Case: 10-3352 Document: 003110322744 Page: 1 Date Filed: 10/21/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 10-3352 ARTHUR ALAN WOLK, ESQUIRE Appellant,
V.

WALTER K. OLSON, THEODORE H. FRANK, ESQUIRE, DAVID M. NIEPORENT, ESQUIRE, THE OVERLAWYERED GROUP AND OVERLAWYERED.COM Appellees. On Appeal from the United States District Court For the Eastern District of Pennsylvania, No. 2:09-CV-4001

DEFENDANT-APPELLEES' RESPONSE IN OPPOSITION TO PLAINTIFFAPPELLANT'S MOTION FOR CERTIFICATION TO PENNSYLVANIA SUPREME COURT ON QUESTIONS OF STATE LAW

WHITE AND WILLIAMS LLP Michael N. Onufrak, Esquire Siobhan K. Cole, Esquire 1650 Market Street, Suite 1800 One Liberty Place Philadelphia, PA 19103-7395

CENTER FOR INDIVIDUAL RIGHTS Michael E. Rosman, Esquire 1233 20th Street, NW Suite 300 Washington, D.C. 20036

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I. INTRODUCTION On April 8, 2007, Defendant-Appellee Theodore H. Frank ("Frank") posted an article (the "Frank Article") on the weblog Overlawyered.com , containing the following discussion of the district court decisions in Wolk v. Teledyne Ind., Inc., 475 F. Supp. 2d 491 (E.D. Pa. 2007) and Taylor v. Teledyne Tech., Inc., 338 F. Supp. 2d 1323 (N.D. Ga. 2004): Arthur Alan Wolk v. Teledyne Industries, Inc. Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney sues other attorney for defamation. No dice, but even this ludicrous suit does not result in sanctions. [Beck/Herrmann] Beck and Herrmann miss, however, an especially interesting subplot. Wolk settled the underlying case, Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing him be vacated. Did Wolk's client suffer from a reduced settlement so that his attorney could avoid having the order used against him in other litigation? (The discovery violation complained about was apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately protecting his client's rights was Wolk's representation to the court that the client was alright with the size of the settlement. That begs the question whether the client was fully aware of the conflict of interest; if, as seems to be the case, the N.D. Ga. failed to do so, one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. 338 F.Supp.2d 1323, 1327 (N.D. Ga. 2004), aff'd in unpublished summary per

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curiam opinion (11th Cir., Jun. 17, 2005) (App 000034, 45). The Frank Article criticizing the Northern District of Georgia's procedure said nothing about Mr. Wolk that had not already been published in the 2004 district court opinion in Taylor: As to the second matter, the Court expressed concern that a settlement of the case for less than its value to plaintiffs not occur simply to allow Mr. Wolk to be rid of an order that was critical of him. As to this inquiry, plaintiffs' counsel assured the Court that plaintiffs were aware generally of what was about to transpire and were in agreement; further, counsel indicated that plaintiffs would be receiving a large settlement with which they were apparently well satisfied. Taylor, 338 F. Supp. 2d at 1327. Over two years after the Frank Article was published, Plaintiff-Appellant Arthur Alan Wolk, ("Appellant" or "Wolk"), instituted this case in the Court of Common Pleas, Philadelphia County, on May 13, 2009, claiming that DefendantAppellees, in their varying capacities as contributing authors, editors and managers of the legal weblog Overlawyered.com , defamed Wolk and intentionally interfered with his prospective contractual relations. (App Vol. II, Tab 2, 000037-000042, Complaint pp. 14-19). 1 Defendant-Appellees removed the case to the Eastern District of Pennsylvania and thereafter moved to dismiss Wolk's claims pursuant

I For the Court's convenience, a copy of Plaintiff-Appellant's Complaint is attached hereto as Exhibit "A." -36837733v.2

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to Fed. R. Civ. P. 12(b)(6) because they were time barred and further, failed to state cognizable claims because the Frank Article lacks defamatory meaning. After full briefing and argument, the District Court, Honorable Mary A. McLaughlin, found that all of Wolk's claims are barred by Pennsylvania's one year statute of limitations for defamation claims, and rejected Wolk's arguments that Pennsylvania's discovery rule applied to his mass-media defamation case. (App Vol. 1, Tab "C," pp. 3-8, Memo. pp. 3-8). 2 Thus, the District Court dismissed Wolk's case without reaching the lack of defamatory meaning issue. (App Vol 1, Tab `B"). Wolk now appeals the District Court's dismissal and concurrently requests that this Court certify a two-part inquiry to the Pennsylvania Supreme Court. As is fully discussed below, however, Wolk's Motion for Certification should be denied because (1) the questions posed do not control the outcome of the case, and (2) according to its own Internal Operating Procedures, the Pennsylvania Supreme Court will not certify questions that already were decided by this Court. 3d Cir. L.A.R. 110.0 (2008); 210 Pa. Code § 63.10(B)(4). In addition, even if Wolk's motion were procedurally correct, a petition to the Pennsylvania Supreme Court would still be unnecessary and wasteful of judicial resources because the questions raised are not so novel as to preclude this

2 A copy of the District Court's Memorandum is also attached hereto for the Court's convenience as Exhibit `B."
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Court's ability to predict the Pennsylvania Supreme Court's answers thereto, nor are they the subject of conflicting decisions in other courts. See, Drozdowski v. Callahan, No. 07-CV-01233-JF, 2008 WL 375110 at *1 (E.D. Pa. 2008, Feb. 12, 2008), Barrett v. Catacombs Press, 64 F. Supp. 2d 440, 444 (E.D. Pa. 1999), Bradford v. American Media Operations, Inc., 882 F. Supp. 1508, 1519 (E.D. Pa. 1995) (each holding the discovery rule inapplicable to mass-media defamation claims). Therefore, Defendant-Appellees respectfully request that this Court deny Plaintiff-Appellant's Motion for Certification. II. STANDARD FOR CERTIFICATION Plaintiff-Appellant's Motion also fails to satisfy the Pennsylvania Supreme Court's requirement that the question of law presented must not have been previously decided by the petitioning court. Pursuant to 210 Pa. Code § 63.10(B)(4), the Pennsylvania Supreme Court, "shall not accept certification unless all facts material to the question of law to be determined are undisputed, and the question of law is one that the petitioning court has not previously decided." 210 Pa. Code § 63.10(B)(4). (Emphasis added). As is more fully discussed below, this Court already decided, in Palmer v. City of Harrisburg, 276 F.App'x 105, 2008 WL 1838632 (3d Cir. 2008), that Pennsylvania's discovery rule did not apply to toll the statute of limitations applicable to a defamation claim where the allegedly defamatory statements were

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published in a newspaper, and thereby immediately ascertainable, more than one year before suit was initiated. Therefore, pursuant to 210 Pa. Code § 63.10(B)(4), the Pennsylvania Supreme Court cannot accept a petition from this Court to answer that same question. III. QUESTIONS FOR CERTIFICATION Plaintiff-Appellant's Motion asks this Court to petition the Pennsylvania Supreme Court for certification of two questions that deviate significantly from the concise question of law decided by the District Court. As stated by the District Court in its August 2, 2010 Memorandum, "the issue before the [District] Court [was] whether the Pennsylvania Supreme Court would apply the discovery rule to toll the statute of limitations in a mass-media defamation case." (App Vol. 1, Tab "C," p. 1, Memo. p. 1). By contrast, Appellant's Motion for Certification asks this Court to present the Pennsylvania Supreme Court with the following two, fact-specific questions: "Does Pennsylvania exempt defamatory statements made on an internet blog from the tolling principles of the "discovery rule" under Pennsylvania's statute of limitations through a mass media exception which would impute absolute knowledge of the internet to a defamation victim?" And, 2. "If such a mass media exception for internet defamation exists, would Pennsylvania law apply it in this instance of unscrupulous misuse of the internet through an obscure blog which caters to a small niche of special interest subscribers, but is searchable through internet search engines?" (P1-Appint. Motion § III).
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Because these questions posed by Appellant are imprecise mixtures of never-before-pled fact and law, which vary significantly from the issue articulated by the District Court, Defendant-Appellees respectfully submit that the only question this Court should consider in its analysis of Appellant's Motion for Certification is the precise issue identified by the District Court. Specifically, "whether the Pennsylvania Supreme court would apply the discovery rule to toll the statute of limitations in a mass-media defamation case?" (App Vol. 1, Tab "C," p. 1, Memo. p. 1). IV. ARGUMENT IN OPPOSITION TO CERTIFICATION A. THE QUESTIONS RAISED BY APPELLANT DO NOT CONTROL THE OUTCOME OF THIS CASE Appellant's request for certification to the Pennsylvania Supreme Court should be denied because neither of the questions raised control the outcome of this case. Pursuant to 3d Cir. L.A.R. 110.0 this Court may petition the Pennsylvania Supreme Court to certify "questions arising under the laws of [Pennsylvania] which will control the outcome of a case pending in federal court." (Emphasis added). Appellant filed this case alleging defamation, false light and intentional interference with prospective contractual relations. (App Vol. II, Tab 2, 000037000042, Complaint pp. 14-19). Defendant-Appellees moved for dismissal of Appellant's Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6),
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because all claims therein are barred by the applicable statute of limitations, and also because the Frank Article lacks defamatory meaning. (App Vol. II, Tab 3, 000190-000203). Appellant argued in response that Pennsylvania's discovery rule applied to toll the statute of limitations on his defamation claims until he actually "discovered" the offending post, two years after it was published to the internet. (App Vol. III, Tab 4, 000364-000401). The District Court disagreed with Appellant and dismissed his claims as untimely without reaching the defamatory meaning question. (App Vol 1, Tab `B"). Specifically, Judge McLaughlin held that the Pennsylvania Supreme Court would not apply the discovery rule to toll the statute of limitations in a mass-media defamation case, and therefore Appellant's claims were time barred. (App Vol. 1, Tab "C," pp. 3-8, Memo. pp. 3-8). Appellant immediately appealed Judge McLaughlin's decision, and now asks this Court to certify two questions regarding the applicability of Pennsylvania's discovery rule to mass-media defamation cases. (Pi-Appint. Motion § III). What Appellant's request neglects to consider, however, is that in order for certification to the Pennsylvania Supreme Court to be proper, the question posed must control the outcome of the case pending before this Court.

