Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

A business that manages commercial real estate and its owners were sued in a purported class action under the Telephone Consumer Protection Act, 47 U.S.C. 227, for having paid a “fax blaster” (Business to Business Solutions) to send unsolicited fax advertisements. Aggregate statutory damages would be more than $5 million or, if the violation is determined to be willful or knowing, as much as three times greater. The Seventh Circuit denied leave to appeal class certification in the suit, which is more than five years old. The court noted that it had no knowledge of the value of the defendant-business and that, even if the defendants could prove that they will be forced to settle unless class certification is reversed, they would have to demonstrate a significant probability that the order was erroneous. Rejecting challenges concerning individual class members, the court noted that no monetary loss or injury need be shown to entitle junk‐fax recipient to statutory damages. The adequacy of the class representative was not challenged. View "Wagener Equities, Inc. v. Chapman" on Justia Law

When basketball legend Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in 2009, Sports Illustrated produced a special commemorative issue devoted exclusively to Jordan’s remarkable career. Jewel Foods was offered free advertising space in the issue for agreeing to stock the magazine in its 175 stores. Jewel submitted a full-page ad congratulating Jordan, which ran on the inside back cover of the commemorative issue. To Jordan the ad constituted a misappropriation of his identity for the supermarket chain’s commercial benefit. He sought $5 million in damages, alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. The district court accepted Jewel’s First Amendment defense, that its ad was “noncommercial” speech with full First Amendment protection. The Seventh Circuit reversed and remanded. Jewel’s ad prominently featured the “Jewel-Osco” logo and marketing slogan, which were creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. The ad was a form of image advertising aimed at promoting the Jewel-Osco brand; it was commercial speech and subject to the laws cited by Jordan.View "Jordan v. Jewel Food Stores, Inc," on Justia Law

Shannon pled guilty to possessing child pornography (18 U.S.C. 2252(a)(4)) and received a sentence of 46 months’ imprisonment followed by a lifetime of supervised release. About 13 months after he began his supervised release, Shannon’s probation officer filed a petition alleging that Shannon violated conditions of his supervised release by having a web camera connected to his computer without prior permission and by accessing several websites, including those with “teengal” and “teenplanet” in their domain names. The government proceeded only with respect to the web camera because it could not determine the exact ages of the persons in the websites Shannon viewed, but expressed its concern that Shannon viewed sexually explicit websites where the models were intended to depict teenage girls and that Shannon had at one point wiped his hard drive clean. The district court revoked Shannon’s supervised release despite his contention that the websites contained disclaimers that the sites did not actually depict any minors. The Seventh Circuit vacated, noting that the condition banning possession of any sexually explicit material was not restricted to material involving minors, nor was it limited to visual depictions, and that there were no findings or explanation for such a lifetime ban. View "United States v. Shannon" 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

The Indiana War Memorials Commission requires a permit for even small gatherings at the Soldiers and Sailors Monument at Monument Circle in Indianapolis and at several other monuments. Smith and his young son were expelled from Monument Circle for protesting, without a permit, a proposed United Nations arms treaty. Smith sought an injunction against the policy’s enforcement. The district court denied his motion. The Seventh Circuit reversed, noting that the U.S. has signed, but has not ratified the treaty and that the permit policy has changed since the district court denied the motion. The new policy retains the problematic features of the old, so Smith’s appeal is not moot. Smith seems likely to succeed in showing that the 14‐person limit on demonstrations without a permit, and a provision that, if a gathering has been advertised or the public has been invited, a permit is required even if the group ultimately is made up of fewer than 15 people, are not narrowly tailored. View "Smith v. Exec. Dir. of IN War Mem'ls Comm'n" on Justia Law

Indianapolis requires adult bookstores to remain closed between midnight and 10 a.m. every day and all day Sunday. Other retail businesses are not subject to the restrictions. Indianapolis contended that closure would curtail secondary effects, but the Seventh Circuit rejected the claim. The district court then held a trial and accepted the city’s claim of fewer armed robberies at or near adult bookstores. The Seventh Circuit reversed and remanded for entry of an injunction prohibiting enforcement. The city did not use a multivariate regression to control for other potentially important variables, such as the presence of late‑night taverns. The difference in the number of armed robberies is not statistically significant. The data did not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores and convenience stores, which are not subject to the hours imposed on bookstores. The secondary-effects approach endorsed by the Supreme Court permits governments to protect persons who want nothing to do with adult uses from harms created by adult businesses; the Supreme Court has not endorsed an approach under which governments can close adult bookstores to reduce crime directed against businesses that accept the risk of being robbed, or persons who voluntarily frequent their premises. View "Annex Books, Inc. v. City of Indianapolis" on Justia Law

