A federal judge has refused to dismiss a defamation suit brought by two law professors who claim that West Publishing harmed their reputations when it falsely identified them as the authors of a poorly researched treatise update.
In the suit, professors David Rudovsky of the University of Pennsylvania Law School 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."
Their 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.
Over the two decades since the treatise was written, Bazelon said, the professors have routinely added about 150 new cases each year in annual updates. But the supplement published in December 2008, he said, added just three new cases and failed to take note of any of the cases that had been reversed in the past year by the state Supreme Court.
Lawyers for West argued that the case should be dismissed on the grounds that venue in the Eastern District of Pennsylvania is improper since the contracts between West and the professors explicitly limited venue to the courts of Minnesota.
But Senior U.S. District Judge John P. Fullam concluded that the forum-selection clause in the contract was "not an obstacle" to venue in Pennsylvania because the professors are not alleging any breach of contract.
In a June 4 opinion in Rudovsky v. West Publishing Corp., Fullam found that the case cannot be described as "arising under" the contract because the professors "are claiming that the defendants committed torts after the contract was terminated."
As a result, Fullam said, "at most, it appears that the defendants may be asserting that the contracts give rise to defenses against plaintiffs' claims, but that is not sufficient to invoke the forum-selection clause."
In a ruling handed down in April, Fullam refused to issue any injunction against West but strongly hinted that the professors had proven some of their claims and in the end could be entitled to money damages.
Fullam found that "the harm has already been done" and that no injunction was needed, but that the professors will likely succeed in proving their claims under the Lanham Act as well as state defamation claims.
"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 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 in order to complete their remedy, such relief would be just as effective after final hearing," Fullam wrote.