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Here, Defendant- Appellees' are not limited in their request for affirmance to the statute of limitations ground. See, Nationwide Mutual Insurance Company v. Cosenza, 258 F.3d 197, 205 (3d Cir. 2001) (agreeing with the proposition that this Court may affirm the District Court on any basis which finds support in the record), and Sinclair v. Soniform, 935 F.2d 599, 603-604 (3d Cir. 1991) (holding it "true that [the Circuit Court] can affirm the disposition of the district court on any grounds raised before that court.") Accordingly, Defendant-Appellees' Brief, which is not yet due, will ask this Court to affirm the District Court's dismissal of Wolk's claims on both the statute of limitations and lack of defamatory meaning grounds, because the Frank Article is protected opinion on a matter of public concern. Therefore, the discovery rule question decided by the District Court, which Appellant believes should now be certified to the Pennsylvania Supreme Court, need not control this Court's decision of the case, and should not be certified to the Pennsylvania Supreme Court. B. THE PENNSYLVANIA SUPREME COURT WILL NOT ACCEPT CERTIFICATION OF APPELANT'S QUESTION BECAUSE IT PREVIOUSLY WAS DECIDED BY THE PETITIONING COURT It is futile for this Court to petition the Pennsylvania Supreme Court for certification of Appellant's question because pursuant to 210 Pa. Code § 63.10(B)(4), the Pennsylvania Supreme Court cannot accept it. Section 63.10 governs the procedure by which the Pennsylvania Supreme Court can certify -96837733v.2

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questions arising under the laws of that state, which control the outcome of a case pending in federal court. Section 63.1 O(B)(4) provides, "[t]his Court shall not accept certification unless all facts material to the question of law to be determined are undisputed, and the question of law is one that the petitioning court has not previously decided." (Emphasis added). As explained above, the only question this Court should even consider for certification is whether Pennsylvania's discovery rule applies to toll the statute of limitations in cases involving allegedly defamatory statements published in a massmedia outlet. However, that question already was decided by this Court in Palmer v. City of Harrisburg, 276 F.App'x 105, 2008 WL 1838632 (3d Cir. 2008) (per curiam), which now precludes the Pennsylvania Supreme Court from certifying it upon petition from this Court. In Palmer, a state prisoner filed a civil rights action against the City of Harrisburg, alleging a violation of his constitutional rights in connection with the search and seizure of his vehicle, and also alleged common law causes of action including defamation due to the publication of information regarding the seizure of his vehicle in the Patriot-News. Palmer, 276 F. App'x. at 106. On appeal, this Court affirmed the District Court's 12(b)(6) dismissal of Palmer's common law claim of defamation, finding it barred by the applicable one-year statute of limitations. Id. at 109. -106837733v.2

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In affirming the District Court, the Palmer Court stated, "Palmer was not entitled to rely on the discovery rule. The discovery rule was adopted by Pennsylvania courts in recognition of the fact that some injuries are not immediately apparent. The discovery rule applies in cases where the injured party is unable to know that he is injured and to know what caused the injury, despite the exercise of reasonable diligence." Id. at 107 (citing the Pennsylvania Supreme Court's decision in Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 858 (2005)), See also, Fine, 582 Pa. at 266. ("The purpose of the discovery rule has been to exclude from the running the statute of limitations that period of time during which a party who has not suffered an immediately ascertainable injury is reasonably unaware he has been injured."). The Palmer Court went on to explain that, "the standard of reasonable diligence is an objective one and turns on the nature of the injury and whether it is latent, and does not turn on `any specific characteristics unique to the plaintiff that might otherwise prevent him from recognizing his injury as a cause of action." Id. (quoting Lake v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000)). The Palmer Court then held that Palmer's "alleged injuries and the causes thereof were immediately ascertainable [and] [t]hus, the discovery rule did not apply in Palmer's case." Id. at 108. Although the Palmer Court did not explicitly state that Palmer's injuries were immediately ascertainable because they were -116837733v.2

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published in a mass media publication, a review of the entirety of the Court's decision makes clear that it was based upon the manner in which the statements were published. The Court went on to state that, "the fact that Palmer did not know that he might have a valid cause of action was not relevant." Id. at
107.3

Here, just as in Palmer, the statements upon which Appellant bases his defamation claims were published in a mass-media outlet more than one year before Appellant initiated suit. Appellant argues, however, that he did not discover the allegedly defamatory statements until two years after they were published, and therefore the discovery rule should apply to toll the statute of limitations. This is precisely the issue decided by the Palmer Court, which now precludes the Pennsylvania Supreme Court from certifying Appellant's question. Furthermore, Pa Code Section 63.10(B)(4) also provides that, "[t]his Court shall not accept certification unless all facts material to the question of law to be determined are undisputed." (Emphasis added). Although Appellant is correct that numerous disputed issues of fact alleged by Appellant had to be taken as true for purposes of Defendant-Appellees' Motion to dismiss, what this Court need not accept as true are the never-before-pled facts Appellant now injects into his Motion

' Although Wolk seeks to distinguish the Internet from other forms of mass media, (P1-Appint Motion at p. 10), the differences actually make the Internet less appropriate for the application of the discovery rule. There are no search engines covering the complete content of all periodicals or books on the shelves of all bookstores.
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for Certification, which interestingly, only serve to undermine the propriety of his request. For example, up until this point all of Plaintiff-Appellant's factual statements regarding Overlawyered.com have described it as a "popular and widely read website" (App Vol. II, Tab 2, 000025, Complaint ¶ 2) that, "[s]ince its inception ... has attracted a huge following that not only includes tens of thousands of lawyers from every state in this Country, but also includes persons from other professions, such as doctors, and a large overseas following." (App Vol. II, Tab 2, 000025, 000028, Complaint ¶¶ 2, 22). Plaintiff-Appellant further submitted that he "has been a favorite target of criticism and ridicule from Overlawyered.com " (App Vol. II, Tab 2, 000029, Complaint ¶ 25), and that "potential clients had viewed.. .the Frank Article. ..and decided not to engage Wolk as an attorney... solely on the basis of the Frank Article and the false statements made therein." (App Vol. II, Tab 2, 000037, Complaint ¶ 50). In fact PlaintiffAppellant's false light count states, "[t]he Frank Article was dissemianted [sic] by the Defendants and communicated to the public at large, and it was received by so many persons that the matter must be regarded as public knowledge." (App Vol. II, Tab 2, 000039, Complaint ¶ 63). Notwithstanding these "facts" that must be considered true for purposes of Defendant-Appellees' Motion to Dismiss, Plaintiff-Appellant now claims that the -136837733v.2

