That May Be A $500 Bow Tie I'm Wearing

kendallgray@andrewskurth.com (Kendall Gray) — Thu, 02 Sep 2010 18:16:12 GMT

I will admit it. My sense of style is not for everyone. Atypical. Iconoclastic. Nerdy. Or just bad. I would accept any of those words as accurate descriptors.

But as I sit here in my Brooks Brothers seersucker suit and my Brooks Brothers regimental stripe bow tie, I am torn between feeling the outrage of a genetically predisposed defense lawyer and disappointment that my ship came in and I simply missed it. I was alerted to my lost opportunity by stories in the ABA Law Journal, the Wall Street Journal, Law360 and Reuters.

You see, my natty bow tie is fitted with the Adjustolox mechanism, allowing me to adjust a "one size" bow tie to fit my scrawny neck without the slippage that occurs with inferior mechanisms. Naturally, such a useful and novel invention as the Adjustolox mechanism is patented.

Or, was patented. You see, the patents expired in 1954 and 1955.

Which was also probably the last time that large numbers of men dressed like I do.

Alas for my beloved Brooks Brothers, because a bow-tie-wearing patent lawyer purchased some bow ties still marked with the expired patent numbers. He brought a "false marking" claim against the glorious font of men's business style.

Apparently the very future of The Republic is placed at risk if one wrongly claims a patent for the Adjustolox. Presumably the market is being improperly excluded from the useful arts and sciences of bow tie adjusting technology. As a result the feds can fine you $500 for each Adjustolox you sell with expired patent numbers--if you do so for the purpose of deceiving the public. See 35 U.S.C. § 292.

Let's see:

$500 x [gajillion ties sold] = No longer practicing law to earn a living.

If, however, you sell falsely labeled Adjustoloxae simply because no one has looked at a bow tie since 1955, it's all good.

But you still have to prevail against Raymond E. Stauffer, the bow-tie-festooned patent lawyer, because 35 U.S.C. § 292 allows "any person" to seek a $500-per-Adjustolox penalty and share 50% of the take with the gubmint.

That was the ruling in Stauffer v. Brooks Brothers, Inc., released Tuesday by the Federal Circuit. Congress can create its own "injury in fact" -- a statutory violation -- and then essentially deputize "any person" to pursue collection for that injury.

Of course, the Federal Circuit was not asked to rule upon the wisdom of such a statute. That is the purview of Congress alone. If it were otherwise, little that Congress commits to writing would survive.

But who knew that my retro wardrobe could be such source of potential riches? No telling what revenue I could garner from investigating the patents on other aspects of my geezer lifestyle. No telling what else I prize is marked with patents that expired 50 years ago.

Supreme Court rules against Betcha.com

Thu, 02 Sep 2010 15:48:33 GMT

The Supreme Court has unanimously ruled that Betcha.com's social wagering site constitutes illegal gambling under the Gambling Act. From Justice Tom Chambers' opinion:

Internet Community & Entertainment Corp., d/b/a Betcha.com (Betcha), is an on-line, person-to-person betting web site that charges its customers fees for connecting them to other online users wishing to wager on various events. While customers are expected and encouraged to pay their bets if they lose, Betcha specifically gives bettors 72 hours to elect not to pay a losing wager with another customer. The primary issue before us is whether Betcha has engaged in "professional gambling" within the meaning of Washington's gambling act, chapter 9.46 RCW. We conclude that it has and reverse the Court of Appeals.

Tomorrow's opinions, September 2, 2010

Thu, 02 Sep 2010 01:21:05 GMT

The Supreme Court will issue decisions in four cases tomorrow.

Fitzpatrick v. Okanogan County, No. 81257-8. This case is on appeal from Division Three Court of Appeals, and presents the Court with the question of whether a landowner may be compensated (via inverse condemnation) for damage caused to his property by a public project.

The damaged property was a log home built by the Fitzpatricks near the Methow River, which was washed away when the river abruptly changed course due to the construction of a dike upstream. The dike was a joint project of the state and county. The trial court granted summary judgment for the county, relying on the Common Enemy Doctrine (a rule allowing landowners to divert surface water, even to the detriment of neighoring landowners), but was reversed by the Court of Appeals.

