Ex parte Profit Boost Marketing, Inc., d/b/a Hometown Values Coupon Magazine.

Profit Boost Marketing, Inc., d/b/a Hometown Values Coupon Magazine ("HVCM"), one of the defendants in the underlying case, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Marshall Circuit Court to vacate its order denying HVCM's motion to dismiss the claims filed against it by Mike Zak d/b/a Hometown Magazine ("Zak") and to direct that court to enter an order dismissing Zak's claims against it. HVCM was a Washington state based "print broker ... for direct mail advertising." Hometown Magazine was a coupon distributor; Mike Zak was its sole proprietor. In August 2013, Zak and HVCM entered into a "Print Brokerage Agreement" and related "Licensing Agreement" whereby Zak was to become an exclusive "Area Publisher" of HVCM's coupon magazine in three specified zones within Alabama. Zak obtained from the City of Arab ("the City") a business license to engage in "publishing industries." Zak ultimately published a single issue of a publication entitled Hometown Magazine. According to HVCM, "[i]nstead of publishing as [HVCM], Zak formed Hometown Magazine and used the [HVCM] trademark when he sold advertising to local business," i.e., allegedly, "Zak solicited ... clients as [HVCM], sold them advertising using the [HVCM] trademark ..., and never published a magazine as [HVCM]." This action resulted in a dispute between Zak and HCVM. As a result of a Facebook post, which Zak maintained "was entirely fallacious and possessed absolutely no truth," Zak allegedly began to receive queries from customers regarding the legality of his activities. Ultimately, according to Zak, his reputation was allegedly so "irreparably tarnished and damaged" that Zak was forced to close his business. Zak sued the City and various fictitiously named defendants. Specifically, Zak sought to recover both compensatory and punitive damages on various theories, including defamation, negligence, and "wantonness/gross negligence." After review of the trial court record, the Supreme Court held the trial court erred in denying HVCM's motion requesting dismissal of Zak's claims on statute-of-limitations grounds; therefore the Court granted HVCM's petition and issued a writ of mandamus directing the Marshall Circuit Court to vacate its January 3, 2017, order denying HVCM's motion and to enter an order dismissing HVCM as a defendant in the underlying action. View "Ex parte Profit Boost Marketing, Inc., d/b/a Hometown Values Coupon Magazine." on Justia Law