Asphalt hired a company that, from 2005-2008, sent about 44,000 fax advertisements to potential customers. FS, which received some of the faxes, filed a class-action, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking statutory damages of $500 for each fax. Asphalt notified Western, its insurer during the time when roughly 33,000 faxes were sent. The policies contained a deductible of $1,000 “per claim” for property damage, personal, and advertising injury, applicable to “all damages sustained by one person or organization as the result of any one claim” and to “legal expenses incurred in the handling and investigation of each claim.” Western hired a law firm to represent Asphalt, but did not refer to a reservation of rights. The firm handled the defense for four years. Western sent another letter, stating that Western intended to defend subject to a reservation of rights. Western sought a declaration that it owed no duty to defend or to indemnify. The district court determined that FS lacked standing to bring counterclaims and that Western had a duty to defend, having waived its defenses by waiting four years to issue a reservation-of-rights letter. The Eighth Circuit affirmed, holding that Western did not waive the $1,000 deductible, which applies separately to each fax, so that there is also no duty to indemnify. View "W. Heritage Ins. Co. v. Fun Servs. of Kan. City" on Justia Law

Asphalt hired a company that, from 2005-2008, sent about 44,000 fax advertisements to potential customers. FS, which received some of the faxes, filed a class-action, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking statutory damages of $500 for each fax. Asphalt notified Western, its insurer during the time when roughly 33,000 faxes were sent. The policies contained a deductible of $1,000 “per claim” for property damage, personal, and advertising injury, applicable to “all damages sustained by one person or organization as the result of any one claim” and to “legal expenses incurred in the handling and investigation of each claim.” Western hired a law firm to represent Asphalt, but did not refer to a reservation of rights. The firm handled the defense for four years. Western sent another letter, stating that Western intended to defend subject to a reservation of rights. Western sought a declaration that it owed no duty to defend or to indemnify. The district court determined that FS lacked standing to bring counterclaims and that Western had a duty to defend, having waived its defenses by waiting four years to issue a reservation-of-rights letter. The Eighth Circuit affirmed, holding that Western did not waive the $1,000 deductible, which applies separately to each fax, so that there is also no duty to indemnify. View "W. Heritage Ins. Co. v. Fun Servs. of Kan. City" on Justia Law

ADX petitioned the FCC to deny the assignment to a competitor of several radio licenses in the Pensacola, Florida, and Mobile, Alabama, markets. The FCC denied the petition and ADX appealed, contending that, in applying the statutory caps on ownership of radio stations, the Commission should not have used its normal market definition methodology because of unique aspects of the Pensacola and Mobile markets. Alternatively, ADX contends that the Commission should have applied the two-year waiting period applicable to changes in market definition. Determining that ADX has Article III standing, the court affirmed the judgment because the Commission reasonably exercised its judgment in deciding not to deviate from the market definition methodology it adopted in 2003, and because its interpretation of the waiting period was consistent with the policy established in its prior order and not otherwise suspect. View "ADX Communications v. FCC" on Justia Law

DSF challenged the Delaware Elections Disclosure Act as facially unconstitutional and unconstitutional as-applied to its 2014 Voter Guide, planned for distribution over the internet within 60 days of Delaware’s general election and planned to cost more than $500. The 2013 Act requires “[a]ny person . . . who makes an expenditure for any third-party advertisement that causes the aggregate amount of expenditures for third-party advertisements made by such person to exceed $500 during an election period [to] file a third-party advertisement report with the Commissioner.,” 15 Del. C. 8031(a). A “third-party advertisement” is a communication by any person (other than a candidate committee or a political party) that: Refers to a clearly identified candidate, is publicly distributed within 30 days before a primary or 60 days before a general election to an audience that includes members of the electorate for the office sought by such candidate. The court granted a preliminary injunction, declaring the disclosure requirements unconstitutional. The Third Circuit reversed, finding the Act narrowly tailored and not impermissibly broad. A disclosure requirement is subject to “exacting scrutiny,” necessitating a “substantial relationship” between the state’s interest and the requirement. The Act marries one-time, event-driven disclosures to the “election period,” which is controlled by the relevant candidate’s term, providing the necessary “substantial relationship” between the requirement and Delaware’s informational interest View "Del. Strong Families v. Attorney Gen. Del." on Justia Law

After the Fire District suspended Anzaldua, a paramedic and firefighter, for failing to respond to a directive issued by Chief Farwell, Anzaldua emailed a newspaper reporter expressing concerns about the District and about Farwell. The email “shocked” and “angered” his co-workers. Battalion chiefs noted it “fostered division between Anzaldua and his co-workers," and between firefighters and Farwell. The District terminated Anzaldua, who sued, alleging that the District and the individuals involved in his termination violated his First Amendment rights by retaliation and that Farwell and Anzaldua’s ex-girlfriend violated federal and state computer privacy laws by accessing his email account and obtaining his emails. The district court allowed some First Amendment claims to proceed but dismissed all other claims and denied leave to amend the computer privacy law claims. The court granted defendants summary judgment on Anzaldua’s First Amendment claims, citing qualified immunity. The Eighth Circuit affirmed summary judgment on Anzaldua’s First Amendment claims and denial of leave to amend federal computer privacy law claims, but reversed denial of leave to amend state computer privacy law claims. View "Anzaldua v. Northeast Ambulance & Fire" on Justia Law

