Lawyers USA back issues from September 2008:
U.S. Court of Appeals, 8th Circuit rules sex harassment claim can't go forward
Sep 08, 2008 ... An employer with a written anti-harassment policy can establish areasonable defense to a Title VII claim by an employee who waitedtwo and a half years to report sexual harassment, the 8th Circuithas ruled. The plaintiff claimed that a supervisor sexuallyharassed her for more than two ...
Pennsylvania Superior Court rules expunged record can't be considered in determining DUI sentence
Sep 08, 2008 ... A prior conviction expunged under a state law prohibiting accessto such records except under specified circumstances cannot beconsidered by a prosecutor in responding to a first-time DUIoffender's request to participate in a probation program, aPennsylvania appellate court has ruled. ...
Oregon Court of Appeals rules disability policy covers business continuation costs
Sep 08, 2008 ... A doctor is entitled to disability coverage to cover his officeoverhead expenses even though he stopped seeing patients, the OregonCourt of Appeals has ruled. The plaintiff was an urologist with an"overhead expense disability" insurance policy providing up to$120,000 in coverage for ...
Massachusetts Supreme Judicial Court rules dying declaration admissible
Sep 08, 2008 ... A dying declaration is admissible as a common law exception tothe hearsay rule, regardless of whether it is testimonial in nature,Massachusetts' highest court has ruled. The case stemmed from themurder of a woman by her friend's boyfriend. The victim called 911 in a panic after ...
Tennessee Supreme Court rules injured child's family can sue for emotional distress
Sep 08, 2008 ... Family members who saw a young boy bloodied and apparentlylifeless immediately after he was struck by a car can sue forintentional infliction of emotional distress, the Tennessee SupremeCourt has ruled in denying an insurer's motion for summary judgment.The plaintiffs were the mother and ...
California Supreme Court rules doctors can't decline to treat lesbian
Sep 08, 2008; ... Doctors cannot refuse to artificially inseminate a lesbian basedon their religious beliefs - they are not exempt from the statecivil rights act's prohibition on discrimination based on sexualorientation, the California Supreme Court has ruled. The plaintiff,a lesbian who lived with her ...
Wyoming Supreme Court rules defendant can't get new murder trial based on juror bias
Sep 08, 2008; ... A defendant who admitted to killing his victim but asserted adefense based on mental illness is not entitled to a new trialdespite discovering that a juror had concerns about the defense, theWyoming Supreme Court has ruled. The defendant did not deny hadcommitted the murder, but claimed ...
Delaware Supreme Court rules railroad was entitled to defense in wrongful death cases
Sep 08, 2008 ... An insurer for a state contractor must reimburse Conrail for thecost of its defense against two wrongful death claims, even thoughthe contractor failed to acquire the insurance that was supposed tocover the railroad, the Delaware Supreme Court has ruled. Thelawsuits were filed as the ...
2nd Circuit Court rules in False Claims Act cases
Sep 08, 2008 ... Because the United States is the real party in interest in aFalse Claims Act suit, a private party is not entitled to proceedpro se, the 2nd Circuit has ruled. In a second case decided the same day, the court held that if theUnited States chooses not to intervene in a qui tam ...
Oregon Court of Appeals rules evidence from concealed weapon search is inadmissible
Sep 08, 2008 ... A police officer lacked reasonable suspicion to search a suspectfor a concealed weapon after seeing the suspect carrying anidentifiable weapon, the Oregon Court of Appeals has ruled inreversing a trial court. The defendant was riding his bicycle in a rally to promotebicycling as ...
2nd Circuit rules arrest of suspected drug dealer was unconstitutional
Sep 08, 2008; ... Even though police officers were suspicious that a defendant wasdealing narcotics based on their experience and his presence at anapartment building under surveillance, their suspicion did notamount to probable cause for an arrest and subsequent search, the2nd Circuit has ...
Fax recipients can't be certified as class, rules 5th Circuit
Sep 08, 2008; ... A proposed class of unwanted fax recipients failed to meet thepredominance requirement for a class action because the primaryissue at trial would be individual questions of consent, the 5thCircuit has ruled in reversing a class certification. Over a four-year period, a company ...
Worker entitled to benefits reimbursement, rules Iowa Supreme Court
Sep 08, 2008; ... A worker who paid her own insurance premiums to obtain surgeryfor a work-related shoulder injury is entitled to reimbursement forthe total benefits received and not just for her premium payments,the Iowa Supreme Court has ruled. The worker was an emergencymedical technician who ...
