Third party retaliation gets SCOTUS review

Retaliation against an employee who complains about discrimination is unlawful. But when a female complains about discrimination and the subsequent adverse action alleged is taken against her husband or boyfriend is the victim of a third party reprisal protected? The Fifth Circuit has long held no, they are not. On the last day of the Term, the Supreme Court granted Cert. in Thompson v. North American Stainless LP, No. 09-291. Thompson was fired after his fiancee complained about discrimination. More after the jump.
A panel of the 6th Circuit overturned a grant of summary judgment (2-1), a fractured en banc opinion reinstated the summary judgment. The issues presented in the Cert. petition are

(1) Does section 704(a) forbid an employer 
from retaliating for such activity by inflicting 
reprisals on a third party, such as a spouse, 
family member or fiancé, closely associated 
with the employee who engaged in such 
protected activity? 
(2) If so, may that prohibition be enforced 
in a civil action brought by the third party 
victim? 

3d DCA Watch -- The Seven Percent Solution Edition


Yes, yes and yes -- it's Wednesday!

Assembled masses, we are joined together on this sacred day in mutual love and respect for our beneficent judicial overlords, who weekly speak to us in hushed tones, muted phrases, and furtive glances, employing that oldest and simplest means of lawyer seduction -- free coffee.

Yes kids, the concrete bunker by the highway has been ceremoniously opened, the written utterances have emerged and are slowly wafting across a spellbound legal community, while the resplendently robed ones prepare their recession back into the judicial ether, to reappear next week on this exalted day and time or perhaps before then at Bagel Emporium or maybe
Two Chefs, depending on availability.

Ok, was that too much?

But before we get to those juicy opinions, I see that ATL has confirmed the pay cuts we have been hearing about for a while at H&K:
Like many other firms, Holland & Knight is reducing the base salaries of its associates, with limited exceptions. The associate salary reductions range from zero to ten percent. In addition, the firm is reducing the base salaries of some senior counsel/professionals.

The total reductions approximate 7%.

Ouch -- seven percent. So we dedicate this week's 3d DCA Watch to all you valiant H&K seven-percenters, still employed, who are hunkering down and hoping for the best -- keep those billables coming!

And remember -- fear is a tremendous motivator.

On we go.....

United Auto v. Metro Injury:

What would the state court system do without United Auto?

Day after day, week after week, lawyers show up in county or sometimes circuit court to argue United Auto matters, which then lead to rulings, which are then sometimes appealed.

In this one -- yet again -- the 11th Circuit acting in its appellate capacity ruled against United Auto and was reversed by the 3d:
United Auto claims, on this second-tier petition for writ of certiorari, that
the circuit court departed from clearly established law by refusing to follow United
Automobile Insurance Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), and
instead applied incorrectly rules of statutory construction to interpret the meaning
of the term, “valid report” under section 627.736(7)(a). Metro argues that the
holding in Bermudez does not apply to the facts before us, and, therefore, the
circuit court applied the correct law. We agree with United Auto and follow our
holding in Bermudez, wherein we interpreted the meaning of “valid report” under
section 627.736(7)(a).
3d DCA clerks, just right-click and save this opinion to your C drive, I have a feeling you'll be able to use it again real soon.

Strategic Empowerment v. South Dade Realty:

Hmm -- Shepherd, Salter and Schwartz.

That grouping has a nice ring. Where have I heard that before?

Abraham, Martin, and John.

Beck, Bogert, and Appice.

Shepherd, Salter and Schwartz.

Boy do those guys know how to rock!

Still, this is not their best work -- the first album was much better.

Scotty Was Right!



I love it when science catches up to science fiction, especially when it involves Star Trek:
Oxford scientists have created a transparent form of aluminium by bombarding the metal with the world’s most powerful soft X-ray laser. 'Transparent aluminium' previously only existed in science fiction, featuring in the movie Star Trek IV, but the real material is an exotic new state of matter with implications for planetary science and nuclear fusion.
See Mom? I told you it was educational.

Berkeley Bowl decertification

By a vote of 99-74 employees at a San Francisco supermarket voted to decertify the UFCW. This BeyondChron article provides some inside analysis of the "why" it happened. More after the jump.
"But here's the issue that the Union must pay more attention to. From what I have heard from several Berkeley Bowl employees, the union needed a more visible role on the ground. For example, one progressive and politically experienced employee complained that when Berkeley Bowl raised the health insurance premiums that employees must pay, the union only filed a grievance.

For more visibility and effect, holding a protest rally would have been a good idea. More generally, these stores should have stewards who are actively in contact with the members, continually engaging them, asking what their concerns are and working with them to resolve the problems they have on their minds.

In short, it would be useful for unions to move from a model in which issues are too often handled within a legal framework, and frequently by experts, such as lawyers -- to a social movement model, in which union members are more vigorously encouraged to participate in shaping their day to day work lives."

Politicking

Why all the furor over the NLRB issuing a complaint in Boeing? Political opportunity.

PACER Surfing With Pleasure P!



You all know how much I love music.

That's why I found this case involving hot young R&B hearthrob Marcus Cooper a/ka/ "Pleasure P" so interesting.

Cooper, a Miami native and former member of the raunchy local group Pretty Ricky, has struck out on his own and from the reviews on Amazon, he's got a pretty bright future.

(Except let me repeat my earlier advice -- don't work blue, P.)

Too bad he's embroiled in your typical manager/young artist label dispute which is now pending before Magistrate Judge Garber.

Having read a bunch of the pleadings, it has been very contentious. The lawyers have been fighting over remand, fees, deposition dates and locations, extensions of time, requests for sanctions, you name it.

Take, for example, this opening from Cooper's reply brief in support of his motion for summary judgment:
Defendants’ opposition brief is like watching a New York street hustler fleece an unwitting tourist in a game of three-card Monte. Throughout this litigation Counterclaim Defendants have consistently demonstrated their total disregard of the governing law and the truth.
Uhh, ok.

I also like this excerpt:
Moreover, there is no credibility to their cookie-cutter statement concerning Rex Zamor. Corey Mathis testified that Zamor didn’t actually do anything as “manager.” Mathis Tr., p. 53-54. His precise words were “He ain't do shit.” Id., p. 54, line 8.
You know, brevity truly is the soul of wit.

Cooper is represented by NY attorney Robert Meloni and local counsel Richard Celler of Morgan & Morgan.

Honey, Could You Scrub My Metadata?


I don't know about you, but I am sick to death of hearing about "metadata."