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Pennsylvania Supreme Court must decide whether Pennsylvania's discovery rule tolls the statute of limitations for defamation claims based upon statements published "through an obscure blog which caters to a small niche of special interest subscribers." (Pi-Appint Motion § III). Plaintiff-Appellant never alleged these "facts" in the lower court and never moved to amend his complaint. Accordingly, this Court must ignore these new "facts" and any argument based upon them. (Similarly, this Court must ignore Plaintiff-Appellant's assertion that "since this lawsuit was filed, Defendants have manipulated search engine tools to place their defamatory blog at the beginning of search engine rankings," (Pl-Appint Motion p. 6), an absurd contention that appears nowhere in the record below). This provides yet another reason why certification to the Pennsylvania Supreme Court should be denied. C. PROPERLY POSED, THE QUESTION OF LAW AT ISSUE IS NOT SO NOVEL AS TO PRECLUDE THIS COURT'S ABILITY TO PREDICT THE PENNSYLVANIA SUPREME COURT'S ANSWER THERETO. Notwithstanding all of the above, this Court should deny PlaintiffAppellant's Motion for Certification because this Court is fully capable of interpreting the substantial amount of guidance issued by the Pennsylvania Supreme Court regarding Pennsylvania's discovery rule and confidently predicting, as the District Court did, that it does not apply to toll the statute of limitations in a mass-media defamation case.
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By way of example, a review of established law regarding Pennsylvania statutes of limitation and the discovery rule, including the very cases upon which Appellant's appeal relies, reveals the following undisputed direction from the Pennsylvania Supreme Court. First, it is well established in Pennsylvania that statutes of limitation serve an important purpose and are to be strictly construed. See, Gustine Uniontown Assocs., Ltd. v.Anthony Crane Rental, Inc., 577 Pa. 14, 33, 842 A.2d 334, 346 (2004). Second, Pennsylvania has adopted the Uniform Single Publication Act by statute. 42 Pa. Cons. Stat. § 8341(b) (2007) No person shall have more than one cause of action for damages for libel or slander or invasion of privacy, or any other tort founded upon any single publication, or exhibition, or utterance, such as any one edition of a newspaper, or book, or magazine, or any one presentation to an audience, or any one broadcast over radio or television, or any one exhibition of a motion picture. As the Supreme Court of Pennsylvania explained in Graham v. Today's Spirit, the single publication rule was to prevent the statute of limitations from being rendered "meaningless in that an action could be filed any time a defamatory article was read, no matter what the time lag between the actual printing of the article and the reading of the article by a third party." 503 Pa. 52, 468 A.2d 454, 457 (1983). Accepting Wolk's discovery rule argument would undermine this

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important purpose of the Single Publication Rule as articulated by the Pennsylvania Supreme Court (as would accepting his alternate suggestion, (PlAppint Motion at p. 9,10) that a posting on the Internet is republished every time it is seen). Third, as noted by the District Court, Pennsylvania law is clear that "the discovery rule is a narrow exception to an otherwise strict limitations standard. For example, Pennsylvania does not toll the statute of limitations for a plaintiff who fails to discover a cause of action due to incarceration or insanity. 42 Pa. Cons. Stat. Ann. § 5533(a) (2010). Likewise, ignorance, mistake or misunderstanding will not toll the statute, even though a plaintiff may not discover an injury until it is too late. See Pocono Int'l Raceway, Inc., v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)." (App Vol. 1, Tab "C," p. 5, Memo. p. 5). Additionally, the Pennsylvania Supreme Court has also stated that the discovery rule should be employed only for "worthy cases" and "cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists." Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997). Furthermore, as was also noted by the District Court, even the cases Appellant relies upon for his argument in favor of application of the discovery rule, taken in totality, stand for the proposition that not all cases are worthy of the discovery rule. (App Vol. 1, Tab "C," p. 6). In Fine v. Checcio, the Pennsylvania -166837733v.2

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Supreme Court clearly stated that the purpose of the discovery rule is to toll the statute of limitations when a party suffered an injury that is not immediately ascertainable. Fine, 582 Pa. at 266. The Fine Court further explained that, "the salient point giving rise to [the discovery rule's] application is the inability of the injured, despite the exercise of reasonable diligence, to know that he is injured and by what cause." Id. at 267 (citing Pocono International Raceway, Inc., v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468, 471 (1983)). "Put another way, the question in any given case is not, what did the plaintiff know of the injury done him? But, what might he have known, by the use of the means of information within his reach, with the vigilance the law requires of him? While reasonable diligence is an objective test, it is sufficiently flexible to take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." (citing Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 167 Pa. 136, 31 A. 484, 485 (1895), and Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606, 611 (2000) (internal quotations omitted). Following Fine, the Pennsylvania Supreme Court provided even further guidance on the applicability of the discovery rule in Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009). Interpreting Fine, the Wilson Court stated, "[i]n certain cases involving latent injury, and/or instances in which the causal connection between an -176837733v.2

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injury and another's conduct is not apparent, the discovery rule may operate to toll the statute of limitations until the plaintiff discovers, or reasonably should discover, that she has been injured and that her injury has been caused by another party's conduct." Id. at 361-362 (citing Fine v. Checcio, 582 Pa. 253, 268, 870 A.2d 850, 859 (2005) (emphasis added)). Recognizing that as the discovery rule evolved, some ambiguities arose, the Wilson Court further clarified that despite the fact that some prior cases applied an "all-vigilance" requirement to parties claiming protection under the discovery rule, that most cases apply a reasonable-diligence requirement, as articulated in Fine, and that reasonable diligence is the appropriate formulation. Id. at 363. Finally, quoting Cochran v. GAF Corp.,542 Pa. 210, 216, 666 A.2d 245, 248 (1995), the Wilson Court noted, " `We have not hesitated to find as a matter of law that a party has not used reasonable diligence in ascertaining the cause of an injury thus barring the party from asserting their claim under the discovery rule.' The party relying on the discovery rule bears the burden of proof." Id. at 362. Given all of the above instruction from the Pennsylvania Supreme Court on the application of the discovery rule, it is hard to lend weight to Appellant's argument that his case cannot be decided by this Court. While it may be true that the Pennsylvania Supreme Court has not issued an opinion explicitly stating whether or not the discovery rule applies to a mass media defamation case, the -186837733v.2

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Fine and Wilson decisions both stand for the proposition that this Court can find, as a matter of law, that Appellant's alleged injury was immediately ascertainable upon publication and not entitled to protection from the discovery rule. Therefore, it is not essential for disposition of this case that the Pennsylvania Supreme Court decide whether the discovery rule ever applies to a mass media defamation case. Further, even if the discovery rule's application to mass-media defamation cases was a controlling question, this Court has the right and ability to predict the Pennsylvania Supreme Court's answer thereto, just as the court did in Palmer v. City of Harrisburg, 276 F.App'x. 105, 2008 WL 1838632 (3d Cir. 2008). See also, Amvest v, Anderson Equipment Company, 358 F. App'x. 344, 347 (3d Cir. 2009) (interpreting the Pennsylvania Supreme Court's decisions in Fine v. Checcio and. Wilson v. El-Daief, and determining that Pennsylvania's discovery rule did not apply to toll the statute of limitations in a buyer's action asserting claims of negligence, breach of express warranty, and strict liability until the cause of a truck fire was determined.). V. CONCLUSION Certification to the Pennsylvania Supreme Court of the questions raised by Appellant is inappropriate and unnecessary pursuant to the rules of this Court, the Pennsylvania Supreme Court, and established case law. Furthermore, certification of Appellant's questions would only serve to waste the resources of both courts,

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because even if the Pennsylvania Supreme Court were to hold the discovery rule is applicable to mass-media defamation cases, this Court would still have to decide (a) whether it is applicable to Wolk's case, and (b) whether Wolk's claims are separately barred by the First Amendment. Therefore, Defendant-Appellees respectfully request that this Court deny Appellant's Motion for Certification to the Pennsylvania Supreme Court. Respectfully Submitted, WHITE AND WILLIAMS LLP Dated: October 21, 2010 By: /s/ Michael N. Onufrak Michael N. Onufrak, Esquire Siobhan K. Cole, Esquire 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103-7395 CENTER FOR INDIVIDUAL RIGHTS By: /s/ Michael E. Rosman Michael E. Rosman, Esquire Michelle A. Scoot, Esquire 1233 20th Street, NW, Suite 300 Washington, D.C. 20036

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CERTIFICATE OF SERVICE I, Michael N. Onufrak, hereby certify that on October 21, 2010, I served the foregoing Response in Opposition to Appellant's Motion for Certification to the Pennsylvania Supreme Court on Questions of State Law, to the following persons, who are filing users of the court's electronic filing system and are thus being served with the Court's Notice of Docket Activity: George Bochetto, Esquire David P. Heim, Esquire Bochetto & Lentz, P.C. 1524 Locust Street Philadelphia, PA 19102 Bradley J. Stoll, Esquire The Wolk Law Firm 1710-12 Locust Street Philadelphia, PA 19103

BY:

/s/Michael N. Onufrak Michael N. Onufrak

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EXHIBIT "A"

