No Piecemeal Appeals In Google Ad Law Advertising Litigation

The Tennessee Supreme Court dismissed without prejudice a premature appeal

This appeal involves a dispute between two law firms over an internet marketing campaign. On August 24, 2018, the trial court granted the plaintiffs, Larry R. McElhaney, II, and the Rocky McElhaney Law Firm, P.C., a partial summary judgment on the issues of liability under the Tennessee Personal Rights Protection Act and agency. The defendants, Hughes & Coleman, Joseph Marshall Hughes, Lee Lawrence Coleman, Thomas R. Lewis, Clixsy, LLC, and Richard Corey Vandenberg, filed a motion to revise or alter or amend the partial summary judgment. On January 4, 2019, the trial court denied the defendants’ motion to revise or alter or amend. The trial court also determined that there was no just reason for delay and directed the entry of a final judgment under Tennessee Rule of Civil Procedure 54.02 as to the issues decided in the January 4, 2019 order. On January 17, 2019, the defendants filed their notice of appeal.

At this juncture

Here, the trial court has ruled only on the issues of liability under the Tennessee Personal Rights Protection Act and agency. It has not determined the amount of damages owed under the Tennessee Personal Rights Protection Act or addressed the plaintiffs’ other causes of action, including violation of the Tennessee Consumer Protection Act, arising out of the same operative facts.

…piecemeal litigation is disfavored in Tennessee. Judicial economy favors having all issues reviewed in a single appeal, and we see no reason why an appeal in this case should not await the resolution of all issues.

Nashville Post had a story on the litigation. 

A Wilson County judge has signaled he would rule in favor of local injury attorney Rocky McElhaney in his dispute with a competitor over advertising practices.

McElhaney filed suit more than a year ago alleging that law firm Hughes & Coleman had taken out Google ads that appeared to be for the McElhaney firm but included URLs and phone numbers that led potential customers to Hughes & Coleman instead.

According to a transcript of the proceedings before Chancellor C.K. Smith in Lebanon last week, the judge largely agreed with McElhaney’s argument.

“The use of Rocky McElhaney Law Firm’s name without permission to deceptively get Rocky McElhaney’s potential clients caused Plaintiff to suffer economical loss and therefore actual damages,” Smith said.

Hughes & Coleman hired digital advertising agency Clixsy to do marketing for the law firm. In court, Hughes & Coleman argued that it “did not run ads intentionally or knowingly with keyword insertion,” the name of the technique employed by Clixsy, but the chancellor said the firm was liable for actions taken on its behalf.

“Rocky has created a name unparalleled in personal injury law in Middle Tennessee, so Hughes & Coleman’s trading on his name is all the more egregious,” Cynthia Sherwood, who represented McElhaney in the case, said in a release. “We feel vindicated by this ruling and look forward to the damages phase of the case.”

Sherwood said McElhaney is seeking $2.5 million in compensation and other damages in the case.

“My only comment is that this case is not over, that the litigation is continuing,” Hughes & Coleman co-founder Lee Coleman said.

News Channel 5 has a video report on the case. In the interview, plaintiff McElhaney claims that, when you google his law firm, the first listing takes you to the competitor defendant law firm’s site and telephone number. (Mike Frisch)