When Professor Rebecca Tushnet, a former Professor at Georgetown University Law Center Intervened – It Was Granted

Professor Rebecca Tushnet Blogs about her Motion to Intervene with the help of Public Citizen

I intervene in SanMedica v. Amazon to disclose clickthroughs

Rebecca Tushnet’s 43(B)log

False advertising and more

Wednesday, April 22, 2015

Amazon doesn’t want you to know how to apply 1-800’s IIC rule
SanMedica Int’l, LLC v. Amazon.com, Inc., No. 13-cv-00169 (D. Utah filed publicly Apr. 15, 2015)

The parties agreed to dismiss the case with prejudice on the day the redacted version of the opinion was released, so we won’t get more. I’ll have more to say later, but: Amazon continued to run ads saying “buy SeroVital [SanMedica’s supplement product] at Amazon” in response to keyword searches on Google etc. even after it removed SeroVital from Amazon due to policy violations. The court declined to grant summary judgment on initial interest confusion, finding that

It is undisputed that during the Advertising Period, approximately [redacted] sponsored ads were generated. Out of those, there were approximately [redacted] clicks on the sponsored ads. The click to impression rate of the sponsored ads is approximately [redacted] percent. This rate sets the “upper limit on how often consumers really were lured in such a fashion.” Amazon contends that of the [redacted] users that clicked on the ads for SeroVital, only [redacted] made any purchase at Amazon.com, a measly [redacted] percent.” Although consumer purchases constitute [redacted] percent, the focus is not on the purchase rate but instead on the [redacted] percent rate that consumers were lured to Amazon’s website. [Redacted]-percent, although a relative small number, is not so insufficient to suggest that there was no likelihood of confusion.

I do not think it is consistent with the rule of law to leave us to guess at the meaning of this. In the Tenth Circuit, 1-800 governs the IIC analysis, and we know from that case that 1.5% clickthrough isn’t sufficient to make confusion likely; we also know that 7% confusion is usually not enough. But what is enough? Is this one of the unusual cases where 7% is enough? These redactions make it impossible to put this case in its proper context.

Separately, the court rejects SanMedica’s 43(a) false advertising claim for failure to show materiality. SanMedica argued that the ads were literally false so that it didn’t need to show materiality separately, but the court disagreed:

Amazon’s misrepresentation was that consumers could purchase SeroVital on Amazon.com. But when consumers clicked on the sponsored ads, they were taken to a landing page that did not contain for sale any SeroVital products. Amazon’s misrepresentation thus related to the marketing of the product, that is, the channel through which a consumer may purchase the product. Amazon’s misrepresentation did not discuss the quality or characteristics of SeroVital which could potentially affect consumers’ purchasing decisions. Under the undisputed facts on this motion, no reasonable jury could find that Amazon’s misrepresentation likely influenced a consumer’s purchasing decision.

This seems … wrong. Bait and switch is false advertising, too (something the court acknowledges in its analysis of state law). The misrepresentation that they could buy that particular product at Amazon was material to the people who clicked–that’s the theory of trademark infringement! Alternatively, I suppose we could read the court as saying that we don’t know whether consumers cared at all whether they were buying SeroVital—that is, whether they cared about the source/producer—but there can still be trademark infringement, because trademark doesn’t have a materiality requirement. Why is this sensible?

If you want to Talk to a Judge, Head for the Beach House, not the Court House

Professor Tushnet is a professor at Georgetown University Law Center, specializing in intellectual property, consumer protection, and the First Amendment.7 She also has a blog that explores “false advertising issues and other subjects of intellectual property……………………….. “8

Subsequent to the public filing of the April 15, 2015 Memorandum Decision and Order, Professor Tushnet states that she blogged about how the redacted information between Plaintiffs and Amazon “prevented readers from understanding the Court’s application of the law of interest confusion.”9

Professor Tushnet thus argues she has an interest in the information that influenced the court’s decision in the area of interest confusion law.

Therefore, Professor Tushnet seeks intervention to challenge the protective order that allowed certain information to be redacted from the public opinion.10*3

ANALYSIS

Under Federal Rule of Civil Procedure 24(b), “the court may permit anyone to intervene who: . . . (B) has a claim or defense that shares with the main action a common question of law or fact.”11 Rule 24 also requires the court to “consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”12

These restrictions withstanding, permissive intervention is a matter that is largely decided “within the sound discretion of the district court”13 and its finding will only be disturbed upon a “showing of clear abuse.”14

Neither Plaintiffs nor Professor Tushnet dispute the timeliness of Professor Tushnet’s attempt to intervene.15 What is in dispute, however, is (1) whether Professor Tushnet satisfies Rule 24’s requirement of a common question of law or fact, and (2) whether she has the requisite standing for intervention.

