Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

There were developments in two significant political speech cases this week.  First, on Wednesday, The United States Supreme Court heard oral argument in FEC v. Wisconsin Right to Life (and companion case McCain v. WRTL).  The WTRL cases challenge the constitutionality of McCain-Feingold's blackout period for issue ads mentioning the name of a candidate.  The general consensus among Court watchers is that the Act will be found unconstitutional as applied to WRTL's ads.  There is far less consensus regarding the manner in which the Court will reach that result.  Rick Hasen at Election Law has been following these cases closely (see here and here).  Linda Greenhouse and David Savage cover the argument for the mainstream side of the media.

The other big political speech decision this week is the Washington Supreme Court's unanimous decision in San Juan County v. No New Gas Tax.  In NNGT, a talk radio host's on-air advocacy of a ballot measure was challenged as a campaign contribution subject to expenditure limits.  The case turned on the interpretation of the so-called "media exception" to Washington's campaign finance laws.  Finding that the talk show host was covered by the exception, the Court did not reach constitutional issues.  More interesting than the court's interpretation of Washington law is the language of the concurrence.  Although both joined the majority, Justices Johnson and Sanders went to the trouble to tell the governmental actors what they really thought about the action:

Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative. The disregard for core freedoms of speech and association in this case, and resulting interference with these constitutional rights, is described in the majority. The Municipalities augmented their prosecuting attorneys and legal staff with an interested private law firm to engage in this prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative, which is also a constitutional right in Washington.

Although claims of suppression and censorship have become somewhat routine, very few survive even slight scrutiny.  NNGT is the rare case in which a court has found that government actors have, in fact, actively worked to silence citizens.  They ought to be ashamed.  The Seattle Times's blog has more.

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What's the most expensive commodity on Earth?  Diamonds?  Gold?  Plutonium?  Moon rocks?  Wrong, wrong, wrong and wrong.  Ounce for ounce, the most expensive commodity appears to be wool.  Specifically, that comprising Roy Pearson's pants. 

Mr. Pearson, a lawyer and administrative law judge for the District of Columbia, has sued his dry cleaner for losing his pants and thereby failing to meet its twin pledges of "Same Day Service" and "Satisfaction Guaranteed".  The price of Mr. Pearson's drawers?  $65,462,500.00:

[Pearson] says he deserves millions for the damages he suffered by not getting his pants back, for his litigation costs, for "mental suffering, inconvenience and discomfort," for the value of the time he has spent on the lawsuit, for leasing a car every weekend for 10 years and for a replacement suit, according to court papers.

*   *   *

How does he get to $65 million? The District's consumer protection law provides for damages of $1,500 per violation per day. Pearson started multiplying: 12 violations over 1,200 days, times three defendants. A pant leg here, a pant leg there, and soon, you're talking $65 million.

Worst(ed) of all, it appears the pants have been located.  They are currently housed in the office closet of the dry cleaner's lawyer.  Mr. Pearson could have them back if only he could bring himself to accept the cleaner's current settlement offer.  The trifling offer Pearson won't accept?  $12,000.00.   This, folks, is why we have lawyer jokes.  (via Howard).

Update:  ABC News has now picked up the story (with a headline that, while perhaps obvious, calls to mind our own humble effort).  The story is also linked on Drudge.  The sixty-five million dollar pants have now gone viral. 

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I'm something of a physics buff.  Terms like m-theory, p-brane, and loop quantum gravity all mean something to me.  So, naturally I was interested to learn that the United States Supreme Court has adopted a more fluid view of causality than that supported by known physics. 

In Abdul-Kabir v. Quarterman, No. 05-11284, the Court decided that, in a capital case, the jury must be instructed it may consider any mitigating evidence offered by the defendant in deciding whether to impose the death penalty.  Writing for the Court, Justice Stevens's lengthy opinion marshaled numerous precedents in support of the view that such an instruction was compelled by "clearly established law" at the time of the defendants' trial. 

Although the majority opinion is interesting, the Chief Justice's dissent is more so.  The dissent is exceptional in its tone, which all but openly mocks the majority.  The Chief colorfully disclaims any ability to distill "clearly established law" from the "dog's breakfast of divided, conflicting and ever-changing analysis" relied on by the majority, and snickers that "it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what th[e] 'clearly established' law was."  As an exchange of views, this is frank, bordering on direct.

