Quote of the Day - Most Consumers have found that by and large the registry stops most telemarketing calls they've been receiving.
Don't Call Me, I'll Call YouI've not commented on the National Do Not Call Registry so far. Sure, it's seen its ups and downs. But it sounds like a great idea to me, as well as 50 million others.
Plus 11 executives of the Direct Marketing Association. The DMA is the trade group of the telemarketers.
Kind of ironic, isn't it?
None of us want to get calls during dinner to learn that we have just won a three-day cruise as long as we attend a 90-minute, pressurized sales hustle, er, I mean seminar. In fact, there's a wide range of ideas out there to stop telemarketers.
I'm all for it. I signed up for all the telephone numbers that I have (that's a whole 'nother blog entry). I even signed up on California's list.
The free speech thing, though, has prompted some thoughful observations. I come down on the side of my free speech, however, in not being invaded in my home. I get to choose what TV stations I watch, why can't I choose who to talk to?
Now, however, there's a new wrinkle in this whole twist. We can't even get two federal agencies and a judge to agree on who gets to see the list.
Really, I don't care who sees it, as long as it's in the hands of the telemarketers and someone's going to enforce it when I get a call during dinner.
Wormholes: Bring Money, Guns and LawyersA new suit filed Tuesday alleges that Microsoft is responsible for identity theft due to hacking.
Filed by Newport Beach plaintiff's attorney Dana Taschner, he lawsuit claims: "Microsoft's eclipsing dominance in desktop software has created a global security risk. As a result of Microsoft's concerted effort to strengthen and expand its monopolies by tightly integrating applications with its operating system ... the world's computer networks are now susceptible to massive, cascading failure."
Wow. So that's what my computer's problem is.
The suit further alleges that Microsoft engaged in unfair business practices because it failed to secure its software against worms, viruses and cyber attacks. The suit is brought by a LA film editor whose identity was stolen.
"If you live in the modern world, you must use Microsoft," said Taschner. "You can't on the other hand say, 'We're not responsible.' "
On the other hand, Microsoft has a different perspective. This complaint misses the point," Microsoft spokesman Sean Sundwalll argued. "The problems caused by viruses and other security attacks are the result of criminal acts by the people who write viruses."
An article entitled the Hacker Challenge supports the position taken in this lawsuit. At least the NB attorney found an expert to support his position.
It's kind of like the defense adopted by the gun industry: we can't be responsible for how the guns are used by criminals.
That defense may just shoot a hole in this new lawsuit.
We've Been WarnedProposition 65 has now made its way into restaurants. You know Prop 65 - it's that wording on buildings and products in California that informs warning-weary consumers that chemicals that cause cancer are present. The actual warning language is more detailed, but you've seen the signs.
Restaurants? That's what I said. The warning sign I saw last night was posted at the Olive Garden eatery in Irvine, California. Apparently, the warning sign was approved by the California Attorney General. Back in April.
Sure, I've seen it before on buildings, below-ground garages, products - just about everywhere.
Just not in a restaurant. It was a little unnerving, to say the least. I asked the manager what food had chemicals that caused cancer. Apparently, it's the seafood - tuna, swordfish and shark.
I had a salad. With chicken.
Casting Stones At Glass Legal OpinionsI love legal opinions. They’re so much fun to read. How about this summary, for example: “Caselaw prohibiting employers from requiring applicants to sign arbitration agreements is overruled.” That’s the Los Angeles Daily Journal's’s interpretation of a newly decided Ninth Circuit case.
Wouldn’t it be easier to say: “Employers can require applicants to sign arbitration agreements?”
Twelve words down to eight. I know you don’t know as much as you did with the twelve-word version, but you lose the double implied negative that makes the longer version hard to read.
Wonderful wordsmithing is not limited to the Daily Journal. The Ninth Circuit gets into it, too. In the opinion itself, the Judges conclude the introduction with:
“While we disagree with Luce Forward II's [a lower, U.S. District Court opinion out of the Southern District] conclusion that Circuit City [a U.S. Supreme Court opinion] implicitly overruled Duffield [a Ninth Circuit opinion] we need not explore that disagreement in detail. [Fn. omitted]. It suffices to note that the panel opinion has been with drawn. Id. [and sic]. We now conclude that, although Circuit City did not overrule Duffield, Duffield was wrongly decided; we therefore overrule it ourselves. “
You can't fire me, I quit. Or something like that. Actually, the Ninth Circuit was acknowledging that it was the only Circuit standing out in the cold with this opinion, and reversed itself before the U.S. Supreme Court did.
Now, the world is clear once again. An employer can require a job applicant to sign a contract that includes an arbitration provision. Wasn't that easy?
It’s tough to cast stones, though. I cringe every day when I go back and read some of my postings on this weblog. The only good thing is that when I spot an error, I can correct it, if I spot it. When the courts goof, it’s in the opinion for good, because it’s in print.
The internet has its’ benefits. [Did you catch that one?]
New Law: Driving While SnoringNew Jersey criminalized driving while tired last month. The legislation is dubbed Maggie's law for the 20-year old who was killed by a van driver who admitted to being up for thirty straight hours.
It's the first law of it's kind in the nation. Two other states, Washington and New York, have similar bills pending. There's an attempt to create a federal version of Maggie's law, too.
No, they don't plan on pulling you over if your head is leaning too far forward and then snaps upright. Maggie's law says that the DA has to prove that you've been up for more than 24 hours.
The law, introduced by State Senator George Geist, had 11 co-sponsors. This bill, appears to be the final version. The National Sleep Foundation supported the bill, and is glad to see action being taken. "We are so accustomed to being fatigued and tired and sleepy that it's part of our daily life and we think nothing of getting behind the wheel and driving despite the horrible ramifications of that act," said Marcia Stein of the National Sleep Foundation, a nonprofit research organization.
