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The Telephone Consumer Protection Act (TCPA) imposes liability for calling or texting cellular phone numbers using an Automatic Telephone Dialing System (ATDS) without sufficient prior express consent. The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The TCPA creates a private cause of action and allows a plaintiff to recover statutory penalties of $500 per call or text in violation, or up to $1,500 for a knowing or willful violation. These statutory penalties have made the TCPA a useful tool for class-action plaintiffs’ attorneys seeking to hold companies liable for calls and texts over a four year statute of limitations period.

The Ninth Circuit has traditionally taken an expansive approach when defining what does and doesn’t qualify as an ATDS, extending the definition to virtually any kind of auto-dialer. Last year however, in Facebook, Inc. v. Duguid, the U.S. Supreme Court struck down the Ninth Circuit’s expansive approach to defining an ATDS, generally holding that an auto-dialer is not an ATDS if the numbers being dialed are from an existing list of specific numbers, such as from a database. Since Duguid, many TCPA defendants have argued that the definition of an ATDS requires that the random or sequential number generator be used to generate telephone numbers. Many TCPA defense attorneys also remained concerned that more liberal circuits, such as the Ninth and Second Circuits, might undermine Duguid’s conservative, defense-friendly ruling.

TCPA plaintiffs’ attorneys seized on a particular quirk in footnote 7 of the Duguid opinion where the Supreme Court addressed an argument concerning the overlapping of the “storing and producing functions” of an ATDS. In addressing a situation where an autodialer might not both store and produce numbers, the Supreme Court wrote: “For instance, an autodialer might use a random number generator to determine the order in which to pick phone numbers from a pre-produced list. It would then store those numbers to be dialed at a later time.” Plaintiffs’ attorneys have argued that companies that maintain customer contact lists and select which customers to contact on a given day using a random or sequential number generator are therefore using an ATDS. Continue reading ›

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Under the new federal “Speak Out Act,” employers will no longer be able to enforce pre-dispute non-disclosure and non-disparagement clauses to disputes involving sexual assault and sexual harassment claims. The new law, which passed with bipartisan support in Congress, was signed into law by President Biden on December 7. The new law took effect immediately.

The goal of the new law is to prevent the practice of using pre-dispute agreements to silence employees from reporting sexual impropriety in the workplace. Employers’ use of non-disparagement agreements (NDAs) to keep employees’ sexual harassment claims quiet came under scrutiny during the #MeToo movement.

The exact impact of the new law is not clear yet, however. A key limitation to the law is its application only to pre-dispute agreements. This means that NDAs containing non-disclosure or non-disparagement clauses entered into after a dispute concerning sexual assault or harassment has arisen are not prohibited or covered by the new law. However, employers still cannot preclude employees from reporting violations of employment laws to agencies entrusted with enforcing such laws, like the Equal Employment Opportunity Commission.  Additionally, the law does not define the term “dispute,” making it unclear whether a dispute requires the filing of a lawsuit or whether a complaint to a manager or HR qualifies as a dispute. Continue reading ›

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An Illinois appellate court recently held that a former employee could not maintain his defamation claims against his former employer concerning statements about him allegedly made by certain executives and high-ranking employees of his former employer. The court found that the allegedly defamatory statements were protected by qualified privilege which the plaintiff had not presented evidence sufficient to overcome.

Plaintiff Michael Briggs was employed by SMG Food & Beverage, a company that provided food and catering service at McCormick Place. Briggs was employed by SMG as a banquet captain, and his duties entailed access to various parts of McCormick Place. He was still employed by SMG when he filed his claims against SMG.

Plaintiff alleged that on or about August 22, 2015, there was a meeting between management and union representatives during which Shaun Beard, a senior vice president of SMG managing its McCormick Place operations, allegedly stated, “We have to move the meeting because [plaintiff] is threatening the building because he is a terrorist.” Briggs also alleged that an SMG executive and SMG’s HR director allegedly repeated Beard’s remark and stated that plaintiff’s security pass for McCormick Place access “needed to be revoked.”

On November 15, 2018, Briggs filed his action alleging that defendants defamed him at the August 2015 meeting. The complaint alleged that the statement and the repetition of it were factually false and made knowing the statement was false or with reckless disregard for the truth. Briggs further alleged that the statements were defamatory per se as they accused him of being a criminal who would engage in criminal activity and impaired his “legitimacy as an employee of” SMG and his performance of his employment duties at McCormick Place.

Defendants filed a motion to dismiss the complaint as untimely, as it was filed in 2018 but alleged defamatory statements made in 2015. Briggs responded that his complaint was timely under the discovery rule as he could not have discovered the defamatory statements because they were made with the intent that they be kept confidential to prevent him from discovering them. He therefore argued that he did not learn of the statements until someone present at the meeting disclosed it to him in November 2017 and he did not learn of the repetition of the statements until March 2018. The trial court initially granted the defendants’ motion but the dismissal was reversed and remanded on appeal.

On remand, the defendants filed a motion for summary judgment where they argued that the complaint was untimely and that the alleged statement that plaintiff was a “terrorist” was non-actionable opinion. Additionally, they argued that qualified privilege protected the allegedly defamatory statements because they made them in their capacity as the plaintiff’s employer and this privilege could be overcome only if it was abused. The trial court granted defendants’ motion for summary judgment, finding that the plaintiff “failed to establish a genuine issue of material fact as to whether defendants’ alleged defamatory statements are protected by qualified privilege.” The trial court did not determine whether Beard’s alleged remark was opinion, finding it would be subject to qualified privilege even if it was defamatory. The plaintiff again appealed dismissal of his claims.