Note to prominent BigLaw attorney I chatted with the other day at Gordon Biersch -- there is nothing more boring than a metadata war story.

Seriously, tell me about your brilliant cross-examination, your last mediation, your car, your kids, your house, your vacation -- anything.

Just spare me that metadata anecdote and how clever and sneaky you were and how opposing counsel was completely clueless. I could care less whether you "mined" somebody's files or not.

Also, being able to barely fake your way through a ten minute conversation about metadata does not make you "cool" -- it makes you a dork.

I remember these conversations about "email" discovery back when those new doohickeys started to penetrate to the partner level at law firms. Everybody needed to have a seminar on how to go after company "emails" and how you can recover them and draft discovery directed to them, and how to introduce them into evidence etc. It was all very exciting!

That's what you metadata fetishists sound like today.

Anyways, see you all at the teleconference!

Digital piracy costs jobs

The AFL-CIO opposes piracy. Says it costs jobs, lots of jobs.

Summertime (and the livin' is easy)

Not so easy. Some pretty good tips about HR do's and don't's for the company picnic.

Arbitrate or not?

The Supreme Court rendered an interesting decision in a case where an employer sued a local union for alleged violations of the no strike provisions of a collective bargaining agreement and an international union for tortious interference with the CBA. The local union claimed there was no violation of the CBA because it was not ratified as of the time of the alleged violation of the no strike clause. The 7 member majority opinion (Thomas) held the ratification date issue was one for a court to decide, rather than an arbitrator. A unanimous court refused to extend "federal common law" to include tortious interference with a contract  as a claim cognizable under LMRA § 301. But the really interesting part is after the jump.
The majority opinion seems straight forward. The arbitration clause covered all disputes "arising under" the CBA. The Court's majority notes there is no CBA until ratification. The union asserted the ratification occurred after the actions complained of by the employer, and that as a result the no strike clause did not bar the strike. The Court's majority found the issue of whether ratification occurred was one of formation of the agreement, thus subject to judicial determination. The dissent (Sotomayor) persuasively notes that it is undisputed that the parties reached a binding agreement in December of 2004, which by its terms was made retroactive to the May 2004 expiration of the prior agreement. The dispute surely "arises under" the CBA. The employer consistently argued the case involved a formation dispute, and the union failed to raise its counter argument until its merits brief.
Indeed, by declining to consider the plain terms of the parties’ agreement, the majority offers little more than “an opinion advising what the law would be upon a hypothetical state of facts.”  Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937).  In view of the CBA’s effective date, I would hold that the parties agreed to arbitrate the no-strike dispute, including Local 287’s ratification-date defense, and I would affirm the judgment below on this alternative ground. 

What Did You Do During Your "Gap Period"?


Sheesh, I didn't even know I had a "gap period," but the 11th ruled today that FedEx employees cannot proceed on a class-wide basis for failing to be paid during their "gap period."

A fairly standard opinion, though I think they went off the rails a bit on the quantum meruit ruling.

Still, for many of us the question is what work did we do during our "work period":

Time spent on social networking sites has doubled in only a year, according to a 2009 study by Nielson Online. Time spent on Facebook has jumped to 13.9 billion this year as opposed to 1.7 billion last year, which is a 700 percent increase.

Twitter saw a 3,712 percent year-over-year increase between this year and last and Myspace users spent 384 million minutes viewing videos on the site.

Kids these days, right? Well, not so fast. According to the study, the greatest growth for Facebook has come from the 35-to-49-year-old demographic. Not to mention, twice as many 50-to-64-year-olds created profiles for the site than the under-18 age group.

You know Facebook is no longer cool when the parents are way more active on it than the kids.

Finally, for you Jack Thompson junkies, if you were curious to know his views on Professor Gates' arrest, his column is here.

Special New Policy on Makin' Things Up -- Today Only!


Hi folks, it's Monday (again).

I was moved yesterday by this heartfelt tribute.

So, in honor of the American Soldier, I'm gonna quit makin' things up.

You know, that felt pretty good.

Ok, I'm done.

Speaking of heartfelt tributes, John Pacenti reviews Judge Moreno, and says he's funny, entertaining, and informative, but that G-Force is still better family fare.

Hey, what do you know -- Governor Crist likes classic films too!

Rathke on organizing

Acorn founder Wade Rathke has posted three interesting and insightful posts about the new NLRB election rules, herehere, and here. In his first post he correctly sets out the passage to approval and predicts accurately the legal challenges and time table (years). More after the jump
Although he understates the effect of quicker elections, I think he's close predicting that the time for elections will be reduced from 40 plus days to 15-20. I think he also underestimates the benefit of the changes for labor. In the second post he assesses the new rules in the context of large units, very interesting read for employers. He is correct about the proper response of management, more effort at the initial discovery of union activity, less assessment before acting and a rush to an all out war strategy. This will be the new face of union avoidance - at least by those who understand effective strategy. In an interesting take, Rathke argues unions will have to work hard on pre-election stipulations in order to avoid post election challenges that may delay certification. As this post-election problem sinks in, Rathke in his final post talks about the union maintaining its support by engaging in organizational and protected concerted activities to allow a prolonged post election process to diminish its appeal. This later concern faces the reality that unlike EFC, which would have forced first contracts, there is nothing the NLRB can do by rule making to change the NLRA to force an employer to agree to specific terms in contract negotiation.

Your Friday Afternoon Kidney-Selling Rabbi Send-Off


Kidney-selling Rabbis?

Oy, oy, and triple-oy.

And I thought Turistas was far-fetched.

Well I doublechecked and as far as I know, I am not in violation of any trial orders, pleading deadlines, or discovery rules.

Yet.

Before I go, I want to say thank you to Lew Freeman for that great shin-dig the other day -- it was Titanic, buddy.

So let's get the weekend started right, and as per usual I will be engaged in a host of perfunctory and rather mundane activities, such as investigating new cloud-seeding methods in India, discussing an open city manager position in Ft. Myers Beach, and having a nice date with my new 2-D girlfriend.

Actually, I prefer all five dimensions, but then I'm old school.

Stay gold all you legal Ponyboys and have a great weekend!

Waiting in line for the new iPhone? There's no wait (and no cost) to download our Apps!

Today, June 24, 2010, the day of the iPhone 4.0 release, many, many Apple devotees are waiting in line, no doubt playing games, checking e-mail and surfing the web on their 3GS until they get their hands on the newest iPhone. Well, whether or not you've braved the lines to be the first to have the new device, you can still download the Kelsey & Trask, P.C. Web-Apps and iPhone Apps. (see the end of this post for instructions on how to access these apps on other smartphones as well)

iPhone Apps:

The Child Support Calculator App

Use this worksheet to calculate the presumptive amount of child support to be ordered by the Probate & Family Courts in Massachusetts based on the Massachusetts Child Support Guidelines (including all of the calculations required for filling out the court form). You can then save your calculations, and even e-mail them.





