ADB Interest, LLC v. Wallace

606 S.W.3d 413

ADB INTEREST, LLC and Ashley Black, Individually, Appellants

v.Karen WALLACE, Individually and d/b/a Journeyz Spa & Products, Appellees

NO. 01-18-00210-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 28, 2020

Daniel J. Kasprzak, George A. Kurisky, Jr., Mark A. Bankston, Houston, Texas 77010, Gregory J. Finney, Houston, Texas 77011, Wallace B. Jefferson, Marcy Hogan Greer, Nicholas Bacarisse, Austin, Texas 78701, for Appellants.

Rusty Hardin, Ryan Higgins, Houston, Texas 77010, for Appellees.

Panel consists of Justices Lloyd, Kelly, and Hightower.

Russell Lloyd, Justice

Appellants ADB Interest, LLC (ADB) and Ashley Black, Individually (Black) are appealing the trial court's granting of Karen Wallace, Individually and d/b/a Journeyz Spa & Products' (Wallace) motion to dismiss under the Texas Citizens Participation Act (TCPA).¹ In three issues, ADB and Black argue that the trial court erred by granting Wallace's motion to dismiss because ADB and Black proved that the commercial speech exemption applied to their claims, that ADB and Black established by clear and specific evidence a prima facie case for each essential element of their claims, and the trial court erred by awarding Wallace attorney's fees and sanctions. We affirm the trial court's judgment.

Background

Black is the Managing Member of ADB. Black invented a tool known as the FasciaBlaster, which is marketed by ADB. The original FasciaBlaster is a plastic rod that has hand grips on either end and four multi-pronged knobs in the middle, which the user rolls vigorously over his or her body. In their petition, ADB and Black assert that the FasciaBlaster is "designed for self-treatment to assist in pain reduction, improved flexibility, joint function, circulation, muscle definition and performance, nerve activity, posture, and enhanced beauty, including the virtual elimination of cellulite." They further contend that the product works by "opening the fascia," which is a layer of tissue that encloses muscles and organs.

In February 2017, Black published a book, The Cellulite Myth: It's Not Fat, It's Fascia. See ASHLEY BLACK , THE CELLULITE MYTH: IT'S NOT FAT , IT'S FASCIA (2017). The book is "an instructional guide to ‘FasciaBlasting’ " as well as a biography of Black. In the book, Black identifies numerous risks associated with using the FasciaBlaster. Specifically, readers are warned that should they use the FasciaBlaster "[i]f [they] have any history of deep vein thrombosis or a blood clot, the clot could be held in place by dysfunctional fascia and if [they] open the fascia and release it, the consequences could be deadly." Id. at 175. Readers are also urged not to use the FasciaBlaster "[i]f [they] have a severe connective tissue problem such as fibromyalgia, Ehlers-Danlos Syndrome, or any issues that makes [their] skin sensitive." Id. at 176. The book further states:

Other detox symptoms include: raised white spots, light-headedness, anger/emotion, changes in stool or urine color, soreness in the breasts and nipples, changes in menstrual cycles, spotting, swelling, strange-colored bruises, hot skin, flu-like, symptoms, and in some extreme cases, vomiting.... This is not an all-inclusive list, and to be honest, the product is fairly new and every day someone experiences something new.... Please check with your doctor for any issues that set off alarm bells. Id. at 181.

We don't have a total explanation on how blasting impacts hormones but we want to make you aware that some women report spotting or period changes in the beginning.... If you do experience a menstrual or hormonal change, know that it's temporary while the body is balancing out. Id. at 185.

We don't know the implications or extent of estrogen release or detox when blasting so if you have concerns, wait until after breast feeding. Id. at 193.

Not only that, when you are blasting, you are going to have some inherent inflammation as part of the healing response as the fascia tissue is remodeled. Id. at 197.

On May 22, 2017, ADB updated the Terms of Use Agreement posted on one of its websites, www.fasciablaster.com. Prior to that date, the Terms and Conditions posted on the website included the following warnings:

DO NOT USE the FasciaBlaster® device if you have a history of or may have blood clots also known as Deep Vein Thrombosis.

DO NOT USE directly on varicose veins.

DO NOT USE the FasciaBlaster® if you have recently, are currently, or will be taking blood thinners.

DO NOT USE the FasciaBlaster® on the carotid artery located on both sides of the neck.

If you are pregnant, DO NOT USE the FasciaBlaster® or any other Ashley Black Company product or service on the belly.

