Recent Featured Articles from LexMonitor

Hot Coffee

Tue, 27 Sep 2011 13:21:04 GMT

A few months ago, we mentioned a new documentary that was making the film festival circuit. That documentary is called Hot Coffee, and it is currently being aired on HBO.

We were pleased when we heard that the film had been picked up by HBO, and we are equally pleased by the number of positive reviews that has appeared in the Washington Post, the New York Times, and dozens of other papers all over the country.

The title of the movie comes from the Stella Liebeck case, which is more commonly known as the “McDonald’s Coffee Case.” If you ask the average person on the street (as the film’s director does,) you will probably get something like this:

“A woman gets a coffee from McDonald’s, is trying to drink it while she is driving, spills a little of it on herself, and then sues McDonald’s for $1 million. The jury lets her win and she makes off with a windfall.”

The actual case bears little resemblance to the aforementioned scenario, but thanks to an amazing level of media manipulation, the myths of the case are now considered to be the facts ofthe case.

What really happened to Stella Liebeck was that she suffered extremely severe burns to the inside of her legs, so much so to the point where there was speculation that she might not survive. Secondly, she didn’t try to sue for millions of dollars. She merely sued for her medical fees, which were around $20,000. (Skin grafts are quite expensive, as it turns out.) McDonald’s offered her $800.

There are a few more elements of the case that you never hear about when the case is discussed. You never hear that McDonald’s kept its coffee heated between 180-190 degrees as a matter of company policy. That temperature can cause third degree burns in seconds. You never hear that there were about 700 other people who had suffered severe burns from McDonald’s coffee. And you never hear that McDonald’s had settled in court cases over instances that were quite similar to Ms. Liebeck’s.

For some reason, the McDonald’s Corporation decided to toe the line with Ms. Liebeck, but since there was a history of settlements (which means that they had previous knowledge of the coffee being too hot for safe consumption) and since there was no effort to change the corporate policy of scalding hot coffee, that meant that McDonald’s both knew that the coffee was dangerous and flat out didn’t care.

It should also be mentioned that Ms. Liebeck didn’t demand $1 million. The jury came to the conclusion that it wasn’t that Ms. Liebeck necessarily deserved $1 million, but rather that a company that knowingly put out a dangerous product deserved to be penalized, and should be penalized in the only way that they would understand. And since Ms. Liebeck happened to be the one who was severely injured, and since she was the one who happened to be filing the suit, the money went to her.

However, it wasn’t $1 million that Ms. Liebeck eventually received. It was a little under $600,000. But that isn’t what everybody heard. That wasn’t what the news stories, speeches, bumper stickers and references on Seinfeld talked about. They all talked about the “McDonald’s Coffee Lady,” or “The Million Dollar Boo-Boo.” It even got to the point where a writer started “The Stella Awards,” which are given to people who file “ridiculous lawsuits.”

It goes without saying that there are some frivolous lawsuits out there, but Stella Liebeck should not be the person that is synonymous with them. She was seriously injured by a dangerous product. Naming a satirical award after her is practically the equivalent of naming it after someone who died of asbestos poisoning, or someone who died due to the chemical leak at Bhopal, India.

It is about time that someone brought the truth of Ms. Liebeck’s case to a wide audience. And while this film certainly does that, it also tells us about other ways in which our rights as Americans are slowly but surely getting chipped away by well funded corporate interests. “Damage Caps” that extend to compensation to corporations but not to the injured, mandatory arbitration and the railroading of an anti-tort reform judge all serve to paint a very accurate picture of what the less wealthy are facing if they ever decide to go court.

The main premise of this film is that the legal system is meant for all of us. It is not a perk for the rich. We urge you to see Hot Coffee as soon as possible.

Greenberg and Bederman is a personal injury law firm located in the Washington, D.C. area. We are currently offering legal assistance to those who have been injured due to the negligence of others. If you or a loved one in D.C, Virginia or Maryland has beeninjured in an accident, contact Greenberg & Bederman for afree consultation.

Employees Can Discuss Conditions of Work on Facebook

Tue, 27 Sep 2011 13:47:31 GMT

As I have described here a few times here, here and here, employees may make negative comments on Facebook about their job. So long as the employee is deemed to be discussing "terms and conditions" of employment with other employees, then yes, the employee can say things the employer would prefer not to hear. They may do so pursuant to the National Labor Relations Act which protects workers' right to form or merely consider forming a union.

According to a San Antonio Express News report, there have been some 100 complaints filed with the National Labor Relations Board regarding Facebook comments about work. See news report. Employees do not win every case. I am sure the outcome often depends on the diligence of a particular NLRB investigator and whether the employee can show s/he shared these concerns with co-workers.

If the employee merely gripes to himself, the comment would not be protected by the NLRA. In one case, the employee complained about pay and poor quality of services provided by the employer. The NLRB found that with no indication that the employee discussed these problems with co-workers or that she tried to take these complaints to management, then her gripes were not protected by the NLRA. If the employee cannot show "concerted" activity, then the activity will not fall under the ambit of the NLRA.

Employers should note one comment by the NLRB's general counsel: many company media policies are overbroad prohibiting any negative comment about the employer on social media. Such a policy conflicts with the NLRA and should be avoided.

"Don't Taze Me, Bro" -- Behavior Modification for Trial Lawyers

kendallgray@andrewskurth.com (Kendall Gray) — Tue, 27 Sep 2011 10:20:05 GMT

My how time flies.

Or maybe I'm just behind the times.

A week ago I blogged about the utility of shock collars as behavior modification devices for trial lawyers. And I immediately knew that the title of my next blog post on the topic would be some version of that phrase that entered our shared consciousness:

Don't taze me, Bro!

I knew there would be some nice Youtube mashups of the famous incident. But I had forgotten how long ago that happened.

It was during the Kerry campaign.

Seriously. Who knew?

Seems like it was only last week--like when I asked for some Tase-Worthy trial lawyer conduct and didn't receive any comments.

**ahem**

After the jump, some of my own thoughts about Taze-Worthy antics, just to get you started.

I suppose trial lawyers mean well. But some of the stuff they do is worth at least a few thousand volts.

To wit, any of the following statements would get you a dirty look in my office (in the absence of a tazer or something better):

Can you handle the charge for me in that case I think I told you about one time? You know the one. Tomorrow. OK.

Can you to handle the appeal from this summary judgment entered against us. I think you can basically just use our trial court brief.

Don't spend any time on this.

When is our brief due? Tomorrow? Great, I'll take a look at it now.

Here, look at my brief and and make sure its ok to file. Tomorrow.

Oh, I hope you don't mind. I made some changes last night. Is that a problem?

Don't we have to use Times New Roman?

How many extra pages can we get?

We can e-file right up until midnight, right?

Attached please find my edits and a transcript my the closing argument.
There's some great stuff in there for you to use.

Loved the brief. How come you didn't include a section on . . . ?

Loved the brief. Best thing I've ever read. Gosh, there's a lot of editing on the bill.

Why so much research? The client doesn't like research.

I'd like you to handle the argument. On Monday.

Should I get a record?

You mean I should have gotten a record?

I'm sure we made a record.

Well, I thought the court reporter was taking it down.

I'm sure I objected.

Should I have objected?

I wanted to object, but the judge was getting really cross.

I didn't want to object in front of the jury.

I handle my own appeals.

If you wanna get tazed, just bring some of that to my office. This kind of stuff is why I have been known to tell trial lawyers the brief is due before it is actually due.

Why do such things make an appellate lawyer's head explode? Because the act or statement betrays an entire misunderstanding of what appellate lawyers do and what it takes to do it effectively.

But that is a post for another day.

C'mon, appellate lawyers. I'm sure you've heard these before, or statements very much like them. Put them in the comments!

Keyloggers Beware--Companies Risk Being Sued By Employees

Tue, 27 Sep 2011 18:46:13 GMT

A U.S. District Court in Indiana has ruled that a company's use of keylogger software to access an employee's personal e-mail account may have violated the Stored Communications Act (“SCA”).

