May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - There are no secrets better kept than the secrets that everybody guesses.
Type In Your Search Query, And Your Computer Will Guess Your WeightGoogle's got it down, but Microsoft will soon follow suit and introduce search-related advertising. When you search MSN, Microsoft plans to provide you with advertisements tailored to your search. Presumably, the software can tell your sex, age and interests as a consequence of your search. Big brother? Perhaps a little bit, and you'll have to determine whether it's welcome by deciding whether to use the service when it's unveiled. Meanwhile, privacy rights groups wonder whether your computer will soon become part of you. 
Dig Out Those Holiday Lights One More TimeRemember all of those holiday lights that you put up and now have neatly tucked away for next year? Well, just in time for that post-holiday letdown, they've been recalled due to shock and fire hazards. That's right. Dig them out of the box, go back to your local Target store and get a full refund. As you're grumbling, don't forget that Santa's making a list.
Property Owner Denied Right To Recover Environmental Cleanup CostsIf you own a piece of contaminated real estate and you intend to seek recovery from the prior owners and operators and other potentially responsible parties (PRPs) for money you spent cleaning it up, then you might want to take a look at yesterday's Ninth Circuit decision in Carson Harbor Village Mobile Home Park v. Unocal Corp. (Carlson II). If you're a litigation attorney (any kind of litigation attorney), then you will definitely want to read Footnote 3 where the Court damns the plaintiff's attorney for late-filed briefs and declarations, but I'm getting off-track from the Court's main holding. The case is called Carson Harbor II because - yes, you guessed it - there's a Carson Harbor I. In the first case, the Court saw Carlson Harbor II coming, and sent the case back to Judge Margaret Morrow in the Central District Court to make a determination whether the Plaintiff complied with the National Contingency Plan. There's this little statute that governs all CERCLA actions that requires Plaintiffs to jump through a number of hoops before they can sue other parties and recover money they spent on cleanup. Of particular interest here are two hoops: public participation and consideration of alternative remedies. One of the hallmarks of the National Contingency Plan is something some people refer to as the "mastermind principle," otherwise known by the cliche, "two heads are better than one." In other words, if you're going to undertake a cleanup of contamination, you need to provide the opportunity to those who might be affected by your cleanup efforts - here people who live in the mobilehome park and the other PRPs - the opportunity to help you consider your plan. This public participation opportunity is designed to help make the plan better, and the ultimate remedy better for the environment and the affected people. There's another requirement in the National Contingency Plan that mandates consideration of a range of alternatives, from the "no project alternative" to a full-on, complete cleanup to background levels. This range starts at doing nothing, and consequently incurring no cost, all the way to a practically impossible cleanup to background levels, which is the highest cost of all, and usually consequently unjustified. The point of the NCP, however, is that you go through these exercises and give people the opportunity to participate and make recommendations. The concept is supposed to translate directly into a more efficient and sometimes less expensive result that has been duly considered by all affected parties. The consequences for the failure to do so, however, are draconian. If you fail to allow public participation and you fail to consider alternative remedies, then you don't have the right to sue PRPs to recover the money you spent cleaning up the contamination. That's exactly what happened to Carson Harbor. The property owner spent money cleaning up contamination and then sued Unocal to recover the cost of doing do. Unocal, however, claimed that it didn't have the opportunity to participate in the evaluation phase or make recommendations about alternative cleanup methods. Unocal brought a motion for summary judgment against Carson Harbor based on these complaints, and because Carson Harbor made its own decision about the remedy and didn't allow public participation and didn't consider more than one alternative, the Court was left with only one choice. It denied Carson Harbor the right to recover the money it spent on cleanup from Unocal. The Court does not mention the dollar amount at issue, but you can be sure this cleanup was expensive.
Coast to Coast Internet Radio Program Gazes Into The 2006 Crystal BallAs the New Year begins, Coast to Coast looks into the crystal ball with my co-host Bob Ambrogi, an attorney and fellow legal blogger for Law.com. We have a bonus on this show with two other fellow legal bloggers for the Law.com legal blog network. Our special guests and prognosticators (who are also lawyers) include Norman Pattis, one of the best-known criminal defense lawyers in the country. Attorney Norman Pattis is one of Connecticut's best- known criminal defense lawyers and civil rights attorneys. In addition, Norm is an accomplished lawyer and writer, who writes the blog, Crime & Federalism and owns a rare book shop (Whitlock Farms Bookstore) just outside of New Haven, Connecticut. He recently formed his own firm, specializing in criminal defense, civil rights, appellate work and representing lawyers in professional disputes. He has argued in the United States Court of Appeals for the Second and Sixth Circuits, and appeared before the United States Supreme Court on prisoner's rights litigation. Our next guest is Attorney Carolyn Elefant from Washington D.C, who specializes in energy regulatory issues is founder and principal attorney in the Law Offices of Carolyn Elefant (LOCE). Prior to founding LOCE, Carolyn worked as an associate attorney for the law firm of Duncan and Allen, a national energy boutique, also located in Washington D.C., from 1990-1993 and served as an attorney advisor with the Federal Energy Regulatory Commission from 1988 to 1990. Carolyn also launched My Shingle, a website for and about solos and small law firms. Finally, we have my friend, Stephen Kaplan from the Los Angeles firm of Hicks, Mims and Kaplan, who focuses on business law. Steve is a habitual prognosticator and an attorney from the law firm of Hicks, Mims & Kaplan out of Los Angeles, California and his practice areas include business law; business litigation and probate litigation. Listen to our show for their predictions for 2006 ranging from the Alito hearings to terrorism to legal technology ... and legal podcasting!
