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

Attorney Turza sent fax advertisements to accountants. In 2013, the Seventh Circuit affirmed that these faxes violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, but reversed a plan to distribute a $4.2 million fund to the class members and donate any remainder to charity. Meanwhile, Turza posted a $4.2 million supersedeas bond. Invoking the common-fund doctrine, the district judge awarded class counsel about $1.4 million. TCPA authorizes an award of up to $500 per improper fax. The court ordered two-thirds of that sent to every class member. If some members fail to cash their checks or cannot be found, there would be a second distribution. The maximum paid out per fax would be $500. If money remains, the residue returns to Turza. The Seventh Circuit reversed in part. This is not a common-fund case; suits under TCPA seek recovery for discrete wrongs. If a recipient cannot be located, or spurns the money, counsel are not entitled to be paid for that fax. TCPA is not a fee-shifting statute. Turza is not required to pay the class’s attorneys just because he lost the suit. Distributing more than $500 per fax ($333 to the recipient and $167 to counsel) would either exceed the statutory cap or effectively shift legal fees to Turza. The $4.2 million represents security for payment, so once the debt is satisfied, the surplus can be returned to Turza. View "Holtzman v. Turza" on Justia Law

Indiana Rules for the Admission to the Bar and the Discipline of Attorneys state: “No person who advocates the overthrow of the government of the United States or this state by force, violence or other unconstitutional or illegal means, shall be certified to the Supreme Court of Indiana for admission to the bar of the court and a license to the practice of law.” Plaintiff intends to engage in “revolutionary advocacy,” as by distributing the Charter of Carnaro and Marx and Engels’ Communist Manifesto. He challenged the Rule, without stating that he intends to advocate the overthrow of the government. The Seventh Circuit affirmed dismissal of the suit as premature. Plaintiff has not applied for admission to the Indiana bar and lacks standing. The rule will harm him only if he would be admitted to the Indiana bar were the rule to be invalidated: “that is highly unlikely,” given “his tempestuous relations with the Illinois bar authorities,” who deemed him unfit to practice law, citing his failure to acknowledge on his applications his multiple arrests and firings over the previous decade. View "Otrompke v. Skolnik" on Justia Law

Citilink, a municipal corporation that provides bus service in Fort Wayne, Indiana, has regulatory authority over advertisements inside the buses and on the buses’ exterior. Health Link, a nonprofit corporation, provides women’s healthcare and wanted to post an advertisement. Citilink refused because it forbids public service ads that “express or advocate opinions or positions upon political, religious, or moral issues.” Although the proposed ad did not express or advocate any such opinion or position, Citilink discovered that Health Link is pro‐life and suggests (not in the ad) that women with unplanned or crisis pregnancies consider health care and related services that provide alternatives to abortion. Even Health Link’s home page does not indicate its position. The ad referred to “life affirming healthcare.” Health Link and Allen County Right to Life share a street address. The Seventh Circuit reversed judgment in favor of Citilink. Once a government entity has created a facility (the ad spaces in and on the buses) for communicative activity, it “must respect the lawful boundaries it has itself set.” Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech. View "Women's Health Link, Inc. v. Fort Wayne Pub. Transp. Corp." on Justia Law

Wagener agreed to review proposed ads from MR, then received a fax from MR, including pricing and sample fax advertisements, and stating that MR would not send out ads unless Wagener returned an approved copy. During a follow-up call, Wagener stated that he did not like the samples. The caller agreed to provide a new sample and a list of potential recipients. Wagener wanted to verify that potential recipients were businesses that would be interested in his services and were located in the relevant geographical region. Wagener did not receive that list or a final ad and was surprised to find that a fax advertisement had been transmitted to thousands of recipients without his approval. Wagener immediately tried to contact MR but received no response. Wagener then learned that his employee had mistakenly mailed a check to MR. Wagener’s bank implemented a stop order. Wagener never heard from MR again. The Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C), subjects the sender of unauthorized faxes to a statutory penalty of $500 per violation. The ads at issue violated the Act. The district court certified a class of more than 10,000 plaintiffs. A jury found that Wagener had not “authorize[d] the fax broadcast transmission,” and did not “have direct, personal participation in the authorization of the fax broadcast transmission.” The Seventh Circuit affirmed, rejecting challenges to evidentiary rulings and jury instructions. View "Paldo Sign & Display Co. v. Wagener Equities, Inc." on Justia Law

Tri-Corp, a nonprofit corporation, offered low-income housing to mentally disabled persons in Milwaukee. Its lender, the Wisconsin Housing and Economic Development Authority, filed a foreclosure action. Tri-Corp blamed others for its financial problems and named several third-party defendants. The state court allowed the foreclosure and rejected the third-party claims except those against Milwaukee Alderman Bauman, who removed the claims to federal court. Tri-Corp contends that Bauman is liable under 42 U.S.C. 1983 for issuing statements critical of its operations and for lobbying other officials to rule against it in administrative proceedings, in violation of the Fair Housing Act, the Rehabilitation Act, and the Americans with Disabilities Act. The Seventh Circuit joined six circuit courts in holding that section 1983 cannot be used to alter the categories of persons potentially liable in private actions under the Rehabilitation Act or the Americans with Disabilities Act. Tri-Corp did not allege that Bauman himself denied it any right under the Fair Housing Act, or even was a member of a public body that did so. Tri-Corp accuses Bauman of speech, not action. Public officials enjoy the right of free speech and the Noerr-Pennington doctrine applies to claims under the Act, allowing governmental officials to try to persuade other officials to take particular actions. View "Tri-Corp Hous. Inc. v. Bauman" on Justia Law

