May It Please The Court
Quote of the Day - Illegal aliens have always been a problem in the United States. Ask any Indian.
The Lawsuits Are Coming! The Lawsuits Are Coming!
Paul Revere couldn't have said it better: Lawsuits between businesses have hit the Courts. Yes, I know that's not news. Stay with me for a minute. It's not just the everyday litigation we presently have, but business-to-business lawsuits now include litigation over illegal immigrants. MIPTC previously reported this phenomenon, and promised to let you know when litigation was filed. It has.
Here's how it goes: Company A, Global Horizons, provides temporary workers to businesses. It has a contract to supply employees to Company B, Munger Brothers, a vegetable farm that hires illegal immigrants to harvest its crops. Company A verifies that all of its temporary employees are U.S. citizens, so presumably to keep its costs down, Company B wasn't interested in hiring any temporary employees from Company A. Company B instead hires its temporary workers from a temp agency we'll call Companies C and D, (Ayala Agricultural Services and J&A Contractors)which doesn't screen its temporary workers for citizenship. Temp agency A therefore sues farmer B for unfair competition.
It's a novel theory to be sure, and it's likely not to last. There are too many variables about why Company A isn't doing well financially, and they've likely named the wrong defendant anyway. It seems to MIPTC that the defendant in this instance should be Companies C and D, not Company B. The farm is not competing with the temporary employee agency. It's the other temporary employee agencies, Companies C and D in our case. I checked the UCL Practitioner's site, and Kim may disagree with me on the potential for the ultimate success of these cases. She's sure to cover it further, so keep a weather eye. I'll go out on a limb here and predict that the only viable cause of action for the temp agency against the farm is breach of contract. Even then, that lawsuit's probably just a yawner.
Even so, let's play that game. If temp agency A sued temp agencies C and D, could it win? The case is a bit closer, but it still seems unlikely. The unfair competition laws require direct proof of injury by one business to another. Kim agrees with me on that point, but not likely with my final analysis. Here, temp agency A would claim that temp agencies C and D's practices of providing illegal immigrants as temp workers unfairly competes with it. While that scenario has a bit of sex appeal to it, it misses the mark. It's very likely that temp agency C offers U.S. citizens for employment and it's just as likely that temp agency A has plenty of other reasons that it is not doing well financially.
Without a full-fledged, consistent pattern and practice of temp agencies C and D undercutting most, if not all of temp agency A's employment contracts, the single instance of one lost contract due to illegal immigrants won't likely sustain an unfair competition lawsuit. This suit won't be the last of these that are filed, and you can be sure that in each successive, the plaintiff' lawyers will learn what they need to allege to pass muster, so later rather than sooner we may see a lawsuit that gets past a trial court.
Then we'll see what the court of appeals will do in the next couple of years. Stay tuned.
A Bump In The Moral Compass; But Which Way?
If you grew up in rural America in the depression, and perhaps even into the 50's, then you likely remember situations where families "took in" children from other families without much ado. Frequently, it was necessitated by the death of parents, an abusive situation or children born out of wedlock. We just took care of each other, especially children without parents. That was the norm. Today, we have nuclear families that are more like nuclear fission families.
Courts have always struggled with how to reconcile family struggles. As a society, we've added much more variety into the mix with divorce, combined families, families with parents who have alternative lifestyles, single parents and even children born from artificial insemination. It's enough to make your head spin.
Take, for example, this case where a child was born to a married woman, Kim, and a married man, except that they weren't married to each other. Kim and the married man had an extramarital affair that resulted in a child. The married man and his wife, Amy, not only stayed together, but they also raised the child in their home from the time he was a month old. Kim and her husband separated upon the child's birth. Amy and the married man have two daughters, and Kim has one child, Nathan, who is now being raised by Amy and the married man (let's call him the Father).
Here's where things get tricky. At the end of her pregnancy, Kim left California and went to Virginia, where she had Nathan. The Father, also from California, went to Virginia and met Kim in a hotel lobby to pick up Nathan. The Father presented Kim with an adoption and non-visitation agreement drafted by a law firm in Maryland. Kim signed the agreement in Father's limousine. N.B. here that the Court threw in the part about the limousine. It's a "fact" designed to color the picture of the story. Father brought Nathan back to California, where he lived with Father and Amy.
Well, here's where things really get tricky. Kim sued for a parentage determination in her favor, excluding Amy, and for visitation rights. She claims she was pressured into signing the agreement. Amy jumps in now, and tries to assert that she's the Mother, filing documents with the Court to assert her rights.
The Court strikes her papers and rules that because she didn't adopt Nathan, she has no right to argue that she's the Mother. The Court states that California law recognizes only one mother, and that's the biological mother. Amy is out of luck. The ruling? A woman who is not the biological mother of a child is not the presumed mother and cannot assert the rights of the mother.
The only way to do that is through adoption, where the government reissues a birth certificate changing the name of the biological mother.
Coast to Coast Internet Radio Identifies What Makes A Go-to Lawyer
What makes a Go-to lawyer? Many believe that a go-to lawyer possesses a certain confidence or style. How about a great Go-To Firm? Is it good results and smooth transactions? In this show, we will speak to the experts on what makes a go-to lawyer and which firms are the go-to firms. Coast to Coast looks at the survey of who companies turn to as a go-to lawyer and a go-to law firm.
Join me and my co-host and fellow Law.com blogger and Bob Ambrogi as they turn to our experts for the answers. Coast to Coast welcomes Daniel J. DiLucchio, principal of Altman Weil, Inc. and Tamara Loomis, a contributing writer for Corporate Counsel who just recently worked on the survey on the top firms who represent corporate America. You'll won't want to miss it.
