Sometimes losing an early battle can feel like the beginning of winning the war.
Such was the case Thursday in the defamation suit brought by two law professors who claim that West Publishing falsely identified them as the authors of a publication that was so poorly researched it would harm their reputations if allowed to remain on library shelves.
The professors wanted an immediate injunction, but lost their bid for that. Nonetheless, the ruling could be read as a major setback for West because the judge seemed to declare that the professors have proven some of their claims and in the end could be entitled to money damages.
In refusing to issue any injunction to prevent further irreparable damage, Senior U.S. District Judge John P. Fullam found that "the harm has already been done" in his opinion in Rudovsky v. West Publishing Corp.
In the suit, professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener Law School claim that they did none of the work on the December 2008 supplement, or "pocket part," to their book, "Pennsylvania Criminal Procedure: Law, Commentary and Forms."
The professors demanded an injunction, arguing that West should be ordered to notify all recipients of the supplement that Rudovsky and Sosnov were not the authors and that any unhappy customers had the right to demand a refund.
The professors’ lawyer, Richard L. Bazelon of Bazelon Less & Feldman, argued that the supplement was a "sham" that offered almost nothing new to subscribers and that users of the book would mistakenly connect the poor quality to Rudovsky and Sosnov.
Now a federal judge has refused to issue any injunction.
But the four-page decision by Fullam appeared to provide only a empty victory for West.
Fullam seemed to strongly hint that the professors will likely succeed in proving their claims under the Lanham Act as well as state defamation claims, but cannot show that an injunction at this stage would do any good.
"Although plaintiffs had no role in authoring the pocket part, defendant West made it appear that they had indeed authored the pocket part, with aid from members of the publisher’s staff," Fullam wrote.
"To make matters worse," Fullam wrote, "the quality of that particular pocket part was not up to standard."
Fullam found that "few if any relevant court decisions were included in the publication," and that readers were "not informed that some cases cited in earlier volumes had since been reversed or modified."
But prior to the injunction hearing, Fullam said, West had already notified is customers that Rudovsky and Sosnov played no part in authoring the pocket part, and that the December 2008 version had errors and omissions that would be remedied in a soon-to-be-released version.
As a result, Fullam concluded that while the plaintiffs had proven they were harmed, they had failed to prove that they risked suffering any further irreparable harm.
"It seems clear that plaintiffs have established a right to some form of remedy - damages to reputation come to mind - but it would seem that the harm has already been done, and that, if plaintiffs do require further injunctive relief I order to complete their remedy, such relief would be just as effective after final hearing," Fullam wrote.
John Shaughnessy, a spokesman for West’s parent company, Thomson Reuters, issued a one-line statement that said: "We’re pleased with today’s result."
