CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘#SCOTUS’

Supreme Court to Hear Arguments Remotely, Including TCPA Constitutional Challenge

Posted on: April 16th, 2020

By: Matthew Foree

This week, the United States Supreme Court announced that it would hear oral arguments remotely for the first time in its history.  The Court will hear oral arguments by telephone conference on certain dates in May in a limited number of cases that had previously been postponed.  The cases are to be assigned dates for argument after confirming counsel’s availability.

The Court’s press release provides that “[i]n keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely.”  Interestingly, the Court stated that it “anticipates providing a live audio feed of these arguments to news media” and that “[d]etails will be shared as they become available.”

Among the cases the Court is set to hear in May is Barr v. American Association of Political Consultants, Inc., which concerns a constitutional challenge to the Telephone Consumer Protection Act (“TCPA”).  The Court has just scheduled argument in the Barr case for Wednesday, May 6, 2020.The TCPA generally prohibits calls to a cellular telephone using either an “automatic telephone dialing system” (ATDS) or an “artificial or prerecorded voice,” unless the call is made with the prior express consent of the recipient.  In a 2015 amendment to the TCPA, Congress exempted from this prohibition calls “made solely to collect a debt owed to or guaranteed by the United States.” 

In 2016, the Respondents in Barr initiated a declaratory judgment action against the Federal Communications Commission (“FCC”) and the Attorney General, arguing that the TCPA’s content-based ban on protected speech violated the First Amendment.  They sought declaratory relief and an injunction restraining the Government from enforcing the ban against them.  The case made its way to the U.S. Court of Appeals for the Fourth Circuit, which found a First Amendment violation and determined that the government-debt exception was severable from the rest of the TCPA.    

As we have discussed previously, TCPA litigation often centers around whether calls were made using an ATDS.  The current litigation landscape concerning the interpretation of the definition of ATDS has caused a split in the Circuit Courts and generated significant confusion that continues to this day.  In Barr, Respondents argue that the TCPA’s automated call restriction, not just the government-debt exception, violates the First Amendment.  Accordingly, practitioners in this area are anxious for the ruling on this matter, particularly as it relates to how far the Supreme Court will go to resolve the constitutional issue, which can have a major impact on the statute and TCPA litigation moving forward.  

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Narrow Victory for Law Enforcement and Commonsense in Kansas v. Glover

Posted on: April 9th, 2020

By: Peter Dooley

The scope of reasonable judgments that police officers can make during traffic-stops under the Fourth Amendment was recently widened, at least narrowly, by the U.S. Supreme Court on April 6th in their 8-1 decision in Kansas v. Glover.  The stop in question involved a deputy with the Douglas County Kansas Sheriff’s Office observing an individual operating a 1995 Chevy pick-up.  Upon running the license plate information, the deputy discovered that the registered owner of that truck had a revoked license and that the model of the truck listed on the registration was the exact model he observed. 

While the stop was conducted and the deputy’s suspicion was confirmed afterwards, it also unearthed serious concerns related to Fourth Amendment searches and seizures and the required reasonable and articulable suspicion that the person stopped has, is, or is about to commit a crime.  These concerns led the Kansas Supreme Court to publish an Opinion deciding that the stop was “only a hunch” and lacked the “factual basis” required for reasonable suspicion under the Fourth Amendment.  Justice Thomas summarizes the Court’s response and reasoning for reversing the decision best when he states that the deputy’s search was valid because, from the facts at hand, “Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” 

The majority were not persuaded by Sotomayor’s dissenting opinion that the inference was unreasonable as it was not grounded in “law enforcement training and experience.”  The majority explained that case precedent clearly states that police officers may use similar commonsense inferences and judgments in reasonable suspicion determinations; these decisions need not require specialized training or experience as justification but, instead, can be “a reasonable inference made by ordinary people on a daily basis.”  The argument that this destroys the requirement for specific and articulable facts failed similarly as the Opinion explains that it was not merely a hunch or probability determination here, but that the stop was actually made in reliance upon the facts regarding the license plate database information and officer observations.  Justice Thomas writes, “combining database information and commonsense judgments in this context is fully consonant with this Court’s Fourth Amendment precedents.” 

Potentially due to concerns in the Kagan Concurrence, the narrowness of the holding is highlighted throughout, and the Court explains how the presence of additional facts can easily dispel reasonable suspicion.  Commonsense inferences made before a stop must be based on database information that provides a logical and strong inference of lawlessness.  Additionally, officers cannot ignore the fact that the driver they observe does not match the age, gender, or other known descriptions of the individual or vehicle.  However, as no such information existed prior to the stop in Glover and the database information was sufficiently conclusive, the officer’s inference was reasonable, and his actions were justified. 

When looking to the real-world application of this decision, one takeaway is the Court’s continued preference for reliance on judicial sense and commonsense determinations as opposed to those requiring statistics or training as justification.  More specifically law enforcement officers may now use commonsense inferences in Fourth Amendment traffic-stops such as determining that the owner is likely the person seen driving the car and similar determinations with the assistance of databases.  This decision is not groundbreaking but is an important victory on the side of general likelihoods and commonsense reasonable suspicion determinations in the constant tug-of-war between effective law enforcement practices and Fourth Amendment protections. 

If you have any questions or would like more information, please contact Peter Dooley at [email protected]

Supreme Court Decides That Discrimination Claims Under Section 1981 Must Plead and Prove ‘But For’ Causation

Posted on: April 3rd, 2020

By: Catherine Scott and David Cole

When asserting race discrimination, many plaintiffs bring claims under 42 U.S.C. § 1981, which affords “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” This has been interpreted as allowing race discrimination claims in the employment context, even when there is not an explicit contract between the employer and employee. But until now, there was an open question about the standard of proof required for claims under § 1981. 