Must have app for Family Law Attys - ★★★★★
Review by Mass Attorney

Must have app. Quickly calculate child support according to the guidelines and try different income scenerios.


The Divorce Spousal Support Calculator App

Some states use formulas to calculate presumptive alimony. And notwithstanding the lack of legislative support, some Judges in Massachusetts have suggested doing the same. A Joint Task Force of the Massachusetts Bar Association and the Boston Bar Association has prepared a draft report which also suggests a formula to calculate the maximum alimony award possible.



All of these formulas are included in this calculator, which we believe can be a valuable resource in helping parties understand a reasonable potential range of spousal support orders.


In addition, you can access the full Article (The Divorce Spousal Support Calculator: An Alimony Formula Resource and Tool for Computing Suggested Alimony Payments in Divorce Cases) directly from the App by clicking on the Settings button in the lower left-hand corner of the App.

Similar to the Child Support Calculator App, you can also save and e-mail your calculations.







The Chapter 7 Means Test Calculator App

The means test is a test required under the new bankruptcy law to determine a debtor's eligibility to file for bankruptcy under Chapter 7 of the Bankruptcy Code. If your income is greater than the median income for your state of residence and family size, in some cases, creditors have the right to file a motion requesting that the Court dismiss your cases under Section 707(b) of the Bankruptcy Code.

Use this App to determine whether you qualify for Chapter 7 bankruptcy under part a of the Chapter 7 Means Test. You can even save or e-mail your calculation to access it later. If your income is greater than the median income for your state of residence and family size, you still might meet part b of the means test after taking into consideration certain expenses and deductions as defined by the Bankruptcy Code. You should consult with an attorney to determine your eligibility.


Web Apps:

These three Apps are also available as Web-Apps and can be accessed directly on our mobile site or through the Apple Web-App Store.

The Child Support Calculator Web-App
   - Direct Link: http://mobile.kelseytrask.com/childsupport.htm

The Divorce Spousal Support Calculator Web-App
   - Direct Link: http://mobile.kelseytrask.com/spousalsupport.htm

The Chapter 7 Means Test Calculator Web-App
   - Direct Link: mobile.kelseytrask.com/meanstest.htm

In addition we have a recently created fourth web-app:

The Chapter 7 Timeline Calculator Web-App
   - Direct Link: mobile.kelseytrask.com/7timeline.htm

The bankruptcy court is very strict regarding deadlines. Often, missing a deadline will result in the dismissal of your Bankruptcy Case. Therefore, it is very important that all documents are filed accurately and on time with the Bankruptcy Court.

This App displays approximate dates for deadlines and events in a Chapter 7 Bankruptcy case when you enter a filing date. These dates are subject to change by amendments to the U.S. Code, or may vary due to local rules or practices or even due to the specific facts of your case. If you have any questions you should consult with an attorney when reviewing this timeline.


Don't have an iPhone, that's okay too. Whether you are an Android, Blackberry or other smartphone user, you can still use all of our great calculators in your web-browser on our mobile pages designed just for smartphones. Just visit m.kelseytrask.com or mobile.kelseytrask.com on your mobile phone and you should see a page that looks something like this:



Longest strike lingers on

Workers at Chicago's Congress Hotel have been on strike for seven years with no end in sight. Workers were told in 2003, there would be no raises until 2010. The employer has not budged on its wage proposal during the 7 year strike. Members of UNITE HERE gathered with local politicians and clergy to "celebrate the anniversary with speechifying and solidarity. Details here and hereWe have previously posted about the injunction the hotel sought against the City to prevent the City from interfering in the labor dispute.

Activist Board considering class action issue

What an activist the NLRB has become. It seems ready to consider finding a ban on class action claims enforced by a mandatory arbitration agreement violates the NLRA. It has solicited briefs on the following:
Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?
Pending case D. R. HORTON, INC. 12-CA-25764. Searchable here.

Boeing NLRB filing

The NLRB has filed its response to Boeing's motion to dismiss the complaint concerning the opening of a second Dreamliner production line in South Carolina.

SFL Friday -- Southern Nights (and Grouts) Edition


Hi kids, yes it's Friday and yes I'm packing it in early. In fact, I'm taking the whole day off.

I hope you all get to sneak out early today too.

Did you all see this 11th Circuit opinion released yesterday on "late" discovery and amending the pleadings?

First of all, I love the name -- Southern Grouts.

Nothing namby-pamby like "Twombly" -- this is a Venetian Salami-worthy casename, ready to stand the test of time!

In a nutshell, the plaintiff took a corporate rep deposition after the date to amend pleadings, then sought to amend the complaint one month later, citing "new" discovery obtained at the deposition.

The district court refused, and it was affirmed by the 11th, in a pretty tough opinion. As part of the litany of reasons plaintiff's counsel lacked "diligence" on this issue, the 11th even noted that the corporate rep depo was moved once by plaintiff's counsel. That plus "waiting" a month to amend.

While overall I understand the court's affirmance, especially since plaintiff's counsel may have already had this information, I wonder whether the opinion is a bit too rarefied and perhaps lacks an appreciation of real-life practitioner concerns and how litigation unfolds in a busy law office on a daily basis.

Is moving to amend one month after an important deposition "waiting"? It takes some time to even get the transcript, then you have to amend the complaint and draft the motion. I don't know how much actual "waiting" was involved.

And depos are often rescheduled -- particularly important ones like a 30(b)(6), for reasons that have nothing to do with whether or not the lawyer really wants to take the deposition.

That said, I do agree that if you are already outside the amendment deadline you need to move quickly and probably should not be rescheduling the deposition except for emergencies.

In all, the opinion is worth a read to keep us all aware of how important these deadlines can be, and what "good cause" is and isn't to the 11th nowadays.

Hmmm, maybe I'll come in this morning after all.

Ok, now I'm officially worried -- I'll check in with you all later today.

Calling It Quits.



Oooh, tough loss for Jack Scarola, a mucho-fine trial lawyer:

A Fort Lauderdale, Fla., jury on Wednesday ordered accounting giant Ernst & Young to pay $10.2 million on a negligent auditing claim, rejecting a request for $400 million on more serious allegations.

