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Our founding fathers may not have guaranteed the right to free speech in the first draft of the U.S. Constitution, but it did make it into the very first amendment to the document. A series of Supreme Court rulings during the Civil Rights movement extended the right to free speech, but now at least two Supreme Court Justices want to reverse that decision.

At the height of the Civil Rights movement, The New York Times published an advertisement that criticized terrorism against protestors in the Civil Rights movement in the South. L.B. Sullivan, the police commissioner of Montgomery, Alabama at the time, sued the newspaper, claiming the ad falsely accused him of misconduct. Sullivan was not even named in the ad, but a jury in Alabama ruled in his favor and awarded him $500,000 in damages.

The case made its way up to the Supreme Court, which reversed the decision. The Court based its ruling on the fact that the First Amendment of the U.S. Constitution prohibits public officials from recovering damages for defamation regarding their official conduct. The only exception to that rule is if the plaintiff can prove the allegedly defamatory statement was made with “actual malice”, meaning the defendant knew the statement was false at the time they made it, and they made it anyway with the intention of inflicting some sort of harm (financial or otherwise) on the plaintiff.

The Court concluded by saying the ruling was in the spirit of the First Amendment, which was designed to encourage free and open debate on public issues, even when it means leaving public figures to get attacked in the press. While the First Amendment initially applied only to public officials (those holding elected government positions), later Supreme Court rulings extended the protection to any speech about any public figure, including entertainers and other celebrities. Continue reading ›

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Recently, the Illinois Appellate Court for the First District issued a significant decision on the question of which statute of limitations govern claims for violations of the Illinois Biometric Information Privacy Act (“BIPA”). In its opinion, the Court ruled that claims for unlawful profiting from or disclosure of biometric data, those brought under sections section 15(c) and (d) of the BIPA, are subject to a one year limitations period while claims involving violations of the notice, consent and retention requirements, those brought under sections 15(a), (b), and (e) of the BIPA, are subject to a limitations period of five years. This decision should bring much needed clarity to class-action plaintiffs and defendants alike.

The BIPA, one of the most robust privacy statutes in the country, imposes various obligations on anyone that collects, stores or uses biometric identifiers such as fingerprints, retina or iris scans, voiceprints, or face geometry from Illinois residents. Failure to comply with the BIPA’s requirements can be costly as violations of the statute entitle successful plaintiffs to statutory damages ranging from $1,000 to $5,000 for each violation (plus attorney fees). This can add up quickly as claims for violations of the BIPA are frequently brought as a class action as we have seen in recent years.

The underlying case was brought by two former drivers for Black Horse Carriers, a trucking and logistics company. The plaintiffs filed the case as a class action. In their lawsuit, the former drivers alleged that Black Horse failed to obtain consent to use drivers’ fingerprints or to institute a retention schedule. They also accused the company of unlawfully disseminating their biometric data by sharing fingerprints with a third-party vendor that processed timekeeping records for the company. Continue reading ›

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In a putative class-action lawsuit filed against Apple concerning alleged violations of the Illinois Biometric Information Privacy Act (BIPA), the parties disputed the scope of discovery to which the plaintiffs were entitled. The plaintiffs sought to compel Apple to produce certain identifying information for Illinois residents with Apple devices containing the Photos App. The plaintiffs also issued document subpoenas to major resellers of Apple products for the personal data of individual customers. The district court ultimately denied the request to compel and quashed the subpoenas, citing concerns about how personal information would be protected given the increase in cyber attacks and hacking incidents.

The suit centers on the Photo App contained on Apple devices that displays photos stored on the devices. According to the plaintiffs, the Photo App collects biometric identifiers and biometric information, including scans of facial geometry and related biometric information, of the individuals in the photos. Apple collects these biometric identifiers, the plaintiffs allege, without first notifying the individuals in writing and obtaining their informed consent. The plaintiffs further allege Apple possessed biometric identifiers and biometric information without creating and following a written, publicly available policy with retention schedules and destruction guidelines. According to the plaintiffs’ complaint, these actions violate the BIPA. Continue reading ›

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A federal appeals court has revived a portion of Representative Devin Nunes’s defamation lawsuit that was dismissed last year finding that the defendant’s tweeting a link to the allegedly defamatory article after the lawsuit was filed could satisfy the actual malice requirement.

In September 2018, Esquire magazine published an article about Representative Nunes and a dairy farm in Iowa owned by Nunes’s family. Political journalist, Ryan Lizza, authored the article titled “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret” (online version) and “Milking the System” (print version). The print version included a caption with two questions about Nunes: “So why did his parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?”

Nunes took issue with a number of claims in the article. In his defamation complaint filed in 2019, Nunes identified 11 statements in the article that he alleged were defamatory. Additionally, Nunes alleged that the article falsely implied that he “conspired or colluded with his family and with others to hide or cover-up” that the farm “employs undocumented labor.”

