleges claims by both Kalle Mc Whorter in her capacity as the owner
of Prestigious Pets LLC, and by the LLC itself. Kalle Mc Whorter, however, has no claims, and her
complaint is subject to dismissal under lhe TCP A. She has no claims for defamation because neither
of the Duchouquettes said anything about her-indeed, until somebody posted comments on the
CBS News Facebook page, neither of the defendants had any idea that she existed. And it is an
element of both Texas libel law and of the limits that the First Amendment places on libel law that
allegedly false statement
een made "of and concerning" the plaintiff. New York Times

Levy Affidavit
Exhibit lG

1 ~"

P1111teiJ on f1ocyolod PApet

Bill Richmond, Esquire

April 11, 2016
page 2

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.

Bill Richmond, Esquire

Aprilll,2016
page 3
Statements about how much the fish was fed, and whether the amount was different from the
instructions that your sitter was given, would be statements of fact. But the statements that your
complaint puts at issue are of a different kind: whether the amount of food given to the fish
constituted "overfeeding," or the assertions that the overfeeding "almost killed" or "potentially
harmed" the fish. These are much more matters of opinion.
Moreover, if the charge of "overfeeding" were a factual one, even the version of the facts
presented in the Amanda Jones affidavit establishes that the amount of food that she was placing in
the fishbowl was more than the fish was eating-she confirms that by the day before the
Duchouquettes returns from vacation, the bowl had become "slightly dirty"-a plain indication that
she had been placing more food in the bowl than the fish was eating. Our anti-SLAPP motion will
include images from the fish cam confitming that the water had become cloudy and, indeed, that
food had accumulated at the bottom of the bowl. The truth of the "too much food" statement (if it
is fact and not opinion) will, therefore, be confirmed. 2

3. If Amanda Jones was an independent contractor, your contract claim will be on

shaky ground. You also claim that the sitter's agreement to feed the fish was made in her personal
capacity as an independent contractor and was not done on behalf of Prestigious Pets. Although the
complaint alleges this theory, and then taxes the Duchouquettes with knowing of her limited
capacity and of wrongly implying that feeding the fish was the company's responsibility, we know
of no evidence supporting these allegations. It certainly appeared to the Duchouquettes that Ms.
Jones was there as a representative of Prestigious Pets, and nothing in the Jones affidavit comes
close to establishing facts that would establish that Ms. Jones lacked apparent authority to bind her
principal. Indeed, in his letter on behalf of Prestigious Pets, Mr. Fleisher made clear that the
company was taking responsibility for addressing any problems in the feeding of the fish.
Moreover, the "independent sitter" was the only one who signed the contract containing the nondisparagement clause; if she was acting only in her independent capacity in her exchanges with the
Duchouquettes, I wonder whether her signature on the contract bound Prestigious Pets. Nobody else
from Prestigious Pets signed the contract; did Prestigious Pets ever form an agreement with Robert
2

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.

Bill Richmond, Esquire

April 11, 2016
page 4
Duchouquettes, given its apparent failure to sign the contract? If not, then the non-disparagement
claim cannot be sustained.
4, No per se libel. We question your contention that statements about whether too much
food was given to a fish is libel per se. Your complaint asserts that stating that Prestigious Pets
overfed a pet fish amounts to an accusation that it committed the criminal offense under Section
42.092 of the Texas Penal Code, ban"ing cruelty to non-livestock animals. However, this aspect of
the complaint is absurd; if you were correct, then thousands of Texas second graders would be
facing the prospect of jail time every time they gave their fish too much food.

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.

We reserve the possibility of raising additional privileges.

Bill Richmond, Esquire

April 11, 2016
page 5
Even if the applicable standard of care were negligence rather than actual malice, the
Duchoquettes had every reason to believe that their fish was overfed; Mr. Fleisher's letter confirmed
to them that the food given to the fish had been at variance with the feeding instructions that the
sitter was given. You have produced no clear and specific evidence creating a prima facie case that
any misstatement of facts was negligently made, and indeed the haste with which Michelle
Duchouquette responded when Mr. Fleisher relayed your clients' objections to her initial Yelp
review shows the care she devoted to ensuring that her review was accurate.
In sum, we expect to file a motion to dismiss the defamation claims pursuant to the TCP A
and we expect to prevail. I urge you to dismiss them.