Keylogging or keystroke logging is the tracking of the keys struck on a keyboard, typically in a covert manner.

In Rene v. G.F. Fishers, Inc.,the company utilized keylogger software and was sued by one of its employees for violations of the SCA, the Indiana Wiretap Act (“IWA”), and the Federal Wiretap Act. The company generally prohibited personal use of its computers, however, it permitted the employee to access her personal checking account and personal e-mail account from the company computer. The employee was later notified that the company had installed keylogger software on the computer. Utilizing the keylogger software, the company accessed the employee’s personal e-mail account and personal checking account (acquiring the passwords utilizing the keylogger software), and reviewed and discussed the messages and contents.

The employee was fired for “poor performance” after complaining about the access. She sued her former employer, alleging the company violated the SCA, IWA, and the Federal Wiretap Act. While the court did not address certain factual issues under the SCA (e.g., whether the company accessed the employee’s e-mail messages before the employee opened them), it held that by alleging that the employer accessed her e-mail messages the employee had satisfied the burden of asserting a violation of the SCA. The court also denied the company’s motion to dismiss the former employee’s IWA claim, but it did dismiss the Federal Wiretap Act claim.

As we have previously discussed, jurisdictions are at odds over the use of keylogger software in the employment context. Employers should carefully consider their use of keylogger or monitoring technology and consult counsel as to best practices for the jurisdiction in which you are located.

Banning E-Cigarettes in the Workplace --an Update.

russell.cawyer@khh.com (Russell Cawyer) — Mon, 26 Sep 2011 14:29:56 GMT

One of the most popular posts (i.e., most read) I've written is one I published two years ago on whether employer can or should ban the use of e-cigarettes in the workplace. Some employers have gone so far as to implement the complete ban on the use of all products containing nicotine --both during and after work. I thought that now would be a good time to update my thoughts on the subject.

Recently, the U.S. Department of Transportation issued a press release announcing its proposal to explicitly ban electronic cigarettes on U.S. flights. According to the DOT's release:

Electronic cigarettes cause potential concern because there is a lack of scientific data and knowledge of the ingredients in electronic cigarettes. The Department views its current regulatory ban on smoking of tobacco products to be sufficiently broad to include the use of electronic cigarettes. The Department is taking this action to eliminate any confusion over whether the Department’s ban includes electronic cigarettes. The proposal would apply to all scheduled flights of U.S. and foreign carriers involving transportation to and from the U.S.

Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited. The Air Force Surgeon General issued a memorandum highlighting the safety concerns regarding electronic cigarettes and placed them in the same category as tobacco products. The U.S Navy has banned electronic cigarettes below decks in submarines. Further, several states have taken steps to ban either the sale or use of electronic cigarettes.

This is a fairly contentious issue. On the one hand, smokers and supporters of e-cigarettes claim that they are odorless devices that emit nothing more than water vapor and are no more harmful to coworkers than allowing a nearby employee to chew nicotine gum or wear a nicotine patch. On the other hand, some employers have expressed concern over the lack of scientific evidence over what is emitted into the air from the electronic cigarettes; over the perception that the employer is condoning or sponsoring any kind of addiction or dependence; and whether some of the types of employment (i.e., retail or customer service) are inconsistent with image the company wants to foster.

In the end, and assuming that nicotine dependence is a disability that must be reasonably accommodated under the ADA, an employer can reasonably accommodate the disability without allowing the use of e-cigarettes in the workplace or at work stations. It is the long-standing rule that the employer gets to select the accommodation provided among various effective accommodations. For example, the employer could allow the use of e-cigarettes in the same manner as it allows employees to use other tobacco products (e.g., outdoors during break times). Similarly, the employer could allow the the employee to use nicotine gum during working time. If the employer allowed the use of e-cigarettes during working time or in working locations (and assuming it is not prohibited by state law), the employer could require that the employee refrain from using scented e-cigarette flavors to further reduce the potential effect on nearby co-workers.

Follow me on Twitter @RussellCawyer.

DOT Notice of Proposed Rulemaking here.

China In America. Newton, Iowa, Edition.

dan@harrismoure.com (Dan Harris) — Sun, 25 Sep 2011 11:48:07 GMT

Just spent the last day and a half in the heart of Iowa. Though I was there to be on a bunch of panels at Grinnell College, parents weekend there necessitated that I spend my nights in the neighboring town of Newton, Iowa. Newton has a population of about 15,000 and it is known for being the former home of Maytag Appliances, the present home of the Maytag Dairy (and its Maytag blue cheese) and for being where Rocky Marciano's plane went down. Perhaps more importantly for some, it is also has a gorgeous Maid-Rite.

I arrived fairly late to Newton and this being the heart of the Midwest and my not eating meat, my dining choices were looking pretty limited. Out of an overabundance of a lack of caution, I decided to eat at the Chinese restaurant in town. Though American-Chinese cuisine, it was shockingly decent.

I got to the restaurant about twenty minutes before its 9:00 p.m. closing, which meant I got to watch that Chinese restaurant staple of the restaurant workers being served their own dinner. What surprised me (maybe it should not have) was that every single employee was Chinese (or at least appeared to be). As I paid my bill, I asked the cashier/apparent owner, where she was from. She seemed to hesitate just a bit and then said "China." Where in China, I asked, just about certain she would say Fujian. She did.

I am fascinated by America's small towns. I am in awe of how so many of them seem to both stay the same and change. At one time, just about every U.S. town between 15,000 and 25,000 had a general store/department store/clothing store/furniture store owned by Jewish immigrants, whose sons and daughters have mostly moved to bigger cities today. Now it seems those U.S. towns now all have one or two Chinese restaurants run by immigrants from Fujian. Who are these immigrants? Do they go straight to these small towns or start in New York or Los Angeles and then move later? Do they plan to stay in these towns, move elsewhere in the United States or return to China? What is it like being one of damn few Chinese or even Asians in these places?

Many many years ago, I represented an Asian (I am being intentionally vague here) family whose son had been expelled from a small town's school system for having damaged a teacher's property. The parents (who spoke no English) had hired my firm to get their kid exonerated and back to school. The parents had a successful business, consisting of two stores and were pretty much the only Asians in the town. They were short in stature and everything about their physical appearance said the country from which they had come and not the town in which they were living. Their high school age son was nearly six feet tall, wore baggy jeans and a Raiders jersey and he looked like any "cool" kid from a big city American high school.

He told me the story of his innocence in front of his parents, but I wasn't buying it.

I arranged a meeting with him separately and essentially told him that if he was really innocent, I would be happy to take every dollar his parents for his defense. But that he would be wasting his parents' money if the school system really did have so many witnesses of him in the act. I told him that if he did it, he needed to come clean with me so I could work with the school system to get his expulsion revoked in favor of a less harsh sentence -- from my conversations with key people with the schools, I knew we had a very good chance of this because they too wanted to avoid costly litigation. During our various conversations, the son told me that he loved his parents (I really liked them too), of how his parents had come to the United States for him and that he did not want them to have to spend so much money on his defense because he had in fact done the deed for which he had been expelled.

He also poured forth with how difficult it was being the only Asian at his school. His school had "Americans" and "Hispanics" (his language, not mine) and nobody, including him, was sure in which group he fit. He said he had done this bad act to fit in (my language, not his).

I explained all this to the school people, got the expulsion reduced to time already served by way of a suspension. I ended up really liking the kid and I "felt his pain" as a kid without any natural peer group.

For a long time, Maytag Appliance was one of the leading (the leading) employers in Newton. It and its thousands of jobs are now gone and its quite large, quite nice office building has a "For Sale or Lease" sign out front. Maytag was purchased by Whirlpool and its Newton operations (both manufacturing and corporate) moved elsewhere. How much of that was due to China? How much of that do Newtonians pin on China? Does anyone blame the local Chinese (gosh, I sure hope not!)? On the flip side, I kept hearing about how the price of farmland in Iowa is at record highs and the price of pork is doing just fine as well. I am sure China plays some role in this and I wonder if or how this is considered.

Are there studies or surveys or articles on any of this?

What do you know?

