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TexLaw, Attorney
Category: Business Law
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Experience:  Internationational Commercial Attorney
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I sell advertising in restaurants. I sell roughly 25 advertisements

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I sell advertising in restaurants. I sell roughly 25 advertisements per restaurant.
I sold 5 ads, when the restaurant owner canceled the contract. Basically said, his wife did not like the idea. CANCELED.
Unfortunatly at the time there was not protection from the restaurant for canceling.
However, my contract with the advertiser says the following:
Here are some excerpts from my contract with the advertisers.
You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. Cancelation must be in writing, by email [email protected] We will acknowledge and respond to your email within 24 hours.
. This contract is non-refundable and non-cancelable. Advertiser understands if for any reason the company decides not to complete the project, after a period of twelve months, a refund will be issued.
Tables are scheduled to be in the restaurant for the length named above, starting on installation day. Company reserves the right to change the location of the tables. Possible reasons for relocation: Restaurant ceases operation, involved in unethical or immoral acts, quality declines or changes; we deem the move to be beneficial to the overall project. Company will do everything possible to secure a new location, within a reasonable geographic area. This cannot be guaranteed, and once installed; no other refund or compensation is offered. If a new location is secured, we may offer a pro-rated ad at the new location. This is depending on the length of time left on this agreement. If the location of the product needs to be changed, this does not negate either party obligation under this agreement.
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One of the advertisers wanted a refund. I would not give it to them, and they are suing me in small claims. They also made threats to me, which cannot be called real threats, because they did not mention a broken body part, only that they will go to my HOUSE and have a LONG TALK with me and some of their friends.
One of my competitors walked into Serums restaurant to discuss table advertising. The WAITRESS, who is friends with some of the advertisers I sold to said

I was served papers, and I was in JAIL!! This information was passed on to another restaurant I am selling on, about 2 blocks away. The restaurant owner there, knew the situation with the first restaurant, and called me to tell me that this is what they are saying about me.
I called up that competitor, who said, Their exact words were:
I sold an ad for $3000, never produced the ad and now is in jail. He was served papers and is in Jail for fraud.”
can I sue them for defamation?
Or, which I prefer, can I threaten them and then SUE them if it happens again.
I wrote a threatening letter Is this legal? Can I sue them based on this information?
My letter is below

========== =============================
Dear XXXXX and employees.
I was contracted to sell table advertising in Serums restaurant. The contract was broken by Gary Serums. (actually his wife)
At the time the contract was broken, we had sold several ads.
My contract with the advertiser says, that if we cannot install the tables in the restaurant named we can change the location of the tables to another nearby restauarant. If we cannot find another restaurant, we will refund the money.
We found another restaurant, and are happily selling ads on that one.
Of all the advertisers sold, only one wants a refund. My contract clearly says, no refund, we can move you to another restaurant.
That advertiser has served me papers to sue me in court. My contract is solid and has been tested before. I can put his ad in another restaurant.
One of my competitors came to your restaurant to talk about the same type of advertising. He was told I was served papers and IN JAIL!!
FACT: I did nothing legally wrong.
FACT: the advertiser had 3 days to back out of the contract for a full refund.
FACT: I have been served, and will appear in Court and win
FACT: If anyone in your establishment, tells ANYBODY any false statements about me, or my company they will be sued for defamation of character.
FACT: If I lose a sale because of such a statement, I will also sue for lost income.
I have received several threats, of which I have recordings of, of what I consider physical harm from that advertiser. The police do not consider it a legal threat because he only said, “he and his friends will meet me for a long discussion, if you know what I mean” because he did not specify which body part he will damage, it is not a physical threat, but I take it very seriously.
While it is not considered a threat, there are three “incident reports” at the police station regarding this situation.

Thank you for your question. I'm glad to hear back from you. This advertising business you are in certainly sounds cut throat!

You can sue the restaurant for Defamation. This type of statement is not only untrue, but it damages your business reputation. That is the exact sort of fact pattern which supports a good claim for defamation.

Did you already send this letter?

Customer: replied 3 years ago.

i did not send it yet. i wanted to see if i should address the restaurant owner, or all the waitstaff, or both. the restaurant owner is out of town until march. It is his waitstaff that is saying those things.

the restaurant owner likes me.

but the waitstaff, all did not like me at all.


So, in a simple answer, the letter was not sent yet. and can you give me an idea what a defamation suit like this is worth, how do i put a dollar amount on it, and is my letter needing any fixing up? (I will be leaving now, and back in about 4 hours. I will see your response then.)


Thank you for your response.

First of all, scrap the letter. You don't need to send a letter at all before filing a suit and your letter above doesn't help you.

You've actually hit on the most difficult part of a defamation suit: damages.

In defamation suits, you can recover your actual damages (economic damages), and damages for mental anguish and punitive damages. This would mean that you could recover the value of any business you lost as a result of the restaurants statements about you and an amount to punish the restaurant for making such statements.

These type of claims are not typically large and you should not expect to make much money out of it unless you have absolute proof that you lost a contract because of it.

Customer: replied 3 years ago.

ok, last questions on this

would a lawyer consider this on a percentage fee.?


the advertiser who is suing me, told the restaurant.

The advertiser is taking me to small claims court. this case, i will win, my contract has been tested before in this regard.

I would have to sue the advertiser, who told the restaurant owner that false statement, and then restaurant for repeating this false statement.

My reason for the letter is so they will stop saying it to anyone.'


So, i sue them together? or just the advertiser, just the restaurant


I see. the letter needs to read something more like the following:

"on ______ date, your employee stated '____________' to Mr. X. This statement is untrue and defamatory. This statement is per se defamatory and an outright lie which has damaged my reputation. I demand that you and your employees immediately CEASE AND DESIST further defamatory statements regarding my business."

That's all you should say (less is more).

When you sue, you sue everyone involved. The restaurant, the advertiser, and the waitress.

In regard to whether an attorney would take this on a contingency basis, most likely not. Because damages are generally low in a defamation suit, a lawyer will not take the case on a contingency basis.

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