Employee can sue for retaliation under FMLA, rules 6th Circuit
Sep 08, 2008; ... An employee who claimed she was retaliated against for takingleave under the Family Medical Leave Act can sue, the 6th Circuithas ruled. The plaintiff was fired shortly after she took FMLAleave for a medical condition. She testified that at the time of herfiring, a supervisor commented ...
Worker with smoking related injury can't get comp, rules Connecticut Supreme Court
Sep 08, 2008; ... An employer is not responsible under state workers' compensationlaw for benefits for a worker with smoking-related lung damageclaiming injuries due to asbestos exposure, the Connecticut SupremeCourt has ruled. The plaintiff was a factory worker who wasdiagnosed with lung damage after ...
Debt collector can rely on 'bona fide error' defense, rules 6th Circuit
Sep 08, 2008; ... Misinforming a debtor that her dispute of a mortgage payment mustbe in writing, even though the Fair Debt Collection Practices Actdoes not require a written dispute, is covered by the "bona fideerror" defense to the Act, the 6th Circuit has ruled. A debtcollector sought to foreclose on ...
UIM claim in tractor death may proceed, rules Nebrasks Supreme Court
Sep 08, 2008; ... An underinsured motorist policy that excluded coverage for atractor owned by the insured is void as against public policy, theNebraska Supreme Court has ruled. The insured was a married manwith a general liability insurance policy providing $100,000 inunderinsured motorist coverage for ...
Attorney's adultery with client's wife costs $1.5M, rules Mississippi Supreme Court
Sep 08, 2008; ... An attorney who flaunted his adulterous affair with his client'swife can held liable for breach of contract, intentional inflictionof emotional distress and alienation of affections, the MississippiSupreme Court has ruled in affirming a $1.5 million verdict. Whilethe client was seeking ...
5th Circuit rules plaintiffs can get attorney fees for mistrial
Sep 08, 2008 ... Plaintiffs who were successful at their second trial allegingrace discrimination under Title VII can recover attorney fees thatinclude the cost of the first trial, which resulted in a mistrial,the 5th Circuit has ruled. A group of plaintiffs sued their employer alleging ...
Connecticut Supreme Court rules employer can challenge workers' comp claim
Sep 08, 2008 ... Collateral estoppel may not bar an employer from challenging awidow's claim for benefits under state workers' compensation law,even after she was awarded benefits under the Longshore and HarborWorkers Compensation Act, the Connecticut Supreme Court has ruled. The worker died from a heart ...
3rd Circuit rules ADA claim not time-barred
Sep 08, 2008 ... The statute of limitations in an Americans with Disabilities Actcase begins to run when alterations to a structure are completed,not when the plaintiff first discovered that the structure wouldviolate the Act, the 3rd Circuit has ruled. The transportation authority responsible for ...
6th Circuit rules police can't rely on landlord's ID of suspect
Sep 08, 2008 ... Police executing an arrest warrant could not rely on an apartmentmanager's verification that a suspect was in one of his building'sapartments to have probable cause to enter, the 6th Circuit hasruled in granting a motion to suppress. The defendant was arecently-released parolee. A ...
3rd Circuit rules 'legal department' letter may violate Fair Debt Act
Sep 08, 2008 ... A collection letter issued by a creditor's "legal department" mayviolate the Fair Debt Collection Practices Act if no attorneysstaffed the department, the 3rd Circuit has ruled in denyingjudgment on the pleadings for the creditor. The creditor was apurchaser of old consumer debt that ...
Arizona Supreme Court rules builder can be sued for breach of implied warranty
Sep 08, 2008 ... Even though a homebuilder was not the seller of a home and had nodirect contractual relationship with the buyers, it can still besued for breach of implied warranty, the Arizona Supreme Court hasruled. A condominium association sued the builder after discoveringconstruction defects in ...
1st Circuit Court eules fired FedEx employee can't recover for emotional distress
Sep 08, 2008 ... A FedEx employee fired after his employer repeatedly stated thathe had shipped drugs before it investigated the matter can sue forlibel but not for intentional infliction of emotional distress, the1st Circuit has ruled in vacating a $4 million award. FedExconducted an abrupt 45-minute ...
6th Circuit rules attaching contract to complaint doesn't violate Fair Debt Act
Sep 08, 2008 ... Lawyers did not violate the Fair Debt Collection Practices Act byattaching a creditor's contract to a complaint on a consumer loan,even though the contract required debtors in default to pay attorneyfees in violation of state law, the 6th Circuit has ruled. Thelawyers filed a complaint ...
