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Orglamix Sent me a Cease and Desist

So apparently, Cheri Tracy of Orglamix / Urban Apothecary sent me a cease and desist because of me refusing to give them a good review in my blog here. I refuse to recommend her. In fact, I do not recommend her or her products.

Now, on to the letter I received.

RE: Cease and Desist

Dear Fresco Phyrra:

Our firm represents the interests of Orglamix and its proprietor, Cheri Tracy. We have recently learned that you have made certain statements and posted various comments on the internet about our client that tantamount to more than mere opinion, are blatantly false, and in-fact will result in actionable tort claims if not removed or corrected immediately.

As explained in National Refining Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763 (8th Cir. 1927), cert. denied, 275 U.S. 570 (1927), “A corporation, partnership, or other business association is an entity with a business reputation and is, therefore, capable of being defamed. The courts allow such an organization to bring an action for business defamation.”

Consequently, your malicious and unsubstantiated posts resulted in a loss of revenue to my client and constitute a legal claim for “disparagement of a business” and “defamation.” As stated in Redco Corp. v. C.B.S. Inc., 758 F.2d 970, 971, Disparagement is defined as “a false statement which disparages the plaintiff’s goods and services, and which the defendant should recognize as likely to cause pecuniary damage.”

The elements of a claim for business disparagement are: (1) publication by the Defendant of the disparaging words; (2) falsity; (3) negligence in the case of a private individual or entity regarding the truth of the statement; (4) lack of privileges; and (5) special damages.

Also, as a result of the false statements you posted, you have intentionally violated my client’s rights to enjoy the fruits of her labor, and thus are responsible for “tortuous interference with business relations.”

The language and statements made in your posting(s) satisfy all of the court’s criteria to satisfy a judgment in our favor for business disparagement, defamation and tortuous interference with business relations.

In your efforts to malign my client, you have made false statements. This can be verified by reviewing the statements that you have posted on Twitter and blogspot.com. It is my conclusion that this set of circumstances would show that my client has, in fact, suffered substantial damages as a result of your conduct.

Accordingly, IT IS HEREBY DEMANDED that you CEASE and DESIST from any further postings or publications of any nature disparaging or defaming Orglamix or its proprietor, Cheri Tracy, AND that you take appropriate action to remove the posting immediately from the date of this letter.

If you fail to comply with this demand, our client will initially seek ex parte injunctive relief and correspondently we will file a cause of action to which you will be ordered to respond. Monetary relief sought will include all actual damages, punitive damages (due to the malicious nature of the postings), all reasonable attorney fees and court costs as allowed under the law.

In addition to sending this letter to you by Certified Mail, return receipt requested, we are also sending a copy to you via email so as to put you on immediate notice of our demand that you cease and desist from the above cited actions.

Very truly yours,
Bartholomew Sojka

Attorney at Law


I am entitled to my OPINION on products that I purchase with my own money.
I am entitled to recommend or not recommend a company based on my experience with that company.

For some extra clarification:
I purchased from Orglamix on August 7, 2009.
I used her products and in my opinion I believed them to be nothing special.
At this point I felt like I’d wasted money on her products.

On September 17, 2009 Cheri Tracy contacted me via email to review her makeup and offered to send me samples.
I explained to her that I’d already purchased some of her products, and proceeded to ask her questions about how she makes her makeup, etc.
After doing more research about her companies that she told me she had, I didn’t like what I found.

On September 25, 2009 I posted my review and stated that I would not recommend Orglamix’s products.

So to be clear, I purchased Orglamix products with my own money. Cheri Tracy then contacted me to review her products. I asked her questions and did research. Then I posted my review, a review she ASKED for, based off my opinion, research and experience with her products.

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36 Comments

  • what reasearch did you find that you did not like? please let us know! i dont want to buy products if they arent a good company

  • Hi Karadin,
    I purchased from Orglamix on August 7, 2009.
    I used her products and in my opinion I believed them to be repackaged minerals. I felt like they were not a finished product. However, this was merely my opinion and not to be construed as fact.
    On September 17, 2009 Cheri Tracy contacted me via email to review her makeup and offered to send me samples.
    I explained to her that I'd already purchased some of her products, and proceeded to ask her questions about how she makes her makeup, etc.
    After doing more research about her companies that she told me she had, I didn't like what I found.
    On September 25, 2009 I posted my review and stated that I would not recommend Orglamix's products.