That's A Lotta Lotto
Every once in a while you stumble on something so bizarre you can't believe it. Here's the story of a woman who stole up to $6,000 a day from her employer to play the New York lottery, apparently hoping to win it big.
In all, she stole $2.3 million.
I don't know about you, but that amount sounds like a winning lottery ticket to me. Apart from the stealing part, I'd be satisfied with $6,000 a day. I could probably figure out a way to live on that kind of change. It apparently wasn't enough for Annie Donnelly, however. She kept at it over a three-year period, taking the money in checks of varying amounts from Great South Bay Surgical Associates.
She faces up to 12 years in prison. The DA, with the brilliance only an an attorney can muster, said, "She obviously had a gambling problem." That gem comes from Donna Planty, assistant Suffolk County district attorney, according to the CNN article linked above.
Assuming you worked a regular 8-hour day, where would you find the time to buy 6,000 lottery tickets a day?
Missouri's Attempt To Regulate Sex Billboards Fails Constitutional Muster
Billboards tend to make news. Not everyone is happy about them, and people in Missouri were so upset with some sexually suggestive billboards that they passed a law prohibiting them within a half-mile of a highway: “[n]o billboard or other exterior advertising sign for an adult cabaret or sexually oriented business shall be located within one mile of any state highway. . . .”. Citing free speech, Passions Video brought a constitutional challenge to the law.
The Eighth Circuit Court of Appeals struck down the law, which made it a crime to advertise sexually-oriented businesses. The court's main problem with the statute was its content restriction, typically a red flag for a constitutional violation. Courts will uphold time, place and manner restrictions, but where all content is banned, those laws are usually struck down.
The Missouri legislature will have to try again if they want to prevent sex advertising.
That's like trying to avoid death and taxes.
Homeowner Who Hires Next-door Neighbor Becomes An Employer, Liable For Injuries
Homeowners beware: if you hire an unlicensed worker to perform work that requires a license (take for example, roofing or virtually any other type of construction trade), then you better be prepared for the consequences.
Those consequences require you to purchase worker's compensation insurance and that worker is automatically transmuted into your employee. Without even considering the tax consequences (payroll withholding and taxes), those are some pretty steep consequences. Here's how today's case gets set up:
A homeowner hires his next-door neighbor to reroof his house. The neighbor apparently had done some roofing before, but was not licensed to do so by the State of California. The homeowner had a handyman who ensured the neighbor was doing the right work on the job, while the neighbor went out and hired other workers to assist in the reroofing efforts. After working four or five hours, the neighbor fell from the roof and was injured.
You guessed it. The neighbor sued the homeowner because perhaps not surprisingly, the homeowner didn't have worker's compensation insurance. The neighbor claimed he was an employee of the homeowner.
He's right. The California Supreme Court has made it clear if you hire someone who should hold a license to do the work you hired that someone to do, then you become that someone's employer.
The appellate court in Mendoza v. Brodeur had no trouble dispatching the homeowner's claims that he wasn't the neighbor's employer. The consequences of not having work comp for the homeowner are now that he has to face a lawsuit for personal liability.
The lesson here? Check out your neighbor's Contractor's license status on the Contractor State License Board's website, or buy work comp insurance if you want to be fully protected. Otherwise, you become the insurance company.
LA Sludge May Move From Bakersfield To Arizona
Kern County voters are upset with Los Angeles' crap. Literally on both counts. The residents voted to ban Los Angeles from shipping its sewage sludge to Kern County for use on farm fields.
Not to be dissuaded, LA did what any law-abiding City would do. It sued.
That's right, and to ensure victory, LA filed here in Los Angeles. You can bet the first motion Kern County files will be for a change of venue to move the case to Kern County. The home-court advantage part of the lawsuit will likely be the most contested aspect of the litigation. LA claims that it spent $16 million to upgrade its sewage system to make the sludge acceptable to spread on farms in Kern County, one of which is owned by the City of LA and named Green Acres, of all things.
MIPTC predicts the lawsuit will fail. Judges don't like to overturn voter referendums unless there's been some type of misrepresentation made to the voters, which is unlikely in this case. After all, how hard is it to vote to ban LA from shipping its _ _ _ _ (fill in your own appropriate, four-letter word here) to Kern County. I can't imagine any misrepresentations in that voter pamphlet. I guess you could refer to it as the "bull _ _ _ _" test.
Now, though, LA is prepared to ship its _ _ _ _ (yep, just go right ahead and use that same, four-letter word again here) to Arizona. At least there it will dry out faster.
Mayberry's Town Drunk Gets Competition From Lincoln, Nebraska
Not to pick on Nebraska, but do you really want to be known as the state that holds the record for criminals with the most arrests? According to this AP article, Lincoln, Nebraska's Kevin Holder was arrested for the 226th time last Sunday, on suspicion of possessing burglary tools, a felony. Believe it or not, that's not the record for arrests in Nebraska. The article notes that Edward Rooks has been arrested 652 times. It likely would have been more, but Rooks died in 2004.
It could be worse, though. According to the Guinness Book of World Records, the country with the most murders is India, with 37,170 between 1998 and 2000 - the entire population of Woburn, Massachusetts. Not a record to be proud of. If you're looking for more information, you can check the United States' Bureau of Justice Statistics. Or, you could just go to Vegas, where things happen, but don't apparently stay there.
Perhaps the only other character who has been arrested more times is Mayberry's town drunk, the fictional Otis Campbell.