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SPECTOR GADON & ROSEN, P.C. By: Paul R. Rosen, Esquire Attorney I.D. No. 13396 prosen@lawsgr.com By: Andrew J. DeFalco, Esquire Attorney I.D. No. 84360 adefalco@lawsgr.com Seven Penn Center Plaza 1635 Market Street, 7th Floor Philadelphia, PA 19103 (215) 241-8888 ARTHUR ALAN WOLK, ESQUIRE : CIVIL ACTION — LAW vs. Plaintiff MAY TERM, 2009 NO.: 1489 JURY TRIAL DEMANDED

WALTER K. OLSON, ESQUIRE THEODORE H. FRANK, ESQUIRE DAVID M. NIEPORENT, ESQUIRE THE OVERLAWYERED GROUP And OVERLAWYERED.COM Defendants

COMPLAINT — CIVIL ACTION
DEFAMATION, LIBEL AND SLANDER — 2L Plaintiff Arthur Alan Wolk, Esquire ('Wolk" or "Plaintiff'), by and through his attorneys, Paul R. Rosen, Esquire, Andrew J. DeFalco, Esquire and Spector Gadon & Rosen, P.C., hereby files this Complaint, and in support thereof, avers the following: PRELIMINARY STATEMENT The Constitution of the Commonwealth of Pennsylvania places reputational interests on the "highest plane," the same level as those interests pertaining to life, liberty and property. In Pennsylvania, the right of any person to the protection of his own reputation from unjustified invasion and wrongful hurt reflects Pennsylvania's basic concept of the essential dignity and worth of every human being.

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2.

In violation of these fundamental principles, the individual Defendants,

Walter K. Olson, Esquire ("Olson"), Theodore H. Frank, Esquire ("Frank"), and David Nieporent, Esquire ("Nieporent"), who are themselves lawyers, and their entity, "Overlawyered.com," which is funded by trade organizations representing the aircraft industry and dedicated to permitting aircraft manufacturers to avoid liability for defective and unsafe products, intentionally and maliciously posted a defamatory article on their popular and widely read website, Overlawyered.com , which falsely accused the Plaintiff, a world-renowned attorney, of selling-out his client in obtaining a settlement, for his own personal benefit, at the expense and to the dertiment of his client. In addition to being outrageously false, an accusation of selling out a client in such a manner, on a website that is read daily by tens of thousands of lawyers and potential clients, is just about the worst thing that can be said about an attorney, and was intended to, and did, have the effect of damaging Wolk's reputation in the legal community in Philadelphia and beyond. 3. Accordingly, Wolk seeks damages from the Defendants under theories of

defamation and false-light invasion of privacy. THE PARTIES 4. The Plaintiff, Wolk, is an individual, citizen and resident of the

Commonwealth of Pennsylvania, and an attorney licensed to practice law in the Commonwealth of Pennsylvania. Wolk has a business address located at 1710-12 Locust Street, Philadelphia, Pennsylvania. 5. Defendant Walter K. Olson, Esquire is an individual, citizen and resident

of the State of New York, with an address located at 875 King Street, Chappaqua, New York 10514-3430.

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6.

Defendant Theodore H. Frank, Esquire is an individual, citizen and

resident of the State of Virginia, with an address located at 901 North Monroe Street, Apartment 1007, Arlington, Virginia 22201-2353. 7. Defendant David M. Nieporent, Esquire, is an individual, citizen and

resident of the State of New Jersey, with an address located at 155 Tillotson Road, Fanwood, New Jersey 07023. 8. Defendant The Overlawyered Group is a New York business entity with

its home office and principal place of business located at 875 King Street, Chappaqua, New York 10514-3430. 9. Defendant Overlawyered.com is a California business entity with its home

office and principal place of business located at318 State Street, Santa Barbara, California 93101-2361. JURISDICTION AND VENUE 10. Subject matter jurisdiction over the Defendants with respect to these

claims and causes of action is conferred upon this Court pursuant to 42 Pa.C.S. § 931 and 42 Pa.C.S.A. § 8341 et seq. 11. This Court has personal jurisdiction over the Defendants under 42 Pa.C.S.

§ 5322 (a) - (b), because the Defendants, jointly and severally, do business in this Commonwealth, committed intentional torts against the Defendant, a Philadelphia resident, where the brunt of the harm was felt by the Plaintiff in Philadelphia, and the Defendants expressly aimed their tortious conduct at Pennsylvania such that Pennsylvania is the focal point of the tortious activity.

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12.

Venue is proper in this Court pursuant to Pennsylvania Rule of Civil

Procedure 1006 (a), because Plaintiff's offices are headquartered in Philadelphia County, and the conduct at issue resulted in damages here in Philadelphia County. FACTS A. The Plaintiff 13. Wolk is perhaps the most prominent aviation attorney in the United States

of America. Wolk has practiced aviation law for over 35 years. During the last decade alone, Wolk has generated almost $1 billion in verdicts and settlements for injured victims of aircraft-related occurrences. 14. For over 30 years, Wolk has been an aircraft pilot, and holds the Federal

Aviation Administration's highest pilot's certificate — Airline Transport Pilot (ATP) — for multi-engine land engine and sea aircraft, and single-engine land and sea airplanes. 15. Wolk is also the past editor of Lawyer Pilots Bar Association Journal and

the past legal editor for Business and Commercial Aviation Magazine. Wolk is regularly quoted and consulted by aviation writers, is a frequent contributor to The Aviation Consumer, Aviation Safety, and other aviation publications, and has appeared as an onair aviation expert for ABC's "Nightline", the CBS Evening News, NBC, CNN, the BBC and numerous other television and radio stations around the world. 16. Wolk is nationally known to be a zealous advocate for his clients, one who

will go to the ends of the earth to secure for them a just result in litigation. While accusations come and go in the legal profession, Wolk has never been accused of failing to zealously represent any client, or selling out his client to benefit himself financially. Such an accusation, to a lawyer practicing in Wolk's area of specialty, would have an

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enormous negative impact, as trust between an attorney and client, and a belief that an attorney will zealously represent the client, is particularly essential to Wolk's practice. B. Overlawyered.com 17. In 1999, the "Overlawyered.com" website was created. The

Overlawyered.com website describes itself as "the oldest law blog." 18. Olson, a licensed attorney, founded Overlawyered.com , and is its

predominant contributor and editor. Olson has been, and remains, a Senior Fellow at the Manhattan Institute, and is the author of several books critical of the United States litigation system. 19. Frank is also a licensed attorney, and was formerly a practicing attorney

associated with O'Melveny and Myers, one of the largest and most prominent law firms in the United States. Frank has regularly contributed to Overlawyered.com since 2003. At all times material, Frank has been a resident fellow at the American Enterprise Institute, and the director of the American Enterprise Institute Legal Center. 20. Neiporent is a practicing attorney in the State of New Jersey, and has been

a regular contributor to Overlawyered.com during the relevant time period. 21. On the website, Overlawyered.com describes itself as follows: Overlawyered.com explores an American legal system that too often turns litigation into a weapon against guilty and innocent alike, erodes individual responsibility, rewards sharp practice, enriches its participants at the public's expense, and resists even modest efforts at reform and accountability. 22. Since its inception, Overlawyered.com has attracted a huge following that

not only includes tens of thousands of lawyers from every state in this Country, but also includes persons from other professions, such as doctors, and a large overseas following.

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At one point, Olson boasted about his readership: "My readership has a large following among lawyers, but I've been surprised to find that a lot of doctors are reading it, as are a lot of people from other countries." 23. In fact, in an article written by Law.com, Olson advised that

Overlawyered.com is one of the most popular "blog" websites in the country, "regularly surpassing 9,000 unique daily visitors." 24. Olson has also boasted that Overlawyered.com is #298 on the list of most

popular blog websites, and #4 on the list of most popular legal blogs. Further, Olson boasts that even these figures vastly understate the actual readership of Overlawyered.com because it has many RSS readers, and "several thousand people who receive Overlawyered through mailing lists." 25. Wolk has been a favorite target of criticism and ridicule from

Overlawyered.com . For example, after Wolk secured a a $480 million verdict against Cessna arising from an aircraft accident, a different website, AV Web, issued an article critical of Wolk, for which AV Web eventually issued a retraction and apologized. Notwithstanding, and despite AV Web's admission that its article was false, Overlawyered.com and Olson posted a gratiuitous article ridiculing Wolk and criticizing AV Web's retraction: by Walter Olson on September 20, 2002 September 16-17 — Free speech & web litigation: AVweb capitulates to defamation suit. Which reminds us of an update we should have posted earlier: readers will recall the defamation lawsuits filed last year by aviation plaintiff's attorney Arthur Alan Wolk against two editors and four subscribers of the aviation-news website AVweb, all of whom had sharply criticized him after he won a $480 million verdict against Cessna(Sept. 7 and Oct. 12-14,