Can Jaycee Dugard Sue The Government For Negligent Parole Supervision?

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 26 Sep 2011 10:46:24 GMT

I’ve written several times before how difficult it is to sue the government for failing to do its job, like how you can’t sue the police department for failing to enforce a court order. It’s tough to sue the government even when they wrongly entrap and then kill your son for the trivial ‘crime’ of sports betting. The government doesn’t even need to train its prosecutors in the basics of constitutional law.

“Civil rights” is a tough area in which to practice law, if you’re representing the plaintiffs. There aren’t “typical” civil rights cases, because typical isn’t good enough under the law. The facts need to be extraordinary and egregious. “Shocks the conscience” is the verbage ordinarily used by courts to deny claims:

To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v.California, supra, at 172-173, where we found the forced pumping of a suspect’s stomach enough to offend due process as conduct “that shocks the conscience” and violates the “decencies of civilized conduct.” In the intervening 847*847 years we have repeatedly adhered to Rochin `s benchmark. See, e. g., Breithaupt v. Abram, 352 U. S. 432, 435 (1957) (reiterating that conduct that “`shocked the conscience’ and was so `brutal’ and `offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process);Whitley v. Albers, 475 U. S. 312, 327 (1986) (same); United States v. Salerno, 481 U. S. 739, 746 (1987) (“So-called `substantive due process’ prevents the government from engaging in conduct that `shocks the conscience,’. . . or interferes with rights `implicit in the concept of ordered liberty’ “) (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience shocking is no calibrated yard stick, it does, as Judge Friendly put it, “poin[t] the way.” Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied, 414 U. S. 1033 (1973).

County of Sacramento v. Lewis, 523 U.S. 833 (1998)(emphasis added). Unfortunately, the lack of a “calibrated yard stick” often leaves civil rights victims at the whim of courts. If the federal district judge or two of the federal appellate judges assigned to a case believe the conduct in question doesn’t “shock the conscience,” then the case is dismissed, without a minute of testimony in front of a jury.

All of those barriers apply to cases even where the government actor — a police officer, parole officer, a prison guard, et cetera — is the one who directly caused the harm. If the harm was caused by someone else, like an abusive spouse the police refused to enforce an order against (the situation in the Gonzales case in the first link), then there are even more barriers. A basic precept of tort law is that there is no duty to control the conduct of a third person to prevent him from causing harm to another absent a “special relationship” between either the dangerous person or potential victim. Restatement (Second) of Torts Section 315.

It doesn’t take too much of a logical leap to see how a parole board has a “special relationship” with a parolee or how child protective services have a “special relationship” with both the children they’re supposed to protect and the suspected abusers they’re supposed to protect those children from, and some courts have adopted that approach — perhaps most notably, the Supreme Court of Arizona in Grimm v. Arizona Bd. of Pardons & Paroles, 564 P.2d 1227 (1977), but many courts don’t see it that way, particularly not for constitutional claims. In DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989),

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles — so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” — that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve — but now are denied by this Court — the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.

Justice Blackmun’s “Poor Joshua!” lament, though, as a dissent. Joshua wasn’t even allowed to present his case that the Winnebago County Department of Social Services failed him and put him in further danger by leaving him with his father. He lost without his day in court.

That’s what came to mind for me when I read that Jaycee Dugard had sued the United States and a variety of its parole officers (complaint here; a summary here) for a litany of astonishingly lapses in judgment during Phillip Garrido’s parole for rape:

Garrido’s federal parole officers, therapists and counselors described him at various times throughout his federal parole term as follows: ‘a time bomb,’ ‘like a pot boiling with no outlet valve,’ ‘potentially very volatile,’ ‘potential for causing great physical harm is present,’ ‘problems with sexual overtones,’ ‘did not seem honest … as if he was putting on an act,’ ‘possible danger to the community is high,’ ‘major problems are presented in this case,’ ‘there is always threat of repeat [kidnap/rape],’ ‘still seems dangerous to the public … is liable to give little or no warning,’ ‘substantial risk to women,’ ‘is always a threat to women,’ ‘potential rapist.’” …

Despite Garrido’s well-known propensities, federal parole authorities ignored report after report of sexual misconduct by Garrido. For example, Garrido’s parole officers were informed by his 1976 rape victim that shortly after being paroled, Garrido appeared at her workplace and made an alarming comment to her. Inexplicably, the federal parole authorities responsible for Garrido’s direct supervision disregarded the victim’s concerns as mere ‘hysteria’ even though Garrido’s time cards indicated he was not at work during the hours he was alleged to have been seen by the victim. Upon learning of the victim’s statement, Garrido’s own counselor suggested that Garrido be placed on electronic monitoring. Garrido’s parole officer, however, ignored this recommendation and concluded that ‘to subject this individual to electronic monitoring would be too much of a hassle.

The Dugard kidnapping — which, as the complaint alleges, would never happened had the federal government taken the threat Garrido posed towards women seriously — should have become part of the national conversation about the ways that government agencies systematically downplay and under-report rape and sexual assault, but that’s an issue for another day.

For now, there’s the question of the United States’ liability for Dugard’s ordeal. Dugard and her daughters already collected $20 million from the State of California for its role; I don’t know if that reflected an assessment of the merits of her claim or a recognition that the social contract required we do what we can for Dugard and her kids.

For the claim against the United States, it’s a bit surprising to me that Dugard is represented by an entertainment lawyer, rather than a civil rights lawyer, but he’s at least a real litigator — rather than a lawyer who primarily preens on television — and from his complaint it seems that he gets it. He doesn’t bother to allege any of civil rights claims; 42 U.S.C. 1983 isn’t available against the United States in any event, but Bivens is, and Dugard’s complaint disregards those claims and instead alleges various versions of negligence in the decision to parole Garrido and the monitoring of him while on parole.

Dugard splits her negligence claims into five types: negligent supervision, negligent failure to consider all relevant information in reaching a parole decision, failure to conduct a mental health examination of Garrido, failure to treat Garrido’s mental health problems, and failure to provide Garrido’s information to state authorities. The claims are similar to those in another high profile crime, the rape and murder of Imette Saint-Guillen by parolee Darryl Littlejohn. The lawsuit brought by her estate alleged:

Plaintiffs allege that the United States Probation and Pre-trial Services System failed to supervise and control Littlejohn, as required by his sentence and federal statute. Additionally, plaintiffs claim that defendant negligently hired, trained, supervised, and retained its employees, thus resulting in its failure to supervise Littlejohn. According to plaintiff, these failures were the proximate causes of Imette Saint-Guillen’s assault and murder.

The District Court dismissed the negligent hiring claims (coincidentally, Saint-Guillen’s lawsuit was brought by Joseph Tacopina, the same lawyer representing Annie Le’s estate in its negligent hiring and supervision claim against Yale), but permitted the supervision and control claims. After three years of litigation, the claims against the United States settled for a mere $130,000.

I doubt Dugard’s claim will turn out the same. With $20 million (or whatever number she netted from the California settlement) in the bank, and an apparently strong commitment towards getting a public airing of the circumstances surrounding her abduction and imprisonment — an airing that, even despite all of the prior media attention on her, might do some good by detailing how the parole system can fail victims — she’ll likely see this through until the end. The question is if that end will come before a judge dismissing the case on legal grounds or a jury actually hearing and considering the facts.

Sadly, I’m assuming it will be the former. Consider this California case from earlier this year dismissing a similar negligent-parole theory. Civil rights lawsuits of any stripe — even those framed as negligence — often don’t live up to the promise of our civil rights laws.

On Growing Old(er)

maines@mediainstitute.org (Patrick Maines) — Mon, 26 Sep 2011 14:42:05 GMT

Owing to a desire, after posting so many pieces about communications policy, to establish a more personal relationship with the five or six people who read this blog regularly, herewith a piece on something altogether different.

I speak, as do so many, about the phenomenon of aging, and about the dread “D’ word associated with it. Have you ever noticed that, whatever their age, most people say that they’re “getting older” rather than that they are old? They can be 80, or even 90, and still they describe themselves as getting older. For such people old age is a destination never to be arrived at in their lifetimes, no matter how long they live.

