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Lee v. Makhnevich

Topic(s): Class Actions
Internet Free Speech - Miscellaneous

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A New York dentist included in the stack of forms that are given to all new patients a form agreement by which each patient gave up the right to criticize the dentist publicly, including on any Internet blog or review web site; the same form assigned to the dentist the copyright in anything that the patient may later write about the dentist. When a patient later posted on Yelp and other review sites a complaint about being overcharged for a filling, and about the dentist’s failure to provide the necessary paperwork to the patient’s insurance company, the dentist sent a “takedown” notice to the review sites, claiming that the posting violated her copyright. The dentist also sent the patient a series of invoices demanding payment of $100 for each day the “copyrighted” complaints continued to appear online. Public Citizen filed a class action complaint, on behalf of all of this dentist’s patients, seeking a declaration that the agreement is null and void under New York law and that it is a misuse of copyright law; the complaint also sought an injunction against imposing the agreement on future patients.

In response to the complaint, the company that created the form, Medical Justice, announced that it was withdrawing the form and recommending that its customers stop using it. The dentist moved to dismiss on the ground that there was insufficient evidence of a real case or controversy, because she never really meant to enforce her threat to enforce the clause. The court denied the motion, but during the year that the motion was pending, the dentist moved abroad; the dentist then failed to comply with discovery and stopped communicating with her lawyer, who withdrew from the case.