The verdict, reached after less than two days of deliberations, eliminated the possibility of a punitive damage award in the trial before Broward Circuit Judge Jeffrey Streitfeld.

I don't like trials in July. The judges are cranky, the jurors distracted, and no one wants to pay too much attention between the rain, the heat, and the vacations either taken or planned.

And while these cases are exceptionally tough to prove or even get past motion practice and to a jury, congrats to Barry Richard for putting another notch on the belt.

BNA publishes book on NLRA rights in non-union workplaces

Perhaps its a prediction about where the NLRB will go under the Obama Board, perhaps its a result of an absence of new laws to write about, but BNA has put together a new book on the rights afforded by the NLRA to workers in non-union employment. As my labor law class knows, there are many infrequently used protections against retaliation for engaging in rights afforded by the NLRA.

Details (and the devil in them)

The NLRB has issued a fact sheet and resources links to provide guidance regarding the dramatic changes in the NLRB's election process. Before a union may represent a group of employees it must establish it is the chosen representative of an un-coerced majority of those employees. Where the issue is contested, the NLRB conducts a secret ballot election. Under the old rules an election is normally conducted between 45 and 60 days from the filing of a petition. The new rules are designed to streamline the process, eliminate an employer's ability to obtain a decision on voter eligibility before the election, and shorten the time between the filing of a petition and the conduction of the election. While this is not EFCA, it certainly advances some of the goals of the failed legislation. Details after the jump
The NLRB claims the changes are to "fix flaws" in the elections process. Seems the basic flaw addressed is the reduction of the time that employees have to engage in vigorous discussion concerning the issue of whether they want to designate a union as their representative for purposes of collective bargaining. The proposed procedures would:

  1. Permit electronic filing of petitions, notices and voter lists.
  2. Require service of the petition on all parties together with a description of the NLRB's elections process, and a statement of position form for identification of pre-election issues
  3. Parties are entitled to a Notice of Hearing, and the pre-election hearing may be scheduled 7 days after notice. Its a goal for conducting post election hearings 14 days after the tally of ballots.
  4. Parties will be required to state their position on issues before the hearing starts.
  5. Parties could choose not to raise eligibility issues at a hearing and instead use the the challenged ballot method of determining voter eligibility.
  6. Unless the eligibility dispute involves 20% of the bargaining unit, a decision on eligibility would be deferred until after the election.
  7. A preliminary list of the names of the eligible voters (including names, work location, shift, and classification) must be produced at the hearing. 
  8. The pre-election Request for Review is eliminated (as well as the delay to permit it).
  9. The Board has discretion to deny review to post election rulings (same as current discretion to deny pre-election review).
  10. The voter eligibility list must be produced electronically and within 2 days from the direction of election or stipulation.
  11. The voter eligibility list must contain phone numbers and e-mail addresses.
  12. The representation procedures regulations are consolidated into one section (from three)
These deceptively small sounding adjustments will dramatically shorten the time between a union asking for an election and the election being conducted. Elections could be conducted within 10-14 days of a unions's request for one. The net effect is to assist unions who have an unlimited amount of time to conduct surreptitious organizing efforts. The employer who opposes unionization in this context barely has the opportunity to gather facts and present them to employees. Essentially labor wants an electorate onlyn it has had the opportunity to persuade.

Is Iqbal the New Twombly?


Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?

Twombly, Twombly, Twombly.

Everywhere you went, people were talking about "Twombly."

You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.

It was the "economic loss rule" of 2007.

Now, it seems, everyone is talking about Iqbal:

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.
Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!

Sheesh, they're federal judges, give them a break!

Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.

I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.

So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went too far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.

And so, kids, now you know why I hate flatbread.

3d DCA Watch -- The Written Utterances Have Arrived Edition!


Hi kids, can you believe it's only Wednesday?

The good news is the written utterances have arrived!!

Oh boy I'm so excited let me repeat -- the written utterances have arrived!!!

In fact, I don't have to tell you things are bad. Everybody knows things are bad. It's a depression. Everybody's out of work or scared of losing their job. The dollar buys a nickel's work, banks are going bust, shopkeepers keep a gun under the counter. Punks are running wild in the street and there's nobody anywhere who seems to know what to do, and there's no end to it. We know the air is unfit to breathe and our food is unfit to eat, and we sit watching our TV's while some local newscaster tells us that today we had fifteen homicides and sixty-three violent crimes, as if that's the way it's supposed to be. We know things are bad - worse than bad. They're crazy. It's like everything everywhere is going crazy, so we don't go out anymore. We sit in the house, and slowly the world we are living in is getting smaller, and all we say is, 'Please, at least leave us alone in our living rooms. Let me have my toaster and my TV and my steel-belted radials and I won't say anything. Just leave us alone.' Well, I'm not gonna leave you alone. I want you to get mad! I don't want you to protest. I don't want you to riot - I don't want you to write to your congressman because I wouldn't know what to tell you to write. I don't know what to do about the depression and the inflation and the Russians and the crime in the street. All I know is that first you've got to get mad.

SFL
: [shouting] You've got to say, 'I'm a HUMAN BEING, Goddamnit! My life has VALUE!' So I want you to get up now. I want all of you to get up out of your chairs. I want you to get up right now and go to the window. Open it, and stick your head out, and yell, [shouting]
SFL: "THE WRITTEN UTTERANCES HAVE ARRIVED!"

I want you to get up right now, sit up, go to your windows, open them and stick your head out and yell - "The written utterances have arrived!" Things have got to change. But first, you've gotta get mad!... You've got to say,"The written utterances have arrived!" Then we'll figure out what to do about the depression and the inflation and the oil crisis. But first get up out of your chairs, open the window, stick your head out, and yell, and say it: SFL: [screaming at the top of his lungs] "THE WRITTEN UTTERANCES HAVE ARRIVED"!!!

Oops, my bad -- was any of that out loud?

Well let's get right to this week's orders, because as we all know 3d DCA opinions are a dish best served piping hot.

Open Permit v. Curtiss
:

I have a dear friend who lately has had trouble sleeping.

My sweet one, please read this opinion when you go to bed tonight.

Not sure? Try out this small sample:
We agree that, under paragraph 17, the maintenance provision of the
Contract, Curtiss had a duty to maintain the property “in the condition as it existed
as of the Effective Date of the Contract.” However, if a loss to the property occurs,
and if the loss is determined to be a casualty pursuant to paragraph 16, then the
remedies provided by that paragraph are the only remedies available to the buyer.
Should it be determined that the seller were in some way responsible for the loss,
then it would not be a casualty and the provisions of paragraph 17 would apply
requiring the seller to maintain the property. The question presented, then, is
whether Curtiss was responsible, in any way, for the disappearance of the fixtures.
If he were responsible, then the provisions of paragraph 17 would apply. If he was
not, then the provisions of paragraph 16 would apply.
Sweet dreams and good night, my love.