I can relate to that. I have reached an age where I’m made uncomfortable about surrendering my driver’s license to some youngster, especially those who are female. Equally disturbing are those scroll-down date-of-birth features on so many websites. By the time I get to mine, so far down the list, I often don’t even care anymore about whatever product or service required the information.

And there are other things. Like doctors and doctoring. When I was young, whatever ailments I had were always recognized, and treated, immediately. Now that I’m (getting older), I find that my ailments are not only undiagnosable and untreatable; they cause, more often than not, the doctors’ eyes to glaze over upon hearing about them. The impression one gets on such occasions is that they think you’re lucky to be alive, and should stop with the complaining.

Luckily for me, I look and act like a person who is 20 or 30 years younger than I am. (Well, actually nobody has ever said that, but that’s the way I see it.) And for this reason I have every expectation that, when I go to my reward (it should be so good), I’ll arrive there fresh as a daisy.

And speaking of death – the Great Oblivion, as it were – I have some ideas about that too. It’s hard for many people to imagine the world without them, even as the world itself has no trouble at all, and in some cases positively relishes the thought.

But I have a different take on it. Whereas most people believe death of the elderly is a consequence of cellular decay or disease, I incline to the view that, when you’ve reached a certain age, God (like your wife) is just tired of putting up with you.

So to wrap it all up, let me leave you with something that, though it has nothing at all to do with the subject at hand, is also worth sharing. I refer to a quote by that other great man, Albert Einstein: “Gravitation cannot be held responsible,” he said, “for people falling in love. How on earth can you explain in terms of chemistry and physics so important a biological phenomenon as first love? Put your hand on a stove for a minute and it seems like an hour. Sit with that special girl for an hour and it seems like a minute. That’s relativity.”

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Congress Working to Better Understand 'Work'?

Thu, 22 Sep 2011 12:43:53 GMT

Authored by Alex Passantino

For years, questions have been swirling around the intersection of 21^st Century technology and the Depression-era law that governs whether and how an employee should be paid for the time spent using that technology. Regular readers of this blog may recall that this summer, the House Committee on Education and Workforce’s Subcommittee on Workforce Protections held a hearing on this very issue. The hearing was titled “The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?” and Seyfarth Shaw’s Richard Alfred testified about the explosion of wage and hour litigation.

In a possible foreshadowing of continued legislative activity, the Congressional Research Service (CRS)* recently issued a report entitled “The Fair Labor Standards Act, Overtime Compensation, and Personal Data Assistants”. The report focuses on “[t]he increased use of personal data assistants (PDAs) and smartphones by employees outside of a traditional work schedule” and “questions about whether such use may be compensable under the Fair Labor Standards Act (FLSA).” It goes on to identify the critical issue: “As PDAs and smartphones provide employees with mobile access to work email, clients, and co-workers, as well as the ability to create and edit documents outside of the workplace, it may be possible to argue that non-exempt employees who perform work-related activities with these devices should receive overtime if such activities occur beyond the 40-hour workweek.”

The report describes the difficulty in applying the FLSA’s definition of “employ” – “to suffer or permit to work” – in the absence of a definition of “work.” It discusses a number of Supreme Court decisions addressing the concepts of work, de minimis, and compensable time, but notes that no Supreme Court – indeed, few courts at all – have addressed these issues in the context of PDAs and smartphones. Ultimately, the report concludes that the determination of compensability for PDA or smartphone use by non-exempt employees will be based on the same factors courts consider in other “work” cases: “First, does use of a PDA or smartphone require physical or mental exertion? Second, is the use of a PDA or smartphone controlled or required by the employer? Finally, is the use of a PDA or smartphone necessarily and primarily for the benefit of the employer and his business?”

The politics of the FLSA – particularly as an election year approaches – make it difficult to know how (or even whether) Congress will address this issue. In the meantime, however, employers should exercise great care when providing non-exempt employees with PDAs, smartphones, or other methods of remote e-mail access. In a wide variety of circumstances, an employee’s use of this technology may be compensable work time under the FLSA. Although the long-anticipated landslide of “smartphone cases” has not yet materialized, an employer is merely a plaintiff away from learning about these issues on a first-hand basis. Review your policies, practices, and procedures related to the use of technology by non-exempt employees.

We will continue to keep you advised of developments on this issue.

* The CRS works for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation.

The Strange Case of Allen Stanford: Is Amnesia Contagious?

steven@berklawdc.com (Steven Berk) — Thu, 22 Sep 2011 15:33:00 GMT

This is a tough one to be sure. The law favors the banks but we applaud the DOJ for trying. It strains credulity that a sophisticated banker wouldn’t know what was going on with the flamboyant Stanford. If banks are held accountable, the Stanfords of the world won’t exist, or at least cannot flourish.

As if a bad case of depression was not enough to delay a trial and no doubt a lengthy prison sentence to follow, billion-dollar Ponzi schemer, cricket player and nobleman (by bribe not birth), Sir Allen Stanford, is now—get this—claiming he has amnesia. Yep. Can’t remember a darn thing, nothing, nada, before his arrest in June of 2009. Not the jets, not the wine, not all those billions. How convenient... I think my kids once tried to claim this once when the kitchen window was mysteriously broken. For this Allen you receive a second Corporate Observer Chutzpah Award.

But what’s even more interesting than Mr. Sanford’s latest tactic is the game being played by his bankers at SG Private Banking (Suisse SA), a subsidiary of the Swiss giant Societe Generale. Turns out, they seem to also have a case of amnesia. “Allen Stanford, hmmm… name sounds very familiar, can’t place him though, do you happen to have a picture?” According to a recent article in the WSJ, SG Private Banking is being investigated by the Department of Justice for the vast assistance it provided Sir Allen. Apparently, he had a secret numbered bank account at SG where he was able to tap directly into a hundred-plus million dollar account to fund his lavish lifestyle (that would be an understatement) and pay bribes to his Antiguan auditors and bank regulators.

You know those Swiss, they never said a peep, even though this stunk all the way to Basel. The US Department of Justice wonders “what they knew and when they knew it.” No doubt the bankers will say, “we were merely providing banking services. How can we be expected to police and guarantee all of our customers?” But it shouldn’t be that easy to avoid liability.

Think back to the 1920s when the likes of John Dillinger and Pretty Boy Floyd roamed the land “hitting” banks with reckless abandon. Historians now surmise that many of these seemingly well-planned and courageous capers were “inside” jobs. Someone (likely mob connected) opened the back door of the bank for these fellas or they were tipped off when money would be arriving and the guards would be on a smoke break. That assistance, despite being subtle and carried out without a mask and gun, was nothing short of substantial given the circumstances.

This is a tough one to be sure. The law favors the banks but we applaud the DOJ for trying. It strains credulity that a sophisticated banker wouldn’t know what was going on with the flamboyant Stanford. If banks are held accountable, the Stanfords of the world won’t exist, or at least cannot flourish.

Stay tuned.

Lessons From Basketball Wives

info@fed-soc.org (info@fed-soc.org) — Thu, 22 Sep 2011 10:25:01 GMT

As I was perusing the recent intellectual property newsfeed, I came across a notice the Gilbert Arenas (NBA Player) had recently filed an appeal with the 9^th Circuit attempting to prevent the airing of Basketball Wives L.A. Turns out Mr. Arenas is concerned that this series will unfairly capitalize on his fame and celebrity (translation: he wants a piece of the action) and will potentially paint him in a bad light. The judge allowed the show to go forward.

While I didn’t read the decision in its entirety, I understand that the judge essentially considered Arenas’s ex-fiance’s exploitation of her relationship with him as “fair use” of Arenas’s image. (Personally, I would suggest an argument could be made that it was just compensation for putting up with him.) The judge also rejected his claims that his image would be tarnished by citing to Arenas's already seedy image. Those who are familiar with Arenas’s antics will recall that he was once suspended indefinitely for bringing guns into the locker room when he was a Washington Wizard. He also has a history of posting incredibly offensive tweets, as documented here. My personal favorites are:

good mornin twitter fam..i need me a slave to make me breakfast in the mornings..i guess yall might call them girlfriends...im hungry

#youknowyouugly if ur a SINGLE MOTHER...lmaoooooooo sorry but thats funny...Single mothers out there its a joke...I wanted to be the one with the best line.

