Latest 3 Cases: Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc. (Civil Procedure), Quincy Bioscience, LLC v. Ellishbooks ...

The Response to President Trump’s Shameless Religious Photo Op Gives Me Hope for the Future

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton praises the response of liberal clergy in response to President Trump’s seemingly opportunistic photo op in front of St. John’s Episcopal Church in Washington, D.C. Hamilton calls upon these religious leaders to continue speaking out loudly in the name of inclusion, love, and truth.

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Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc.

Docket: 19-1916

Opinion Date: June 5, 2020

Judge: Brennan

Areas of Law: Civil Procedure, Consumer Law

A medical supply company sent faxes to thousands of medical providers to solicit prescriptions to sell medical equipment to the providers’ patients. One provider received numerous faxes and filed a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The supply company failed to appear. A default judgment entered against the company as to liability but not damages. Later the supplier’s CEO was granted summary judgment. Concerned with inconsistency, the district court vacated the default judgment against the company and entered judgment for both the executive and the company. The Seventh Circuit affirmed as to the executive. Because the good cause standard was not applied in vacating the default judgment against the company, and inconsistent judgments between the individual and corporate defendants do not present a problem, the court reversed and remanded for further proceedings on the claim against the company. Judgments against these two defendants would not necessarily be inconsistent and the district court mistakenly believed that the plaintiff sought to “essentially” hold the CEO vicariously liable as an officer of the supplier, which would require uniformity in judgments. The plaintiff alleged joint and several liability, which is critically different from vicarious liability.

Quincy Bioscience, LLC v. Ellishbooks

Docket: 19-1799

Opinion Date: June 5, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Intellectual Property, Legal Ethics, Trademark

Quincy’s Prevagen® dietary supplement is sold at stores and online. Quincy registered its Prevagen® trademark in 2007. Ellishbooks, which was not authorized to sell Prevagen®, sold supplements identified as Prevagen® on Amazon.com, including items that were in altered or damaged packaging; lacked the appropriate purchase codes or other markings that identify the authorized retail seller; and contained tags from retail stores. Quincy sued under the Lanham Act, 15 U.S.C. 1114. Ellishbooks did not respond. The court entered default judgment. Ellishbooks identified no circumstances capable of establishing good cause for default. The district court entered a $480,968.13 judgment in favor of Quincy, plus costs, and permanently enjoined Ellishbooks from infringing upon the PREVAGEN® trademark and selling stolen products bearing the PREVAGEN® trademark. The Seventh Circuit affirmed and subsequently awarded Rule 38 sanctions. Ellishbooks’ appellate arguments had virtually no likelihood of success and its conduct during the course of the appeal was marked by several failures to timely respond and significant deficiencies in its filings. These shortcomings cannot be attributed entirely to counsel’s lack of experience in litigating federal appeals. A review of the dockets suggests that Ellishbooks has attempted to draw out the proceedings as long as possible while knowing that it had no viable substantive defense.

Peck v. IMC Credit Services

Docket: 19-3187

Opinion Date: June 5, 2020

Judge: Per Curiam

Areas of Law: Consumer Law, Legal Ethics

IMC mailed Peck, regarding a debt that Peck allegedly owed. The envelope's clear pane revealed a barcode containing Peck’s personal information. Peck sued IMC for violating the Fair Debt Collection Practices Act by revealing his personal information on the envelope and by failing to verify that Peck owed the debt after he disputed it. IMC made an offer of judgment of “$1,101, plus costs under Rule 68. Peck accepted. By email, Peck indicated he believed “costs” included damages under the Act. IMC explained that its offer accounted for $1,101 in statutory damages with interest, plus the costs typically recoverable by the prevailing party. The court ultimately entered judgment consistent with the Rule 68 offer and instructed Peck to file a bill of costs, limited to those contemplated by Federal Rule 54(d). Peck demanded $24,137.50 (reimbursement for the hundreds of hours he spent litigating) and $47,425.02 in punitive damages. Citing 28 U.S.C. 1920, the court denied his bill of costs and awarded $1,101.00. The Seventh Circuit affirmed, rejecting an argument that it lacked jurisdiction because the district court had not sufficiently articulated a rationale. The “costs” recoverable under Rule 54(d) include clerk and marshal fees; printed or electronically recorded transcripts; disbursements for printing and witnesses; fees for exemplification and making copies; docket fees; and compensation of court-appointed experts, interpreters, and for special interpretation services They do not include damages, nor the compensation Peck sought for his time and mailing expenses.