Labati v. University of Miami:

Anyone remember Ferne Labati?

She used to coach the women's basketball program at UM, until she got all old and Abe Simpson-like, so UM "bought out her contract," a technical term for "don't let the door hit ya, old lady!"

So Ferne did the only noble thing, the right thing, and sued the pants off UM, of course with the help of Wild Bill Amlong.

Too bad the trial court granted summary judgment to UM, based on three "legitimate business justifications," such as the fact that no one gives a hoot about women's basketball at UM.

Judge Miller even granted UM's request for legal fees!

On appeal, the 3d affirmed, but reversed as to the fee award.

My question is why did UM, after winning summary judgment, go after their fees? That strikes me as vindictive and excessive, particularly after you let the coach go and defeated her legal challenge.

Guess I'm not heartless enough for the UM athletic department.

Grade inflation

The New York Times reports at least ten law schools, including Tulane have adjusted their grading systems upward - retroactively! Largely viewed as a way to rescue recent grads floundering in a tough job market, it seems band-aid weird to me. Teaching students how to provide value to employers and clients rather than grading reform would be a more substantive fix.

Nick Nanton Is A Celebrity Lawyer.


Alana Roberts confirms and expands on the Akerman pay cuts we talked about Monday:
One source said the cuts may not affect all of the firm’s associates in the same way over time.

“The associates who are performing on a very high level probably won’t at the end of the day receive pay cuts. They’ll get taken care of in bonuses,” said one of the sources, who spoke on condition of anonymity.

Cuts were made in response to the difficult economy, which has resulted in slower-paying clients, more clients demanding discounts and a decline in demand for legal services.

“The thought process was to preserve associate jobs,” the source said, while noting the firm remains financially strong.

“There’s no doubt that it’s harder to collect money. That’s the case in every business, but Akerman has been strong,” the source said. “They don’t have a lot of debt. They’re in a lot better position than a lot of other firms.”
Oh come on. I think this source is blowing smoke, and job cuts are probably already on the table.

I hope I'm wrong.

But what do I know -- I am not Nick Nanton:
Known as “The Celebrity Lawyer” for his role in promoting, marketing and creating Celebrity Experts across such diversified fields as entertainment, health and fitness, law, medicine, personal development, finance, and real estate, Nick represents many top Celebrity Experts and serves as the Producer of America’s PremierExperts™
television show. He also produces The Next Big Thing™ radio show, designed to recognize the top Celebrity Experts and bring their solutions to consumers and media outlets alike.

Nick is the co-author of the best-selling book, Celebrity Branding You™ and serves as editor and publisher of Celebrity Press™, a publishing company that produces and releases books by top Celebrity Experts. Nick and his longtime business and law partner, JW Dicks, Esq., use their proprietary Celebrity Branding® process to help entrepreneurs, professionals, CEOs, authors and professional speakers realize their dreams of becoming Celebrity Experts, create multiple revenue streams through IDEA Marketing™, and ultimately grow their organizations based on their teachings and systems.
I love press releases by lawyers, but this one takes the cake.

Can someone explain to me what the hail Nick is talking about?

New Rules for union organizing

The NLRB has issued its proposed changes to representation procedures that will dramatically affect the representation election process by shortening the time between petition and election, by creating administrative traps to prevent employers effectively to  investigate issues before they are precluded and by creating union access to employees for communication. For example, the Excelsior list requirement is expanded to include known e-mail addresses of employees, and the information must be provided to the labor organization within 2 days of a direction or stipulation for an election. This together with the new persuader rules for attorneys and consultants finally provides substance to the claim the NLRB is changing the game to help unions organize. There is so much here to digest you can expect much disinformation and a lot of teeth gnashing. We will provide an objective analysis soon.

Is No-Fault Divorce a Good Thing? It may soon be the law in all 50 states.

According to a New York Times article, the New York State legislature recently approved legislation that would allow No-Fault divorces in New York. The state of New York is the last state that still requires one spouse to have committed a wrong (or at least to take the blame) for the dissolution of a marriage.

Many, including the Roman Catholic Church, oppose the change because they believe it will raise the divorce rates in New York. Interestingly, the divorce rates in New York, though low compared to all 50 states (ranking 33rd), are still higher than a state like Massachusetts where No-Fault Divorce has been the law for more than thirty years (3.4 per 1000 people per year in New York vs. 2.5 per 1000 people per year in Massachusetts according to StateMaster.com).

If No-Fault divorce doesn't cause a rise in divorce rates, then what is the impact?

According to a New York Times op-ed column, there are potential advantages a. The advantages include an 8-16% reduction in wife's suicide rates and a 30% reduction in domestic violence (according to a University of Pennsylvania report by economists Betsey Stevenson and Justin Wolfers). In addition, the ability of one participant to end the marriage can change the bargaining power in the relationship causing both partners to change how they view the marital relationship. This could cause either party to invest less in the marriage, or could cause both parties to be more attentive to unhappiness in the marriage.

A valuable impact of allowing no-fault divorce, though, can be the ability of more couples to use mediation. Because neither party needs to accept fault, they are more likely to try and work out their differences with a mediator than litigate their case. Increasing the number of mediations could be the single-most positive impact of no-fault divorce, because, as one study found, mediation increases the likelihood of settlement, improved co-parenting relationships between parents, and improved the relationship of non-custodial parents and their children.

Sounds like it's about time New York joined the other 49 states in offering a No-Fault option.

Victory for large employers

The Supreme Court in Wal-Mart v.Dukes reversed the Ninth Circuit's certification of a class of aggrieved females claiming sex discrimination by Wal-Mart. The court unanimously rejected certification under Rule 23(b)(2) finding individual backpay claims were not incidental to any requested injunctive or declaratory relief. By a 5-4 majority the court also rejected certification under Rule 23(a)(2) because the many claims did not involve common questions of law or fact. This decision likely means certification of discrimination claims for class actions will be significantly reduced to those fitting within this narrow interpretation of the Rule. Very good news for large employers.

Less Awful Days Are Here Again!


That's the lede in this solid article on South Florida lawyers starting to make deals again, by the always intrepid Julie Kay:

Jim Meyer, a partner at Harper Meyer in Miami, said it feels like ``the dam has burst.''