Here's where the strange physics comes in.  Among the cases on which the majority relies is Franklin v. Lynaugh, 487 U.S. 164 (1988), a plurality decision in which Justice Stevens was in dissent.  Oddly enough, Stevens cites his own dissent as evidence of "clearly established law" that the lower courts should have followed.  The Chief was in no mood:

[T]oday the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented ?clearly established? federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but [as of today]. Encouraged by the majority?'s determination that the future can change the past, I respectfully dissent.

See, according to the majority, the Franklin dissent isn't a dissent at all.  It is, instead, clearly established law -- and, presumably, has always been.  How did that happen?  Because yesterday's opinion says it is so.  Taa-daa. Reverse causality.  A tachyon-based jurisprudence.  The last line is one of the most well-placed shots I've ever seen taken in a judicial opinion.  If I were on the Court, I'd like to think I'd have written it, too.  Golf clap for the Chief.  (via Volokh)

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David Bernstein reports that former Penn State student Josh Stullman has filed a section 1983 action naming the University, its President, the Director of the School of Visual Arts and a visual arts professor in connection with an alleged deprivation of Stullman's First Amendment rights. 

In a nutshell, Stullman was to exhibit artwork on campus in an exhibition entitled "Portraits of Terror," which dealt with terrorism themes from a pro-Israeli perspective.  Before the scheduled exhibition, Stullman was informed he could not exhibit the artwork because, in the view of the School of Visual Arts, the work "did not promote the tenets of cultural diversity and assuring opportunities for democratic dialogue."  During a conference on the issue, a visual arts professor allegedly characterized Stullman and his work as overtly racist.  The complaint also alleges that the same professor admitted to having torn down on-campus flyers advertising the exhibition.

Perhaps the most interesting question that may be presented asks whether the state, acting through its university officials, has a sufficiently compelling governmental interest in "promot[ing] the tenets of cultural diversity" to justify content discrimination that the First Amendment otherwise forbids.  In order to answer that question, someone, I presume, will explain the objective criteria that are applied to determine whether any given work of art sufficiently "promote[s] the tenets of cultural diversity" to be seen on campus.  The PLB, of course, expresses no opinion on what those criteria might be . . .

More background here.

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A month or so ago, Kendra discussed the class action bar's increasing interest in options backdating.  I suggested, a bit facetiously, that the next significant backdating case may arise in connection with Apple's backdating of options granted Steve Jobs.  So much for facetious.  Bloomberg reports today that the SEC is likely to sue Apple's former General Counsel, Nancy Heinan, in connection with the backdated options:

The securities regulator will likely sue Heinen this week for allegedly backdating an Oct. 19, 2001, stock option grant to Jobs for 7.5 million shares, and an earlier grant made to Jobs' executive team members, including Heinen, on Jan. 17, 2001, her attorney Miles Ehrlich said.

The Justice Department also is investigating stock option awards at Apple, maker of the Macintosh computer and iPod music player, though ``there would be no basis for the filing of criminal charges'' against Heinen, said another defense attorney, Cristina Arguedas, of Arguedas, Cassman & Headley in Berkeley, California.

Apple, based in Cupertino, California, would be the largest company with current or former executives sued by the SEC over claims they helped fake stock-option grant dates. The company said in December that 6,428 option grants from 1997 to 2002 were backdated, including one to Jobs marked as approved at a fictional board meeting.

Heinen's attorneys (naturally) deny any wrongdoing.

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The Pennsylvania Bulletin reveals that Pennsylvania's Judicial Conduct Board has proposed the abolition of Rule 31 of its Rules of Procedure.  Rule 31 pertains to disposition of judicial misconduct complaints.  Under existing Rule 31, following receipt of a judge's written response, the Board has 180 days to dispose of a judicial misconduct complaint.  Under the rule, the Board can dispose of a complaint by (1) dismissing for want of probable cause that the alleged misconduct occurred; (2) dismissing based on a finding that, even if it did occur, the alleged conduct does not require filing of formal charges; or (3) authorizing the filing of formal charges with the Court of Judicial Discipline. 

The Rule provides two fairly broad exceptions to the 180-day disposition rule. First, the board may continue a full investigation beyond the 180-day period based on a "good faith belief that further investigation is necessary."  Second, the Board may defer disposition past the 180-day mark "upon discovery or receipt of additional, corrollary, or cognate allegations which may necessitate investigation." 

