ATLANTA (CN) - Attorneys taking on publishing conglomerate Reed Elsevier have dismissed one claim for fraud from their class action against the British publishing giant. At the same time, the lawyer leading the plaintiff's side of the case said Reed Elsevier has refused to comply with discovery requests, a tune he expects will change when the Dekalb County judge presiding over the case issues a discovery order that is expected shortly.
The class action allegest that Lexis-Nexis Courtlink, owned by Reed Elsevier, and Georgia's Fulton County are running a mandatory e-filing system that violates the Georgia Constitution, primarily because it hands off a key public responsibility to a foreign, private publisher willing to charge large amounts for acting as the electronic gateway to the courthouse.
"This class action arises from an illegal scheme perpetuated by defendant Reed Elsevier Inc. dba Lexis-Nexis Courtlink Inc. to impose an unlawful, mandatory e-filing system upon litigants in Fulton County State and Superior Courts and to charge excessive and unauthorized fees in connection therewith," the complaint states. "Defendant Fulton County has participated in Lexis' illegal scheme by promulgating a 'pilot program' authorizing Lexis' unlawful mandatory e-filing scheme and excessive fees without the statutory authority to do so."
The attorneys seek to dismiss fraud and misrepresentation claims in count six of their complaint.
In count six, lawyer Steven Newton claims that "defendant Lexis knowingly misrepresented in its online agreement that its subscribers are entitled to the remedy of a refund of fees unlawfully charged and collected by defendant. Defendant Lexis now claims that any unlawfully collected fees are not refundable. Nevertheless, in order to induce potential users into entering into its online agreement and incurring its usage fees associated therewith, defendant Lexis offered users the 'exclusive remedy' of a refund of any fees which result in damages to the user."
Newton explained in an interview why he sought the partial dismissal.
"We are not satisfied that we have sufficient evidence to support these claims," Newton said.
He added that Lexis-Nexis and Fulton County have not been forthcoming with data he needs for discovery, but he believes that will change once DeKalb County Superior Court Judge Robert J. Castellani sets a scheduling order for discovery.
"What we know currently is not worth fighting for today, but I suspect we will have an overwhelming body of evidence in six months," Newton said. "We may reassert fraud then."
The dismissal comes on the heels of a recent victory for the plaintiffs where Castellani rejected Reed Elsevier's argument that the Georgia Constitution does not guarantee access to the state's courts.
"The plaintiffs have stated facts that could support a claim against the Fulton courts and third parties acting together with the Fulton Courts, that the e-filing system as instituted is an unreasonable burden to litigants seeking redress in the courts of Fulton County," said Dekalb County Superior Court Judge Robert Castellani in his ruling.
The judge also shot down arguments by lawyers for Reed Elsevier suggesting that the Georgia Constitution does not guarantee a right of access to Georgia's courts.
"Based on Georgia Supreme Court precedent and the 14th Amendment to the U.S. Constitution, citizens of the State of Georgia do indeed have a right of access to the courts to resolve their disputes and neither the Legislature nor any court of this state can erect a total bar to that access or a bar that unreasonably restricts that right of access," the judge wrote.
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