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Reed Elsevier Cleared of Conspiracy

MUSKOGEE, Okla. (CN) - Publishing giant Reed Elsevier cannot be sued for allegedly diverting law firm website visitors to competing, lead-buying attorney websites through malware, a federal judge ruled.

U.S. District Judge James Payne on Monday dismissed the company from a class action brought by four law firms in June 2014.

Lead plaintiff Anthony L. Allen, with Allen & Wisner of, Muskogee, sued Reed Elsevier and Plano-based Internet marketing firm IM Solutions, alleging trademark infringement, tortious interference and civil conspiracy .

Allen claimed the defendants' pop-up advertisements can be displayed even if pop-up blocking software is in place, because of a hidden browser plug-in.

"The pop-up does not disclose that it originates elsewhere, and it invites a prospect to enter contact details and 'get legal advice,'" the complaint stated. "When a prospective client submits information using the pop-up, IM Solutions immediately routs the prospect's information to defendant Reed Elsevier. Reed Elsevier promptly contacts the prospect to say that the prospect has been matched with the 'firm' of IM Solutions, which is not a law firm at all. Meanwhile, IM Solutions forwards the prospect's contact details to a lead-buying lawyer."

But on Monday, Payne ruled that the plaintiffs failed to allege sufficient facts to show Reed Elsevier "made any misrepresentation to consumers that would cause a likelihood of confusion" regarding their trademark claim.

"Plaintiffs assert that Reed made misrepresentations to consumers because 'Reed told the prospect 'we have matched you with the following firm' that Reed claimed had been randomly selected; when in fact, Reed essentially referred the prospect back to IMS," the opinion states. "These statements, however, are irrelevant to the Lanham Act claim because they have no bearing on whether the customer was confused about the origin of the pop-up advertisement."

In dismissing the tortious interference claim, Payne disagreed with the plaintiffs' argument that the "mere fact" that consumers sought out their websites sufficiently created a prospective relationship.

"Consumers' visits to their websites create nothing more than a mere hope that the consumers will ultimately contract with plaintiffs for legal services," the opinion states. "The law is clear that such a hope or wish is not sufficient to allege a prospective business relationship. A plaintiff must show a likelihood or probability that a contract would have resulted. Plaintiffs have not alleged facts which would allow the Court to make the inference that a contract with the visiting consumers is likely or probable."

Payne concluded that the plaintiffs failed to allege a civil conspiracy. He was not persuaded by alleged contractual arrangements between Reed and IMS to drum up business.

"(N)owhere do plaintiffs allege that Reed had any knowledge of the pop-ups or how the leads were being generated," the opinion states. "Such an ordinary business relationship, without more, does not constitute a conspiracy. Plaintiffs must plead that Reed had a specific intent to commit the unlawful or illegal act. To the contrary, plaintiffs' complaint makes clear that Reed had no knowledge of the alleged underlying unlawful activities."

Reed Elsevier did not respond to a request for comment Wednesday.

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