By all appearances, the proposed change would enable the Board to delay or defer disposition of a complaint for any period of time it chooses.  Call me silly but it seems to me that, in all but the most extraordinary cases, 180 days -- six months -- should be ample time for the Board to decide whether a complaint warrants reference for filing of formal charges.  Perhaps I'm wrong.  In any event, it would have been thoughtful of the Board to have supplied a statement of its reasons for proposing the elimination of Rule 31.

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On Tuesday, the Pennsylvania Supreme Court decided Harkness v. Unemployment Compensation Board of Review, No. 112 MAP 2005.  Based on the caption, one could be forgiven for dismissing the case as singularly uninteresting.  It is, however, worthy of some note.  The matter required the Court to consider whether a non-lawyer's appearance before a state administrative tribunal, in this case an unemployment compensation hearing before a referee, constituted the unlicensed practice of law. 

The case fractured the temporarily-shrunken Court.  Two Justices (Cappy and Bear) joined the opinion of the court; two Justices (Eakin and Castille) were in dissent.  The case turned on the vote of Justice Saylor, who joined neither opinion, concurring in the result only.  Former Justices Nigro and Newman did not participate in decision of the matter.

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Christy Burke at Law-com has an interesting article concerning electronic discovery, computer forensics and what being ahead of the curve can mean for law firms both large and small.  Burke spoke with Tom O'Connor of the Washington, D.C.-based nonprofit Legal Electronic Document Institute, regarding the risk of ignoring e-discovery:

"Lawyers cannot afford to ignore the importance of electronic discovery and computer forensics anymore," he warns. "Those who do are bordering on malpractice, especially for cases which involve any digital data component."

Although a small handful of attorneys have accepted the challenge and have chosen to educate themselves on the technology, Ball says the number of such e-discovery lawyers is tiny.

"We can hold our conventions in a phone booth, so we can make only the tiniest dent in solving the problem," he says.

He adds, however, that this is changing -- that he's seeing more lawyers embrace their responsibility to master e-discovery obligations, and to understand the forensics piece, too.

As I've alluded to previously, electronic document creation and retention presents considerable challenges to the contemporary litigator.  Cases that, in the past, may have involved hundreds of paper documents now may involve thousands of electronic documents.  And thousands of paper documents may easily become tens or hundreds of thousands of electronic documents.  In short, the ease with which documents can now be created, shared and stored has rendered the discovery process correspondingly more difficult.  That, however, is not an argument against the use of electronic documents but an argument in favor of retaining litigation counsel with the experience and resources to handle the electronic discovery process.

Burke concludes with some advice to practitioners:

Computer forensics is still a young science that's being shaped by the electronic-discovery rules as they continue to evolve and change. This expanding industry simultaneously presents huge opportunities and great responsibility. Lawyers who choose to face the importance of e-discovery and computer forensics sooner rather than later will have a distinct advantage over those who prefer to ignore them or to underestimate their impact.

As you might suspect, I agree without reservation.  Read the whole article; it is worth the time.

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Pennsylvania law is quite clear that, when confronted with a petition to compel arbitration, the court must engage in a two-step inquiry to decide the threshold issue of "substantive arbitrability."  The court must first determine whether there is a valid arbitration agreement.  If such an agreement exists, the court must next determine whether the dispute before it is encompassed by the agreement.   A plaintiff may assert the absence or invalidity of an underlying agreement as a defense against arbitration. 

In Carlson v. Janney Montgomery Scott LLC, 80 D.&C. 4th 230 (Phila. County April 5, 2007), the plaintiff was required, as a matter of securities regulation, to agree to arbitration of disputes as a condition of his employment as a securities broker.  In support of its motion to compel arbitration, defendant produced an electronically-filed Form U4 registering plaintiff with the NASD as a securities broker.  The electronic filing was made on plaintiff's behalf and, in keeping with SEC regulations, contained the mandatory arbitration agreement.  The electronically-filed U4 did not, however, bear plaintiff's signature.  The court refused to order arbitration:

This motion judge is unable to grant defendant's request [for arbitration] absent proof that plaintiff did in fact agree to arbitrate disputes occurring during his employment or that he signed Form U4, albeit a prerequisite for employment as a financial consultant or registered representative.  Without proof of the original or even a copy of a signed Form U4, this motion judge cannot find that a valid arbitration agreement existed between the parties.