Freeman v. Freeman, No. 82283-2. What must be proved for a trial court to terminate a permanent protection order? Robin Freeman got a permanent protection order against Rob Freeman due to domestic violence. Rob, a member of the military, has since moved away. He lost a hand in Iraq, and this made it necessary to retrain and change careers within the military. However, he needed a security clearance and could not get one because of the permanent protection order.

Rob moved to terminate the protection order. The trial court denied the motion, finding that Robin is currently in reasonable fear of Rob. The Court of Appeals reversed, finding that Rob had not been in Washington or had contact with Robin since 1998, that he had violated neither the protection order nor any law, and that “due to time and distance, there is no evidence to support a current fear” of physical harm.

Internet Community & Entertainment Corp., d/b/a Betcha.com v. State, No. 82845-8. In 2007, Internet Community & Entertainment Corp. was informed by agents of the Washington State Gambling Commission that its website Betcha.com was engaged in illegal gambling. The company sued the state seeking a declaratory judgment that its social wagering site does not violate state law. Betcha.com lost at the trial level. On appeal, the Court of Appeals held that because Betcha.com customers agreed in advance that participants were not required to pay their losses, Betcha.com was not engaged in “gambling” as defined in the Gambling Act.

State v. McCuistion, No. 81644-1. On appeal from Division Two Court of Appeals, this case originated in Pierce County Superior Court. It concerns whether a statute that prescribes the type of evidence sexually violent predators can use to show they qualify for a release hearing is constitutional.

McCuistion is a sexually violent predator who is committed indefinitely to a mental institution. State law permits him to have a release hearing (to determine if he is eligible for release) if he can clearly demonstrate (show prima facie evidence) that he is no longer a sexually violent predator. The types of evidence that can be used are limited, and the state is allowed to rely on annual psychiatric reviews. McCuistion appeals the evidence restrictions as unconstitutional.

Important Medicare Preemption Decision

Tue, 31 Aug 2010 21:24:09 GMT

At long last, the Ninth Circuit Court of Appeals issued its opinion in the Uhm v. Humana, Inc. (.pdf), matter, finding the Medicare Act’s exhaustion requirements and preemption provision barred all of the plaintiffs’ common law claims. (-- F.3d -- (9th Cir. 2010).) Originally, the court issued an opinion two years ago, but vacated the decision last summer and took the case under submission after soliciting amicus assistance from the Centers for Medicare and Medicaid Services. The new Uhm decision is strong support for Medicare Act preemption, reflecting CMS’ underlying thesis that state law claims interfering with Medicare standards and regulations must be preempted.

California Supreme Court Rules That an Insured Seeking to Undo a Settlement Agreement with Its Insurer Must Sue for Rescission and Return the Settlement Proceeds

Mon, 30 Aug 2010 22:10:33 GMT

This case arises out of an insured’s claim against its insurer for property damages caused by an earthquake that struck the Los Angeles area in 1984. After a protracted dispute (during which the insurer made substantial payments) over the value of the claimed damages, and the extent to which they were earthquake-related, the parties entered into a settlement agreement. The insurer agreed to pay an additional $1.5 million, and the insured executed a standard release by which it waived its right to recover any undiscovered damages and agreed to forbear bringing suit on any and all claims, known or unknown.

Several years later, the insured brought a lawsuit seeking to recover additional damages under the policy. It argued that it was fraudulently induced into entering into the settlement agreement and that under general contract principles it could elect to affirm the agreement (and thus keep the money it had already received) and sue for damages caused by the alleged fraud. The trial court, relying on decades of precedent from the Supreme Court and the Court of Appeal, as well as the statutory scheme governing settlements and releases, granted dispositive motions in favor of the insurer. The authorities, the court said, made clear that a party seeking to undo a settlement agreement must seek rescission and return any monies obtained as consideration for the release. The Court of Appeal reversed. Distinguishing the prior authorities on the basis that they involved third-party personal injury claims, rather than first-party breach of contract claims, the court found that public policy supports the rule (followed in several jurisdictions) that a policyholder may affirm, keep the money, and sue, despite having executed a full release.

