RSS Feed LinkedIn Instagram Twitter Facebook
FMG Law Blog Line

Archive for December, 2014

Court Expands TCPA Unsolicited Fax Liability

Posted on: December 30th, 2014

By: Matt Foree

The Telephone Consumer Protection Act (“TCPA”) has been criticized for its severe penalties and its failure to apply common sense.  As discussed in this blog previously, members of Congress submitted correspondence to the Chairman of the Federal Communications Commission (“FCC”) urging the FCC to revise the TCPA., which they describe as an “outdated federal law.

Nevertheless, the U.S. Court of Appeals for the Eleventh Circuit has recently expanded the scope of direct liability for unsolicited facsimiles under the TCPA.  In Palm Beach Golf Center-Boca, Inc. v. John D. Sarris, D.D.S., P.A., John Sarris, the owner of the defendant dental practice, hired a marketing manager and gave him “free rein” to market the practice.  The marketing manager was solicited by a third party that offered to send out mass fax advertisements.  The third party sent over 7,000 successful fax transmissions (at a cost of $420.00).  The District Court held that the plaintiff could only prevail under a theory of vicarious liability, i.e., that defendant was liable, if at all, only for the acts of its marketing manager, if it was established that he was an employee acting within the scope of his employment.  The court relied on a 2013 FCC Opinion, in which the FCC held that a seller under the TCPA could only be vicariously liable, and not directly liable, for calls made in violation of specific sections of the TCPA.  The District Court held that, even if the plaintiff had specifically pled vicarious liability, which it had not, the facts on record did not support such liability.

On appeal, the Eleventh Circuit overturned the District Court, determining that the 2013 FCC Opinion concerned only voice calls and text messages, and “did not construe the TCPA provision related to the sending of faxes.”  The court also determined that, under the provision of the TCPA governing faxes, the defendant could be directly liable “so long as the advertisement was sent on its behalf.”  Therefore, the court held that the record contained sufficient evidence for a jury to find that the fax sent to the plaintiff was sent “on behalf of” the defendant.

This recent decision should be a reminder for management to be aware of the potential for liability under the TCPA, even when using third parties for advertising.

Federal Oversight of Local Policing: A Growing Trend

Posted on: December 22nd, 2014

By: Peter Munk

Controversial uses of force by police in Ferguson, MO, Staten Island, NY, and Cleveland, OH have been among the most talked-about events of 2014.  In addition to what these uses of force say about the relationship between local police and the communities they serve, the deaths of Michael Brown, Eric Garner, and Tamir Rice have also shone a spotlight on federal oversight of local law enforcement agencies. It is widely publicized that the United States Department of Justice has opened federal investigations into the police departments of Ferguson, Staten Island, and Cleveland.  The question less frequently asked, however, is what legal authority DOJ has to investigate the actions and practices of local police.

One important source of authority is 42 U.S.C. § 14141, which prohibits police departments from engaging in a “pattern or practice” of unconstitutional conduct.  The act grants the Attorney General authority to institute a civil action to “obtain appropriate equitable or declaratory relief to eliminate the pattern or practice” if the Attorney General has a “reasonable cause to believe” that a “pattern or practice” of unconstitutional conduct exists.  Since the passage of § 14141, the Attorney General has brought “pattern and practice” actions in New Orleans, Pittsburgh, Los Angeles, Cincinnati, and many other major US cities.  And such investigations are occurring with increasing frequency: Current Attorney General Eric Holder recently boasted that DOJ’s Civil Rights Division has instituted over twice as many “pattern or practice” investigations in the past five years than were opened in the five years before that.  The DOJ has settled nearly all of the cases through extrajudicial negotiations, usually at great cost to the city subject to the investigation.

The Los Angeles Police Department, for example, which was the subject of a pattern or practice” lawsuit and consent decree beginning in the early 2000’s and ending just last year, paid an estimated $40 million to comply with DOJ’s directives in the first year, and $50 million every year thereafter.

Given the high costs associated with a federal investigation, law enforcement agencies across the country would be wise to proactively examine their practices and procedures and root out elements that could land them crossways with the federal government.

OFCCP Announces Implementation of Final Rule Modifying Obligations of Federal Contractors

Posted on: December 16th, 2014

By: Joyce Mocek

On December 9, 2014, the Office of Federal Contract Compliance (OFCCP) published a Final Rule implementing Executive Order 13672 which prohibits discrimination based on sexual orientation and gender identity as it relates to federal contractors and subcontractors.   President Obama signed Executive Order 13672, which amended Executive Order 11246, this summer.  The Final Rule requires contractors and subcontractors to include an updated Equal Opportunity Clause to include sexual orientation and gender identity in new or modified subcontracts or purchase orders, to ensure that applicants and employees are not discriminated against due to their sexual orientation and gender identity, and to amend job solicitation and work place notices on equal opportunity to include the protected categories of sexual orientation and gender identity.

