May It Please The Court
Quote of the Day - It is the nature of all greatness not to be exact.
When It Comes To Real Estate Sales Percentages, Let's Be Exact
The Courthouse News Service reports that Oregon real estate sales are very competitive. In a defamation lawsuit filed in Marion County Court in Salem, Oregon, real estate mogul Coldwell Banker Mountain West claims it was damaged by Byron Hendricks, president of a competitor, Prudential Real Estate Professionals. The Salem Statesman-Journal asked Hendricks how much of the local market his company controlled, and he replied in a June 18 article, “We’re probably doing about 33 (percent) or 34 percent. They’re [Coldwell Banker] probably running 24 or 25 percent.” (See Question #4 in the last link.)
In the lawsuit, Plaintiff claims that in the Willamette Valley Multiple Listing Service broker ratings for Salem on June 20, Coldwell Banker actually had “25.35 percent of the volume of sales, year-to-date. Prudential had only 21.17 percent of the sales for that same period of time.” The newspaper reported, "In 2004 in Salem, Coldwell Banker accounted for 28.55 percent of sales and Prudential accounted for 26.27 percent. In Salem and Keizer, Coldwell Banker accounted for 27.89 percent of sales and Prudential accounted for 26.37 percent." The newspaper printed a correction, and it's not a defendant in the suit.
Coldwell Banker demanded more than $1.2 million in damages. Wow. Do you think the dispute between the two real estate companies is about something more than percentages?
Property Law As Viewed By A Toddler
1. If I like it, it's mine.
2. If it's in my hand, it's mine.
3. If I can take it from you, it's mine.
4. If I had it a little while ago, it's mine.
5. If it's mine, it must never appear to be yours in any way.
6. If I'm doing or building something, all the pieces are mine.
7. If it looks like it's mine, it's mine.
8. If I saw it first, it's mine.
9. If I can see it, it's mine.
10. If I think it's mine, it's mine.
11. If I want it, it's mine.
12. If I "need it, it's mine (yes, I know the difference between "want" and "need"!).
13. If I say it's mine, it's mine.
14. If you don't stop me from playing with it, it's mine.
15. If you tell me I can play with it, it's mine.
16. If it will upset me too much when you take it away from me, it's mine.
17. If I (think I) can play with it better than you can, it's mine.
18. If I play with it long enough, it's mine.
19. If you are playing with something and you put it down, it's mine.
20. If it's broken, it's yours (no wait, all the pieces are mine).
"Restating Implied, Perspective and Statutory Easements," Michael V. Hernandez. Real Property, Probate and Trust Journal, (American Bar Association, Spring 2005).
Is *Ugly* A New Class Deserving Of Employment Discrimination Protection?You can add "ugly" to the protected classes of race, color, religion, sex, national origin and age, according to the California Supreme Court, who issued an opinion earlier this week in a case entitled Yanowitz v. L'Oreal. Sure, that's a gross over-generalization, but I'm left with few other ways to characterize it. Although it's a sixty-one page opinion, you can get through the facts in the first nine pages, and that will tell you most of what you will want to know, if you're an employer.
Here's a quick sketch. Yanowitz was a successful, long-time employee of L'Oreal (flash site), and she ultimately became a Regional Sales Manager. Side note here, Yanowitz' husband is a lawyer. This fact becomes important later, one skipped over by the Court. Now, though, back to our story. Until the end of her employment, practically all of her reviews had been very good, even approaching excellent. She had been dinged for only two minor points.
Yanowitz was based in San Francisco, and her bosses, Messrs. Wiswall and Roderick were based in New York. On a tour of a Macy's store in San Jose with Yanowitz, Mr. Wiswall disapproved of the "look" of a 'dark-skinned" sales associate (the Court's words, not mine). Wiswall wanted someone "hot" and more "sexually attractive." He instructed Yanowitz to fire the currrent sales associate and replace her.
