Judge Kenneth Bell (W.D.N.C.) issued remarks today in the matter Global Plasma Solutions, Inc. v. Elsevier Ltd Inc.
In this litigation, now stretching for more than four and a half years and encompassing nearly 400 docket entries, GPS contends that its air-cleaning business suffered substantial harm due to a defamatory piece published in Building and Environment (“BAE”), a scientific journal owned by Defendant Elsevier …. GPS asserts that several criticisms of its bipolar ionization technology were false, and that Elsevier’s promotion of BAE’s articles as “peer reviewed” violated the Lanham Act….
The governing law provides strong protection for scientific inquiry and public-interest debate. This includes the allegedly defamatory article, which appeared in March 2021, at a time when COVID-19 concerns were at their peak and air-safety technologies were under intense scrutiny.
Because the Court determines that GPS was a limited-purpose public figure regarding the safety and effectiveness of its bipolar ionization technology and GPS cannot prove by clear and convincing evidence that Elsevier acted with “actual malice” in publishing the article, Elsevier is entitled to summary judgment on GPS’s defamation claim. Likewise, a reasonable jury could not conclude that Elsevier is liable for false advertising under the Lanham Act, given the lack of evidence that a substantial portion of the intended audience would be misled by the truthful statements that the article was “peer reviewed” or that an Elsevier advertisement was a proximate cause of GPS’s claimed decline in corporate value….
[V]iewing the evidence in the light most favorable to GPS, the conduct alleged here—though in some respects far short of fabricated or fraudulent data—might nonetheless warrant limiting the sweeping First Amendment protection for scientific opinion that Elsevier urges applies to the article. Nevertheless, the Court need not (and will not) resolve the full scope of the article’s “scientific opinion” protection because, as discussed below, GPS has not demonstrated actual malice sufficient to sustain its defamation claim, which independently resolves the matter in Elsevier’s favor….
There’s a lot more, which you can read here; and there’s something at the end about public access to court records:
As explained by the Court at the hearing on these motions and in its prior order addressing the Parties’ various motions to seal, the Parties have filed an excessive amount of memoranda, documents, and other exhibits under seal in contravention of the strict legal standards governing publicly filed motions—particularly for dispositive motions at summary judgment (including, remarkably, press releases and other documents that are plainly public).
Under the applicable First Amendment standard, a “denial of access” to publicly filed documents “must be necessitated by a compelling … interest and narrowly tailored to serve that interest.” Accordingly, a party moving to seal documents filed in support of summary judgment in a civil case bears a heavy burden. Having reviewed the Parties’ summary judgment submissions, the Court finds that all memoranda and exhibits filed under seal should be refiled in unredacted form and linked to the originally sealed exhibit on the schedule described below. The Court will permit the Parties a brief window to submit very limited and narrowly tailored requests to maintain sealing or partial sealing of specific filings and exhibits, other than the Parties’ memoranda of law and any exhibit specifically cited in this Order….
The Parties are directed to refile—no later than October 26, 2026—an unredacted copy of any memoranda in support of or in opposition to the Parties’ Summary Judgment motions and any exhibit specifically cited in this Order that were filed under seal. All refiled documents must be linked to the originally sealed filing. All remaining sealed exhibits filed in connection with the Parties’ Motions for Summary Judgment must be similarly refiled and linked no later than 14 days from the date of this Order, unless the Court orders otherwise. The Parties may file under seal narrowly tailored requests to maintain the sealing of any of the remaining sealed exhibits on or before 10 days after the date of this Order….