I can't imagine how the law can be effectively enforced. It's not like there's a version of the field sobriety test for sleeping or drowsiness. How tired do you have to be?
If you keep quiet, how are they ever going to know unless someone else gives you up? It will be a dead giveaway, however, if you put your head down in the police car and start snoring.
It gives a whole new meaning to being arrested.
The "Gore Factors"Environmental decisions are in a word, messy. This one, however, adds a new twist that may clean things up faster.
The Sixth Circuit decided a Kentucky case three days ago that is signifcant because some companies involved in Superfund cleanups have tried to dodge the "pay now" bullet in the past by sticking their heads in the sand.
These companies are known as Recalcitrant PRPs (potentially responsible parties). They reason that by hiding, they can avoid contributing toward cleanup costs.
There's a new sherrif in town. At least in the Sixth Circuit, that is.
Now, it's going to hurt a little more if you hide in Kentucky.
The decision endorses what appears to be a new factor in addition to the six existing "Gore factors" used to determine cleanup contribution.
These factors are named for then-representative Albert Gore, Jr. (D-Tenn.), which were not included in the final version of the law. The (paraphrased) Gore factors include:
(1) distinguishable discharge;
(3) degree of toxicity;
(4) involvement in generation, treatment, transportation, storage or disposal;
(5) degree of care; and,
(6) The degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment.
This last one is quoted in full because it's where the Sixth Circuit added a new factor to the analysis: "cooperation with the government." The law allows courts to consider "equitable factors," which the circuit judges opined was exactly what the trial judge did.
Neville Chemical, who on its website claims "A Tradition of Leadership and Quality" must have missed that line when responding to the USEPA and the lead PRPs. The Court's opinion notes that at least four times Neville was offered the opportunity to cooperate and work out payment for its contribution of 472,000 gallons of wastewater sludge.
And at least four times Neville declined the invitation.
The trial judge Karen Caldwell apparently had enough, and although the parties thought Neville had contributed 4.78% of the contamination by volume, Judge Caldwell slapped Neville with 6%.
Although the dollar amount of the cleanup involved is not in the opinion, Neville's share of the interest attributable on its portion of the cleanup costs (since 1986) was calculated at $298,000.
Touch Me, But Don't Invade My PrivacyOften, lawyers come up with new theories to get coverage under insurance policies. Here's a new twist that didn't work in Florida. Lawyers there tried to trigger the "invasion of privacy" policy terms based on a claim of "offensive touching." No, it's not first and ten, it's unwelcome sexual advances.
Mealy's Litigation Reports posted this article that highlight's Elaine Scarfo's case against her employer, Victor Ginsberg, for offensively touching her.
Ginsberg tendered the suit to his insurance company, Allstate Insurance, which denied the claim.
As an aside here, Allstate has changed its jingle from "You're in Good Hands" to "The Right Hands Make All the Difference." I'll have to refrain from commenting - but you've got your own imagination.
Call me silly, but it seems that being felt up qualifies from a common sense approach as an invastion of privacy. Certainly, there are legal reasons it does not. Perhaps the 11th Circuit expert, Abstract Appeal, can give some more insight on the case.
Two Towers, Two Planes, One Occurrence, Too BadThe World Trade Center owners in New York lost their battle with Hartford Insurance, Travelers Company, (formerly St. Paul) and a host of other insurance companies, but not Travelers. The WTC, owned by Silverstein Properties, LLC, wanted their insurance carriers to pay for the loss of the two buildings as two different "occurrences." That way, Silverstein could collect for the loss of both buildings. Obviously, the carriers only wanted the loss of the two WTC towers on September 11 to constitute one "occurrence."
The U.S. Court of Appeals for the Second Circuit ruled that the loss of the towers constituted one occurrence. In a heavily factual opinion, the Court cited the policy form developed by Silverstein's insurance brokers, Willis of New York. The Willis "form" defined "occurrence" as:
"... losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes." Apparently, Silverstein was concerned with the insurance companies attempting to apply multiple deductibles to one "occurrence." Silverstein instructed Willis to customize (or manuscript) this language into the policies with the insurers.
Silverstein, along with the rest of us, never thought both towers would be lost in one accident. Silverstein wanted high deductibles to keep premiums low, but didn't want the carriers to avoid paying claims by applying multiple "occurrences" to each loss.
It backfired. In a big way.
To the tune of only $3.5 billion instead of $7 billion. Yes, that's with only one "B" instead of two.
In their decision, the Second Circuit agreed with Judge John S. Martin of the U.S. District Court for the Southern District of New York. He ruled that the "occurrence" definition agreed to by most of the various insurers meant that the damage occurred from one cause - a coordinated plan of attack on the two WTC towers. The Second Circuit affirmed his ruling.
Traveler's portion of the case, however, remains unresolved, and is set to be heard by a jury. The Second Circuit thought the definition in the Travelers policy was too ambiguous to grant Summary Judgment as a matter of law for Judge Martin to decide.
The case is actually much more complicated that I've presented here, and for lawyers, insurance brokers or others interested in the facts behind what happened, the case gives all the details, even down to quoting faxes and deposition testimony. Otherwise, the opinion is good for bedtime reading.
The case is also a Civil Procedure professor's dream come true. The Court's discussion of jurisdiction goes on for almost eight pages - a lot to slog through if you're not a lawyer.
If Silverstein hadn't tried to limit its own payout for multiple deductibles by altering the typical insurance definition of "occurrence," the Court would have had no problem awarding $7 billion dollars of coverage.
You know: two planes, two towers, two different times, two sets of highjackers.
Too bad for almost everyone ... but hope springs eternal for Silverstein and Travelers.