Quote of the Day - What next, we'll see AOL up on eBay?
Gold And Platinum Bars Lie At The End Of The Rainbow, While AOL Struggles
In its fight against spam, AOL sued spammer Davis Wolfgang Hawke, formerly known as Andrew Britt Greenbaum and possibly now as Bo Decker or Bo Dekker. Hawke, we'll call him, unleashed hundreds of thousands of spam emails to AOL subscribers, and allegedly earned as much as $600,000 per month. AOL sought $12.8 million in damages from Hawke, who failed to show up in Court. AOL obtained a default judgment, and now it wants to collect the money.
According to his former girlfriend, Patricia Lingenfelter, he buried cash in his mother's garden at the home in Medfield, Massachusetts. Hawke's mother, Peggy Greenbaum, and her husband, Hyman Greenbaum, deny any money is out back in a Mason jar, or otherwise.
AOL doesn't believe them. The company produced to the Court receipts for gold and platinum bars purchased by Hawke, and want to use bulldozers to dig through the two and one-half acre Greenbaum estate. The company applied for and received an order from the Court to dig up the Greenbaum's yard.
It seems to MIPTC that the better place to seek money for spam would be from the companies who paid for the spam to be sent, not the spammers who figured out how to send it. But that's just me.
Worker's Compensation Appeals Board 25% Penalty Ruled Out-of-Line
It's hard enough to have a business here in California without the State making it more difficult. I know, I'm an employer, too. In our case-of-the-day, New United Motors Manufacturing, a joint venture between GM and Toyota, settled a work comp claim with an employee, agreeing to pay out just over $30K over time.
After NUMMI had made several payments, it transferred the payment responsibility to a third-party administrator, and somewhere along the line, the employee's file was mistakenly marked that all payments had been made, even though only about half had. Upon discovery of the mistake, NUMMI sent the balance of the money owed, along with a self-imposed 10% penalty, as allowed by California Labor Code section 5814(b).
The employee took the matter back to the Worker's Compensation Appeals Board and sought a 25% penalty for the 47-day delay in the payments, plus his attorneys fees for doing so. Labor Code section 5814(a) allows a 25% penalty or a $10,000 penalty, whichever is less, but places discretion with the WCAB to issue a penalty.
The court took just nine pages to dispatch the WCAB's finding for the employee's claim of 25% penalty plus attorneys fees, ruling that where the employer discovered the error, corrected it and self-imposed a 10% penalty, the WCAB couldn't impose the higher penalty. In the court's words, "the WCAB reads into section 5814(b) limitations not provided for by the statute’s plain and unambiguous language. The law forbids that ..."
That's called an "enough is enough" ruling.
Who Owns Baseball Statistics?
Earlier this year, MIPTC reported that CBC Marketing & Distribution sued Major League Baseball over the ownership of fantasy baseball statistics. At the time of my post, MIPTC cried foul and predicted MLB would lose. You can read the Complaint here. CBC wanted to use the statistics in its fantasy baseball leagues, and MLB wanted royalties for the use of those statistics. Not surprisingly, CBC didn't want to pay, and sued to determine whether it had to.
Final score? CBC 1, MLB 0. That's right, Major League Baseball lost the ability to control the statistics its players generate while playing real games. The court ruled that the statistics are part of the public domain and not the property of MLB. Spokespersons for MLB vowed an appeal, so the game isn't quite over yet. We're sure to get into extra innings on this one. US District Court Magistrate Judge Mary Medler issued a 49-page opinion, granting summary judgment for CBC in the case, fully entitled: C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP, Case no. 4:05CV00252MLM (ED MO August 8, 2006).
Infamy or Praise likewise predicted the win, but wants royalties for the prediction. In his Trademark Blog, Marty Schwimmer noted that the opinion also cited CBC's First Amendment rights as a reason for the win.
MIPTC reads the score this way: strike two for baseball, with the third to follow shortly after the appeal.
Alligator Tears, Rabbit Feet And Tiger Claws Don't Support Claim Against NYPD
A three- to four- pound rabbit is missing from his New York apartment, but that's the least of Antoine Yates' worries. Two years ago, he was mauled by "Ming," a 10-foot long "pet" Siberian tiger he kept in his apartment, and was taken to a Philadelphia hospital for treatment of his severe lacerations, which included exposed bone. A friend of mine who is a curator at the Los Angeles Zoo described the relationship of tiger claws and human skin to be roughly the same as human fingernails to onion paper. What may be playful to a full-grown, 450-pound wild cat with leather-thick skin can be deadly to you and me.