The Final Rule does not require contractors or subcontractors to collect data, establish placement goals or conduct statistical analysis, nor does it require them to ask applicants or employees to voluntarily self-identify their sexual orientation or gender identity.   The Final Rule also does not define “sexual orientation” or “gender identity”, rather the OFCCP has advised that it will rely on the EEOC guidelines and existing Title VII law.

The Final Rule will be effective 120 days after its official publication of December 9, 2014 on April 8, 2015.   It applies to all covered contracts entered into or modified after the April, 2015 date.  Although comments on the Final Rule and the implementation of the revised regulations are being requested and accepted until February 6, 2015, it is unlikely that there will be significant modification to the Final Rule and we anticipate that this will an area of continuing focus next year.

Police Officer’s Mistake of Law Does Not Make an Arrest and Search Invalid

Posted on: December 16th, 2014

By: Wayne Melnick

Earlier this week, the United States Supreme Court ruled that a police officer’s mistaken belief of the state of the law does not make an arrest and search invalid as long as the officer’s belief was reasonable.  In Heien v. North Carolina, Case No. 13-604, an 8-1 majority affirmed the ruling of the North Carolina Supreme Court and held that even assuming no violation of the law took place, as long as the officer’s “mistaken understanding of the law was reasonable” a stop made was valid and anything that flowed from the stop was, therefore, not suppressible.

In Heien, a police officer pulled a vehicle over for having only one operating tail light, believing that North Carolina law required both tail lights to be operational.  During the stop, the officer obtained and received permission to search the vehicle and found cocaine during the search.  It turns out, that North Carolina law required only “a stop lamp” or “the stop lamp” and based on that language, Chief Justice Roberts concluded that the officer was mistaken in believing that he had reasonable suspicion to believe the driver had committed any crime.  However, Chief Justice Roberts also stated that this “mistake of law,” as long as it was “reasonable” (as it was in this case), did not invalidate the stop; and therefore the subsequent search and arrest were deemed appropriate.

The ramification of this in the civil rights arena quickly comes into question. Now, when a citizen claims that his Fourth Amendment rights have been violated for an illegal seizure if the stop is based on the officer’s incorrect, but reasonable belief that the suspect was violating the law (when in fact, no law was broken), will the officer have the defense that as long as the officer’s belief that a crime was being committed was reasonable that it provides him qualified immunity to any potential section 1983 claim?  No doubt, this will provide a soon-to-be developed front in the ever-changing world of Fourth Amendment civil rights cases.

Are We Speaking the Same Language? (Part 2)

Posted on: December 15th, 2014


By: Seth Kirby

In a previous blog entry we discussed the concept of “micro-language” and its relationship to insurance coverage disputes.  In essence, this concept is a recognition that people ascribe different meanings to words and phrases based upon their interactions with other speakers throughout their life.  For instance,  if your family constantly refers to the television remote as the “clicker,” then “where is the clicker?” may be the first phrase that comes out of your mouth when searching for the remote between the cushions of the couch.  This concept goes beyond slang terms and it affects the way people perceive written and spoken communication.  Whether a phrase sounds like “proper” English to a listener is dependent upon the linguistic influences that person has been exposed to throughout their life.

In the insurance world, if a policy fails to clearly and unequivocally define its terms, courts will interpret the language in a manner most favorable to the policy holder.  But how does a carrier define the terms of coverage, when people cannot agree on what basic phrases mean?  A shining example of this difficultly was provided by the Georgia Court of Appeals this year in American Strategic Ins. Corp. V. Helm where a policy holder had been in an accident while driving his four passenger golf cart.  The policy excluded coverage for injuries sustained while operating a motor vehicle, except for motorized golf carts designed to carry “up to 2 persons.”  The carrier argued that the policy did not provide coverage for the accident because the golf cart at issue was designed to carry more than 2 people.  The court found that the policy provision was ambiguous and refused to enforce the exclusion because the language “up to 2 persons” could be reasonably understood to impose a minimum requirement that covered golf carts must seat at least two people.  Since this golf cart held more than two people, the accident was covered by the policy.

Now consider similar language in the context of mountain climbing.  The rope that you are about to use as a safety device has a warning stating “This rope is designed to support weight up to 300 lbs.”  Would it be reasonable to assume that you need to exceed 300 lbs. in order to safely use the rope?  Perhaps you should have some other climbers join in on the rope to ensure that you exceed the 300 lbs. limit?  Or perhaps not.  It seems clear that we are not all speaking the same language when it comes to policy interpretation.