  • hahaha what an ass. He didn't even say please…you know, DEMANDING PEOPLE isn't very nice, and will only make them post the letter up which will then be an amusing source for mockery. Thats one mineral makeup company I won't ever be buying from!! What a bunch of amateurs!!!

  • Somebody is having a bad day – err, month! It's the "Oh, crap, I'm being called out on the carpet" reaction. THIS is not the way one should do damage control, IMHO.

    I ran into another MMU company at IMATS (who shall remain unnamed) who was trying to swoon bloggers with her "pure, crushed minerals without any fillers". Not wanting to call her out in front of others – it's just not my style – I bit my tongue. It started bleeding, lol.

    I tried to do an unbiased post with tips of what to look for on my blog last night. Your readers might be interested in reading about it here: http://purelycosmetics.blogspot.com/2009/10/oy-drama.html.

    If anyone has any questions, or are unsure of a particular company, I'd be happy to give my opinion; usually those of us in the business can recognize the repackers pretty easily.

  • omg..thats just ridiculous! you we're within your own rights to state your opinion abut them, their reaction just shows how sussed their company is.
    i wonder if they are attacking all those that post real reviews about them – or just the ones that are highlighting their bad practices.

    definatly get a lawyer to check out the letter tho
    x

  • I got this exact same e-mail. It's funny because it's the same, word for word, saying that I posted something.. I never posted about them, I e-mailed Cheri privately and told her off. I'm just a bit disappointed that I can't sue her for this.
    I already sent my answer. If they want to take legal action, they need to do it via Finnish lawyer. Suck on that.
    If this person thinks that this is going to improve her reputation, I think she should think twice.

  • Keep the post up, and share this with everyone you can. If they decide to sue you, we can create a legal fund for you…this is ridiculous! You clearly state that the posts in question are YOUR OPINION, and you are completely within your rights to have this opinion.

    My fiance is a director at an award winning advertising agency. We've often discussed how major companies actually don't mind the occasional bad review, because it gives legitimacy to the good reviews. They realize that not everyone is going to like a certain product, no matter how good it is. If all the consumer is seeing is glowing reviews, the buyer is more apt to think they aren't truthful. Therefore, a negative review is, in a way, as helpful as a positive one.

    The action Orglamix is taking just goes one step further in proving that they have no idea how the cosmetics industry is run.

  • great business practice orglamix. it isnt the bad reviews thatll get you (if you can even truly call them BAD!), it's THIS bull.
    really, a small business should understand the rights and ideas of the INDIVIDUAL. You did nothing wrong at all Phyrra, you posted a review of your personal opinions about a product and I think orglamix wants to take away your constitutional right as an american to express your opinions freely. Lawsuit awayyyy!

    .. hah, I kid. But really, this is going to do her no good. People are gonna see this and think she's bonkers or something. Talk about defensive.

  • Phyrra, I have always valued your blog for the objective reviews you give. I appreciate your honest opinions. You are most definitely and indisputably entitled to you opinion, be it positive, negative, or neutral! This company's C&D order is uncalled for and (in my opinion, oh boy) unsubstantiable. Since when should someone be threatened in legalese for stating their OPINION of their experiences with the company and its products? You didn't state anything as absolute fact; you made it abundantly clear that your statements constituted your personal opinion. If you had a bad experience, you had a bad experience. That's the company's fault, not yours, and you should not be punished for sharing your experience with others. If you see two shades that look alike TO YOUR EYE, you are in no way doing something wrong by expressing this opinion. Evidently these people can't read or distinguish between opinion and libel. Good gravy. I'm sorry you are having to deal with this. Keep up your honest, incisive reviews– you contribute a great deal to the world of beauty blogging!

