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Helping Hand Caregivers, Ltd. v. Darden Restaurants, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 21, 2016

Helping Hand Caregivers, Ltd., Plaintiff,
v.
Darden Restaurants, Inc., Mid Wilshire Consulting, Inc., Brian J. Kang, and Greg M. Jones, Defendants.

          MEMORANDUM OPINION AND ORDER

          Manish S. Shah United States District Judge

         Helping Hand Caregivers, Ltd., sues defendants Darden Restaurants, Inc., Mid Wilshire Consulting, Inc., Brian Kang, and Greg Jones under the Telephone Consumer Protection Act, 47 U.S.C. § 227, alleging that Mid Wilshire Consulting (through Kang and Jones) sent Helping Hand an unsolicited fax advertisement on behalf of Darden. [36].[1] Darden moves for summary judgment, arguing there is no genuine dispute of material fact that Mid Wilshire Consulting had no authority to send faxes on Darden's behalf. Darden's motion for summary judgment is granted.

         I. Legal Standards

         Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         II. Background[2]

         Mid Wilshire Consulting, Inc., d/b/a Social Wellness (Social Wellness), is owned by Brian Kang, its CEO and sole employee. [83] ¶¶ 3, 7. Greg Jones is an independent contractor for Social Wellness. [83] ¶ 8. Social Wellness sets up “Lunch n' Learn” opportunities for doctors to give wellness presentations at companies; these doctors preorder food for the attendees. [69] at 8, 14; [78] at 6-7. In July 2014, Social Wellness reached out to Darden Restaurants, Inc., the owner of certain Olive Garden trademarks. [83] ¶¶ 2, 11. Jones handled all communications with Darden on behalf of Social Wellness-Kang never communicated with anyone at Darden (except with Darden's counsel after Helping Hand filed this lawsuit). [83] ¶ 10. Jones sent Darden an email through the Olive Garden website, asking Olive Garden to consider a strategic alliance with Social Wellness. [83] ¶¶ 11-12. Jones sought Darden's permission to use the Olive Garden logo to help promote Social Wellness's program. [83] ¶ 20.

         Kasha Momot, then Darden's Director of Brand Management, was the first person from Darden to communicate directly with Jones. [83] ¶ 15; [86] ¶ 5. She exchanged emails with Jones and spoke to him once or twice over the phone. [83] ¶ 16; [86] ¶¶ 6, 8, 11-12. Jones also had some communications with Ken Bott, Darden's Director of Commerce Programs and Partnerships. [83] ¶ 14; [83] ¶ 6. A month or two after Jones's initial email, Momot left Darden for other employment. [86] ¶ 15. At this point, Jones had exchanged a few emails and approximately three to five calls with Momot and/or Bott. [83] ¶ 18.

         In early September 2014, Jones emailed Bott, looking for Momot. [86] ¶ 18. Jones and Bott communicated a bit more by email (and possibly by phone). [83] ¶ 24; [86] ¶ 18.[3] Jones described Social Wellness's proposed marketing plan, explaining that Social Wellness would conduct email marketing, first testing it out by sending emails to a test group, letting the consumer know where the food was purchased, and seeing if there was any resulting interest to enroll in Social Wellness's program. [83] ¶¶ 22-25. Although Jones sent Darden an example email mock-up using a different company's logo, he never sent Darden a mock-up email using Olive Garden's logo. [83] ¶ 26. Jones also reached out to Bott in mid-October because some doctors had difficulty ordering online from Olive Garden. Bott asked another Darden employee, Roberto Sanchez, to help Jones out with the online ordering process. Sanchez sent Jones an “Online Ordering Guide” and spoke with him over the phone. [86] ¶¶ 21-24.

         Around this time, Social Wellness created a fax flyer for its Lunch n' Learn program. Kang and Jones found someone on Craigslist to create the flyer using Photoshop. [83] ¶¶ 49-50. The flyer included the Olive Garden logo in the upper right corner, stated that Social Wellness was teaming up with Olive Garden for a “Lunch n' Learn, ” which included a complimentary catered lunch from Olive Garden, and the bottom of the flyer included a photo of food. [78] at 39. Kang and Jones obtained both the Olive Garden logo and food photo (which may or may not have been a photo of Olive Garden's food) through Google searches and/or an online company selling photos. [83] ¶¶ 51-52. The contact information in the flyer, including email and phone number, belonged to Social Wellness. [83] ¶ 53. Social Wellness then faxed the flyer out to fax numbers gathered from a Google search and from buying “a list off of Craigslist from some lady.” [83] ¶¶ 54-55.

         Bott, however, never saw the flyer until this litigation. [83] ¶ 46. During the several months of discussions with Darden, the only specific advertising medium that Jones discussed was email marketing-Jones admits that they never discussed sending faxes. [83] ¶¶ 21, 27, 35. Darden generally does not market by fax, and before entering into a partnership, Darden's practice is to require senior management sign-off and written agreements, including a nondisclosure agreement, and a master services agreement and statement of work outlining logo usage and business expectations. [83] ¶¶ 29-34. Social Wellness never entered into a contract with Darden, and the two companies never paid each other any money. [83] ¶¶ 38- 44. Bott says that he and Darden never gave Social Wellness permission to use the Olive Garden logo or to send faxes, but Jones says that Bott told him Darden had “no problem with your telling your companies where the food is coming from” and that this meant Social Wellness had permission to use the Olive Garden name or logo in Social Wellness's marketing materials. [83] ¶¶ 47-48.

         Helping Hand Caregivers, Ltd. (an Illinois corporation that voluntarily dissolved in October 2015) alleges that it received Social Wellness's faxed flyer on October 31, 2014. [83] ¶¶ 1, 49. Helping Hand filed suit against Darden, Social Wellness, Kang, and Jones on December 17, 2014. [1]. Darden was served two days later. [83] ¶ 57. By early January, Darden sent Kang and Social Wellness a cease-and-desist letter demanding that they stop using Darden's Olive Garden trademark. [83] ¶ 58. In response, Social Wellness sent an email to Darden's counsel that stated:

         To Whom It May Concern,

Hi, my name is Brian Kang and I am one of the representatives with The Social Wellness Group / Mid Wilshire Consulting. This letter is to inform you that Dardens Restaurants & Olive Garden had nothing to do with the message that was sent to Helping Hands Caregivers LTD. It was totally on the Social ...

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