Yanowitz did not comply with her boss' directive, and later on a second tour of the same store, Wiswall got even more frustrated when he found out the unattractive (in his mind) sales associate had not been terminated. Despite Yanowitz' numerous requests, her bosses were never quite able to articulate a reason for terminating this sales associate other than that they didn't think she was "hot" enough. From the Court's opinion, it becomes apparent that Yanowitz' bosses gathered negative evidence about Yanowitz - including auditing her expense report and criticizing it - in order to terminate her. They changed her travel schedule and generally made life more difficult for her. Ultimately, she went out on stress leave and never returned to her employment. Interestingly, it turns out that the allegedly unattractive sales associate was that store's highest seller of L'Oreal products.
Here's why it becomes difficult to characterize this case as anything other than establishing attractiveness as a new class deserving of protection under Title VII or Title IX: Yanowitz filed a claim, presumably with the benefit of her attorney husband's advice, for discrimination against L'Oreal on the basis of sex, age (she was 53 at the time) and religion (she's Jewish). Not once in the process of Yanowtz' challenges to her bosses or in her original claim did she argue that attractiveness was a protected class or contend that L'Oreal did not have the right to discriminate based on looks. It was a legal fiction developed by the Court of Appeal.
The Supreme Court observed that employees didn't have to know what classes were "protected," as long as they thought that the adverse action the company was taking was discriminatory. Remember before when I noted that Yanowitz' husband was a lawyer? Well, the point is that she most likely knew from her husband that "attractiveness" was not a protected class, and that consequently L'Oreal's instructions to terminate an allegedly unattractive sales associate was not a protected activity. In other words, had it not been for this case, L'Oreal should have been able to terminate this sales associate based on her looks. Now we know that if you had thought that, however, you would have been wrong based on this new case.
Why did it turn out this way? Read the first nine pages of the opinion, and you'll see that the Court did not like the behavior of Yanowitz' bosses. Bad facts yield bad law.
Now, though, it would appear that you can't get fired for being ugly. But what about jobs that require beauty? Is the entertainment industry going to fold up and move out of Hollywood? Will there be a change in Playboy bunnies? (somewhat safe to open at work) Not likely. But, if you're an employer, be careful why you want to terminate your employees.
The “Voice” Of A JudgeThe legendary music club CBGB has received a temporary stay of execution from a New York judge after failing to pay rent increases according to its lease for the past four years. Apparently, the landlord failed to notice during this time period that the club didn’t submit the agreed-to increases as provided in the lease.
The most interesting aspect of this case involves Judge Joan Kenney and her opinion. Who would have ever guessed that a judge would say in print that CBGB actually improved the character and quality of life in the neighborhood. According to the records, Judge Kenney would have been a teenager during the formidable years of CBGB and attended both undergraduate and law school in New York (S.U.N.Y. Albany & S.U.N.Y Buffalo). It is interesting to consider the potential tone and outcome of this opinion had it been penned by an octogenarian judge who had never heard of the Ramones or Television (the band). This twist is just one example of the unique character of the judicial opinions upon which much of our system of law is based. Opinions are the voice of the court and our link to understanding the law. The personal nature reflected in each opinion should be both critiqued and respected as a unique feature of our justice system.
Here's my question, though: wouldn’t it be interesting to see Judge Kenney’s record collection?
Pave Paradise, Put Up A Parking Lot And Catch A Yellow CabTry to combine Joni Mitchell's Big Yellow Taxi song with Chuck Berry's Nadine and see if you can come up with a Ninth Circuit opinion on trademark protection. Well, Judge Sidney Thomas figured out how in his opinion, Yellow Cab v. Yellow Cab. The case almost sounds like it could be an auto accident, but it has to do with the name the two companies chose. Judge Tomas creatively cited these two songs in his opinion in the first two footnotes.
They both want to use the same name, and prevent each other from using it. One company's in Sacramento and the other cab company is in Elk Grove, not that far from the state capital, just in case you were wondering.
