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A group of trade associations that teamed up with a publishing company has succeeded in stopping enforcement of a Maine state law against marketing to minors that exposed them to private lawsuits. Judge John A. Woodcock Jr. of the District of Maine issued an order dismissing the case on Wednesday after getting the parties to agree on language. He found that the plaintiffs proved that their lawsuit claiming the Maine Predatory Marketing Law “is overbroad and violates the First Amendment” would probably succeed. According to Woodcock’s order, Attorney General Janet Mills “has acknowledged her concerns over the substantial overbreadth of the statute” and “has committed not to enforce it.” Maine Independent Colleges Association, Maine Press Association, the NetChoice coalition of online business and trade groups and publishing company Reed Elsevier sued Gov. John Baldacci and Mills to stop the law from taking effect on Saturday. The groups asked the court to declare the Maine law unconstitutional and rule that the federal Children’s Online Privacy Protection Act, which protects the online privacy of children younger than age 13, pre-empts it. The plaintiffs also sued John Doe, which they defined as “an individual with the standing and intent” to file a private lawsuit against the plaintiffs for violating the law, to emphasize their vulnerability to private litigation. Woodcock’s order noted that Mills informed the court that the state legislature plans to reconsider the law when it reconvenes in January. He also warned private parties not to file lawsuits. “As a result, third parties are on notice that a private cause of action [under the law] could suffer from the same constitutional infirmaries,” Woodcock wrote. The law would have barred parties from “collecting, transferring, or using information from or about minors” for both commercial and noncommercial purposes without verifiable parental or guardian consent. The statute allowed private lawsuits and damages of up to $250 per violation or actual damages, whichever is greater, plus attorney fees. The law also gave judges the discretion to triple damages. The organizations believed the law would have barred newspapers from publishing stories about minors, such as stories about high school sports and honor rolls, and colleges from marketing to prospective students. Reed Elsevier joined the suit because its LexisNexis databases contain a variety of information about minors. The NetChoice group believed the law’s requirement for “verifiable parental consent” would make a wide range of marketing to minors unfeasible. The Maine state legislature was worried about drug companies using information they gathered from minors on the Internet to market prescription drugs, particularly for acne treatment, but the law went overboard, said Bruce Falby, a Boston litigation partner at DLA Piper, who argued the case for the plaintiffs. “It would have prevented anyone, for any legitimate First Amendment purpose, from communicating with minors and communicating information about minors,” Falby said. Falby also said his clients are gratified by the judges’ order because they wanted to deter third-party lawsuits. “We were worried about private causes of action,” Falby said. He also said that the plaintiffs plan to help the Maine state legislature rewrite the bill so it doesn’t violate the First Amendment. Maine assistant attorney general Thomas Knowlton, who helped represent Mills and the state in the lawsuit, said Mills decided not to enforce the law before the plaintiffs filed their lawsuit on Aug 26. “The attorney general acknowledged some concerns about overbreadth of the statute [in court filings],” Knowlton said. “That was her public comment on the statute.” No other state law has the “deadly combination” of the Maine law, said NetChoice executive director Steve DelBianco. The private right of action with statutory damages, plus a requirement for verified parental consent and an effective requirement to do age verification online, would harm e-commerce and online companies, DelBianco said. “Stir those together and that’s a deadly combination,” DelBianco said. “The industry is vigilant to head those off when they show up in state legislation.” DelBianco said no one knows how to do age verification in an online environment. He also said a private right of action “becomes a magnet for the plaintiffs’ bar.” “If this law had been allowed to proceed without the judge’s order you could imagine that the ambulance chasers in Maine would follow the yellow bus home from the local high school to find the next crop of plaintiffs,” DelBianco said.

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