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Posts Tagged ‘Fourth Circuit’

Fourth Circuit Affirms $61 Million TCPA Judgment

Posted on: June 18th, 2019

By: Matt Foree

The United States Court of Appeals for the Fourth Circuit recently affirmed a judgment based on a jury verdict of over $61 million for illegal telemarketing calls made under the Telephone Consumer Protection Act (“TCPA”). As a matter of background, plaintiff Thomas Krakauer brought the TCPA lawsuit against Dish Network, L.L.C. (“Dish”) after he received telemarketing calls from Dish’s third-party contractor, Satellite Systems Network (“SSN”), which made calls on its behalf, despite the fact that Krakauer had listed his telephone number on the national Do Not Call registry. The TCPA provides for a private right of action to those who have received more than one telephone solicitation within any 12-month period to a number listed on the Do Not Call registry without consent or an established business relationship. The TCPA provides for statutory damages of $500 per violation, which can be trebled to $1500 per violation for willful or knowing violations.

In 2015, Krakauer filed a class action lawsuit in the District Court for the Middle District of North Carolina. The District Court certified the class and the case went to a jury trial. The jury awarded $400 per call as damages and found that the calls were willful, thereby trebling the damages, which resulted in an over $61 million jury verdict.

Dish appealed the judgment on several bases. When it challenged the standing of some of the class members, the Fourth Circuit made quick work of that argument, relying on the U.S. Supreme Court’s recent Spokeo, Inc. v. Robins decision to find that standing existed. In so holding, the court underscored the legal traditions recognizing intrusions upon personal privacy. Dish also challenged class certification. Noting that Dish’s core argument seemed to be that the class included a large number of uninjured persons, the Fourth Circuit upheld class certification, finding that the class certified by the District Court easily met the demands of Rule 23.

Finally, Dish argued that it was not liable for SSN’s conduct and that the violations were not knowing or willful to permit treble damages. The court found that considerable evidence supported an agency relationship between Dish and SSN. Among other things, the court referred to the provisions of the parties’ contract giving Dish broad authority over SSN’s business and the fact that Dish authorized SSN to use its name and logo during its operations. Finally, the court found that the willful or knowing standard was met, thereby upholding the judgment.

Throughout the Fourth Circuit’s opinion, the court made several charitable statements about the TCPA, suggesting that the statute is straightforward and easy to apply. It also described the appropriateness of TCPA claims for class certification. In sum, this case provides a case study of many of the landmines confronted by TCPA defendants, including potentially devastating statutory damages, class certification, and vicarious liability issues. This case is just the latest reminder that those operating in this space would do well to ensure strict compliance with the TCPA to avoid a similar fate.

If you have questions or would like more information, please contact Matt Foree at [email protected].

The Supreme Court Sets Groundwater Pollution in its Sights

Posted on: February 20th, 2019

By: Ze’eva Kushner

Yesterday, the United States Supreme Court decided to hear an appeal from the Ninth Circuit’s decision in Hawai’i Wildlife Fund et al. v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The Supreme Court will be hearing this case in the Fall to resolve a circuit split regarding whether discharging pollution that travels underground before emerging into an ocean, river or other major waterway requires a permit under the Clean Water Act.

Congress passed the Clean Water Act in 1972. The goal of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the primary provisions of the statute makes it unlawful for anyone to discharge a pollutant, meaning adding pollution, to the waters of the United States, including the territorial seas. 33 U.S.C. §§ 1362(12), (7).

The provisions of the Clean Water Act have been interpreted by a number of courts over the years, with the coverage of groundwater pollution being a thorny issue for some time. In February 2018, the Ninth Circuit held that Maui County had to comply with the permitting requirement of the Clean Water Act in order to continue to dispose treated water through underground wells after it was shown that the treated water made its way into the Pacific Ocean through fissures in the ocean floor.

The Fourth Circuit made a similar finding a few months later in a case involving a gasoline pipeline spill in South Carolina when it determined that the Clean Water Act covered claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater.

However, in September 2018, the Sixth Circuit changed direction when it ruled on two cases involving the pollutants released by coal ash ponds, holding that the Clean Water Act cannot be used to regulate pollution that travels through groundwater before reaching navigable waters such as a river or ocean.

Thus, it is up to the Supreme Court to resolve the debate regarding how direct of a connection there must be between a source of pollution and the waters that get polluted. Whether a pollutant that goes underground before making its way into a major waterway is subject to the Clean Water Act will have a major impact on industries across the country.

If you have any questions or would like more information, please contact Ze’eva Kushner at [email protected].

Who is Protected by Privilege?

Posted on: December 27th, 2018

By: Matthew Jones

In the recent case of Day v. Johns Hopkins Health Sys. Corp., the U.S. Court of Appeals for the Fourth Circuit answered this question in the context of expert witnesses facing RICO violations. In the Day case, an expert witness testified that the evidence he reviewed regarding the coal miners’ claim for Black Lung Benefits Act benefits did not support those claims. After the claim was denied, the Center for Public Integrity alleged that the radiology unit at Johns Hopkins were much less likely to find cases of black lung disease than other doctors.

On appeal, it was argued that the expert witness misled the Court and the miners as to the standards he was applying, which amounted to a systematic violation of international standards. However, the Fourth Circuit reiterated the “absolute” nature of the litigation privilege for those witnesses who “aid the truth-seeking mission of the judicial system.” One important goal of this privilege is to prevent future witness participation deterrence or to be undermined by subsequent actions for damages arising out of the witness’s testimony.

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

Fourth Circuit Voids NLRB Posting Rule

Posted on: June 18th, 2013

By: Anthony Del Rio

Last week the Fourth U.S. Circuit Court of Appeals struck down the National Labor Relation Board’s (NLRB) 2011 poster rule.  The rule required employers to post information regarding employees’ rights to organize under the National Labor Relations Act (NLRA).  The Fourth Circuit is the second appeals court to strike down the rule, the D.C. Circuit having done so a month prior.

The poster language crafted by the NLRB stated that employees had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions. Employers who did not post the notice would have been found to have committed an unfair labor practice.

The D.C. Circuit rejected the rule based on First Amendment grounds, but the Fourth Circuit did not find it necessary to reach the constitutional challenge.  The Fourth Circuit disagreed with the NLRB’s proactive rulemaking (historically, it has only been the NLRB’s responsibility to react to NLRA violations, not to proactively prevent them). The Fourth Circuit held that the NLRB had exceeded their legal authority because the National Labor Relations Act did not charge the NLRB with notifying employees of their rights.