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Friday, July 16, 2010

Ind. Decisions - Two Indiana cases today from 7th Circuit

In Tom George et al v. NCAA (SD Ind., Lawrence), a 14-page, 2-1 opinion, Judge Darrah (sitting by designation) writes:

Plaintiffs brought this proposed nationwide class action against the National Collegiate Athletic Association (“NCAA”) and Ticketmaster, alleging that both defendants operated illegal lotteries to sell and distribute tickets for certain Division I championship tournaments. The NCAA moved to dismiss Plaintiffs’ Second Amended Complaint. The district court dismissed all claims with prejudice, and this appeal followed. * * *

[ILB - this well worth reading-in-full opinion turns on Indiana lottery law]

All of Plaintiffs’ claims, however, incorporate—and, to some extent, rely on—all of the preceding allegations, including the lottery claim. As discussed above, Plaintiffs have sufficiently alleged that the NCAA operated an unlawful lottery. Accordingly, the district court’s order of dismissal must be reversed as to all counts remaining in Plaintiffs’ Second Amended Complaint.

CONCLUSION. For the reasons stated above, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.

CUDAHY, Circuit Judge, dissenting. I respectfully dissent from the conclusion of the majority that the mode of distribution of certain sought-after tickets for sports events, as pleaded, is technically an illegal “lottery.”

In Tamika Jones v. Res-Care (SD Ind., Lawrence), a 12-page opinion, Judge Darrah (sitting by designation) writes:
Tamika Jones filed suit against her employer, Res-Care, Inc., and another Res-Care employee, Shane McFall, in the United States District Court for the Southern District of Indiana. Jones alleged discrimination because of race and retaliation under Title VII of the Civil Rights Act of 1964. Jones also brought claims under state law for slander per se, negligent supervision and vicarious liability under the doctrine of respondeat superior. On July 21, 2009, the district court granted Defendants’ motion for summary judgment on all claims. * * *

For the foregoing reasons, the district court properly held that all of Jones’s Title VII claims, with the exception of her retaliation claim, were barred and that Jones could not meet her burden to avoid summary judgment on her retaliation claim. * * *

[Re the state law claims] Under Indiana law, alleged defamatory statements are protected by a qualified privilege if they are “made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty.” Kelley v. Tanoos, 865 N.E.2d 593, 598 (Ind. 2007). “Intracompany communications regarding the fitness of an employee are protected by the qualified privilege, in order to accommodate the important role of free and open intracompany communications and legitimate human resource management needs.” Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 262 (Ind. 1994). However, a communication that would otherwise be covered by the privilege loses that protection if the plaintiff shows that the privilege has been abused. Id. Abuse occurs where (1) the statement was primarily motivated by ill will, (2) there is excessive publication, or (3) the statement was made without belief or grounds for belief in its truth. Id.

Here, Defendants have shown that the privilege applies, and Jones has not shown that there was abuse of the privilege. Both statements related to Jones’s trustworthiness and were made only to an individual within the company. Jones argues that McFall’s use of animal terms is evidence of malice and, therefore, implicitly argues that McFall was primarily motivated by ill will. But Jones has offered no other evidence of ill will towards her by McFall. Here, considered in context, the use of a somewhat offensive term, alone, does not show that the statement, even if otherwise defamatory, was motivated primarily by ill will and was an abuse of the privilege. Therefore, summary judgment was properly granted as to the defamation claim.

Summary judgment was also properly granted on Jones’s claim against Res-Care for vicarious liability. That claim is depended on the defamation claim and so must also fail.

Posted by Marcia Oddi on July 16, 2010 11:33 AM
Posted to Ind. (7th Cir.) Decisions