The U.S. Supreme Court recently decided this question in the case of Comcast Corp. v. National Ass’n of African American-Owned Media, holding that a § 1981 plaintiff must show that his race was a  “but-for cause” of his alleged injury, and that this burden remains constant throughout the lawsuit. In other words, a plaintiff claiming a denial of rights under § 1981 must initially plead and ultimately prove that, but for his race, he would not have suffered the loss of his rights under § 1981. 

In Comcast, a television network named Entertainment Studios Network (ESN) alleged that it had tried for years to have Comcast host its cable channels, but that Comcast refused. ESN is owned by an African-American entrepreneur, and he alleged that Comcast was discriminating against him and his company, in violation of § 1981, by refusing his channels because of his race. Comcast, on the other hand, said it was for lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming ESN did not offer.  

Comcast moved to dismiss ESN’s complaint, arguing that it did not allege facts plausibly showing that its decision to not carry ESN’s programming was based on race. While the district court agreed with Comcast, the Court of Appeals for the Ninth Circuit reversed and held that ESN only needed to allege enough facts to plausibly suggest that race played “some role” in Comcast’s decision-making. On appeal, the Supreme Court reversed again and held that the Ninth Circuit’s standard was too lenient. 

ESN argued that, like plaintiffs bringing discrimination claims under Title VII of the Civil Rights Act, plaintiffs bringing claims § 1981 should only have to prove that race was a “motivating factor” in the decision at issue. But the Supreme Court noted that the “motivating factor” standard in Title VII cases is written directly into the statute and is different from the language of § 1981. Therefore, it decided that claims under § 1981 fall under the “ordinary rule” that a plaintiff must prove but-for causation. This means that if the defendant would have made the same decision even if the plaintiff was not a different race, there is no claim under § 1981. Conversely, if the defendant would have made a different decision but for the plaintiff’s race, there is a claim under § 1981.    

The Supreme Court’s decision puts § 1981 claims on the same footing as retaliation claims under Title VII and claims under the Age Discrimination in Employment Act, both of which are also subject to the “but for” standard. It also provides employers with a helpful argument to dismiss specious § 1981 claims early in litigation when they are not supported by adequate facts alleged in the complaint. 

If you have questions or would like more information, please contact Catherine Scott or David Cole at [email protected] or [email protected].

Securing the Bag: California Supreme Court Rules Exit Searches Compensable

Posted on: March 2nd, 2020

By: Gregory Blueford

Shunning the position of the United State Supreme Court’s decision in Busk v. Integrity Staffing Solutions, Inc., the California Supreme Court has ruled that time spent on the employer’s premises waiting for and undergoing company-mandated exit searches of bags and personal technology devices brought to work purely for personal convenience by employees is compensable as “hours worked” in California.

In Frlekin v. Apple, Inc., the employer, Apple, had a bag search policy that required search of employees’ bags, packages, purses, backpacks, briefcases, and personal Apple technology devices whenever the employee left the store. Apple said the time spent waiting for and undergoing these searches was not compensable as “hours worked” in California, in part because employees could opt not to take a bag and therefore would not be required to undergo the search; in other words, the decision to bring a bag to work was “voluntary.”

The California Supreme Court said that the California Wage Orders had to be reviewed “liberally” and with an eye towards “protecting and benefiting employees.” The Court ruled that Apple’s search policy “controlled” employees by (1) requiring employees to comply with the policy under the threat of discipline, including termination, (2) confined employees to the premises as they waited for and underwent a search, and (3) required employees to complete tasks while awaiting and during the search like finding a manager and waiting for that person to conduct the search, thus, making the time is compensable. The California Supreme Court reasoned that the wage and hour standards of the Fair Labor Standards Act and subsequent decision in Busk, which generally exempts non-required work activities, “differs substantially” from California law, and that a State may enact law that provides employees greater protection than the FLSA, which California has done.

Employers with bag or any similar exit searches must be weary of this decision and ensure that this time is considered compensable and employees stay on the clock until the conclusion of the search.

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

EEOC Releases Charge Data And Guess What — Retaliation Is The Most Frequently Filed Claim with the EEOC in 2019

Posted on: February 14th, 2020

By: Brent Bean

The Equal Opportunity Employment Commission recently released its 2019 enforcement statistics.  The EEOC is the administrative agency and gatekeeper for employment law claims asserted under Title VII of the Civil Rights Act of 1964.  The EEOC receives charges of discrimination which typically allege such claims as race, disability discrimination or sex harassment.  Notable among the types of charges the Commission received last year, claims of retaliation were the most frequently filed.  Of the over 72,000 charges the EEOC received in 2019, 53.8% articulated claims for retaliation, the most of any type of claim made.

Awareness that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action again the employee.  Lastly, the employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are key to defending and defeating retaliation claims.

Also noteworthy, the EEOC’s enforcement numbers decreased in 2019.  The Commission filed  157 lawsuits last year, down from 217 in 2018.  Despite the decreased number of actual lawsuits filed, the EEOC’s statistics indicate that enforcement activity continues at a steady clip.  The takeaway is that employers need to be diligent in implementing and updating their workplace training and management practices.

Finally, EEOC’s 2019 statistics show the number of charges filed alleging LGBTQ-based sex discrimination continues to increase.  These charges grew to 1,868 charges in 2019, up 3% from 2018. The Supreme Court heard oral argument on a trio of LGBTQ-based cases in October 2019 and a ruling on whether these claims are viable under Title VII is expected in late Spring or early summer this year.

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].