Quigley — a U. Olympic m steeplechaser who withdrew from Olympic trials — joins a growing number of athletes who were dissatisfied with Nike endorsement deals.
Other top runners that parted ways with footwear giant include Mary Cain and Allyson Felix, who respectively spoke out about the company's allegedly toxic culture and lack of maternity protections. Lululemon "values me as that whole person," she added, "which is really what drew me to them.
Professional athletes in sports such as track and field seek sponsorship deals for compensation since there are few leagues — particularly for women — that pay viable salaries. For college stars like Quigley, signing with a major brand represents the dream of taking one's running career to the next level. Because these arguments were not raised in the district court, however, they are waived for purposes of appeal.
See TeleCommunications, Inc. Comm'r of Internal Revenue , F. The ADL asserts that the good faith belief of Lozow and Kritzer in the lawfulness of their conduct i. The ADL asserted this argument in district court in the context of its post-trial motion for new trial or judgment as a matter of law. The district court rejected the argument:. Although evidence that a defendant believed he was acting lawfully is pertinent to a determination of whether he acted with the sufficient state of mind to make the award of punitive damages appropriate, I do not find it to be dispositive of the issue.
Rather, it is one of several factors for the jury to weigh in its consideration of whether to award punitive damages. Here, the ADL focuses exclusively on the fact that Lozow and Kritzer believed that the interception of cordless telephone calls was lawful based upon Lozow and Kornfeld's research as well as the representations of Pautler and Thomas.
What the ADL ignores, however, is evidence concerning the "use" of the intercepted telephone calls. Kritzer was the lead attorney in preparing the Aronsons' complaint. This position enabled him to select which intercepted comments to include in the amended complaint and the context in which they would appear. Kritzer also attended two meetings with the Aronsons and the ADL in which it was stated that one of the objectives of all those in attendance was to publicize what they believed to be plaintiffs' anti-Semitic conduct, despite knowing the potential implications that such a public disclosure could have on Mr.
Quigley's career. The jury could reasonably infer that, in furtherance of this objective, Kritzer selected only isolated snippets of the hours of illegally taped conversations to frame the Aronsons' complaint in a light favorable to the ADL's objective of publically touting the Aronsons' complaint as a "major case of anti-Semitism.
On this evidence, the jury could have found by a preponderance of the evidence that Kritzer's action, and by extension the ADL's action, was taken with utter disregard to the serious consequences that would follow allegations of anti-Semitism lodged against plaintiffs.
Reviewing the issue de novo, we likewise reject the ADL's arguments. The ADL's alleged "good faith belief" in the legality of its conduct was based on the initial legal conclusions reached by Lozow and his associate in late October More specifically, Lozow and his associate concluded, after researching the matter themselves and after speaking with the district attorney and an assistant district attorney, that it was legal for the Aronsons to intercept and record the Quigleys' telephone conversations.
Nothing in the record indicates that Lozow or Kritzer, or their respective associates, investigated the question of whether it was legal for them to disclose or otherwise "use" the contents of those recorded conversations. Indeed, had they researched the matter prior to filing the civil complaint in early December , they may well have and indeed should have discovered that such "use" was illegal. Instead, they took snippets of those conversations out of context in an attempt to support their claims of anti-Semitic harassment on the part of the Quigleys.
Indeed, viewed in the light most favorable to the Quigleys, the evidence suggests that Lozow and Kritzer used the snippets of conversation to falsely portray the Quigleys as anti-Semitic extremists willing to use aggressive and violent tactics to drive the Aronsons from the neighborhood. In light of all these circumstances, we conclude the district court was correct in allowing the punitive damage issue to go to the jury, and that there was a basis for the jury's decision to award such damages.
Wade , U. Keeton, D. Dobbs, R. Owen, Prosser and Keeton on Torts 5th ed. The ADL also contends the district court erred in instructing the jury regarding the alleged good faith belief of Lozow and Kritzer. In particular, the ADL notes that the district court instructed the jury that the ADL's good faith belief was "irrelevant to [its] consideration of [the ADL's] liability upon the claims for violation of the Federal Wiretap Act," and that the ADL was "presumed to know the law, including the requirements of the Federal Wiretap Act.
