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Archive for August, 2019

Breaking – Eleventh Circuit Holds No TCPA Standing For Receipt of Single Unsolicited Text Message

Posted on: August 29th, 2019

By: Matthew Foree

In Salcedo v. Alex Hanna, the U.S. Court of Appeals for the Eleventh Circuit has just issued a major decision holding that receipt of a single unsolicited text message does not establish standing under the Telephone Consumer Protection Act (“TCPA”). A copy of the opinion is available here.

In this case, the plaintiff, who was a former client of the defendant law firm, received a multimedia text message from the defendant offering a 10% discount on his services. Plaintiff filed suit as a representative of a putative class of former clients who received unsolicited text messages from the defendant in the past four years alleging violations of the TCPA.

In reaching its decision, the court considered Eleventh Circuit precedent in the Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D. D. S., P. A. case, in which it found standing for a plaintiff who alleged that receiving a junk fax in violation of the TCPA harmed him because, during the time that it took to process the fax message, his fax machine was unavailable for legitimate business. The court distinguished that case based on differences between faxes and text messages.  Among other things, it found that a fax message consumed the fax machine entirely while a text does not consume a cellular phone.  It noted that, unlike a cellular phone, a fax machine is unable to receive another message while processing.

The court also looked to the judgment of Congress as to whether plaintiff’s allegations were treated as a concrete injury-in-fact. Among other things, the court recognized that “Congress’s legislative findings about telemarketing suggest that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA. In particular, the findings in the TCPA show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging.” The court determined that Congress’s “privacy and nuisance concerns about residential telemarketing are less clearly applicable to text messaging.” Significantly, it noted that a single unwelcome text message will not always involve intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.  As part of its analysis, the court also found the Ninth Circuit decision in the Van Patten v. Vertical Fitness Group, LLC case, which dealt with the same issue, unpersuasive.  It distinguished that case by noting that it stopped short of examining whether isolated text messages not received at home come within the judgment of Congress.

The Eleventh Circuit also found that history and the judgment of Congress do not support finding concrete injury in plaintiff’s allegations. It noted that the plaintiff did not allege “anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone.” The court  summed up its position by stating that the “chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waved in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts.”

Judge Pryor concurred in judgment only and noted that the majority opinion appropriately, and her view, leaves unaddressed whether a plaintiff who allege that he had received multiple unwanted and unsolicited text messages may have standing to sue under the TCPA. With this understanding, she concurred in the majority’s judgment.

It remains to be seen how this case will be used to defeat standing in future cases, including how it is applied to cases involving multiple text messages and calls to cellular telephones.  This is a major decision that will have a drastic effect on standing in TCPA class action cases. If you have any questions about this decision, please do not hesitate to contact Matt Foree at [email protected].

California Attempts to Change Standard of Liability for Use of Force Claims

Posted on: August 29th, 2019

By: Sara Brochstein

Earlier this month, California enacted a new measure that goes into effect in 2020 altering the use of deadly force standard for law enforcement officers. The law was originally introduced in response to the March 2018 shooting of Stephon Clark in Sacramento.

The new standard dictates that the use of deadly force is acceptable only when it is “necessary in defense of human life” and no other alternatives are available.  And in determining whether deadly force is necessary, officers are required to evaluate each situation in light of the particular circumstances of each case and use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

This is a departure from the federal standard of whether the officer’s use of deadly force was “objectively reasonable” as addressed by the Supreme Court in Tennessee v. Garner (1985) and Graham v. Connor (1989).  However, the new law fails to set forth a specific definition of “necessary,” which would leave interpretation to the courts on a case-by-case basis. Thus, while many view the new standard as “heightened,” it remains to be seen whether it will yield different results.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

Interviewing on a Clean Slate: Employers’ Obligations Under Pennsylvania’s Newly Enacted Clean Slate Law

Posted on: August 26th, 2019

By: Sean Riley

Pennsylvania recently became the first state in the country to enact clean slate legislation, which provides for the automatic sealing of non-violent misdemeanor criminal records for those who qualify after a set period of time. The law is expected to seal approximately 30 million cases by June 2020 which corresponds to roughly half of the courts’ entire database. The Clean Slate Law prohibits employers from requesting an individual’s criminal history records that have been expunged or sealed pursuant to the new law and expressly authorizes an applicant to respond to an inquiry as if the offense did not occur. However, the law also provides immunity from liability for employers who hire an individual with an expunged or sealed criminal record in a civil action based upon damages suffered as a result of the employee’s criminal or unlawful actions and the individual’s suitability for employment. Accordingly, employers utilizing form applications requesting the disclosure of an applicant’s criminal history should now include a disclaimer on their applications that the candidate should not provide information about criminal conviction that has been expunged or sealed pursuant to law. While Pennsylvania is the first state to enact clean slate legislation, similar measures are catching on in other states such as Michigan and Colorado and similar legislation aiming to automatically clear certain federal records was introduced in Congress last year.

If you have any questions or would like more information, please contact Sean Riley at [email protected].

Let the Music Play On: The Supreme Court of Georgia’s New Test Regarding Immunity Under the Recreational Property Act

Posted on: August 22nd, 2019

By: Jake Loken

Inviting individuals onto your property can lead to the invitation of a lawsuit. Generally, an individual injured on a landowner’s property could file a lawsuit against the landowner.