WARNING: The FasciaBlaster® and other Ashley Black Company products or services can cause a release of toxins, so USE AT YOUR OWN RISK.

WARNING: Toxins may be pulled out of the tissue and can cause rashes, bumps, redness, irritation, itching and other toxicity-associated symptoms.

DO NOT USE the FasciaBlaster® if you are unwilling to bruise, as bruising is a part of the healing process after using the device. I acknowledge that I am responsible for the depth and pressure of the Fascia Blaster® and other Ashley Black Company products or services during SELF-USE.

The updated version also warns users that, in addition to rashes, bumps, redness, irritation, and itching, toxins pulled out of the tissue can also cause: "vomiting, hormone changes, increased sensitivity, headaches, acute inflammation, changes in cycle, reoccurrence of pre-existing condition, weight gain and other toxicity-associated symptoms."

Although Black and the FasciaBlaster developed a devoted and loyal following of supporters that Black refers to as "Blaster Sisters," they also have their detractors. Many of the FasciaBlaster critics are active members of private Facebook groups that were created to allow FasciaBlaster users to offer uncensored reviews of the product and to share their experiences, both positive and negative, with other members. These Facebook groups include "Real Talk," "Fascia: Alternative Info," "Fasciablasting Adverse Effects, Reviews and Info," "FRESH (Fascia Research, Encouragement, Support, and Health)" and "Blaster The Real Truth." Posts from these sites establish that Wallace is only one of many people claiming on social media that the FasciaBlaster causes serious, adverse side effects.

A. Wallace's Social Media Posts

Wallace owns a spa in Corpus Christi, Texas that provides a variety of skin care services to its clients, including massages. Although Wallace does not sell FasciaBlasters at her spa, she purchased several of the products for her personal use and the record reflects that she also used the FasciaBlaster on one or more of her clients as part of her rendition of skin care services. Based on her personal experience with the product, Wallace recommended the FasciaBlaster to her friends, family, and clients.

However, on April 28, 2017, Wallace joined the ranks of FaciaBlaster's social media critics by posting a message on her business' Facebook page informing her clients that she was no longer recommending the product and warning readers against using FasciaBlasters.

After my own experience and after seeing results from doctors and specialist[s] [and] [c]ompleting tests and extensive blood work, the tests are showing that extended use of these products can cause a chain reaction in the body that starts with inflammation. That inflammation leads to raised cortisol levels in the body. That raised cortisol causes eventual thyroid dysfunction, hormone imbalance, increased estrogen, extreme detox, and cellular shutdown in your body.

In very simple terms the result of those things happening can cause (but not limited to) the following: extreme detox symptoms, feeling dizzy, sick, acne, extreme fatigue, emotional detox, headaches, pain behind the eyes, cold or flu like body aches, adrenal fatigue, weight gain that diet and exercise won't effectively get rid of, loose skin, and possible blood clots.

Any recurring inflammation in the body can [affect] every person differently. If you are using these tools and experience ANY adverse symptoms please STOP and get your cortisol, hormones and "free numbers" checked by your doctor. The raised cortisol caus[es] the interruption of things your body makes naturally (i.e.: hormones and thyroid) or supplements you take orally might not be functioning or being used on a cellular level.

I care about your health and well-being and only want good things for you. So any endorsements I gave this product in the past I sincerely apologize for without knowing the long term or adverse effects it may be causing people. As it has caused these adverse effects in myself by using it long term[,] I HAVE to warn anyone who is using it [o]r anyone who might be thinking of using it for esthetic reasons to use EXTREME caution.

Wallace also posted her message on several FasciaBlaster-focused Facebook group pages the same day, including "Fascia: Alternative Info," "Fasciablasting Adverse Effects, Reviews and Info" and "FRESH (Fascia Research, Encouragement, Support, and Health). Most of the members of these groups are current, former, or prospective FasciaBlaster users.

Over the next two months Wallace became a frequent contributor to FasciaBlaster-related websites with posts that were critical of the FasciaBlaster and Black. Specifically, on May 1, 2017, Wallace posted a lengthy statement alleging, among other things, that she had just discovered on alternate Facebook groups that her negative experiences had been shared by hundreds of women, and that her negative view of the FasciaBlaster, as well as those of other women, had been blocked from the product group's main page so that only positive reviews were visible. She made claims that the product maker had lied to her by saying that her health complications had not been caused by the FasciaBlaster and that these lies had endangered her health and...