The Supreme Court reversed the Court of Appeal. Village Northridge Homeowners Ass’n v. State Farm Fire and Casualty Company, __Cal.4th__ (Aug. 30, 2010). The sole purpose of the settlement agreement (unlike in the cases cited by the Court of Appeal) was to permit the insurer to buy its peace and avoid future litigation. There is no principled basis on which to distinguish this case from the personal injury cases, and the statutes enacted by the Legislature make clear that a party seeking to avoid its obligations under a settlement which includes a litigation waiver must do so through rescission, which requires it to return any consideration received. To hold otherwise would lead to a palpably inequitable result – the insured could affirm that part of the agreement that was favorable to it (the receipt of money) while voiding that part of the agreement that favored the insurer (forbearance of litigation). Neither public policy, case precedent, nor legislation support such a rule of law.

Last Thursday's Opinions: No-contact orders, stalking, and telephone harassment

Mon, 30 Aug 2010 21:23:50 GMT

State v. Bunker, No. 81921-1. Three defendants, each convicted of violating a no-contact order, appeal those convictions. Looking to a "shall arrest" clause in the statute," defendants argue that the law (former RCW 26.50.110) "criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place."

The Court, in an opinion by Justice James Johnson and joined by seven other justices, holds that the plain language of the statute and the clear intent of the legislature is to criminalize all violations of a no-contact order. Justice Sanders dissents. (briefs, argument)

State v. Kintz, No. 81688-3. Clarence Kintz was convicted of two charges of misdemeanor stalking and appealed, challenging the trial court's interpretation of the statutory phrase "separate occasions" and the sufficiency of the evidence. In two incidents, one in December 2005 and the other in January 2006, Kintz frightened women by repeatedly and slowly driving past them and, in the latter case, offering the woman a ride and money. Both women called 911 and Kintz, who admitted some of the details of each incident, was eventually charged.

Kintz argues that "separate occasions" is ambiguous and that the Court should apply the rule of lenity to find that separate occasions must happen over a greater length of time than in these incidents. The Court of Appeals upheld the convictions and the Supreme Court sustains that decision, agreeing with the lower court that the plain meaning of "separate occasions" is "a distinct, individual, noncontinuous occurrence or incident." The Court also finds sufficient evidence to support the convictions. Justice Alexander authored the opinion for a majority of seven.

Justice Sanders dissents and would hold that the events leading to each of these stalking charges should be considered a single occasion, rather than "separate occasions," and thus do not meet the statutory definition of stalking. For related reasons, he would also find insufficient evidence to sustain the convictions. Justice Chambers dissents separately in order to agree with Justice Sanders only as to the ambiguity in the term "separate occasions." (briefs, argument)

State v. Meneses, No. 83172-6. Andre Toi Meneses fathered a child by his then-girlfriend Jamila Willis. After they broke up, the child remained with Willis. Meneses began repeatedly calling Willis and leaving voice mail messages for her using "incredibly vile language, including racial slurs and descriptive obscenities," and threatening to kill Willis, her new boyfriend, and the new couple's infant. Willis eventually called the police, who recorded ten messages left by Meneses that became the basis for ten charges against him: four counts of felony telephone harassment, four counts of gross misdemeanor telephone harassment, and two counts of intimidating a witness. He was convicted by a jury on all counts.

The Court of Appeals sustained the convictions. The Supreme Court considered three issues raised by Meneses. First, the jury instruction on telephone harassment did not fail to specify that the criminal intent must have been formed before the call was placed. The instruction used the statutory language, and the Court has previously held that the meaning of the statute is clear on its face. Second, it did not violate double jeopardy for a count of telephone harassment and a count of intimidating a witness to arise from the same message because "each [conviction] required proof of a fact the other did not." Finally, because [n]o affirmative evidence supported the idea that Meneses committed witness tampering but not intimidating a witness," the trial court was not obligated to instruct the jury on the lesser included offense.

The Court, with an opinion by Justice Stephens, unanimously upholds the courts below. (briefs, argument)

Duty to Defend Applies to Calderon Proceedings

Mon, 30 Aug 2010 20:10:58 GMT

Whether prelitigation proceedings under the Calderon Act, Civil Code section 1375 et seq., come within a carrier's duty to defend any "suit" is apparently an issue of first impression. Or at least, it was. Such proceedings are covered. In Clarendon America Insurance Co. v. StarNet Insurance Co. (2010) 186 Cal.App.4th 1397, the Fourth District holds that prelitigation proceedings are "civil proceedings" as that term is used to define a "suit" under the policy.

