Wright v. A-1 Exterminating Co. (Ex parte Wright)

• Decision Date: 17 October 2014
• Docket Number: 1130538.,1130537
• Citation: 166 So.3d 618
• Parties: Ex parte Jeffrey WRIGHT. (In re Jeffrey Wright v. A–1 Exterminating Company, Inc., et al.) Ex parte Myron K. Allenstein et al. (In re Myron K. Allenstein et al. v. A–1 Exterminating Company, Inc., et al.).
• Court: Alabama Supreme Court

166 So.3d 618

Ex parte Jeffrey WRIGHT.

(In re Jeffrey Wright

v.A–1 Exterminating Company, Inc., et al.)

Ex parte Myron K. Allenstein et al.

(In re Myron K. Allenstein et al.

v.A–1 Exterminating Company, Inc., et al.).

1130537

1130538.

Supreme Court of Alabama.

Oct. 17, 2014.

Thomas F. Campbell and D. Keiron McGowin of Campbell Law PC, Birmingham; and Paul Alan Levy and Adina Rosenbaum, Public Citizen Litigation Group, Washington, DC, for petitioners.

Clifton E. Slaten, Jason J. Baird, and G.R. Trawick of Slaten Law, P.C., Montgomery, for respondents.

Opinion

WISE, Justice.

The petitioners, the plaintiffs in two separate cases below, filed petitions for a writ of mandamus requesting that this Court direct the trial court to rescind its January 7, 2014, protective order and its January 22, 2014, order compelling immediate compliance with that protective order. They then filed amended petitions requesting that this Court direct the trial court to rescind its February 21, 2014, and February 27, 2014, amended protective orders. We grant the petitions and issue the writs.

Factual Background and Procedural History

On December 14, 2012, Jeffrey Wright and Myron K. Allenstein filed separate complaints against A–1 Exterminating Company, Inc. (“A–1 Exterminating”); Terry Buchanan; Edward Wrenn; and David Wrenn (hereinafter collectively referred to as “A–1”).¹ In the complaints, the plaintiffs alleged that, on the date of the initial termite bonds issued to the plaintiffs, A–1 Exterminating entered into agreements with the plaintiffs in which it agreed to identify and recommend the appropriate services to protect the plaintiffs' houses or property from termites; that the plaintiffs had paid for the initial service, the issuance of the termite bond, and annual renewal premiums; that, during subsequent periodic visits to the subject properties, A–1 sprayed liquids and either represented to the plaintiffs or led the plaintiffs to believe that those applications were treatments for termites; that, during the last two years, A–1 had admitted that the periodic sprays were not to prevent or control termites; and that Buchanan, a State-licensed pest-control operator who worked for A–1 Exterminating, had admitted that the spray was a regular, watered-down pesticide that might only be strong enough to kill ants and possibly spiders. The plaintiffs also alleged that A–1 had led them to believe that, after a proper and adequate periodic inspections, the subject properties were free and clear of active or previous infestations of wood-destroying organisms, including termites; that A–1 had led them to believe that the properties had been treated to prevent termite infestation and damage; and that no initial termite treatment had been applied at the subject properties and that A–1 had never applied a termite treatment at the properties. The plaintiffs further alleged that, to the extent any house had actually received a partial “vaccination

” for termites, the chemical had worn off and no effective barrier had been placed between the house and the soil either initially or after the partial “vaccination ” had occurred and that that fact was concealed from the plaintiffs. Finally, the plaintiffs alleged:

“Because Plaintiff's HOME did not receive a vaccination

and due to the prevalence of termites in central Alabama, hidden infestations are the presumed consequence and the ongoing and continuous latent damage that termites will cause as the result had resulted in an ongoing and continuous injury to the

HOME from the date of the initial service to present which has been compounded by [A–1] skipping thorough, professional, and required annual inspections to detect and stop infestation and damage and instead focus on the useless and deceptive sprays to induce renewal payments.”

The two complaints included counts alleging fraud, including promissory fraud; breach of warranty; negligence, including negligence per se, and wantonness; breach of contract; and negligent training, supervision, and retention. It also included a request for “equitable relief, including unjust enrichment.”

Wright's case, case no. CV–12–900782, and Allenstein's case, case no. CV–12–900784, were assigned to different judges. Later in the day on December 14, 2012, the day the complaints were filed, Wright filed a first amended complaint in case no. CV–12–900782 that included class-action allegations. Also, on that same day, Allenstein filed a “First Amended Mass Action Complaint” in case no. CV–12–900784, and that amended complaint named as plaintiffs Allenstein and numerous other persons, including Wright. Subsequently, the trial court entered an order consolidating the two cases.