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2001). On July 19 the website rendered to Wolk a thoroughly abject capitulation and apology in connection with his agreement to drop his suit against it. Its statement to readers (link now dead) includes a number of passages which deserve to be read with great care by those to whom the Internet still represents some sort of idealized sanctuary for untrammeled discussion [italicized comments ours]: "One of Mr. Wolk's complaints was that we did not supervise our chat room to prevent libelous comments about him being published by our subscribers. We have corrected that. Another of Mr. Wolk's complaints was that our characterizations instigated some of our subscribers to libel him. We will no longer characterize matters in such a way as to bring apparent discredit upon anyone." [The consequences of such a formula for the future of hardhitting journalism can be imagined. And the mind reels at what is involved in the task of avoiding all characterizations which, whether or not libelous themselves, might instigate others to commit that offense. -ed.] "While the defense of Mr. Wolk's lawsuit has been expensive, he nonetheless has been gracious enough to settle with us for a payment to charity. In fact, even in settlement negotiations, when there was a demand for money, it was always to be contributed to charity, none for Mr. Wolk himself. He steadfastly insisted that his lawsuit was not about money and we have come to believe him." [Why would it be thought surprising that the aim of such a lawsuit might be more to silence certain critics than to obtain cash from them? -- ed.] As we say, read the whole thing, which lays out at considerable length Mr. Wolk's reasons for considering himself libeled. AVweb then goes on to publish a sort of protracted advertisement for Mr. Wolk's services, in the form of tributes and testimonials from grateful clients he has represented in litigation, as well as others. Also included is the painfully self-abasing apology of one of the reader-posters who found himself individually sued by the powerful lawyer — outgunned in every way, and facing who knows what sort of prolonged personal exposure to the cost of litigation. Among the lessons many observers will draw, we think, will be the old one: watch whatou say ^ about lawyers. (DURABLE LINK)

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26.

Thus, despite AV Web's admission that the facts it printed were

inaccurate, Overlawyered.com took it upon itself to criticize AV Web's retraction and Wolk. This only demonstrates the animosity and malice directed towards Wolk by Olson, Frank, Nieporent and Overlawyered.com . 27. At all times material, the Defendants in this case held themselves out, and

continue to hold themselves out, as being persons with superior knowledge and access to information respecting problems with the practice of law in this Country, and unethical practicioners of law in this Country. Therefore, any decision by the Defendants to brand a legal practicioner as unethical or willing to sell-out his client is treated as true, even if made out of personal animosity, ill-will, jealousy, bias or prejudice, and taken by the recipient to imply the existence of undisclosed facts resulting in a purportedly informed assessment by the Defendants. 28. Moreover, while the Defendants hold themselves out as being unbiased

"scholars" of the legal profession, in fact, the Defendants are employed by, and funded by, organizations dedicated to reducing liability to victims for personal injuries, including, but not limited to, the aircraft industry. Therefore, without actually disclosing this to the public, in drafting and disseminating articles critical of attorneys who represent victims, the Defendants' columns are merely shilling for aircraft companies and other sources of funding under the guise of scholarly writing, and attempting to turn public opinion against victims. C. The Taylor Case 29. Beginning in 2000, Wolk's law firm represented the victim of an aircraft

accident in a case venued in the United States District Court for the Northern District of

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Georgia, captioned Taylor v. Teledyne Technologies, Inc., No. 00-cv-1741 (the "Taylor Case"). 30. After discovery disputes arose, the Trial Judge in the Taylor Case issued a

September 2002 discovery order critical of Wolk's conduct during discovery, even though Wolk was not personally involved in any of the asserted conduct. 31. In 2003, the Trial Judge vacated the September 2002 discovery order, and

precluded all parties from publicizing the September 2002 order. 32. Thereafter, the Taylor Case settled for a sum that far exceeded the value

previously placed on the Taylor Case by a federal magistrate, and all attorneys in the Taylor Case unanimously agreed that Wolk never committed any unprofessional, unethical or wrongful conduct in the Taylor Case. Wolk did not, in fact, commit any unprofessional, unethical or wrongful conduct in the Taylor case, but instead represented his client zealously with an extrordinarily high degree of professionalism and dedication worthy of his reputation. 33. Wolk then sued certain of the Defendants in the Taylor Case for

defamation in a case brought in the United States District Court for the Eastern District of Pennsylvania, captioned Arthur Alan Wolk v. Teledyne Industries, Inc., No. 03-5693 (the "Wolk Case"). 34. The Wolk Case settled after it was mediated by a federal judge. As part

off the settlement, all attorneys in the Taylor Case unanimously agreed that Wolk never committed any unprofessional or wrongful conduct in the Taylor Case.

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D.

The Defamatory Frank Article 35. As discussed above, although they do not disclose the sources of their

funding or affiliations on the website, the Defendants, and their employers such as the American Enterprise Instutute, are funded by aircraft engine manufacturers and other organizations, and seek to turn public opinion against victims and those who represent victims to save money for their patrons. 36. Wolk is perhaps the most prominent and important attorney who

represents victims of aircraft accidents, and is therefore a major target of the aircraft industry. It benefits the aircraft manufacturers to attempt to besmirch Wolk's name, to coerce clients not to seek Wolk's representation, because Wolk has been so successful in obtaining compensation to injured victims. 37. In conjunction with this mission, on or about April 8, 2007, Defendant

Frank, writng for "Overlawyered.com ," wrote an article relating to the Wolk Case and the Taylor Case (the "Frank Article"). Upon information and belief, Defendants Olson and Nieporent edited and approved of this article. 38. After a brief reference to the Wolk Case, the Frank Article accused Wolk

of "selling out" his client in the Taylor Case, accepting a lesser settlement in the T aylor _ Case for his client in order obtain future business from other clients and to avoid being impaired by remarks regarding unprofessional conduct in the discovery order in the Taylor Case (which was vacated), and violating his professional and ethical responsibilities and duties. The text of the Frank Article is as follows: Arthur Alan Wolk v. Teledyne Industries, Inc. by Ted Frank on April 8, 2007

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Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney sues other attorney for defamation. No dice, but even this ludicrous suit does not result in sanctions. [Beck/Herrmann] Beck and Herrmann miss, however, an especially interesting subplot. Wolk settled the underlying case, Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing him be vacated. Did Wolk's client suffer from a reduced settlement so that his attorney could avoid having the order used against him in other litigation? (The discovery violation complained about was apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately protecting his client's rights was Wolk's representation to the court that the client was alright with the size of the settlement. That begs the question whether the client was fully aware of the conflict of interest; if, as seems to be the case, the N.D. Ga. failed to do so, one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. 338 F.Supp.2d 1323, 1327 (N.D. Ga. 2004), aff d in unpublished summary per curiam opinion (11th Cir., Jun. 17, 2005). We've earlier reported on Mr. Wolk for his lawsuits against commenters at an aviation website that criticized him: Sep. 16-17, 2002. As the Taylor opinion notes, Wolk also threatened to sue the federal judge in that case. He also filed what the Eleventh Circuit called a frivolous mandamus petition. (See Frank Article, attached as Exhibit "A") 39. The Frank Article was received by the tens of thousands of readers of

Overlawyered.com, including the thousands of people who read Overlawyered.com on the internet, and the thousands more who receive the Overlawyered.com newsletters, the majority of whom are practicing attorneys in Pennsylvania and in the United States. 40. Considering the Frank Article in context, and in particular, the assertion

that Wolk "sold out" his client for his own personal benefit, with an eye toward the effect

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the Frank Article was fairly calculated to produce, and the impression it would naturally engender in the minds of the average persons among whom it was intended to circulate, it is clear that the Frank Article is defamatory. 41. In fact, the Frank Article is defamatory per se because it was intended to,

and did, blacken Wolk's reputation and explse him to public hatred, contempt and ridicule, and injure him in his business and profession, by ascribing to Wolk conduct and characteristics that would adversely affect his fitness for the proper conduct of his lawful business as an attorney at law. 42. Further, the Frank Article is not merely "opinion," but it purports to be an

analysis of a case and an attorney's conduct by several persons, Frank, Olson and Nieporent, who hold themselves out as having superior knowledge of the legal field and of attorney misconduct, such that the Frank Article implies undisclosed, false and defamatory facts — namely, that Frank, Olson, Nieporent and Overlwayered.com , as a result of their investigation and analysis, had determined that Wolk acted improperly and unethically, and "sold out" his client for his owner personal and professional gain. 43. In fact, the implication that Wolk had sold out his client for his own

personal and professional gain was false. 44. When the Frank Article was disseminated, Frank, Olson, Nieporent and

