Bevan & Associates, LPA, Inc. et al v. DeWine et al

Filing 67

ORDER denying 38 Plaintiffs' Motion for Summary Judgment; granting 46 Motion for Summary Judgment; granting 47 Motion for Summary Judgment. This case is DISMISSED in its entirety. Signed by Judge Algenon L. Marbley on 2/27/2018. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BEVAN & ASSOCIATES, LPA, INC., et al., :
:
Plaintiffs,
:
:
v.
:
:
RICHARD MICHAEL DEWINE, et al.,
:
:
Defendants.
:

Case No. 2:16-cv-746
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the Motions for Summary Judgment filed by Plaintiffs
(ECF No. 38), Defendant Ohio Attorney General Mike DeWine (ECF No. 46), and Defendants
Thomas H. Bainbridge, Jodie M. Taylor, and Karen L. Gillmor, in their official capacities as
commissioners of the Industrial Commission of Ohio, and Sarah Morrison, in her official
capacity as Administrator of the Ohio Bureau of Workers’ Compensation (collectively, “Agency
Defendants”) (ECF No. 47).
For the reasons that follow, the Court DENIES Plaintiffs’ Motion for Summary
Judgment, GRANTS Defendant Ohio Attorney General’s Motion for Summary Judgment, and
GRANTS the Agency Defendants’ Motion for Summary Judgment.
I.

BACKGROUND

The Ohio law regulating attorney solicitation of workers’ compensation claimants
provides, in relevant part:
No person shall directly or indirectly solicit authority, or pay or give anything of value to
another person to solicit authority, or accept or receive pay or anything of value from
another person for soliciting authority, from a claimant or employer to take charge of, or
represent the claimant or employer in respect of, any claim or appeal which is or may be
filed with the bureau or commission.
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OHIO REV. CODE § 4123.88(A).

It also provides that claim files are “not public records,” and

are kept “for the exclusive use and information of the commission and the bureau in the
discharge of their official duties[.]” OHIO REV. CODE §§ 4123.88(B)-(C). An accompanying
regulation, Ohio Admin. Code 4121-2-01(B), provides in relevant part:
No person who solicits or who causes claims to be solicited shall be allowed to practice
or represent parties before the industrial commission or the bureau . . . . No person other
than an attorney in good standing may render advice or services in the preparation or
presentation of a claim for compensation arising under the workers’ compensation laws
of Ohio if a fee for such advice or services is to be received from or charged against the
one having such claim.
OHIO ADMIN. CODE 4121-2-01(B).
Plaintiffs contend that this regulatory scheme creates a blanket ban on solicitation—
meaning, in their view, all advertising—by workers’ compensation attorneys that is
impermissible under the First Amendment. (ECF No. 38 at 1). Defendants contend that the
statute neither prohibits solicitation nor advertising; instead, it maintains the privacy of workers’
compensation claimants by regulating access to the flow of government-held information. (ECF
No. 46 at 1).
Ultimately, because the statute and its accompanying regulations purely target
noncommunicative conduct, not speech, Plaintiffs’ First Amendment challenge cannot succeed.
A.

Factual Background

The following facts are not in dispute. Plaintiffs are a law firm and its principals
practicing in the field of workers’ compensation and Social Security disability benefits. (ECF
No. 1 at ¶¶ 6-8, 25-28). They frequently use targeted mailings to promote their services to
potential workers’ compensation clients. (ECF No. 1 at ¶¶ 21-23). They compile the list of
mailing recipients by collecting the addresses and phone numbers of workers compensation
claimants from a journalist—an entity entitled under Ohio Revised Code § 4123.88(D) to receive
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such records. (Id. at ¶ 21.) Plaintiffs provide this information, as well as information gleaned
from other sources, to a bulk mail service company that prepares and sends the mailings. (Id. ¶ at
22.)
In February 2016, a journalist working with Plaintiffs was visited by agents of the Bureau
of Workers’ Compensation. Eventually, the Bureau served the journalist with a subpoena for all
records related to contracts with and payments from Plaintiffs. (Id. at ¶ 30). Plaintiffs therefore
believe that their advertising activities are under investigation by the Bureau of Workers’
Compensation and the Ohio Attorney General. (Id. at ¶ 31).
B.

