WHEELING — Two attorneys and one of their clients are suing Gov. Jim Justice and Attorney General Patrick Morrisey over a new legal advertising law set to take effect next month.
Alesha Bailey, Stephen P. New and Steven M. Recht alleging the law violates the First Amendment and 14th Amendment. The complaint originally was filed May 4 in U.S. District Court for the Southern District of West Virginia, but computer error placed ut in the wrong court. That case was voluntarily dismissed and refiled the same day in the Northern District.
The Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act was signed into law March 7 and goes into effect June 5, according to the suit.
Morrisey
The plaintiffs claim the act prohibits any legal advertisement that fails to identify itself as a paid advertisement, the sponsor of the advertisement, the lawyer or firm that will represent clients. It also prohibits ads billedf as a "consumer medical alert," "health alert," "consumer alert," "public service health announcement," or "substantially similar phrase, the suit says.
The act violates the First Amendment by imposing prohibitions and requiring disclosures that are unrelated to any state interest in preventing consumer deception and by censoring truthful representations.
The plaintiffs claim, for example, the act prohibits the use of the term recall "when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency," when the vast majority of recalls occur without a government agency order or an agreement between the agency and the manufacturer.
Even the federal Food and Drug Administration defines recalls as voluntary actions taken by companies at any time to remove defective drug products from the market, according to the complaint.
The act also violates the 14th Amendment because it treats certain speakers differently than others without substantial justification, the complaint states.
Bailey claims that by restricting and burdening legal advertising in West Virginia, the act infringes on her First Amendment right to receive truthful, non-misleading information about drugs and medical devices that have harmed people and might lead to litigation.
New and Recht claim the act infringes on their right to communicate truthful information about prescription drugs and medical devices that have harmed people. They claim they want to continue to use legal advertising to inform clients in need of legal representation as a result of harms suffered from prescription drugs or medical devices.
Morrisey spokesman Curtis Johnson said the office was served May 13.
"We will review the complaint and respond further at the appropriate time," he told The West Virginia Record.
Scott Segal, one of the attorneys representing the plaintiffs, declined further comment.
The plaintiffs are seeking the court to declare the act is invalid, to issue an order permanently enjoining the defendants from enforcing the act; and all costs and fees incurred in the suit. They are represented by Segal and Robin Jean Davis of The Segal Law Firm; and Robert S. Peck of the Center for Constitutional Litigation. The case has been assigned to District Judge John Patrick Bailey.
U.S. District Court for the Northern District of West Virginia case number: 5:20-cv-00090