December 6, 2001
BY LETTER AND EMAIL
Ms. Andrea James
P.O. Box 13217
Chicago , IL 60613
PERSONAL AND CONFIDENTIAL
NOT FOR PUBLICATION
Re: Our File: IRA 9.0-001
Charge of Defamation, Slander and Libel
Dear Ms. James:
We are counsel to Institute Research Associates, A Medical
Group, Inc., and the Institute of Laser Medicine. This correspondence
relates to information present on www.hairfacts.com (hereafter
"your web site" or "your web pages"), which
has just come to our client's attention. None of the content
of this communication should be construed to limit any of the
rights of my client to pursue any and all legal remedies for
any damages directly or indirectly caused by your improper actions,
including Attorney's fees, compensatory damages, punitive damages,
and Court costs. This communication constitutes notice of the
improper and illegal content of your web site, and your failure
to act immediately to remedy the defects discussed below shall
be considered to be evidence of your negligence and intent to
harm my client's interests.
On the web pages present on your web site you have made false,
incorrect, and inaccurate statements regarding the Institute
of Laser Medicine, PHOTOLYSIS HR®, and Edward Tobinick,
M.D.. These false, inaccurate, and misleading statements have
caused damage to the professional reputation of my clients,
and the continued presence of these statements on your web site
will produce further damages. Additionally, these false, inaccurate,
and misleading statements have damaged the medical practices
of my clients, and their continued presence on your web site
will produce further damages.
On your web site you have acknowledged that your web site has
"authoritative tone". This is correct, and makes the
false and misleading statements present on your web site even
more damaging. Additionally, you have acknowledged that your
web site is linked to other more authoritative web sites.
Your mistakes, enumerated elsewhere in this communication,
are not excused by your acknowledgment on your web site that:
"It contains opinions, sweeping generalizations, and at
least one mistake. The author is not a medical doctor, and makes
no claim or warranty as to the suitability of the information
in this document for application to any particular individual.
You, the reader, take sole responsibility for interpretation
and application of this information." In fact, the foregoing
constitutes an admission on your part that your web site has
mistakes.
You are aware of and have listed four (4) of the United States
Patents that have been awarded to Dr. Tobinick in the laser
hair removal field. These patents grant Dr. Tobinick the exclusive
right to use these patented and unique methods to treat patients,
which he has licensed exclusively to the Institute of Laser
Medicine. In view of this it is clear that statements that you
refer to as "hype" such as "available exclusively
at the Institute of Laser Medicine" and "There is
not a comparable facility anywhere else in the world" are
in fact completely accurate. Thus, your characterization of
these and other statements of my clients as "hype"
(hyperbole), is false, inaccurate, misleading, and damaging.
Further, you have investigated these patents and you therefore
are aware of their content which is contrary to the false statements
you have made on your web site. Thus, your statements are intentionally
false and malicious, and must be removed immediately.
Additionally your web pages include quotations attributed to
my client's web sites which are not currently present on the
web sites. Some of these statements were taken from old material,
written in 1997, which was long ago updated. Please review the
current web sites of my clients and correct these many mistakes.
Your characterization of Dr. Tobinick as a physician/salesman
is also false, inaccurate, misleading, and damaging to his reputation
and the reputation of his medical practices. Dr. Tobinick is
a Professor of Medicine, a physician who has won praise and
award for his medical teaching. He is a respected and well known
co-author of a highly regarded medical textbook; a medical researcher;
a Fellow of the American Academy of Dermatology, a Fellow of
the American Society for Laser Medicine and Surgery, and is
Board-Certified in two different specialties. Since this information
is available on my client's web sites and through other readily
accessible public sources, you must have been aware of my client's
true qualifications. Therefore, your characterization of my
client is intentionally false and malicious, and must be removed
immediately.
PHOTOLYSIS HR is a registered trademark which refers to the
patented and unique methods and techniques used by the Institute
of Laser Medicine for laser and pulsed light removal of unwanted
hair. The patented and unique techniques of PHOTOLYSIS HR do
indeed offer unparalleled clinical advantages. Institute Research
Associates, A Medical Group, Inc., stands behind each and every
statement made on the web sites of the Institute of Laser Medicine.
These statements are true and correct, and there is absolutely
no basis for your false assertion that these statements constitute
"hype." In view of your knowledge of the four (4)
patents granted covering the PHOTOLYSIS HR techniques, your
characterization of PHOTOLYSIS HR is intentionally false and
malicious and must be removed immediately.
The statements on your web site are not correct, are not substantiated,
and you have no qualifications for making such assertions. You
are not a medical doctor, and you have no training in our client's
patented laser techniques. There is no evidence that you are
trained in optics, or thermodynamics, or laser physics. The
Institute of Laser Medicine has an unmatched record of safety,
and has conducted over 30,000 laser treatments. Thus, you have
no medical or scientific training to support your false assertions
and your false unsubstantiated accusations of "hype."
In view of the above, we must demand the immediate removal
of all false, incorrect and misleading statements regarding
methods covered by PHOTOLYSIS HR, Institute of Laser Medicine,
Dr. Tobinick, and all other associated entities that are present
on your web site, www.hairfacts.com, or any other web pages
which you have authored or control. We also demand immediate
acknowledgment that you have complied with this demand, including
the date and time when this was accomplished.
Further, we note that you are generating revenue from your
web site, and you are illegally damaging my client's business
and reputation to generate such revenues. Thus, your motives
and practices are questionable at best.
