The fake salon reviews (IIED threshold)Las reseñas falsas del salón (umbral de IIED)

Assignment

Your supervising attorney asks for the Discussion section of an objective memo on one issue only: whether our client, Renata Solís, can get past the gap-filler threshold on an IIED claim under Texas law.

Facts: Renata owns a hair salon in Plano. A former employee, Kyle Benner, who left after a pay dispute, posted twenty-two one-star reviews under different names over six weeks, each claiming Renata “burns clients,” “steals tips,” and “runs an unlicensed salon.” The salon’s bookings fell by a third. Kyle also called Renata’s personal phone eight times between midnight and 2 a.m. over two weeks, hanging up each time; Renata recognized his number. Renata has had trouble sleeping and saw her doctor, who prescribed medication for anxiety. A defamation claim is possible but faces a problem: some reviews use opinion language and the accounts cannot all be tied to Kyle.

Write the Discussion in CREAC form, 350 to 450 words, with Bluebook citations to Zeltwanger, Draker and Twyman.

Model answer

Renata probably cannot bring an IIED claim based on the reviews, because the gravamen of that conduct is defamation; only the late-night calls offer a narrow path past the threshold.

Intentional infliction of emotional distress is a “gap-filler” tort in Texas, available only when no other theory addresses the harm. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Where the gravamen of the complaint is really another tort, the plaintiff cannot use IIED to avoid that tort’s limits, and this is so even if the other claim fails. Id. at 447–48. The rule applies squarely to online attacks on reputation. In Draker v. Schreiber, two students built a fake social media profile of their vice principal with false and sexual content; she sued for defamation and IIED. 271 S.W.3d 318, 320–21 (Tex. App.—San Antonio 2008, no pet.). The court affirmed summary judgment on the IIED claim because the complaint was, at bottom, about injury to reputation, and the failure of the defamation claim did not revive IIED. Id. at 323–24.

Kyle’s reviews fit Draker. Each statement, that Renata burns clients, steals tips and lacks a license, attacks her professional reputation; the harm Renata describes, lost bookings, is reputational harm. A court will treat the reviews as defamation territory regardless of whether the defamation claim can be proven, exactly as in Draker. The weakness of the defamation claim, opinion language and unattributed accounts, is the kind of limit Zeltwanger says IIED may not be used to evade.

The calls are different. Eight midnight hang-up calls over two weeks are not statements about Renata; they are conduct aimed at her peace of mind, independent of the reviews. That conduct is not covered by defamation, so it can be evaluated on its own under the four Twyman elements: intentional or reckless conduct, extreme and outrageous, causing severe emotional distress. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Whether eight hang-ups are “extreme and outrageous” is doubtful, but the threshold problem does not bar the inquiry.

Renata will argue that because defamation is a poor fit, the law leaves a gap that IIED should fill. Zeltwanger rejects that reading: the question is what the conduct is, not whether the plaintiff can win the other claim. Id. at 447–48. The better strategy is to plead defamation on the reviews, strengthen the attribution evidence, and plead IIED narrowly on the calls.

In short, the reviews cannot support IIED; the calls might, if they are outrageous enough.

Common mistakes

• Arguing that a weak defamation claim opens the door to IIED; it is the opposite.
• Lumping the calls with the reviews instead of separating independent conduct.
• Writing the rule explanation as a list of cases rather than one illustration with hook, facts, holding and reasoning.
• Leaving out pincites.