''The first few months of the year, everyone seemed to be in a holding pattern,'' he said. ``It seemed that people had to start doing business again eventually. There are a lot of pent-up deals from the first quarter. Financing does still seem to be the challenge.''

Meyer is hoping to secure the financing on several deals he's working on using the Interamerican Development Bank and the Export-Import Bank of the United States -- banks that offer programs in which loans are backed by the government.

That's right, Jim -- only businesses and banks should be able to rely on the federal government to assume their risk and back their deals.

NO PUBLIC OPTION!!

(The foregoing message brought to you by the US Chamber of Commerce).

Don't you love it when lawyers make statements to the media that inadvertently hurt their cases?

I wonder if my friend Luis Delgado stepped into it here:

A Venezuelan investor is accusing a global insurance broker of playing a key role in Allen Stanford's banking empire, saying the company enticed thousands to invest in now worthless securities.

The federal suit filed Friday in Miami alleges that Willis Group Holdings provided letters to investors vouching for the financial integrity of Stanford's certificates of deposit, now the focus of a massive federal fraud case.

Filed as a class-action by Venezuelan resident Reinaldo Ranni, the suit says the global insurance broker issued ``safety and soundness'' letters that were given to clients in Miami and elsewhere.

Ranni says he invested more than $2.7 million after he was shown the letters at Stanford's Miami office.

``My client would not have placed deposits with Stanford if he had not been given the letters,'' said Miami attorney Luis Delgado.

``The claims were absolutely false.''

Hmm, I'm just a country lawyer and all, but in a class action do you really want to assert individual reliance by each investor on each letter?

UAW gets new head

New UAW President Bob King speaking to autoworkers assembled in Detroit, set twin goals for the labor organizations future. King an attorney and political science major, wants to grow membership and repair the union's image. The linked article describes some of the things he says the union must do to achieve these goals. One of the agenda items is targeting Toyota for organizing efforts.

Pay Cuts At Akerman?


Heard something about 10 percent along the line.

Thanks to the tipsters, I appreciate it!

Labor Consultant Rules

The Department of Labor has just published its long anticipated new rule governing disclosure of "persuader activity." The rule is designed to require law firms and other consultants to detail the fact of any agreement to undertake certain activities to persuade employees concerning their collective bargaining or organizing rights. As expected the terms are broadly construed to require disclosure.
There will doubtless be significant challenges to enforcement. The new rules require broad disclosure of financial matters for law firms, including arguable economic activity not logically related to persuading employees concerning union representation.

Animal Rights -- Doggone Funny?


I was reading this story about Jason Wandner's efforts to save Mercedes, a Broward pit bull that is about to be euthanized for killing a neighborhood cat under Broward County's strict new one-strike law:

Supporters argue the new law helps save more innocent animals from being killed in future attacks. Critics claim it is too harsh and does not give owners the chance to change a pet's behavior.

Hoesch's attorney, Jason Wandner, argues the county law is unconstitutional and conflicts with a state law that allows for more than one fatal attack on an animal.

In a recent ruling, Broward Circuit Judge Ana Gardiner rejected that argument, saying the county has the right to make its rules stricter than state law.

Wandner plans to appeal.

''Dog kills a cat, or another dog, goodbye,'' he said. ``The dog is just summarily executed. Under the new law, there are no second chances.''

I guess the constitutional argument is that the county is taking property of a citizen without due process. That seems like a tough one.

But why can't the dog sue?

I have been following efforts to reimagine the law's relationship with the natural world, which have been spearheaded by South Florida's Center For Earth Jurisprudence, jointly sponsored by Barry and St. Thomas Universities.

We all know that certain inanimate objects or even legal fictions have rights -- corporations, for example, or ships.

So why not a forest, or a bunch of rocks:
Earth jurisprudence is closely allied with environmental law but is, in fact, broader; after several decades of implementation of environmental rules, ecosystems across the planet are as near or still closer to tipping points as before. Clearly - indeed, urgently - a more significant transformation of legal thinking is required to extend appropriate consideration to the intrinsic, spiritual value of the natural world. The CEJ creates law school curriculum that delves into Earth jurisprudence principles and promotes professional and academic discourse in the legal community. The CEJ is helping to extend legal protection to all human and non-human members of the Earth community; this includes consideration of the rights of future generations.
Should you be able to sue on behalf of a natural object, or a piece of property like an animal?

It sounds ridiculous, but so are most rights before they are extended -- women's sufferage, Dred Scott, remember women and slaves were property under the law at various points in our nation's jurisprudence:
The notion of nature’s rights has long been cherished in environmentalist circles; the idea cropped up in the writings of Sierra Club founder John Muir in the late 19th century and the influential ecologist Aldo Leopold in the mid-20th century. But the first sustained legal argument is usually attributed to Christopher Stone, a law professor at the University of Southern California. In 1972, Stone wrote an article entitled “Should Trees Have Standing?”, which laid out the case for expanding rights that is now commonly cited. (The essay, originally published in the Southern California Law Review, will be reissued by Oxford University Press in 2010.)
I remember that article from law school, and enjoyed debating it with my law professors.

Personally, I'm not convinced -- rights are potent currency, and in general should not be diluted where alternative schemes of protection exist.

Still, one of the sadder aspects of the Sotomayor hearings is the way the law was dumbed-down for these stuffy, close-minded Senators.

You'd never know from the way "the law" was presented at these hearings that what we do is often intellectually stimulating and filled with nuance, sophistication, daring, and imagination.

Oh well -- I better get back to writing those meaningless interrogatory responses.

Deluge of reports on water management issues in Canada

(BY HUGO)

Three significant reports have been published last week on water management issues in Canada.

Firstly, the National Round Table on the Environment and the Economy released «Changing Currents: Water Sustainability and the Future of Canada’s Natural Resource Sectors» (NRTEE Report). The NRTEE Report is one of the outputs of a two year research program designed to address the following questions: With development of the natural resource sectors on the rise, does Canada have enough water to support economic growth while maintaining the health of the country’s ecosystems? And is Canada in a position to sustainably manage its water resources for future generations?

The NRTEE Report aims at giving an overview of water resources status in Canada as well as identifying the key water issues for natural resources exploitation. The Report identifies four water sustainability issues of national importance: 1) water governance and management; 2) the impact of climate change; 3) the water-energy nexus; 4) public participation.

