Quote of the Day - This measure [class action reform bill] is a common-sense measure. It will ensure that people have a right to sue when harmed, and at the same time the bill will put an end to suits that leave consumers with pennies and small businesses with needless legal bills.
Specific Employment Class Action Waiver Held Enforceable
In the twisted, mixed-up area of the class-action waivers in contracts, we got some clarification from one of the courts involved in this mess. Certain class action waivers in employment contracts are enforceable, and employers can enforce arbitration agreements instead of engaging in litigation.
Not all class action waivers are enforceable, however. The Supreme Court has ruled such waivers unenforceable in the consumer credit card context, so it apparently depends on the provisions of the waiver itself. According to this new court of appeal opinion, class action waivers are enforceable when employment is not conditioned on signing the waiver, employees are given time to contemplate the waiver and employees have some opportunity to opt-out of it.
With those caveats in your employment agreements, you can avoid expensive and time-consuming litigation and proceed to arbitration of employee claims. Without them, well .... you know my number.
'X' Marks The Spot Means More Than Pirate Treasure
It used to be that only pirates uttered the words, "'X' marks the spot!", which was typically followed with a throaty "Arrgh, matey," or another similar guttural expression. Now, however, Courts are covering the phrase.
Both the pirate and court version lead to treasure, but treasures of vastly different kinds. The Court's version isn't the fanciful pirate treasure we've seen in movies, it's the outcome of a probate estate. Let's get to the actual story. It seems that just before she died, Josephine Torres executed a power of attorney with - no surprise here - an "X" instead of her signed name or initials. The son who received the power of attorney deeded her house to himself.
The other son, who didn't receive the treasure, er, excuse me, inheritance, challenged the power of attorney given the "X" as a signature. Although the court's opinion makes it appear as a close call, it really isn't. According to the court, an "X" or mark is typically legally sufficient for legal documents in California, especially here where the mark was made before a notary public.
Is it a good idea? Definitely not, and not something MIPTC would ever recommend, even if a court approved it. When they say put your "John Hancock" on the dotted line, it's a good idea to put your full signature.
Endangered Species: Trees Masquerading As Cell Phone Towers
Cell phone trees may soon become a thing of the past, if the Ninth Circuit has anything to say about it. The Court issued an opinion yesterday reversing a decision of the La Cańada Flintridge City Council. The City denied two of Sprint's applications to install cell phone towers because of the aesthetics of the structure.
The Court ruled that the City's attempt to regulate cell phone towers was preempted by federal and California's telecommunications and utilities acts The City found that the proposed towers would "significantly alter the character of the neighborhood ...", "negatively impact the resident's views.." and are "unsightly." The Court overturned the decision, saying the City has to defer to the standards set by the state government because the federal government passed that authority off. In this instance the authority grant in the federal act was to either the state or local governments.
The state took the charge and enacted legislation about installing telephone utilities. Essentially, the state thinks it is more important to have telephone services than to have telephone poles look good. The state act contains no references to aesthetics, and therefore, the Court ruled that City has no basis to deny a permit application because a telephone company (Sprint or otherwise) wants to put up something that looks like a stick.
The Shortest Sentence Introduces The Long Arm Of The Law
"Enter Reliance." Back in August 2005, MIPTC introduced you to what I thought was the shortest appellate court sentence written. In an amended opinion first issued six months ago, the Ninth Circuit wrote those words to introduce Reliance Insurance Company's part in a long-running dispute that started with the foreclosure of O.J. Simpson's house, and has now resulted in a nearly million-dollar verdict against Reliance Insurance Company.
The verdict is most surprising because not only is Reliance in liquidation in Pennsylvania and seemingly immune from judgment, but also for two other reasons: (1) the plaintiff will actually collect on the judgment; and, (2) Reliance and the Pennsylvania Insurance Commissioner were unsuccessful in both staying the litigation here and and trying to transfer the case to Pennsylvania. It's the age-old struggle for control between the executive branch and the judicial branch. You can look for this opinion to be appealed to the Supreme Court, but in the meantime, you can also expect a few changes.
This opinion will certainly have a ripple effect across the insurance laws of the fifty states. As a consequence, the several Insurance Commissioners might actually have to give up control of their attempts to liquidate insurance companies and move their liquidation cases to bankruptcy court instead, in order to gain control over significant pending litigation. Otherwise, the consequence of this opinion will mean that insurance companies who deny claims and then end up in liquidation may find themselves litigating cases in every state instead of being able to force unwilling plaintiffs to submit to the jurisdiction of the liquidating state.
As is the case with most insurance companies wobbling on the brink of liquidation, the plaintiff in this case, Hawthorne Bank (now Commerce Capital Bank), sought and got a bond from Reliance. The Court ordered Reliance to post a $1.1million-dollar litigation bond because of its precarious financial state. Reliance then went into liquidation. Reliance and the Pennsylvania Insurance Commissioner next sought to stay the case in California and then transferred to Pennsylvania, but the Ninth Circuit rebuffed those efforts, and kept the case in California, allowing it to proceed. The suit between Hawthorne and Reliance went to trial, and Reliance lost. The bond will now come into play, and Hawthorne will get paid practically all of its $1.2 million verdict. If you're involved with litigation against an insurance company, the case in the very first link is a must-read.
Parents Can't Divorce Children
Although MIPTC doesn't practice family law, every once in awhile a case comes along that takes my breath away. Kristin and David, a.k.a. Mom and Dad but not Mr. and Mrs., tried to allow Dad to divorce Seth, their child.
They stipulated in Court to the "divorce," if you can call it that, in return for David's one-time payment of $6,500, or up to $9,000 by wage garnishment if the first amount wasn't paid timely to Kristin.
What is more shocking, however, is that the ruse got by the trial judge, whose name (thankfully) is not in the opinion. What's almost just as shocking to someone who doesn't practice family law is that it takes a statute to define who are a child's parents: Section 7601 of the Uniform Parentage Act defines “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship.”
Excuse me, but I thought what it took to qualify as a parent was fairly obvious, at least to two it took to get into that position (no pun intended).
Type In Your Search Query, And Your Computer Will Guess Your Weight
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 Time
Remember 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 Costs
If 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.