1.  Common Question of Law or Fact Is Satisfied

The Tenth Circuit has held that permissive intervention is the correct procedure for non-parties who seek access to judicial records16 Permissive intervention requires that there be a question of law or fact in common with the underlying action. Some circuit courts have held that “[t]here is no reason to require . . . a strong nexus of fact or law when a party seeks to intervene only for the purpose of modifying a protective order.”17 But the parties dispute whether a strong nexus of fact or law is required in the Tenth *4

The Tenth Circuit addressed permissive intervention for non-parties who seek to challenge protective orders in United Nuclear Corporation v. Cranford Insurance Company.18

Plaintiffs argue that the language in United Nuclear‘s holding requires “some nexus of fact or law between the proposed intervenor’s lawsuit and the instant case.”19 They contend that Professor Tushnet “is not involved in a case of similar facts or law; she merely has an academic interest in certain aspects of the summary judgment decision and the parties’ briefing.”20

Professor Tushnet, on the other hand, argues that the Plaintiffs’ reading “twist[s] the Tenth Circuit’s statement . . . into a requirement that (a) the intervenor needs to show some connection to the case beyond an interest in sealed documents from the case . . . or (b) that intervention is limited to individuals who seek to use the documents in collateral litigation.”21

Neither reading is correct, according to Professor Tushnet.

Plaintiffs’ interpretation of United Nuclear unjustifiably narrows the Tenth Circuit’s relaxed standards for intervenors who wish to challenge a protective order. In United Nuclear, collateral litigants sought intervention “for the sole purpose of seeking modification of the protective order and the order sealing the record……………………. “22

The Tenth Circuit held that “[w]hen a collateral litigant seeks permissive intervention solely to gain access to discovery subject to a protective order, no particularly strong nexus of fact or law need exist between the two suits.”23 Consequently, Plaintiffs argue that only collateral litigants seeking to challenge protective orders should be allowed to rely on a nexus of fact or law that is not particularly strong.24*5

Though United Nuclear is concerned with collateral litigants, it does not specify that only collateral litigants are excused from showing a strong nexus of fact or law. The decision does not address any intervenors other than collateral litigants.25 The parties have cited no Tenth Circuit precedent regarding other types of intervenors, but decisions from other circuits can help.26 The Seventh Circuit found that “every court of appeals to have considered the matter has come to the conclusion that Rule 24 is sufficiently broad-gauged to support a request of intervention for the purposes of challenging confidentiality orders.”27 “The right to intervene to challenge a closure order is rooted in the public’s well-established right of access to public proceedings.”28 Specifically dealing with the “common question of law or fact” element of Rule 24(b), the Eighth Circuit stated that where a party is seeking to intervene for the limited purpose of unsealing judicial records, “it is the public’s interest in the confidentially of the judicial records that . . . [is] a question of law . . . in common between the Parties [to the original suit] and the [would-be intervenor].”29 The Third Circuit went so far as to say that any party challenging a confidentiality order “meet[s] the requirement of [Rule 24] that their claim must have ‘a question of law or fact in common’ with the main action.”30

Here, Professor Tushnet’s interest in the redacted information to educate the public regarding interest confusion law, founded in the public’s common law right of access to judicial records, satisfies this legal predicate for intervention. *6

1.  Article III Standing Is Satisfied

When the original party drops out of the litigation, “the intervenor will then have to establish its own standing to continue pursuing the litigation.”31 As the proceedings between Plaintiffs and Amazon have ended and the case is now closed, Professor Tushnet must establish her own standing to intervene. Article III requires a showing that the intervenor “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,”32 that the injury “fairly can be traced to the challenged action,” and “is likely to be redressed by a favorable decision.”33 The parties only contest two of the three elements of standing: (a) whether Professor Tushnet suffered an injury in fact and (b) whether the injury is likely to be redressed by a favorable decision.34 Therefore only the first and third prongs of the Article III analysis are addressed below.

(a)  Professor Tushnet has an injury in fact for her Motion to Intervene

Plaintiffs argue that Professor Tushnet “has no legally protected interest” and thus does not have an injury in fact to establish Article III standing.35 Plaintiffs rely on Oklahoma Hospital Association v. Oklahoma Publishing Company,36 which held that a nonparty did not have standing to challenge a protective order.37

Though standing was ultimately denied in Oklahoma Hospital, it was because the potential intervenors did not meet the third prong of Article III standing, not because they did not have an injury in fact.38 The court in Oklahoma Hospital acknowledged that a protective order prohibiting *7 access to documents constituted an injury in fact sufficient for Article III standing.39The party asserting its First Amendment right alleged that “were it not for the protective orders, the parties would be free to disseminate, and it would thereby be free to gather and publish, discovery documents not subject to those orders.”40 The Court found this to be “a sufficient allegation of injury in fact to satisfy the first requirement for standing……. “41 Because Professor Tushnet also alleges that were it not for the protective order she would be able to gather the information from the public opinion and disseminate her opinion on it through her blog, this is a sufficient allegation of injury in fact.

