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Bevan & Associates, LPA, Inc. v. Dewine

United States District Court, S.D. Ohio, Eastern Division

February 27, 2018

BEVAN & ASSOCIATES, LPA, INC., et al., Plaintiffs,
v.
RICHARD MICHAEL DEWINE, et al., Defendants.

          Jolson, Magistrate Judge

          OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Motions for Summary Judgment filed by Plaintiffs (ECF No. 38), Defendant Ohio Attorney General Mike DeWine (ECF No. 46), and Defendants Thomas H. Bainbridge, Jodie M. Taylor, and Karen L. Gillmor, in their official capacities as commissioners of the Industrial Commission of Ohio, and Sarah Morrison, in her official capacity as Administrator of the Ohio Bureau of Workers' Compensation (collectively, “Agency Defendants”) (ECF No. 47).

         For the reasons that follow, the Court DENIES Plaintiffs' Motion for Summary Judgment, GRANTS Defendant Ohio Attorney General's Motion for Summary Judgment, and GRANTS the Agency Defendants' Motion for Summary Judgment.

         I. BACKGROUND

         The Ohio law regulating attorney solicitation of workers' compensation claimants provides, in relevant part:

No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission.

Ohio Rev. Code § 4123.88(A). It also provides that claim files are “not public records, ” and are kept “for the exclusive use and information of the commission and the bureau in the discharge of their official duties[.]” Ohio Rev. Code §§ 4123.88(B)-(C). An accompanying regulation, Ohio Admin. Code 4121-2-01(B), provides in relevant part:

No person who solicits or who causes claims to be solicited shall be allowed to practice or represent parties before the industrial commission or the bureau . . . . No person other than an attorney in good standing may render advice or services in the preparation or presentation of a claim for compensation arising under the workers' compensation laws of Ohio if a fee for such advice or services is to be received from or charged against the one having such claim.

Ohio Admin. Code 4121-2-01(B).

         Plaintiffs contend that this regulatory scheme creates a blanket ban on solicitation- meaning, in their view, all advertising-by workers' compensation attorneys that is impermissible under the First Amendment. (ECF No. 38 at 1). Defendants contend that the statute neither prohibits solicitation nor advertising; instead, it maintains the privacy of workers' compensation claimants by regulating access to the flow of government-held information. (ECF No. 46 at 1).

         Ultimately, because the statute and its accompanying regulations purely target noncommunicative conduct, not speech, Plaintiffs' First Amendment challenge cannot succeed.

         A. Factual Background

         The following facts are not in dispute. Plaintiffs are a law firm and its principals practicing in the field of workers' compensation and Social Security disability benefits. (ECF No. 1 at ¶¶ 6-8, 25-28). They frequently use targeted mailings to promote their services to potential workers' compensation clients. (ECF No. 1 at ¶¶ 21-23). They compile the list of mailing recipients by collecting the addresses and phone numbers of workers compensation claimants from a journalist-an entity entitled under Ohio Revised Code § 4123.88(D) to receive such records. (Id. at ΒΆ 21.) Plaintiffs ...


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