Avio claimed that Alfoccino violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C), (b)(3), by hiring B2B to send unsolicited facsimile advertisements to Avio and a class of similarly situated persons. The district court dismissed for lack of Article III standing and found that Avio could not prove Alfoccino was vicariously liable for B2B’s transmission of the faxes. The Sixth Circuit reversed. Avio demonstrated standing. Though the TCPA does not expressly state who has a cause of action to sue under its provisions, its descriptions of prohibited conduct repeatedly refer to the “recipient” of the unsolicited fax, and in enacting the TCPA, Congress noted that such fax advertising “is problematic” because it “shifts some of the costs of advertising from the sender to the recipient” and “occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.” FCC regulations define “sender” with respect to the TCPA’s prohibition of unsolicited fax advertisements as being “the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement,” indicating that primary, not vicarious liability attaches to Alfoccino. View "Imhoff Inv., LLC v. Alfoccino, Inc." on Justia Law

Intercon, which provides electronic recycling services, engaged BAN to evaluate its business for certification as environmentally friendly. BAN concluded that Intercon shipped hazardous waste to companies in China that use disposal methods that violate policy in Illinois, where Intercon operates and were inconsistent with Intercon’s public representations. BAN reported its conclusion to state and federal agencies. Intercon sued for defamation. BAN asserted an Anti-SLAPP (strategic lawsuit against public participation) defense. The district court declined to dismiss, the remedy under the state Anti-SLAPP law, reasoning that a special motion to strike was inconsistent with the Federal Rules of Civil Procedure. The Seventh Circuit affirmed, concluding that the Washington State Anti-SLAPP law cited by BAN would require the judge to resolve jury questions. View "Intercon Solutions, Inc. v. Puckett" on Justia Law

Evilsizor and Sweeney married in 2010. Sweeney claimed that her son from a previous marriage had access to her cell phones, which were not password protected. The couple’s daughter was born in 2012. Sweeney became concerned that he might not be the child’s biological father after he read a message on his stepson’s phone, indicating that Evilsizor had received fertility treatments without his knowledge. He downloaded the contents of Evilsizor’s phones and confronted her. He went, uninvited, to the home of Evilsizor’s parents and disclosed private, sensitive information about Evilsizor. The parties separated; dissolution proceedings were initiated. Evilsizor sought to increase Sweeney’s support payments on the ground that her income had decreased because her father had fired her from her job with his company. Sweeney alleged that Evilsizor had colluded with her parents to make it appear she had been fired. Sweeney attached text messages supporting his opposition. Evilsizor sought a restraining order under the Domestic Violence Prevention Act to stop Sweeney from further disseminating the downloaded information. Finding that Sweeney’s actions amounted to abuse under the DVPA, the trial court prohibited Sweeney from distributing the information without court permission. The court of appeal affirmed, holding that the order did not violate Sweeney’s constitutional rights to free speech. View "Evilsizor v. Sweeney" on Justia Law

Sprint wanted to expand its access to Illinois Bell’s infrastructure at regulated rates even when Sprint customers make calls to, or receive calls from, persons outside the region (Illinois) in which Illinois Bell operates. Sprint invoked “the duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s network for the transmission and routing of telephone exchange service and exchange access,” 47 U.S.C. 251(c)(2)(A). Illinois Bell refused to make an interconnection agreement, citing a regulation by the Federal Communications Commission. Sprint asked the Illinois Commerce Commission to arbitrate the disputes with the Bell company. The Commission rejected Sprint’s claims, and the district court affirmed. The Seventh Circuit affirmed. Sprint’s approach would create an incentive for phone companies to engage in postage-stamp pricing so that they would never have to pay access charges when placing calls from their subscribers to subscribers of other companies. Illinois Bell’s approach, though equally arbitrary, has at least the virtue of not affecting how telephone companies decide to price their services. View "SprintCom, Inc. v. Sheahan" on Justia Law

The Freeport Journal published an online article concerning Hadley’s decision to again seek election to the Stephenson County Board. Online readers could post comments after completing a basic registration. “Fuboy” posted: “Hadley is a Sandusky waiting to be exposed. Check out the view he has [an elementary school] from his front door” and “Anybody know the tale of Hadley’s suicide attempt? ….” Hadley filed a defamation lawsuit against the Journal and its parent company. The company provided Hadley the IP address acquired from Fuboy’s internet service provider, Comcast. The federal court dismissed the suit against as barred by federal statute. Hadley returned to state court with a defamation action against Subscriber Doe a/k/a “Fuboy” and issued a subpoena to Comcast. The circuit court directed Comcast to comply and to notify the subscriber. An attorney moved to quash. The court stated that the better procedure to discover Fuboy’s identity would be Illinois Supreme Court Rule 224, under which Hadley would have the burden of setting forth allegations that would be sufficient to withstand a motion to dismiss under Code of Civil Procedure 2-615, even if such a motion was not filed. The court allowed Hadley to add a count, directed at Comcast, seeking relief under Rule 224. The court concluded that count I could withstand a motion to dismiss, so Hadley was entitled to Rule 224 relief. The court found that the comment imputed the commission of a crime to Hadley; was not capable of innocent construction; and could not be considered an opinion. The court directed Comcast to provide identification. The appellate court and Illinois Supreme Court affirmed. Hadley’s complaint states facts to establish a defamation cause of action sufficient to withstand a section 2-615 motion, so the court properly concluded that necessity was established under Rule 224. View "Hadley v. Subscriber Doe" on Justia Law