Scott alleged that Westlake repeatedly called her cell phone using an automated dialer in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, and sought, for herself and a putative class, statutory damages of $500 for each negligent violation and $1500 for each intentional violation, injunctive relief, and attorney fees. Before she moved for class certification, Westlake sent Scott’s attorney an offer to pay Scott $1500 (the statutory maximum) “for each and every dialer-generated telephone call made to plaintiff.” Westlake agreed to pay costs and to entry of an injunction. The message concluded by warning Scott that, in Westlake’s opinion, its offer rendered her case moot. The next day, Scott moved for class certification and declined the offer, stating that there was “a significant controversy” concerning how many dialer-generated calls Westlake had placed to her phone, so the offer was inadequate and did not render her case moot. The district court dismissed, finding that Westlake had offered Scott everything she sought, depriving the court of subject matter jurisdiction, but retained jurisdiction to enforce compliance with the offer and directed the parties to conduct discovery to determine how many calls Scott received from Westlake. The Seventh Circuit reversed, finding that the case is not moot. View "Scott v. Westlake Servs., LLC" on Justia Law

In Wisconsin, Register of Deeds is an elected position. If a vacancy occurs mid-term, the governor may appoint an interim Register for any unexpired portion of the term. The Marinette County Register announced her mid-term retirement. Chasensky, then employed as Chief Deputy Register of Deeds, sought the interim appointment. Chasensky was interviewed by Esser, Walker’s appointments official, who informed Chasensky that he would forward her application to Governor Walker for appointment to the position. Esser subsequently learned that Chasensky was involved in a personal bankruptcy proceeding. Esser informed Chasensky that Walker would not appoint her as interim Register. Chasensky claims that Werwie, Walker’s official spokesperson, publically broadcast that she was not appointed because she was in a bankruptcy proceeding and that “[d]erogatory comments and innuendo regarding [her] bankruptcy, personal financial matters and character which impugned and harmed [her] professional and personal reputation were intentionally publically disclosed by Governor Walker and Mr. Werwie” when Governor Walker spoke on the FOX television network. Werwie publically announced that Walker had planned to appoint her until he learned of her bankruptcy. In her suit alleging violation of privacy rights, employment rights, and of 11 U.S.C. 525(a) (bankruptcy discrimination), the district court held that the defendants waived qualified immunity by failing to raise it before their motion to dismiss the amended complaint. The Seventh Circuit reversed; the defendants are entitled to qualified immunity from Chasensky’s privacy and equal protection claims. View "Chasensky v. Walker" on Justia Law

Craig self-published a book of adult relationship advice, “It’s Her Fault,” in which he discussed sexually provocative themes and used sexually explicit terms. Craig’s employer, a school district, learned of the book and terminated his employment because of it. Craig sued under 42 U.S.C. 1983, alleging retaliation for engaging in speech protected by the First Amendment. The district court dismissed, reasoning that “It’s Her Fault” did not address a matter of public concern and was not entitled to First Amendment protection. The Seventh Circuit affirmed on an alternative basis. The book deals with adult relationship dynamics, an issue with which many members of the public are concerned, but the school district’s interest in ensuring the effective delivery of counseling services outweighed Craig’s speech interest. The district reasonably predicted that “It’s Her Fault” would disrupt the learning environment at Craig’s school because some students, learning of the book’s hypersexualized content would be reluctant to seek Craig’s advice. View "Craig v. Rich Twp. High Sch. Dist." on Justia Law

Indiana enacted the Automated Dialing Machine Statute, which bans “robocalls” unless the receiver has consented to the calls in advance, Ind. Code 24–5–14–1, with limited exemptions. School districts may send messages to students and parents and employers may send messages to employees. There is no exception for political calls. Patriotic Veterans, an Illinois not‐for‐profit corporation whose purpose is to inform voters of positions taken by candidates and office holders on issues of interest to veterans, uses automatically dialed calls. For example, its website states that “in 2010, Patriotic Veterans, in partnership with singing idol Pat Boone sponsored nearly 1.9 million calls to veterans and seniors across the U.S. about cuts in Medicare as a result of the passage of Obamacare.” Patriotic Veterans claims that it cannot afford to make the calls without using an automatic dialer and a recorded message and that live operators cannot make calls fast enough when time is of the essence, such as on the eve of an election, and sought a declaration that the law violated the First Amendment and was preempted by the Federal Telephone Consumer Protection Act, 47 U.S.C. 227, which also regulates use of autodialers. The district court found that the TCPA preempted Indiana’s statute as applied to the interstate use of autodialers and entered an injunction against enforcement with regard to political messages. The Seventh Circuit reversed with respect to preemption and remanded for consideration of other issues. View "Patriotic Veterans, Inc. v. State of IN" on Justia Law