 

On appeal, the plaintiff argued that the trial court erred in granting summary judgment for defendants because there was a genuine issue of material fact as to whether their claimed qualified privilege was abused. The Court began its analysis by explaining that a defamatory statement is not actionable if the defendant can show it is (1) reasonably capable of an innocent construction, (2) an expression of opinion, or (3) subject to a privilege. The Court went on to explain that qualified privilege exists where a statement that may otherwise be considered defamatory is protected due to the circumstances or occasion of its making. “This privilege is based on the policy of protecting honest communications of misinformation in certain favored circumstances in order to facilitate the availability of correct information,” the Court noted. Under Illinois law, the Court noted that qualified privileges exist when an interest is “held by the person publishing the statement, the person to whom the matter is published, some other third person, or the public.”

While the general rule is a defamation plaintiff need only show that the defendant was negligent in making the allegedly defamatory statement, when a qualified privilege exists, the Court explained that a plaintiff must show the defendant abused the privilege, for instance by making the statements with actual malice. The Court agreed that Briggs failed to establish a genuine issue of material fact as to whether qualified privilege was abused. Continue reading ›

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Every business owner knows the importance of online reviews. You might love them or hate them, but there’s no denying that they have a very real effect on your business. One of the first things people look at when investigating a business online is the number and rating of the reviews the business has received.

Managing online reviews can be tricky for any business owner, but navigating businesses that seem legitimate when they’re really posting their own positive reviews is an equally treacherous minefield for customers. Continue reading ›

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When a vehicle is totaled in an accident, it doesn’t always go straight to the scrap heap. Some totaled vehicles, although worth less than their insurance coverage, are still reparable. As long as they can be repaired and pass safety inspections, they can be resold. When totaled vehicles are resold without meeting these requirements, that’s when the resellers run into trouble, as three car dealerships in Pennsylvania recently discovered.

According to a recent lawsuit filed by Pennsylvania’s Attorney General, three car dealerships, all located in Lebanon, Pennsylvania, conspired with each other to sell totaled vehicles while lying about the status of their titles and safety inspections. Continue reading ›

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Companies forcing their employees and buyers into arbitration to resolve any dispute has become an increasingly big problem for both consumers and employees. It prevents many complaints from ever getting resolved if the arbitration costs more than the complaint, and it prevents plaintiffs from combining many small complaints into one big action against a corporation to justify the costs of pursuing legal action. Arbitration also prevents many individuals from getting a fair hearing when going up against a big corporation hiring an arbitrator who wants to remain on good terms with a client who brings them a lot of business.

One of the most damaging aspects of forced arbitration is that it’s private, which means if someone goes to arbitration over a complaint, even if they win, they are denied from talking about it to anyone else, and there is no process for journalists to report on the case. That means other individuals with similar claims have no way of knowing someone else pursued legal action over the same issue. That, in turn, prevents more claims against the company from ever getting pursued, much less resolved. Continue reading ›

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Most people buy their cars from car dealerships, but Tesla sells its cars directly to consumers, claiming to cut out the middle person and allegedly save its customers money in the process. Tesla claims it uses this system to benefit consumers, but a closer look at the contract it requires its buyers to sign may tell a slightly different story.

Tesla’s buyer contract includes an arbitration clause. That means any buyer that wants to sue Tesla, for any reason, is required to go through arbitration, rather than the courts, to pursue their claim against the electric car company. Continue reading ›

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The U.S. Food and Drug Administration recently published a proposed rule that, if implemented, would update the labeling standards that food products must meet in order to be labeled as “healthy.” The FDA first established a definition for “healthy” in 1994, and at that time nutrition science and federal dietary guidance focused more on the individual nutrients contained in food. According to the FDA, the proposed rule would “align the definition of ‘healthy’ with current nutrition science, the updated Nutrition Facts label and the current Dietary Guidelines for Americans,” with the goal of assisting consumers to increase their consumption of under-consumed dietary components.

The proposed rule would achieve this goal by requiring “healthy” foods to contain a minimum quantity of at least one of the specified food groups or subgroups recommended by the Dietary Guidelines such as fruits and vegetables, while limiting over-consumed ingredients that may lead to negative health consequences such as sodium or added sugars. The FDA’s proposed framework for the updated definition of “healthy” focuses on ensuring that foods labeled as healthy can qualify to bear the title by helping consumers to build a diet consistent with current dietary recommendations. Continue reading ›

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Sex trafficking requires more than one person to be involved in the process. So it should come as no surprise that the allegations against Jeffrey Epstein for sex trafficking didn’t stop with Epstein. His wife, Ghislaine Maxwell, was also found guilty of child sex trafficking and other crimes in connection with the abuse she and her husband committed on an ongoing basis.

Epstein and Maxwell were both very well-connected people, so it’s no wonder that people have speculated as to who knew about the sex trafficking before Epstein was arrested and the public became aware of his crimes. The horror and scope of the crimes has also led many to believe that it could not have been as secretive as many of those connected to Epstein have claimed. Since Epstein’s arrest, everyone from celebrities to politicians on both sides of the aisle have been accused of at least knowing about – if not directly participating in – Epstein’s sex trafficking. Continue reading ›

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When Stephen Easterbrook was first fired from his position as CEO of McDonald’s, the firing was listed as “without cause,” which allowed Easterbrook to keep his severance pay, including shares in the company. But that was before McDonald’s found out about the extent of Easterbrook’s alleged misconduct.

At the time he was fired, Easterbrook allegedly denied having any inappropriate relationships with any of his employees, except for one relationship, which he claimed had not been physical. Afterwards, an internal investigation found emails that allegedly revealed Easterbrook’s sexual relationships with multiple McDonald’s employees during his time as CEO. Once these emails were uncovered, the company sued Easterbrook in 2020.

The lawsuit resulted in Easterbrook returning his shares in the company, as well as cash, the combined value of which was about $105 million at the time he returned it. Continue reading ›

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