The Calderon Act requires common interest development associations (of projects greater than 20 units), to give notice to a builder, developer, or general contractor of construction or design defects before suing. Calderon sets forth a litany of prelitigation steps aimed toward settlement. (See Civil Code section 1375 subd. (a) - (s).) If the dispute is not resolved via the Calderon process, then suit may be filed. The complaint is deemed to have been filed on the date the Calderon notice was served. (See Civil Code section 1375.05 subd. (b).)

In Clarendon, Centex homes developed a residential development covered by Calderon. As Calderon requires, the homeowners association served a notice of commencement of legal proceedings prior to filing suit against Centex. The notice contained the requisite list of alleged construction defects.

Centex was an additional insured on a subcontractor's policy with StarNet Insurance Company. As is typical, the policy's defense agreement stated that StarNet had the "duty to defend the insured against any 'suit' seeking [ ] damages." The term "suit" was further defined as "a civil proceeding in which damages . . . to which this insurance applies are alleged." Centex sued carrier Clarendon, which cross-complained against StarNet, seeking a declaration that StarNet was obligated to defend Centex.

StarNet moved for summary judgment on the grounds that the Calderon process did not constitute a "suit" within the meaning of its CGL policies. The trial court rejected that argument and held that the Calderon prelitigation proceedings fall within the meaning of suit.

The Fourth District affirmed. The StarNet CGL policies define "suit" as "a civil proceeding in which damages because of . . . property damage . . . to which this insurance applies are alleged . . ." The Court of Appeal stated that such a definition was necessarily broader than just an "action or lawsuit initiated by a complaint filed in court." The Fourth District also observed that Calderon is a "proceeding created by the Civil Code that is required" before suit, and that the proceedings include notice, inspections and exchanges of documents, settlement demands and settlement conferences. Therefore, Calderon falls within the policy definition of a "civil proceeding."

The next policy language interpretation issue was whether Calderon is a civil proceeding "in which damages . . . are alleged." The appellate court observed that the Calderon Act not only mandates compliance with its prelitigation process, but in the event the process fails, "the procedures undertaken and results of the Calderon Process are incorporated into and become part of the post complaint litigation." As a result, the Calderon process is "part and parcel of construction or design defect litigation . . . and, as such, cannot be divorced from a subsequent complaint." Since damages are alleged in a complaint, and since the Calderon Process is "part and parcel" of such litigation, then Calderon falls within the policy definition of a civil proceeding "in which damages . . . are alleged."

To sum up, since an insurer has a duty to defend a suit which potentially seeks damages within the policy's coverage, and since the Calderon prelitigation process is a "civil proceeding" within the meaning of "suit," StarNet had a duty to defend Centex.

Nationwide Mut. Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

Sun, 29 Aug 2010 02:04:27 GMT

In this auto accident case, the defendant insurer hired two law firms: one to defend a claim for personal injury protection (PIP) and another to defend a claim for uninsured motorist benefits (UM). The law firm defending the UM claim served a proposal for settlement appearing to cover all claims. The defendant prevailed on all issues. The trial court declined to award fees. It found the offer ambiguous because there were two law firms involved and it was unclear whether the proposal covered the PIP claim in addition to the UM claim. The Fourth District affirmed, agreeing with the trial court that the situation created a latent ambiguity.

Nationwide Mutual Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010)

Doing CRAC

Fri, 27 Aug 2010 18:03:46 GMT

As an adjunct professor, I tend to remember that old saw about those that can, those that can't, and which of the two are teachers. It's a little scary. Between avoiding being in the wrong half of that equation, and wondering what the students might ask me next, there is plenty of incentive to try hard to stay sharp and also, practice what I preach. Avoidance of the expression, "do as I say, not as I do" comes to mind. It's with no small trepidation that you look upon the sea of faces waiting for you to impart wisdom. Or something.

As lawyers, a frequent lament is about the poor quality of written briefs (never our own, of course). We sometimes see them in our own cases, filed by our oponents. And ask any trial or appellate judge at the next MCLE seminar you attend, you'll hear the frustration of a difficult job for shorthanded and overworked courts, exacerbated by poorly written briefs.

Let's face it, between discovery squabbles, pre/post-trial motions, mediation and trial briefs, 90% of what we do is write. And we must do it (collectively speaking) fairly poorly. Otherwise, how do you explain the popularity and success of brief writing gurus like Bryan Garner? His MCLEs are not cheap. They are also very popular.

