Dietary product manufacturer Roca Labs has filed a lawsuit alleging that Consumer Opinion Corp. and Opinion Corp., operators of PissedConsumer.com, hosted negative reviews of its products, including Gastric Bypass Alternative, in violation of the non-disparagement clause that many of its customers sign in exchange for a product discount. Roca Labs, Inc. v. Consumer Opinion Corp., No. 14-2096 (U.S. Dist. Ct., M.D. Fla., defendant’s opposition to temporary injunction filed September 18, 2014).
Roca claims that the defendants encourage Roca’s customers to violate a non-disparagement clause that, according to the complaint, requires customers to “not speak, publish, print, blog or write negatively about [Roca] or its products in any forum” for a significant discount, averaging $800. The company alleges tortious interference, unfair trade practices and defamation and seeks declaratory judgments, damages, attorney’s fees, and the names and addresses of alleged Roca customers who helped post negative content on the Website.
The Website operators have responded by claiming immunity under Section 230 of the Communications Decency Act, which protects service providers from liability for hosting content created by third parties. They contend that Roca is attempting to “force a cone of silence over each and every customer that discovers Roca Labs’ product is not only a specious remedy for their weight issues, but a potential cause of additional health problems.” In response to the growing number of non-disparagement clauses in consumer contracts, Reps. Eric Swalwell (D-Calif.) and Brad Sherman (D-Calif.) introduced the Consumer Review Freedom Act, which would prohibit the use of such clauses, in the U.S. Congress on September 15, 2014. See Swalwell Press Release, September 26, 2014.