  • Phyrra, you wanna know something really FUNNY? Months ago, they started this "Le Mystere" thing, and the description, I'm sure it sounds familiar, right? Aromaleigh came up with these long time ago that it's ridiculous their wordings are identical. Well, I contacted Aromaleigh and they did their action. I believe she no longer has this le mystere, but do chekc out her feedback before September. I think Orglamix is a copycat yet they were filing for lawsuit? Might be false, but do consult just in case.

  • I can't help it, I had another thought….

    If you read through the comments on your blog, from the people reading the blog in question, and your blog, in general, it is quite clear that we ALL UNDERSTAND these are your opinions, and NOT FACTS/STATEMENTS OF FACT. Her complaint seems to be that you told us, the readers, that she was doing something wrong/immoral/illegal/unethical and we BELIEVED AND ACTED UPON A STATED FACT. None of us did that; no one has made a post stating or implying we see these blogs, or the one she's complainted about, as concrete fact. We're all intelligent, educated, savvy people, and we understand the main point of a personal blog is to express one's OPINION, and thatyou do so, very well, and in a helpful manner. Your blog contributes to the online community of people who enjoy makeup in all its varied hues and applications.
    Okay, I think I'm done, now. ~grin~

  • I feel that this 'woman' is in a different reality than the rest of us. She steals from Aromaleigh, asks you to review her stolen product, and then asks YOU to stop telling everyone that you know about her shady operation! In my opinion, I would be looking out for my own legal and personal safety when dealing with persons that have no idea how to l exist in society and live in the context of LAWS. Oh, and again my opinion, making up B.S. cease and desist orders because you don't like something doesn't mean you know the law. She's mad because she stole and you don't want to recommend her 'company'? Again, WTF comes to mind…!

    Love you Phyrra, you're the best and HONEST!

  • Just….wow….I would double check everything when the physical letter arrives. Check his bar number; check public database for prior actions filed/taken by Orglamix. Off the cuff, this letter seems filled with a lot of hot air. They are not making the case; C&D doesn't require all this spouting off about case law. And frankly, bullet points of case law can work to just about anyone's point of view, when taken out of context, as these seem to be.

    You might want to post, clearly, that your OPINION, not STATED FACT, relative to your experience, alone, with the makeup in question, was not satisfactory, and gave YOU the IMPRESSION they MIGHT be repackaged, BUT that you have no knowledge of repackaging done by Orglamix; are NOT making a STATEMENT to that effect; and further, that you DID NOT encourage others to steer clear of their site for purchases, etc.

    Justa thought….Although, if Orglamix is this wound up about one blogger's opinions, I can't help but WONDER what else might be going on? Of course, I am NOT making any statements, implied or direct; I am only musing over my own curiosities in an authorized, public forum for expressiing one's OWN OPINIONS.

  • Last time I checked, Florida was in the United States of America – therefore, you have a right to your opinion, and you can state that opinion to anyone you see fit!
    Personally, I'm glad you don't feel intimidated by that letter. It's really ridiculous to try to threaten someone over the internet because they stated an opinion they had on a blog. This tactic makes them seem less than professional.

  • Definetly check the bar to see if they are a real attorney. I worked at a law firm for about 5 years and never seen a letter with so many cases cited, its not a research paper. Its very easy to pick and choose what part of the case you want to cite too.

  • Keep your chin up, Phyrra!

    I value your blog because I find that your reviews are rather neutral. You talk about what works for you or what doesn't and why; you don't engage in name-calling.

    I agree with the other poster that says that this action makes that other company look crazy and defeats their purpose… it doesn't help their business… it only hurts their reputation.

  • What an an absurd joke. How dare you not like something or state your opinions on it. After seeing a mention of this regarding Aromaleigh, I *had* to go look at the accusations directed at her/her company, and couldn't help but laugh. It's not really funny, but just so off-the-wall. Copy & pasting a loosely woven legal form letter means diddly shit (or "what a bunch of bollocks" as my partner put it), but still annoying, insulting, and a waste of valuable time. I'd not normally say anything one way or the other regarding other Indie cosmetic companies, but this certainly takes the cake.

