Justia Contracts Opinion Summaries

Articles Posted in Communications Law
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Defendants solicited and obtained $180,000 from plaintiff produce a documentary on the Syrian refugee crisis. Plaintiff sued, alleging that no “significant” work on the documentary has occurred, that defendants never intended to make the documentary, and that a cinematographer has not been paid and claims the right to any footage he has shot, putting the project in jeopardy. Defendants filed an unsuccessful anti-SLAPP (strategic lawsuit against public participation (Code Civ. Proc. 425.16)) motion to strike, arguing the complaint arises out of acts in furtherance of their right of free speech in connection with an issue of public interest--their newsgathering related to the Syrian refugee crisis, and that plaintiff could not demonstrate minimal merit on his claims because the action is subject to an arbitration provision; plaintiff’s allegations are contradicted by the investor agreement; and the evidence establishes that substantial progress was made. The court found that plaintiff’s claims did not arise out of acts in furtherance of defendants’ protected speech but were “based on the failure to do acts in furtherance of the right of free speech."The court of appeal reversed. Defendants made a prima facie showing that the complaint targets conduct falling within the “catchall” provision of the anti-SLAPP law. Defendants’ solicitation of investments and their performance of allegedly unsatisfactory work on the documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest. The court erred in denying the motion at the first stage of the anti-SLAPP analysis. View "Ojjeh v. Brown" on Justia Law

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Jason Blanks, Peggy Manley, Kimberly Lee, Nancy Watkins, Randall Smith, Trenton Norton, Earl Kelly, Jennifer Scott, and Alyshia Kilgore (referred to collectively as "the customers") appealed the denial of a motion to compel arbitration and a declaratory judgment entered in an action brought by TDS Telecommunications LLC, and its two affiliates, Peoples Telephone Company, Inc., and Butler Telephone Company, Inc. (referred to collectively as "the Internet providers"). The customers subscribed to Internet service furnished by the Internet providers; their relationship was governed by a written "Terms of Service." The customers alleged that the Internet service they have received was slower than the Internet providers promised them. At the time the customers learned that their Internet service was allegedly deficient, the Terms of Service contained an arbitration clause providing that "any controversy or claim arising out of or relating to [the Terms of Service] shall be resolved by binding arbitration at the request of either party." In the declaratory-judgment action, the trial court ruled that the Internet providers were not required to arbitrate disputes with the customers. The Alabama Supreme Court determined the arbitration clause in the applicable version of the Terms of Service included an agreement between the Internet providers and the customers that an arbitrator was to decide issues of arbitrability, which included the issue whether an updated Terms of Service effectively excluded the customers' disputes from arbitration. Accordingly, the Supreme Court reversed the trial court's denial of the customers' motion to compel arbitration and its judgment declaring the updated Terms of Service "valid and enforceable," and remanded the case for further proceedings. View "Blanks et al. v. TDS Telecommunications LLC" on Justia Law

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The Eighth Circuit affirmed the district court's denial, on remand, of Qwest's unjust enrichment claim against FC. The court held that the district court did not abuse its discretion by concluding that it would not be inequitable for FC to retain the benefit conferred by Qwest. In this case, the district court explained that FC earned the benefit conferred by Qwest because it provided conference-calling services, 24-hour customer support, and access to a website in exchange for two cents per minute for calls placed to FC's conferencing bridges at Sancom. Furthermore, Qwest paid its own conference-calling vendor between two and four-and-a-half cents per minute. View "Qwest Communications Corp. v. Free Conferencing Corp." on Justia Law

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The Eighth Circuit affirmed the district court's grant of summary judgment to the City and ImOn in an action brought by Mediacom, seeking declarations that certain resolutions were void and that the City could not permit a potential cable provider to construct a "cable system" without acquiring a cable franchise. Mediacom also alleged contract violations, tortious interference, civil conspiracy, and Equal Protection violations, all depending on whether ImOn could lawfully build a fiber-optic network without a franchise. The court held that ImOn's fiber-optic network was not a "cable system," because ImOn has not provided or proposed to provide cable services. Therefore, the agreements at issue authorizing ImOn's construction of a fiber-optic network were not a de facto cable franchise. In regard to Mediacom's equal protection claim, the court also held that the district court properly concluded that ImOn and Mediacom were not similarly situated because only Mediacom was a cable provider in the City, and the district court did not abuse its discretion in denying Mediacom's motion for discovery. View "MCC Iowa v. Iowa City" on Justia Law

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Area 51 used Alameda city property for events it planned for third-party companies. PM assisted the city with managing the license arrangements. Due to problems connected with Area 51 events, the city ceased doing business with it. Area 51 had committed to third-party entities based on PM’s previous confirmation of the city’s willingness to license space. Area 51 sued. Defendants (city, PM, and individuals) filed a demurrer and a motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. The court denied that motion and granted the demurrer. The court of appeal reversed in part. While the thrust of the claims against the city is breach of contract, the individual defendants were not contracting parties; the sole basis for asserting liability against them is what they did on behalf of the city. That conduct is expressive in nature (emails confirming dates, and announcing termination of the leasing relationship), which qualify as “written or oral statement[s] . . . made in connection with an issue under consideration . . . by a[n] . . . executive . . . body,” under the anti-SLAPP law. Area 51 could not show a probability of prevailing on the merits. The case was remanded for consideration of an award of attorneys’ fees and costs. View "Area 51 Productions, Inc. v. City of Alameda" on Justia Law