Procedural Background

Plaintiffs filed this action on July 29, 2016, seeking to challenge Ohio Revised Code §
4123.88 and Ohio Administrative Code 4121-2-01(B) on the basis that the provisions interfere
with their First Amendment Rights to send advertisements to workers’ compensation claimants.
(ECF No. 1).
The Defendant Ohio Attorney General and the Agency Defendants filed separate Motions
to Dismiss (ECF Nos. 29, 30), and on June 15, 2017, this Court issued an Order denying both
Motions. (ECF No. 40).
Currently before the Court are three Motions for Summary Judgment filed by Plaintiffs
(ECF No. 38), Defendant Ohio Attorney General Mike DeWine (ECF No. 46), and the Agency
Defendants (ECF No. 47).
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might

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affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
This Court therefore asks “whether ‘the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 25152). The mere existence of a scintilla of evidence in support of the opposing party’s position will
be insufficient to survive the motion; there must be evidence on which the jury could reasonably
find for the opposing party. See Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476,
479 (6th Cir. 1995). In evaluating a motion for summary judgment, the evidence must be viewed
in the light most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712
F.3d 321, 327 (6th Cir. 2013). Therefore, for purposes of Plaintiffs’ Motion, the Court will view
the facts in the light most favorable to Defendants, and in evaluating both the Attorney General’s
Summary Judgment Motion and the Agency Defendants’ Summary Judgment Motion, the Court
will consider the facts in the light most favorable to Plaintiffs.

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III.

ANALYSIS

We begin with the text of the statute and accompanying regulation. Ohio Revised Code §
4123.88(A) provides that “[n]o person shall directly or indirectly solicit authority, or pay or give
anything of value to another person to solicit authority, or accept or receive pay or anything of
value from another person for soliciting authority, from a claimant or employer to take charge of,
or represent the claimant or employer in respect of, any claim or appeal which is or may be filed
with the bureau or commission.”

OHIO REV. CODE § 4123.88(A).

Similarly, Ohio

Administrative Code 4121-2-01(B) refers to attorneys “who solicit[]” or “who cause[] claims to
be solicited.”

OHIO ADMIN. CODE 4121-2-01(B).

Plaintiffs urge that the Court read this

language as prohibiting not merely solicitation of workers’ compensation claimants using illbegotten government records, but instead as a prohibition on all workers’ compensation attorney
advertising—from targeted mailings to television advertisements to billboards. (ECF No. 59 at
8).
That interpretation is belied by the text of the statute, which by its plain language targets
solicitation. There is a difference between advertising and solicitation: “advertising” denotes a
form of mass communication, whereas “solicitation” envisions a targeted interaction. In Went
for It, the Supreme Court carefully drew a distinction between the two terms with regard to
targeted solicitation of accident victims: “an untargeted letter mailed to society at large is
different in kind from a targeted solicitation; the untargeted letter involves no willful or knowing
affront to or invasion of the tranquility of bereaved or injured individuals and simply does not
cause the same kind of reputational harm to the profession. . . .” Fla. Bar v. Went For It, Inc.,
515 U.S. 618, 630 (1995). The distinction between these categories is also borne out in the
American Bar Association Model Rules of Professional Conduct (compare Rule 7.2 (governing

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attorney advertising) with Rule 7.3 (governing attorney solicitation)) and the Ohio Rules of
Professional Conduct (same), as well as in the level of constitutional protection the respective
forms of communication garner. Truthful advertising of routine legal services is plainly protected
by the First and Fourteenth Amendments. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
But “the State—or the Bar acting with state authorization—constitutionally may discipline a
lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose
dangers that the State has a right to prevent.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447,
449 (1978).
And here, the statute does not ban all solicitation; instead, it bans solicitation based on
information about workers’ compensation claimants compiled by the State of Ohio. If the Court
were to view the particular provisions to which Plaintiffs object in isolation, they could fairly be
read as banning all attorney solicitation of workers’ compensation clients—neither

Ohio

Revised Code § 4123.88(A) nor Ohio Administrative Code 4121-2-01(B) specifically refer to the
workers’ compensation claimant rolls maintained by the State. But, as the Supreme Court has
advised, “[s]tatutory construction . . . is a holistic endeavor.

