Illinois Ex Rel. Madigan, Attorney General of Illinois v. Telemarketing Associates, Inc.

123 S. Ct. 1829, 155 L. Ed. 2d 793, 16 Fla. L. Weekly Fed. S 264, 538 U.S. 600, 2003 U.S. LEXIS 3430, 71 U.S.L.W. 4341, 2003 Daily Journal DAR 4867
Supreme Court of the United States·Decided May 5, 2003·No. 01-1806·Published·Cited by 123 cases

Opinions

[605] Justice Ginsburg

delivered the opinion of the Court.

This case concerns the amenability of for-profit fundraising corporations to suit by the Attorney General of Illinois for fraudulent charitable solicitations. The controversy arises from the fundraisers’ contracts with a charitable nonprofit corporation organized to advance the welfare of Vietnam veterans; under the contracts, the fundraisers were to retain 85 percent of the proceeds of their fundraising endeavors. The State Attorney General’s complaint alleges that the fundraisers defrauded members of the public by falsely representing that “a significant amount of each dollar donated would be paid over to [the veterans organization] for its [charitable] purposes while in fact the [fundraisers] knew that ... 15 cents or less of each dollar would be available” for those purposes. App. 9, ¶ 34. Complementing that allegation, the complaint states that the fundraisers falsely represented that “the funds donated would go to further . . . charitable purposes,” id., at 8, ¶ 29, when in fact “the amount . . . paid over to charity was merely incidental to the fund [606] raising effort,” which was conducted primarily “for the private pecuniary benefit of” the fundraisers, id., at 9, ¶ 35.

The question presented is whether those allegations state a claim for relief that can survive a motion to dismiss. In accord with the Illinois trial and appellate courts, the Illinois Supreme Court held they did not. That court was “mindful of the opportunity for public misunderstanding and the potential for donor confusion which may be presented with fund-raising solicitations of the sort involved in th[is] case,” Ryan v. Telemarketing Associates, Inc., 198 Ill. 2d 345, 363, 763 N. E. 2d 289, 299 (2001); it nevertheless concluded that threshold dismissal of the complaint was compelled by this Court’s decisions in Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 (1984), and Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 (1988). Those decisions held that certain regulations of charitable subscriptions, barring fees in excess of a prescribed level, effectively imposed prior restraints on fund-raising, and were therefore incompatible with the First Amendment.

We reverse the judgment of the Illinois Supreme Court. Our prior decisions do not rule out, as supportive of a fraud claim against fundraisers, any and all reliance on the percentage of charitable donations fundraisers retain for themselves. While bare failure to disclose that information directly to potential donors does not suffice to establish fraud, when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, the First Amendment leaves room for a fraud claim.

I

Defendants below, respondents here, Telemarketing Associates, Inc., and Armet, Inc., are Illinois for-profit fundraising corporations wholly owned and controlled by defendant-respondent Richard Troia. 198 Ill. 2d, at 847-348, 763 [607] N. E. 2d, at 291. Telemarketing Associates and Armet were retained by VietNow National Headquarters, a charitable nonprofit corporation, to solicit donations to aid Vietnam veterans. Id., at 348, 763 N. E. 2d, at 291. In this opinion, we generally refer to respondents, collectively, as “Telemarketers.”

The contracts between the charity, VietNow, and the fundraisers, Telemarketers, provided that Telemarketers would retain 85 percent of the gross receipts from donors within Illinois, leaving 15 percent for VietNow. Ibid. Under the agreements, donor lists developed by Telemarketers would remain in their “sole and exclusive” control. App. 24,93-94, 102, ¶ 65. Telemarketers also brokered contracts on behalf of VietNow with out-of-state fundraisers; under those contracts, out-of-state fundraisers retained between 70 percent and 80 percent of donated funds, Telemarketers received between 10 percent and 20 percent as a finder’s fee, and Viet-Now received 10 percent. 198 Ill. 2d, at 348, 763 N. E. 2d, at 291. Between July 1987 and the end of 1995, Telemarketers collected approximately $7.1 million, keeping slightly more than $6 million for themselves, and leaving approximately $1.1 million for the charity. Ibid.1

In 1991, the Illinois Attorney General filed a complaint against Telemarketers in state court. Id., at 348-350, 763 N. E. 2d, at 291-292.2 The complaint asserted common-law and statutory claims for fraud and breach of fiduciary duty. Ibid. It alleged, inter alia, that the 85 percent fee for which Telemarketers contracted was “excessive” and “not justified [608] by expenses [they] paid.” App. 103, ¶72. Dominantly, however, the complaint concerned misrepresentation.

In the course of their telephone solicitations, the complaint states, Telemarketers misleadingly represented that “funds donated would go to further Viet[N]ow’s charitable purposes.” Id., at 8, ¶ 29. Affidavits attached to the complaint aver that Telemarketers told prospective donors their contributions would be used for specifically identified charitable endeavors; typical examples of those endeavors include “food baskets given to vets [and] their families for Thanksgiving,” id., at 124, paying “bills and rent to help physically and mentally disabled Vietnam vets and their families,” id., at 131, “jo[b] training,” id., at 145, and “rehabilitation [and] other services for Vietnam vets,” id., at 169 (some capitalization omitted in quotes). One affiant asked what percentage of her contribution would be used for fundraising expenses; she “was told 90% or more goes to the vets.” Ibid, (capitalization omitted). Another affiant stated she was told her donation would not be used for “labor expenses” because “all members are volunteers.” Id., at 111 (capitalization omitted).3 Written materials Telemarketers sent to each donor [609] represented that contributions would “be used to help and assist Viet[N]ow’s charitable purposes.” Id., at 8, ¶ 30.4

The 15 cents or less of each solicited dollar actually made available to VietNow, the Attorney General charged, “was merely incidental to the fund raising effort”; consequently, she asserted, “representations made to donors [that a significant amount of each dollar donated would be paid over to Viet[N]ow for its purposes] were knowingly deceptive and materially false, constituted a fraud[,] and were made for the private pecuniary benefit of [Telemarketers].” Id., at 9, ¶¶ 34, 35.

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Illinois Ex Rel. Madigan, Attorney General of Illinois v. Telemarketing Associates, Inc., 123 S. Ct. 1829, 155 L. Ed. 2d 793, 16 Fla. L. Weekly Fed. S 264, 538 U.S. 600, 2003 U.S. LEXIS 3430, 71 U.S.L.W. 4341, 2003 Daily Journal DAR 4867 (U.S. 2003).

123 S. Ct. 1829 (Illinois Ex Rel. Madigan, Attorney General of Illinois v. Telemarketing Associates, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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