“Gordy” the betta fish survived his care and appears svelte. He’s under surveillance cam watch.YouTube
A Texas pet-sitting business is seeking up to $1 million in damages from a couple who gave a one-star review on Yelp and criticized the company’s treatment of their tiny blue tropical betta fish “Gordy” while the family was away on vacation.
The company, Prestigious Pets of Dallas, claims the review is a breach of a non-disparagement clause and defamation.
Paul Alan Levy, a Public Citizen lawyer who is defending the couple, summarized the company’s revised suit (PDF) targeting the couple.
The new lawsuit, however, specifies one statement from the review in particular: that the company’s assigned pet-sitter had potentially caused serious harm to the couple’s fish by putting too much food in a fish-bowl while the couple were away on vacation for a few days.
The complaint alleges that a charge of overfeeding a fish is libel per se because it amounts to the criminal offense of animal cruelty under Texas law (if giving too much food to a pet fish were really a crime, I expect there would be thousands of Texas second-graders facing jail time every year!)
Levy’s defense, filed Thursday in a local Dallas court, is that the family’s review was truthful and protected by the First Amendment.
“As our filing in the case indicates, though, there are photos showing that the fish water became cloudy and that food accumulated at the bottom of the tank, which must have been caused by overfeeding, and apparently overfeeding is a serious issue for this kind of tropical fish,” Levy said.
Michelle and Robert Duchouquette, of Plano, said they discovered Prestigious Pets in Dallas on Yelp and that the company’s page was full of five-star ratings.
The couple hired the service last year before heading on a five-day trip to Napa Valley in California.
The firm walked and fed the couple’s two dogs, too. On Yelp, Michelle also complained about the company’s billing practices.
The review, however, also said that the “care of our dogs was fine.”
That was distinctly not the case with Gordy, according to the Duchouquettes’ review.
The one star is for potentially harming my fish, otherwise it would have been two stars. We have a camera on the bowl and we watched the water go from clear to cloudy.
There was a layer of food on the bottom from way too much being put in it.
Even if you don’t have fish, you should be able to see the change in the bowl and stop putting in food.
Better yet, ask us how much to feed if you are unsure.
The suit claims that the couple asked in the 11th hour for the firm to feed Gordy, and the company agreed to do so without charge.
The company also said that because of intense media coverage stemming from earlier incarnations of the suit, its owner and her husband “have had to deal with numerous rape and death threats that have come on the heels of the Duchouquettes’ media campaign, in addition to other forms of harassment such as identify theft, impersonations, can calls, etc.” The lawsuit says the company has “seen a dramatic decrease in new business as fallout from the legal battle.
Prestigious Pets noted that the couple agreed, under the service contract, “not to make negative comments about Prestigious Pets and to not disparage Prestigious Pets.”
In pertinent part, the non-disparagement clause states: “[Y]our acceptance of this agreement prohibits you from taking any action that negatively impacts Prestigious Pets, LLC, its reputation, products, services, management, employees or independent contractors….Any violation of this clause is to be determined by Prestigious Pets LLC in its sole discretion….” The non-disparagement provision was in the same legible typeface, size, and font as the remainder of the Agreement, began with the heading “NON-DISPARAGEMENT / INJUNCTION,” and it was immediately above the signature line on the second page of the two-page contract.
Duchouquette voluntarily, knowingly, and intelligently signed the Agreement and agreed to the non-disparagement provision after it was provided to him by Prestigious Pets’ independent contractor pet sitter.
The disparagement went beyond the Yelp review, too, according to the lawsuit.
It reportedly included a “variety of written and broadcast mediums, including but not limited to via Facebook, Inc., ABC.com, CBS.com, and other media outlets.”
The real kicker is the defamation allegation regarding Michelle’s statement on Yelp and media interviews about Gordy being overfed.
The statements are defamation per se because each (a) was reasonably calculated to injure Plaintiffs’ reputation and thus exposed them to public hatred, contempt, ridicule, or financial injury,1 (b) injured Plaintiffs in their business/occupation regarding the alleged lack of a peculiar or unique skill (pet care) necessary for the proper conduct of the business/occupation, and (c) falsely charged Plaintiffs with the commission of an act that is a crime (violation of TEX. PENAL CODE § 42.092, “Cruelty to Nonlivestock Animals”).
The statements have been continuously published and re-published both by the Duchouquettes and by third parties.
In a blog post, Levy said this litigation is worth “watching because until Congress passes the Consumer Review Freedom Act, it could be our best chance to get one of these clauses declared unenforceable.” He said the Duchouquettes’ hold a “First Amendment right to make fair comments about the plaintiff company.”
The irony here is that if Prestigious Pets didn’t initially go to small claims court about the review, virtually nobody would have known of—or cared—about Gordy’s diet.