A galvanized deck screw manufacturer sued a law firm that had placed a newspaper advertisement telling the public that they "may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck" if they used the company's screws. The law firm defended, claiming that California's law against lawsuits that restrict free speech applies here. At issue is whether an exemption in the law applies.
The NAM and the California Manufacturers & Technology Association filed an amicus letter urging California Supreme Court review of a lower court ruling that rejected the lawsuit. We urged clarification of the law regarding the kinds of advertising that lawyers may publish. We warned that the permissibility of lawyer advertising in recent years has led to more ads and a greater challenge in policing them. Our letter cited a recent study showing that many on-line sites about medical information appear legitimate but are actually lawyers posing as medical experts. Many routine searches produced results that are "dominated by Web sites paid for and sponsored by either class action law firms or legal marketing sites searching for plaintiff referrals."
We also argued that the advertisements at issue contain facts about the services being provided by the law firm, and consequently fall within an express exemption that would allow the manufacturer's suit. In addition, the ad provides information that serves to begin the process of delivering the lawyer's services, also an exemption that would allow the suit.
The NAM has been a long-time champion of free commercial speech and has opposed various efforts by the government to restrict it. In this case, however, we ask that the commercial speech of one person (a law firm) be responsible and fair in the context of calling into question the qualities of the goods or services of manufacturers or other companies, particularly when the speech proposes a commercial relationship that is designed to be in conflict with other existing commercial relationships.
The California Supreme Court on 7/30/08 agreed to hear this appeal, but ultimately rejected our argument. It found that the attorney ads were about the screws, not about a competitor of the law firm as required by the statutory language. In addition, the firm's promise to investigate was deemed not a statement of fact that might allow the suit, but a statement of what it will do if the reader responds to the ad. It thus appears that the California statute protects law firms that want to increase their business by making controversial statements about a business, like a manufacturer, that is not one of their competitors.