In law school, we are taught to IRAC during our first semester and to think about legal writing from that framework. But when it comes to writing the legal argument sections of briefs, doing CRAC is even better. So whether you are trying to stay one step ahead of your opponents (or those hungry lawyers below you on the firm totem pole) or just been meaning to take a hard look at your own briefs, doing CRAC is a habit that is actually good for you.

Conclusion; Rule; Application; Conclusion. Appellate briefs are a good forum for demonstating proper use of CRAC to draft legal arguments.

Conclusion: The "Conclusion" that forms the first "C" in CRAC is a heading. This includes subheadings too. Make sure your headings are in fact conclusions and not just generic categories. Compare: "The Issue Is A Latin Cross" with "The Latin Cross on Sunrise Rock Has Secular Context as a War Memorial Sufficient to Constitute Ceremonial Deism." It's easy to tell the generic, directionless heading from the conclusion. Make sure your headings and subheadings are affirmative conclusions. Each should translate as "We win because . . ."

Rule: To write legal argument is to (hopefully) create a paradigm of proof. So for each discrete legal issue, the critical thing is to fully "Set the Table" before doing application. I use that phrase, "Set the Table" for good reason. It's because later, when you think you have finished the "Application," a good way to check before moving on is to see if you "Cleared the Table." In otherwords, did you use all the authority you set out in your Rule paragraph(s) immediately above? If you didn't, is it because you left something important out of your Application section? Or is it because, you actually don't need that authority up above in your Rule section? Either way, the edits you make in response create a better brief.

So when doing Rule, set the table. First the positive, then last, the negative distinguished. It looks and sounds like this (in shorthand form, each of the following sentences could be the start of a paragraph or paragraphs):

In Marsh v. Chambers, this Court held that a chaplain paid with public funds did not violate the Establishment Clause. [Explain]

And in Van Orden v. Perry, this Court held that display of a six-foot high, three-foot wide, Ten Commandments monument in a large park did not violate the Establishment Clause. [Explain]

In contrast, in City of Eugene, the Ninth Circuit held that a Latin cross violated the Establishment Clause. However . . . [Explain while distinguishing the ruling from the authorities above]

Application: Have you set the Rule table? Then it's time for application. Give it a strong signal and stick with the simple signals: "Here . . ." "In this case . . ." Turning to the Sunrise Rock cross . . ." Application is light and breezy writing because if you have properly "set the table" in the Rule section above, applcation is the hot-knife-through-butter moment with little need for case citations, just deployment of cases to your fact pattern:

"Here, as in Marsh, the practice of using Latin crosses to memorialze the sacrifices of our fallen solidiers is just as much a part of the fabric of society as . . . Moreover, as in Van Orden, the context of the physical surroundings . . . And unlike City of Eugene, the Latin cross features . . ."

Good application has that crisp, easy flow. It applies the Rule cases to the facts of the current case. End your Application with another, paraphased sentence that matches your heading above, that is the final "C" in CRAC. "Therefore, the Sunrise Rock cross is ceremonial deism."

Now before you write that next heading or subheading, ask, "Did I clear the table?" Go back up to your Rule section and see.

If you did, congratulations. You are on CRAC!

SCOTX: New Opinions and Granted Petitions

kendallgray@andrewskurth.com (Kendall Gray) — Fri, 27 Aug 2010 15:13:29 GMT

Several new opinions today from the Supreme Court of Texas. The most notable is the court's choice to reverse it's position in Marks v. St. Luke's Episcopal Hospital, a highly divided case that has been pending on rehearing since last August. I hope to write a future post on whether such delays and such reversals are a good thing. (They are not).

Rather than reinvent the wheel and write up summaries of all of today's opinions, I'll refer you to a great, down and dirty summary of the issues on Don Cruse's SCOTX Blog.

After the break, this post will focus on the new petitions for review.

Today's orders granted three petitions for review and set them for argument late in the fall. It is interesting that all three involve construction and application of statutes touching on aspects of sovereign immunity. They are:

09?0326 LARRY ROCCAFORTE v. JEFFERSON COUNTY, set for argument on October 14, in which the issues presented involve a prerequisites for suing a county for federal civil rights claims specifically:

(1) Whether Section 89.0041 of the Texas Local Government Code is preempted by federal law where a claimant asserts a claim under 42 USC § 1983 in state court; and

(2) Whether the plaintiff failed to comply with the notice requirements of Section 89.0041 where the county defended the lawsuit for two years before claiming a defect?