9th Circuit rules statutory damages not available for TILA claims
Sep 08, 2008 ... Statutory damages are not available for a lender's violations ofthe Truth in Lending Act's provisions regarding timely andconspicuous notices of loan terms, the 9th Circuit has ruled. Sevenmonths before a consumer declared Chapter 13 bankruptcy he defaultedon a "pay-day" loan for $300 ...
8th Circuit rules retaliation award against debtor can't be discharged
Sep 08, 2008 ... Collateral estoppel bars a Chapter 7 debtor from discharging anemployment retaliation award, the 8th Circuit has ruled. At thetime a debtor filed for bankruptcy, a former employee had alreadyobtained a judgment against him for $360,000 based on a jury'sfinding that the debtor's actions ...
California Court of Appeal upholds one year deadline for arbitration of employment claims
Sep 08, 2008 ... A one-year time limitation on arbitrating claims arising out ofan employment agreement does not violate California's FairEmployment and Housing Act, the California Court of Appeal hasruled. A 59-year-old employee was hired as a maintenance worker.Two years later he signed his employer's ...
9th Circuit can't hear suit against out-of-state eBay seller
Sep 08, 2008; ... The sale of a motor vehicle via eBay didn't provide sufficientminimum contacts to support personal jurisdiction over a seller whodidn't live in the buyer's state, the 9th Circuit has ruled inaffirming a dismissal. The plaintiff, a California resident,purchased a jeep advertised for sale ...
California Court of Appeal rules fee-splitting deal must be disclosed
Sep 08, 2008 ... A fee-splitting agreement between class counsel is notenforceable unless disclosed to the court that approved settlementof the class action, the California Court of Appeal has ruled. Twoattorneys agreed to work as co-counsel for a class of employees in asuit against their employer. The ...
2nd Circuit rules corporate victim of criminal fraud can get fees, costs
Sep 08, 2008 ... A corporate victim of fraud could recover attorney fees andaccounting costs under a federal law authorizing restitution forcrime victims, the 2nd Circuit has ruled in affirming a $12.8million restitution order. The defendants in the case included anofficer of a small company and his ...
U.S. District Court in the D.C. rules opinion of 'mold illness' expert excluded
Sep 08, 2008; ... A toxicologist's expert opinion that a tenant suffered from "moldillness" does not meet the Daubert standard for reliability, a U.S.District Court in the District of Columbia has ruled in excludingthe testimony. The plaintiff rented an apartment that shediscovered was adjacent to a ...
3rd Circuit Court rules arbitration clause is enforceable despite language barrier
Sep 08, 2008 ... An arbitration clause in a written employment agreement isenforceable against an employee who doesn't understand English, the3rd Circuit has ruled. A Spanish-speaking employee signed hisemployer's English-language employment agreement despite notunderstanding it. The agreement included ...
5th Circuit rules lender didn't violate automatic stay in bankruptcy case
Sep 08, 2008 ... A home mortgage lender didn't violate the automatic stay in abankruptcy case when it sought to recoup unpaid escrow obligationsthat accumulated before the debtors filed for Chapter 13 relief, the5th Circuit has ruled. The debtors filed for bankruptcy severalyears after obtaining a loan ...
U.S. District Court in California rules Privacy Act claim can't be based on mental harm alone
Sep 08, 2008 ... An HIV-positive plaintiff who alleged that federal agenciesmisused his medical information can't recover damages under thePrivacy Act because he only claimed that he suffered emotionaldistress from the disclosures, a U.S. District Court in Californiahas ruled in granting summary ...
2nd Circuit throws out indictment due to violation of right to counsel
Sep 08, 2008 ... Indictments against 13 principals of accounting firm KPMG must bethrown out due to the government's violation of their SixthAmendment rights in pressuring their employer to stop paying theirlegal fees, the 2nd Circuit has ruled. When the federalgovernment's investigation began, KPMG had ...
9th Circuit rules spouse of murder victim can't get death benefits
Sep 08, 2008 ... A murdered man's wife can be disqualified from receiving $1million in benefits from his life insurance policy because sheinvoked her Fifth Amendment rights when questioned about herinvolvement in the murder, the 9th Circuit has ruled. The couplehad been married for two years when the ...
