Justia Communications Law Opinion Summaries

Utrecht represented Loanvest in a lawsuit arising out of a loan that was secured by an interest in Oakland property. Utrecht successfully opposed Madow’s motion for a preliminary injunction that would have prevented Loanvest from paying out of the proceeds of the property’s sale. In 2013, Madow became manager of Loanvest, which then sued Utrecht, claiming breach of the duty of loyalty and “looting” Loanvest to pay other obligations. The trial court dismissed under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., 425.16), finding that the claim was based on an act in furtherance of the right of petition and that Loanvest failed to make a prima facie showing of its ability to prevail in the action. The court of appeal reversed. Loanvest is not a third party allegedly harmed by Utrecht’s representation of another client, but Utrecht’s former client that allegedly was harmed as the result of his “egregiously breaching the duty of loyalty.” That the complaint refers to another as Utrecht’s “true client” and Loanvest as his “purported client” does not alter that admitted fact. A lawsuit that concerns a breach of duty does not depend on the exercise of a constitutional right. View "Loanvest I, LLC v. Utrecht" on Justia Law

Knight, a member of the International Longshoremen’s Association, was financial secretary for the Local. In 2000, he distributed a flier stating the Local was hosting the Worker’s Coalition. McBride, director of Diamond State Port Corporation (which operates the Port of Wilmington where Union members work) offered to be a speaker and contributed $500 to the hotel hosting the meeting. The Union’s national vice president, Paylor, told McBride that Worker’s Coalition was not affiliated with the Union. McBride withdrew as a speaker, but he did not seek return of the $500. Knight filed Union charges against Paylor for interfering with the Local. Paylor counter-charged, alleging frivolous claims and using the Union name without permission. A hearing board cleared Paylor, but decided that Knight committed violations. Knight filed suit. On first remand, the district court ordered and the Union created a new policy and held a new hearing. The Union did not comply with an order to change its constitution. On second appeal, the Third Circuit held that Knight’s due process rights were not violated in the second hearing, but the district court awarded Knight attorney’s fees ($243,758.34), costs, and interest, reasoning that, because of Knight’s suit, Union members: can no longer be disciplined for harmless references to the Union name or logo; are more aware of disciplinary hearing due process rights; and, are properly informed about the Act. On third appeal, the Third Circuit affirmed. View "McBride v. Int'l Longshoremens Ass'n" on Justia Law

Cohen and Cohen and Associates Law Corporation represented Slack in a personal injury action on a contingent fee basis. They withdrew from the representation and Drell took over the case. Cohen asserted an attorney fee lien, informing one of the insurers in the personal injury case that any payment of funds to Slack was subject to a lien for their fees incurred during their representation. Drell negotiated settlement of the case, but the insurer made the check payable to Cohen and Drell. Cohen filed a special motion to strike Drell’s complaint seeking declaratory judgment, claiming that it arose from their protected activity of asserting a lien in a demand letter that threatened litigation. (Code Civ. Proc., 425.16 (b)(1).)1. The trial court denied the motion, finding the gravamen of the complaint was not protected activity and denied Drell’s request for attorney fees. The court of appeal affirmed, rejecting arguments that the declaratory relief action targeted protected activity. View "Drell v. Cohen" on Justia Law