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The district court found third-party plaintiff Qwest failed to prove its claims for intentional interference with a business relationship, unfair competition, and unjust enrichment against third-party defendant FC. The court agreed with the district court that FC did not act with an improper purpose when it contracted with Sancom, a local exchange carrier (LEC), because FC was simply attempting to take advantage of the uncertain regulatory scheme at the time; FC had a legitimate argument that it could be considered an “end user,” and thus Sancom could bill Qwest under its tariff for calls delivered to FC’s call bridges; and thus the district court did not err in finding for FC on Qwest's claim for intentional interference with a business relationship. The court predicted that the South Dakota Supreme Court would not recognize a tort of unfair competition under these circumstances, and found that the district court properly rejected this new tort. The court concluded, however, that the district court incorrectly found FC’s conduct was “neither illegal nor inequitable” because it was simply taking advantage of a loophole until the loophole closed, and the district court improperly considered Sancom’s settlement payments to Qwest when it found FC was not unjustly enriched. Therefore, the court reversed and remanded for reconsideration of whether FC was unjustly enriched. View "Qwest v. Free Conferencing Corp." on Justia Law

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Relying on an advertiser’s claim that its fax advertising program complied with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, Stevens & Ricci allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. More than six years later, Hymed filed a class action TCPA lawsuit, which settled with a $2,000,000 judgment against Stevens & Ricci. While that suit was pending, Auto-Owners sought a declaratory judgment, claiming that the terms of the insurance policy it provided Stevens & Ricci did not obligate it to indemnify or defend Stevens & Ricci in the class action. The Third Circuit affirmed summary judgment, finding that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the insurance policy. The “Businessowners Insurance Policy” obligated Auto-Owners to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The “advertising injury” deals only with the publication of private information, View "Auto-Owners Ins. Co. v. Stevens & Ricci Inc" on Justia Law

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Alco, a vending machine company, contracted with B2B, a “fax broadcaster,” in 2005, and dealt with B2B and Macaw, a Romanian business, that worked with B2B. Each sample advertisement provided by B2B stated that the message was “the exclusive property of Macaw . . . , which is solely responsible for its contents and destinations.” According to Alco, B2B was to identify recipients from a list of businesses that had consented to receive fax advertising from B2B. Alco never saw this list, but believed that each business would be located near Alco’s Ohio headquarters, and had an existing relationship with B2B, so that the advertising would be “100 percent legal.” B2B broadcast several thousand faxes, advertising Alco. According to Alco, B2B did not inform Alco about the number of faxes, the dates on which they were sent, or the specific businesses to which they were addressed. After each broadcast, Alco received complaints of unauthorized faxes in violation of the Telephone Consumer Protection Act 47 U.S.C. 227(b)(1)(C), which it referred to B2B. Siding filed a purported class action against Alco. The district court rejected the suit on summary judgment. The Sixth Circuit reversed and remanded for determination of whether B2B broadcast the faxes “on behalf of” Alco, considering the degree of control that Alco exercised, whether Alco approved the final content, and the contractual relationship. View "Siding and Insulation Co. v. Alco Vending, Inc." on Justia Law

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Plaintiffs received internet and cable services from TWC in Chardon, Ohio. The Bureau of Criminal Investigation (BCI), conducting an online investigation to identify individuals possessing and sharing child pornography, located a suspect using a public IP address of 173.88.218.170 and found images and movie files titled consistent with child pornography. The IP address of plaintiffs’ computers was 173.88.218.70. Responding to a subpoena for subscriber information for the .170 address, TWC indicated that it was assigned to plaintiffs. While executing a search warrant for plaintiffs’ residence, BCI agents determined that the IP address assigned to plaintiffs was the .70 address, not the .170 address. The search was terminated without discovery of any evidence of criminal activity. Plaintiffs alleged that the search was extensive, destructive, and in plain sight of neighbors; that TWC’s conduct was intentional and fraudulent; that disclosure of their subscriber information without authorization violated the Stored Communications Act, 18 U.S.C. 2707(a)); and state-law claims. The Sixth Circuit affirmed denial of TWC’s claim of immunity under section 2703(e), but found that 18 U.S.C. 2707(e)’s “good faith reliance” defense barred the claims and that the state-law claims failed because the factual allegations were insufficient to establish that TWC disclosed the information intentionally, wrongfully, or in breach of contract. View "Long v. Insight Commc'ns of Cent. Ohio, LLC" on Justia Law

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Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven. View "Defender Sec. Co. v. First Mercury Ins. Co." on Justia Law