Ascend Health Corp. v. Wells

NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute. Information contained in this entry is current as of the last event mentioned in the "Description" section below; additional proceedings might have taken place in this matter since this event.

Summary

Threat Type: 

Lawsuit

Date: 

05/03/2012

Status: 

Concluded

Location: 

North Carolina

Disposition: 

Dismissed (total)

Verdict or Settlement Amount: 

N/A
University Behavioral Health of Denton ("UBH") is a private psychiatric hospital in Texas owned by Ascend Health Corporation, where Brenda Wells, a North Carolina resident, was once treated. Dr. Khan is UBH's medical director, while Dr. Kresch is the President and CEO... read full description
Parties

Party Receiving Legal Threat: 

Brenda Wells

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Location of Party: 

  • Texas
  • New York
  • Delaware

Location of Party: 

  • North Carolina

Legal Counsel: 

John Bussian (The Bussian Law Firm, PLLC); Mark Prak, Charles Coble, Eric David (Brooks, Pierce, McLendon, Humphrey & Leonard LLP)
Description

University Behavioral Health of Denton ("UBH") is a private psychiatric hospital in Texas owned by Ascend Health Corporation, where Brenda Wells, a North Carolina resident, was once treated. Dr. Khan is UBH's medical director, while Dr. Kresch is the President and CEO of Ascend. Wells operates the blog page "Worst Hospitals in America: UBH/Mayhill" at http://ubhdenton.wordpress.com/ (she also owns ubhdentonsucks.com, which redirects to this blog page). Wells promotes this blog, criticizing UBH and its doctors, on social media sites like Facebook and Twitter and encourages readers to submit their own stories. 

On May 3, 2012, Ascend Health Corporation, UBH, and Drs. Khan and Kresch filed a complaint against Brenda Wells in the U.S. District Court for the Eastern District of North Carolina. In the complaint, the plaintiffs alleged five claims for relief: defamation under North Carolina law, violation of the North Carolina Deceptive Trade Practices Act, libel under Texas law, business disparagement under Texas law, copyright infringement, and civil conspiracy. With respect to the North Carolina defamation and Texas libel claims, the plaintiffs referred to statements on the blog in which Wells implied she was held against her will, the doctors were unqualified, the facilities were unsanitary, and more. With respect to the two business-related claims, the plaintiffs argued they suffered reputational harm as a result of the false and defamatory commentary posted on Wells's blog. The plaintiffs also argued that Wells reproduced UBH and Ascend's copyright by taking images of facilities and doctors from their websites and copying the images on her blog. 

In response, Wells filed motions to dismiss on June 15, 2012. First, Wells argued that under North Carolina's choice of law, Texas substantive law rather than North Carolina law should govern this dipute. Wells also argued that the plaintiffs' copyright infringement claim should be dismissed under Rule 12(b)(6) as the plaintiffs failed to prove that they had valid copyrights in the images. Most notably, Wells moved to dismiss the Texas libel and business disparagement claims under the Citizen Participation Act, Texas's anti-SLAPP statute. To support the dismissal of the libel claim, Wells argued that: the allegations in the complaint were not set out with sufficient particularity to satisfy the statute; statements on the blog were non-actionable expressions of opinion and/or were non-defamatory; the blog statements were substantially true; plaintiffs could not prove that Wells acted with the requisite level of fault; the statements are commentary on an issue of public concern; Section 230 immunizes Wells from liability for third-party content on her blog; and the statute of limitations bars claims arising from many of the statements.

The plaintiffs filed an opposition to Wells's motion to dismiss on July 6, 2012. The plaintiffs relied primarily on a choice of law argument, arguing that federal procedural law and North Carolina substantive law govern, which, along with public policy, preclude application of the Texas anti-SLAPP statute. The plaintiffs also argued that Wells is an editor, not an "information service, system, or access software provider," and therefore is not eligible for Section 230 immunity. Further, the plaintiffs argued that the "matter of public concern" privilege does not apply because Wells's blog is not a "publication by a newspaper or other periodical." After arguing that the defamation claims not barred by statute of limitations in Texas or North Carolina, the plaintiffs argued that the complaint's allegations are sufficient to support a case for defamation per se. The plaintiffs also noted the completion of copyright registration to sustain the copyright infringement claims.

On July 23, 2012, Wells replied, reaffirming her argument that Texas's law and anti-SLAPP statute are applicable to this case. Wells also reasserted that plaintiffs failed to meet the burden of proof under the anti-SLAPP statute, and therefore their claims should be dismissed under Rule 12(b)(6) for failure to state a claim.

The court granted in part and denied in part the motions to dismiss in an order on March 14, 2013. The court dismissed both North Carolina claims after finding that Texas substantive law governs under North Carolina's choice of law doctrine. The court also dismissed the civil conspiracy claim and copyright infringement claim, finding that Wells's use of the images for criticism was transformative, noncommercial and constituted fair use. The court denied the motion to dismiss the plaintiff's claims for Texas libel and business disparagement, rejecting the applicability of Section 230. As Wells herself posted to the blog and significantly altered some content that originated with third parties, the court held that Section 230 immunity did not cover her content. Wells's fair reporting privilege argument was also rejected; the court held that as a blogger Wells would not be entitled to the privilege, distinguishing blogs from newspapers and other traditional news sources. In Judge Britt's words, "Postings on the blog are not published at regular intervals. They are not composed of articles, news items, or the like."  

On April 22, 2013, the plaintiffs filed a notice of voluntary dismissal with prejudice, thereby dismissing all remaining claims against Wells. As of July 2013, Wells's blog and critical commentary remained available.

Details

Content Type: 

  • Text

Publication Medium: 

Blog

Subject Area: 

  • SLAPP
Court Information & Documents

Jurisdiction: 

  • North Carolina

Source of Law: 

  • United States
  • Texas
  • North Carolina

Court Name: 

United States District Court for the Eastern District of North Carolina: Eastern Division

Court Type: 

Federal

Case Number: 

4:12-CV-00083-BR

Relevant Documents: