On context at the intersection of mass tort litigation and intellectual property.

There isn’t much of an intersection of mass tort litigation and intellectual property law, but here’s a tidbit that falls squarely into that slim territory:

In August of 2010, Johnson & Johnson subsidiary DePuy Orthopaedics recalled a replacement hip device—the embattled metal-on-metal ASR—for a variety of reasons. Predictably, lawsuits followed, leading to the formation of a federal multidistrict litigation matter in the United States District Court for the Northern District of Ohio. Last month, a possible settlement arrangement was presented to the court. Before the court will consider the proposal, however, the plan is to be voted upon by the victims themselves. If a sufficient number of victims vote to approve the deal, then it will advance to the bench for review.

Meanwhile, on November 22, Judge Katz, who is presiding over the MDL, issued an order that raised at least one of this blawger’s eyebrows. “The vast majority of plaintiff lawyers who have participated in this MDL and in the cooperating jurisdictions have done so in good faith,” Judge Katz wrote. “This Court appreciates the efforts of those lawyers who zealously represented the interests of their clients in this case and who participated in this MDL and in the cooperating state court jurisdictions.”

Unfortunately, there have been a number of potentially misleading websites and website postings regarding this case and this settlement. *** Because of these websites, it is difficult to actually find the official website for this settlement which is www.usasrhipsettlement.com. Please be advised that any other website that purports to be a DePuy ASR settlement website is not authorized. Only DePuy itself can rightfully use its name in any website address in this context.

This Court takes very seriously the ability of the ASR patients and their counsel to obtain accurate information regarding this settlement and make informed decisions free of deceptive advertising or other misinformation from third parties. (See ABA Model Rules of Professional Conduct, Rules 4.2, 7.1, and 7.3). *** This Order is entered to protect ASR patients and their counsel from misinformation.

All for avoiding misdirection.

All for avoiding misdirection.

“Only DePuy itself can rightfully use its name in any website address in this context.” Did you see that?

Now, I’m all for the protection of victims against misinformation or misdirection, the efficient conducting of court business, and other wholesome things… but Judge Katz’s decree gives me pause.

His Honor appears to be making an ad hoc ruling about such subject matter that typically is itself the subject of plenary litigation—the use of a company name in a URL. Granted, the ruling applies (as I read it) only to those who are party to suits in the MDL (and counsel… really, it’s counsel Judge Katz is speaking to; his citation of the Rules of Professional Conduct makes that clear), which lessens the troubling aspect of the order. Still, it’s troubling.

I think it’s the notion of “this context” that troubles me. What is the context? I see three possible contexts: (1) the entire World Wide Web/universe; (2) the pending MDL; and (3) the possible settlement of lawsuits in the MDL.

Because Judge Katz referred to a context, it seems certain that he doesn’t mean (1), because that’s really no context at all (and that would be overreaching for sure). Even the limited context of the multidistrict litigation seems too large, though; because the litigation is not over—and because victims can still retain counsel to sue DePuy and potentially participate in this settlement or another, or take their cases to trial instead—a law firm that still seeks to sign up clients might very well wish to (continue to) use the term “DePuy” in a URL (a practice that is indeed common in the mass tort realm). Therefore, I suspect that the context is in fact the possible settlement of the matter—or, indeed, even narrower than that: any website that “purports to be a DePuy ASR settlement website.”

But then the problem isn’t really that law firms with clients in the MDL are using the name “DePuy” in URLs, it’s really that there are websites fraudulently purporting to be places where victims sign up to vote on the proposed plan or obtain some other benefit. What actually happens on such a site—and how it benefits a law firm that maintains it—is anyone’s guess, but it’s the actual provision of misinformation that the court is, or should be, worried about, not the domain name of such a nefarious site.

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