The attorneys filed suit on behalf of Carabello, who was injured in a collision while acting in the course of his employment. Old Republic, the workers’ compensation insurer, intervened to seek reimbursement. Casby, the other driver, raised a defense that limits the ability of an employer, or its insurer, to obtain reimbursement out of an injured worker’s recovery against a third party where the employer’s own negligence contributed to the injuries. The drivers settled for her $100,000 policy limits. The check was deposited in the attorneys’ account, with signatures of both parties required to withdraw any money” Old Republic sought apportionment, claiming the entire settlement, but later withdrew its motion and filed a notice of lien seeking $111,026.33. It is not clear that the attorneys were notified of the dismissal. The attorneys later dismissed the Carabello complaint with prejudice and took the position that by dismissing its pleading, Old Republic had forfeited any right to litigate employer negligence and to recover on its lien. The attorneys later moved, under the anti-SLAPP law (Code Civ. Proc., 425.16), to strike claims that they wrongfully withdrew the settlement. The trial court concluded that dismissal of all affirmative pleadings had deprived it of jurisdiction. The court of appeal affirmed. In determining whether a claim arises from conduct protected by the anti-SLAPP law, the focus is on the wrongful, injurious acts or omissions identified in the complaint and whether they fit the statute’s description of protected conduct. Because the withdrawal of funds was neither communicative nor related to an issue of public interest, the trial court properly denied the motion. View "Old Republic Constr. Program Grp. v. Boccardo Law Firm" on Justia Law

A referee recommended that Attorney Sommers' license to practice law be suspended for 60 days for professional misconduct. He did not appeal. The Wisconsin Supreme Court held that the misconduct warrants public discipline, but deemed a public reprimand sufficient and imposed the full costs on Attorney Sommers, which total $5,033.16. Sommers was admitted to practice law in Wisconsin in 1992. His Wisconsin law license is currently suspended for nonpayment of State Bar dues and for noncompliance with continuing legal education requirements. Sommers was previously suspended for 30 days as discipline based on a related matter: allegations relating to improper ex parte communications, press releases, and other statements involving the judiciary. View "Office of Lawyer Regulation v. Sommers" on Justia Law

In 2008, defendant faxed tens of thousands of unsolicited advertisements, violating the Telephone Consumer Protection Act, 47 U.S.C. 227. After defendant’s insurer intervened, a second proposed class action settlement was reached. The insurer, Continental, agreed to make $6.1 million available to class members. The total is approximately equal to the number of faxes sent (110,853) times per-fax damages offered by Continental ($55.03) with an attorney fee award of 1/3 the total amount: $2,033,333.33. The district court preliminarily approved the settlement and 24,389 of the 28,879 class members were successfully notified; five requested exclusion. None objected. Only 1,820 returned a claim form, seeking damages for 7,222 unlawful fax transmissions, so that Continental would pay out only $397,426.66 of the $6.1 million, with the remainder, less attorney fees and incentive awards, to revert. Despite the relatively meager final payout to class members, plaintiffs’ attorneys continued to demand more than $2 million. The district court employed the lodestar method, rather than the percentage method, applying a risk multiplier of 1.5 to arrive at a final fee award of $1,147,698.70. After arguments on appeal, the attorneys sought to dismiss. The Seventh Circuit declined to dismiss and affirmed the reduced fee award. View "Americana Art China Co., Inc. v. Foxfire Printing & Packaging, Inc." on Justia Law

Using FOIA requests directed to the South Carolina DMV, attorneys obtained names and addresses, then sent letters to more than 34,000 individuals, seeking clients for a lawsuit against car dealerships for violation of a state law. The letters were headed “ADVERTISING MATERIAL,” explained the lawsuit, and asked recipients to return an enclosed card to participate in the case. Recipients sued the attorneys, alleging violation of the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721(b)(4), by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without express consent. The district court dismissed, based on a DPPA exception permitting disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." The Fourth Circuit affirmed. The Supreme Court vacated and remanded. An attorney’s solicitation of clients is not a permissible purpose under the (b)(4) litigation exception. DPPA’s purpose of protecting privacy in motor vehicle records would be substantially undermined by application of the (b)(4) exception to the general ban on disclosure of personal information and ban on release of highly restricted personal information in cases there is any connection between protected information and a potential legal dispute. The Court noted examples of permissible litigation uses: service of process, investigation in anticipation of litigation, and execution or enforcement of judgments and orders. All involve an attorney’s conduct as an officer of the court, not a commercial actor, seeking a business transaction. A contrary reading of (b)(4) could affect interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use in connection with underwriting, and the (b)(10) exception, which permits disclosure and use of personal information in connection with operation of private tollroads. View "Maracich v. Spears" on Justia Law

