Alco, a vending machine company, contracted with B2B, a “fax broadcaster,” in 2005, and dealt with B2B and Macaw, a Romanian business, that worked with B2B. Each sample advertisement provided by B2B stated that the message was “the exclusive property of Macaw . . . , which is solely responsible for its contents and destinations.” According to Alco, B2B was to identify recipients from a list of businesses that had consented to receive fax advertising from B2B. Alco never saw this list, but believed that each business would be located near Alco’s Ohio headquarters, and had an existing relationship with B2B, so that the advertising would be “100 percent legal.” B2B broadcast several thousand faxes, advertising Alco. According to Alco, B2B did not inform Alco about the number of faxes, the dates on which they were sent, or the specific businesses to which they were addressed. After each broadcast, Alco received complaints of unauthorized faxes in violation of the Telephone Consumer Protection Act 47 U.S.C. 227(b)(1)(C), which it referred to B2B. Siding filed a purported class action against Alco. The district court rejected the suit on summary judgment. The Sixth Circuit reversed and remanded for determination of whether B2B broadcast the faxes “on behalf of” Alco, considering the degree of control that Alco exercised, whether Alco approved the final content, and the contractual relationship. View "Siding and Insulation Co. v. Alco Vending, Inc." on Justia Law

HCEA was recognized under the Tennessee Education Professional Negotiations Act (EPNA) as the exclusive representative of Hamilton County Board of Education professional employees. In 2011, HCEA and the Board entered into a collective bargaining agreement (CBA), to expire in June 2014. While this agreement was in effect, Tennessee enacted the Professional Educators Collaborative Conferencing Act, replacing EPNA. PECCA would not govern the parties’ relationship until the expiration of their existing agreement. HCEA and the Board entered into the latest version of their CBA under EPNA in September 2013. PECCA created a new category: “management team” members, including principals and assistant principals, no longer considered “professional employees” entitled to participate in concerted activities as part of professional employee organizations. PECCA also made it unlawful for a professional employee organization to “[c]oerce or attempt to intimidate professional employees who choose not to join a professional employee organization.” Communications following HCEA’s September 2013 monthly meeting resulted in a Board letter, requesting that HCEA “refrain from … negative or coercive statements.” HCEA filed suit, alleging violation of EPNA and the First Amendment. The Sixth Circuit affirmed summary judgment favoring the Board. EPNA claims were not rendered moot by PECCA’s intervening effective date, but the letter did not violate EPNA. It contained no threat of reprisal and did not significantly burden HCEA’s expressive activity. View "Hamilton Cnty. Ed. Ass'n. v. Hamilton Cnty. Bd. of Educ." on Justia Law

AT&T sought to acquire T-Mobil, then a subsidiary of Deutsche Telekom, and merge its operations and infrastructure into itself. For months after the proposal was announced, the Federal Communications Commission (FCC), the U.S. Department of Justice, and state regulatory agencies, investigated to determine whether the merger would have adverse effects on competition and customer service, and if so, whether mitigation measures were warranted as a condition of approval. The California Public Utilities Commission (CPUC) sought to complete the investigation of a complex transaction having national scope within a few months because FCC proceedings were unfolding on an expedited schedule. CPUC invited participation from intervenors, including TURN and CforAT. TURN apparently took a leading role and won several procedural victories. Before CPUC completed comments for submission to the FCC, AT&T and Telekom unexpectedly announced the withdrawal of their proposed merger. CPUC dismissed the proceeding as moot, but decided several collateral matters, and stated that requests for intervenor compensation “are appropriate.” TURN and CforAT sought intervenor compensation. Based on detailed findings explaining their “substantial contributions,” CPUC issued awards over opposition by proponents of the merger. The court of appeal vacated the awards without prejudice to renewal and redetermination of the requests. The awards were consistent with CPUC’s long-standing position and with the statutory scheme. The court rejected the “broad” rationale relied upon by CPUC in the orders. View "New Cingular Wireless PCS v. Pub. Utils. Comm'n of Cal." on Justia Law

