by Paul Alan Levy
i-Geniuses is a Houston company that repairs Apple products; it especially touts its ability to repair computers suffering from liquid damage on a fast turnaround schedule. A number of former customers have expressed concerns about the success of the repairs, about longer-than-advertised repair times, and especially about their believe that the company is very slow to respond to questions from customers concerned about not getting their computers back in the expected time.
Rather than improve its practices, i-Geniuses has trod the now-familiar path of companies that try to clean up their reputations by threatening critics with lawsuits that impose the expense of defending their criticisms in court, not to speak of monetary damages. The threats begin with emails from the company, telling consumers that they are not allowed to make public criticism and threatening to extract monetary fines. (Note this followup as well, telling a consumer that his Yelp review constitutes a “digital tantrum.”) The company warns that if criticisms are not removed, the consumers will have to hire a Texas lawyer to defend them (each of the consumers is more than 1400 miles from Houston) or face collection proceedings to enforce a default judgment. The company sends out an “invoice” that purports to impose a charge of $2500 for each public criticism (so, for example, a consumer who placed criticisms in two locations got an invoice for $5,000), and sometimes another $250 for iGeniuses’s expense hiring a lawyer to write demand letters. Finally, consumers then receive a followup letter from such a lawyer, Christopher Cammack, insisting that they are in breach of a contractual commitment not to speak publicly and threatening to sue for breach of contract and libel.
I have thus far received copies of three such letters (an example is linked here); each of the letters is dated December 29 and says, in virtually identical (and not entirely grammatical) language, that the reviews make false statements and have been made in breach of a contractual non-disparagement clause. Each letter warns that if the critical review is not taken down by January 9, 2017, i-Geniuses will sue in Harris County, Texas. The letters do not specify any false statements.
I reached out to both the company and the lawyer to ask questions about these claims. i-Geniuses never responded, but Cammack called me back and we had a thoroughly civil conversation, even if what he had to say was largely uninformative. I wanted to know, for example, which specific facts in each of the reviews he, on behalf of i-Geniuses, claimed to be false. Generally speaking when lawyers send demand letters that throw around the word “false” but give no examples, that tends to suggest that they have no sound claims of falsity. And besides, having been in touch with three recipients of the letters, and having looked at some of the consumers’ documentation, it appeared to me that there is some justification for a complaint common to many of the Yelp reviews, that the company does not respond promptly to inquiries from customers. Cammack told me that he “d[id] not choose to tell [me]” what specific statements were claimed to be false. I could not help wondering whether he had any specifics in mind.
Moreover, one of the consumers made his criticism in 2013, so the one-year limitations period in both Texas and California (whence this consumer sent his computer to iGeniuses) has long expired. Under the single-publication rule, which applies under both Texas and California law, the fact that the critical review remains available today does not revive the statute of limitations, which runs from time of first publication. This is one issue I never got to mention before the conversation ended.
I had taken a close look at how the i-Geniuses web site works and determined that, at least now, there is page called “Customer Satisfaction Policies” that includes a non-disparagement clause, but the fact that customers must agree not to say anything negative about the company in order to get their computers fixed is not mentioned on an page of its web site that a consumer is likely to see before entering personal information and beginning the process of ordering – no mention in the FAQ, for example. It is not even displayed before the consumer signs – it is part of a clickwrap contract that is only viewed if the customer clicks a link on the “checkout” page next to a box saying, I accept the terms and conditions. Even then, the nondisparagement clause is buried so far down in the terms that even working with the large screen that I use at work, I had to scroll down through two screenfuls of fine print before getting to the long paragraph that contains the clause. None of the consumers to whom I spoke had been aware of the nondisparagement clause when they hired the company to fix their computers. Given the tough Texas-law standards for waiver of First Amendment rights on which we relied when litigating the Prestigious Pets case in Dallas, I would be surprised if the facts of this case would have been found to justify a finding of waiver.
I asked Cammack whether the web site worked the same way when two of the consumers had completed their transactions in 2015, and indeed whether the contract was the same when one of the consumers had sent his computer to i-Geniuses in 2013. Cammack said he didn’t know the answers to these questions and that I would thus have to speak to his client. But if he didn’t know this basic information, how could he state as a fact that each of consumers had agreed to the contract he was telling them that had breached?
And, in any event, Cammack sent his letter more than two weeks after the presidential signature that enacted the Consumer Review Fairness Act. When I asked Cammack whether he had taken that law into consideration, he told me that this was attorney work product that he would not reveal. I couldn’t help wondering whether Cammack was even aware of the Consumer Review Freedom Act. When I asked him whether he knew about this federal law, he politely terminated the conversation.
As the conversation went on, and as I made it clear that I thought had sent legally unjustified threats to chill the free speech of consumers, Cammack plaintively said that he was just an outside contractor who had been hired to send three letters. Certainly he wrote as a lawyer for a client, but as I see it, he bears responsibility for his conduct in sending threatening letters seeking to suppress criticism and without, so far as I can see, any sound basis. He, as well as i-Geniuses, deserves public criticism for his actions.