Justia Communications Law Opinion Summaries

Arla, a Denmark-based global dairy conglomerate, launched a $30 million advertising campaign aimed at expanding its U.S. cheese sales, branded “Live Unprocessed.” The ads assure consumers that Arla cheese contains no “weird stuff” or “ingredients that you can’t pronounce,” particularly, no milk from cows treated with recombinant bovine somatotropin (“rbST”), an artificial growth hormone. The flagship ad implies that milk from rbST-treated cows is unwholesome. Narrated by a seven-year-old girl, the ad depicts rbST as a cartoon monster with razor-sharp horns. Elanco makes the only FDA-approved rbST supplement. Elanco sued, alleging that the ads contain false and misleading statements in violation of the Lanham Act. Elanco provided scientific literature documenting rbST’s safety, and evidence that a major cheese producer had decreased its demand for rbST in response to the ads. The Seventh Circuit affirmed the issuance of a preliminary injunction, rejecting arguments that Elanco failed to produce consumer surveys or other reliable evidence of actual consumer confusion and did not submit adequate evidence linking the ad campaign to decreased demand for its rbST. Consumer surveys or other “hard” evidence of actual consumer confusion are unnecessary at the preliminary-injunction stage. The evidence of causation is sufficient at this stage: the harm is easily traced because Elanco manufactures the only FDA-approved rbST. The injunction is sufficiently definite and adequately supported by the record and the judge’s findings. View "Eli Lilly and Co. v. Arla Foods USA, Inc." on Justia Law

Credit One repeatedly called A.D.’s (a minor) cell phone about payments owed on her mother’s account. A.D., by and through her mother, Serrano, brought a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A), seeking compensation for telephone calls placed by Credit One to her telephone number in an effort to collect a debt that she did not owe. During discovery, Credit One realized that its caller ID capture system had added A.D.’s phone number to its database when Serrano used A.D.’s phone to access her account. A.D. had apparently used the card, once, at her mother’s request, when she was 14 years old, in 2014. Credit One moved to compel arbitration and to defeat A.D.’s motion for class certification based on a cardholder agreement between Credit One and Serrano. The district court granted the motion to compel arbitration but certified for interlocutory appeal the question whether A.D. is bound by the cardholder agreement. The Seventh Circuit reversed the order compelling arbitration. A.D. is not bound by the terms of the cardholder agreement to arbitrate and has not directly benefited from the cardholder agreement such that equitable principles require the application of the arbitration clause against her. View "A.D. v. Credit One Bank, N.A." on Justia Law

Plaintiffs filed suit against UTC and Honeywell under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, alleging that the companies were vicariously liable for illegal calls made by telemarketers promoting UTC and Honeywell products. The Fourth Circuit affirmed the district court's denial of the Federal Rule of Civil Procedure 56(d) motion because plaintiffs failed to show that they did not have an opportunity to discover specific evidence that was essential to their opposition to summary judgment. The court also affirmed the district court's grant of summary judgment because plaintiffs failed to proffer more than a scintilla of evidence to support the conclusion that UTC and Honeywell were vicariously liable for the telemarketers' alleged TCPA violations. View "Hodgin v. UTC Fire & Security Americas Corp." on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. In this case, plaintiff received a text message from AC Referral, a non-party, that violated the TCPA. Plaintiff claimed that three lenders and two marketing companies ratified the unlawful text messages. The panel held that, although one of the marketing companies, Click Media, had an agency relationship with AC Referral, it was not bound by AC Referral's acts because it lacked knowledge that AC Referral was violating the TCPA and did not have knowledge of facts that would have led a reasonable person to investigate further. Therefore, Click Media could not be deemed to have ratified AC Referral's actions and was not vicariously liable. View "Kristensen v. Credit Payment Services" on Justia Law

