So you hired a pet sitter to take care of your companions while you were out of town, but you weren’t happy with the service you received. You’re free to go online and publicly share your thoughts about that experience, as long as what you write is truthful. But you still might be sued by that pet sitter if your contract included a clause forbidding you from posting anything negative about the company.
A couple in Plano, TX, tell CBS Dallas that they weren’t thrilled about the service provided by a local petsitting service.
In a Yelp review posted last October, they raise questions about the company’s fees and billing, the apparent lack of updates from the sitter, the fact that the sitter didn’t leave the house keys behind as requested (which results in additional fees), and what they contend was potential harm done to their fish.
The company subsequently responded to that review, answering each of the pet owners’ concerns. But CBS reports that the petsitting business followed this up with a cease and desist directing the couple to remove their Yelp review.
When the Yelp writeup remained online, the petsitting company filed a lawsuit in small claims court, claiming “Intentional misrepresentation and fraud by omission,” and seeking $6,766 for violating a “non-disparagement” clause in their contract.
That’s right — those “gag” clauses that California outlawed in 2014, and which may soon be made illegal nationwide if the federal Consumer Review Freedom Act passes. The U.S. Senate unanimously signed off on this legislation in Dec. 2015, and it’s currently being considered by the House of Representatives.
Interestingly, a good chunk of the clause used in the petsitting contract was apparently copy/pasted from one of the more notorious gag clauses — the one formerly used by online accessory retailer Kleargear.
In that case, Kleargear tried to invoice a customer for $3,500 for allegedly violating a clause stating that “your acceptance of this sales contract prohibits your from taking any action that negatively impacts Kleargear.com, its reputation, products, services, management or employees.”
When the customer challenged that penalty, Kleargear didn’t defend itself, resulting in the court determining that the customer “does not now, and never did, owe KlearGear.com or any other party any money based on KlearGear.com’s ‘non-disparagement clause’ or any money based on [the Plaintiff’s] failure to make any payment allegedly owing under that clause,” along with a subsequent $306,000 judgment against the company.
When challenged, many of these clauses fail to stand up to legal scrutiny, with courts deeming them unenforceable, but lawyers we’ve spoken to say that companies use gag clauses in the hope of preemptively scaring the customer from even thinking about bringing the case before a judge.
In a statement to CBS Dallas, the petsitting company defends the non-disparagement clause.
“We are honest people seeking protection from dishonest individuals, not other honest ones,” reads the statement. “Fair and honest feedback is not the issue here.”