Quote of the Day - Never do anything when you are in a temper, for you will do everything wrong.
Is the Forest Service Throwing A Temper Tantrum?
Businesses argue that the U.S. Forest Service is holding up certain hand-selected projects to force public outcry and a review of a July 2 ruling invalidating several Forest Service regulations. The Forest Service claims it can't approve projects such as cutting down the Capitol Christmas Tree or opening up various ski resorts around the country.
Even environmental groups involved with the lawsuit claim the Forest Service is playing political games with the Christmas tree and the upcoming ski season. "It's clear to me that the Bush administration is trying to manufacture a political crisis," said Sean Cosgrove, a forest policy specialist for the Sierra Club, according to this AP article on Lexis One.
Attempts to hold the Forest Service in contempt have failed.
Sarbanes-Oxley Does Not Authorize Private Claims For Alleged Excessive Exec Compensation
In the first-of-its-kind ruling, Sarbanes-Oxley was interpreted yesterday not to authorize suits for the return of what some perceive as excessive executive compensation. A court in Pennsylvania ruled that Ronald Jeffrey Neer could not sue Stonepath, Inc. to seek the return of an untold amount paid to the executives of the company.
It was a relatively easy ruling, according to the judge: "Because Congress explicitly created a private right of action in Section 306 and did not do so in Section 304, the natural inference is that Congress did not intend to create a private right of action in Section 304," Judge Dalzell wrote. Section 306, as enacted by Congress, allows investors to sue directors or executives if they buy or sell their company stock during a pension-fund blackout. Section 304, on the other hand, prevents excessive executive compensation, but apparently only the U.S. Attorney General has the right to make claims under that section.
Arbitrate, Mediate, Litigate, We All Fall Down
The rules on arbitration in agreements are getting tighter, as the franchisees of Mail Boxes, Etc. just found out. MBE's franchise agreements with various groups of franchisees had three types of alternative dispute resolution provisions in them: arbitration with the American Arbitration Association, arbitration with the Judicial Arbitration and Mediation Service and just plain, old everyday vanilla mediation. When MBE tried to change the format of its stores to The UPS Store, the franchisees objected and sued.
In response, MBE invoked the three types of ADR provisions and sought to respond to each store individually in arbitration/mediation, not litigation. The franchisees responded with a consolidation motion, which the trial court denied, but instead granted MBE's motion to compel arbitration under the three separate provisions. They appealed.
Now the appellate court has ordered the trial court to consolidate the arbitrations and resolve the differences between the AAA and JAMS arbitration provisions so they all can proceed together as one happy family. Alright, not so happy a family. But proceed to arbitration they will, not to litigation in court. There's another fix ordered, too.
The JAMS provision prohibits classwide arbitration. That issued turned out to be a simple one for the appellate court since the California Supreme Court recently ruled that such bans are unconscionable. The franchisees will all end up participating in one arbitration, but apparently the ones who agreed to mediation will be mediating.
What's the lesson here? If you're a franchisor, look at your agreements and make sure they comply with these rulings. If you're a franchisee or a potential franchisee, read the franchise agreement before you sign it and understand what you're getting into. You could end up somewhere other than where you want to be.
Now about shipping that package...
Can Government Workers Speak Out On Their Job?
You have First Amendment rights, and maybe from time to time you exercise them. Certainly MIPTC does, most every day. Do employees have First Amendment rights in the workplace? Generally (in other words, be careful because there are caveats), the answer is no. The question is not so clear, however, for public employees.
Think about it. Can the President say whatever he likes? What about Congress? How about the Supreme Court? Now hold on a minute here, don't go sideways on me - you might be thinking, "well, they seem to say whatever they want with or without regard to the First Amendment," but I'm talking about expressing their personal opinions about their job, in their respective roles - not as private citizens. In the context of these high-profile individuals, it's hard to imagine when we would let them be private citizens. Even so, there are other government employees who want to speak out that aren't at these levels.
Take, for example, the case that was heard today by the Supreme Court. It involved a Los Angeles prosecutor who alleges that he was demoted for recommending charges be dismissed against a defendant because a Sheriff lied in a search warrant. He claims he had a First Amendment right to make that statement, despite having been told by a supervisor that he was wrong, and was essentially overruled.
So far, Courts have been cautious in this area, limiting the First Amendment protection to speech on matters of "public concern," and generally only then in the government employees' role as a private citizen.
In this instance, then, does that mean that the prosecutor has the right to perform his job to the dissatisfaction of his superiors? Does the County of LA have the right to demote (or fire) the Deputy District Attorney for insubordination? Is the Deputy DA bound to follow his supervisor's instructions without regard to his own opinions?
There's no easy answer, and even the newest Chief Justice struggled with these concepts. In the oral arguments today, he asked the County's lawyer whether a professor at a public university could be fired based on a lecture's content. The lecture would certainly have taken place in the context of the professor's employment, Chief Justice Roberts continued, adding, ''That's what he's paid to do.'' Our newly-minted leader wondered aloud whether professor's speech was protected by the First Amendment.