In August 2020, a federal judge in northern Iowa dismissed the case finding that none of the statements identified by Nunes were defamatory as a matter of law and that Nunes, as a public figure, had not met the high bar of showing that the magazine or Lizza had published the article with actual malice.

Nunes appealed the dismissal to the 8th Circuit Court of Appeals. On appeal the Court ruled that the district court correctly sided with the defendants in deciding that the allegedly defamatory statements failed as a matter of law. However, the Court sided with Nunes on his argument that the district court improperly dismissed his claims for defamation by implication. Defamation by implication occurs when the defendant either juxtaposes a series of facts to imply a defamatory connection between them or omits certain facts to create a defamatory implication. Continue reading ›

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At the request of Congress, the Copyright Office recently agreed to undertake a public study to evaluate the effectiveness of current copyright protections for publishers in the United States, with a particular focus on press publishers. The Copyright Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to press publishers and other content creators beyond those afforded under existing copyright law.

In its letter requesting the study, Congress cited a recent directive by the European Union establishing “ancillary copyright” protections for press publishers. The Copyright Office has stated that its study will consider whether or not similar protections are warranted within the United States, as well as the potential scope, source, and appropriate beneficiaries of any such additional protections. Responsive comments from the public are due November 26, 2021. The Copyright Office will also hold a virtual public roundtable to discuss these and other related topics on December 9, 2021. A participation request form will be posted on the Copyright Office website by October 25, 2021.

The study could impact both traditional media outlets producing content and on digital media sharing of that content. It was specifically the impact of digital media on traditional content publishers that served as the impetus for the new study. The Copyright Office’s notice began with the observation that the internet has ushered in an era of disruption and transformation for the press-publishing ecosystem. It recites the financial impact that the internet has had on newspapers and other publishers. Specifically, the notice notes that newspaper advertising revenues enjoyed a steady increase for more than three decades during the years from 1970 to 2006, but have since suffered a precipitous 62% decline during the years from 2008 to 2018. From 2008 to 2019, the number of newspaper newsroom employees dropped by more than 40% and one in five (20%) newspapers closed. Continue reading ›

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In a recent decision, the Seventh Circuit clarified the proper standard for deciding a motion for summary judgment. Many litigants and lawyers alike believe that the existence of a factual dispute is sufficient to stave off summary judgment and proceed to trial. However, the Seventh Circuit took the opportunity to reaffirm once again that the existence of factual disputes alone will not preclude summary judgment. Instead, the facts in dispute must be material in nature to prevent entry of summary, often referred to by courts as “genuine issues of material fact.” While acknowledging the existence of factual disputes aplenty in the First Amendment suit, the Seventh Circuit nonetheless ruled that the District Court properly entered summary judgment for the defendants because the plaintiff failed to identify any genuine issues of material fact in the case.

The plaintiff company lost its business licenses to operate two restaurants in the small Chicago suburb of Worth after supporting a political candidate running against the incumbent Village President, Mary Werner. After losing its business licenses, the company, FKFJ, Inc., filed suit against the Village of Worth and Werner under 42 U.S.C. 1983, alleging that the Village and Werner violated its First Amendment rights by retaliating against the company for supporting Werner’s opponent in the election. The case proceeded through discovery and the defendants then filed for summary judgment. FKFJ opposed summary judgment arguing that there were numerous factual disputes in the case. Despite FKFJ’s contention, the District Court granted summary judgment for the Village and Werner.

FKFJ appealed the entry of summary judgment arguing that the District Court erred by ignoring genuine disputes of material fact and making improper credibility determinations at the summary judgment stage. In support of its appeal, FKFJ pointed to a number of factual disputes that it claimed precluded the entry of summary judgment in the case. FKFJ argued that the issue of whether Werner possessed ill-will toward the plaintiff and its owners was a factual dispute sufficient to defeat a motion for summary judgment. Continue reading ›

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A federal District Court recently dismissed the defamation claims filed by embattled attorney Michael Avenatti against Fox News and several of its anchors. In its decision, the District Court found that Avenatti’s claims failed to overcome the high hurdle to sustaining defamation claims against a media defendant. In the Court’s opinion, it ruled that the case fell squarely into the longstanding rule that “news outlets are not liable for minor mistakes, especially when reporting on public figures and matters of public concern.”

Avenatti garnered the national spotlight in early 2018 when he represented the adult film actress, Stormy Daniels, who sought to invalidate a non-disclosure agreement regarding her alleged sexual relationship with Trump. Following the filing of these suits, Avenatti became a vocal critic of former President Trump regularly appearing on cable news to criticize Trump and bring attention to Daniels’ suit against the former president. Avenatti’s public image rapidly eroded in late 2018, when news outlets widely reported that he had been arrested in Los Angeles for suspected domestic violence. Though Avenatti’s bail was set, prosecutors never formally charged him. Continue reading ›

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In a class-action filed against Champion Petfoods alleging that the pet food company misrepresented the quality of its dog food and ingredients, the Seventh Circuit recently affirmed a grant of summary judgment in favor of Champion. In doing so, the Court reiterated to future litigants that “summary judgment is the proverbial put up or shut up moment in a lawsuit.” The lesson of the case for class-action plaintiffs is that evidence concerning the merits of the plaintiff’s case is just as important as evidence concerning class certification.