Overlawyered.com knew that it was false, knew that they had no basis to assert that Wolk "sold out" his client for his own personal and professional gain, and knew that the settlement that was achieved in the Taylor case was a remarkably good settlement which exceeded the value of the case placed upon it by a mediator. Notwithstanding, due to their personal animosity and ill-will towards Wolk, with actual malice, and with actual

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knowledge that their statements in the Frank Article were false, the Defendants disseminated the Frank Article. 45. As a direct and proximate result of the false and malicious Frank Article,

Wolk has sustained damages that include, but are not limited to, pecunairy loss, impairment of reputation and standing in the legal community, personal humiliation, and mental anguish and suffering. E. Wolk Learns Of The Defamatory Frank Article In April 2009 46. In April 2009, Wolk attended a seminar dealing with, inter alia, client

relationships. During this seminar, the speaker advised the listeners that clients were becoming increasingly media and internet savvy, such that, prior to engaging an attorney to represent him in a lawsuit, many clients will perform a "Google" search on the attorney as part of due dilligence. Therfore, the speaker advised Wolk and others that it was important to ascertain what a "Google" search would reveal, and warned that there could be inaccurate, unfair, or false information on the internet that would be revealed through a "Google" search. For this reason, the speaker recommended that all listeners perform a "Google" search on themselves. 47. That night, Wolk returned to his home and, for the first time, performed a

"Google" search on himself, and saw the defamatory Frank Artcile for the first time. Wolk was outraged and dismayed. 48. Thus, Wolk immediately sent a April 9, 2009 email to Frank. This email

stated that Wolk never sold out his clients, pointed out that Frank had miscast important facts of the case, and then stated: I demand that you immediately remove this and every other article about me from your website. What you wrote is 13
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false, shows a complete disregard for the facts and malice, an intent to herm me when you couldn't beat me in court and an effort to destroy the perception of potential clients who would read this and fail to hire me. You have accused me of unethical conduct, fraud and the commission of a crime, none of which is true. This is clearly the reason I have found it extremely difficult to gain new business. You will soon find the same. (See April 9, 2009 email, attached as Exhibit "B") 49. The Defendants refused to retract the defamatory Frank Article, which still

remains accessible on the Overlawyered.com website. 50. In fact, Wolk has information that potential clients had, in fact, viewed the

Overlawyered.com website and the defamatory Frank Article, and viewed the accusations that Wolk is unethical, that he cheats and sells-out his clients, and the other false accusations, and decided not to engage Wolk as an attorney, despite his track record and prominence, solely on the basis of the Frank Article and the false statements made therein. 51. Thus, the false Frank Article has had an enormous negative impact on

Wolk as a legal practicioner based primarily in Philadelphia, Pennsylvania. COUNT I DEFAMATION PLAINTIFF VS. DEFENDANTS 52. Complaint. 53. The Defendants published the Frank Article, and the Frank Aricle was The Plaintiff incorporates by reference the preceding Paragraphs of this

disseminated to the thousands of readers who read Overlawyered.com , as well as those who receive written copies of Overlawyered.com through the mail including attorneys

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and other persons in Pennsylvania. The Frank Article presently remains accessible on the Overlawyered.com webiste. 54. The Frank Article defamed the Plaintiff because, inter alia, it ascribed

conduct and character to the Plaintiff that would adversely affect his fitness for the proper conduct of his lawful profession, blackened his reputation, exposed him to public contempt and ridicule, injured him in his business or profession, lowered him in the estimation of the community, and deterred third persons from associating and/or dealing with him. 55. 56. The Frank Article expressly applied to the Plaintiff. The Frank Article's defamatory meaning, and its application to the

Plaintiff, was understood by the thousands of ordinary and reasonable readers of Overlawyered.com. 57. As a result of the Frank Article, the Plaintiff suffered special harm in the

form of severe monetary loss, economic and consequential damages discussed above, as well as severe and irreparable impairment of his reputation and credibility in the community generally, and personal humiliation, mental anguish and mental suffering. 58. The Frank Article was false. The false and defamatory Frank Article was

made with actual malice by Frank, Olson, Nieporent, and Overlawyered.com , because Frank, Olson, Nieporent, and Overlawyered.com had actual knowledge of the falsity of the Frank Article when it was made, and/or a reckless disregard for the falsity of the Frank Article when it was made. Indeed, Frank, Olson, Nieporent, and Overlawyered.com entertained serious doubts as to the truth of the Frank Article at the time it was disseminated. Further, when making the false and defamatory Frank Article,

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Frank, Olson, Nieporent, and Overlawyered.com were motivated by personal animosity and ill-will towards the Plaintiff, and published the Frank Article with the intent to harm the Plaintiff and destroy his career. 59. The Frank Article was not subject to any recognized privilege, and/or to

the extent that any privilege existed or could exist, Frank, Olson, Nieporent, and Overlawyered.com abused any such privilege. 60. Due to the willful, wanton, intentional and malicious nature of the

Defendants' conduct, Plaintiff also demands an award of punitive damages in an amount to be determined at trial. WHEREFORE, Plaintiff Arthur Alan Wolk respectfully requests that the Court enter judgment in his favor and against the Defendants, award the Plaintiff Arthur Alan Wolk compensatory and punitive damages in an amount in excess of the statutory minimum for arbitration, and grant such other and further relief as this Court deems just and appropriate. COUNT!! FALSE LIGHT PLAINTIFF VS. DEFENDANTS 61. Complaint. 62. By disseminating the Frank Article, the Defendants gave publicity to a The Plaintiff incorporates by reference the preceding Paragraphs of this

matter concerning the Plaintiff that placed the Plaintiff before the public in a false light. 63. The Frank Article was dissemianted by the Defendants and communicated

to the public at large, and it was received by so many persons that the matter must be regarded as public knowledge.

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64.

The Frank Article included major misrepresentations of the Plaintiff's

character, conduct and activities. 65. The Frank Article is highly offensive to the Plaintiff, as it would be to any

reasonable person. 66. The misrepresentations contained in the Frank Article, concerning the

(alleged and false) assertion that the Plaintiff sold out his client, and accepted a lesser settlement for personal reasons to the dertiment of his client, are not of any legitimate public concern. 67. The false Frank Article was disseminated by the Defendants with the

knowledge and/or reckless disregard for the false light in which the Plaintiff would be portrayed. 68. Further, the false Frank Article was made by the Defendants with actual

malice, because the Defendants had actual knowledge of the falsity of the Frank Article when it was made, and/or a reckless disregard for the falsity of the Frank Article when it was made. Indeed, the Defendants entertained serious doubts as to the truth of the Frank Article at the time it was disseminated. Further, when disseminating the false Frank Article, the Defendants were motivated by ill-will and personal animus towards the Plaintiff, and published the Frank Article with the intent to harm the Plaintiff and destroy his reputation. 69. The Frank Article was disseminated to the public at large through the

internet and mailings, and is continuously available to the general public on the Overlawyered.com website, and elsewhere on the worldwide web.

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70.

As a result of the Frank Article, the Plaintiff suffered severe harm to his

interest in privacy, as well as significant damages in the form of monetary loss, economic and consequential damages discussed above, severe and irreparable impairment of his reputation and credibility in the community generally, and personal humilliation, mental anguish and mental suffering. WHEREFORE, Plaintiff Arthur Alan Wolk respectfully requests that the Court enter judgment in his favor and against the Defendants, award the Plaintiff Arthur Alan Wolk compensatory and punitive damages in an amount in excess of the statutory minimum for arbitration, and grant such other and further relief as this Court deems just and appropriate. COUNT III INTENTIONAL INTERFERENCE WITH PROSPECTIVE CONTRACTUAL RELATIONS PLAINTIFF VS. DEFENDANTS 71. Complaint. 72. As set forth above, Wolk is one of the world's most prominent aviation The Plaintiff incorporates by reference the preceding Paragraphs of this

attorneys, and one of the most successful attorneys ever in this country representing victims of aircraft accidents. Wolk is also widely known through his appearances in the media, as a commentator on aircraft safety and accidents. 73. Since the dissemiation of the false Frank Article, and following his

becoming aware of the false Frank Article, Wolk has become aware of several potential victims who intended to engage Wolk as their counsel to represent them, and would have in fact represented him but for their due dilligence on him, which included reference to

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the defamatory and false Frank Article. As to these persons, Wolk can establish a prospective contractual relationship. 74. As agents of the aircraft industry, the Defendants in this case acted with

the purpose and intent to harm Wolk in Pennsylvania, where his home office exists, by spreading false and defamatory statements about him, and accusing him of selling out his client, in order to prevent Wolk from representing clients who are victims of aircraft accidents. 75. 76. damage. WHEREFORE, Plaintiff Arthur Alan Wolk respectfully requests that the Court enter judgment in his favor and against the Defendants, award the Plaintiff Arthur Alan Wolk compensatory and punitive damages in an amount in excess of the statutory minimum for arbitration, and grant such other and further relief as this Court deems just and appropriate. Respectfully submitted, The Defendants in this case acted without privilege or justification. As a result of the Deffndants' conduct, Wolk has sustained actual legal

Paul R. Rosen, Esquire Andrew J. DeFalco, Esquire SPECTOR GADON & ROSEN, P.C. 1635 Market Street, 7`h Floor Philadelphia, Pennsylvania 19103 (215) 241-8888 (Main) (215) 241-8844 (Fax) Counsel for Plaintiff Dated: August 17, 2009 19
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VERIFICATION

1, Andrew J. DeFalco, Esquire, hereby verify that I am counsel for Plaintiff in the within action and, as such, I am authorized to make this Verification on his behalf. The statements made in the foregoing Complaint are true to the best of my personal knowledge, information and belief, based on my knowledge of this litigation. I understand that the statements made therein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.