09?0497 TYLER SCORESBY, M.D. v. CATARINO SANTILLAN, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL SANTILLAN, A MINOR, set for argument November 9, and involving (yet again) expert reports in med mal cases. Specifically

1. Does an appellate court have jurisdiction to review a denial of a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the proffered “report” does not contain any of the elements that are required to be addressed in a statutory expert report?

2. Are some proffered expert “reports” so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report as to constitute no report at all and, thus, be ineligible for a 30-day curative extension?

3. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff serves a “report” that is so woefully deficient and lacking in addressing the statutorily-required elements of a health care liability expert report that it constitutes no report at all?

4. Is a trial court required to grant a motion to dismiss filed pursuant to TEX. CIV. PRAC. & REM. CODE § 74.351(b) when the plaintiff fails to serve the curriculum vitae of the expert issuing a health care liability expert report, and when a proffered “report” does not contain any evidence to otherwise establish the expert’s qualifications to offer opinions as to the medical issues involved in the case?

Finally, 09?0794 LTTS CHARTER SCHOOL, INC. D/B/A UNIVERSAL ACADEMY v. C2 CONSTRUCTION, INC., set for argument December 7, which involves questions that arise when quasi private entities take on quasi public function. In this case the question

Is an open-enrollment charter school a “governmental unit” that may bring an interlocutory appeal of a trial court’s denial of its plea to the jurisdiction pursuant to Section 51.014(a)(8) of the Civil Practice and Remedies Code?

Note: the Court has solicited the opinion of the Solicitor General in LTTS Charter School.

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

Fri, 27 Aug 2010 01:33:00 GMT

"It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights." Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996). The Court...

"It is a settled rule of law that mailing, as opposed to filing, a notice within the thirty-day filing period is insufficient to preserve appellate rights." Citing Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla. 1996). The Court didn't bother to discuss the facts, but did let us know that it issued an order to show cause prior to dismissing the lawsuit. The relevant rule is 9.110, Florida Rules of Appellate Procedure.

Washington v. Labor Ready, Case No. 1D10-2989 (Fla. 1st DCA Aug. 18, 2010)

Florida Court Allows Retaliation Claim By Former Employee Prohibited From Volunteering

Thu, 26 Aug 2010 19:40:48 GMT

In Gates v. Gadsden County School Board (.pdf), Florida’s First District Court of Appeals has allowed a former teacher’s retaliation claim to proceed where she was prohibited from continuing as a volunteer mentor, which she had done since her resignation.

Teacher Martha Gates filed a Title VII discrimination suit against the Gadsden County School Board in 2004 and resigned from her teaching position. Even though she resigned, she continued to participate in the school district’s volunteer mentoring program. Six months after her resignation, the School Board prohibited her from continuing to volunteer, and she filed a Title VII retaliation claim. The trial court entered summary judgment against Gates, concluding that a volunteer could not maintain a Title VII retaliation claim and, further, that she could demonstrate no materially adverse employment action.

In a case of first impression in Florida, the appellate court reversed, concluding that Gates’ volunteer status was irrelevant because former employees enjoy Title VII protections. The court relied on Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in which the Supreme Court allowed a former employee to pursue a retaliation claim where he claimed Shell Oil gave him a negative employment reference due to his EEOC charge against the company.

The court also gave short shrift to the School Board’s argument that prohibiting Gates’ volunteer work was not an “employment action”:

[W]e find [Gates] met the very low burden to survive summary judgment by demonstrating a dispute of material fact regarding whether the School Board took “materially adverse employment action” against her.

Whether Gates can convince a jury that termination of her volunteer status was materially adverse to her remains an open question.

California Commission Confirms Judicial Nominations, Including for Chief Justice

Thu, 26 Aug 2010 19:39:49 GMT

The California Commission on Judicial Appointments has unanimously confirmed the nomination of Associate Justice Tani Gorre Cantil-Sakauye, of the Third Appellate District of the Court of Appeal (Sacramento), as the new Chief Justice of California.

In the same session, the Commission also confirmed by unanimous vote:

The appointment of Judge Louis R. Mauro, of the Superior Court of Sacramento County, as an Associate Justice of the Court of Appeal, Third Appellate District

The nomination of Judge Carol D. Codrington, of the Superior Court of Riverside County, as an Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two (Riverside).

