The Problem With "Probable Cause"

Posted on May 28, 2008 by Bob Dennison

The National Transportation Safety Board (NTSB) is the primary agency in the United States charged with the authority to investigate incidents and mishaps related to civil aircraft. The agency's primary role is to perform an independent investigation of the facts and conditions that give rise to an accident/incident in effort to reach a determination as to the "probable cause" of an accident/incident. The purpose of determining the probable cause of an accident/incident is permit the NTSB an opportunity to provide industry recommendations that are ultimately designed to prevent future mishaps in furtherance of air safety promotion.

The problems with charging the NTSB with finding only the probable cause of an incident are two fold. First, often times the root (actual) cause of an incident is not determined. Thus, the agency's purpose to propose future recommendations intended to prevent other future incidents may be frustrated. Second, the very determination of the "probable cause" of an incident ultimately is only as accurate as the essential "facts" relied upon in making such a determination. In many instances the essential facts relied upon may be conveyed to the NTSB from other sources and may be biased. As such, the future impact of agency "recommendations" intended to promote overall air safety, without more, may be of limited social utility or value. This can be further troubling when one looks at the vast percentages of incidents that the probable cause is declared to be pilot or human error thus providing little or limited guidance to prevent future similar incidents.

On May 5, 2008, the Honorable Cooper, sitting on the United States District Court, Central District of in California, rendered a decision wherein the Court determined that the actual or root cause of a 2003 mid-air collision involving two helicopters was in direct opposition to the NTSB's determination of the "probable cause" of the incident. On November 6, 2003, two helicopters crashed in front of a control tower at Torrance Municipal Airport. The two helicopters were operating within the jurisdiction and control of the air traffic control tower (FAA). Following the crash, statements were provided by the air traffic controllers. The NTSB relying largely upon the statements of the controllers determined that the junior pilot failed to comply with tower instructions and determined that the probable cause of the incident was attributed to pilot/human error.

Following a seven day bench trial the Court fully exonerated the junior pilot finding that the pilot did comply with all tower instructions and that the proximate cause of the accident was a collection of numerous errors committed by the air traffic controllers. This case illustrates the conflicts presented by one--charging the agency with determining only the probable cause of an incident 2--while relying upon "facts" from other sources in forming a conclusion 3--for the purpose of providing future recommendations to avoid other similar incidents without more. Left alone, in this instant analysis the NTSB report would provide little to no intrinsic value. First, human error will, unfortunately, play a substantial factor in many if not most aviation incidents in at least some fashion, however, "future recommendations" to avoid repetition of the same is such instances due to the very specific nature of the alleged human error are or may be of limited value. Second, charging the agency to go only as far as probable cause relaxes the standard of ultimate accountability by relieving the agency of the duty to conduct a full inquiry or challenge information/facts provided in furtherance of an investigation. Finally, as the instant case study reveals, the primary purpose of the agency, i.e., prevention of future incidents becomes frustrated.

To the contrary, a determination of the root cause, in this instant, collective failures of the tower giving rise to the unfortunate incident, does provide valuable assistance in furtherance of avoidance of future similar mishaps. The ability to learn from the mistakes that actually give rise to incidents and mishaps will ensure the continued development and improvement of the industry and the future of air travel and commerce.

 
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Federal Circuit Hears Appeal on Business Method Patents

Posted on May 28, 2008 by Salvatore Anastasi

Since the Supreme Court declared business methods to be patentable subject matter in the late 90's, there continues to be more and more patent applications filed for them. With the increasing number of applications comes further pushes on the US Patent and Trademark Office (USPTO) to accept more "abstract" business method patent applications. The battle continued recently on May 8, 2008 in the Federal Circuit where oral arguments were heard en banc on appeal of a business method application filed by Bilski that was rejected by the USPTO as being related to an abstract idea and therefore not patentable subject matter. The USPTO position is that business methods which employ only human intelligence without involving machines, manufactures, or compositions of matter do not qualify as patentable subject matter because they are directed to abstract ideas. Take a look at what Bilski is attempting to patent.

The Bilski patent is directed to a method of “hedging” that manages the consumption risk costs of a commodity sold by a commodity provider at a fixed price. In brief, the steps in the process comprise (1) initiating a series of transactions between a commodity provider and commodity consumer, (2) identifying market participants for the commodity with a counter-risk position to consumers, and (3) initiating a series of transactions between the provider and market participants at a fixed rate.

Based on the oral argument and questions presented, the Judges appear to be leaning in favor of Bilski. Such a decision would open the doors to business method patent filings even further. 

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The Supreme Court Attempts to Clarify What Constitutes a "Charge" of Discrimination Under the ADEA

Posted on May 28, 2008 by Richard Hackman

On February 27, 2008, the United States Supreme Court ruled that a document filed with the Equal Employment Opportunity Commission (EEOC) that can reasonably be construed as a request for action to protect the employee’s rights or otherwise settle a dispute with the employer constitutes a discrimination “charge” within the meaning of the Age Discrimination in Employment Act (ADEA). In Federal Express Corp. v. Holowecki, the Supreme Court affirmed the U.S. Court of Appeals for the Second Circuit’s decision reviving a potential ADEA class action brought by current and former couriers over the age of 40, who alleged that Federal Express disparately applied its performance standards in an effort to force out older couriers before they qualified for retirement benefits.

Under the ADEA, an employee is required to file a “charge” of discrimination with the EEOC within 300 days of the discriminatory conduct prior to filing a lawsuit. However, because the term “charge” is not defined in the ADEA, federal courts have adopted numerous definitions of that term, which, in turn, has led to a variety of interpretations as to whether an employee is entitled to pursue his or her ADEA claim in a court of law.

