Premier Comp Solutions, LLC v. Penn Nat. Ins. Co., 2012 WL
1038818 (W.D. Pa.)
Premier sued defendants for violations of the Lanham Act and
various state-law claims. The court
dismissed the Lanham Act claim and remanded the rest. Premier offers health-related services useful
to institutions; defendants are entities that provide health insurance and
related services, some of which overlap with Premier’s. Specifically, defendant Hoover had a contract
with the other defendants, PNI and Inservco to perform services similar to
Premier’s.
A PNI/Inservco employee in Pennsylvania sent an email to a
number of Hoover and Inservco employees about payments to Premier, suggesting
that Premier was committing Medicare fraud and that the FBI was reviewing the
situation, and directing them to deny payments for any billings from Premier. The Medicare fraud/FBI statements were false. This email was forwarded on to a number of
other employees, including one who discussed it with an outside party related
to the municipality of Monroeville, PA, which was wondering why Inservco had
stopped paying Premier’s invoices. The
information spread telephone-style to other clients in PA, with some extra
additions (e.g., that Premier’s business model was not ethical because Premier
used providers that weren’t allowed under PA’s worker’s comp act).
The court held that Premier hadn’t sufficiently shown use in
commerce to avoid summary judgment. The communications
were all intrastate. Although Premier
operated outside Pennsylvania, it didn’t identify anyone outside Pennsylvania
as having received the email or having been told about the misrepresentations
in the email.
Separately, summary judgment was appropriate because there
was no “commercial advertising or promotion.”
The false statements were not sufficiently disseminated to the relevant
purchasing public to constitute advertising or promotion within the industry. The initial email went only to defendants’
employees, and those employees told three other people, who told a couple of other
people. In this case, the defendants’
employees to whom the email was sent were not the relevant purchasing public. Inservco and PNI employees weren’t the
employers buying insurance/worker’s comp services who’d be interested in
plaintiff’s services. The subsequent
dissemination to five people wasn’t enough in light of Premier’s claims to
provide services in all 50 states and its evidence that it had hundreds of
current and potential clients, along with evidence that Inservco claimed 600
clients. No reasonable jury could find
sufficient dissemination.
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