An Automated Maritime Telecommunications System (AMTS) is a U.S. communication service between land and vessels in navigable waterways, existing on specific broadcast frequencies. Advances in technology have greatly expanded the potential uses of AMTSs. Under the original site-based system, small geographic regions were defined by location and the waterway served and the FCC provided licenses at no cost to the first applicant. In 2000, the FCC stopped issuing site-based licenses and began issuing licenses by competitive bidding; it divided the U.S. into 10 regions and, at public auctions, sold “geographic” licenses for two blocks of AMTS frequencies in each region. Although geographic licensees may generally place stations anywhere within their region, they may not interfere with the functioning of existing site-based stations, so the location of a site-based station creates a gap in a geographic licensee’s coverage area. Plaintiffs obtained geographic licenses in areas overlaying pre-existing site-based licenses. Site-based operators refused to provide plaintiffs with the operating contours for their site-based locations within plaintiffs’ geographic locations. Plaintiffs filed suit, alleging violation of the Federal Communications Act and the Sherman Antitrust Act. The Third Circuit affirmed dismissal of the FCA claims and a determination that no antitrust conspiracy existed. Plaintiffs did not identify particular actions that were determined by the FCC to be unreasonable or unjust and, therefore, do not possess a private right of action. View "Havens v. Mobex Network Servs., LLC" on Justia Law

Milwaukee ordinances required certain licenses before a business was permitted to offer nude or partially nude entertainment. Six Star, which applied for a license, and Ferol, which did not apply challenged these ordinances, seeking injunctive relief and damages. Once the ordinances were repealed, they dropped their requests for injunctive relief but continued to pursue damages. The district court held that the ordinances addressed time, place, and manner of expression, but did not include the necessary procedural safeguards. A jury then decided that but for the unconstitutional ordinances, Ferol would have opened a club providing nude entertainment. It awarded Ferol compensatory damages in the form of lost profits, and gave Six Star nominal damages. The Seventh Circuit affirmed, rejecting the city’s argumens that Ferol had no injury and therefore no standing to challenge the ordinances, and its challenge to Ferol’s theory of causation and the award of nominal damages to Six Star. View "Six Star Holdings, LLC v. City of Milwaukee" on Justia Law

In 2010 the IRS began to pay unusual attention to applications for exemption from federal taxes under Internal Revenue Code 501(c) coming from groups with certain political affiliations. It used "inappropriate criteria" to identify organizations with "Tea Party’" in their names, expanded the criteria to include "Patriots and 9/12," and gave heightened scrutiny to organizations concerned with “government spending, government debt or taxes,” “lobbying to ‘make America a better place to live[,]’” or “criticiz[ing] how the country is being run[.]” The IRS used a “‘Be On the Lookout’ listing” for more than 18 months. Applicants flagged by the criteria were sent to a “team of specialists,” where they experienced significant delays and requests for unnecessary information. The IRS demanded that many groups provide names of donors; a list of issues important to the organization and its position regarding such issues; and political affiliations. After the release of the Inspector General’s report, the plaintiffs sued, citing the Privacy Act, 5 U.S.C. 552a, the First and Fifth Amendments, and the Internal Revenue Code’s prohibition on the unauthorized inspection of confidential “return information,” 26 U.S.C. 6103(a), 7431. Plaintiffs sought discovery of basic information relevant to class certification. The district court ordered production of “Lookout” lists. A year later, the IRS had not complied, but sought a writ of mandamus. The Sixth Circuit denied that petition and ordered the IRS to comply. View "United States v. NorCal Tea Party Patriots" on Justia Law