According to the ADL, it was possible that the jury "could have understood this as a command to disregard the defendants' good faith belief We reject the ADL's arguments for several reasons. First, it is clear from the record that the ADL did not object to the jury instruction about which it now complains.
Although the dissent suggests the ADL was relieved from doing so because the district court stated at the outset of the instruction conference that it would assume the parties were "objecting to everything," we disagree. A complete reading of the transcript of the instruction conference indicates the district court allowed the parties to make specific objections to the proposed instructions and that, on several occasions, the ADL did object.
Thus, this case is distinguishable from United States v. Harrison , F. Second, even assuming the ADL's objections were properly preserved, we conclude the instruction was consistent with the law and the evidence. The instruction stated the unremarkable proposition that a defendant is presumed to know the law, e. Parker , U. Finally, we note the instruction at issue pertained to the ADL's general liability under the federal wiretap act and not its liability for punitive damages thereunder.
Notably, the district court segregated its instructions on general liability under the federal wiretap act from its instructions on punitive damages under the act. In doing so, the district court instructed the jury that " [t]he standards for the award of [punitive] damages [we]re different, and the burden of proof [wa]s different. Because juries are presumed to have followed the instructions given to them by the district court, see Smith v.
Diffee Ford Lincoln-Mercury, Inc. The ADL asserts that the punitive damage awards on the federal wiretap claims violate the First Amendment, since they were based "on the content of the defendant's petitioning and speech activities. It is unclear from the record whether this argument was ever raised in the district court. Assuming that it was, we conclude it has no merit.
As previously discussed, there are several reasons why the First Amendment provides no refuge for the ADL in this case, including the fact that the contents of the recorded telephone conversations were purely private matters, rather than matters of public concern, and because the contents of those conversations were not accurately reported by defendants.
Finally, the ADL asserts that the punitive damage award violates due process because the " [s]electivity by an advocate in framing the allegations of court pleading [s] Because this issue was not raised in the district court, it has been waived for purposes of appeal. Defendants contend the district court erred in instructing the jury with respect to plaintiffs' invasion of privacy by intrusion claims. As noted by defendants, the district court instructed the jury that it could find in favor of plaintiffs on those claims if they found the defendants had either intercepted the Quigleys' private telephone conversations on or after October 25, the date on which intercepting and taping became illegal under federal law , or had "used" the contents of those conversations.
Because defendants failed to raise this argument in the district court, we review only for plain error. See Telecor , F. Colorado law recognizes three separate categories of invasion of privacy claims. Bueno , 54 P. These include: 1 unreasonable intrusion upon the seclusion of another "intrusion" ; 2 publicity that unreasonably places another in a false light before the public "disclosure" ; and 3 appropriation of another's name or likeness "appropriation".
At issue here is the first category — intrusion. This tort "focuses on the manner in which information that a person has kept private has been obtained," Doe v. High-Tech Inst. To prevail on a claim of invasion of privacy by intrusion, "a plaintiff must show that another has intentionally intruded, physically or otherwise, upon the plaintiff's seclusion or solitude, and such intrusion would be considered offensive by a reasonable person. Although it is clear that the interception of the Quigleys' telephone conversations would constitute an intentional intrusion on the Quigleys' seclusion or solitude, the issue raised by defendants is whether, as set forth in the district court's instructions, the "use" of intercepted telephone conversations can also constitute such an intrusion.
We conclude the answer to this question is "no. Certainly, the "use" of such conversations might have resulted in another type of invasion of privacy, i. But no such claim was asserted in this case.
We therefore conclude that the district court committed plain error in instructing the jury on plaintiffs' invasion of privacy by intrusion claims, and that such error warrants a reversal of the judgment on those claims.
We emphasize, however, that the reversal of those judgments does not require a remand, nor does it have any impact on the damage awards that are incorporated into the final judgment. At the urging of the defendants, and over plaintiffs' objection, the district court utilized a verdict form asking the jury to award compensatory damages in one lump-sum albeit divided into economic and non-economic damages for all of the claims both state and federal upon which they found in plaintiffs' favor.
In doing so, the district court concluded, without objection from the defendants, that the damages for each of the state law and federal claims were "the same. The jury, in turn, found the ADL liable on five separate claims i. Thus, our reversal of the judgment on the invasion of privacy by intrusion claims has no effect on the damage awards, since those awards are supported by the verdicts on the remaining claims. Defendants contend that the compensatory and punitive damage awards must be vacated " [s]ince one or more of the Quigleys' claims upon which the jury found liability was improperly submitted to the jury, [having] involved conduct that was, as a matter of law, protected by the First Amendment.
