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Friday, April 06, 2007

Ind. Decisions - Oral argument before the 7th Circuit this week in challenge to Indiana's anti- Automated Dialing Machine law

A press release from Indiana Attorney General Steve Carter earlier this week announced:

The United States Court of Appeals for the Seventh Circuit in Chicago, IL will hear oral arguments in the case of FreeEats.com, Inc. vs. State of Indiana & Steve Carter, Indiana Attorney General (No 06-3900) on Tuesday, April 3, 2007.

Carter filed lawsuits last year against FreeEats.com, Economic Freedom Fund and American Family Voices in state court alleging violations of the state’s Automated Dialing Machine statute which requires automated calls to be preceded by a live operator who obtains the recipient’s permission prior to playing a pre-recorded message.

FreeEats.com has stated that it provides services to Economic Freedom Fund and unsuccessfully sought a federal-court injunction against the Attorney General for enforcing the statute in state court.

Carter prevailed in the Federal lawsuit and FreeEats appealed. Carter has received the support of 13 states in this effort to enforce the statute governing pre-recorded telephone calls. The states have filed an Amicus brief (Friend of the Court brief) with the Seventh Circuit Court in support of Indiana.

Here is a copy of the 25-page opinion of Chief Judge McKinney (SD Ind., 10/24/06). Some quotes:
This cause is before the Court on the following motions: Defendants’, State of Indiana ex rel. Steve Carter, Attorney General and Steve Carter, Attorney General (“the State” or “Indiana”), Motion to Stay and Motion to Dismiss, and Plaintiff’s, FreeEats.com, Inc. (“FreeEats”), Motion for Preliminary Injunction. FreeEats is seeking declaratory and injunctive relief, specifically a declaration that Indiana’s statute regulating automatic dialing machines is void and an injunction preventing Indiana from enforcing this law against out-of-state callers who wish to contact Indiana residents. The Court heard argument on the motions at an evidentiary hearing held on October 6, 2006, and ordered further briefing. The motions are now fully briefed and ripe for ruling.

For the reasons stated herein, the Court DENIES the State’s Motion to Stay, DENIES the State’s Motion to Dismiss, and DENIES FreeEats’ Motion for Preliminary Injunction. * * *

The Court finds that FreeEats has not demonstrated that is likely to succeed on the merits of any of its claims. Because the Court concludes that FreeEats cannot make the requisite showing on this factor, the Court need not discuss the other factors for a preliminary injunction because a party must satisfy all three threshold requirements before a Court will balance the interests of the parties and weigh the impact on public interest. FreeEats’ request for a preliminary junction must be DENIED.

Here is a link to the briefs filed in the appeal, including the amicus brief signed by 13 states.

And here is a link to a recording of last week's oral arguments before the three-judge panel

Posted by Marcia Oddi on April 6, 2007 12:36 PM
Posted to Ind. (7th Cir.) Decisions