This raises two observations. First, their apparently is a burgeoning niche practice for Basketball Wives related litigation. Chris Bosh has both sued and been sued. Dwight Howard has also been sued. Second, while athletes need to recognize that they can become a personal brand, they can’t rely on branding law to prevent the world from learning they are a &%$!&.

Reflections on the Death Of Troy Davis

rob@robmckinneylaw.com (Rob McKinney) — Thu, 22 Sep 2011 18:16:32 GMT

Yesterday , I watched and waited on whether the execution of Troy Davis would be stayed . It was not and Troy Davis was put to death. In the days before his execution , public interest swelled . Protesters , posts on twitter and an outcry to stop the execution. The last minute appeal to the U.S. Supreme Court was denied. I am sure everyone in Georgia feels safer today.

Contrast the Davis case with the execution of a white supremacist gang member who killed a black man while dragging him down a bumpy asphalt road . No weak evidence . A solid case was made. It was a horrific hate crime.

I have thought long and hard on the death penalty. I agree with Justice Blackmun when he wrote that the ' I shall no longer tinker with the machinery of death". The death penalty should be abolished. The reasons are many from faulty eyewitness testimony like in the Troy Davis case to ineffective and overworked defense lawyers. Cost savings and inhumane punishment are also present.

I understand and respect the feelings of those effected by violent crime. The sense of loss of a loved one is something I can't imagine .The question remains is the death penalty the best option with years of appeals. Reopening the loss with each round of court. Is life without the possibility of parole a better option ? I wish I knew , but today with what limited knowledge I have of the Davis case. The search for the truth and justice did not happen in the death chamber in Jackson , Georgia.

What Do The Words You Choose Imply?

info@fed-soc.org (info@fed-soc.org) — Mon, 19 Sep 2011 06:57:40 GMT

The words we choose to use in commercial signage, advertising, and marketing materials mean something. That's why we use them, to communicate a fact, an opinion, or perhaps some other message.

The use of certain words, can carry implied meanings too, some intended, and perhaps some unintended.

For example, yesterday Seth Godin wrote this about the power of the word "yet":

"Yet implies inevitability."

Yet, is a powerful term because it assumes something is coming, could be good, could be bad.

On a somewhat related note, I'll have to admit I have a built-in set of assumptions when I see the all-too-frequent signage touting the "New Ownership" or "New Management" of a business:

Without some explanation, these kinds of signs seem to beg the questions, "Why are you telling me this?" and "Why should I care?" Be careful with this, because consumers will fill in the blanks, and they may not give you the benefit of the doubt.

Without context or prior experience with the business, the sign may imply there was something so wrong with the prior ownership or management, it is important for the new owner or manager to set the record straight. That being the case, having no experience with the prior owner/manager, there is no baseline to know how bad it was, leaving the inexperienced to wonder what better might even mean, so I'm not sure that is a great form of introduction to new and potential consumers.

For those who do have context and some prior experience with the past owner/manager, and they had no issues with the place, I'm not sure this is a welcome sign either? For example, when loyal customers learn about new owners or managers, it is not atypical for skepticism and fear to set in.

Last, for those who do have context or some prior experience with the past owner/manager, and they were turned off and haven't been back, I suppose this kind of signage might persuade those to give the place another try before writing it off, but even so, isn't there a more personal, direct, and compelling way to provide this kind of information?

In the end, with so many possible mixed messages that can be implied from this sort of abrupt communication, why do you suppose these business signs are so common?

10 Tips For Your Deposition

Mon, 19 Sep 2011 12:41:05 GMT

Often times I find that clients are unnecessarily apprehensive or nervous about their depositions. I like to tell clients that the first step in overcoming this apprehension is to develop a clear understanding of what a deposition actually is. A deposition represents opposing counsel’s first, and many times only, opportunity to ask you questions about your case. As a general rule, the questioning attorney is not out to trick you or bait you into saying something that will damage your case. They are simply attempting to gather as much information as possible so that they can accurately evaluate your claim. Here are 10 quick tips that I like to give my client’s prior to their depositions.

Take Your Time - Wait 5 seconds before answering each question; control the pace.
Always Remember You Are Making a Record - If you realize you made a mistake, don’t be afraid to correct it at any point during the deposition.
Tell the Truth - You have nothing to hide from; clients who lie because they think it will help their case generally end up doing exactly the opposite.
Be Relentlessly Polite - Thinking, saying or implying negative things will only make things worse.
Don’t Answer a Question You Don’t Understand - Just say “Would you please rephrase the question.” Don’t answer until question is phrased in a way that you understand.
“I Don’t Remember” and “I Don’t Know” Are Acceptable Answers. Don’t be embarrassed to use them.
Do Not Guess - If you are estimating, be clear about the fact that you are doing so. Don’t use inferences- testify only about what you precisely saw, heard, or did.
Do Not Volunteer Information - Keep answers as short, simple, and narrow as possible, and then stop.
Be Careful with Documents and Prior Statements - If the questioning attorney is asking you about a document, ask to see it and read it carefully before answering.
Use Your Attorney if Necessary - Don’t think that it will look bad if you request a break to speak to your attorney.

BP Deepwater Horizon Derivative Suit Dismissed in Favor of English Forum

dandodiary@gmail.com (Kevin LaCroix) — Mon, 19 Sep 2011 08:30:41 GMT

A wave of litigation followed in the wake of the April 2010 Deepwater Horizon oil spill. Among this litigation were several shareholder derivative suits filed against certain directors and officers of BP and of its U.S. subsidiary. At the time these cases first arose, I asked whether or not these suits involving (and ultimately for the benefit of) an English corporation and even asserting claims under English law would be permitted to go forward in U.S. courts.

A September 15, 2011 ruling from Judge Keith Ellison of the Southern District of Texas determined that, notwithstanding the fact that the Deepwater Horizon disaster took place in the U.S. and caused extensive environmental damage here, “the English High Court is a far more appropriate forum for this litigation,” and accordingly he granted the defendants’ motion to dismiss the cases. Judge Ellison’s September 15 decision can be found here.

As discussed here, plaintiffs filed the first of several derivative lawsuits in connection with the Deepwater Horizon oil spill in May 2010. Though many of the lawsuits were first filed in the Eastern District of Louisiana, the cases were ultimately consolidated through the multidistrict litigation process in the Southern District of Texas. However, while the lawsuits were filed in U.S. courts, they asserted claims under the English Companies Act of 2006 (about which refer here). The defendants moved to dismiss the consolidated derivative litigation in the grounds of forum non conveniens.

In his September 15 ruling, Judge Ellison granted the defendants’ motion to dismiss. He summarized his ruling by saying that “this case is a shareholder derivative action brought under a recently enacted U.K. statute on behalf of an English Company against numerous English defendants and other foreign nationals.” The Court, he said, is “persuaded that the Complaint should be dismissed under the doctrine of foreign non conveniens, as the English High Court is the more appropriate forum for this case.”

Judge Ellison found that considerations of public interest “most strongly favor England as the appropriate forum in which to proceed with this case.” He noted that the focus would not be the events in the Gulf that led up to the oil spill, but rather the actions of the company’s board, which took place in England. He commented that “this lawsuit is not intended to redress the devastating impact of the Deepwater Horizon disaster in the Unites States. Instead the lawsuit is intended to compensate BP for the financial and reputational harm the company suffered as a result of its high level management’s alleged disregard for the safety of its operations.”

Judge Ellison noted that “the primary concern of this derivative litigation is the internal affairs of an English corporation, and the suit seeks to recover damages for the benefit of BP only.” He concluded that England “has a far greater interest in the resolution of this dispute.”

Judge Ellison was particularly concerned that were the case to remain in a U.S. court, the court would have to interpret and apply the recently enacted Companies Act. If the case were to go forward in a U.S. court, “the Court would be faced with the formidable exercise of interpreting and applying a still nascent and evolving body of law.”