Washington Supreme Court rules cell phone customer's class action may proceed
Sep 08, 2008 ... A class action waiver in a cell phone customer's contract isunenforceable under state consumer protection law and is notpreempted by the Federal Communications Act, the Washington SupremeCourt has ruled. A cell phone customer complained to his serviceprovider about a monthly charge ...
How the upcoming generation could change the legal workplace
Sep 08, 2008; ... Over the course of the last decade, Terri Krivosha has noticed awidening generation gap in her firm between baby boomers, olderGeneration Xers and a new crop of young attorneys - the Millennials."Each generation waits for the generation that follows them to getit," said Krivosha, a baby ...
Indiana Supreme Court rules doctor can't get interest on overdue bills
Sep 08, 2008 ... Indiana's workers' compensation law does not provide for theaccrual of interest on a doctor's overdue medical bills, the IndianaSupreme Court has ruled. A worker was injured in a work-relatedmotor vehicle accident and began receiving benefits from hisemployer's insurer. One of ...
Target settles suit over website accessibility
Sep 08, 2008; ... In a case that was closely watched by Internet retailers, theNational Federation of the Blind has reached a preliminarysettlement in its suit against Target alleging that Target.com'slack of accessibility violated the Americans with Disabilities Act. The case started getting national ...
Commentary: Do you suffer from 'seminar syndrome shame'?
Sep 08, 2008; ... What steps does your firm take to ensure the maximization ofcontinuing legal education (CLE) dollars and time spent? Thismonth's column focuses on what we can do to guarantee mileage beyondearning CLE credits for time spent at live programs, Webinars, videoreplays or otherwise. ...
Fierce non-competition
Sep 08, 2008; ... A recent California decision that has rendered non-competeagreements all but unenforceable in the state illustrates anationwide trend. Courts are taking a hard look at contracts thatlimit workers' choices for new employment at a time when the economycontinues to ...
D.C. Circuit upholds Sarbanes-Oxley
Sep 08, 2008 ... The D.C. Circuit has upheld the Sarbanes-Oxley Act, an anti-fraud measure enacted after the wave of corporate scandals thatbrought down companies such as Enron and WorldCom. The courtrejected a challenge to the industry oversight board established bythe law, ruling that it does not ...
D.C. Circuit Court throws out Clean Air rule
Sep 08, 2008 ... The D.C. Circuit has struck down a Bush administration rulebarring states and local governments from requiring increased airpollution monitoring. The 2-1 ruling invalidated a two-year-oldrule. The Clean Air Act requires that permits granted to facilitiesreleasing more than 100 ...
Voluntary deportation program scuttled
Sep 08, 2008; ... The Department of Homeland Security has scrapped a program thatallowed illegal immigrants to turn themselves in for deportationafter only 8 individuals volunteered during the program's trialperiod. The DHS division of Immigration and Customs Enforcementannounced the program, Operation ...
U.S. District Court rukles no delay for Miers testimony
Sep 08, 2008 ... A federal judge has declined to delay an order that top WhiteHouse advisers must comply with congressional subpoenas seekingtestimony about the firings of nine U.S. attorneys. White Houseofficials who say executive privilege prohibits the testimonypromised to appeal the ...
Replace 'no comment' with pithy quotes
Sep 08, 2008; ... Some small law firms hire consultants for all or part of theirmedia relations. But lawyers can generate a lot of favorablepublicity on their own, just by following a few basic mediarelations rules, according to Larry Bodine, a legal marketingconsultant in Chicago ...
Small firms find big payoff from PR
Sep 08, 2008; ... As the full-time communications director for a prominent southFlorida law firm, Stacy Laffere organizes press conferences, issuesmedia advisories and hosts community fundraisers. She also coachesthe firm's attorneys - all five of them - on how to talk withreporters and generate positive ...
9th Circuit rules spouse of murder victim can't get death benefits
Sep 08, 2008; ... A murdered man's wife can be disqualified from receiving $1million in benefits from his life insurance policy because sheinvoked her Fifth Amendment rights when questioned about herinvolvement in the murder, the 9th Circuit has ruled. The couplehad been married for two years when the ...
Maryland Court of Special Appeals: Parent with latex allergy can't sue school
Sep 09, 2008 ... A pre-school is not liable for denying a parent's request that itabandon the use of latex gloves to accommodate her allergy, aMaryland appellate court has ruled in reversing a trial court. Themother, who had been diagnosed with a latex allergy, asked theschool to stop using latex gloves ...