Lastly, in order to reach a satisfactory settlement without
litigation, the following information will be necessary:
- The date when this information was placed on your web site;
- The number of visitors whom you estimate have viewed this
information, and your method for calculating same;
- Your professional qualifications in science or medicine,
if any;
- Your affiliation with any medical or electrolysis practice
which is in competition with the Institute of Laser Medicine;
- Dates of your visits to the Institute of Laser Medicine,
if any;
- Your source of reliable medical information concerning the
Institute of Laser Medicine, if any;
- Your willingness to issue a retraction regarding the false
information on your web site; and,
- Your willingness or unwillingness to enter into settlement
discussions regarding your ability to compensate the Institute
of Laser Medicine for the above damages and legal fees incurred
as a result of your illegal actions.
Failure to promptly reply to this communication will leave
my clients with no alternative other than to file suit in Federal
Court for injunctive relief to remove the web site, compensatory
damages, punitive damages, attorney's fees, and Court costs.
The lawsuit will include claims for intentional and malicious
defamation, disparagement, slander, slander per se, and libel
per se, among other claims.
Yours truly,
EZRA SUTTON
ES/kn
December 10, 2001
Mr. Ezra Sutton
Ezra Sutton, P.A.
Plaza 9
900 Route 9
Woodbridge, NJ 07095
VIA CERTIFIED MAIL
Mr. Sutton:
I am in receipt of your letter dated December 6, 2001. In it,
you take issue with certain statements on my website hairfacts.com
about your client Institute Research Associates, A Medical Group,
Inc./Institute of Laser Medicine (hereafter ILM). You characterize
some of my statements as "improper and illegal," as
well as as "false," "incorrect," "inaccurate,"
"misleading," "damaging," "intentionally
false," "malicious," "not correct,"
and "not substantiated," among other things. You also
threaten me with a SLAPP suit unless I meet several demands.
I strive to present factual data on hairfacts. I will address
complaints specified in your letter in the order presented.
If after reading my response, you feel I failed to address a
specific complaint, please provide a list of any statements
which you feel match your characterizations listed above. Please
accompany each disputed statement with your corrections, and
I will address them as warranted.
ILM makes numerous claims which I characterize as "hype"
and which legally constitute puffery, or exaggerated advertising,
blustering, and boasting upon which no reasonable buyer would
rely. It's not illegal to make these kinds of overblown claims.
Puffery that ILM is the "finest facility" offering
"unparalleled quality" can't really be challenged
legally. However, claims such as "overwhelming first choice"
and "there is not a comparable facility anywhere else in
the world" might require substantiation if challenged.
I would like to see the data that substantiates claims that
Photolysis HR® offers "unparalleled clinical advantages"
and that "the skin itself is unaffected." I suspect
these last two move beyond puffery into actionable claims.
Obviously, Dr. Tobinick is a physician and a salesman as I
state. He has an M.D. and is clearly involved in the promotion
and sale of treatment with his trademarked Photolysis HR®
procedure. I'm certain Dr. Tobinick receives considerable revenue
from Photolysis HR® treatments sold by himself and employees
of ILM.
Although the trademarked Photolysis HR® procedure is indeed
"available exclusively at the Institute of Laser Medicine,"
multiple-pulse hair removal using light is widely available.
As mentioned previously, I am not aware of any comparative published
clinical data demonstrating Photolysis HR® has greater safety
or efficacy over other methods of multiple-pulsed hair removal
using light.
The only ILM quotation appearing on my site that sems to have
been removed from the ILM site is that Photolysis HR® has
the "ability to treat hair of all colors." This false
and misleading statement appeared on the ILM site at the time
I wrote my analysis in October 2001. I will note on my site
that this fraudulent claim was removed from the ILM site in
November 2001. I will also note that ILM has removed the comparison
chart in which it appeared and has replaced the original contents
of that page with other promotional material.
Although I am under no obligation to do so, I am voluntarily
answering your list of nine questions. The information was placed
on my web site in October 2001 in response to a reader inquiry.
At the time of this writing, the number of visitors to my ILM
analysis page was 666, based on the counter on that page. I
have no financial connection with any medical or electrolysis
practice which is in competition with ILM. My expert qualifications
are in the field of advertising, and I have limited my comments
to ILM's advertising practices. In light of your threats, I
will be adding further comments on ILM's promotional claims
of efficacy and use of misleading "before and after"
photos. I have not visited ILM. My sources of information are
the claims made on ILM promotional websites. I am willing to
issue a retraction if warranted, and I am willing to settle
any dispute in court if necessary.
Since I have answered your nine questions, I've made a list
of four questions I would like ILM to supply me or add to their
promotional site, so consumers are less likely to be misled:
1. The manufacturer(s) and model(s) of the IPL hair removal
device(s) used by ILM
2. The manufacturer(s) and model(s) of the laser hair removal
device(s) used by ILM
3. Published clinical data substantiating that Photolysis
HR® is safer and more effective than other types of multiple-pulse
light-based hair removal treatments.
4. Specific data omitted from misleading labeling on "before
and after" photos:
- Patient sex, age, Fitzpatrick skin type, hair color in
area treated, device make and model used, fluence(s) used
- Name of practitioner who performed treatment
- Date of first treatment, final treatment, and total number
of treatments.
- Amount of permanent hair reduction one year after final
treatment: client estimate and physician estimate
- Photo of treated area one year after final treatment
- Statement whether results shown in each photo is typical
I hope I have responded to all of your concerns, and I look
forward to ILM's response to my four questions.
Sincerely,
Andrea James
hairfacts.com
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