In Holowecki, the Court addressed the long-standing question of whether an employee alleging discrimination initiates a claim (and stops the statute of limitations) by filing what the EEOC refers to as an “intake questionnaire.” In that case, the plaintiff submitted to the EEOC a completed intake questionnaire and an affidavit alleging that the company discriminated against older couriers. Although the EEOC did not initiate administrative proceedings in response to the filing of the intake questionnaire, the employee subsequently filed suit. The U.S. District Court for the Southern District of New York dismissed the lawsuit on the basis that the employee failed to satisfy the ADEA charge filing requirement. However, on appeal, the U.S. Circuit Court of Appeals for the Second Circuit, which covers New York, Vermont, and Connecticut, concluded that the intake questionnaire did in fact serve as a “charge.”

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DEP Cites an Operator for "failing to mine and reclaim on a one-for-one acre basis".

Posted on May 28, 2008 by Chip Haws

DEP has recently begun interpreting 25 Pa. Code 77.108(e)(4) as requiring a small non-coal permit operator (5 acres or less) to have no more than one acre affected at any one time, despite the fact that DEP may have allowed the operator to bond up to the full five acres allowed under a small non-coal mining permit. DEP has issued an order requiring that all areas in excess of the one acre be reclaimed or that the operator submit an alternate reclamation plan and post the bond calculated under the conventional bonding rates.

DEP’s recent interpretation is clearly contrary to its practice over the past two decades with regard to small non-coal mining operations. It appears that DEP has permitted many operations to affect more than one acre and required such operations to post bond for each of the acres that are to be bonded and affected. Such operators may now be operating in violation of the DEP’s recent interpretation of the regulations while being in complete compliance with their mining permits.

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DEP Applies Conventional Coal Bonding Rates to Non-Coal Mining Operations

Posted on May 28, 2008 by Chip Haws

DEP has begun applying the conventional coal bonding rates to non-coal quarry operations. Despite the fact that the statutory and regulatory authority for DEP’s conventional coal bonding rates are different from the statutory and regulatory authority for the non-coal program, DEP is using the bonding rates published in the Pennsylvania Bulletin for coal mining operations.

DEP has indicated that its policy at this point is to require conventional bonding rates be applied to all new non-coal permit applications as well as any revisions or amendments to existing permits. The previous bond rate of $1,000 per acre has been utilized by DEP since the enactment of the Non-coal Mining Act. Under the new conventional bonding rates, the amount of bond required per acre is many times higher, DEP has requested more than $8,000 per acre on one permit I recently reviewed. The depth of the pit and distance of the spoil necessary for reclamation can substantially increase the required bond.

DEP has also indicated that operators with compliance issues may also be identified for increased bonding, even in the absence of a pending permit application or permit revision, in the DEP’s discretion.

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DEP Applies Anti-degradation Requirements to In-Ground Septic Systems

Posted on May 28, 2008 by Chip Haws

The Environmental Hearing Board (“EHB”) recently sustained a DEP rescission of a sewage planning module after DEP determined it should have properly required a hydrogeologic study to determine whether there would be any adverse impacts to an Exceptional Value (“EV”) watershed. 

In the case Lipton v. DEP and Pine Creek Valley Watershed Association (“PCVWA”) the Board sustained the DEP’s rescission of a planning module that DEP had approved nearly one year earlier. DEP’s basis for the rescission was that it failed to require an analysis of the potential impacts of the proposed septic systems on an EV watershed. The proposed septic systems are ground discharge systems. As part of the planning module approval, the developer had a hydrogeologic study performed to ensure that the proposed septic systems would not result in nitrate loadings above the safe drinking water standard, which was the standard imposed by the DEP at the time the planning module was issued. 

The DEP’s Anti-Degradation Manual identifies ground discharge systems as a non-discharge alternative. Despite the fact that the systems are neither point nor non-point discharges to surface water, the EHB determined that there may be a potential for the systems to have an adverse impact on the Pine Creek and the wetlands which are hydrogeologically connected thereto, all of which are classified as EV, special protection waters.

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Look Before You Leap - Recent Case Demonstrates the Importance of Careful Trademark Selection

Posted on May 23, 2008 by Jennifer Slonaker

The federal court in the Northern District of Georgia recently held that Wal-Mart’s yellow smiley face is not a protectable trademark.  Smith v. Wal-Mart Stores, Inc., 537 F.Supp.2d 1302, (N.D. Ga. 2008). Specifically, the Court held that trademark protection could not be afforded to Wal-Mart’s yellow smiley face, because Wal-Mart failed to show that the public recognizes the yellow smiley face as a designation of Wal-Mart’s products or services. The Court made this finding even though Wal-Mart has been using the yellow smiley face to promote its good and services for many years and has invested substantial resources and years of effort in marketing it goods and services with the yellow smiley face.        

Because Wal-Mart’s yellow smiley face was held not to be a protectable trademark, Wal-Mart is unable to prevent others from using a yellow smiley face identical to or similar to Wal-Mart’s to promote their goods and services. In other words, Wal-Mart invested substantial resources and years of effort in promoting and developing a trademark in which it basically has no legal rights.

Because the first step in any company’s marketing campaign is to select a trademark that consumers will associate with the company’s reputation and goods and services, this case emphasizes the importance of taking the necessary steps to properly select your trademark at the early stages of your marketing campaign. Legal counsel can play a vital role in advising you on the relative strengths and weaknesses of your trademark. By having a search performed and discussing your trademark selection with legal counsel, you will be able to ascertain the scope of legal rights that may be afforded by your trademark before expending a great deal of time and resources in developing and promoting the trademark.

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