Recently in Litigation Category

The Third Circuit has rightly thrown out the $550,000 fine against CBS for the Janet Jackson “costume malfunction” lasting 9/16^th of a second during the 2004 Super Bowl Halftime show. The Court concluded that the FCC's actions in imposing a fine for a fleeting incident were arbitrary and capricious. In its

          The FCC had relied on a single sentence in a 2001 policy statement to justify the single, isolated event as an “indecent standard.” The FCC had written: "even relatively fleeting references may be found indecent where other factors contribute to a finding of patent offensiveness.” Judge Sirica found that the term "relatively fleeting" is not the same as one isolated incident to trigger indecency fines, adding: "While an agency’s interpretation of its own precedent is entitled to deference,” . . . deference is inappropriate where the agency’s proffered interpretation is capricious. Until its Golden Globes decision in March of 2004, the FCC’s policy was to exempt fleeting or isolated material from the scope of actionable indecency. Because CBS broadcasted the Halftime Show prior to [the introduction of the fleeting expletive standard] this was the policy in effect when the incident with Jackson and Timberlake occurred."

The Court also refused to hold CBS liable for the independent actions of the performers. The FCC had argued that CBS was vicariously liable under the doctrine of respondeat superior,. The Court would have none of it, holding: "CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. . . . [and] but the performers retained discretion to make those choices in the first instance. .  "

Alan Milstein

Here is the Supreme Court’s Opinion in Exxon v. Baker. The Court held that a punitive damage award three times the amount of compensatory damages was excessive, even to punish one of the world’s largest corporations for one of the worst and most egregious environmental disasters in history.

Alan Milstein

A New York trial court recently held that emails a doctor sent to his personal lawyer via the computer system owned by his employer hospital were not protected by the attorney-client privilege. The hospital had an email policy mandating that computer and email servers could only be used exclusively for business purposes and warned specifically that employees could not harbor any reasonable expectation of privacy over email sent via that computer system or network. 

That written policy apparently was enough for the court. The doctor/employee, of course, argued that the emails were privileged because they were sent to his attorney in the context of litigation between the doctor and the employer hospital. The court, however, said that the effect of the hospital email policy was to create an environment whereby the employer was "looking over your shoulder" when you are composing email. 

This whole analysis of whether someone harbors a reasonable expectation of privacy or whether it is in itself reasonable to harbor an expectation of privacy all stems from the Fourth Amendment of the United States Constitution in the context of searches and seizures of persons and property. Realistically, an employer should not be able to articulate an email policy as described and then "blow up" the attorney client privilege merely by maintaining that policy. Oftentimes there are no choices. People are at work and they have legal matters to deal with and it is 2008 and email is very often how we communicate. The employer could not intercept a telephone conversation merely by saying that they are "listening in." There is far more involved. In that realm, when the government is conducting a wiretap, a judge must issue an order to do so. In the context of that wiretap, if the listening agents know or come to realize that the person to whom the wiretap is directed is speaking to his attorney, the law requires that they turn off the wiretap device for the pendency of the call. The government can't listen in, but the employer can?

John M. Hanamirian

Overstock.com, Inc. has filed a lawsuit in the New York Supreme Court  challenging the New York State tax law requiring Internet retailers to collect and pay sales tax on their in-state sales.  The Complaint states that Overstock is seeking a declaration that the New York law is unconstitutional.

For the most part, you need to have some sort of presence within a jurisdiction in order to be subject to tax, even if your presence is just soliciting business within a state that can be enough. The gist of the Complaint filed by Overstock is that Overstock sets up deals with affiliates throughout the country and the world, as do most website retailers, whereby Internet traffic is delivered to Overstock.com.  In exchange for the delivery of that traffic, a fee is paid. The delivered customer now makes a purchase. The delivered customer could be generated from anywhere, but it just so happens he is from New York.  The State of New York says Overstock.com needs to collect sales tax from that sale. Overstock says they did nothing to generate a sale from a New York customer. Specifically, “the statute imposes the burden on Overstock to collect and pay taxes even if the purchase by the New York customer is based on a referral to Overstock’s website that is indirect, or passes through various other websites with whom Overstock has no agreement or connection whatsoever.” Sounds pretty unconstitutional to me, but the problem for Overstock is that if they do not get the tax from Overstock, the ultimate seller, there is no chance whatsoever of ever collecting the tax. The problem for the State, however, is that they and other states continually draft legislation that, in an overbroad manner,  attempts to fix a problem that is not capable of being fixed and so, the legislation is invariably stricken.

We shall see, but the answer seems to be that you cannot rely on historic notions of  state taxation when dealing with Internet retailers.  The states need to get together, apply a blended rate of tax from the rates used in each state, apply the rate to all the Internet sales of a particular retailer, collect the tax and split it equally.

John M. Hanamirian

Hillary Andrews, 38, contends that the cable network's brass turned a blind eye to the harassment because her co-anchor, Bob Stokes, was popular with viewers. 

Andrews won her arbitration case three months ago and the final ruling was "highly critical of conduct by both Stokes and TWC management." The Weather Channel is now seeking to keep details of the arbitrator's report secret, while Andrews wants to publicly file the document in the context of a lawsuit she has now brought against Stokes in state court. 

