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Posts Tagged ‘Eleventh Circuit’

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].

McKinney Due Process Analysis Alive and Well in the Eleventh Circuit

Posted on: April 9th, 2019

By: Dana Maine

This will be a short blog: “The question before us is whether a litigant in this Circuit has a substantive-due-process claim under the Due Process Clause of the Fourteenth Amendment when the alleged conduct is the unlawful application of a land-use ordinance. The answer to that question is a resounding ‘no’ – an answer that this Court delivered in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), 24 years ago and has affirmed ever since.”  Hillcrest Property, LLP v. Pasco County, 915 F.3d 1292 (11th Cir. 2019).  The opinion is a good read for land use practitioners in all circuits.

As for people interested in Georgia law, note that the Georgia Supreme Court has followed the legislative vs. administrative/adjudicative distinction from the federal law in the 2017 trilogy of land use cases – City of Cumming v. Flowers, 300 Ga. 820 (2017), Schumacher v. City of Roswell, 301 Ga. 635 (2017), Diversified Holdings, LLP v. City of Suwanee, 302 Ga. 597 (2017).

For assistance with this or any other local government matter, please contact Dana Maine, [email protected], or any other member of our National Government Practice Group, a list of which can be found on our website – www.fmglaw.com.

 

How Do You Like Them Apples? Eleventh Circuit Slices Up New “Comparator” Standard for Intentional Discrimination Cases

Posted on: March 26th, 2019

By: Tim Boughey

Last week, in Lewis v. City of Union City, Ga. et al., No. 15-11362 (11th Cir. March 21, 2019) (en banc), the Eleventh Circuit issued an important decision addressing the proper comparator analysis applied to circumstantial claims of intentional discrimination (whether under Title VII, Equal Protection, or Section 1981).  At the core of every discrimination case, the employee must produce evidence the employer acted with an impermissible, discriminatory motive or else suffer the dismissal of their case at summary judgment. In most discrimination cases, the employee lacks direct evidence of discrimination – such as clearly sexist, racist, or similarly discriminatory statements or actions by the employer in connection with an employment decision. Without direct evidence, the employee must instead come forth with circumstantial evidence supporting an inference of intentional discrimination. In most cases, the employee proceeds down the familiar McDonnell Douglas framework and attempts to establish that the employer treated a so-called “similarly situated” employee outside of the employee’s protected class more favorably (in lawyer speak a “comparator”).

Over the years, the Eleventh Circuit made efforts to define “similarly situated”, and by its own admission, created something of a “hash” of the concept. In some cases, the Eleventh Circuit defined “similarly situated” to mean “same or similar” and in others as “nearly identical.” In more colloquial terms, the Eleventh Circuit summarized the “similarly situated” concept as one that prevents courts from second-guessing an employer’s reasonable decisions and confusing “apples with oranges.” Faced with the issue of reconciling differing and nebulous definitions, the Eleventh Circuit did some house cleaning Thursday and held “similarly situated” means “similar in all material respects.” In addition, the Eleventh Circuit held courts must apply this standard on the front end of the McDonnell Douglas analysis (commonly referred to as the prima facie stage) before an employer must articulate its legitimate, non-discriminatory reason(s) for making an employment decision.

With the spirit of providing employers “the necessary breathing space to make business judgments,” the Eleventh Circuit provided some guide posts for assessing whether or not an alleged comparator is “similar in all material respects.” Fleshing out the concept, the Eleventh Circuit indicated that a “similarly situated” employee is someone who, when compared to the employee bringing a discrimination claim, (1) engaged in the same basic conduct (or misconduct); (2) is subjected to the same employment policy, guideline, or rule; (3) reports to the same supervisor; and (4) shares the same employment or disciplinary history. The Eleventh Circuit then applied these standards to Lewis’ claims of discrimination and found she flunked the test because the employer applied a different employment policy (implemented two years after her termination) to her two alleged comparators.

