May It Please The Court
Quote of the Day - What is the difference between a taxidermist and a tax collector? The taxidermist takes only your skin.
Did You Get Your Refund Of California's Hazardous Materials Fee?
Since 1989, the State of California has levied a fee on California corporations that employ more than 50 employees, and called it a "Hazardous Materials Fee." If your company meets the employee threshold and uses hazardous materials, then you likely pay this fee each year. About the only "company" that doesn't have to pay this fee (what you're about to read is the State's logic, not mine) is a "private household," defined under Standard Industrial Code 88. Don't ask me how a private household got an SIC set of numbers.
What you also probably didn't know, however, is what the State classifies as hazardous materials: "fluorescent light bulbs, batteries, inks, correction fluid, and toner used in printers and facsimile machines." I'm not kidding. And don't get mad at me, either, I just report the facts. I couldn't make up stuff this good.
The fees can run into the tens of thousands for large companies, but for companies with just over 50 employees, the fee is $200/year. The tax (let's be truthful about what to call it) funds the California Department of Toxic Substances Control.
Morning Star Company is a tomato packing plant. Good, vine-ripe California tomatoes. Healthy tomatoes that have nothing to do with hazardous waste. Morning Star rightfully asked the question why it had to pay the hazardous waste tax, and started making its payments under protest. It then sued the State Board of Equalization, which collected the tax for the DTSC, for a refund.
Not surprisingly, the SBE denied Morning Star's request for a refund. The Supreme Court just decided the matter earlier this week and ruled in favor of Morning Star, ordering the SBE to consider the refund request in light of the Supreme Court's invalidation of the regulation issued by the DTSC.
The Court reasoned that since the DTSC had never held a public hearing on its regulation imposing the tax on every corporation, the DTSC violated the State's Administrative Procedures Act because it violated the Constitutional right to due process of notice and hearing. The Court, however, declined to invalidate the entire tax/fee structure, and allowed the current interpretation (applying the tax as broadly as possible) because of the "disruption to the system" (read: lack of financing).
So, if you're interested in a refund, then you need to apply to the SBE soon. If you want to stop the tax from going into effect, then you'll have to file your objections with the DTSC quickly.
In terrorem Clauses Must Also Be Included In Amendments And Codicils
In terrorem clauses in trusts and wills have the (some would say nasty) effect of reducing the inheritance to something like $1.00 if someone challenges the validity of the trust or will. But what if you make an amendment or a codicil to your trust or will, and don't put the in terrorem clause into the amendment? Does it still apply?
That's what John tried to do in challenging his father's second amendment to the trust he set up for his children, John, Toinette and Valerie. Toinette was appointed administrator of the trust. As you have likely guessed, the second amendment reduced John's share of the inheritance. John filed an application to determine whether his challenge to the second amendment would invoke the in terrorem clause. Toinette, of course, took the alternate position since her inheritance was, of course, consequently increased.
You would think that because the trust (and for that matter the underlying pour-over will) contained in terrorem clauses, that would be enough. But if you did, then you would be wrong. The trial court's ruling in favor of John's position was upheld by the appellate court. So, if you want to place someone "in terror" of challenging your will or your trust, you must do so every time.
DMV, DUI, DUH! We May Need To Breathe To Start Our Cars
Forget gas prices. We soon may need something else to run our cars. Cars of the future may require your breath to start.
In a breath-a-lyzer.
You heard it here second. First in USA Today. Add about $1,000 to the cost of cars to include this device, and some irritation to blow into it if you're not a drinker. Thank MADD if you're happy about it. Get mad if you're not.
They Hired The Right Employee To Keep Track Of Work Absences ...
He Had Plenty Of Experience
Here you've got an employee surfing the internet and the employer warning the employee to stop goofing off and start working. The employee disregards the warnings. The employer then disciplines the employee, and the employee appeals the discipline in an administrative hearing.
As if the surfing itself weren't enough, and just to top it off, the employee admitted in the hearing that he disobeyed the employer's orders to stop using the internet for personal reasons. [As an aside here, I don't know whether the entry in that last link, complete with misspellings, was introduced as evidence at the hearing, but the employee made it on January 15, 2006, at 12:29:10, presumably while the employee was at lunch.] But the New York Administrative Law Judge (in this link, the third one down on the right) let the employee get away with it, and ruled that the employer can only reprimand him for surfing the internet.
The employer introduced evidence at the hearing that when the employer asked the employee why he was surfing so much, his one word response was "reading." I would have never guessed. [Just in case you're wondering, here's what he was reading: lonelyplanet.com, google.com, renewnyc.com, humanesociety.com, chinaadviser.com, cnn.com, aircanada.com, cbsnews.com, escapeartist.com, and islandsun.com.] The employee also admitted "regularly" visiting travel and government scholarship sites. You can look too, but I don't advise "reading" any of those sites at work.
To add insult to injury, let's add these facts into the mix. Over the course of a year and a half, the employee was AWOL from work for 33 days, arrived late to work 49 times and left work early 23 times. Given those absences, and the allegations of internet surfing, I'm betting the only thing he had time to do at work was surf the internet.
Apart from his absences, the employee took his allowed vacation. But not only did he take his vacation, here's a guy who also bought his vacation tickets before he put in a request to approve that particular time off, apparently assuming that it would be approved without question. To put the icing on the cake, the ALJ ruled that the employee's absences weren't excessive. If that's true, I'd love to have the ALJ's work schedule - he probably thinks working one day a week is too much.
Don't get me wrong here. I like vacations as much as the next guy, but I think this ruling is over the edge. That's just my humble opinion.
Oh. One last thing. They guy who was reprimanded is an analyst with the Division of Human Resources for the New York Department of Education. His job includes the task of keeping attendance records for NY schoolteachers. Go figure. I guess that's the difference between government employment and private sector employment, but should it be that way?
