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Judge allows suit challenging contract intended to squelch bad online reviews

Posted Apr 23, 2013 6:10 AM CDT
By Debra Cassens Weiss

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A federal judge in Manhattan has refused to dismiss a proposed class-action lawsuit challenging a dentist’s confidentiality agreement that barred negative online reviews by patients.

U.S. District Judge Paul Crotty refused to dismiss the suit filed by patient Robert Lee, report Forbes and Legal Blog Watch, which summarized a story by the New York Law Journal. Lee was represented by Public Citizen in the suit against Dr. Stacy Makhnevich, who had threatened to sue Lee for his online comments about his dental bill.

Before treatment for an infected tooth in the fall of 2010, Lee signed a "Mutual Agreement to Maintain Privacy” in which he waived any right to comment publicly on dental services and assigned all copyrights in online comments to the dentist. When Makhnevich discovered Lee’s comments, she threatened suit and sought $100 a day for copyright infringement. Lee sued instead, claiming the contract is unconscionable and misuses copyright law to suppress expression. The suit also contends public comments are a fair use under the copyright law.

Lawyers for Makhnevich and her dental office had argued the suit should be dismissed because there is no controversy, but the argument is “specious,” Crotty wrote in the March 27 opinion. The defendants created the controversy by seeking to enforce the agreement, he said.

“This lawsuit about a toothache and a dentist’s attempt to insulate herself from criticism by patients has turned into a headache,” Crotty wrote. “After appealing to his dentist for pain relief, plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist.”

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