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Matushek Nilles attorneys Mike Martinez and Vincenzo Chimera recently prevailed in the Seventh Circuit Court of Appeals in a case alleging their client, a national telemarketing firm, illegally solicited donations on behalf of a “sham charity” in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Spiegel v. Associated Community Services, Inc., 733 Fed. Appx. 311 (7th Cir. 2018).
Plaintiff Marshall Spiegel had sued telemarketing firm Associated Community Services, Inc. (“ACS”) in an attempted class-action lawsuit alleging violations of the “Do Not Call” provision of the TCPA, which prohibits businesses from calling numbers listed on the national Do Not Call Registry to solicit “the purchase or rental of, or investment in, property, goods, or services,” unless the call is made by or on behalf of a “tax exempt nonprofit organization.” 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(14)(iii).
Summary judgment was entered on behalf of ACS because ACS’ telephone calls to Spiegel’s residence were made on behalf of BCS, which the district court found was recognized at all relevant times as a § 501(c)(3) tax-exempt organization by the Internal Revenue Service. Spiegel appealed to the Seventh Circuit Court of Appeals, arguing the district court erred in granting summary judgment to ACS because was BCS not a true “nonprofit” organization but rather a “sham charity” not subject to the exemption.
Mike Martinez was retained to defend ACS on appeal and, with the assistance of associate Vincenzo Chimera, successfully argued that the district court’s entry of summary judgment in favor of ACS should be upheld because district courts lack authority to overturn IRS tax-exempt designations and because plaintiff Spiegel failed to properly preserve his arguments for appeal. Following oral arguments on July 6, 2018, the Seventh Circuit panel issued a unanimous decision affirming summary judgment in favor of ACS. Spiegel v. Associated Community Services, Inc., 733 Fed. Appx. 311 (7th Cir. 2018).
Despite this victory, litigation under the TCPA continues to spin out of control, having “blossomed into a national cash cow for plaintiff’s attorneys specializing in [such] disputes.” Bridgeview Health Care Ct., Lt.d. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016). Due largely to the prospect of uncapped statutory damages, TCPA litigation has spiked in recent years, particularly actions against small businesses not engaged in the telemarketing industry. The risk of TCPA liability has intensified in recent years with the emergence of new communications technologies, such as text messaging, which did not exist when the TCPA was enacted in 1991.
Although we succeeded in preventing the plaintiffs’ bar from further expanding the scope of liability in this Seventh Circuit case, it is expected that TCPA plaintiffs will continue seeking to expand TCPA liability by re-litigating the issue of whether district courts can overturn IRS designations of tax-exempt nonprofit status in cases where waiver cannot be claimed as a defense. If your business is facing the prospect of harassing TCPA litigation, or is uncertain of its exposure in this area of law, the attorneys at Matushek Nilles are available to discuss your options and defenses.
For additional information on this decision, the TCPA or appellate practice in the Seventh Circuit Court of Appeals and appellate courts of Illinois, Indiana and Missouri, please contact Mike Martinez or Vincenzo Chimera.
Matushek Nilles LLC is again co-sponsoring Perrin Conference’s Fall Seminar: “A National Overview and Outlook” in Asbestos Litigation, an acclaimed, neutral forum showcasing thought leaders from all perspectives within the legal industry, including Plaintiff and Defense attorneys, in-house counsel, insurance professionals, consultants, experts, and judges. This year’s program will be held October 1-3, 2018 in San Francisco, California.
Matushek Nilles LLC was proud to actively participate in the 2018 Race Judicata, a 5K Run/Walk benefiting Chicago Volunteer Legal Services Foundation. This was the 24th anniversary of the run, and all proceeds from Race Judicata went to the general operating costs of CVLS. Thousands of Chicago’s most active judges, lawyers, paralegals and other professionals joined us this year on September 13, 2018 to continue the important work of ensuring that the law works for everyone, not just those who can afford it. Read More »
Matushek Nilles LLC is proud to again support the National Forum for Environmental and Toxic Tort Issues (“FETTI”) as a Gold Level Sponsor. This year’s conference will be held from September 26 through 28, 2018 at the Union League Club in Chicago, Illinois. FETTI is a world-class seminar on a broad range of environmental issues with nationally recognized speakers, including Danielle Luisi, senior associate at Matushek Nilles LLC, who is a featured speaker on “Overview of Legionnaire’s Disease Litigation.”
On June 29, 2018, a divided panel of First District Appellate Court issued an opinion providing valuable guidance to defense practitioners on the scope of the sole proximate cause defense in Illinois tort litigation, holding that the sole proximate cause defense and jury instruction is available even where the defendant argues more than one nonparty was the sole proximate cause of a plaintiff’s injury. See Rene Douglas, et al. v. Arlington Park Racecourse, LLC, et al., 2018 IL App (1st) 162962, available here (PDF opens in a new window).
Douglas involved a professional jockey, Rene Douglas, who sought compensation for paralysis resulting from a fall he suffered during a horserace at Arlington Park racecourse in 2009. Douglas and his wife sued the racetrack (Arlington), its owner (Churchill Downs), and both the manufacturer and distributor of the track’s synthetic surface. Plaintiffs settled with all parties except Arlington and Churchill Downs prior to trial.
On May 18, 2018, the Illinois Appellate Court for the First District reversed Judge Clare McWilliams’ denial of a defendant’s motion to dismiss for lack of personal jurisdiction. The plaintiff was a resident of Alabama and worked in numerous states and for a short time at the former Republic Steel in Illinois, but failed to allege actual exposure to the defendant’s products occurred in Illinois. The defendant, a New York corporation, filed a motion to dismiss on the basis that the plaintiff’s complaint failed to allege sufficient facts to confer personal jurisdiction upon it, arguing that it did not consent to the circuit court’s jurisdiction, the court had no general personal jurisdiction exists over it, and no specific personal jurisdiction existed because the plaintiff did not allege that he was exposed to asbestos from its products in Illinois. The plaintiff countered by asserting in part that Illinois has “jurisdiction by necessity” because the plaintiff was exposed to asbestos in multiple states and there is no single forum in which he could sue every defendant. Read More »
On March 15, 2018, Judge Clare McWilliams entered summary judgment in favor of defendant Avocet Enterprises due to its corporate dissolution in 2014. The plaintiff’s decedent, Roger Nelson, first learned he was injured by the wrongful act of another when he was diagnosed with mesothelioma in February 2017, nearly three years after Avocet’s dissolution, and the plaintiff later commenced this suit on April 3, 2017. At the time Avocet dissolved, section 12.80 of the Business Corporation Act provided in pertinent part: Read More »
Matushek Nilles LLC was pleased to again sponsor Perrin Conference’s Spring Seminar: Cutting-Edge Issues in Asbestos Litigation, held March 8-9, 2018 in Beverly Hills, California. The Conference is a national forum showcasing thought leaders from all perspectives within the legal community.
Mike Martinez advanced to the partnership at Matushek Nilles LLC on January 1, 2018. Previously, Mr. Martinez had several years experience as an associate with Matushek Nilles LLC, successfully defending manufacturers, contractors and distributors in asbestos litigation in Illinois, Indiana and Missouri. Mr. Martinez was also recently selected as a Rising Star by Illinois Super Lawyer.