On March 5, 2013, A–1 filed motions for protective orders in both cases. In those motions, A–1 requested that the trial court enter

“a protective order or otherwise to bar and enjoin Plaintiffs and Plaintiffs' counsel from extrajudicial references to the circumstances of the above-styled case, to require Plaintiffs' counsel to remove all mention of the above-styled case and the surrounding circumstances of the above-styled case from its website, Facebook page, social media (including electronic social media), and related web search engines; and otherwise refrain from referencing this case and/or its surrounding circumstances outside of court.”

In the motions for a protective order, A–1 asserted:

“1. A–1 has learned that Plaintiff's [sic] attorneys have prominently featured the subject-matter of this case (A–1's annual sprays at customer's houses) on that law firm's web site ... The Plaintiff's [sic] attorney's version of this case is defamatory, contains egregious errors of fact, uses sensationalistic and inflammatory terms, and is plainly written to influence prospective jurors in this case and attract clients for the Plaintiffs' law firm. The extrajudicial references to the above-styled case on Plaintiff's [sic] attorney's website violates Alabama Rules of Professional Conduct 3.6 and 4.1.

“2. The Plaintiffs' attorney's skewed vision of events in this case claims that A–1's annual sprays are a ‘fraud,’ that A–1's customer letters concerning the annual sprays ‘is actually another fraud,’ that A–1 has never performed a proper termite prevention treatment at its customers' houses, and that A–1's customers have the choice of suing now ‘or let A–1 Exterminating and its owners get away with a fraud that has drained East Alabama of tens of millions of dollars over the years.’ (Exhibit 1, web page from Plaintiffs' law firm's web site).

“3. Apart from the obvious untruths, the web site is transparently intended to influence prospective jurors. The web site is inflammatory and will taint any prospective venire. The web site is clearly designed with the dual intent of tainting prospective jurors and attracting additional clients for the Plaintiffs' law firm.

“....

“7. In addition, a Google search of ‘A–1 Exterminating’ shows that the link to file aforementioned Plaintiffs' attorney's web site is the fifth entry on Google. (Exhibit 5, Google web page). A Google search of ‘A–1 Exterminating lawsuit’ (the search term appears, without prompting, on a dropdown menu) shows that three of the first five entries are links to web sites or Facebook pages operated by the Plaintiffs' attorney's law firm. Because Google places links according to paid revenue, it appears that Plaintiffs' attorneys may have paid consideration to Google to place this information in a prime place on Google.”

A–1 argued that the Web sites were highly prejudicial to it; that there was “no justifiable reason for the extrajudicial references to the above-styled case on the web site reference above, except to attract clients for the Plaintiffs' law firm and/or to prejudice potential jurors”; and that “A–1's business reputation and operations are being damaged by the Plaintiffs' attorney's pretrial tactics.”

The plaintiffs filed oppositions to A–1's motions for a protective order. In their oppositions, the plaintiffs argued that the motions for a protective order were an attempt to restrict the free-speech rights of the plaintiffs and their attorneys; that the stories included on the law firm's Web site and in social media “comment upon the evidence concerning public trials where [plaintiffs' attorney's law firm] represented the Plaintiff in a case with identical claims”; that the complaints and amended complaints in this case are public records and include detailed statements of the allegations; and that “the facts are contained within dozens of public complaint files concerning A–1 Exterminating, Co., Inc. or its owners and licensees that are on file with the Alabama Department of Agriculture and Industries (‘ADAI’) which regulate[s] this business and the individual defendants.” The plaintiffs also disputed A–1's allegations regarding how the Google search engine worked.

A–1 subsequently filed three supplements to its motions for a protective order and included additional exhibits and arguments in support of the motions. In the second supplemental motion for a protective order, A–1 asserted:

“On November 4, 2013, Birmingham television station WBRC–TV 6 aired a ‘sting operation’ ¹ which purported to show that A–1 performed deficient termite inspections at its customers houses. This ‘sting operation’ clearly was prepared with Plaintiffs' counsel's collaboration, if not outright instigation.

“____________________

“ ¹ The term ‘sting operation’ comes from the Plaintiffs' attorney.”

A–1 went on to assert that the “sting operation” was objectionable on several grounds; that the “sting operation” contained “flagrantly erroneous information”; that the “sting operation” had damaged its business operations and business reputation; and that the “sting operation” had “poisoned the jury venire in Etowah County and has prejudiced A–1's right to a fair trial in this case.”

On January 7, 2014, the trial court entered the following protective order, which carried the styles of both case...