Coast to Coast Internet Radio Goes On The Road To The ABA Techshow
Coast to Coast is on the road at the ABA Techshow in Chicago. Join me and my co-host Robert Ambrogi, a fellow Massachusetts Attorney and Law.com bloggers with two experts who focus on what's new in technology for lawyers today. Bob reports from the floor of the Techshow with our guest Attorney Tom Mighell, member of the 2006 ABA Techshow Planning Board and a fellow blogger at Inter Alia.
Also joining us is David Snow, editor of Law.com's Legal Technology online ezine. David showcases original content as well as tech-related articles from across the American Lawyer Media network of publications and Web sites. The ezine includes a dedicated EDD section, as well as legal-specific download and white paper directories. He is also Law.com's section manager, and editor of the twice-weekly Legal Technology Bulletin online newsletter as well as the Law.com Law Students site. Snow has been a correspondent for Wired News, homepage editor and Web producer at TechTV.com, and an editor and writer for numerous other publications and web sites.
O'Grady v. Apple Arguments Submitted To Court - Testing Subpoena Of Blogger's Sources
MIPTC wasn't blogging it live from the Sixth District Court of Appeal, but here's the handicap version of what I saw and heard from an advocate's perspective (yesterday, I argued the Amicus Brief submitted by the Bear Flag League in the case of Jason O'Grady, et al. v. Apple). Sure, there are plenty of news stories out there all the way from AP to ZDnet, and lots of reporters who listened to the arguments. Here's the take from someone who made the arguments.
The appellate court panel consisted of Presiding Justice Conrad Rushing and Associate Justices Eugene Premo and Franklin Elia. The BFL's position on the case straddled the middle: it agreed with Apple that this case was not ripe for decision, and it agreed with O'Grady that both bloggers are journalists (a point that everyone seemed to concede) and blogger's sources should be kept confidential. Here's the tip why the BFL thought the case wasn't ripe: Apple argued that the post that O'Grady put up was a trade secret, exposing the blogger and the source to both civil and criminal liability. Essentially, it's a case of bad facts could make bad law. The legal justification for the abstention argument was that O'Grady hadn't been made a party to the suit.
The BFL's position was bolstered by an opinion released just two days before, and written by Justice Elia. It held that in an internet First Amendment issue, the court should abstain where the subpoena sought information from individuals who were both anonymous and non-parties. In the O'Grady case, the only difference was that we knew the identify of O'Grady and the other posters of the Apple-alleged trade secret. Surprisingly, when I brought up the case in oral argument, neither Justice Rushing nor Justice Premo had read it. Justice Rushing replied, "We sit on different panels. We don't always read each others' opinions." I suspect that none of the other attorneys arguing the case for Apple, O'Grady or Intel had read it either; no one else talked about it.
Apart from the BFL's position, the justices were fully briefed on the merits and seemed to support O'Grady's positions, even taking issue with the extent of the value of Apple's trade secret. Justice Rushing said that the product that Apple claimed was a trade secret code named Asteroid - was technology that was 15 years old - "plugging a guitar into a computer," as he put it. Justice Elia was unsympathetic as well, pointing out that Apple had done little to protect its trade secret, and instead was asking the court to act as Apple's "personnel department." and help Apple find "the snitch."
O'Grady's arguments were even more sympathetically received, and his counsel, Electronic Frontier Foundation staff attorney Kurt Opshal got a number of "softball" questions. Quite the opposite was true for the other side, and Apple attorney George Riley and Amicus Intel's attorney, Dan Bagatell, were treated the same (and I dare say confused as representing the same party) by Justice Elia. Both got grilled like steaks.
My box score? Two (Rushing and Elia) to one (Premo) in favor of O'Grady and against Apple.
Boring Old Patents Just Got Interesting
It's enough to make even the most seasoned litigator stand up and take notice. It perhaps hit first with all the hullabaloo with the RIM patent litigation over the technology in the Blackberry, resulting in a settlement of well over $600M. Long before that was the eBay patent litigation, which resulted in a mere (doesn't mere sound odd?) $35M verdict, and is now pending before the US Supreme Court.
Now, we see that Mary Kay is liable for violating dermatological (I had to look that word up to spell it right) patents, to the tune of $40M. Then, TIVO hit for $74M, and could possibly get triple that amount since the infringement was found by the jury to be willful. Some have accused people who buy patents and sue to enforce them as "patent trolls," and as if we haven't heard enough about the iPod, here comes the next Blackberry lawsuit. Can you do without your iPod?
Wow. And I thought patent litigation was boring. Not anymore. Enforcing your patent just became a new way to make money.
Jury Duty Phone Scam Strikes Close To Home
My friend the jury coordinator warns of this scam, apparently active in the area (reprinted with permission from Snopes):
"Here's a new twist scammers are using to commit identity theft: the jury duty scam. Here's how it works:
The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.
The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.
Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information — exactly what the scammer needs to commit identity theft.
So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state.
It's easy to see why this works. The victim is clearly caught off guard, and is understandably upset at the prospect of a warrant being issued for his or her arrest. So, the victim is much less likely to be vigilant about protecting their confidential information.
In reality, court workers will never call you to ask for social security numbers and other private information. In fact, most courts follow up via snail mail and rarely, if ever, call prospective jurors.
Action: Never give out your Social Security number, credit card numbers or other personal confidential information when you receive a telephone call.
This jury duty scam is the latest in a series of identity theft scams where scammers use the phone to try to get people to reveal their Social Security number, credit card numbers or other personal confidential information.
It doesn't matter *why* they are calling — all the reasons are just different variants of the same scam.
Protecting yourself is simple: Never give this info out when you receive a phone call."