This case illustrates that, despite society's ever-increasing reliance on electronic communications, signed original documents remain of paramount importance when it comes to the enforcement of legal obligations between parties.  For persons entering into agreements -- especially agreements that, like arbitration agreements, affect otherwise existing legal rights -- the bottom line is that signatures still matter.  Get them.  Save them.  Rest easy.

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Dividing 5-4, the Supreme Court today upheld the federal partial-birth abortion statute in the consolidated cases Gonzales v. Carhart, 05-380, and Gonzales v. Planned Parenthood, 05-1382.  (Decision here (pdf))  In reversing the 8th and 9th Circuits, both of which had affirmed district court injunctions against enforcement, the Court held that the statute was not unconstitutional as written:

The Act is not invalid on its face where there is uncertainty over whether the barred procedure is ever necessary to preserve a woman's health, given the availability of other abortion procedures that are considered to be safe alternatives.

Although the Court rejected plaintiffs' facial challenge on the merits, the Court explained that the facial challenges "should not have been entertained in the first instance."  The Court held that "the proper manner to protect the health of the woman [is to show] in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used."  Because the Court concluded that plaintiffs "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," it did not address the somewhat confused standard the Court has previously applied to facial challenges involving abortion statutes.  Compare Ohio v. Akron Center for Reproductive Rights (plaintiff must prove there is "no set of circumstances under which the act would be valid") with Planned Parenthood v. Casey (plaintiff must show act is invalid in a "large fraction of" cases).

While the Court leaves the door open for as-applied challenges, its recognition that other "safe alternatives" are available strongly suggests that such challenges based on the health of the woman would fail in all but the most compelling of circumstances.  And, as the Court indicated, the statute already contains an exception for procedures necessary to preserve the life of the woman.  Thus, the Court emphasized, no challenge is necessary where where the life, as opposed to the health, of the woman is at stake.

Kennedy was joined in the majority by Chief Justice Roberts and Justices Scalia, Alito and Thomas.  Justice Ginsburg wrote for the four dissenters, characterizing today's ruling as an "alarming" decision that "refuses to take Casey and Stenberg seriously." 

Parting Shot:  Justice Ginsburg blames today's result on the Court's revised composition and, in doing so, uses language that recalls recent confirmation hearings:  "Though today's opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of 'the rule of law' and the 'principles of stare decisis.'" (emphasis added).  I am curious as to whether Justices have, in the past, made overt reference to the composition of the Court as an explanation for a particular result.  To me, the language is quite jarring but, for all I know, it may be de rigour. 

As ever, check in with SCOTUSBlog for round ups of what is sure to be a day of rough-and-tumble reaction throughout the blogosphere.  The Conspiracy (here, here and here), Above the Law and lawhawk are already on the case.

Update(s):  Brendan Loy is amused by the Associated Press's apparent confusion over the SCOTUS's role in our constitutional government (via Insty).  Rick Hasen at Election Law wonders what impact today's decision might have on the campaign finance issues presented in Wiconsin Right to Life (background here).

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Allstate Insurance has lost a case in which it denied coverage to a Louisiana man who lost his home to Hurricane Katrina. The dispute centered around whether the home was destroyed by wind or storm surge. Storm surge damage was not covered by insurance, which resulted in a battle of the experts as to the cause of the home's destruction:

Jim Neva, a surveyor and engineer who inspected the house for Allstate, initially told Robert Weiss, who is listed as the policy holder, and his wife, Merryl, that wind may have destroyed the home before the surge of water washed away its remnants.

He later backed off that conclusion, however, and deferred to engineering consultant Craig Rogers of Rimkus Consulting Group. Rogers, who wrote the final report on the home for Allstate, convinced Neva that storm surge demolished the house.

Rogers said he didn't personally inspect the property until after he wrote the report. He said he based his conclusions in part on evidence gathered by other Rimkus engineers - a practice he described as common. But Trahant questioned the move.

"Why did Allstate elect to rely on the one engineer who never set foot on the property until long after he stamped his report?" Trahant said in closing arguments.

The $2.8 million verdict included a $1.5 million penalty for delay in payment of the claim.  The jury's decision, including the hefty penalty, will no doubt be closely analyzed by the insurance industry and plaintiff's bar in light of the numerous similar disputes pending in Lousiana and Mississippi.