The nomination of Associate Justice Brad R. Hill, of the Court of Appeal, Fifth Appellate District (Fresno), as Presiding Justice of the Court of Appeal, Fifth Appellate District.

Justices Cantil-Sakauye, Codrington and Hill will stand for election in their new positions in the November 2010 election.

Illinois Supreme Court Announces Oral Argument Calendar for September Term

Wed, 25 Aug 2010 21:12:22 GMT

The Illinois Supreme Court has announced its oral argument calendar [pdf] for the upcoming September term, and it contains just one civil case. On September 22, 2010, the Court will hear argument in Hossfeld v. Illinois State Board of Elections, No. 109725. Hossfeld involves the question of whether the appellant was a qualified primary voter for the Republican Party, such that his “Statement of Candidacy” in the February 2010 Republican primary for State Senator was valid, and he was therefore entitled to be on the ballot. For more information on Hossfeld, click “Election Law” in the Illinois Supreme Court Updates.

Ohio Supreme Court Allows Disclosure of "Uncharged-Suspect" Records

Wed, 25 Aug 2010 20:56:56 GMT

On July 20, 2010, the Ohio Supreme Court expanded access to public records formerly protected from disclosure under the “uncharged-suspect” exemption to Ohio’s Public Records Act. The court held that the exemption applies only to portions of records that, if released, could reveal a suspect’s identity. The records in question were not “inextricably intertwined” with the suspect’s identity, so the court ordered disclosure after identifying information was redacted.

The decision was not, however, unanimous. The dissent stated concern that the ruling will weaken the uncharged suspect exemption, impose an onerous burden on trial courts by requiring additional review of portions of records, and create an unworkable redaction standard that may not actually protect suspects’ identities.

How does Washington compare? Like Ohio’s Act, Washington’s Public Records Act exempts certain types of investigative, law enforcement and crime victim information from public inspection. Similarly, the Washington Supreme Court does not support a blanket investigative records exemption, finding that in some scenarios, the trial court should determine on a case-by-case basis whether nondisclosure of all or parts of a requested record is essential to effective law enforcement or for the protection of privacy rights.

A Mediator Cannot Confirm the Terms of the Settlement Reached Without a Waiver under California Evidence Code § 703.5

Wed, 25 Aug 2010 18:36:20 GMT

In a case brought to enforce a settlement reached at mediation, a dispute arose about the final terms of the settlement reached. One of the parties offered the declaration of the mediator to confirm the accuracy of the attached agreement. In Radford v. Shehorn, the Second District Court of Appeal held this was inadmissible under Evidence Code § 703.5, which declares that a mediator is incompetent "to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding...." The court ruled that this extended to a statement regard the terms of any agreement reached. While the parties can waive this restriction, in Radford the dispute extended to whether the signed waiver was actually part of the agreement. With that in dispute, the mediator remained barred from testifying. Ultimately, this error was found harmless, as a declaration of counsel confirming receipt of the agreement from opposing counsel was found sufficient to identify the final agreement. Note: Radford is consistent with an earlier case, Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, which barred a party from deposing the mediator in an action to correct the written agreement signed at the mediation.

Blog Day Afternoon

Tue, 24 Aug 2010 22:35:21 GMT

It's over a hundred today, way too hot, almost flammable. Speaking of flames, my recent post about what Code of Civil Procedure section 473 subdivision (b) can and cannot do to save clients from lawyer folly, reminded me of the following gems. These do not necessarily have to do with attorney mistakes but they might provide a little humor. So if you can't just drop your briefs (legal, that is) and jump in the pool or join the kids at the ice cream truck just yet, perhaps these will provide a little laughter to get you through a long, hot afternoon.

Dark Roast: “At the hearing, the trial court deemed [defendant’s] argument ‘gamesmanship,’ ‘disingenuous,’ and worthy of the ‘chutzpah award.’ The trial court commented concerning the motion [to vacate the judgment], ‘When I finished reading this, I had a foul taste in my mouth and it wasn’t from the old Starbucks coffee I was drinking.’ ” (Diamond Game Enterprises, Inc. v. Whipple 2009 WL 921676 at *2.)

Learned Profession: “This is an argument only a lawyer could love; it rests on semantics rather than on reason.” (Gallo v. Sup. Ct. (1988) 200 Cal.App.3d 1375, 1380.)