In Georgia, the legislature has carved out an exception to this general rule and granted immunity to a landowner when the property is being used without charge for recreational purposes. This immunity comes from the Recreational Property Act, and the Supreme Court of Georgia recently clarified the test to determine if this Act applies.

In Mercer Univ. v. Stofer, No. S18G1022, decided June 24, 2019, the Supreme Court explained the two-part test that should be used to determine if the Recreational Property Act applies. The facts of this case surround the injury and then death of Sally Stofer, who attended a free concert hosted by Mercer University at Washington Park in Macon, Georgia. Sally Stofer slipped while ascending stairs at the park and fell, hitting her head.

Under the Act, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes.” Prior case law, and the lower courts in Mercer Univ. v. Stofer, said the subjective motivation of the landowner when inviting individuals onto their land must be considered when determining whether the invite was for “recreational purposes,” along with whether the landowner would receive an indirect benefit from that invitation.

The Supreme Court stated that those considerations were improper and “the key teachings of our cases can be distilled into a test that is more connected to the statutory text: the true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”

The Supreme Court then clarified: “In other words, the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Any language in prior cases “suggesting that property owners’ subjective motivations may be relevant , . . . [or that the] landowner was motivated by the possibility that it would obtain indirect financial benefits” is relevant, “is disapproved.”

The Supreme Court did not rule on whether Mercer should receive immunity under the Act, but instead, returned the case to the lower court so that court could conduct the newly established two-part test to see if the Act applies to Mercer. Moving forward, the newly established two-part test will be used when determining if the Act applies to grant immunity to a landowner.

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Speak Now or Forever Hold Your Peace: Construction Claim Arbitration and Res Judicata

Posted on: August 20th, 2019

By: Catherine Bednar

The Supreme Court of Connecticut recently affirmed the Appellate Court’s determination that when a property owner and a general contractor enter into binding, unrestricted arbitration to resolve disputes, the subcontractors are presumptively in privity with the general contractor for purposes of precluding subsequent litigation against them. In Girolametti v. Michael Horton Assocs., 332 Conn. 67 (June 25, 2019), Connecticut’s Supreme Court joined other jurisdictions in adopting a rebuttable presumption of privity between general contractors and subcontractors on a construction project in applying the doctrine of res judicata.

The Plaintiffs in Girolametti owned a retail store and hired the general contractor, Rizzo Corporation, to construct an expansion. After completion of the project, Plaintiffs and Rizzo entered arbitration to resolve various disputes concerning the Project, including Plaintiffs’ claims for alleged construction defects and delay and Rizzo’s claims for additional payments owed. Perhaps believing they would fare better in separate litigation, Plaintiffs abandoned the proceedings on the thirty-third day of the arbitration, which concluded two days later, and failed to present their damages claim contrary to the arbitrator’s recommendations.  The arbitrator ultimately entered an award in Rizzo’s favor.

Plaintiffs then pursued two lawsuits against Rizzo and five subcontractors collectively, which focused on the design and construction of the building.  All defendants moved for summary judgment on the grounds that Plaintiffs’ claims had or could have been raised and resolved during the arbitration and were therefore barred. The trial judge granted Rizzo’s motion for summary judgment, but denied the subcontractors’ motions, holding the subs were not parties to the arbitration and not in privity with Rizzo. The Appellate Court reversed and granted summary judgment to the defendants.

In affirming the Appellate Court’s decision, the Supreme Court of Connecticut explained that “[w]hen applying the law to complex endeavors such as large-scale commercial construction, it often is desirable to adopt default rules, whether in the form of legal presumptions or standardized contracts.” The court reasoned the new default rule was an efficient and fair tool for resolving construction disputes.  A presumption of privity makes sense because not only is the general contractor in privity of contract with its subcontractors, but the general contractor is also responsible for the work of the subcontractors.  The court noted that absent a default rule, a property owner could relitigate its failed claims against the general contractor by bringing piecemeal, fact-intensive claims against subcontractors. The court also recognized that the default rule (which parties may contract around if they choose) is beneficial to both property owners and contractors by, resolving all outstanding disputes involving work on a project in the context of an owner-general contractor arbitration.

Having adopted the rebuttal presumption of privity between general contractors and subcontractors for the purposes of res judicata, the court found the facts and circumstances in the Girolametti case did not support an exception to the default rule. The court found the Plaintiffs reasonably should have understood the arbitration with Rizzo was the proper forum for addressing any claims against the subcontractors which were foreseeable at the time. In particular, the court pointed to the parties’ use of a standard form owner-contractor construction contract for their prime contract as evidence of their intent to abide by industry norms, making the general contractor responsible for all subcontractor work not separately contracted by the owner. The contract also contained a broad, unrestricted arbitration provision.

The Connecticut Supreme Court’s decision in Girolametti serves as a reminder to parties engaged in complex construction disputes to carefully consider the scope of their arbitration provisions and evaluate the potential need to add claims and join third parties.

If you have any questions or would like more information, please contact Catherine Bednar at [email protected].