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In an event almost as rare as a total solar eclipse, the Supreme Court today affirmed a decision of the Ninth Circuit Court of Appeal.  The Ninth has had a miserable season.  Coming into today's match, the court was 0-9 on First Street, including six unanimous reversals.  Unfortunately, the administrative rate dispute at issue in Global Crossing Telecommunications, Inc. v. Metrophones Tele-Communications, Inc., No. 05-705 is far and away too boring to discuss here.  Regardless, the Ninth will no doubt take what it can get in the way of affirmances. 

Howard has posted the Global Crossing decision as well as the other two equally boring decisions issued this morning (Watters v. Wachovia Bank, N.A., No. 05-1342 and Zuni Public School Dist. v. Department of Education, No. 05-1508).  If you can't take my word for the ho-hum nature of today's results, SCOTUSBlog briefly reports on all three cases. 

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A California wage statute requires employers to give employees an extra hour's pay on any day that the employee misses a required meal or break period.  In other words, miss a fifteen-minute break, get an hour's pay.   In Murphy v. Kenneth Cole Productions Inc., the court was asked whether the extra hour's pay was intended as compensation for employees or as a penalty for employers.  In the first case, a three-year statute of limitations would apply to claims for the extra hour's pay.  In the latter, claims would be subject to the stricter one-year statute. 

Because the extra hour of pay is awarded with no reference to the actual amount of meal/break time an employee lost, one might think the award was intended to penalize employers for failure to comply with the statutory meal/break times.  One would be wrong.  The statute, according to the California Supreme Court, is all about compensating employees.  Claims for the extra hour's pay therefore survive for three years.  California employers are not amused:

Robert Tollen, who represented the defendant, Kenneth Cole Productions Inc., said the ruling could "easily" cost companies millions of dollars. Especially, he said, because of an ever-increasing number of wage-and-hour class actions in California.

"It's going to cost a lot of money," he said, "in a situation where there's not a significant degree of wrongdoing."

Although the case is thousands of miles from Pennsylvania, the moral of the story hits home:  businesses need to be mindful of compliance issues in all aspects of their operations.  As Kenneth Cole demonstrates, the cost of non-compliance with even the most trivial of regulations can be substantial.

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Merisant Co. v. McNeil Nutritionals, currently being tried in the E.D. Pa, may be the sweetest courtroom battle ever waged.  Merisant, the maker of Nutrisweet and Equal has sued McNeil, the manufacturer of Splenda.  The issue in the case is straightforward.  McNeil advertises Splenda as being "Made from Sugar So it Tastes Like Sugar."  Merisant claims that McNeil's advertising is fraudulent because Splenda contains no sugar at all.  McNeil counters that its claim "Made from Sugar" does not mean, and cannot be reasonably interpreted as meaning, "Made of Sugar."  Law.com reports on the trial so far:

In his opening statement Tuesday, Merisant's lead lawyer, Gregg F. LoCascio of Kirkland & Ellis in Washington, D.C., told the jury that internal corporate memos from McNeil will prove that the company knew that its advertising and packaging was misleading consumers into thinking that Splenda was safer and healthier than other artificial sweeteners.

"McNeil documents show that they knew consumers were confused and they didn't do anything to stop it," LoCascio said.

LoCascio said McNeil initially marketed Splenda with the tagline, "Made from sugar so it tastes like sugar. But it's not sugar."

But after disappointing sales, the company dropped the last sentence and sales skyrocketed, LoCascio said.

LoCascio promised the jury that, through the evidence he will present, "you will have the benefit of going behind the scenes" at McNeil by seeing internal e-mails and documents from company meetings.

That evidence, he said, will show that McNeil was not only aware of the consumer confusion it was causing, but that it "boasted" about it.

At stake is in excess of $200 million in damages, principally consisting of profits Merisant attributes to McNeil's allegedly fraudulent marketing strategy.  McNeil, of course, argues that the "Made From Sugar So It Tastes Like Sugar" campaign is not fraudulent and, in any event, Merisant should have sued long ago.  A similar action, brought by the Sugar Association, is pending in Los Angeles.

Rebecca Tushnet has a comprehaensive preview that details the pre-trial process.