This new “similar in all material respects” standard is most important for Human Resources professionals, supervisors, and employment counsel to public and private sector employers on the front lines of cases involving disciplinary action. In this regard, employers should look to past disciplinary decisions under the same work rule and supervisor as well as disciplinary history before making the call to toss a rotten apple from its workforce.

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

As Commerce Moves Online, the Americans with Disabilities Act Follows

Posted on: February 11th, 2019

By: Natalie Pulley

Does the Americans with Disabilities Act, requiring accessibility in public accommodations, apply to a business’ online presence? The Eleventh Circuit has weighed in on the issue, finding in Dennis Haynes v. Dunkin’ Donuts LLC that the ADA applies online.

In Dennis Haynes, the plaintiff is blind and relies on screen reading software. He attempted to go on the website for Dunkin’ Donuts but the website was not compatible with his, or any, screen reading software. The plaintiff sued Dunkin’ Donuts, LLC, claiming that it violated Title III of the Americans with Disabilities Act by not maintaining a website compatible with screen reading software. He alleged that the inaccessibility of Dunkin’ Donuts’ website has denied blind people the ability to enjoy the goods, services, privileges, and advantages of Dunkin’ Donuts shops.

The Eleventh Circuit agreed with his position and found that a website must comply with ADA requirements. The court found that a website is a service that facilitates the use of brick and mortar shops, which are places of public accommodation. Further, the court found that the ADA is clear that whatever goods and services the business offers as part of its public accommodation, it cannot discriminate against people on the basis of a disability, even if those goods and services are intangible. This opinion sides with a federal court ruling from Florida, which ruled that a supermarket chain could be liable under the statute for operating an inaccessible site.

While there is no blanket requirement of any specific auxiliary aides on corporate websites, the proliferation of website lawsuits presents a risk of liability. Corporations should take proactive steps to ensure that their websites are accessible to those with hearing, muscular, and visual impairments.

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

Haynes v. Dunkin’ Donuts, Ltd. Liab. Co., 741 F. App’x 752 (11th Cir. 2018)
Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017)

 

 

 

Can You Even Do That? What Happens When a Judge is Sued and the Defense of Absolute Judicial Immunity is Raised

Posted on: February 6th, 2019

By: Jake Loken

It is a rare sight to see a judge being sued, so what happens when one is? The process is generally the same as any other lawsuit, but one important doctrine can get in the way: absolute judicial immunity.

The doctrine of absolute judicial immunity was recently discussed in McCullough v. Finley, 907 F.3d 1324 (11th Cir. 2018). In McCullough, residents of Alabama sued municipal judges, along with a mayor and two police chiefs. The residents alleged the judges had violated federal anti-peonage statutes, which prohibit forced labor by coercive means, and the law of false imprisonment by “unlawfully depriving them of their liberty for their failure to pay fines.”

In response, the judges asserted absolute judicial immunity, but the district court denied immunity. Normally, only final decisions can be appealed, but when a district court denies the defense of absolute judicial immunity, this denial may be immediately appealed as a “final decision.” The denial is a “final decision” because if the court would allow the defense of immunity to stand, then the case would end, as immunity would prevent the suit from moving forward against the judges.

In reviewing the denial of absolute judicial immunity, the Court worked through a four-factor analysis “to determine whether the nature and functions of the alleged acts [were] judicial.” The Court found that the judges’ acts were judicial as they involved sentencing the residents to jail time, which is a normal judicial function that occurred in court.

The Court also determined the judges did not act in the “‘clear absence of all jurisdiction,’” because “[a] judge acts in ‘clear absence of jurisdiction’ only if he lacked subject matter-jurisdiction.” The Court made it clear that only in “rare circumstance[s]” would immunity not apply.

When a judge is sued, the judge can raise the powerful defense of absolute judicial immunity. So to answer the question found in the title, “can you even do that?”—with “that” being sue a judge—yes, a judge can be sued, but absolute judicial immunity can stop the suit in its tracks.

If you have any questions about this case, absolute judicial immunity, or other types of immunity, please contact Jake Loken at [email protected].