(a)  Professor Tushnet’s injury is likely to be redressed by a favorable decision 

For the third prong of the Article III analysis, Plaintiffs argue that because the sealed information Professor Tushnet seeks “meet[s] the definition of a trade secret or other categories of bona fide long-term confidentiality,” she has no right to it and thus has no method of redress.49 Plaintiffs rely on Bond v. Utreras 50 to conclude that a trade secret can be categorically withheld from the public.51 But a reading of Bond does not support this broad conclusion.52 Instead, Bond merely recognized that documents used in a court proceeding are “presumptively ‘open to public inspection unless they meet the definition of trade secret or other categories of bona fide long-term confidentiality.'”53 Bond does not create, or even rely upon, a special category for trade secrets that would save the trade secrets from the presumption of otherwise-public documents.54

Even if the redacted information in the April 15, 2015 Memorandum Decision and Order were trade secrets and made the protective order nearly impossible to reverse, Professor Tushnet’s claim would not automatically fail since the Supreme Court has granted plaintiffs standing in cases in which it eventually ruled against those plaintiffs on the merits of the case.55 The standard for “likely to be redressed by a favorable decision” does not require the court to determine if a favorable decision is *9 likely, but only whether a favorable decision is likely to redress the Professor Tushnet seeks intervention to make information public and redress her First Amendment injury. Because the information would be made public if the court granted her Motion to Unseal, Professor Tushnet’s injury is likely to be redressed by a favorable decision. Therefore, Professor Tushnet satisfies all the requirements for Article III standing.

ORDER

For the reasons set forth above, IT IS HEREBY ORDERED that Professor Tushnet’s Motion to Intervene is GRANTED.56 Professor Tushnet may file a motion to unseal within fourteen (14) days of this Memorandum Decision and Order.

Dated November 2, 2015.

BY THE COURT:

/s/

David Nuffer

United States District Judge

Candidate for Oklahoma Legislature Sues Over Sealed Mystery Libel

A libel lawsuit in which the alleged libel is sealed is like Hamlet without the Prince — or maybe like Othello with Iago’s slanders redacted.

Eugene Volokh |The Volokh Conspiracy | 6.4.2018 

Carl Parson is running in this month’s Republican Primary for the Oklahoma House of Representatives (District 8), as the one candidate challenging the incumbent.

Two years ago, he ran as well, unsuccessfully. During the 2016 campaign, Don Farley apparently wrote a letter to the local Chamber of Commerce that Parson thought was libelous, so Parson sued for libel.

Political candidates are generally free to do so, though to win they have to show that the speech was a knowing or reckless lie and not just a careless error. Besides damages, Parson also seems to be seeking an injunction ordering Farley not to say anything about Parson; Parson’s complaint states, in relevant part (emphasis added), Plaintiff alleges that there exists a likely probability of success on the merits of his claim for libel and/or false light; that irreparable harm and injury to Plaintiffs business reputation, and public confidence will be denied if an injunction is not granted; that it will not prejudice the Defendant to order him to refrain from any further statements about the Plaintiff; and, the public policy of Oklahoma as specified in [the statute defining libels] prohibits such defamatory statements and publications being made as alleged herein by the Don Farley.

WHEREFORE, Plaintiff prays judgment against Defendant Don Farley for damages, punitive damages, costs, temporary and permanent injunctive relief, and any such other relief as this Court may deem just and proper ….

That sort of injunction would not be permissible, but perhaps a narrower one, that would only ban repetition of statements specifically found to be libelous, might be permissible.

Of course, all this one might lead an observer to ask: What is this alleged libel that would lead the candidate to seek such a mighty remedy? Is it really libelous? Might it be opinion rather than a factual assertion? Might it be an accurate factual assertion? What does the decision to sue over this reveal about the character of the plaintiff?

But the observer in this case would be frustrated, because the libelous allegation has been sealed by order of the court. When Parson’s lawyers filed the lawsuit in Oklahoma state court, they moved to seal the attachment to the complaint that contained the alleged libel. The state court agreed, and when the case was removed to federal district court (because the parties are citizens of different states), the federal court inherited the seal. Now later documents in the case, such as defendant’s motions to dismiss and to compel, and plaintiff’s exhibit to his response to one of defendant’s motions, are sealed, too.