In her federal court filing seeking to release the arbitration ruling, Andrews reported that "TWC fired Stokes the day after" the arbitration award was issued and is now "understandably eager to assure that the Arbitrator's findings and conclusions never see the light of day."  

Court records show that after her initial hire, Andrews was paired with Stokes, and apparently, she replaced a female "on-camera meteorologist" who had worked with Stokes. Andrews' pleadings contend that the prior anchor was abused daily by Stokes and that she "routinely hid in the women's dressing room in between shifts to avoid contact with him." 

Andrews further contends that that anchorwoman was forced out of The Weather Channel after repeatedly complaining to management about Stokes's harassment. 

Andrews then claims that "history quickly repeated itself". Specifically, Stokes began harassing her. Andrews contends that Stokes' behavior was "worse for [her] than for her predecessors because Stokes was sexually attracted to her and romantically obsessed with her." Stokes, she says, made crude sexual remarks to her, leered at her chest, and followed her into the women's dressing room. He also allegedly questioned her "over and over again, non-stop" about her sex life, and once noted, "It tortures me when you wear those heels and skirt." When she rebuffed his advances, Andrews charged, Stokes's "hostility and volatility became a constant" and he sought to "sabotage" her on-air performance and even resorted to insulting her during live shows. 

Andrews eventually reported Stokes' behavior to The Weather Channel corporate officials and attempted to obtain a reassignment with a new co-anchor. Instead, Andrews alleged, she was relegated to a series of undesirable assignments, including "the overnight shift--the same assignment The Weather Channel had given Andrews's predecessor after she complained about Stokes." 

The Weather Channel's owner, Atlanta-based Landmark Communications, has been accepting bids for the network, which it optimistically values at $5 billion. Sounds like they will need the money.

John M. Hanamirian

A grizzly bear featured in the recent Will Ferrell film "Semi-Pro" and touted as one of the "best trained" in show business has killed its handler. Officials familiar with the incident said on Wednesday they were puzzled by what provoked the attack. Yes, what would provoke a 700 pound bear filming a television commercial to attack?

The bear, which stands 7 1/2 feet tall, bit the handler in the neck on Tuesday at a facility where wild animals are trained for film and TV productions. How about we don't do that anymore.  We do not need live animals in movies or for any entertainment purpose. To fit into the law blog, let's call this Animal Rights.

John M. Hanamirian

What happens when hourly employees are assigned Blackberrys or IPhones by their employer and compelled to respond to emails and text messages after the 8 hour shift? The marketing of such devices offers the plus side that  such technology brings the office home or anywhere the employees happen to be. A number of legal scholars are

Everyone has heard or even uttered the complaint that the new technology puts them on call 24/7. No doubt attorneys and other hourly service providers are beginning to bill their clients for out of office time spent responding to emails. Logic would suggest that employees who find their employers are essentially getting their precious time for free may have a claim under wage and hour laws for the time spent out of the work place working. And employers may need to restrict the use of such devices for work related activity unless they are willing to pay for their employees’ time.

It’s a brave new world.

In a remarkable opinion, the Second Circuit decided Christine Todd Whitman was immune from personal liability when, as Secretary of the Environmental Protection Agency,  she gave false assurances about the air quality in and around Ground Zero following the attacks on September 11. The court in Benzman v. Whitman, 06-1166 (2^nd Cir., April 22, 2008),  rejected the claim that Whitman could be held liable for injuries sustained by nearby residents and workers who relied on her representations that it was safe to return to or stay in the area when the EPA knew, but did not disclose, that the air around Ground Zero had dangerous levels of toxins and carcinogens.

The plaintiffs argued that Whitman’s statements were not just reflective of “deliberate indifference,” the constitutional standard addressed in prior cases, but were “intentional lies.” The court concluded: “We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.”

Not always for ever instance, but should be if the allegations in this case are accurate. 

Alan Milstein

In the context of his visit to the United States this week, Pope Benedict said he was "deeply ashamed" of the clergy sexual abuse scandal in the Church and will work to make sure pedophiles don't become priests.

"It is a great suffering for the Church in the United States and for the church in general and for me personally that this could happen," Benedict said. "It is difficult for me to understand how it was possible that priests betray in this way their mission ... to these children." "I am deeply ashamed and we will do what is possible so this cannot happen again in the future," the pope said.

Benedict's trip to the United States is the first since the scandal involving priests sexually abusing young people. The church has paid out more than $2 billion in abuse costs since 1950, with hundreds of millions in settlements since 2002. Six U.S. dioceses have declared bankruptcy in recent years because of the financial toll of the scandal. 

Some feel as though the church has been complicitous in the abuse noting that although a few bishops accused of molestation have stepped down, no bishop has been disciplined for failing to keep abusive clergy away from children. Cardinal Bernard Law resigned as archbishop of in 2002 after church files were made public showing he and other church leaders had allowed accused clergy to continue in public ministry.

John M. Hanamirian 

  The London Times is

     The 31 year old trader was recently released on bail after 37 days in prison on charges of breach of trust, fabricating documents and illegally accessing computers. The gist of Mr. Kerviel’s claims is that the bank violated French employment law by  failing to hold a face to face meeting with its employee prior to discharge. The bank says that would have been difficult  because the conditions of Kerviel’s bail forbade him from in any way communicating or contacting his employers. Good point.