Until that fateful day, Mr. Yates apparently didn't appreciate that possibility. He had raised Ming from a cub, along with a hatchling now named "Al," which has turned into a six-foot long alligator. Yates also kept a small rabbit. After his recovery, Mr. Yates was sentenced to five months in jail for reckless endangerment. He also brought suit against the City of New York for the NYPD's alleged violation of his constitutional rights based on his allegation that the police unlawfully searched his apartment and seized the animals.
Last time I checked, the Constitution didn't contain either a tiger- or alligator-search clause.
Ming and Al now reside in a animal shelter in Ohio, but there's been no word about the rabbit. U.S. District Court Judge Sidney Stein, who dismissed Yates' claims, noted, "The whereabouts of the rabbit have not been ascertained, but there is no indication in the record that Al the alligator was questioned in that regard. The court suggests he may be more knowledgeable on this issue than he disgorged to date."
Volunteers May Recover Contamination Cleanup Costs From Potentially Liable Parties
Voluntarily cleaning up contamination could get you into trouble, as MIPTC reported about the Cooper Industries v. Aviall case decided by the U.S. Supreme Court last year. The problem hinged on your ability to recover cleanup costs from others who contributed to the contamination because you voluntarily undertook the cleanup. While the ruling intuitively does not make sense, the Court ruled that section 113 of CERCLA does not allow you - who voluntarily cleaned up contaminated property - to recover costs in excess of your share from other liable parties because the statute doesn't allow it. Your remedy? Talk to the legislature and get the law changed.
In that situation, the only remaining hope for cost recovery under federal law lay in two other portions of this cost recovery statute, CERCLA sections 106 and 107. The Supreme Court left that option open, and part of that question has just been answered by the Eighth Circuit Court of Appeals.
Yes you can. Even though before we said you couldn't.
That's right, back in 2003, the Eighth Circuit, in a case from Iowa where my alma mater is located, had ruled in Dico v. Amoco Oil that recovery for voluntary cleanup was not allowed under section 107 if you had voluntarily cleaned up contaminated property. The Circuit called it directing traffic, saying that the only remedy open to a party in that situation was under section 113. Before we go too far, it may be helpful to do a quick recap of these two sections.
Here's the basic statutory structure of CERCLA (the Atlantic case gives a very good summary complete with relevant case cites). Section 107 has a six-year statute of limitations and under that section, a party can obtain 100% reimbursement of its costs from other potentially liable parties.* Before being able to use section 107, however, the government had to either name that party in CERCLA cleanup action or settle with that party.
On the other hand, section 113 limits the statute of limitations to three years and allows only contribution, but only in amounts in excess of their equitable share, and not at all from parties who have settled with the government. Obviously, section 107's remedies are much more powerful, but the courts have directed traffic between the two sections, and most rulings limited volunteers to recovery under section 113. The Supreme Court's ruling in Aviall, however, foreclosed that remedy to volunteers.
With that, back to the ruling. After having decided Dico and the intervening (note subtle foreshadowing here) Supreme Court's ruling, anyone voluntarily cleaning up contamination and trying to obtain financial contribution from other potentially responsible parties was looking for trouble. The Eighth Circuit, perhaps recognizing the consequences of such a hard-and-fast rule, sidestepped its 2003 opinion in Dico v. Amoco Oil Co. How can a court just gloss over such recent, on-point precedent?
Let's look at the facts facing the Eighth Circuit.
Atlantic Research Corporation voluntarily cleaned up a site contaminated from rocket propellant for which it was partly responsible. It sought contribution to those cleanup costs from the United States government, which Atlantic alleged was also partly responsible. Not wanting to spend tax dollars, the government sought to dismiss Atlantic's case. It didn't bring a CERCLA cost-recovery action against Atlantic or settle with the company. The government was then in a position to cite Cooper Industries v. Aviall (no section 113 recovery) and Dico v. Amoco (no section 107 recovery) and convinced the district court to dismiss Atlantic's case. Atlantic appealed.
Faced with the Supreme Court's Availl ruling and the Eighth Circuit's Dico ruling, things looked bad for Atlantic. As foreshadowed above, however, the Circuit decided the the Supreme Court's ruling in Cooper Industries v. Aviall gave them a reasonable basis to reexamine and then disregard their prior ruling. The problem lie in whether a "liable party recover costs advanced, beyond its equitable share, from another liable party in direct recovery, or by § 107 contribution, or as a matter of federal common law," according to the issue as framed by the Circuit.