We reject this contention for three reasons. First, defendants fail to point to where in the record they raised the issue in the district court. Second, for the reasons outlined above, we conclude the district court's submission of the plaintiffs' claims to the jury did not violate the First Amendment. Finally, as outlined above, the defendants themselves urged the district court, over the objection of the plaintiffs, to utilize a verdict form asking the jury to assess lump-sum compensatory damage awards for the state and federal claims the jury was asked, however, to assess separate punitive damage awards for the state and federal claims.
Further, in doing so, defendants conceded that the compensatory damages on all of the claims were the same. Thus, they are in no position to establish reversible error arising out of the fact that the compensatory damage awards are not divided separately between the claims.
Prior to trial in this case, the Colorado Court of Appeals held that Colorado law would recognize "false light" claims.
See Bueno v. Shortly before we heard oral argument in this appeal, however, the Colorado Supreme Court reversed that decision and "join [ed] those jurisdictions that do not recognize false light as a viable invasion of privacy tort. In light of the Colorado Supreme Court's decision, we must set aside the judgment of the district court on plaintiffs' "false light" claims. For the reasons outlined above in our discussion of the invasion of privacy by intrusion claims, our action in this regard does not require a remand nor does it have any effect on the damage awards that are part of the judgment.
We REVERSE the judgment of the district court with regard to plaintiffs' invasion of privacy by intrusion and false light invasion of privacy claims.
Our reversal of these judgments does not have any effect upon the damage awards. For purposes of brevity, we refer to it simply as "the federal wiretap act. Although the Aronsons continued to record the Quigleys' conversations, there was little contact between the couples during November and early December Indeed, the only incident involving the two couples occurred in mid-November, when the Aronsons called animal control to report that the Quigleys' dog was running loose on the Aronsons' property.
Under Colorado law, if a private individual is involved and the matter is not one of "public or general concern," the plaintiff merely needs to establish fault amounting to negligence on the part of the defendant See Williams v.
District Court , P. The difficulty in determining whether a matter is of "public concern" is precisely why the Supreme Court eschewed adopting such a federal constitutional standard in Gertz. See U. We reject the dissent's suggestion that plaintiffs have conceded the subject of the lawsuit was a matter of public concern. In any event, a complete reading of the answer brief demonstrates that plaintiffs vigorously dispute defendants' "public concern" arguments.
Our conclusion renders moot defendants' argument that the Quigleys failed to produce clear and convincing evidence of "actual malice" on the part of defendants in making the alleged defamatory statements. Although the ADL correctly asserts that the plaintiffs "did not plead a claim for conspiracy to violate the federal wiretap act in their consolidated Complaint, and none was contained in the Final Pretrial Order," Defs' Op. Plaintiffs alleged that the ADL violated the federal wiretap act by using the intercepted telephone conversations to prepare the civil complaint filed against the Quigleys.
In support of this claim, the plaintiffs asserted two alternative theories of liability: 1 that Lozow and Kritzer acted as agents of the ADL, and 2 that the ADL conspired with Lozow and Kritzer. This is consistent with our statements in McCarthy that "attorneys are For example, in his opening statement, Rosenthal indicated that the ADL had helped "craft an appropriate strategy.
Likewise, during his appearance on the radio show, Rosenthal stated that the ADL was "facilitating for the Aronsons their legal recourse. The ADL concedes that " [t]he right to petition the government and to engage in public speech through the filing of lawsuits may not enjoy the protection afforded by Bartnicki 's holding in a civil case of purely private significance.
Although the ADL attempts to do so now, it did not complain at trial or in its post-trial motion that the issue was not submitted to the jury for consideration. That issue has been waived for purposes of appeal See TeleCommunications, Inc. Commissioner , F. In any event, it is clear from the jury instructions that the jury was asked to determine a whether Lozow and Kritzer were agents or co-conspirators of the ADL, and b whether the defendants' conduct was wanton and reckless, thereby justifying punitive damages under federal law.