  • So I was just having a little chat about this with someone who's stayed relatively quiet about this whole mess but is a huge fan of mineral makeup. She told me that sometimes personal reviews don't deter her from ordering from a company, sometimes the seller's having a bad day, the quality was off, etc etc. Sometimes some people need the second change. She said what this action does is literally shoot herself in the foot. She'd NEVER buy from a company with such irrational reactions to a bad review, makes people wonder what they are hiding behind the legal mumbo jumbo.

    I tend to agree. Even if you didn't read the bad review, knowing how the company behaves on it's own makes a BIG impact. (Sort of like someone else we know…)

  • That's insane! They can't actually do anything when someone just expresses their opinion, I mean that would start infringing on your rights of freedom of speech. They must be simpletons to think that they can bully others if they don't give good reviews. And they can't really expect all of us to be idiots that wouldn't find out the truth about them on our own at some point anyway. This is NOT the only blog where this company has been mentioned without a glowing review, what, are they going to track down all the blogs on the internet that didn't post positive reviews of them? Ridiculous! You should never be made to feel that you can't post an honest review of a company, or, it's products.

    hugs,
    Laura

  • C&D's are getting sent out all the time as knee jerk reactions these days. I think it's the sort of thing a lawyer might print out for somebody free, because it's just a scare tactic.

    You obviously have the right to your own opinion, free speech, and to post reviews on the Internet. I read your post about Orglamix and it was your experience with the company and your reactions. NOT malicious defamation.

    What an obnoxious letter. Don't let it get your day down. You're a talented, intelligent person.

  • Snort. Not surprising, I did a quick google search to find that this attorney graduated from law school in 2005. Sooo he's been practicing law a whole 4 years.

    Really sad what some lawyers will do for money. I wonder how much he billed them for this ridiculous c&d order that doesn't even have any cause.

  • Wow! I had no idea this was the company AL was talking about. I just went through my stuff and I had ordered from her as a result of another blogger's posting. I didn't think they were all that special – now I know why – I already owned the colors from AL! I see that letter as a scare tactic – we're going to sue blogger's now for posting opinions? Puuuuhleeze!

  • Well, that's a new low for Orglamix. I hope their "lawyer", or whomever in that law office was supposed to do their fact-checking gets in serious trouble for drafting a cease and desist without proper cause.

  • Thanks for bringing this to our attention. Wow! How blatant! It amazes me that someone would copy Aromaleigh, a well established and extremely popular company. People want to do damage control and will threaten you – even if you speak the truth. Happened to me once regarding a brush seller that sold me "vegan" brushes that were in fact animal hair and she had known for awhile that they were not vegan. I can share that story if anyone is interested.

    But, I do want to comment that I have seen some things on other blogs that really could get gals into trouble, such as suggesting the hacking of a repackager's site.

  • Orglamix is a total idiot company if they think they can go around being unreasonable jerks pushing blog people around.

    You should make your own cease and desist!

    Tell them to cease and desist being a bunch of stupid bullies and leave you the hell alone!

  • Oh my word….I agree that you are entitled to your own opinion. We all have them….If you don't like you don't like…You can't give kudos to something that you don't like….This is so crazy!!!

  • Hello, wack-a-do's of the world, even if she had posted it as fact, which she did not, it's only defamation if it's not true.

    Actually, you can send a cease and desist electronically (being an artist I've filled out more DMCA's than I care to think about). However, in a case like this they can't demand she cease and desist anyhow, it was an opinion. We're all entitled to them and can not be persecuted for them.

    The world is full of fruit loops and fruitcakes and this company seems to be run by the head fruit loop!

    Seems to me, the Mineral Makeup Mutiny has these fakir's running scared.

  • LMFAO

    Any letter so strew with tort and ramblings seems a little suspicious. When the actual letter arrives, make sure you call and get the guys bar number to prove he's an actual lawyer. It SHOULD be supplied in any and all legal correspondence.

    LULZ

    You can't send a cease and desist via email.

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