Patient who fell off X-ray table can't sue hospital, rules Mississippi Court of Appeals
Sep 17, 2008; ... A claim arising from a patient's fall from an X-ray table isbarred by the state's shorter statute of limitations for medicalmalpractice and not the time limit for an ordinary negligence claim,the Mississippi Court of Appeals has ruled. The plaintiff was lying on her back on an ...
Iowa Supreme Court rules city's traffic surveillance ordinance isn't preempted by state law
Sep 22, 2008; ... State traffic laws do not preempt a city ordinance permittingcamera surveillance and civil fines against drivers capturedviolating traffic laws, the Iowa Supreme Court has ruled. A driverwas cited for speeding and fined for violating a city's traffic lawunder its "Automatic Traffic ...
Missouri Court of Appeals rules smoker's family can sue for wrongful death
Sep 22, 2008; ... A wrongful death claim by a deceased smoker's family is notprecluded by the smoker's previously unsuccessful personal injuryclaims, the Missouri Court of Appeals has ruled, despite remanding a$20 million jury award for a new trial. A long-time smoker who wasdiagnosed with lung cancer ...
1st Circuit rules employer can't be held liable for sexual harassment
Sep 22, 2008; ... A co-worker's knowledge of an employee's statements about allegedsexual harassment cannot be imputed to the employer under Title VII,the 1st Circuit has ruled. The plaintiff was a female factoryworker and entry-level supervisor. Soon after her employer notifiedeveryone it might go ...
Michigan Court of Appeals rules parents can't waive child's right to sue
Sep 22, 2008; ... Public policy prohibits the presumptive enforceability ofliability waivers signed by parents on behalf of their minorchildren, the Michigan Court of Appeals has ruled. The plaintiffwas the mother of a child injured when the boy jumped off a slide ata children's entertainment facility ...
Missouri Supreme Court rules hormone drug makers may face suit in Missouri court
Sep 22, 2008; ... Pharmaceutical companies can be required to defend liabilityclaims in a Missouri state court, even though none of the remainingparties in the action are residents of that state, the MissouriSupreme Court has ruled in affirming the denial of a motion todismiss. A group of 186 plaintiffs, ...
North Dakota Supreme Court rules warrantless search not justified by community caretaker doctrine
Sep 22, 2008; ... The "community caretaking" function of police officers did notgive them the right to enter a home without a warrant, the NorthDakota Supreme Court has ruled. The defendant drove his car into a ditch and hit a tree whileintoxicated. When police arrived at the scene, he had already ...
North Carolina Court of Appeals rules loan agreement based on assignment of p.i. claim unenforceable
Sep 22, 2008; ... A loan agreement based on the assignment of a personal injuryclaim is unenforceable, the North Carolina Court of Appeals hasruled in reversing summary judgment for the lender. After getting in a car accident, the victim filed a personalinjury claim against the other driver ....
U.S. District Court in New Jersey rules attorney's records subject to search
Sep 22, 2008; ... An attorney's client files can be seized and reviewed bygovernment officials investigating organized crime figures eventhough the files included documents regarding some clients whoweren't targets of the investigation, a U.S. District Court in NewJersey has ruled. Federal agents ...
9th Circuit rules spousal support payments are taxable income
Sep 22, 2008; ... A husband's "spousal support" payments made pursuant to a divorceagreement are taxable "alimony" under the Internal Revenue Codebecause state law provides they terminate upon either spouse'sdeath, the 9th Circuit has ruled. A California couple divorced in1996 and their divorce agreement ...
Oregon Supreme Court rules harassment statute violates state constitution
Sep 22, 2008; ... A state law prohibiting abusive speech likely to provoke aviolent response violates free speech and expression rights grantedunder the Oregon Constitution, the Oregon Supreme Court has ruled inreversing a defendant's conviction. The defendant used an audiospeaker system in his truck to ...
9th Circuit rules prohibiting gang insignias doesn't violate civil rights
Sep 22, 2008 ... A city cannot be held liable under [section]1983 for violatingthe civil rights of gang members who were removed from a festivalheld at a city park under a policy prohibiting wearing gang- relatedinsignias, the 9th Circuit has ruled in granting summary judgmentfor the city. A local ...
Tennessee Supreme Court rules search of meth lab constitutional
Sep 22, 2008 ... The discovery of an actively operating methamphetamine laboratorycreated exigent circumstances justifying a warrantless search of amotel room, the Tennessee Supreme Court has ruled. A motel occupantcalled police to report a strange odor coming from an adjoining roomthat was causing her ...