Contrary to the ADL's assertions, we conclude there is no plain error arising out of the court's failure to instruct the jury on the issue of authorization, approval, or ratification by the ADL. Claiborne Hardware Co. That case is distinguishable, however, because the NAACP in that case "posted bond and provided legal representation for arrested boycott violators," and the evidence indicated that the NAACP "regularly provide [d] such assistance to indigent black persons throughout the country.
Here, in contrast, there was no evidence that the ADL regularly reimbursed attorneys for expenses incurred in pursuing civil actions on behalf of persons referred to them by the ADL. The dissent suggests the attorneys' research concerning the legality of intercepting and recording the Quigleys' telephone conversations reasonably allowed them to conclude the "use" of tape-recorded telephone conversations was likewise legal.
We disagree. In our view, the "use" of tape-recorded telephone conversations is a discrete legal issue under the federal wiretap act Compare 18 U. Further, there is no evidence in the record that the attorneys researched or even considered the legality of using the tape-recorded conversations.
We also reject the dissent's suggestions that a it was unnecessary for the attorneys to revisit their research in early December prior to filing the civil action , or b that had they done so, they reasonably could not have been expected to uncover the October amendment to the federal wiretap statute.
In our view, a reasonably competent attorney researching the issue in December would have discovered the October amendment. See generally Texaco, Inc. Short , U. In the end, we believe the attorneys' failure to research the issue, combined with their use of the tape-recorded conversations, constituted "an extreme departure from ordinary care, in a situation where a high degree of danger [wa]s apparent.
Although the dissent questions whether the district court's punitive damage instruction was a correct statement of the applicable law, it is undisputed that the ADL has not challenged this instruction on appeal.
Nor, for that matter, did the ADL challenge the punitive damage instruction in the district court. Even if the issue had not been waived, it has no merit. As outlined above, the punitive damage award was not based solely on the content of the civil complaint, but rather because a Lozow and Kritzer failed to determine whether their "use" of the recorded conversations was legal, b failed to accurately report the contents of those conversations, and c conceivably acted with an intent to harm the reputation of the Quigleys See Smoot v.
United Transp. Union , F. I join in much of the majority opinion: 1 reversal of the judgment on plaintiffs' claims for invasion of privacy by intrusion and false light invasion of privacy; 2 rejection of defendants' invocation of the fair-report privilege; 3 affirmance of the judgment for compensatory damages under the federal wiretap act based on plaintiffs' unchallenged conspiracy theory making it unnecessary, in my view, to determine whether defendants adequately preserved a claim that the agency instructions failed to inform the jury properly regarding the element of control ; and 4 rejection of defendants' First Amendment argument predicated on Bartnicki v.
I respectfully dissent, however, on two issues. First, I believe that defendants' allegations regarding plaintiffs touched on a matter of public concern. Therefore, the jury could award damages for defamation only if it found that defendants had acted with malice.
Because the jury was not instructed that it had to find malice, the defamation verdict must be reversed. Reversal of the defamation verdict would leave no state-law cause of action, so state-law punitive damages would also need to be set aside. The defamation claim could, however, be retried. Second, I would reverse the punitive-damages award against the ADL on the federal wiretap claim.
Although the ADL has not preserved its most compelling grounds for reversal of the award the insufficiency of the evidence to support punitive damages and the improper instruction regarding what the jury must find before imposing such damages , it is still entitled to relief because of an improper instruction stating that it was presumed to know the law contained in the federal wiretap act.
My ground for departure from the other members of the panel on the defamation claim is that I believe defendants' allegations against plaintiffs touched on a matter of public concern. The Colorado courts have issued only a few decisions on the subject, and none involved facts closely analogous to those presented in this case.
Reasonable people can therefore differ on how to apply Colorado law here. I do not believe that the majority opinion unreasonably construes Colorado law. Nevertheless, I think it is in error. To begin with, it is essential to keep in mind that in determining whether allegedly defamatory statements are matters of public concern, a court must assume the statements to be true.
If only true statements could be matters of public concern, Colorado's public-concern doctrine would be an empty gesture, because true statements can never be the basis for a defamation cause of action.
See Churchey v. Adolph Coors Co. Assuming, then, the truth of defendants' allegations, the question before us is whether it is a matter of public concern that residents of an upscale neighborhood have conspired to engage in violence and intimidation to remove a family from the neighborhood because of the family's religious heritage.