Date: August 17, 2008 Andrew . DeFalco

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EXHIBIT A

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Arthur Alan Wolk V. Teledyne Industries, Inc.

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Date Filed: 10/21/2010'/ I'age I of

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Arthur Alan Wolk v. Teledyne Industries, Inc.
by Ted Frank on April 8, 2007 Judge writes scathing opinion about attorney; opponent attorney mails opinion to client; losing attorney sues other attorney for defamation. No dice, but even this ludicrous suit does not result in sanctions. [Beck/Herrmann] Beck and Herrmann miss, however, an especially interesting subplot. Wolk settled the underlying case, Taylor v. Teledyne, No. CIV.A.1:00-CV-1741-J (N.D. Ga.), on the condition that the order criticizing him be vacated. Did Wolk's client suffer fro ni.L_reduced sPttlement so that his attorney could avoid _ having the order used against him in other litigation? (The discovery violation complained about was apparently a repeat occurrence.) The district court permitted a settlement that vacated the order, but its only reported inquiry into whether Wolk did not suffer from a conflict of interest and was adequately protecting his client's rights was Wolk's representation to the court that the client was alright with the size of the settlement. That begs the question whether the client was fully aware of the conflict of interest; if, as seems to be the case, the N.D. Ga. failed to do so, one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. 338 F.Supp.2d 1323, 1327 (N.D. Ga. 2004), aff'd in unpublished summary per curiam opinion (11th Cir., Jun. 17, 2005). We've earlier reported on Mr. Wolk for his lawsuits against commenters at an aviation website that criticized him: $p. 16-17, 2002. As the Taylor opinion notes, Wolk also threatened to sue the federal judge in that case. He also filed what the Eleventh Circuit called a frivolous mandamus petition. © Share 1 Save Related posts • Youtube lawsuit of the week: A&P vs. rappers (3) • You mean it was trillions? (1) • WWorst places toget sued, cont'd (0) • Worst new idea of the day (8) • Why( Jessica Cutler case matters (2) Tagged as: libel slander and defamation

http://overlawyered.com/2007/04/arthur-alan-wolk-v-teledyne-industries-inc/

Casl1i2d^O 50 1489

Case: 10-3352

Document: 003110322744

Page: 45

Date Filed: 10/21/2010

EXHIBIT B

Case ID: 090501489

Case: 10-3352

Document: 003110322744

Page: 46

Date Filed: 10/21/2010

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Arthur Alan Wolk From: Arthur Alan Wolk Sent: To: Cc: Thursday, April 09, 2009 9:29 PM tedfrank@gmail.com Paul Rosen; Walter DeForest; Cheryl DeLisle; Bradley J. Stoll

Subject: Your false and disparaging statements on the website Overlawyered.com Mr. Frank: I have just seen the false and disparaging statements made about on your web site or better said the web said managed, supervised and promoted by those who would deny consumers all rights to sue companies that manufacture defective products, the American Enterprise Institute, a web site run by and for defense lawyers and manufacturers and which by your lead at least made absolutely no effort to investigate the facts. You don't mention the fact that for example you worked for at least two defense firms against which I have been extremely successful thus your pique over me appears to be related more to my beating your clients backsides than any umbrage over some undefined legal transgression. Absent from your bio is any description of any success anywhere on any subject and with any law firm of substance so it therefore must be easy for you to tear down someone who has a had a forty year success record against the likes of you. Absent from your tirade is my forty years of success and my hundreds and hundreds of cases with not a critical word by a lawyer or a judge. But more important to me is your false commentary on the Taylor case and your outright libelous statements that make me look like I sold out my clients in that case for a retraction of a false discovery order. Had you investigated the facts you would have seen that it was my firm that made complete discovery and the defense none. In fact it was because the court looked so foolish with nothing to back up her vitriol that she vacated that order and for no other reason. I have never sold out my clients ever and never will but I will fight to protect my name against people like you who hide behind some phony title like "scholar" bestowed upon yourself. What did the Taylor case settle for? Who were the heirs and what were their damages? What was the liability defense and what were the facts against Teledyne. How many plaintiffs' death verdicts had ever been allowed out of that judge's courtroom? What were the damages recoverable under Georgia law? What considerations as to liability and damages did I make before recommending settlement. What potential for proofs of contributory conduct or even sole causation by immune persons such as the pilots' employer were there as in bad maintenance? What steps did I take to ensure that the settlement was fair and reasonable and like other settlements or even better for similar circumstances in Georgia? Did I contact other Georgia lawyers for their views? The 11 th circuit affirmed the trial court's decision not to hold be in contempt, not to award counsel fees, and not to reinstate the false discovery order. That affirmance had nothing to do with the underlying Taylor case at all so you even got that wrong. Kindly provide full and complete answers to these questions in writing within twenty-four hours and yes I will sue you for defamation. I know you never contacted me to get answers to these questions so let's learn whom you spoke to. I will check to see if your late firms represented Teledyne in anything. I know Kirtland and Ellis represented Pratt and Whitney unsuccessfully against me at least once and maybe more. I am attempting to see if you were involved in that debacle. You see Mr. Frank, if you are going to libel someone you need to understand the facts first and the law and also understand the person you are libeling. This was a big mistake. By copy of this e-mail I am requesting my counsel, Paul Rosen to immediately institute a lawsuit against you and your organization. When we learn who your contributors are we will sue each and every one of them against whom I have had cases or who motivated you to continue the defense generated effort to damage my reputation.

4/13/2009

Case ID: 090501489

Case: 10-3352

Document: 003110322744

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Date Filed: 10/21/2010

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Also by copy of this e-mail I am requesting counsel for Teledyne to set you straight because if I find they had anything to do with these lies I'll sue them too. I demand that you immediately remove this and every other article about me from your website. What you wrote is false, shows a complete disregard for the facts and malice, an intent to harm me when you couldn't beat me in court and an effort to destroy the perception of potential clients who would read this and fail to hire me. You have accused me of unethical conduct, fraud and the commission of a crime none of which is true. This is clearly the reason I have found it extremely difficult to gain new business. You will soon find the same. Arthur Alan Wolk

4/13/2009

Case ID: 090501489

Case: 10-3352

Document: 003110322744

Page: 48

Date Filed: 10/21/2010

EXHIBIT "B"

Case: 10-3352

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Date Filed: 10/21/2010

Case 2:09-cv-04001-MAM Document 36 Filed 08/02/10 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARTHUR ALAN WOLK, ESQUIRE v. WALTER K. OLSON, et al

CIVIL ACTION

NO. 09-4001

McLaughlin, J.

August 2, 2010

The issue before the Court is whether the Pennsylvania Supreme Court would apply the discovery rule to toll the statute of limitations in a mass-media defamation case. The Court holds that it would not. Arthur Alan Wolk, a well-known aviation attorney, has sued Overlawyered.com for defamation, false light, and intentional interference with prospective contractual relations arising out of an article published on that website. The plaintiff also names as defendants Walter K. Olson, Theodore H. Frank, David M. Nierporent, and The Overlawyered Group. The defendants move to dismiss the complaint on the ground that the case was not brought within the statute of limitations and the complaint fails to state a claim. The Court will grant the defendant's motion to dismiss on statute of limitations grounds.

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I.

