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,
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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