Employee's Surfing Pornographic Web Sites At Work Lands Employer In Hot WaterTrends usually start in California, or so we on the Left Coast would like to believe. New Jersey, however, proves this adage wrong with a recent employment law decision that requires employers to stop an employee's internet porn surfing. The Appellate Division of the Superior Court of New Jersey decided, "that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer." Here, the employee's wife sued the company for allowing her husband's to upload a picture of their naked daughter to a child pornography site, and the appellate court reversed the trial court's decision dismissing the case. The trial court found that the employer had no such duty to monitor its employee's internet surfing, but the higher court disagreed. The case will now proceed to trial. It's a tough standard to hold employers to, and most employment lawyers have decried the outcome of the case because of the extra burden it places on employers. In a case of bad facts make bad law, though, you might not be surprised at the outcome given the involvement of child pornography. That subject is an easy target for courts -- imagine the civic backlash if the court hadn't taken such a step to protect the child at risk. What makes it doubly troubling, however, is the involvement of the child's stepfather. Even so, in this case, the employer knew that the employee was visiting porn sites, yet apparently did nothing affirmative to stop the employee's surfing, except to warn the employee to stop. The employer admitted that it had the software and technical capability to "turn off" the employee's access to the pornographic sites, but did not do so. That fact was most likely the tipping point for the court's decision, but if you have specific questions about this case, you should contact a New Jersey lawyer. According to the Court's opinion, the company had a policy not to monitor employee's computers, but at the same time, it had received complaints from other employees about the husband-employee's viewing of pornographic images on his computer. This type of case hasn't yet been addressed by California courts, but there's no reason to doubt that if a similar set of facts came in front of a court here, the decision would likely be the same. While MIPTC won't predict the outcome of the New Jersey case, a case like that here would have a difficult time overcoming the burden of proof to show proximate cause of the damages to the couple's daughter since some of the same activity happened on their home computer. Nonetheless, employers may want to review their internal policies on privacy and pornography.
Pollution Coverage Exclusion Narrowed By Maryland CourtsThe pollution exclusion has long been waved as a banner by insurance companies to preclude coverage for a myriad of pollution-related ills, keeping your premium and not paying claims. In Maryland, however, another chunk just got removed from that wall of impenetrability. The Maryland Court of Appeals ruled that the total pollution exclusion does not bar liability coverage for an injury suit arising from workplace exposure to welding fumes. U.S. Fire Insurance Company initially denied claims filed by two of its insureds, Clendenin Brothers Inc. and Nichols Wire, Inc., for personal injury lawsuits filed by workers allegedly exposed to welding fumes, and it's a case we've been watching with interest for some time, along with the entire industry. According to the Court, the certified question asked to it by the U.S. District Court for the District of Maryland was based on suits brought by plaintiffs against Clendenin and Nichols who allege that proper use of the insureds' welding products produced harmful localized fumes containing manganese, which caused bodily harm and neurological damage. The insurance company filed a declaratory relief action, seeking to avoid defending its insureds. Now, however, USFC has to cover the claim, and repay Clendenin and Nichols for itheir costs to defend these suits.
Coffee Wars: Mr. Charbucks vs. StarbucksYou might be able to order a "short cappuccino" at Starbucks, but the retailing giant is big on enforcing its trademark. So much so that a small New Hampshire coffee company, the self-styled Black Bear Micro Roastery's cup of "Mr. Charbucks," ran headlong into trouble with Starbucks over its similar-sounding name. Black Bear Coffee offers this page on its website with details of the litigation between the big company and their small company. Starbucks' press page offers no comment. Court TV interviewed the owners of Black Bear Coffee, who commented, "We're so small that there's no way, even if we wanted to, that we could cause harm to Starbucks," Jim Clark told Courttv.com in a telephone interview. "They did not have to go to this extent to police their trademark." The opinion, not up on the U.S. District Court for the Southern District of New York's website, stated (according to Court TV), "The court finds, based on the distinctive packaging and the separate retailing channels of the parties' respective products, that an ordinary purchaser is very unlikely to mistake defendant's 'Mr. Charbucks Blend' ... for one offered by Starbucks," wrote Judge Laura Swain. You make the call: here's Black Bear's Mr. Charbucks (photos of the actual blend not on the site). You likely already know what a Starbucks coffee looks like.
CHP Hands Out IOUs for DUIsNow that New Year's Eve has come and gone, there may be a few people out there who receive bills from the California Highway Patrol (link has music) for the pleasure of having been arrested for DUI (driving under the influence). Not only will this experience cost between $10 to $15,000 in legal fees and costs, additional insurance premiums, lost time from work, classes, probation, court fines and the like, offenders now get bills from the CHP for their time. If someone you know is in this situation, here's a primer for what you can expect from the CHP.
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