According to the plaintiff in the case, Champion advertised on its packaging that its dog food was “biologically appropriate” and made with “fresh regional ingredients” prepared in its “award-winning kitchens.” These claims were false and misleading, according to the plaintiff, because: (1) Champion uses frozen ingredients, regrinds refreshed ingredients, and includes ingredients that are past their expiration date; (2) the ingredients are sourced from all over the world; and (3) there is a risk that the dog food contains BPAs and pentobarbital.

Champion moved for summary judgment while the plaintiff moved for class certification. The District Court granted Champion’s motion on all counts. On appeal, the Court found that the plaintiff failed to present evidence to support his claims. The Court reminded the plaintiff of its oft-repeated refrain that at summary judgment the plaintiff “may not rest upon mere allegations” but must “go beyond the pleadings and support his contentions with proper documentary evidence.”

The plaintiff in the case relied almost entirely on his own testimony to oppose summary judgment. The Court found that this was insufficient to stave off summary judgment. Because the case was a deceptive advertising claim that did not involve patently misleading claims, the Court explained that the plaintiff had the burden of producing evidence to support the contention that the average consumer would be misled by the advertising. The plaintiff’s own testimony could not do this. The Court found of particular note that the plaintiff did not provide either consumer survey evidence or expert testimony to support his claims. Continue reading ›

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The federal government has increased its efforts to curtail the abuse of restrictive covenants such as non-compete agreements, non-solicitation agreements, and no-poaching agreements. In July of this year, President Biden signed the Executive Order on Promoting Competition in the American Economy, which encourages the Federal Trade Commission (FTC) to make use of its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

Federal agencies have already been utilizing antitrust and unfair competition laws to combat the abusive use of restrictive covenants. The Department of Justice (DOJ) and the FTC are the two federal agencies authorized to enforce antitrust laws. The two federal laws primarily used by these agencies are the Sherman Antitrust Act, 15 U.S.C. 1 et seq., and the Fair Trade Commission Act, 15 U.S.C. 41 et seq. The Sherman Act makes illegal contracts in “restraint of trade or commerce.” The Fair Trade Commission Act prohibits “unfair methods of competition” and “unfair or deceptive trade practices.” The Supreme Court has held that any violation of the Sherman Act necessarily violates the Fair Trade Commission Act.

The Department of Justice has been cracking down on the use of no-poaching agreements between competitors since 2010. The DOJ’s Antitrust Division has been prosecuting “horizontal” (i.e. agreements between competitors) no-poaching agreements under the Sherman Act. In September 2010, DOJ announced it had reached a settlement with several large technology companies who had agreed not to “poach” each other’s employees. Continue reading ›

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The U.S. Court of Appeals for the Seventh Circuit recently affirmed the imposition of a preliminary injunction obtained by Illinois-based medical device maker, Life Spine Inc., against a former business partner who allegedly misappropriated Life Spine’s trade secrets and gave them to its parent company, a competitor of Life Spine. The outcome affirms that injunctive relief is available to plaintiffs when irreparable harm is plausibly alleged, but also highlights that a company need not personally use the trade secrets to be found liable under the Defend Trade Secrets Act (DTSA), 18 U.S.C. §1836 et seq., and the Illinois Trade Secrets Act (ITSA), 765 ILCS 1065/1 et seq.

This trade secret misappropriation case arises from a short-lived business relationship between two companies that sell spinal implant devices. Life Spine makes and sells a spinal implant device known as the ProLift Expandable Spacer System. Life Spine partnered with Aegis Spine, Inc. to distribute the ProLift to hospitals and surgeons. In the distribution agreement, Aegis promised to protect Life Spine’s confidential information, act as a fiduciary for Life Spine’s property, and refrain from reverse engineering the ProLift. Unbeknownst to Life Spine, Aegis allegedly funneled information about the ProLift to its parent company, L&K Biomed, Inc., to help L&K develop a competing spinal implant device.

Shortly after L&K’s competing device hit the market, Life Spine filed suit against Aegis alleging claims of trade secret misappropriation and breach of contract. Following a nine-day evidentiary hearing, the district court ruled in favor of Life Spine and entered a preliminary injunction against Aegis and its business partners, preventing them from marketing the competing product. Aegis appealed arguing that a company cannot have trade secret protection in a device that it publicly discloses through patents, displays, and sales. The Seventh Circuit disagreed. Continue reading ›

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