United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge
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. . 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.
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
Wilshire Consulting, Inc., d/b/a Social Wellness (Social
Wellness), is owned by Brian Kang, its CEO and sole employee.
 ¶¶ 3, 7. Greg Jones is an independent
contractor for Social Wellness.  ¶ 8. Social
Wellness sets up “Lunch n' Learn”
opportunities for doctors to give wellness presentations at
companies; these doctors preorder food for the attendees.
 at 8, 14;  at 6-7. In July 2014, Social Wellness
reached out to Darden Restaurants, Inc., the owner of certain
Olive Garden trademarks.  ¶¶ 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).  ¶ 10. Jones sent Darden an email
through the Olive Garden website, asking Olive Garden to
consider a strategic alliance with Social Wellness. 
¶¶ 11-12. Jones sought Darden's permission to
use the Olive Garden logo to help promote Social
Wellness's program.  ¶ 20.
Momot, then Darden's Director of Brand Management, was
the first person from Darden to communicate directly with
Jones.  ¶ 15;  ¶ 5. She exchanged emails
with Jones and spoke to him once or twice over the phone.
 ¶ 16;  ¶¶ 6, 8, 11-12. Jones also had
some communications with Ken Bott, Darden's Director of
Commerce Programs and Partnerships.  ¶ 14; 
¶ 6. A month or two after Jones's initial email,
Momot left Darden for other employment.  ¶ 15. At
this point, Jones had exchanged a few emails and
approximately three to five calls with Momot and/or Bott.
 ¶ 18.
early September 2014, Jones emailed Bott, looking for Momot.
 ¶ 18. Jones and Bott communicated a bit more by
email (and possibly by phone).  ¶ 24;  ¶
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.  ¶¶
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.  ¶ 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.  ¶¶ 21-24.
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. 
¶¶ 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.  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.  ¶¶
51-52. The contact information in the flyer, including email
and phone number, belonged to Social Wellness.  ¶
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.”  ¶¶
however, never saw the flyer until this litigation. 
¶ 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.  ¶¶ 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.  ¶¶ 29-34. Social Wellness never
entered into a contract with Darden, and the two companies
never paid each other any money.  ¶¶ 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.  ¶¶ 47-48.
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.  ¶¶ 1, 49. Helping Hand filed suit
against Darden, Social Wellness, Kang, and Jones on December
17, 2014. . Darden was served two days later.  ¶
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.  ¶ 58. In
response, Social Wellness sent an email to Darden's
counsel that stated:
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