ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE
Plaintiffs' Amended Complaint, filed on August 1, 2014, brought five counts against four defendants. See DE 55. Many claims and defendants have been disposed of earlier in this litigation. The only remaining claims are: Count I for violation of the Lanham Act, 15 U.S.C. § 1125(a), and Count II for unfair competition.
Counts I and II of the Amended Complaint are based on two articles written by Defendant Novella and published online atsciencebasedmedicine.org. DE 55 at ¶¶ 24, 101. Both articles address the practice of Plaintiff Edward Tobinick ("Plaintiff Tobinick"), a doctor who provides medical treatment to patients with "unmet medical needs" via two institutes — "Edward Lewis Tobinick M.D.," a California medical corporation, and "INR PLLC," a Florida professional limited liability company — both doing business as the "Institute of Neurological Recovery" (collectively "Plaintiffs"). DE 55 at ¶¶ 2-4, 12. Novella published the first article, "Enbrel for Stroke and Alzheimer's" ("the First Article"), on May 8, 2013 in response to a piece published in the Los Angeles Times. DE 55-1 at 1. As Novella described it,
Id. The allegedly false statements in the First Article concern the viability of Plaintiff Tobinick's treatments, the scientific literature discussing those treatments, the size and locations of Plaintiff Tobinick's Institutes, and the categorization of Plaintiff Tobinick's practice as "health fraud." See DE 55 ¶¶ 54-56, 60-61, 63-64, 69-70, 71-72. Novella published the second article, entitled "Another Lawsuit To Suppress Legitimate Criticism — This Time SBM" ("the Second Article"), on July 23, 2014, after Plaintiffs filed the instant lawsuit. DE 55-5 at 1. In large part, the Second Article simply restates the content of the first. DE 55-1 ¶¶ 102-03. The only statement in the Second Article which Plaintiffs allege is false and misleading is Novella's statement, as characterized by Plaintiffs, that "there have been no double-blind placebo-controlled clinical trials of the treatment provided by the Plaintiffs."
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is genuine if "a reasonable trier of
In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir.2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
Defendant Novella argues that summary judgment should be granted in his favor on Count I, the Lanham Act claim, because the statements in the First and Second Articles are not commercial speech. See DE 251 at 4. The Lanham Act provides in relevant part:
15 U.S.C. § 1125(a)(1)(B) (emphasis added). The Eleventh Circuit has adopted "[t]he most widely-accepted test for determining whether something is `commercial advertising or promotion,'" Suntree Technologies, Inc. v. Ecosense Intern., Inc., 693 F.3d 1338, 1349 (11th Cir.2012), which was set forth in Gordon and Breach Science Publishers S.A. v. American Institute of Physics, 859 F.Supp. 1521 (S.D.N.Y.1994):
Id. at 1535-36.
Regarding the second prong of this test, the Supreme Court recently ruled that a plaintiff does not need to show defendant was in commercial competition with plaintiff to have standing under the Lanham Act. See LexMark Int'l, Inc. v. Static Control Components, Inc., ___ U.S. ___, 134 S.Ct. 1377, 1394, 188 L.Ed.2d 392 (U.S.2014) ("[W]hen a party claims reputational injury from disparagement, competition is not required for proximate cause; and that is true even if the defendant's aim was to harm its immediate competitors,
Regarding the first prong of this test, speech regulated by the Lanham Act "must at least fall within the meaning of `commercial speech' pursuant to First Amendment jurisprudence." Suntree Techs., Inc. v. EcoSense Int'l, Inc., 802 F.Supp.2d 1273, 1286 (M.D.Fla.2011) (collecting cases), aff'd, 693 F.3d at 1338. This is because the Act "was not intended to apply, and cannot constitutionally be applied, to representations other than those determined to be commercial speech." Gordon & Breach, 859 F.Supp. at 1533. Under the "`commercial speech' doctrine developed by the United States Supreme Court," commercial speech "is entitled to a lesser degree of protection than other forms of constitutionally guaranteed expression." Id. at 1536.