Invigoration: “After this mind-numbing journey through RCRA, we return to the provision that is, after all, the one before us for examination.” (American Mining Congress v. United States Environmental Protection Agency et al., (D.C. Cir. 1987) 824 F.2d 1177, 1189.)

Try, Try Again: Taken as a whole, defendant's reply brief reads like an entirely new opening brief rather than as a response to plaintiffs' brief. [FN3. Defendant’s opening brief is only 39 pages long including 17 pages of facts and no footnotes. In contrast, his reply brief is 50 pages long . . . The reply brief contains 48 footnotes and each page of his reply brief contains more than 10 percent more text than the pages of his opening brief . . . In all, defendant’s reply brief contains about twice as much appellate argument as his opening brief.] (Riechardt v. Hoffman (1997) 52 Cal.App.4th 754, 767, fn. 3.)

Now, isn't that better?

California Supreme Court Issues Two Opinions - Addressing Collateral Estoppel and Compelling Arbitration of Medical Malpractice Wrongful Death Claims

Tue, 24 Aug 2010 18:24:09 GMT

Murray v. Alaska Airlines, Inc. holds that collateral estoppel applies to the administrative findings of a federal agency when those findings were subject to objection and judicial review that was never pursued, resulting in a final nonappealable order based on those findings. The Court found that in a subsequent civil lawsuit, those administrative findings have an issue-preclusive effect against the claimant who failed to challenge those findings and allowed them to become a final order and also failed to take any steps to withdraw his administrative complaint. For more details about Murray, see the Civil Procedure/Evidence/Discovery update page.

Ruiz v. Podolsky holds that an arbitration agreement between a patient and treating physician extends to compel the heirs of that patient to arbitrate a wrongful death lawsuit when the agreement so extends by its own terms. The Court found that this result was compelled by C.C.P. § 1295, which by its terms intended to extend the arbitration of medical malpractice allegations to wrongful death claims. For more details about Ruiz, see the ADR update page.

Election round-up

Tue, 24 Aug 2010 17:27:05 GMT

This episode we discuss judicial election results, the death penalty in Washington, and whether police can search a vehicle based on a suspicious smell.

Supreme Court of Washington Podcast (RSS) - Election round-up

Jackson v. Tanfoglio Giuseppe S.R.L.: No Jurisdiction Over Non-Manufacturer

kendallgray@andrewskurth.com (Kendall Gray) — Tue, 24 Aug 2010 14:26:34 GMT

On Monday, the Fifth Circuit released Jacskon v. Tanfoglio Giuseppe S.R.L. (pdf) affirming the district court’s dismissal for lack of personal jurisdiction over the affiliate of a defunct Italian firearms manufacturer. Judge Garza wrote the court’s opinion.

It only took three appeals to finally result in the district court's dismissal of an affiliate that did not manufacture any part of the allegedly defective firearm. Along the way, the Court held:

There was no general jurisdiction based upon two unrelated trade show visits, untargeted national advertising and shipment of components (for other than the firearm in question) to Florida for assembly;
There was no specific jurisdiction based upon the stream of commerce theory principally because the affiliate in issue did not start manufacturing the model of firearm at issue until after the decedent’s accident; and
The jurisdictional contacts of the defunct affiliate that manufactured the firearm could not be attributed to the defendant because they were not alter egos or a single enterprise--the companies had maintained all the corporate formalities required by Italian law and had properly liquidated the failed manufacturer under Italian law.

Also of interest on Monday was Combo Maritime, Inc. v. U.S. United Bulk Terminal (pdf), which deals with settlement, contribution issues, and presumptions in maritime collision cases. It gets an honorable mention just for citing a really really old admiralty doctrine deriving from the Laws of Oleron in the 12th century.

Evidentiary presumptions and 12th century law from the Consolato del Mare.* It just doesn’t get any better than this.

*According to the History of Law website, The Consolato del Mare inspired the second great code of maritime regulation, the Laws of Oleron, which are supposed to have been compiled about A.D. 1150. It is generally understood that we owe them to a woman, Eleanor, Duchess of Guienne, Queen first of Louis VII of France, who procured a divorce from her, and afterwards of Henry II of England, the first of the Plantagenets.

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Jackson v. Tanfoglio Giuseppe S.R.L.: No Jurisdiction Over Non-Manufacturer