I acknowledge that the allegations do not concern the exercise of governmental power. Nor would the alleged conspiracy affect many people directly. Indeed, the allegations would be unlikely even to engender personal fear in most people; after all, Jews constitute a small minority of the population.
Nevertheless, as noted by the majority opinion, " [t]he determination of whether Thus, a purely social concern can be a matter of public concern.
I would have thought that the social concern of our day is bigotry. Surely, faith-based intolerance, particularly when combined with threats of violence, is a matter of concern to the community at large. Our recognition of Martin Luther King's birthday as a national holiday is intended to underscore this country's commitment to end bigotry, private as well as official. Accounts of private acts of bigotry, from the schools to the office to baseball fields, can regularly be found in the media.
After the tragedy of September 11, incidents of private violence against Muslims garnered front page headlines and prompted a speech by the President. In this case itself, the Denver Post and Rocky Mountain News each published a story about the complaint filed against plaintiffs before defendants conducted a press conference. Interestingly, plaintiffs apparently accept the characterization of faith-based bigotry as a matter of public concern. In their Answer Brief they write:.
Surely, ADL contends, a plaintiff's conspiratorial plan to harm persons of a particular religious faith and drive them from the neighborhood, all as furthered by the performance of criminal acts, is a matter of public concern.
The Quigleys do not disagree with that proposition in the abstract. The problem for ADL's position is that none of this was true. Because I disagree with the suggestion that application of Colorado's public-concern doctrine depends on the truthfulness of the allegedly defamatory statements, I think plaintiffs have conceded the real issue before the court.
In any event, regardless of whether plaintiffs have conceded the issue, I believe that Colorado law required plaintiffs to prove that defendants' defamatory statements were uttered with malice — that is, with knowledge or reckless disregard of the statements' falsity. Because the jury was not so instructed, judgment on the defamation claim, for both compensatory and punitive damages, must be set aside and the matter remanded for further proceedings. Punitive Damages 1. The federal wiretap act authorizes awards of punitive damages.
It does not, however, describe the circumstances in which such awards are permissible. Nevertheless, the standard for granting an award is reasonably clear. In Kolstad v. American Dental Association , U. The federal wiretap act does not include language identical to, or even comparable to, the language of the Civil Rights Act of setting forth the conditions for imposing punitive damages.
All it says is that relief under the act may include "punitive damages in appropriate cases. Still, the gist of the Civil Rights Act language is implicitly incorporated. First, the "with malice or with reckless indifference" language is a typical formulation of the scienter requirement for punitive damages.
There are a number of other formulations, but their meanings are essentially the same. See Smith v. Second, the requirement that the wrongful scienter be directed at "the federally protected rights of an aggrieved individual" is a natural consequence of the remedy's being afforded under a federal statute.
The purpose of authorizing punitive damages under the federal wiretap act is to protect the rights created by that act. It would be rather remarkable if Congress intended the punitive-damages provision of the act to authorize punitive damages for, say, malicious violation of some state-law right not otherwise protected by the act.
Thus, it is safe to say that punitive damages under the federal wiretap act are to be awarded only for violations of the act committed "with malice or reckless indifference to the federally protected rights of an aggrieved individual. Flood , F. Indian River Estates , F. Riga , F. Urban Search Mgmt. Accordingly, to award punitive damages against the ADL in this case, the jury would have to find that the ADL "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [federal wiretap act].
I do not see how the jury, if properly instructed, could have made such a finding. As the majority opinion sets forth, the attorneys upon whom the ADL was relying researched the law in late October and determined correctly that interception of plaintiffs' conversations did not violate the federal wiretap act.
These attorneys even contacted two state prosecutors who confirmed this conclusion. The problem here is that the law had changed because of an immediately effective statutory amendment by early December, less than six weeks later, when the complaint was filed and the press conference conducted. The majority opinion seems to suggest that the ADL should have rechecked the law in early December.
Perhaps it is good practice to recheck the law periodically although clients may be unwilling to pay for its being done too often. Yet I doubt that it would even be negligence, much less reckless indifference, not to recheck the law every few weeks.
Here, the statutory amendment would not have been readily available in a printed codification by the time of the press conference. AIDS care. A week Iyengar yoga program improved balance and mobility in older community-dwelling people: a pilot randomized controlled trial. The journals of gerontology.
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