Attorney Turza sent out a fax, titled the “Daily Plan-It,” containing business advice. The fax was sent to CPAs who were not Turza’s clients, about every two weeks. The Telephone Consumer Protection Act of 1991, 47 U.S.C. 227, prohibits any person from sending unsolicited fax advertisements; even permitted fax ads must tell the recipient how to stop receiving future messages. Turza’s faxes did not contain opt-out information. The district court certified a class of the faxes’ recipients and ordered Turza to pay $500 in statutory damages for each of 8,430 faxes. ($4,215,000): $7,500 to the representative plaintiff ; $1,430,055.90 to class counsel for attorneys’ fees and expenses; and any residue, after payments to class members, to the Legal Assistance Foundation of Metropolitan Chicago “as a cy pres award.” The Seventh Circuit affirmed on the merits, rejecting an argument that the faxes were not ads, but vacated the remedial order. View "Holtzman v. Turza" on Justia Law

Using FOIA requests directed to the South Carolina DMV, attorneys obtained names and addresses, then sent letters to more than 34,000 individuals, seeking clients for a lawsuit against car dealerships for violation of a state law. The letters were headed “ADVERTISING MATERIAL,” explained the lawsuit, and asked recipients to return an enclosed card to participate in the case. Recipients sued the attorneys, alleging violation of the Driver’s Privacy Protection Act of 1994 (DPPA), 18 U.S.C. 2721(b)(4), by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without express consent. The district court dismissed, based on a DPPA exception permitting disclosure of personal information "for use in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." The Fourth Circuit affirmed. The Supreme Court vacated and remanded. An attorney’s solicitation of clients is not a permissible purpose under the (b)(4) litigation exception. DPPA’s purpose of protecting privacy in motor vehicle records would be substantially undermined by application of the (b)(4) exception to the general ban on disclosure of personal information and ban on release of highly restricted personal information in cases there is any connection between protected information and a potential legal dispute. The Court noted examples of permissible litigation uses: service of process, investigation in anticipation of litigation, and execution or enforcement of judgments and orders. All involve an attorney’s conduct as an officer of the court, not a commercial actor, seeking a business transaction. A contrary reading of (b)(4) could affect interpretation of the (b)(6) exception, which allows an insurer and certain others to obtain DMV information for use in connection with underwriting, and the (b)(10) exception, which permits disclosure and use of personal information in connection with operation of private tollroads. View "Maracich v. Spears" on Justia Law

Sprint entered into interconnection agreements with incumbent local exchange carriers (CenturyLink Plaintiffs) providing for the mutual exchange of telecommunications traffic pursuant to the provisions of the Telecommunications Act of 1996, 47 U.S.C. 151 et seq. When Sprint began to withhold payments under the agreement, CenturyLink brought a breach of contract claim in federal district court. The court held that the 1996 Act did not require a State commission to interpret and enforce an interconnection agreement (ICA) in the first instance; neither the text of the 1996 Act nor prudential considerations compelled federal deference to State commissions in the first instance; the district court judge's ownership of shares in plaintiff did not constitute a financial interest in plaintiff for purposes of 28 U.S.C. 455(b); the district court did not violate the recusal statute and therefore did not abuse his discretion in deciding that neither recusal nor vacatur was appropriate; when viewed in conjunction with the ambiguity in the ICA's coverage of voice-over Internet Protocol (VoIP) traffic over Feature Group D (FGD) trunks, the parties' course of dealing reinforced the court's conclusion that the district court did not err in entering judgment for plaintiff on its breach of contract claim; and, in the face of ambiguity, the court construed the relevant provisions of the North Carolina ICA against Sprint and in favor of plaintiff. Accordingly, the court affirmed the judgment. View "Central Telephone Co. v. Sprint Communications Co." on Justia Law