The Complaint The plaintiff is perhaps the most prominent aviation

attorney in the country. Compl. 1 13. Overlawyered.com is a public website that attracts more than 9,000 unique daily visitors, including tens of thousands Df lawyers and other professionals. Compl. 11 22-24, 39. In 2002, the court in Taylor v. Teledyne Tech., Inc. issued a discovery order critical of the plaintiff's conduct, but the plaintiff was not personally involved in any of the asserted conduct. Compl. 5 30. The trial judge subsequently vacated the order and sealed it from publication. Compl. 1 31. Thereafter, the parties settled the case. Compl. ¶ 32. On April 8, 2007, Mr. Frank wrote an article (the "Frank Article") for Overlawyered.com , and Mr. Olson and Mr. Nierporent edited it. Compl. 1 37. The article commented on the chain of events leading to settlement in the Taylor case: Did Wolk's client suffer from a reduced settlement so that his attorney could avoid having the order used against him in other litigation? [I]f, as seems to be the case, the N.D. Ga. failed to [disclose a potential conflict of interest], one really wishes courts would do more to protect fiduciaries of plaintiffs' attorneys before signing off on settlements. Compl. 1 38. In April 2009, the plaintiff discovered the Frank Article. Compl. 1 47. He immediately contacted Mr. Frank and demanded that all articles relating to the plaintiff be removed 2

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from Overlawyered.com . Compl. 1 48. The defendants refused to retract the Frank Article, which remained accessible on the website at the time the plaintiff filed his complaint. Comp'. 1 49.

II. Analysis The plaintiff commenced this suit on May 12, 2009, by filing a praecipe for a writ of summons in the Court of Common Pleas. After removing the case to federal court, the defendant moved for dismissal under Rule 12(b)(6). Under this rule, a court may dismiss an action if the complaint shows facial noncompliance with the statute of limitations. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir. 1994); see also Jones v. Bock, 549 U.S. 199, 215 (2007). Pennsylvania's one-year statute of limitations for defamation applies to all three claims.' See 42 Pa. Cons. Stat. Ann. § 5523(a) (2010); Menichini v. Grant, 995 F.2d 1224, 1228 n.2 (3d Cir. 1993). The statute began to run from the time of publication. See Dominiak v. Nat'l Enquirer, 266 A.2d 626, 62930 (Pa. 1970). Mr. Frank published the article on April 8, 2007,

1 Because the plaintiff's claim for intentional interference with a potential contractual relationship arises from his defamation claim, the one-year statute of limitations applies to the contract claim, even though it would otherwise be subject to a two-year limitations period. Evans v. Philadelphia Newspaper, Inc., 601 A.2d 330, 333-34 (Pa. Super. Ct. 1991) ("[T]he one year statute of limitation for defamation cannot be circumvented by cloaking such a cause of action in other legal raiment."). 3

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with the result that the limitations window closed on April 8, 2008. The plaintiff's action, therefore, was time-barred when he commenced it on May 12, 2009, unless some tolling principle had tolled the statute. The discovery rule represents a potential tolling principle. It accounts for a plaintiff's "inability . . . despite the exercise of reasonable diligence, to know that he is injured and by what cause." Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). The plaintiff claims that the discovery rule should apply to toll the statute of limitations here, 2 but the defendants argue that the rule does not apply to mass-media defamation. The plaintiff relies on two Pennsylvania Supreme Court cases to support his position. The plaintiff reads these cases too broadly, however. He first cites Fine v. Checcio, in which the Pennsylvania Supreme Court stated that "the discovery rule applies to toll the statute of limitations in any case where a party neither knows nor reasonably should have known of his injury and its cause at the time his right to institute suit arises." 870 A.2d at 859. Although the plaintiff takes from 2 The plaintiff also asserts that fraudulent concealment tolled the statute. If a defendant causes a plaintiff to relax his vigilance or deviate from a typical standard of inquiry, the doctrine of fraudulent concealment tolls the statute of limitations. Fine, 870 A.2d at 860. The doctrine does not apply here. The plaintiff alleged no facts that would demonstrate that the defendant actively or passively misled the plaintiff or hid from him the existence of the Frank Article. I

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this that the discovery rule should apply to "any case," the court went on to clarify that the purpose of the rule is to address "an injury that is not immediately ascertainable." Id. at 860. The plaintiff also cites Wilson v. El-Daief, in which the Pennsylvania Supreme Court held that the discovery rule is a tool of statutory interpretation that determines when a cause of action accrues. 964 A.2d 354, 363 (Pa. 2009). Because the statute of limitations begins to run "from the time the cause of action accrued," the plaintiff infers from Wilson that the discovery rule must be applied in all cases to determine when accrual occurs and the statute begins to run. 42 Pa. Cons. Stat. Ann. § 5502(a) (2010). The decision, however, described a more limited application: "to toll the running of the statute of limitations for latent injuries, or injuries of unknown etiology . . . ." Wilson, 964 A.2d at 356. Elsewhere, the Pennsylvania Supreme Court has stated that the discovery rule should be employed only for "worthy cases"; it "cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists. i3 Dalrymple Indeed, the discovery rule is a narrow exception to an otherwise strict limitations standard. For example, Pennsylvania does not toll the statute of limitations for a plaintiff who fails to discover a cause of action due to incarceration or insanity. 42 Pa. Cons. Stat. Ann. § 5533(a) (2010). Likewise, ignorance, mistake or misunderstanding will not toll the statute, even though a plaintiff may not discover an injury until it is too late. See Pocono Int'l Raceway, Inc., v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). 5
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v. Brown, 701 A.2d 164, 167 (Pa. 1997). Taken in their totality, Fine and Wilson agree that not all cases are worthy of the discovery rule. Worthy cases are those pertaining to hard-todiscern injuries. Consequently, the discovery rule would appear to be inapplicable in this case. If the rule is intended for hard-todiscern injuries, it would be at odds with a cause of action based upon a defamatory statement disseminated through a mass medium, like a website, and received by tens of thousands of readers. Moreover, applying the discovery rule here would undermine the purpose of the statute of limitations. If a plaintiff may bring a person into court after a limitations period has expired simply by invoking the discovery rule, and if a court is bound from dismissing the claim no matter how public or ancient the injury may be, then the discovery rule will have nullified the stability and security that the statute of limitations aims to protect. See Schumucker v. Naugle, 231 A.2d 121, 123 (Pa. 1967). Three other judges from this Court have concluded that the discovery rule does not apply to mass-media defamation. Bradford v. Am. Media Operations, Inc., 882 F. Supp. 1508, 1519 (E.D. Pa. 1995) (holding that the discovery rule could not apply to defamation in the widely distributed Star newspaper); Barrett

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v. Catacombs Press, 64 F. Supp. 2d 440, 446 (E.D. Pa. 1999) ("[T]he discovery rule should not be applied where . . . a defendant's alleged defamation was not done in a manner meant to conceal the subject matter of the defamation."); Drozdowski v. Callahan, No. 07-cv-01233-JF, 2008 WL 375110, at *1 (E.D. Pa. Feb. 12, 2008) (declining to apply the discovery rule to defamation published in a book); see also Smith v. IMG Worldwide Inc., 437 F. Supp. 2d 297, 306 (E.D. Pa. 2006) (distinguishing defamation in a private conversation). Many other courts have also declined to apply the discovery rule to mass-media defamation. See, e.g., Schweihs v. Burdick, 96 F.3d 917, 920-21 (7th Cir. 1996) (adopting a "massmedia exception" to the discovery rule, explaining that the rule only applies to defamation "in situations where the defamatory material is published in a manner likely to be concealed from the plaintiff, such as credit reports or confidential memoranda"); Rinsley v. Brandt, 446 F. Supp. 850, 852-53 (D. Kan. 1977) ("We would not apply the discovery rule where the defamation is made a matter of public knowledge through such agencies as newspapers or television broadcasts."); Shively v. Bozanich, 80 P.3d 676, 68889 (Ca. 2003) ("[A]pplication of the discovery rule to statements contained in books and newspapers would undermine the singlepublication rule and reinstate the indefinite tolling of the statute of limitations . . . ."); Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 299 (D.C. 2001) ("[E]very other court 7

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squarely faced with this issue [rejected] application of the discovery rule in mass media defamation claims. We follow these precedents and do likewise here." (citations omitted)); Flynn v. Assoc'd Press, 519 N.E.2d 1304, 1307 (Ma. 1988) ("The discovery rule does not apply to a public libel printed in a newspaper widely available to the public, including the plaintiff."); Clark v. AiResearch Mfg. Co. of Ariz. Inc., 673 P.2d 984, 986-87 (Az. 1983) ("We believe the rule of discovery should be applied in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff . . . ."); Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 164 (Il. 1975) (distinguishing defamation in a credit report from defamation in magazines, books, newspapers, and radio and television programs). The Court is not aware of any case in which the discovery rule has been applied to postpone the accrual of a cause of action based upon the publication of a defamatory statement contained in a book or newspaper or other mass medium. I reach the same conclusion as my colleagues in the Eastern District of Pennsylvania and other jurisdictions: as a matter of law, the discovery rule does not apply to toll the statute of limitations for mass-media defamation. An appropriate Order will be issued separately.

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