Such litigation in the dark is generally not allowed in the American court system, especially as to such central matters in a case. The same is true of libel cases, which are almost always litigated without sealing. Yet in recent months I’ve found several libel cases that have been partly or even completely sealed, and I’m trying to get them unsealed. I blogged in November about my motion to unseal in one such case; the court recently granted that motion, and I hope to write more about that soon. Just today, I sent in a similar motion to unseal the material in Parson v. Farley (thanks to my student Jenny Wilson for her help with it), seeking an expedited decision because of the impending election. Here is the heart of the argument:

When a political candidate is publicly criticized, and responds with a libel lawsuit, members of the public naturally have an interest in learning more about the case. Is the claim legitimate, or not? Is the alleged libel best characterized as an opinion or a factual assertion? If it is a factual assertion, is there evidence to support the assertion? If plaintiff is asking for an injunction suppressing the defendant’s future speech, is the request justified?

In nearly every libel case litigated in this country, citizens—and journalists who write to inform citizens—can begin to answer these questions by reading the open court record. But in this case, the public cannot effectively analyze any of these questions because the sealing order blocks access to the speech that underlies the case.

Of course, the primary responsibility for answering these questions belongs to this Court and a future jury. But as Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), makes clear, the public need not blindly trust judicial processes based on secret records. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Id. at 572. “A result considered untoward may undermine public confidence, and where the trial has been concealed from public view, an unexpected outcome can cause a reaction that the system at best has failed and at worst has been corrupted.” Id. at 571. This is true not just of access to in-person proceedings, but also of access to court records. See Section II below. And access is particularly important in this case because the plaintiff is running again for the Oklahoma House of Representatives (as he had been when the allegedly libelous statement was made in 2016), and he will be on the ballot in the June 26 primary.

Proposed intervenor Eugene Volokh is a law professor who writes for the Volokh Conspiracy, a prominent legal blog hosted by Reason Magazine …. He would like to have access to the full record in this case so that both he and members of the public may better understand (1) the plaintiff’s allegations that the defendant had libeled him, (2) the basis for the plaintiff’s apparent request for the extraordinary remedy of “order[ing the Defendant] to refrain from any further statements about the Plaintiff,” (3) the defendant’s arguments for why he should prevail, which appear to be set forth in his motion to dismiss or for summary judgment, ECF No. 46, and (4) the full basis for this Court’s Apr. 3, 2018 order, ECF No. 56, rejecting the defendant’s sealed motions to compel, ECF No. 47. And Volokh anticipates that members of the public may be interested in just what allegations would prompt a candidate for office to try to suppress citizen speech, by punishing the speech with a damages award and forbidding future speech using an apparently extremely broad proposed injunction…. The public has a common law and constitutional right to access these records; the Letter is the basis for the complaint, and the other sealed filings articulate the parties’ competing legal and factual arguments….

[I.] A motion to intervene is the proper tool for third parties to challenge a sealing order, and Volokh has Article III standing to intervene

“The courts have widely recognized that the correct procedure for a nonparty to challenge a protective order is through intervention for that purpose.” United Nuclear Corp v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990). The same is true of sealing orders. “[P]ermissive intervention under Rule 24(b) is an appropriate procedural vehicle for non-parties seeking access to judicial records in civil cases.” Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015); see also, e.g., SanMedica International v. Amazon Inc., 2015 WL 668022, *2 (D. Utah Nov. 2, 2015).

And Volokh has standing to intervene to unseal records, just as Harvard law professor Rebecca Tushnet was found to have such standing to intervene to unseal records in SanMedica. Were it not for the sealing order, Volokh would be able to “gather information” from the full and unredacted version of the complaint and “disseminate [his] opinion on it through [his] blog.” Id. at *3. This “is a sufficient allegation of injury in fact,” id., and it also shows redressability, because unsealing the document would “make information public and redress [Volokh’s] First Amendment injury,” id. at *4—since the letter in the complaint “would be made public if the court granted [his] Motion to Unseal,” Volokh’s “injury is likely redressed by a favorable decision.” Id.

Because this is a case seeking the unsealing of a document, rather than seeking to vacate a protective order, Young v. Glanz, 2018 WL 1588026 (N.D. Okla. Mar. 31, 2018) is not on point. When an intervenor challenges a protective order that restricts the speech of the parties, lifting the order might not redress the intervenor’s injury: Perhaps none of the parties would want to talk to the intervenor even in the absence of the order. Indeed, that was the basis for this Court’s decision in Young—the intervenors did not show redressability, partly because they did not offer evidence of a “party’s willingness to disseminate” the materials to them. Id. at *7.

But here, Volokh is seeking access to the court record. An order lifting the seal would redress his inability to access certain documents, because he would get the documents directly from the court file, regardless of the parties’ preferences. SanMedica, 2015 WL 668022, *4.