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The Ninth Circuit vacated the district court's grant of summary judgment to Crunch Fitness on plaintiff's claim that three text messages he received from Crunch violated the Telephone Consumer Protection Act (TCPA). The panel held, in light of the DC Circuit's recent opinion in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), and based on the panel's own review of the TCPA, that the statutory definition of automatic text messaging system includes a device that stores telephone numbers (ATDS) to be called, whether or not those numbers have been generated by a random or sequential number generator. Because the district court did not have the benefit of ACA International or the panel's construction of the definition of ATDS, the panel vacated and remanded for further proceedings. View "Marks v. Crunch San Diego, LLC" on Justia Law

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Pennsylvania charged Walker with forgery and computer crimes, joined with prior charges against Walker’s husband and his trucking company. Senior deputy attorney general Coffey was assigned to the case. Zimmerer was the lead investigator. They sought to obtain Walker’s work emails from her employer, Penn State, which responded, “We just need something formal, a subpoena.” Coffey and Zimmerer obtained a blank subpoena form, which they filled out in part. The subpoena is blank as to the date, time, and place of production and the party on behalf of whom testimony is required, and was, on its face, unenforceable. Zimmerer presented the unenforceable subpoena to Penn State's Assistant General Counsel. Penn State employees searched for and delivered the requested emails. The charges against Walker were subsequently dismissed with prejudice. Walker filed a 42 U.S.C. 1983 action against Zimmerer and Coffey. The district court dismissed, agreeing that Zimmerer and Coffey were entitled to qualified immunity because Walker could not show a clearly established right to privacy in the content of her work emails. The Third Circuit affirmed that dismissal but vacated the denial of Walker’s motion for leave to file a second amended complaint, asserting claims under the Stored Communications Act. The emails were transmitted via Walker’s work email address, through an email system controlled by Penn State. Walker did not enjoy any reasonable expectation of privacy vis-à-vis Penn State, which could independently consent to a search of Walker’s work emails. View "Walker v. Coffey" on Justia Law

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The Supreme Court reversed the judgment of the Fourth District Court of Appeals denying the request for a writ of mandamus sought by the Cincinnati Enquirer and granted a writ of mandamus, holding that the Enquirer was entitled to review certain documents in the custody of the coroner’s office. An Enquirer reporter made a request to view preliminary autopsy and investigative notes and findings relating to the homicides of eight individuals in Pike County. The Pike County prosecuting attorney and Pike County’s medical examiner and coroner denied the request to review the records. The Enquirer then filed a complaint for a writ of mandamus asking the court of appeals to order the respondents to make the records available. The court of appeals denied the request, concluding that the autopsy reports were properly withheld because they constituted confidential law-enforcement investigatory records of the eight decedents and, therefore, were not subject to the journalist exception in Ohio Rev. Code 313.10(D), which provides that journalists be given access to review the preliminary autopsy reports of a county coroner. The Supreme Court reversed, holding that the court of appeals disregarded the plain language of section 313.10(D) in denying the Enquirer’s request for a writ of mandamus. View "State ex rel. Cincinnati Enquirer v. Pike County General Health District" on Justia Law

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During a campaign rally at Louisville’s Kentucky International Convention Center, then-candidate Trump spoke for 35 minutes. Plaintiffs attended the rally with the intention of peacefully protesting. Protesters’ actions during Trump’s video-recorded address precipitated directions from Trump on five different occasions to “get ’em out of here.” Members of the audience assaulted, pushed and shoved plaintiffs. Plaintiff Brousseau was punched in the stomach. Defendants Heimbach and Bamberger participated in the assaults. Plaintiffs sued Trump, the campaign, Heimbach, Bamberger, and an unknown woman who punched Brousseau, for battery, assault, incitement to riot, negligence, gross negligence and recklessness. The district court dismissed claims against the Trump defendants alleging they were vicariously liable for the actions of Heimbach, Bamberger and the unknown woman, and dismissed a negligent-speech theory as “incompatible with the First Amendment” but refused to dismiss the incitement-to-riot claims. On interlocutory appeal, the Sixth Circuit found that the claim should be dismissed. Plaintiffs have not stated a valid claim under Kentucky law, given the elements of “incitement to riot.” Trump’s speech enjoys First Amendment protection because he did not specifically advocate imminent lawless action. Trump’s “get ’em out of here” statement, closely followed by, “Don’t hurt ’em,” cannot be interpreted as advocating a riot or the use of any violence. View "Nwanguma v. Trump" on Justia Law