Judge Ellison did condition his dismissal on the defendants proferring adequate proof that they are amenable to service of process in England or submitting a stipulation that the will submit to the jurisdiction of the appropriate English court.

Although the claimants clearly would have preferred to pursue their mismanagement claims against the BP officials in the U.S., where the disastrous oil spill occurred, Judge Ellison found that the allegations in this case involve alleged actions or inactions that took place in England. The fact is that though the shareholders chose to file their action here in preference to England, with full awareness that English courts presented an alternative forum. The decision to file here rather than there undoubtedly had something to with a perception that a court in closer proximity to the damages cause by the spill might prove to be a more receptive forum. The selection of a U.S. court over an English one also reflects the more general advantages a plaintiff enjoys here by comparison to English courts – for example, the absence in the U.S. of a “loser pays” model, among other things.

These kinds of advantages often encourage plaintiffs with claims involving non-U.S. companies to try to pursue their claims in U.S. courts. But the outcome of the dismissal motion in the BP derivative suit represents just one more example of the many ways prospective litigants are finding it increasingly more difficult to pursue corporate and securities claims against non-U.S. companies in U.S. courts. Courts interpreting the U.S. Supreme Court’s Morrison decision have significantly narrowed the circumstances in which securities claims involving foreign companies can go forward in U.S. courts. Judge Ellison’s decision in the BP case underscores the difficulties prospective claimants may fact in pursuing derivative suits involving non-U.S. companies here as well.

Alison Frankel’s September 16, 2011 Thomson Reuters News & Insight article about Judge Ellison’s decision can be found here. Victor Li’s September 16, 2011 Am Law Litigation Article about the decision can be found here.

For Whom the Statute Tolls: Under Section 13 of the ’33 Act, liability actions alleging a violation of the statue must be brought within one year of “discovery of the untrue statute or omission.” Section 13 provides further that in no event shall the action be brought more than three years after the security was first offered to the public. The one year provision represents a statute of limitation and the three year provision represents a so-called “statute of repose.”

Questions of statutes of limitation and repose might seem obscure, but they can often be critical in determining whether or not a case will go forward. A September 15, 2011 decision by Southern District of New York Judge Laura Taylor Swain in the Morgan Stanley Mortgage Pass-Through Certificates Litigation (here) presents interesting and potentially significant rulings on both the statute of limitations and statute of repose issues.

The case involves claims asserted by investors who purchased certain mortgage-backed securities issued by various Morgan Stanley related entities. The plaintiffs allege that the offering documents related to these securities misrepresented and omitted material facts regarding the underwriting standards applied by the loan originators. As detailed in Alison Frankel’s September 16, 2011 article in Thompson Reuters News & Insight (here), this lawsuit has a convoluted procedural history, in part due to the plaintiffs’ efforts to assemble a group of prospective class representatives whose claims were not time-barred. This latest dismissal motion round involved amended allegations and additional named plaintiffs. The defendants again moved to dismiss based on the statute of limitations and the statute of repose.

Judge Swain’s 40- page opinion reflects a number of interesting rulings, particularly with respect to the timeliness questions. First, she rejected the defendants’ arguments, based on information that was publicly available more than a year before the initial complaint was filed, that the claims of the Public Employees’ Retirement System of Mississippi (MissPERS) were untimely. Judge Swain said that though there was ample publicity on issues pertaining to circumstances relevant to the securities, none of the various items of publicity “addresses, even at a speculative level, the disregard of underwriting practices, neglect of appraisal standards, or consequent LTV ration misrepresentations alleged in the [amended complaint]”

Nevertheless, though she found that the early warnings were not sufficient to trigger inquiry notice, she also found that the plaintiffs had not alleged with sufficient specificity the time and circumstances of their discovery of the conduct alleged in their claims. Accordingly she allowed the plaintiffs leave to replead to establish the circumstances of their discovery in order to establish compliance with the one year statute of limitations.

Perhaps even more interesting is Judge Swain’s ruling on the question of the three-year statute of repose, and in particular her application of what is known as the American Pipe tolling doctrine. Under this doctrine, which derives from a 1974 U.S. Supreme Court opinion, the initiation of an earlier class action suit tolls the running of the statute of limitations for other purported class members who may later seek to intervene and represent the class. The application of the American Pipe tolling doctrine to the running of the statute of limitations is well established. A long standing question has been whether American Pipe tolling also applies to the statute of repose. Judge Swain held that American Pipe tolling does apply to the statue of repose, and denied defendants’ argument that the claims of certain new plaintiffs were barred by the statue of repose in the ’33 Act.

In holding that American Pipe tolling applies even to the three-year statute of repose, Judge Swain declined to follow two recent decisions by other Southern District of New York judges. She reasoned that the tolling doctrine is equitable in nature and “permits a court – after weighing the equities in the discrete case before it – to authorize plaintiffs to bring actions outside the limitations period.”

Judge Swain’s ruling about the statute of repose represents a potentially big deal. If followed by other courts, it could potentially be very significant in cases where an initial plaintiff’s purported class action is dismissed for the plaintiff’s lack of standing. Other prospective claimants who might want to come forward at that point might find their claims blocked by the statute of repose, if the initial filing did not toll the statute’s running.

This possibility is not merely theoretical, particularly with respect to the many mortgage-backed securities class action claims that have been asserted in the wake of the financial crisis. In many of these cases, the claimants have had some of their initial claims dismissed because the named plaintiff did not actually buy securities in all of the offerings in which the securities were sold. Judge Swain’s ruling, if followed, would remove one potentially significant impediment that might other wise exist for other prospective claimants who did buy securities in the other offerings and who might want to come forward and assert class claims on behalf of other investors who bought those securities.

The question is whether other courts will follow Judge Swain on these issues, or will follow the other two Southern District of New York decisions that recently went the other way and held that American Pipe tolling does not apply to the statute of repose. In her September 16, 2011 Am Law Litigation Daily article about Judge Swain’s ruling in the Morgan Stanley case (here), Susan Beck identifies and links to the two other recent Southern District of New York rulings that Judge Swain declined to follow. She also speculates that the Second Circuit will likely weigh in on these issues, given that the two prior cases (which resulted in dismissals) are on appeal to the Second Circuit and have been consolidated for one hearing before that court.

Special thanks to a loyal reader for sending me a copy of Judge Swain’s decision in the Morgan Stanley case.

When Words Fail: Here in the blogosphere, the deadline is always right now. Because of the need for speed and the fact that I work alone (often late at night or very early in the morning), mistakes sometimes make their way into my blog posts. Because I don't the benefit of an editor's surveillance, I am always grateful when readers point out the errors to me, so that I at least have the opportunity to make a correction.

Massive media organizations publishing on a regular weekly basis with the benefit of a large editorial staff have fewer excuses for errors. For that reason, I am always appalled at the slips that make their way into print in some traditional print publications.

This week’s candidate for the boo-boo that someone really should have caught appears in the current issue of Time Magazine (cover date September 26, 2011). In an article entitled “After Three Years and Trillions of Dollars, Our Banks Still Don’t Work” (here, subscription required), Stephen Gandel writes, with reference to comments by analyst Meredith Whitney about the banking sector, “Eventually, Whitney says, growing litigation issues and a continued drop in housing market were bound to burst the levy.” I am pretty sure Whitney meant that eventually the “levee” was bound to burst, as a "levy" might be on a ballot or be imposed but I have never heard of one bursting. In addition, I feel pretty confident that if this were pointed out to Gandel, a “damn” would burst out as well.

Accountability After The National Championship Air Races Disaster

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Sun, 18 Sep 2011 13:08:37 GMT

In the blink of an eye, Jimmy Leeward’s P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of … Continue reading →

In the blink of an eye, Jimmy Leeward’s P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of spectators. Strange as it is to say, there are reasons to be grateful — had his airplane hit the grandstands, there would have been hundreds, not dozens, of injuries.