The Second Circuit affirmed the district court's grant of defendant's motion for judgment on the pleadings in an action alleging that defendant violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The court held that a flu shot reminder text message sent by a hospital did not violate the TCPA because the text fell within the scope of plaintiff's prior express consent. In this case, plaintiff provided defendant with his cell phone number when he first visited the hospital; signed a consent form acknowledging receipt of various privacy notices; in signing the form, agreed that the hospital could share his information for "treatment" purposes; and the privacy notices stated that defendant could use plaintiff's information to recommend possible treatment alternatives or health-related benefits and services. View "Latner v. Mt. Sinai Health System, Inc." on Justia Law

Cox Cable subscribers cannot access premium cable services unless they also rent a set-top box from Cox. A class of plaintiffs in Oklahoma City sued Cox under antitrust laws, alleging Cox had illegally tied cable services to set-top-box rentals in violation of section 1 of the Sherman Act, which prohibits illegal restraints of trade. Though a jury found that Plaintiffs had proved the necessary elements to establish a tying arrangement, the district court disagreed. In granting Cox’s Fed. R. Civ. P. 50(b) motion, the court determined that Plaintiffs had offered insufficient evidence for a jury to find that Cox’s tying arrangement "foreclosed a substantial volume of commerce in Oklahoma City to other sellers or potential sellers of set-top boxes in the market for set- top boxes." After careful consideration, the Tenth Circuit ultimately agreed with the district court and affirmed. View "Healy v. Cox Communications" on Justia Law

A liability insurance policy that unequivocally and broadly excludes coverage for invasion of privacy claims also excludes coverage for Telephone Consumer Protection Act (TCPA) claims. After Federal denied insurance coverage and declined to defend the Lakers in an underlying suit for invasion of privacy, the Lakers filed suit against Federal for breach of contract and tortious breach of the implied covenant of good faith and fair dealing. The Ninth Circuit affirmed the district court's dismissal of the suit under Federal Rule of Civil Procedure 12(b)(6). The panel held that a TCPA claim was inherently an invasion of privacy claim and thus Federal correctly concluded that the underlying TCPA claim fell under the insurance policy's broad exclusionary clause. In this case, Federal did not breach the policy, or the implied covenant of good faith and fair dealing, under any cognizable legal theory, when it declined to defend against or cover the underlying complaint. View "LA Lakers v. Federal Insurance Co." on Justia Law

The Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227 et seq., permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system. The Eleventh Circuit thought it logical that a consumer's power under the TCPA to completely withdraw consent and thereby stop all future automated calls encompasses the power to partially withdraw consent and stop calls during certain times. In this case, the court held that summary judgment was inappropriate because a reasonable jury could find that plaintiff partially revoked her consent to be called in "the morning" and "during the workday" on the October 13 phone call with a Comenity employee. Accordingly, the court reversed and remanded. View "Schweitzer v. Comenity Bank" on Justia Law

Plaintiffs filed suit against Royal under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, seeking to hold Royal vicariously liable for several telephone calls made by telemarketers employed by AAAP. The Ninth Circuit applied the ten non-exhaustive factors set forth in the Restatement (Second) of Agency 220(2) (1958), and found that AAAP's telemarketers were acting as independent contractors rather than as Royal's agents. Therefore, the court held that Royal was not vicariously liable for the telephone calls and the district court properly granted summary judgment in favor of Royal. View "Jones v. Royal Administration Services" on Justia Law

Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail. Susinno filed a complaint, claiming WOW’s phone call and message violated the Telephone Consumer Protection Act (TCPA) prohibition of prerecorded calls to cellular telephones, 47 U.S.C. 227(b)(1)(A)(iii). The district court dismissed, reasoning that a single solicitation was not “the type of case that Congress was trying to protect people against,” and Susinno’s receipt of the call and voicemail caused her no concrete injury. The Third Circuit reversed, finding that the TCPA provides a cause of action and that the injury was concrete. The TCPA addresses itself directly to single prerecorded calls from cell phones, and states that its prohibition acts “in the interest of [ ] privacy rights.” View "Susinno v. Work Out World Inc" on Justia Law