The NRTEE Report recognises that watersheds deliver ecosystem services to society that, when valued economically, often far exceed the value of water allocated for direct anthropogenic uses. Conventional financial markets do not capture the value of ecosystem services, yet the value provided to society by freshwater cannot be underestimated. In regions where ecosystems are severely degraded, the economic costs associated with lost ecosystem services and efforts to restore them are considerable and can far outweigh benefits of other water uses. The Report then determines that the attempts to value ecosystem benefits are generally at the experimental stage and necessarily imperfect and site-specific. Although this is not stated in the Report, these considerations could be argued to favour prevention and precaution in approaching any projects altering water resources status.

With respect to water governance and management, the NRTEE Report finds that water policies and regulations in Canada are burdensome and complex due to the jurisdictional division of powers between the federal and provincial governments and due to the fact that provinces also delegate some of their authority to municipalities. The Report recognises that water management in Canada has traditionally been achieved through regulatory and legislative tools, but a move toward a broader suite of policy tools for water management is needed in order to enable a more flexible and adaptive policy approach acknowledging regional and local particularities. The fragmentation of water management will require collaborative water governance models which will succeed only if a number of conditions are met:

«• they focus on a clear scope and clear outcomes;
• the right people are brought together, with the right convener;
• participants agree to fully get engaged and there is real commitment to the process;
• clear roles are identified for participants;
• the processes foster shared ownership and accountability; and
• an ongoing dialogue is built.
»

Finally, the NRTEE Report stresses in various occasions the importance of alternatives to regulation for water management. The potential of markets appears to attract most of the interest in this respect. This is a notable confusion in an otherwise impressively researched and balanced report. Indeed, markets exist only through regulation. Property rights that are generally considered the essential building blocks of markets have often materialised through expansive frameworks constituting the foundations of legal regimes in Western jurisdictions. In other words, markets cannot be presented as an alternative to regulatory approaches, their very existence depends on regulation.

Secondly, the International Joint Commission Great Lakes Science Advisory Board released «Groundwater in the Great Lakes Basin» (IJC Report). The IJC Report is a fantastic source of data regarding groundwater in the Great Lakes basin. It conveys the enormous importance of groundwater to the Great Lakes Basin:

«It is estimated that there is as much groundwater in the Great Lakes Basin as there is surface water in Lake Michigan. The groundwater contribution to the Great Lakes tributaries ranges from 48% in the Lake Erie basin to 79% in the Lake Michigan basin. Groundwater maintains stream flows and wetlands during dry periods, supporting significant ecosystem functions. Groundwater is an important source of drinking water in the Great Lakes Basin. 8.2 million people, 82% of the rural population, rely on groundwater for their drinking water. Groundwater also provides 43% of agricultural water and 14% (and increasing) of industrial water in the basin.» (p.1)

The IJC Report consists in a short summary of findings and recommendations complemented by a series of 13 appendices on the most pressing issues regarding groundwater, ranging from the impact of chemical contaminants and pathogens to conveyance losses and applicable laws. Among the many points made in the Report are the following:

- the Great Lakes cannot be protected without protecting the groundwater resources in the basin, both at the quantitative and qualitative levels.

- with respect to volumes, even relatively small groundwater withdrawals have important repercussions. For example, withdrawals in the Chicago area shift the Great Lakes drainage divide as groundwater pumped from the basin is released in the Mississippi watershed after usage.

- with respect to quality, fecal pollution and microbial contamination is one of the most frequently identified threats to Great Lakes groundwaters. Pathogens enter the basin ecosystem from sludge, manure and biosolids land spreading, leaking sewer infrastructure and on-site waste water systems, landfills, cemeteries, injection wells, and waste and stormwater lagoons, all of which can impact groundwater quality.

- An impressive 440 273 229 m³/year of water is lost underground every year in conveyance through outdated and broken sewers and main water lines, notably resulting in severe groundwater contamination. This corresponds to economic losses amounting to US $218 306 566 per year. Montréal loses approximately 40% of its total produced water output, which equals 119 858 800 m³ per year at a cost of approximately $ 44 347 756.

Thirdly, the Fraser Institute has released a new report, «Making Waves: Examining the Case for Sustainable Water Exports from Canada» (Fraser Report). The Fraser Institute emulates the right-wing Montréal Economic Institute and argues in favour of water exports. The Fraser Report posits that Canada has so much water that it can be exported. It considers that unallocated environmental water is lost because it is left unused (p.35). Also, water should notably be explored based on the fact that «History is replete with examples of the superiority of trade to optimize resource allocation. Indeed, market pricing is the most powerful means of equalizing demand and supply.» (p.12; see also 36-37)

The central assertions to the Fraser Report are of dubious value. With respect to the over-abundance of water in Canada, both the NRTEE and IJC Reports reflect the fact that there is a looming water crisis in Canada. With respect to the water supposedly lost because left unused in the environment, the Fraser Report contradicts a very strong consensus in the scientific community to the effect that all characteristics of natural hydrological regimes are essential to preserve freshwater ecosystems (the natural flow paradigm). There is no such thing as lost or excess water. The myth of market efficiency is also easily dispelled following the reasoning of Ronald Coase: in situations of imperfect information, as is obviously the case with respect to water resources in Canada, markets fail.

It is interesting to see that Circle of Blue has decided to give air time to the Fraser Report rather than to the other two reports. This is the type of choice in news coverage that sets the terms for public and political debate.

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Question: What other factors should I consider when deciding when I should file for Bankruptcy?

Factors regarding the need to obtain an automatic stay will likely be dictated by your creditors, not you. The automatic stay is a useful tool in temporarily stopping foreclosure proceedings brought by your mortgage holder(s), as well as collection efforts, collection calls and lawsuits filed by your creditors, if any. This foreclosure and debt collection process generally takes a few months, not a few days, and the benefit of the automatic stay can create some additional time for the debtor to deal with logistical issues associated with preparing the bankruptcy petition, appraising assets, selling real property or finding new housing, if necessary.

In order to file for bankruptcy under any section of the Bankruptcy code (Chapter 7, 11, or 13), your federal income taxes must be filed up to the current year (2008). Other documents are necessary for preparing the bankruptcy petition and schedules, such as a credit report, current credit card statements, bank statements, and income information. If this information is not immediately available, it will take some time to collect and review. If you believe a bankruptcy filing is on the horizon, your best bet is to contact an attorney for a bankruptcy planning consultation, then begin preparing the information needed to file.

Equally important in deciding when to file is a debtor’s own ability to handle the current situation, balanced against their need to make immediate changes. Some debtors will need time to prepare for relocation to an apartment or smaller home, whereas others will be anxious to take action to save their house or get a fresh start. These factors are unique to each case, and should be discussed with an attorney before filing your bankruptcy petition.