Flying in general and P-51s in particular have a special place around our firm; Jim Beasley, Sr., was an FAA-certified flight instructor who flew several WWII-vintage planes, including P-51s, and Jim Beasley, Jr., flies his Mustang with a P-51 acrobatic team and with the Air Force Heritage Flight team. (We litigate aviation accidents, too.)

Air shows are a big deal in America — attendance is around 17 million visitors to the 400 or so air shows each year, roughly around the same attendance as the NFL — and, apart from the causal attendees, there’s a sense of community around types of planes, types of shows, and locations. They know the history of the sport; the Ramstein disaster, for one, still lingers in the minds of many in the air show community, and the frequency of fatal and near-fatal crashes is not lost on anyone. The casualty numbers are lower, but they still look more like a major air disaster than a simple crash; Reno will likely take a similar place to Ramstein in the minds of the air show community, and may end the National Championship Air Races, at least in their current form.

As always, when a crash happens, the media attention shifts quickly to the National Transportation Safety Board’s “Go Team” investigation. Maybe it’s something about the allure of governmental rapid response teams, or maybe it’s the idea that, with an investigation and findings will come some sort of closure. The NTSB is a good organization with talented and dedicated personnel, and it’s no stretch to say that NTSB Aviation Accident Reports and other recommendations have saved countless lives, but one thing needs to be understood about the NTSB.

Coincidentally, a few hours before the crash I conducted the deposition of the former fleet operations manager for a company involved in a fatal maritime accident. The NTSB Marine Accident Report recommended that her company “review existing safety management program and develop improved means to ensure that your company’s safety and emergency procedures are understood and adhered to by employees in safety-critical positions.” The fleet operations manager argued that the NTSB’s finding that her company had at all contributed to the accident was merely “political.”

In one sense, she’s right: the NTSB’s findings are “political,” in that they are made by the government for the benefit of everyone, rather than made for accountability among those involved in the crash. The NTSB reviews accidents primarily for the purpose of making recommendations for the future and secondarily for determining fault. In contrast, civil litigation exists to determine who should pay for the losses arising from an injury, and thus cases are reviewed by the judicial system primarily for determining fault.

This difference in focus isn’t just a matter of word choice. There’s an entire field of ‘root cause analysis’ that assesses the way in which accidents and other failures are investigated. Its lessons have been applied to aircraft safety as well, including in the federal regulations governing military aircraft safety, which direct audits towards the cause, not just the symptom, of safety deficiencies.

That’s not to say the NTSB’s process is flawed or that their conclusions are wrong (although it’s always disturbing to me how the “party system” always gives the likely culpable parties a seat at the table but never gives any voice to the victims). It’s just important to understand that they answer a different question — what can we, as a government agency, recommend to prevent this in the future? — from the question asked in a lawsuit: who, if anyone, was responsible?

Initial reports have focused on the trim tab of the Galloping Ghost. A remarkable photo just before the crash taken by Tim O’Brien, himself an air show organizer, shows the plane missing one of its left side trim tab entirely. Still images from video taken of the crash show the trim tab in the process of falling off.

It wouldn’t be surprising if the flutter caused the trim tab to break off. (For those unfamiliar with flutter, Mike Danko dug up an old NASA video of trim tab flutter). That’s a known problem with P-51s; consider this report regarding the P-51 Voodoo Chile at the Reno National Championship Air Races just a couple years ago:

… Voodoo very abruptly pulled up; however, Hannah didn’t radio a distress call. … Steve Hinton flew over to take a look Voodoo. “You OK Bob?” called Hinton. “Yea, this thing just popped big time,” replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he “(wasn’t) out of it yet,” but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. … On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane. Fortunately, Bob Hannah’s skill and coolness in the cockpit saved day.

When the trim tab fell off Voodoo, the plane shot upwards and the 10G deceleration force caused Bob Hannah to black out entirely. He regained consciousness at 9,000 feet and, as you can tell from the above, took some time to come back to his senses. You can see pictures of the damage here. It was even the same trim tab. The difference between Voodoo’s close call and Galloping Ghost’s tragedy may have been pure, dumb luck: Voodoo didn’t roll after losing the trim tab while Galloping Ghost did.

But that doesn’t necessarily mean flutter caused the trim tab to dislodge or that the trim tab was the cause of the accident. It’s quite possible something else caused the Galloping Ghost to climb rapidly, and in that process the flutter developed or the trim tab was damaged. As has been reported, some members of the crowd noticed “a strange gurgling engine noise” before Galloping Ghost pitched upwards.

So where might liability fall? I often say that fatal maritime and aviation accidents rarely happen as the result of a single, unlikely event. Usually, they’re caused by a cascade of failure.

First, there was initially some chatter about the propriety of allowing an “80 year old man” (Leeward was really 74, but “80” somehow ended up being widely repeated) to fly in an air race, but he was among the more highly qualified pilots in the country — including having a third class medical certification certification as of March 2010, which was still valid as of the accident. The question, then, is not if the organizers or other third parties appropriately evaluated his health — he was certified — but rather if he or anyone involved with his flight preparation recognized any physical disabilities that arose after March 2010 and which could have impaired his ability to fly.

Of course, his health is irrelevant if he never became disabled and there’s some other explanation for why his aircraft suddenly climbed, rolled, and dove.

Second, a broken trim tab is obviously a problem, and it’s a known weakness in P-51s. Was the plane properly inspected and maintained? Here, there are questions of method and timing. FAR 43.13 requires:

Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator.

As Mike Busch summed it up, “The key to understanding FAR 43.13 is the phrase ‘methods, techniques and practices.’ That phrase refers to how to do something, not when to do something.” There’s thus not as much federal law for when maintenance should be done, but industry standards — and the general duty of reasonable under negligence law — demand it be done with some frequency. I’d be surprised if someone of Leeward’s stature didn’t have his planes inspected very frequently, but, in investigating these claims, you often never know what you find. We’ve seen aircraft parts sold as “new” that turned out to be patched up parts from the WWII-era.

Third, whenever a plane crashes into a populated area, the choice of route comes under scrutiny. All low-flying planes create a danger of impact (consider, for example, the Ramstein disaster) and the National Championship Air Races has had more than its fair share of fatal crashes and near-misses like Voodoo. It is no stretch to say that it was only a matter of time before one of those accidents ended up happening in the stands. Sure, it’s thrilling for the crowd to be up close to the planes as they race, and unsurprising that the organizers would set up the race that way, but the companies making money off the event are charged by law with ensuring the safety of those spectators, including by toning down the thrills just a bit if it makes everyone safer.

So now what? Nine people are dead and dozens are injured, many seriously, many permanently. Lives lost, contributions to families lost, wages lost, and medical care needed. Some tort reformers have complained that, even though most accidents are simple pilot error, every airplane crash results in a flurry of litigation against airplane manufacturers, event organizers, and plane owners and mechanics.

There’s a reason for that: airplane crashes cause a lot of damage and are rarely a fluke or understandable mistake. They are one of the classic types of situations that our civil litigation system was designed to address.

A rule of thumb in aircraft disaster litigation is: name all involved parties in the complaint. It’s unfortunate, but in general plaintiffs need to sue everyone — from the City that hosted the event, to the organizers of the show, to the owners of the field, to the owner of the plane, the mechanics for the plane, and the pilot of the plane — to ensure that no one is missed and a that a plaintiff doesn’t learn, after the statute of limitations has expired, that they sued the wrong party. There’s no way to know, pre-suit, what the contracts between the parties look like, and no way to know how a court will rule on their various relationships. (Here’s one air show crash case, from California, in which the plaintiffs won against the company and City that managed the airport in front of the trial court only to have that entire part of their case thrown out on appeal.)

There’s no reason why an injured party can’t file a lawsuit before the NTSB investigation concludes — indeed, they usually have to, given how long the investigation takes — but typically those cases take a back seat to the initial interviews and damage assessment. Whatever the NTSB and legal outcome, this crash may spell the end of the National Championship Air Races, at least in their current form. Maybe that’s for the best; if they’re not run in a safe manner, they shouldn’t be run at all.