When the County's lawyer waffled, Chief Justice Roberts said, ''I would have thought you might have argued that because the speech was paid for by the government, it was government speech and the First Amendment did not apply at all.'' The County's lawyer responded that the Deputy DA was challenging the decision of the supervisor, and his speech did not deserve protection.
As you can see, there are some pretty sticky issues. You can, however, exercise your First Amendment rights and put in your $0.02 worth in the comment box below. Does the Constitution protect government workers from retaliation for speaking out on the job or in the course of their routine duties?
Chief Justice Roberts' Supreme Court Takes Up Government Regulation of Wetlands
We're going to find out from the Supremes whether federal regulators can prosecute John Rapanos, a Michigan farmer/developer (depending on whether you're arguing for him or against him), for dumping sand on his property.
Well, it's not as easy as that, is it? If it were, the Supremes wouldn't be involved, and neither would the lawyers. Heck, it wouldn't even rise to the level of a blog post.
In fact, though, both the Supreme Court and a gaggle of lawyers are involved in a dispute over the government's regulation of Mr. Rapanos' isolated wetlands some twenty miles away from the nearest navigable waterway. What do navigable waterways have to do with it? The Clean Water Act allows the regulation of "waters of the U.S.," which is generally defined as navigable. And regulate they did. Mr. Rapanos filled in wetlands on three pieces of land he owned in three counties around Saginaw, Michigan. He got a prison sentence (but didn't go) and a $13M fine.
Recently, an appeals court ruled that the CWA grants the federal government this regulatory authority. That case now gives the Supremes an opportunity to rein in federal regulators who may have forgotten Court's ruling four years ago that Congress intended the CWA to extend only over wetlands adjacent to navigable waterways, and not to isolated wetlands that are otherwise subject to local control. Federal prosecutors have prosecuted Mr. Rapanos, arguing that clean sand was more dangerous to the wetlands than toxic wastes and chemicals.
Having heard Justice Roberts testify for three days about judicial restraint, any predictions on the outcome? MIPTC guesses that Roberts will rein in the regulators.
Coast To Coast Internet Radio Program Visits The Vioxx Trial
The new Coast to Coast show is up on the Legal Talk Network, with my co-host, Robert Ambrogi. We get first-hand accounts from inside the courtroom at the Vioxx trial underway in New Jersey. A 64-year old Vietnam war veteran claims Vioxx caused his heart attack. Our special guests include Attorney Sam Davis, from Davis, Saperstein & Solomon, PC, who has been attending the trial to gather information for his own (100) plaintiffs' cases against Merck Pharmaceuticals.
Sam recounts developments in the trial including some outbursts between Merck lead defense counsel and Judge Carol Higbee. Also joining us on the show is New Jersey Law Journal reporter Lisa Brennan who has also been attending the trial and watching it on Court TV, as well as well-known defense attorney Alen Klein from Duane Morris, LLP, who was MDL liaison counsel for a pharmaceutical manufacturer in the diet drug fen-phen litigation. We have three important perspectives you won't want to miss. Just click on the podcast icon below or download it from our podcast RSS feed.
Just Send Me An Email
"No, honey, it's spam email, it's not porn." The FTC is soon to put a stop to <I>that</I> excuse, if you've ever tried to use it. Enforcement of the Can-Spam Act is in full swing according to the Federal Trade Commission, even if your in-box tells you otherwise.
The government claims to have collected over $1,000,000 in one recent case where it sued seven alleged spammers (monies obtained so far from five companies, but the remaining two are denying the allegations) for sending pornographic email without identification of it as x-rated. I don't know about your in-box, but mine, even guarded by both hardware and software filters, it still creeps through.
A lot of it.
Want to help? According to the FTC, if you receive spam email, or email that you don't want and the email fails to contain both a postal address and a clear opportunity for consumers to opt out of receiving future e-mail, then don't just moan and groan about it, fill out this online complaint form. Otherwise, push for the reward system to go into place.
It may not be that easy. According to Spamhaus, "Anyone with any sense would of course realise that if CAN-Spam becomes law, opting out of spammers' lists will very likely become the main daytime activity for most US email users." Now, that's encouraging. How about some practical advice?
Try this: should you click on the "Remove me" link? Absolutely not, reports Spamhaus. And don't forget to tell your friends. By email.
Not Coming Soon To A Video Store Near You: Violent Games
Governor Schwarzenegger (link has sound, and a little irony) signed a bill into law Friday that bans the sale/rental of violent video games to minors.
Similar laws have been passed in other states, but the video game industry will likely challenge California's law. According to the bill, you can tell what is violent according to the "infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victimís body, and the helplessness of the victim." See section 1746(d)(3) (scroll down to lines 34-38, page 3) .
Sounds like reality TV might qualify, too.
Past challenges of similar laws have been successful, so don't hold your breath if you're a parent, even if your kid is holding his/her breath to make you buy the game anyway.