Georgia Supreme Court Declines to Address Constitutionality of Statute Governing Attorney Advertisements Using Nursing Home Survey Data

On Monday June 24, 2019, the Georgia Supreme Court issued its opinion in Wilkes & McHugh, P.A. et al v. LTC Consulting, L.P. et al. LTC Consulting, L.P. and two affiliated entities, which operate three nursing homes in Georgia, sued the Tampa law firm Wilkes & McHugh, P.A. and one of its attorneys for violations of Georgia’s statute governing attorney advertisements against nursing homes (O.C.G.A. § 31-7-3.2(j)), deceptive trade practices, and false advertising, after Wilkes & McHugh ran three full page advertisements in local newspapers. These advertisements sought to recruit clients to sue the nursing homes by misrepresenting nursing home survey data in contravention of Georgia law. In response to the lawsuit, Wilkes & McHugh filed a Motion to Dismiss or Strike under Georgia’s Anti-SLAPP statute, alleging that the attorney advertising statute was unconstitutional, which the trial court denied. Wilkes & McHugh appealed the denial to the Court of Appeals, which transferred the matter to the Georgia Supreme Court.

Under Georgia’s Anti-SLAPP statute, the court must decide whether the party filing the motion made a threshold showing that the challenged claim is “one arising from protected activity.” Then, if the threshold is met, the burden shifts to the plaintiff to show that there is a probability that it will prevail on the claim. The Supreme Court found that the advertisements qualified as “protected activity.” In turn, Wilkes & McHugh argued that the nursing homes could not demonstrate a probability of prevailing on their claims as the attorney advertising statute is unconstitutional. In response, the nursing homes argued that, because the trial court found that Wilkes & McHugh did not make a threshold showing to fall within the ambit of the Anti-SLAPP statute, there had been no evidence presented on the nursing homes’ likelihood of prevailing. Thus, a finding as to the constitutionality of the advertising statute would be premature.

The Supreme Court’s decision did not rule for either side but instead sent the case back to the trial court for additional consideration. Although Wilkes McHugh requested that the Court rule that the advertising statute is unconstitutional, the Court declined to do so. The next step will be to appear again before the trial court on the issue of whether Georgia’s advertising statute is constitutional.

To read the opinion, please click here. For more information, please contact Jason Bring or Kara Silverman.

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