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Massage Today
January, 2006, Vol. 06, Issue 01

Managed Care Company Hit With $210,000 Judgment

Company engaged in the unauthorized use of Locator database.

By Editorial Staff

An Orange County Superior Court jury in Santa Ana, Calif. found American Whole Health, a managed care company, liable for damages of $210,000 for unauthorized taking and use of names and use of names and addresses of providers from the Web site of MPAmedia, the publishers of Massage Today.

MPAmedia attorney Michael Schroeder praised the jury's decision. "This was an arrogant East Coast managed care company that thought they could take private names and addresses off a Web site and use them for junk mail. They even kept doing it after they got caught and were told to cease and desist."

One of the important services MassageToday.com provides to both massage therapists and consumers is the Massage Locator. The Massage Locator is the only online database of every known massage therapist in the United States. Over 2,000 searches are made on the Massage Locator each month. Each one of those searches represents consumers who are looking to find a massage therapist. The Massage Locator is the best referral database on the Internet.

To protect the therapist's Locator contact information from commercial use, MPAmedia (our parent company) has set specific "terms of use" prohibiting any commercial use by any company (please see www.massagetoday.com/locator). It is considered theft for a company to take names from the Locator for any purpose besides locating a therapist in their area.

To further protect therapists from unwanted solicitations resulting in their names being added to a bunch of junk mail lists, MPAmedia plants "seed names" that are registered with the U.S. Postal Service on all of its Locators. When a company steals one of the Locator databases off the Web site, they inadvertently mail their junk to one of those seed names and addresses. This is then reported and exposes the fact that the company stole the database.

In the first part of 2004, MPAmedia received a mailing piece from a managed care company called American Whole Health to one of its seed names. A cease-and-desist letter was immediately sent to American Whole Health. They responded by claiming that they were entitled to use MPAmedia's names, and MPAmedia received three additional mailings.

MPAmedia responded by filing a lawsuit in California Superior Court asking for an injunction, damages and legal costs. Interestingly enough, there were no more mailings to the seed names once the lawsuit was filed.

Additional information came forward as a result of testimony during the trial. The director of operations for American Whole Health testified that someone in their organization "did go to the Web site" to see if it was something they could use. She also testified that she knew about the terms of use and about the damages clause that was a part of those terms. Perhaps the most interesting part of her testimony was her admission that "(a)ll mailings are in the (our) databases" and that "I went through our databases where I did not find" the seed names.

The fact that they did four mailings on different dates to different parts of the country over a five-month period, and that the names they mailed to were no longer in the database, was very revealing. It suggested the possibility that the company tried to cover up the theft of the database.

On Dec. 12, 2005, after three days of testimony, the jury decided unanimously for MPAmedia. They went on to award $210,000 against American Whole Health exclusive of attorneys' fees, which is a separate award to the prevailing party.

This decision is more than just one publisher taking on a managed care company for stealing its database. It reinforces MPAmedia's ability to protect therapists' contact information from companies that would like to take those names to send junk mail. This decision allows MPAmedia the ability to still provide an important online service that facilitates thousands of consumers locating therapists in their area.

 

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