The point is, however, that the Yellow Cab of Oak Grove (the second-in-time user of the phrase 'Yellow Cab') defeated Yellow Cab Company of Sacramento's bid to prevent others from using its name. At least initially. The Ninth Circuit reversed that decision, saying that two questions remain: "(1) whether the mark “Yellow Cab” has become generic through widespread use in the marketplace, and (2) if descriptive, whether the mark has acquired secondary meaning."
In other words, when you say "Yellow Cab" do you think of either of these companies or just a taxi? Kind of like the analysis of the terms xerox, kleenex and jello. The Ninth Circuit thinks that maybe the term 'yellow cab" is as generic and instead deserves protection. The case is headed back to the lower court for further proceedings, and meanwhile, I can't get those two tunes out of my head.
Are The Special Interests In The Governor's Office Or The Classroom?Is it a lawsuit or politics? Teachers have filed suit against the Governator, claiming he has failed to provide the minimum level of school funding mandated under Proposition 98. It's a writ of mandate seeking the return of some $1.8 billion in funding.
It may have started when Governor Schwarzenegger set out his plan to limit tenure for public school teachers. They're fighting back with an ad campaign blaming the Governor for all types of ills in the schools. Not all teachers agree, however.
Who's making the grade? Are the teachers right or is our fearless leader?
MTBE May Have Lost Its Final BattleMethanex Corporation of Canada lost its bid through NAFTA to challenge California's ban of MTBE. Methanex produces the additive in Canada, and wanted to sell it to gasoline producers who shipped gasoline here. The challenge took the form of a lawsuit, defended by the attorney general.
It took five years of litigation for a three-judge NAFTA panel to decide the case. If we had lost the case, California would have had to lift its ban on the additive. Instead, the NAFTA judges ordered Methanex to pay $4 million to cover legal costs.
Sure that's a tidy sum, but Methanex was seeking reimbursement of a cool $1 billion for its lost revenue. This challenge, however, wasn't the first. MTBE advocates have lost a series of battles, culminating in this (perhaps) death blow.
New and Improved Graphics, Animation, Audio and a Host of Features for MIPTCOn August 9, 2005, you will notice a new look here at MIPTC, just a few days after our two-year anniversary - August 4, 2005 (and some 800+ posts later). There are some significant design changes: animation, sound, new graphics, menus, and a cleaner look. Upon loading the page, you'll notice that the script for the name of blog animates, and you can hear it write, and dip in the inkwell to refresh the ink. If you want to see it again, position your cursor over the inkwell and click.
The Old English Judge is also animated, and he speaks. If you run your cursor across the judge, you'll hear him try to get your attention with an "a-hem" or two, and two spoken phrases.
The drop-down menus across the top of the scroll clean up the left navigation bar and guide you to the many features available on MIPTC. Please, click away and look around. There are several features available, and among them translation into many different languages.
You can also sign up for daily email updates, leave audio comments in your own voice, and visit the MIPTC store (and hopefully walk away with some trinkets of the judge). RSS fees are available for MITPC's headline, summary and full-text feeds, as well as our podcast and vidcast feeds.
You'll see on the left navigation bar rotating photographs of the author (and the author typing on his favorite keyboard), as well as our namesake book and its author, Leonard Rivkin, who was kind enough to give MIPTC the .com extension for the blog.
Across the top of the scroll, MIPTC has also added a drop-down menu for our sponsors, Law.com and LawCatalog.com, and we hope you visit and express your appreciation for them helping bring you MIPTC.
For those of you who have an aversion to graphics and small text, MIPTC is now accessible to those who are blind or differently-abled.
If you're like me and use a Pocket PC or other web-enabled PDA, MIPTC is also set up for you, too. You can read MIPTC on your PDA because we're PDA-friendly.
There are a host of other small changes, too, which you'll find as you look around. Kind of like those old Highlights magazines.
Thanks for being a loyal reader, and I hope you enjoy the new look and new features. As always, if you have some suggestions, please send me an email, leave me a comment of give me a call. Most of the features that are here now were suggested by readers.