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Multi-State Suits Target 'Bait & Switch' Online Legal Ads

Texas Lawyer, July 24, 2017

By: Greg Land, Daily Report

Two brothers in charge of a Texas-based legal advertising and referral company say they're in a "David and Goliath" battle against law firms suing them in three states over claims including deceptive trade practices and trademark infringement for online ad campaigns targeting Google users searching for the plaintiff's firms.

Among those taking aim at Exclusive Legal Marketing is Florida-based personal injury firm Morgan & Morgan, which boasts more than 350 lawyers in 11 states. In complaints in Georgia and Florida, it accuses the company and two of its client firms of using online bait-and-switch advertising to lure potential clients searching for Morgan & Morgan on Google into the arms of competitors.

Another firm with a large media presence is Atlanta's Montlick & Associates, which sued ELM in federal court in April asserting nearly identical claims.

In "early to mid-2017," when searchers clicked on the website or called the number, it said, their information was taken and they were referred to Atlanta firm Monge & Associates, which is also named as a defendant.

Screenshots included in the complaints show the words "Morgan Morgan—Right Lawyer For You?—" Below is a phone number and an invitation for "Free Consult. Speak to a Live Person Now."

It was only when "confused" potential clients trying to reach Morgan & Morgan complained of being unknowingly directed to the Monge firm, the complaint said, that the firm found out about the ads.

"Even then," it said, "at least one client stated that she was pressured to sign with them and believed that Monge was somehow affiliated with Morgan & Morgan."

Morgan & Morgan's Fulton complaint includes claims for deceptive trade practices, false advertising and trade name infringement. Similar claims were filed in June in Florida's Lee County Circuit Court against ELM and Jacksonville-based Farrah & Farrah.

In U.S. District Court for Georgia's Northern District, Montlick & Associates' claims include violations of federal trademark law, unfair competition and false designation and false and misleading advertising and state claims of deceptive trade practices.

Similar claims were filed against the company and founder and CEO Cody Bryant in Ohio by Columbus firms Scott Schiff & Associates and the Law Office of Kevin Kurgis, who sued ELM in Ohio's Southern District Court in March.

Cody Bryant and his brother, Jerry Bryant, say there's nothing illegal or improper about their methods.

"We generate leads for lawyers," said Jerry Bryant, noting that Google allows advertisers to "bid" on key words such as "accident attorney" or "Morgan & Morgan," and then buy ad space on the page that pops up when a search is performed.

"We bid on a lot of keywords, and we bid on our competitors' names," he said. "They've decided that, even though they do it themselves, they don't want us to do it."

But what about using a firm's name in an advertisement linking to the ELM website and then referring callers or webpage visitors to another firm like Monge's?

"It's not deceptive; it's called a keyword insertion through Google," Jerry Bryant said. "We tried it for a couple of weeks, but it really caused more issues than it did good."

They said the placement of other firms' names with their contact information only occurred "for two to three weeks at the most," Cody Bryant said. "It was unintended [and done by] somebody else that worked for us. When we started getting phone calls from lawyers saying their names were in our ads we thought they were crazy."

As to assertions that they have infringed on copyrighted names and marks, Cody Bryant said, "all our research indicates that it's absolutely not a violation."

Monge & Associates is not a party to the Montlick action but is referred to in the complaint. In response pleadings ELM lawyer Robert Ward of BMWipLAW argued that the firm is clearly identified in retainer agreements, and that Montlick itself uses keyword advertising, including by purchasing the Morgan & Morgan name.

Monge firm principal Scott Monge blasted the "frivolous" allegations in the Fulton suit as "the most totally absurd and ridiculous I've heard in 24 years I've been practicing law."

"I absolutely deny any and all false allegations against my firm and if it is not dismissed immediately I anticipate filing a counterclaim," he said.

Monge said that, if his firm was the beneficiary of any deceptive advertisements, he was unaware of it.

"I have no control over the management decisions of a marketing company," he said, and is "in full compliance with all applicable laws." Monge said. In one of his books, Monge said firm founder John Morgan "admits losing $14 million in his Atlanta office and brags that his goal is to get all the cases in cities where Morgan & Morgan has an office."

"I don't make a living by suing other lawyers to promote my business," Monge said.

Orlando-based Morgan & Morgan partner Damien Prosser, who filed the Florida suit and drafted the Fulton County complaint, said the use of Google keywords to draw a competitor's business was perfectly legal.

"But if you buy our adwords and say you're us or are putting 'Morgan & Morgan' in your ad, that's deceptive advertising."

ELM's use of a "click-to-call" feature makes the deception even worse, he said.

"If you call from a mobile phone, like nearly everybody does these days, it goes straight to their call center, and they do a live transfer to Monge's call center," he said. "Clients don't even realize until they get a fee agreement in the mail, 'Holy cow, I've hired a different firm.'''

Prosser also disputed Monge's claim that he was unaware of the use of other firms' names in ELM's ads.

"We have witness testimony that Monge knew what was going on," he said. "We'll just leave it there."

Mark VanderBroek, who represents Montlick & Associates with fellow Atlanta partner Lucas Westby of Nelson Mullins Riley & Scarborough in Atlanta, said that ELM is attempting to trade on the other firms' reputations.

"It'd be one thing if they were accurately and truly identifying who they are," he said. But "this is basically a huge internet bait-and-switch scheme here; they're using the reputation of firms that have spent years building up their good names."

While some potential clients may be savvy enough to figure out the deception, he said, "they're going to get a certain number of people who push that button and get their call center and won't know they've gotten somebody else until it's too late," he said.

Joseph Dreitler and Mary True of Columbus' Dreitler True represent the Schiff and Kurgis firms.

"The last thing a lawyer needs to do in this country is try to steal another lawyer's leads," said Dreitler. "It makes me mad and it makes me sad."

Dreitler said he's surprised more lawsuits haven't targeted ELM.

"I find it amazing that they went to [their clients] and said, 'Let's do this, it's is a great idea.' And they did it to a bunch of personal injury lawyers!"