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

Bill Richmond, Esquire

Aprilll,2016
page 6
recover his attorneys' fees would "negatively impact" Prestigious Pets. The clause could reach yet
more broadly than that, in fact, to whatever conduct Prestigious Pets wants to halt, because
violations "are to be determined by Prestigious Pets LLC in its sole discretion." Violation of the
clause entitles the company to an injunction and attorneys' fees. Thus, Prestigious Pets has set itself
up as judge and jury so that it may deem Robert Duchouquette liable for any conduct Prestigious
Pets believes has "negatively impact[ ed]" it and stick him with the bill for enforcement of the clause
(along with the costs, presumably, of defending). And the clause runs in favor of only one party,
Prestigious Pets; it provides no protection for the consumer. So in a public litigation such as this one,
Prestigious Pets is free under the non-disparagement clause to say whatever it wants about Robert,
while Robe11 must avoid criticizing Prestigious Pets. The "gross one-sidedness" alone renders the
clause unconscionable.
The absence of any "legitimate commercial reasons" for the non-disparagement clause is a
further basis for finding the clause unconscionable. Defamation law already protects businesses from
false and defamatory publicity under many circumstances. Particularly when considered alongside
the practice of Prestigious Pets to post laudatory Yelp reviews that falsely purp011 to be from
satisfied customers, the aim of the clause is clear: to mislead the public into fonning an inflated view
of Prestigious Pets. In addition to suppressing the speech of consumers and misleading others, the
clause harms other pet-sitting businesses who have come by their reputations honestly but may lose
business to Prestigious Pets based on a Yelp profile full of phony reviews and scrubbed of the
criticism that might otherwise appear there.
In general, the non-disparagement clause restricts speech and will therefore be viewed with
suspicion by the courts. See Brammer v. KB Home Lone Star, 114 S.W.3d 101 , 109-11 (Tex. App.Austin 2003 ). Texas courts' antipathy toward speech-restrictive contracts fits within a larger trend
of national revulsion at non-disparagement clauses. The popular view of these clauses is reflected
in the progress oflegislative eff011s across the country to ban non-disparagement clauses. One such
effort has succeeded in California, Cal. Civil Code 1670.8, and another (H.B. 131) has passed both
houses of the Maryland legislature. A bipartisan foderal bill to ban non-disparagement clauses (S.
2044) has passed the U.S. Senate by unanimous consent and awaits action in the House of
Representative, where its co-sponsors include Rep. Blake Farenthold of Texas. Given the onesidedness of this non-disparagement clause, the lack of a legitimate purpose justifying its use, and
the widespread view expressed by elected representatives of both parties nationwide that nondisparagement clauses are illegitimate, the court is likely to hold that the non-disparagement clause
in the Prestigious Pets contract with the Duchoquettes is unconscionable and therefore
unenforceable.
Fourth, the non-disparagement clause is invalid because Robert Duchouquette's waiver of
his speech rights was not sufficiently clear. Contractual waivers of speech rights are invalid absent
"clear and convincing" evidence of a "knowledge, voluntary, and intelligent" waiver. Brammer, 114
S.W.3d at 110. Here, there is no such evidence that is "clear and specific" as required to meet the
standards of the TCPA, and certainly not evidence that is sufficiently clear and specific to make out
a prima facie case that must be judged by the standard of clear and convincing evidence. The non-

Bill Richmond, Esquire

April 11, 2016
page 7
disparagement clause did not by its terms mention "speech"; instead it prohibited "taking any
action" that has certain effects. Amanda Jones states in her affidavit only that she "read[] the title
heading" of that clause and "briefly describ[ ed] that paragraph" during the signing of the contract.
Robert Duchouquette strongly disputes that account, and in any event, it is unlikely that a recitation
of the legalistic language in the title of the clause ("Non-disparagement/Injunction") plus a "brief[]
descri[ption]" of unspecified content are sufficient to render "knowing, voluntary, and intelligent"
Robert Duchoquette's purported waiver of his right to engage in any speech that Prestigious Pets
"in its sole discretion" deems "negatively impacts" its business or employees. The lack ofaknowing
waiver also points in favor ofa finding of procedural unconscionability based on contract formation.
See Arthur's Garage, 997 S.W.2d at 816; see generally Olshan Found. Repair Co., 328 S.W.3d at
892 (unconscionability prohibits unfair surprise).
For all of these reasons, each of the plaintiffs' claims is subject to dismissal under the TCPA,
both as a matter oflaw and because there is no clear and specific evidence supporting a prima facie
case on any of the claims. If you believe that there is evidence additional to what you have already
presented, which you think should dissuade us from filing a motion to dismiss under the TCP A, I
invite you to present it to us.