The Circuit finally saw the problem created by the interplay of the two statutes, and the government's ability to avoid liability by simply doing nothing. In other words, for property where the government was partly liable for cleanup (think closed military bases), the government wouldn't bring a lawsuit against the volunteer and refuse to settle with that volunteer, and then after the volunteer cleaned up the contamination, simply move to dismiss the case because section 107 didn't allow recovery, and the Supreme Court had barred recovery under section 113.
No one would have any incentive to voluntarily clean up contaminated property, which frustrates the entire purpose of CERCLA. The Circuit ruled that parties who have not faced a CERCLA action, and are thereby barred from recovery under § 113, retain their access to § 107, the more powerful of the sections.
But don't get your hopes up and think that you can recover 100% of your costs, even if you're liable. You can't, the Circuit ruled. But you can recover any costs expended above your fair share of the cleanup costs.
And that's good news.
* The Eighth Circuit takes issue with the continued use of the term, "Potentially Responsible Parties" both because the Supreme Court's decision in Aviall gutted the viability of PRPs and because that term does not appear in the CERCLA statute. The Court believes that the term, abbreviated as "PRP" was "developed" by the courts. Courts shouldn't claim this credit. When CERCLA was enacted, the government, courts, attorneys and parties were all working with the statute.
MIPTC believes that the alphabet soup agency of the government, the USEPA invented the term in 1980 just after the statute was enacted. Not much of the Internet was citable in 1980, but in research MIPTC conducted in paper libraries (yes, it's shocking), the term appears in early USEPA directives. The Eighth Circuit called them "Liable Parties," which the Circuit believed more accurately tracks the terminology of the statute. MIPTC believes a more appropriate term is Potentially Responsible Parties as "Potentially Liable Parties" or "PLPs."
Are Alternative Cars The Answer To High Gas Prices?MIPTC doesn't know where you can find cheap gas for just over $3.00 a gallon, because down here in The O.C., it's upwards of $3.25 for regular unleaded, and getting higher by the day. Maybe I should resort to an electric car, or one of these bicycle-powered cars or one of these beauties.
Coast to Coast Internet Radio Slices The Double-edged Sword Of Legal Technology
Some people in the legal world say that the growth in technology be it software, hardware or telecommunications is both a blessing and a curse. Is Legal Technology a double edged sword? Join me and my co-host and fellow Law.com blogger Bob Ambrogi as we peer into the world of Legal Technology and get some answers.
This week, Coast to Coast welcomes Ron Friedmann, President of Prism Legal Consulting and Ross Kodner, President and founder of Wisconsin’s MicroLaw, Inc. Here's one you won't want to miss. Give us a listen.
Do Billboards Have A Right To Be Seen?
Do you want to see billboards? Do billboard owners and advertisers want you to see their billboards? Do counties, cities and towns want beautiful roadscapes?
How do you balance those three wants and needs when they collide?
Back in 2000 just before the Democratic National Convention, the City of Los Angeles decided that it needed to sprucify its streets, especially around LAX, and in particular, Century Boulevard. I've been on that road, and it needs more than trees to spruce it up. My opinion aside, however, the City planted the trees, which grew and grew and grew.
So much so that they started blocking Regency Outdoor Advertising billboards at LAX, which caused Regency to lose a lot of revenue. The trees were initially vandalized, resulting in better visibility of the billboards, but they still grew back, blocking the billboards again. Regency then sued the City for inverse condemnation.
Regency argued that its billboards had a right to be seen.
That's the exact opposite of the typical argument about view. Most plaintiffs sue to preserve their view of the ocean, mountains or city lights, not the other way around.
Regency lost its argument in the trial court, the court of appeals and finally two days ago in the California Supreme Court. The courts each determined that the City had a right to plant the trees, and that Regency had no Constitutional right to have its billboards be seen. The Supreme Court conducted an exhaustive examination of Regency's arguments, which include abutter's rights and the right of businesses to have their storefront signs seen from the roadway.
The court concluded that the City had a right to plant trees to beautify the street and enhance commerce, but that Regency did not have a right to have its billboards be seen that would justify any eminent domain or inverse condemnation payment.
Unfortunately, we still have to see Century Boulevard, even after the Democrats left.