"Speech that does no more than propose a commercial transaction falls within the core notion of commercial speech, but other communications also may constitute commercial speech notwithstanding the fact that they contain discussions of important public issues[.]" Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 516 (7th Cir.2014) (internal citations omitted). In Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Supreme Court described commercial speech as "expression related solely to the economic interests of the speaker and its audience." In Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), which involved informational pamphlets addressing "important public issues such as venereal disease and family planning," the Supreme Court took an even more nuanced approach. Id. at 68, 103 S.Ct. 2875 (internal footnote omitted). In determining whether these pamphlets constituted commercial speech, the Supreme Court found it relevant that the communications were conceded to be advertisements, that they referred to specific products sold by the defendant, and that the defendant had an economic motivation for the speech. Id. at 66 & n. 13, 67, 103 S.Ct. 2875. It was "[t]he combination of all these characteristics" that led the Supreme Court in Bolger to conclude that the informational pamphlets constituted commercial speech. Id. at 67, 103 S.Ct. 2875. Thus, Bolger "suggest[s] certain guideposts for classifying speech that contains both commercial and noncommercial elements; relevant considerations include whether: (1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic motivation for the speech." Jordan, 743 F.3d at 517; see, e.g., Kleiner v. First Nat'l Bank of Atlanta, 751 F.2d 1193, 1203 n. 22 (11th Cir.1985) (relying on Bolger and holding, "[t]aken together, the defense of the Bank's business conduct, the underlying profit motive, and the invitation to opt out branded the telephone canvass as speech of commercial nature).
Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs' treatments. To the extent that the Second Article mentions Defendant Novella's practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.
The third and final factor from Bolger, whether there was an "economic motivation" for the speech, is the primary basis for Plaintiffs' opposition to summary judgment. See DE 272. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts. See DE 272 at 5; DE 272-1 at ¶ 3. The website on which the Articles were published (sciencebasedmedicine.org) is registered to SGU, although Defendant Novella's brother, Jay Novella, testified the website is actually owned by the New England Skeptical Society ("NESS"), a separate non-profit organization also controlled by the Novellas. DE 261-10 at 1820. Plaintiffs contend that SGU Productions, NESS, and the Articles are all part of an interrelated scheme to "funnel" money to Defendant Novella personally, and that the Articles are commercial speech in furtherance of this scheme. See DE 272 at 4-6, 13.
It is "settled or beyond serious dispute" that "[s]peech ... is protected even though it is carried in a form that is `sold' for profit, ... and even though it may involve a solicitation to purchase or otherwise pay or contribute money." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (emphasizing, that "[i]f there is a kind of commercial speech that lacks all First Amendment protection, ... it must be distinguished by its content."); see also Maverick Boat Co., Inc. v. Am. Marine Holdings,
The Court therefore finds that Defendant Novella's speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim. Accordingly, Defendant Novella is entitled to summary judgment on Count I.
"Under Florida common law, unfair competition is an `umbrella for all statutory and nonstatutory causes of action arising out of business conduct which is contrary to honest practice in industrial or commercial matters.'" Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-CV-775-T-24-TBM, 2012 WL 33155, at *4 (M.D.Fla. Jan. 6, 2012) (quoting Third Party Verification, Inc. v. Signaturelink, Inc., 492 F.Supp.2d 1314, 1325 (M.D.Fla. 2007)). "[A] party may claim unfair competition under a variety of theories, including trademark infringement, ... and tortious interference with business relations.... Therefore, there is no single set of `elements that apply uniformly to all claims of unfair competition.'" Id. (quoting Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 432 F.Supp.2d 1319, 1353 (S.D.Fla.2006)). "Accordingly, courts have applied elements from other established claims to unfair competition claims, where appropriate, on a case-by-case basis." Id.
In their Amended Complaint, Plaintiffs allege that Defendant Novella "published
For the foregoing reasons, it is hereby