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Today, the SCOTUS hears argument in Long Island Care at Home v. Coke, No. 06-593.  Although the legal issue is one of administrative law, Coke implicates the Department of Labor's Fair Labor Standards Act exemption for in-home health care services.  Broadly speaking, the exemption at issue, which was struck down by the Second Circuit, excludes in-home health care services from various FLSA requirements, including minimum wage and overtime.  As crafted, the exemption was applicable not only to direct employment relationships between the cared-for and the caregiver, but also where the caregiver was employed by a third party company, such as Long Island Care at Home, the defendant in this action. 

SCOTUSBlog's preview is here.  The Workplace Prof has more.

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In Cole, et al. v. General Motors Corp., No. 05-31070 (pdf), a strong panel of the Fifth Circuit (King, Garza and Owen) has vacated class certification in a nationwide warranty action against GM.  In 1998 and 1999, GM marketed its Cadillac Seville with side airbags.  In 2000, GM learned that the air bag sensors were defective and could cause deployment of the airbag in the absence of a collision.  GM issued a voluntary recall notice and, despite some hitches with production of replacements, GM completed the recall in 2002.  Naturally, litigation ensued.

Bottom Line:  Regardless of whether it establishes a per se rule (and it comes close), Cole is a very powerful decision standing between the class action bar and nationwide certification of warranty claims.

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When they seek attorneys fees, of course.  Under the so-called American Rule, parties to a litigation bear their own counsel fees.  Accordingly, a litigant may recover fees from an adversary only where allowed by contract or statute.  As a general rule, fee-shifting statutes confer the right to recover fees upon "prevailing parties."  Seems simple enough, right?  Well, not for the 11th Circuit.  Its decision (pdf) in Sole v. Wyner, (No. 06-531) is on the SCOTUS's docket for argument next week (briefs).  I can't improve on LawMemo's summary of the salient facts:

Plaintiffs Wyner and Simon sued in federal district court and obtained a preliminary injunction against state park officials barring interference with plaintiffs’ enactment of a nude peace symbol at a public beach. Later in the case, plaintiffs lost their claims. The district court awarded to the plaintiffs their attorney fees related to the initial preliminary injunction. The 11th Circuit held that the plaintiffs were "prevailing parties" as to the preliminary injunction and were entitled to attorney fees.

The question for the SCOTUS is the degree to which a party must succeed on the merits to be a "prevailing party."  The 11th Circuit thinks a party need prevail only a wee bit.  The 4th (pdf) has held in substance that the word "prevailing" should be considered to mean, well, prevailing.  As in winning.  On the merits.  At the end. 

To be fair to the 11th, it's not as though the court would affirm an award of fees in connection with a successful motion for scheduling order.  Its decision in Wyner turns on its view that the plaintiff's preliminary injunction victory was, in some sense, a victory on the merits.  That is, the PI resolved a substantive issue between the parties as opposed merely to maintaining the status quo.  Still, by the time the 11th heard the case, there was no sense in which the plaintiff had prevailed on the merits of its claims.   Although an affirmance would not be the strangest thing to ever happen at the Court, this case appears as close to a slam dunk reversal as a Supreme Court case gets.

Parting Shot:  The 11th Circuit's opinion in this action is marked DO NOT PUBLISH.  Perhaps the question has been discussed before and I've missed it, but I'd be curious just often the Court finds itself granting certiorari in connection with unpublished dispositions.  Frankly, I am sick to death of finding helpful cases that are unpublished and, hence, unusable in many courts.  Fortunately, under new Fed. R.A.P. 32.1, federal courts of appeals may no longer "prohibit or restrict" the citation of unpublished opinions.  Unfortunately, new Rule 32.1 only covers unpublished opinions that are unpublished withheld hidden suppressed memory-holed issued on or after January 1, 2007.  By my lights, when your unpublished opinion winds up in the Supreme Court, you, as a court, might want to rethink your entire approach to publication.

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In not-really-litigation-related-but-too-interesting-not-to-post news, the Associated Press reports that there are 1.4 million -- million -- unserved warrants in the Commonwealth's criminal justice system:

Pennsylvania's new statewide computer system makes it possible for the first time to put a number on how many warrants remain unserved across the state - 1.4 million, including more than 100 for homicide, The Associated Press has found.

Pennsylvania is now the largest state to complete such a comprehensive court computer network, although several other large states - including California, New York and Ohio - are planning or implementing such systems, according to the National Center for State Courts in Williamsburg, Va.

The database is designed, in part, to help authorities reach across county lines to capture fugitives who have moved to avoid detection. It will also allow government officials and the public to compare how courts are performing from county to county.

