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Public Citizen is being sued but not silent

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About a year ago, the blogosphere was alight  with discussion of an "Paul Levy"important statute of limitations decision from the federal court in Philadelphia, rejecting a libel suit brought by Arthur Alan Wolk, a well-known trial lawyer specializing in aviation accidents, against Walter Olson, a conservative blogger whose Overlawyered blog focuses on cases and lawyers that illustrate his support for the cause of tort deform and, indeed, his broad opposition to various forms of social legislation.  Not content to pursue his arguments against that ruling on appeal, Wolk has filed a new lawsuit naming not only the original defendants but their lawyers and several other individuals and organizations.

In an April 2007 blog post, Olson’s blog questioned whether Wolk might have entered a settlement that underpaid his client to get scathing opinion about Wolk vacated, and whether the potential conflict of interest had been fully vetted.  Wolk, insisting that the blog post was false in several ways, brought suit in May 2009 in Pennsylvania state court against Olson and others and invoked the discovery rule to avoid the one-year statute of limitations for libel suits by alleging that he had not discovered the critical blogs until he Googled himself in April 2009.  The complaint itself set forth the blog post, and attached it as an exhibit, showing April 8, 2007 as the date of publication.  The defendants removed the case to federal court and sought dismissal of the suit as untimely, noting that Pennsylvania, like most states, applies a one-year statute of limitations to libel claims.  The court, accepting as true Wolk’s allegation about when he actually learned about the alleged defamation, nevertheless applied the mass media exception to the discovery rule and held that Wolk could not sue based on claims of ignorance about criticisms that were widely available to the public.
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Blue Cross / Blue Shield objects to having its “name and brand” identified in study without its permission

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Jay McQuaide, the Vice-President of Corporate Communications for Massachusetts Blue Cross Blue Shield, recently sent a stiff complaint to local doctors who published a study in the Annals of Emergency Medicine reporting how doctors on its mental health panel responded (or, more specifically, failed to respond) to calls from patients needing immediate appointments for treatment of depression.  McQuaide complained about the fact that the study mentioned Blue Cross Blue Shield in concluding that doctors on its network were not providing sufficient outpatient care to patients after their release from local emergency rooms.

Upon seeing a press release about the study, McQuaide dispatched the following complaint: “We are VERY concerned about the use of BCBSMA’s name and brand in a published study without BCBSMA authorization. We’d like to talk with you about that.” My colleague Sid Wolfe at Public Citizen’s Health Research Group recently took McQuaide to task for his censorship efforts.

Because McQuaide’s LinkedIn profile characterizes him as a “Seasoned communications professional”   it is surprising that he doesn’t understand that having a brand name does not mean that a company can prevent others from discussing the company or criticizing its products or services.  McQuaide apparently told a reporter who called to inquire about his warning that his company can actually use its rights in its brand name to protect itself from being studied or, at least, from being identified in the study.

But then, Massachusetts companies seem to have a thing for abusing trademark law to bully critics who calling public attention to their shortcomings.  We recently won summary judgment against Massachusetts software company Jenzabar which has been dragging some documentary filmmakers through hundreds of thousands of dollars in litigation expenses because they had the audacity to use Jenzabar’s name on a web page about Jenzabar.  Jenzabar has appealed.  Stay tuned.

Paul Alan Levy is an attorney for Public Citizen. This is cross-posted from the Consumer Law & Policy Blog.

Tweet this! Another win for Internet freedom of speech

Coventry First is in the viatical business.  It buys life insurance policies hoping to profit from payment of the insurance proceeds when the insured dies.  It recently got a spate of publicity for its trademark action against one of its critics who anonymously set up a parodic Twitter account, using the Twitter name coventryfirst, to publish a series of messages focusing on the ghoulish aspect of Coventry First’s business —the sooner the insured dies, the better the return on the investment.  As one blogger noted,  “it has been criticized as an industry that basically bets on death.” Coventry then sent a subpoena to Twitter demanding the identity of the account holder.

"Twitter lawsuit Public Citizen" We at Public Citizen have defended consumers’ rights to use trademarks in domain names,  Facebook account names, titles and meta tags of web sites and web pages that criticize the trademark holder.  The ability to put the company or product name in those locations is important both because it identifies the subject of the criticism and, in many cases, may help consumers who are using search tools to find information about companies to find criticisms as well as the companies’ own self-aggrandizing web sites.  We have also been concerned about efforts to overcome anonymity based on legal claims without a realistic chance of success because it puts speakers at risk of retaliation for speaking out against powerful and well-connected companies and politicians, and our client was worried about what she considered to be Coventry First’s pleasure at using its economic clout against perceived enemies.  We were thus happy to help the Twitter user defend herself against the suit.  We thus undertook to file a motion to quash the subpoena.
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