Left Field publishes Chicago Baseball magazine, producing four issues per baseball season. Copies are sold for $2 outside Wrigley Field before the Chicago Cubs’ home games. On the day of the Cubs’ 2015 home opener, Chicago police officer Voulgaris saw Left Field’s editor, Smerge, selling the magazine at the corner of Clark and Addison streets. Voulgaris told Smerge to move across the street to comply with Chicago’s Adjacent Sidewalks Ordinance, which forbids all peddling on the streets adjacent to Wrigley Field. Smerge refused to move and was ticketed. Left Field sued under 42 U.S.C. 1983, contending that the ordinance violates the First Amendment. Chicago agreed not to enforce the ordinance pending a decision. The 2015 season ran its course. As the playoffs began, the district court declined to issue a preliminary injunction, noting the density of the area around the field and the tight passages. The Seventh Circuit affirmed. The ordinance does not regulate speech. It regulates peddling, without regard to what the peddler sells. The court noted that Left Field has never applied for a license: while additional issues could arise if the ordinance were applied to newspapers, the court expressed doubt that it would be applied to a newspaper. View "Left Field Media LLC v. City of Chicago" on Justia Law

Over the past decade, Attorney Novoselsky has filed many lawsuits alleging improprieties by Dorothy Brown, in her capacity as Clerk of the Circuit Court of Cook County, Illinois. Brown later made statements to private parties, the public, and the Illinois Attorney Registration and Disciplinary Committee, accusing Novoselsky of being an unscrupulous attorney. Novoselsky sued Brown under state law for defamation and under 42 U.S.C. 1983 for First Amendment retaliation, and he sought to hold Cook County liable for Brown’s actions. Brown unsuccessfully moved for summary judgment, arguing that her communications are protected from liability by immunity. The Seventh Circuit reversed. On the state‐law defamation claim, Brown’s communications were all statements reasonably related to her official duties. Illinois state law provides immunity to Brown for claims based on these statements. Brown is also entitled to summary judgment on the First Amendment retaliation claim, for all she did to retaliate was criticize Novoselsky, so Cook County is also entitled to summary judgment. View "Novoselsky v. Brown" on Justia Law

Milwaukee ordinances required certain licenses before a business was permitted to offer nude or partially nude entertainment. Six Star, which applied for a license, and Ferol, which did not apply challenged these ordinances, seeking injunctive relief and damages. Once the ordinances were repealed, they dropped their requests for injunctive relief but continued to pursue damages. The district court held that the ordinances addressed time, place, and manner of expression, but did not include the necessary procedural safeguards. A jury then decided that but for the unconstitutional ordinances, Ferol would have opened a club providing nude entertainment. It awarded Ferol compensatory damages in the form of lost profits, and gave Six Star nominal damages. The Seventh Circuit affirmed, rejecting the city’s argumens that Ferol had no injury and therefore no standing to challenge the ordinances, and its challenge to Ferol’s theory of causation and the award of nominal damages to Six Star. View "Six Star Holdings, LLC v. City of Milwaukee" on Justia Law

Clark runs Affordable Hearing in Terre Haute, Indiana. In 2006, Clark received calls from a B2B employee, who offered to market Affordable Hearing’s services by faxed advertisements. Clark agreed to try fax-advertising, approved the language of the ad, and verbally instructed B2B to send about 100 faxes to businesses within a 20-mile radius of Terre Haute. He did not know what it cost to send a fax, but thought the quoted $279 was reasonable. Trusting that Melville would send the 100 faxes as authorized, Clark never asked to see the list of fax numbers that B2B was using. Clark did not realize that B2B actually faxed 4,849 ad flyers to businesses across Indiana, Illinois, and Ohio. After Bridgeview received a fax ad outside Chicago, it sued under the Telephone Consumer Protection Act, which, unbeknownst to Clark, outlaws unsolicited fax ads. In granting summary judgment for class members located within 20 miles of Terre Haute, the district court gave the statutory penalty of $500 per recipient to 32 recipients within that 20-mile radius--a $16,000 judgment against Clark. The court held that Clark was not liable for the junk faxes sent more than 20 miles from Terre Haute. The Seventh Circuit affirmed class certification and the determinations of liability. View "Bridgeview Health Care Ctr., v. Clark" on Justia Law

In 2000, Kubiak, a Chicago patrol officer for 14 years, was detailed to the Office of News Affairs, as a media liaison. In 2012, Zala, another media liaison, allegedly ran toward Kubiak, screaming, “Who the fuck do you think you are, you stupid bitch?” He swung his hand back as if to strike her. Officer Perez tried to calm Zala. Kubiak called Director Stratton, stating that Zala had previously directed similar outbursts toward her. During the call, Zala continued to berate and intimidate her. Kubiak alleges that Zala has a history of violence. Stratton told Kubiak that she had spoken with Zala and would not discuss the incident further. Kubiak’s supervising Lieutenant also declined to discuss the incident. Kubiak initiated an Internal Affairs Division investigation, which was “sustained.” Within days, Kubiak was reassigned as a patrol officer on a midnight shift in an allegedly dangerous neighborhood. Perez was also reassigned to patrol. Kubiak, the most senior ONA member, and Perez were the only officers reassigned although others had requested transfer. Kubiak alleges that Zala was never reprimanded. The Seventh Circuit affirmed dismissal of Kubiak’s 42 U.S.C. 1983 claims, concluding that Kubiak’s speech was not constitutionally protected since Kubiak did not speak as a private citizen and did not speak on a matter of public concern. View "Kubiak v. City of Chicago" on Justia Law