Your Clients Have Exposed Themselves to Counterclaims

In addition to seeking dismissal of your clients' claim under that Texas Citizen Participation
Act, we intend to file a counterclaim against your clients under the Deceptive Trade Practices Act
("DTP A"), based on any or all of the following actionable conduct:
(1) The "[u]nconscionable action or course of action" of including the nondisparagement clause in the contract. Tex. Bus. & Com. Code Ann. 17.45(5). Under the
DTPA, as under the common law, substantive one-sidedness in the terms is probative of a
contract's unconscionability. See Ketter v. ESC Med. Sys., 169 S.W.3d 791, 800 n.6 (Tex.
App.-Dallas 2005).
(2) "[R]epresenting that goods or services are of a particular standard, quality, or
grade, or that goods are of a particular style or model, if they are of another." Tex. Bus. &
Com. Code Am1. 17.46(b)(7). The owner of Prestigious Pets, we have learned, has a
history of giving the company high Yelp reviews even though she is not a
customer-thereby misleadingly conveying the impression that Prestigious Pets has a higher
level of approval from customers than it actually has.
(3) "[M]isreprcsenting the authority of a salesman, representative or agent to
negotiate the final terms of a consumer transaction." Tex. Bus. & Com. Code Ann.
17.46(b)(14). We understand that your clients are claiming that, even though through the
actions of Amanda Jones they formed a contract that included a non-disparagement clause,
at the same time they made no agreement to feed the Duchouquettes' fish because Amanda
Jones, the agent of Prestigious Pets who made the agreement with the Duchouquettes, was

Bill Richmond, Esquire

April 11, 2016
page 8
acting in her personal capacity as an independent contractor. By sending Ms. Jones to form
a contract with the Duchouquettes without informing them as to the limitations on Ms.
Jones's authority to bind Prestigious Pets, Prestigious Pets misrepresented her authority to
"negotiate the final terms" of the company's relationship with the Duchouqucttes.
(4) "(F]iling suit founded upon a written contractual obligation of and signed by the
defendant to pay money arising out of or based on a consumer transaction for ... services
... intended primarily for personal, family, household, or agricultural use in any county
other than in the county in which the defendant resides at the time of the commencement of
the action or in the county in which the defendant in fact signed the contract." Tex. Bus. &
Com. Code Ann. l 7.46(b)(23). The Duchouquettes lives in Collin County, and the contract
was signed in their home, but your clients sued them in Dallas County.
A private cause of action for each of these acts and practices is provided by Tex. Bus. &
Com. Code Ann. 17.SO(a). Remedies available to the Duchouquettes under the DTPA include
actual damages found by the jury (which can include mental anguish damages even if the jury does
not find economic damages). Latham v. Castillo, 972 S.W.2d 66, 69 (Tex. 1998).
Appeal of JP Denial of Anti-SLAPP Motion

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

Bill Richmond, Esquire

April 11, 2016
page 9
make the Duchouquettes whole for the attorney fees that they owed to their private counsel, as
provided by section 27.009(a), defendants would be willing to waive their claim for deterrence
damages tmder section 27 .009(b). Writing this letter and otherwise preparing to defend the lawsuit
you have now filed in the District Court has implicated additional fees. We fully recognize that your
client operate a small business, and we have no desire to expend time that could lead to an award
of attorney fees so substantial as to threaten their financial well-being. We would very much prefer
to see this case end with the recognition that filing the lawsuit in the District Court and the Justice
Court was a mistake in judgment from which the plaintiffs are willing to walk away.
Consequently, if your clients al'e ready to dismiss their claims immediately and with
prejudice, we are prepared to forgo any claims for attorney fees beyond those previously charged
for the proceedings before the Justice Court. If, on the other hand, we have to prepare a motion to
dismiss under the TCP A and pUl'sue counterclaims under the DTP . 'J. 1 i 11 be ready to seek a full
award of attorney fees with a clear conscience.

lcrc . . oui~.;;

(;/I(-( /
>aul Alan Levy