Question of the Week: Will my new job affect my Bankruptcy filing?

I have been out of work for some time, my bills have gotten out of hand, and I need to file for Bankruptcy. I may be getting a new job soon. Will my new job affect my Bankruptcy filing?

If a would-be Chapter 7 debtor were to see a significant change in their income before filing a Chapter 7 bankruptcy, there is a risk that the debtor would no longer qualify under the Chapter 7 Means Test, and must file under Chapter 13. While Chapter 13 Bankruptcies are often effective in allowing a debtor to cure mortgage arrearages and keep their house, if the debtor’s intention is to pursue liquidation of all assets (including the house) or does not have real property to protect, your increased income would be required by the U.S. Trustee to fund the Chapter 13 plan, and not be used for other costs/expenses. In this case, a Chapter 7 Petition should be filed before any increase in income.

Off Target

Labor has targeted Target for organizing efforts. None of its 1700+ stores is organized. But a petition was filed at a New York store, and the election results are in. By a vote of 137 - 85 the employees rejected the United Food and Commercial Workers (UFCW) as their representative for purposes of collective bargaining.

Car bashing

We have previously discussed the sillyness of the politicization of the GM and Chrysler bailouts. These car proxy wars were approached by anti-union bloggers as serious life or death struggles in the war against advancing socialism. Ridiculous! More after the jump
Much of the blame for American carmakers troubles was cast on labor. Now it seems the crow has been caught, cooked and served. Yesterday, J.D. Power and Associates initial quality ranking found domestic cars had fewer problems than foreign ones. This is the first time that has happened since 1980. The domestic auto industry is recovering, in part due to labor/managment cooperation, and in part due to quality improvement. GM also announced 9 of its 11 assembly plants will forgo normal summer shut downs in order to meet increased demands. Full disclosure here, I have owned a GM car my entire adult life. I think bashing domestic vehicles is unjustified and largely political.

SFL Friday -- Happy Nazi Gnomes Edition.


It's pretty much well-known that I adore Nazi gnomes.

That's why I was thrilled to see this nice gentleman from Nuremberg and his noncontroversial garden gnome that just happens to be performing the Hitler salute.

Seriously, what better way to highlight your gardenias and perennials than a gleaming golden gnome paying tribute to Der Fuhrer?

Oh well, sorry I was busy today performing Important Legal Stuff, but I am now heading out for a glorious weekend filled with wet hot American windsurfing.

I hope you do the same.

Before I go, let's give a hand to Willy Ferrer, David Buckner, and Daryl Trawick -- three wonderfully qualified candidates short-listed for US Attorney.

I know each of these guys, and any one of them would do a tremendous job.

Willie -- I have seen you dance, so you get my nod buddy.

So off I go for weekend fun, to ponder why Dylan lost Jimmy Carter, why Crist wants to be a Senator but has no opinion on Sotomayor, and why this guy's claim is not preempted by the Dumb Dentist and His Dental Devices Act:
On Oct. 4, 2006, while he was performing work on Gaal, Meyers dropped an "implant screwdriver tool" down the patient's throat.

Gaal swallowed the tool and two days later, he underwent a colonoscopy. The tool was removed from his intestines, the suit said.

On May 1, 2007, Gaal visited Meyers because he had a sore mouth. Meyers wanted to remove a "ball" attachment on an implant.

It was during that procedure that Meyers dropped a "mini-wrench" into Gaal's throat, which the patient swallowed. Also, Meyers lost a "ball attachment," which he presumed Gaal also swallowed, the lawsuit said.

Gaal underwent multiple medical procedures. The tool was spotted in his lung.

His chest cavity was cracked open, part of his left lung was removed and the tool was found. The ball was never recovered.

Gaal never fully recovered and was in "grave medical condition," the lawsuit said. He suffered a "cardiac event" on June 13, 2007, which required resuscitation. On June 19, 2007, he died.
First of all, I'm nearly certain the FDA has extensively regulated dental "mini-wrenches," and just because one falls into Mr. Gaal's throat does not mean each state can impose its own liability scheme on these miraculous examples of technological innovation.

Second, Mr. Gaal got exactly what he contracted for -- his teeth looked great! -- and simply because he got a free colonoscopy to boot is no reason to abuse the court system and raise everyone's insurance rates.

And remember, whatever you do this weekend, there is always time to ponder why JFK was just that cool, why exercise is so important, and why the British are just a bunch of randy wankers.

Don't forget -- put your hands on something nice while you're at it -- that may be what you wind up doing after law school.

Have a great weekend everybody!

New (statutory interpretation) Process

We've just had a quick read of the New Process Steel opinion. Essentially the 5 member majority (Stevens, Roberts, Scalia, Alito, Thomas) reason through the language of §3(b) of the NLRA to conclude the authority of a 3 member delegation of the NLRB ceases to exist when the term of one member of the three expires. I must admit the dissent written by Justice Kennedy (and joined by Ginsburg, Breyer and Sotomayor) makes more sense. The statutory interpretation opinion is less significant that the open questions concerning the 600+ cases decided by the two member NLRB. The NLRB has issued a press release concerning the 5 cases pending before the Supreme Court and the 69 cases pending before the Courts of Appeals. Likely these cases will be remanded to the NLRB.
In New Process, the Supreme Court vacated and remanded. Likely the Court of Appeals will vacate the NLRB decision and remand to the NLRB. (We think this is the likely result in all the pending cases.) But what about the cases that are final? Are the decisions null due to an absence of proper delegation? Or are they final judgments not subject to collateral attack? Would the NLRB entertain a motion to reconsider the final cases. likely not in the later instance since the cases decided were sufficiently non controversial for the two remaining members, one a democrat and the other a republican, to agree on a result. Could the now properly populated Board globally reaffirm the entirety of the two-member decisions? And also what becomes of the other delegations? The majority opinion notes without comment that "the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board." Is the general counsel's authority to act defective, and what effect would that have on pending and decided cases.

New Process Steel decided

Hot off the presses (what and odd anachronism), the Supreme Court has rejected the Board's authority to issue 2-member decisions. New Process Steel, L.P. v. NLRB, No. 08–1457. Argued March 23, 2010—Decided June 17, 2010.  I wont have time until later to digest the opinion by Justice Stevens, but the 5-4 decision does create a backlog of now undecided cases. More about this later.

Top lobbyists

The Hill identifies 2010's top lobbyists. Of the list of 32, only three are connected to labor unions. (Henry-SEIU, Loveless-AFSCME and Trumka-AFL-CIO).

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