"Because of this automation, it's becoming harder to run from the law," said Steve Schell, spokesman for the Administrative Office of Pennsylvania Courts.

It's a step in the right direction but, with a backlog of 1.4 million unserved warrants, the notion of "running from the law" seems quaint.  A hearty saunter would probably suffice.  Perhaps even a silly walk.

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On Monday April 2, the SCOTUS decided Massachusetts, et al. v. EPA, No. 05-1120 (pdf).  Although the case involved issues of greenhouse gases and global warming, the case is, from a litigator's perspective, far more notable for its treatment of Article III standing.  In a nutshell, Justice Stevens's majority opinion strongly suggests (one might even say "holds") that states may possess Article III standing to pursue litigation in the federal courts even in circumstances where private citizens would not:

It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.

(emphasis added).  The Court also noted "the special position and interest of Massachusetts" as well as its inclination to display a "special solicitude" for the arguments of states when it comes to Article III standing.  This strikes me as strong stuff and a significant departure from the Court's prior Article III jurisprudence.

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What could be more exciting for a litigator than a change in the Rules of Civil Procedure?  On March 27, the Pennsylvania Supreme Court promulgated new Rule 1031.1 (pdf), which specifically addresses cross-claims. 

Prior to the new rule, the Pennsylvania rules simply did not recognize cross-claims denominated as such.  Although the rules did account for some claims in the nature of a cross-claim, the issue was addressed in contradictory fashion when it came to claims stated among additional defendants joined under Rule 2252.  Rule 2252 permits any defendant to join additional defendants by means of a joinder complaint.  In that context, Rule 2252(d) permitted a defendant to state a claim against another existing defendant (i.e., a cross-claim).  At the same time, however, Rule 2255(b) barred an additional defendant joined under Rule 2252 from filing a pleading (i.e. stating claims) against any party other than (1) the party who had joined the additional defendant or (2) the plaintiff.   Rule 2255(b) thus barred additional defendants from stating cross-claims among themselves.  In short, the rules were a hash at the edges.  Rule 2252(d) could be read to permit cross-claims among additional defendants; Rule 2255(b) flatly prohibited them. 

New Rule 1031.1 clearly establishes the right of a party to state a cross-claim against any other party, regardless of the manner in which the cross-claimant was joined:

Any party may set forth in the answer or reply under the heading "Cross-claim" a cause of action against any other party to the action that the other party may be

(1) solely liable on the underlying cause of action or

(2) liable to or with the cross-claimant on any cause of action arising out of the same trnasaction or occurrence or series of transactions or occurrences upon which the underlying cause of action is based.

In addition to promulgating new Rule 1031.1, the Supreme Court has made more or less minor conforming changes to Rules 425, 1017, 1706.1, 2253 and 2256.  Troublesome Rules 2253(d) and 2255(b) have been rescinded.  Rule 1031.1 and the conforming amendments will take effect on June 1, 2007 (pdf) and, under Rule 52, will be applicable to all actions pending on that date.

In other notable rules changes, the World Chess Federation has announced that, henceforth in international competition, a rook may advance no more than four squares in any permitted direction during a single move.  It is hoped that the change, long advocated by spectators, will result in more aggressive play during the sometimes slow-paced mid-game. 

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If you have never heard of the Business Software Alliance (“BSA”), consider yourself lucky. Then consider yourself uninformed. For those of you who have not had the pleasure of hearing from BSA, the Business Software Alliance was formed in the late 1980’s by software companies, including Microsoft and Apple, in order to watchdog business compliance with software licenses. 

BSA is rumored to get most of its leads from disgruntled employees who are only too happy to turn in their former employers. And let’s face it, while software compliance is typically a priority for companies, managing licensing compliance and achieving licensing compliance is a challenge.

If BSA knocks on your door, hold on to your wallet! From all accounts, BSA is interested in settling issues, but seemingly minor instances of non-compliance can result in significant fines. BSA knows that the threat of litigation and the cost associated with it is often enough to force cooperation from targeted companies.

If your company is targeted by BSA, you will typically receive a letter asking you to conduct an internal audit of your software and software licenses. Before doing so, you should consider contacting competent counsel who will assist you with the audit. Don’t waive or give up opportunities afforded under the attorney client privilege or the work product doctrine by conducting the audit yourself. There are other protections afforded to you that competent counsel can assist you with.

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