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The Eighth Circuit affirmed the district court's grant of summary judgment for Charter, holding that Charter Spectrum Voice VoIP service was an "information service" under the Telecommunications Act and Minnesota state regulation of plaintiff's VoIp service was preempted. The court explained that Spectrum Voice's service was an information service because it makes available information via telecommunications by providing the capability to transform that information through net protocol conversion. View "Charter Advanced Services v. Lange" on Justia Law

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Plaintiffs, who are homeless or have recently been homeless, filed suit against the City seeking retrospective relief for their previous citations under the Camping Ordinance and Disorderly Conduct Ordinance. The panel held that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them. The panel also held that two of the plaintiffs may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. These two plaintiffs have demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise's homeless shelters. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "Martin v. City of Boise" on Justia Law

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Petitioners challenged the FCC's 2017 order altering regulations for business data services (BDS). ILEC Petitioners challenged new price cap rates in the order and CLEC Petitioners challenged most of the other changes in the order. The Eighth Circuit granted CLEC's petitions in part and vacated in part. The court denied the petitions for review on all other issues. The court held that the FCC's 2016 notice gave CLEC adequate notice of large scale deregulation and of the adopted Competitive Market Test, but the notice failed to give sufficient notice of its ending of ex ante regulation of transport services. This failure prevented interested parties from informed participation in that portion of the rulemaking and release of a draft of the proposed order did not remedy the FCC's violation of its obligations under the Administrative Procedure Act. Therefore, the court vacated that portion of the final rule affecting time division multiplex transport services and remanded for further proceedings. The court rejected challenges to the FCC's adoption of the Competitive Market Test. The court also held that the FCC did not act unreasonably in excluding low bandwidth Ethernet business data services from price caps; in declining to extend the Interim Wholesale Access Rule to business data services; and in setting the "X-factor" annual price cap reduction at 2%. View "Citizens Telecommunications Company of Minnesota v. FCC" on Justia Law

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In 2013, while Koger was serving a 300-day sentence in the Cook County Jail, Lyons sent him at least 10 books, plus magazines and newspapers. More than 30 books were seized from Koger’s cell for violation of Jail policy. In a suit under 42 U.S.C. 1983, Lyons and Koger claimed that limiting inmates to three pieces of reading material violated the First Amendment. The district court rejected the suit. The Seventh Circuit affirmed with respect to Lyons, who lacked standing because Koger received everything she sent, but vacated as to Koger. The court noted that Koger challenged the policy, rather than the particular seizure, and that the policy provides for no pre-deprivation process. View "Lyons v. Dart" on Justia Law

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The Levins allege that HRRG violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692- 1692p by leaving telephone voice messages that did not use its true name, did not meaningfully disclose its identity, and used false representations and deceptive means to attempt to collect a debt or obtain information about a consumer. They complained that messages in which HRRG went by the name of “ARS” were insufficient to identify it as HRRG or even as “ARS ACCOUNT RESOLUTION SERVICES,” which is HRRG's alternative business name. The Third Circuit reversed, in part, the dismissal of the complaint, finding that the Levinses stated a plausible claim that HRRG violated section 1692e(14)’s “true name” provision, but have not stated plausible claims under 1692d(6) or 1692e(10). ARS is neither HRRG’s full business name, the name under which it usually transacts business, nor a commonly used acronym of its registered name. With respect to section 1692d(6), the court stated that the messages provided enough information about the caller’s identity for the least sophisticated debtor to know that the call was from a debt collector and was an attempt to collect a debt. Nothing in the messages rises to the level of being materially deceptive, misleading, or false under section 1692e(10). View "Levins v. Healthcare Revenue Recovery Group, LLC" on Justia Law

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The First Circuit affirmed the district court’s grant of summary judgment in favor of Defendants on Plaintiff’s claims brought under 42 U.S.C. 1983 and the Electronic Communications Privacy Act, holding that there was no error in the district court’s decision to grant summary judgment to Defendants on all of Plaintiff’s claims. Plaintiff’s lawsuit stemmed from the covert installment of screenshot-capturing software on Plaintiff’s work computer, which led to his arrest and plea of nolo contendere to one count of possession of child pornography. Plaintiff brought his claims against the individuals who participated in the events leading up to and following his arrest. The First Circuit affirmed the district court’s grant of summary judgment in favor of Defendants, holding that there was no error in the proceedings below. View "Boudreau v. Lussier" on Justia Law