May It Please The Court |
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Quote of the Day - Joel: "That's the movies, Ed. Try reality."
Ed: "No thanks."
MIPTC Goes To The MoviesHold on to your computer chairs. MIPTC is going to make a few (more) changes.On Fridays, you'll be able to hear Reel Reviews from the MWGblog. My friend, Michael Geoghegan, publishes his movie reviews, and they've taken off like wildfire. Actually, he podcasts his reviews, which is why you'll be able to listen. Never fear, you don't need an iPod. You don't need to have a Mac. All you need you already have (presumably): Speakers? Check. Windows Media Player (or equivalent)? Check. That's it. Simple. Rest assured that Michael is not going to just review any movie. He's going to review movies for MIPTC, and that means ... surprise ... lawyer movies, and movies about the law. But, so that you and I don't get bored, we're going to take Matthew Homan's advice, and expand your horizons. Sure, we're planning on Atticus Finch and some other famous (ahem) lawyers, but also movies above and beyond the law. Movies you "need" to see, and hopefully broaden yours and my horizons. So, grab your popcorn, sit back and relax, on Friday, we're going to the movies! 
Supreme Court Turns CERCLA Litigation On Its HeadWell, rock my world.The United States Supreme Court today issued its decision in Cooper Industries, Inc. v. Aviall Services, Inc. The Court held that private parties who voluntarily incur response costs to clean up hazardous substances are not entitled to seek contribution from other potentially responsible parties under section 113(f)(1) of CERCLA. Virtually all courts had previously held that such parties did have the right to bring contribution claims under this provision. Not anymore, unfortunately. The Court left unresolved, however, the important question of whether parties could recover their costs from other potentially responsible parties under CERCLA section 107. Since it's one of the only provisions left, the decision will certainly generate more litigation under section 107. Now the Polanco Act will become tremendously more useful in California, since PRPs can recover not only their costs, but also their attorneys fees.
The UCL Practitioner Gets Cited In Supreme Court BriefThe UCL Practitioner just got cited in a petition for review here.A number of bloggers are excited about the development, and we've exchanged emails about it. Here are their thoughts: According to Denise Howell, "The petitioners make the point that the issue is receiving widespread attention and analysis (i.e., that it's important, controversial, and potentially subject to conflicting interpretation). That's a dandy point to make in support of a petition for review. I suppose bloggers are doing this kind of favor (aggregating potentially relevant materials) for brief drafters all the time, if only they are savvy enough to recognize it." Cites to blogs, though, are not new. The SoCalLawBlog offered up its congratulations to the UCL Practitioner and pointed out the 2003 Daily Journal article discussing the prior Ninth Circuit brief mentioning blogs and the California recall effort. We've all read that blogs have stepped into the mainstream, and that in limited instances, they've stepped into the legal books. Now, they're showing up in appellate briefs. What's next? Will lawyers have to check blogs before making arguments in court?
The Court Says Parents Are Running AmuckIt's got to stop. At least that's what this Mom tried to do. She tried to stop her daughter's boyfriend from becoming a career criminal, and when she found out that the boyfriend had been involved with a purse-snatching, she turned him in. And testified against him.The kicker here is that Mom listened in on her daughter's conversation with the boyfriend on an extension phone in the house. Mom used the information she gained from that conversation in her testimony that convicted the boyfriend. But the state of Washington's Supreme Court threw out his conviction. OK. Disclaimers here. I'm a parent. I disciplined my kids. I would have done the same thing, and a couple of times, I came pretty close. So, I have some sympathy for Mrs. Dixon, the Mom in our story. The Court ruled that: "[b]ased on the subjective intentions and reasonable expectations of [the boyfriend] and [the daughter], their conversation was a private one." And Mrs. Dixon violated Washington's privacy act when she listened in. Privacy advocates favor the decision. According to the LA Times, "I don't think the state should be in the position of encouraging parents to act surreptitiously and eavesdrop on their children," agreed attorney Douglas Klunder, who filed [an amicus curiae] brief supporting [the boyfriend] on behalf of the American Civil Liberties Union. " I disagree with both the ACLU and the Court. The federal wiretapping act has been interpreted to except communications where a parent acts to protect the welfare of the child. Unfortunately, the Washington Supreme Court declined to pick up that interpretation. Parents are expected to act to protect their children. They need the government's support to do that. Without it, what are we left with? Whining about the lack of parental discipline?
