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U.S. Appeals Court: Ohio Work Comp Solicitation Ban at Odds with Free Speech Law.

Byline: Stephanie K. Jones

U.S. Appeals Court: Ohio Work Comp Solicitation Ban at Odds with Free Speech Law

In siding with a law firm in a case involving access to workers' compensation claimant information and the use of that information for solicitation, the U.S. Court of Appeals for the Sixth Circuit has declared provisions of an Ohio state statute banning solicitation to be "incompatible" with the free speech clause of the First Amendment to the U.S. constitution.

The appellate court made that determination in Bevan & Associates, LPA, Inc. v. Yost, which was brought to the Sixth Circuit on appeal from the U.S. District Court for the Southern District of Ohio.

The case concerns language in a portion of Ohio's Revised Code s. 4123.88(A) which, as described by Circuit Judge John K. Bush in the Sixth Circuit's written opinion, states in pertinent part:

"'[n]o person shall directly or indirectly solicit authority' (1) to 'represent the claimant or employer in respect of' a worker's compensation 'claim or appeal,' or (2) 'to take charge of' any such claim or appeal."

The Ohio law firm of Bevan & Associates represents Social Security disability insurance and workers' compensation claimants. Prior to 2006, when the statute was revised, Bevan had obtained claimant names and addresses from the Ohio Bureau of Workers' Compensation through public records requests. It used that information, along with information derived from other sources, "to craft written solicitations targeted at workers' compensation claimants," according to the opinion.

With the addition of several amendments in 2006, the revised statute now generally prohibits access to claimant information. However, it also contains an exception under which journalists are able to seek certain information through public information requests, as long as "disclosure of the information sought is in the public interest."

The appeals court noted, however, "there is no explicit enforcement mechanism to ensure that the journalist actually uses the information in furtherance of the public interest."

After s.4123.88 was revised, "Bevan could no longer directly acquire claimant names and information from the Bureau. Instead, Bevan relied upon the journalist exception to gather that information," the opinion states.

Bevan began using journalists to gather the information it had previously gathered from the BWC on its own. However, in February 2016, one of the journalists Bevan routinely hired "received a subpoena from an Ohio grand jury that was investigating a possible violation of s. 4123.88." BWC had alleged that Bevan was obtaining claimant information unlawfully by paying the journalist.

Bevan then stopped advertising and sought declaratory judgment from the federal district court that s. 4123.88 is unconstitutional.

Following the discovery process both Bevan and the state of Ohio asked for summary judgment.

The state of Ohio, asserted, among other things, that the statute was intended to restrict the improper use of claimants' confidential information to solicit business but did not ban all solicitation. Therefore, it did not run afoul of the First Amendment.

The federal district court found that "read in isolation," the section "could be construed as a ban on all solicitation." However, the district court chose not to approach the case in that manner. Instead it decided to interpret the law as a ban on solicitation based on claimant information obtained illegally.

In essence, the district court avoided the question of unconstitutionality by looking at the solicitation ban through a narrow lens. It then "found as a matter of law that Bevan's lawsuit could not succeed," according to the appeals court.

Ohio had urged the appeals court to interpret the statute, as the district court did, "as a conduct regulation rather than a speech regulation."

The appeals court disagreed with the lower court's approach, finding the issue of how the information is obtained not to be relevant.

Circuit Judge John K. Bush wrote: "The solicitation ban is not saved by the argument advanced by the Appellee state officials that the constitutionally questionable language is part of a larger statutory scheme that, according to Appellees, Bevan violated by obtaining claimant information from the Ohio Bureau of Workers' Compensation in an allegedly unlawful manner."

Instead, the appeals court said the "the statutory text at issue is unambiguous." The plain language contained in the statute "does not contain limitations on the application of the solicitation ban," Circuit Judge Bush wrote. It "bars both in-person and written solicitation, with or without the use of ill-gotten claimant information."

The appeals court also predicted that the Ohio Supreme Court would similarly apply the plain meaning of the statutory language. That is that "the State has prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers' compensation claim or appeal."

According to the appellate judges, "[s]uch a prophylactic ban violates the First Amendment under Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988) and other relevant authority."

The appeals court also asserted that if the state's lawmakers had wanted to "limit the application of the ban on solicitation, they could have made explicit reference in that ban to the other statutory protections for claimant information contained within the subsequent divisions of the statute. They did not."

Ohio is free to develop other means to protect workers' comp claimant information, such as a ban on in-person solicitations by attorneys or by specifically prohibiting "solicitation based on illegally obtained information," the opinion states.

However, the statute as written, "works a complete ban on all in-person as well as written solicitation, conducted by any person, of workers' compensation claimants and thus is incompatible with the First Amendment."

The district court's decision was reversed and remanded "with instructions to enter summary judgment in favor of Bevan."
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Publication:Insurance Journal
Date:Jul 25, 2019
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