Nondisparagement Clauses – A Dallas pet-sitting company brought a small claims proceeding against a couple in Plano, Texas, after one of them posted a somewhat critical review of the company’s policies on Yelp, alleging both that the review was defamatory and that the posting violated the non-disparagement clause in the standard contract that the poster’s husband had signed. After the lawsuit received broad coverage in the media, and the couple filed an anti-SLAPP motion, the company dismissed its small-claims proceeding and sued in state district court alleging that the broader attention that had been brought to the controversy had hurt the company’s business, warranting an award of up to a million dollars in damages as well as an award or attorney fees. Public Citizen then entered the case on behalf of the reviewer and her husband, filing both an appeal from the implicit denial of the anti-SLAPP motion in small-claims court, and a new anti-SLAPP motion in the Texas district court. The trial court dismissed both the libel claim and the non-disparagement clause claim with prejudice, and held that the Duchouquettes would be awarded their reasonable attorney fees as well as sanctions to deter future such lawsuits.
The County Court at Law, to which the denial of the anti-SLAPP motion in small claims court was appealed, held that it lacked jurisdiction of the motion because of the voluntary dismissal of the small claims action, but the Dallas Court of Appeals reversed, holding that the small claims court had had jurisdiction at least over the suit based on the nondisparagement clause, and that the anti-SLAPP motion was a “claim for affirmative relief” that survived the plaintiff’s voluntary dismissal. The Court of Appeals remanded for consideration of the Duchouquettes’ motion for attorney fees and deterrent sanctions.
On remand, the County Court at law awarded attorney fees in favor the Duchouquettes, including for some of the time spent by her pro bono counsel – thus implicitly holding that such fees can be awarded under the TCPA.