A provision that may seem

ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because
only one of the permissible meanings produces a substantive effect that is compatible with the
rest of the law.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., 484 U.S. 365,
371 (1988) (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987); Weinberger v. Hynson,
Westcott & Dunning, Inc., 412 U.S. 609, 631-632 (1973); Jarecki v. G.D. Searle & Co., 367 U.S.
303, 307-308 (1961)). Here, the entire statute is directed at maintaining privacy of workers’
compensation claimants. Ohio Revised Code § 4123.88(A)—the challenged provision—does
something similar to what the Plaintiffs say it does: it bans certain types of solicitation. OHIO
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REV. CODE § 4123.88(A). But Ohio Revised Code § 4123.88(B) clarifies that the “records
described or referred to” in § 4123.88(A) “are not public records. . . . Any information directly or
indirectly identifying the address or telephone number of a claimant, regardless of whether the
claimant’s claim is active or closed, is not a public record.” OHIO REV. CODE § 4123.88(B).
Similarly, Ohio Revised Code § 4123.88(C) notes that notwithstanding certain exceptions,
“information kept by the commission or the bureau pursuant to this section is for the exclusive
use and information of the commission and the bureau in the discharge of their official duties,
and shall not be open to the public nor be used in any court in any action or proceeding therein,
unless the commission or the bureau is a party to the action or proceeding.” OHIO REV. CODE §
4123.88(C). Finally, sections 4123.88(D) and (E) define the contours of the exception to the
general rule of claimant privacy, noting specifically that a journalist may seek the information if
she states that disclosure is “in the public interest.” OHIO REV. CODE §§ 4123.88(C)-(D). One
cannot read these provisions in seriatim and escape the conclusion that the statute is intended to
protect claimant privacy, not to hinder attorney speech. As a result, § 4123.88(A) is properly
read as the enforcement mechanism of the statute; in effect, it makes use of ill-begotten claimant
information illegal.
Practical circumstances also inform this Court’s interpretation of the statute. Here, the
claimant information cannot be found anywhere other than the list maintained by the State. As a
result, without the protected claimant information, there can be no targeted communication—and
no solicitation. It is that fact that distinguishes this case from Edenfield v. Fane, in which the
United States Supreme Court struck down a Florida law banning Certified Public Accountants
from “direct, in-person, uninvited solicitation” of potential clients. 507 U.S. 761, 764 (1993).
The challenged law in Edenfield had therefore prohibited accountants from cold-calling
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individuals, such as business executives, to explain the services they could provide. Id. at 763.
The Court held that such a law was impermissible under the First Amendment because the
soliciting accountants sought “to communicate no more than truthful, non-deceptive information
proposing a lawful commercial transaction.” Id. at 765. Here, unlike in Edenfield, soliciting
attorneys could not identify potential clients based on information publicly available in a
telephone book or on the internet. The only way in which an attorney could “directly or
indirectly solicit” workers’ compensation claimants is to steal the information or to use a
journalist intermediary—both avenues of dubious legality.
And a reading that merely prohibits the use of ill-begotten information does not target the
expressive content of the mailings but instead targets the conduct of using the information. The
regulation of conduct is permissible under the First Amendment. See, e.g., Expressions Hair
Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017) (noting that “it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by means of language, either spoken,
written, or printed” (quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547
U.S. 47, 62 (2006) (internal quotation marks omitted))).
Even if it were a close call, principles of constitutional avoidance would disfavor an
interpretation such as Plaintiffs’ that creates such grave constitutional issues. See Zadvydas v.
Davis, 533 U.S. 678, 689 (2001) (noting the “‘cardinal principle’ of statutory interpretation” that
when a court is faced with a statute with serious doubts as to its constitutionality, it will “‘first
ascertain whether a construction of the statute is fairly possible by which the question may be
avoided’”) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). The Court therefore declines to
read the statutory scheme as a blanket ban on workers’ compensation attorney advertising, and
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instead as a ban on solicitation using private workers’ compensation data that had been collected
and maintained exclusively by the State.
IV.

CONCLUSION

Because the statute targets conduct, not speech, Plaintiff’s First Amendment challenge
cannot succeed as a matter of law.

This Court therefore DENIES Plaintiffs’ Motion for

Summary Judgment, GRANTS Defendant Ohio Attorney General’s Motion for Summary
Judgment, and GRANTS the Agency Defendants’ Motion for Summary Judgment. This case is
therefore terminated in its entirety.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: February 27, 2018

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