Clark runs Affordable Hearing in Terre Haute, Indiana. In 2006, Clark received calls from a B2B employee, who offered to market Affordable Hearing’s services by faxed advertisements. Clark agreed to try fax-advertising, approved the language of the ad, and verbally instructed B2B to send about 100 faxes to businesses within a 20-mile radius of Terre Haute. He did not know what it cost to send a fax, but thought the quoted $279 was reasonable. Trusting that Melville would send the 100 faxes as authorized, Clark never asked to see the list of fax numbers that B2B was using. Clark did not realize that B2B actually faxed 4,849 ad flyers to businesses across Indiana, Illinois, and Ohio. After Bridgeview received a fax ad outside Chicago, it sued under the Telephone Consumer Protection Act, which, unbeknownst to Clark, outlaws unsolicited fax ads. In granting summary judgment for class members located within 20 miles of Terre Haute, the district court gave the statutory penalty of $500 per recipient to 32 recipients within that 20-mile radius--a $16,000 judgment against Clark. The court held that Clark was not liable for the junk faxes sent more than 20 miles from Terre Haute. The Seventh Circuit affirmed class certification and the determinations of liability. View "Bridgeview Health Care Ctr., v. Clark" on Justia Law

This case arose from a New York Times article about Senator Rand Paul, which briefly quotes Walter Block, an economics professor. Block filed suit against defendants asserting claims for defamation and false light invasion of privacy. Although Block does not dispute that he made the statements at issue, he argues that the article takes the statements so far out of context as to make them untrue and defamatory. The district court granted a special motion to strike under Louisiana Code of Civil Procedure article 971 (anti-SLAPP law), dismissed the complaint, and awarded defendants attorney's fees. In Lozovyy v. Kurtz, the court interpreted Louisiana law and concluded that “the Louisiana Supreme Court would recognize that Article 971’s ‘probability of success’ standard does not permit courts to weigh evidence, assess credibility, or resolve disputed issues of material fact.” Because the district court lacked the benefit of the court's recent guidance in Lozovyy, the court vacated and remanded for the district court to apply the standard. On remand, the district court should consider whether Block has established a genuine dispute of material fact on each element of his claims. View "Block v. New York Times Co." on Justia Law

Ohio prohibited persons from disseminating false information about a political candidate in campaign materials during the campaign season “knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” Ohio Rev. Code 3517.21(B)(10), specifically prohibiting false statements about a candidate’s voting record. The statute established a multi-step complaint process involving the Elections Commission, culminating in referral to a prosecutor. If convicted in subsequent state court proceedings, violators could be sentenced to prison or fined. In 2010, then-Congressman Driehaus filed a complaint alleging that SBA issued a press release accusing him of voting for “taxpayer-funded abortion” by voting for the Affordable Care Act. The Commission issued a probable cause finding. SBA sued Driehaus and state officials. That case was consolidated with a similar case, adding the Commission as a defendant. The U.S. Supreme Court found the case ripe as a facial challenge, despite the dismissal of Commission proceedings. On remand, the district court granted SBA summary judgment, holding that Ohio’s political false statement laws were content-based restrictions that fail strict scrutiny review. The Sixth Circuit affirmed, characterizing the laws as content-based restrictions that burden core protected political speech, not narrowly tailored to achieve state interests in promoting fair elections. View "Susan B. Anthony List v. Driehaus" on Justia Law

On September 15, 2011, Elder Living ordered a background screening report on Rocheleau from First Advantage's predecessor, in conjunction with Rocheleau’s application for employment. The search disclosed criminal convictions matched to Rocheleau’s name and birth date. On September 16, First notified Rocheleau that it was reporting information derived from his public record and to direct any questions to its disclosure center. Days later, it sent another notice, advising that information from Rocheleau's report “may adversely affect [his] employment status” and that he was entitled to dispute it. The notice included a summary of rights under the Fair Credit Reporting Act, 15 U.S.C. 1681. On September 26, First notified Rocheleau that he had not been hired again advising Rocheleau of dispute procedures. Rocheleau contends that Elder shared the report with his then-employer, which terminated his employment. Rocheleau contacted First and complained that he had not authorized the report's release; he did not dispute its accuracy. On November 25, 2013, Rocheleau filed suit under FCRA, claiming that Elder obtained the report without his permission or notifying him that adverse action could result; that neither First nor Elder issued certifications mandated by statute; and that First failed to adhere to required “strict procedures” in releasing his information. The Sixth Circuit affirmed rejection of the claims as time-barred under the two-year limitations period. View "Rocheleau v. Elder Living Constr., LLC" on Justia Law