Four Years and Countless Posts Later….

dschwartz@pullcom.com (Daniel Schwartz) — Thu, 15 Sep 2011 12:07:41 GMT

Four years ago this month, the Connecticut Employment Law Blog was born. (You can view the very first entry about civil union discrimination here.) It has grown up a lot since then (and even went through an image makeover earlier this year), but I hope that I’ve maintained one thing consistently — to provide insight... Continue Reading

Happy Birthday to Me.

Yes, the blog has gotten awards (most recently, this week, by being named one of the top Labor & Employment Law Blogs by Lexis/Nexis — thank you!), but frankly the most gratifying part of doing this blog is a comment like the one I received yesterday from someone who found the blog useful and helpful.

The statistics shows that this blog has been viewed somewhere over 1.5 million times or so. (Wow!) Despite the statistics, it is the personal feedback from individuals who pass along an interesting case or even let me know that I made a typo in a prior post (hey, we’re all human) that keep me motivated to write.

If you’ve never left a comment or sent me an e-mail, I’d love to hear from you directly. Drop me an e-mail or use the contact link at the top of the page to let me know one thing about the blog your love or hate. Or let me know a topic you’d like to see discussed. (But PLEASE, skip the specific questions or requests for legal advice; due to ethics rules, I can’t respond.) And subscribe to the Facebook page which allows for some more feedback too.

I continue to be grateful to my colleagues at Pullman & Comley (and particularly the marketing department) for their assistance with guest posts and support. I’m truly blessed to work here.

Thank you all for your continued support and loyal readership. And maybe, just maybe, we’ll have a big party when the blog turns five next year.

Sports and OSHA Standards, They Go Together, Really

hammockb@jacksonlewis.com (Brad Hammock) — Thu, 15 Sep 2011 02:17:03 GMT

by Nikki Wilson Crary

As sports fans begin their annual football watching, rivalry matches, and tailgating, most forget that sporting teams are often “employers” or associated with an “employer.” Like other employers, Colleges and Universities, School Districts, and Professional Sports Teams must comply with Occupational Safety and Health Act (“OSHA”) standards.

These employer obligations recently were spotlighted in a fatal accident of a student/employee filming a football practice using a scissor lift at the University of Notre Dame. The University was cited for violations of Indiana OSHA (IOSHA) safety and health standards. As part of its settlement with IOSHA, the University agreed to pay a $42,000 fine in June and has launched a website publicizing the hazards of aerial lifts.

In response to the accident at Notre Dame, on July 6, 2011, OSHA issued a hazard alert about the dangers of using scissor lifts to film events and functions. OSHA notes several hazards associated with scissor lifts, including using the lifts in inclement weather, electrocution when working near power lines, and positioning lifts on soft or uneven ground.

While OSHA may not come to mind as a governing body associated with the regulation of sports, as shown above, many OSHA standards are directly relevant to sporting organizations and their employees’ safety. In fact, sports organizations may be in violation of OSHA standards with regard to the equipment used in filming practice, maintenance of fields, and the operation of machinery ancillary to the sporting activities themselves.

As the fall sports season begins, all employers, including those associated with sports, must remember that OSHA standards are applicable to their organizations and they should stay cognizant of the rules that apply to their activities on and off the field. Make this season safe and accident free.

What do Hurricanes, Earthquakes and LEED Bonds Have in Common?

ccheatha@wthf.com (Chris Cheatham) — Thu, 15 Sep 2011 16:46:42 GMT

Three weeks ago, Washington DC was hit by both an earthquake and a hurricane. But this was not the most shocking development during the week -- at least for me.

Here's what shocked me the most: I learned there is a chance that LEED bonds could be available in our nation's capital.

On Wednesday, August 24, I attended a meeting of the DC Green Building Codes working group. The topic to be discussed was the DC Green Building Act's LEED bond requirement. For the uninitiated, the DC Green Building Act requires that all new construction in D.C. greater than 50,000 square feet be LEED certified starting January 1, 2012. Project developers have to post a bond guaranteeing the certification. The bonds range from 1 to 3 percent of a project's total cost, and can be as much as $3 million.

I have been writing about the LEED bond requirement since the first week of this blog. I once compared LEED bonds to unicorns because they only existed in a fantasy world.

LEED bonds do now exist and have been underwritten to support projects applying for the Arlington County, Virginia bonus density program. But it is unlikely that LEED bonds were going to be underwritten in Washington DC due to problems with the Green Building Act. At the working group meeting, the SFAA and NASBP issued a white paper (PDF) summarizing the Act's many problem, including:

"The regulations should state the developer must furnish the bond"
"The regulations should provide for claims less than the full bond amount."
"Consider the relationship between the bond amount and the financial thresholds required by the surety. . . . We suggest that the regulation should set the maximum amount at a lower level that is sufficient to provide the necessary financial protection to the District."
"The regulations should set forth the appeals process by which a developer can appeal a USGBC determination. Notice of appeal should be provided to surety."

The last issue is of most interest to me. The D.C. Department of the Environment (DDOE) has indicated that a party other than the US Green Building Council could determine compliance with LEED certification. Whether these third-parties would be in the form of a government agency or a for-profit company remains to be seen. But it would certainly be interesting to have another entity looking over the shoulder of the US Green Building Council.

The DC government has less than four months to revise the Green Building Act to reflect the suggested changes in the SFAA and NASBP white paper.

Will DC make the necessary changes to the Green Building Act by January 1, 2012?

Photo credit: Cape Town Craig

Pathos makes Social Media Work in Legal Marketing

larrybodinenow@gmail.com (Larry Bodine) — Thu, 15 Sep 2011 16:13:49 GMT

We know the statistics: 750 million people on Facebook, 300 million people on Twitter and 120 million people on LinkedIn. Social media is like ringing the medieval church bell in the town square, which tolled when there was an important event.

That's according to Adrian Dayton, Esq., the keynote speaker at today's LMA Legal Marketing Technology Conference West in San Francisco, which has attracted 180 attendees and features 30 speakers. Adrian is a columnist for the National Law Journal, a blogger, and a social media trainer.

Social media helps move a prospect through the marketing funnel and come out as a client. There are three forms of rhetoric: logos (logical arguments), ethos (a show of authority), pathos (emotion). Pathos is the most difficult -- how do we show that a lawyer is likable, engaging and trustworthy? Social media can accomplish that.

Your online bio (on Twitter or LinkedIn) is your new "elevator speech." A bad one is "Partner at ABC law firm." A good one is: "Partner in the AmLaw 100 firm of Dorsey & Whitney, Watergate prosecutor, complex litigation for Fortune 100, cycling daily around Central Park."

Pathos comes from what we say and how people perceive us: 53% derives from facial expression, 38% is tone of voice and 7% is words. Pathos is most important because it taps into emotion, and purchasing decisions are based on emotion.

"Video is one of the most overlooked things in our marketing tool belt," he said. Video is an effective way to connect with people. Womble Carlyle has 70 videos showing lawyers not as talking heads, but as real people. Allen Matkins has 50 videos. "Video is very powerful."

Law firms need to create a culture of blogging. "Nobody wants to be sold to but everyone wants free information," he said. The best way to generate meaningful traffic is to write a blog -- which produces visitors at 3 to 10 cents per impression, compared with pay-per-click visitors that cost $9 per impression.

Dayton recounted success stories with social media, including an associate who aggressively used LinkedIn and brought in his first client within six months. A young partner at another firm writes the Chicago IP Litigation Blog, following IP trials in his jurisdiction, and brought in a major IP trial that came in through a cold call from his blog. "He was getting the attention because he was able to show his passion for his topic," Dayton said. Another lawyer started his own firm and wrote about criminal law on his blog Crime in the Suites; he forwarded article to executives in a crime story he had been following, and one of them retained him to handle his defense.

The social media event that changed his life was a tweet he answered in 2009, "Does anybody know a contracts lawyer?" It turned into his first new client.

He concluded with this "free hugs" video from YouTube. It's a great story - watch it to the end. It shows how a human connection starts, is reinforced and spreads. "If you connect with people, social media will work in your law firm."