Adware Companies Call Up The Reinforcements - War Goes To CourtAdware. It's enough to drive you crazy. Those annoying pop-up ads and tracking software that can ruin your computer. So much so that Congress is expected to pass laws to make it illegal to install without giving you the chance to avoid installing it, and also giving you the instructions on how to uninstall it.That's if your representative can figure out how to spell "internet" in the statute. While you're waiting for Congress, you can protect yourself with Ad-aware and remove the garbage before it settles in for a long winter's nap. In fact, adware has gotten so cutthroat that adware companies are now replacing each other's ads with their own. Now, the gutter rats are duking it out in court, claiming that because one ad company deleted the other ad company's adware from yours and my computers, the deleted ad company's income has dropped. My heart's bleeding.
M'm! M'm! GoodThe Federal Environmental Protection Agency has done it again, folks. The EPA foiled an attempt by the Campbell Soup Company to make its employees happy while they work. Apparently, for five whole days, Campbell’s nitrogen oxide emission levels at its Stockton, California tomato-processing plant violated provisions of the Clean Air Act. Nitrogen oxide is really a misnomer in that nitrogen has six oxides, including nitrous oxide (N2O), or more commonly known as laughing gas. The EPA, however, wasn’t laughing, and instead filed a complaint requesting monetary sanctions up to $200,000 be assessed against the famous soup-maker. It seems that nitrous oxide, like the other nitrogen oxides, is a greenhouse gas that absorbs and traps radiant energy. You know . . . , the global warming thing. Well, at least now I know why the people in Stockton were always so pleasant as I passed through on my way to Sacramento.How To Turn One Page Into A LawsuitYou live in New Yarwk, and you hire a real estate broker to find a "suitable" apartment. Why not - you're too busy anyway.You sign the broker's listing agreement. You probably don't pay close attention to what it says. The broker finds the perfect place, and you sign the lease with the landlord. For $11,000 per month. You even go so far that you negotiate a reduction in the brokerage fee. Side note here: we've got a sophisticated tenant on our hands. But not so sophisticated that the prospective tenant hired a lawyer to review things. OK, now back to the story. Then, just as you get ready to move in, the landlord decides to renovate. You can't move in. Well, for $11,000 a month, it's not acceptable to move in - that's probably a more accurate way to put it. But what happens to that lease you signed? If you're the prospective tenant now dispossessed, you refuse to pay the broker's fee. Of course. Likewise, of course, the broker sues for his fee. Who wins? Drum roll, please. The broker. What, you say? The tenant didn't get the benefit of the bargain? The Appellate Division, First Department didn't agree, and held for the broker in the case entitled: Scour v. Dwelling Quest Corp. It's a New Yarwk case discussed by New York Attorney Peter Herman in the National Law Journal (subscription required). The court reasoned that the broker had done what the prospective tenant had asked him to do: find an apartment and get a lease signed. It thought that it wasn't the broker's fault that the landlord later decided to renovate, making the apartment uninhabitable. The case is still subject to an appeal, and sounds to me like it will be. I'm guessing that the apartment was not "suitable." Of course, we can expect one more lawsuit out of this: the tenant will sue the landlord for the broker's fee she had to pay. Oh yes. That listing agreement that the prospective tenant didn't send to her attorney? It was a one-pager.
You Want It? You Got It. Now, Pay For It.Over the years, the general rule has been that the party producing discovery pays to produce it, with some flexibility depending on an array of factors. There have been some recent rulings to the contrary when it comes to electronic discovery.In fact, a recent California case, Toshiba America Electrical Components v. Sup.Ct. (Lexar Media, Inc.) pretty much drove that nail into the coffin of who pays. Toshiba produced 20,000 pages of documents (and apparently paid for the production), but Lexar wanted more. It wanted a review of some 800 backup tapes, to the tune of perhaps $1.9 million. Lexar Media said Toshiba had to pay. Toshiba obviously disagreed, and appealed the trial court's decision that sided with Lexar. The fact that the court of appeals took this case on a writ is especially notable. Discovery issues almost always result in a "thanks, but no thanks" postcard from the court of appeal rejecting the writ. Section 2031(g) of the California Code of Civil Procedure allows the Court to shift the cost of producing discovery despite the general rule otherwise. The appeals court sent the case back to the trial court with this little warning: "[it] is clear that the demanding party is expected to pay [...] reasonable expense for a necessary translation." The court also noted that this state rule is based on Federal Rule of Civil Procedure, Rule 34(a), which likewise can result in cost-shifting for expensive discovery. The moral of the story? Be careful what you ask for. You just might get it.
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