May It Please The Court
Quote of the Day - Like almost everyone who uses e-mail, I receive a ton of spam every day. Much of it offers to help me get out of debt or get rich quick. It would be funny if it weren't so exciting.
Tactics Of Spam Emailers May Backfire Even If In Compliance With Can-Spam Act
Rarely do you see posts on MIPTC critical of electronic technology, but today's an exception. You, like me, may regularly receive what some consider to be spam emails from National Constitution Center Conferences. The company, located in Malvern, Pennsylvania, puts on a host of audio conferences on various legal topics. Every day, I receive anywhere between two to five emails from the company. Here's an example.
In a telephone conference this morning with one of the company's supervisors, Mike Brown, he claimed that the company's multitude of emails comply with the Can-Spam Act because they contain the company's address and telephone number, along with an Opt-out option. While that may be technically true, the Opt-out screen is deceptively designed, in my opinion.
When you click on the Opt-out button in the email, you're redirected to the company's Opt-out screen, and because you're already frustrated with being pummeled with numerous emails from the company, you quickly spot the Opt-out button and click. Good, you think: you're done.
Not so fast. If you take the time to read the script on the page next to the Opt-out button, you see that clicking on that button works only to remove your email address from further emails for that particular audio conference. Each of the two to five emails I received are for different conferences.
So, I get on the telephone and fairly quickly get routed to a supervisor, in my case Mr. Brown, who very politely asks me to scroll down on the Opt-out page all the way to the bottom, below the fold. Lo and behold, there's another Opt-out button, promising to remove your email address from all further emails. Except, however, as Mr. Brown informs me, that request to the company is updated every weekend, so I can expect to receive another twenty or so emails from NCCC.
After informing Mr. Brown of my opinion that the second, below-the-fold Opt-out button is deceptively placed, he agreed to immediately remove my email address from his company's system. He did not, though, take me up on my advice to redesign the page to put both Opt-out buttons together and prominently display the difference between the two. If you're not paying close enough attention, you may continue to receive emails like I did. There are consequences to tactics like this one.
Like me, you may also choose to vote with your feet and not enroll in any of the company's legal audio conferences.
3/23/06 Update: Two emails received today. Apparently, Mr. Brown has not removed my email address from the company's system.
Assessing the Assessor's Assessments
Very few people enjoy paying taxes, and MIPTC suspects Lawrence Kuperman may be close to the top of that list. The last link will lead you to a case Mr. Kuperman filed against the San Diego County Assessor and the Assessment Appeals Board based on what he believed was an unfair property assessment.
Back in 1996, Mr. Kuperman purchased property in Fallbrook for $185,000, even though the Assessor had valued it at $300,000 some three years earlier. The Assessor, however, lowered the assessed value to the actual purchase price, especially since the property might have unexploded ordinance from nearby Camp Pendleton. Apparently with the Marines, practice makes perfect, but every once in awhile a bomb ends up somewhere other than where planned.
Next, in 2002, Mr. Kuperman discovered that San Diego Gas & Electric had an easement across his property not previously disclosed on his title insurance policy (but actually recorded back in 1972). Things were not going especially well for Mr. Kuperman. He believed the easement reduced the value of his land to below $40,000, and asked the Assessor to lower the assessed value.
The Assessor politely declined. Mr. Kuperman appealed, but lost and then filed suit.
He lost again in Court. That's his third strike, and now he's out.
There's something I left out before that I should probably let you in on now. California has a four-year statute of limitations for challenging assessments. That's why I put the dates in. Mr. Kuperman waited six years to challenge his assessment.
But wait, you say, Mr. Kuperman didn't know about the easement until 2002. That may be true, but that argument won no sympathy from the Court. The justices ruled, "Simply put, ... the language of section 51.5, subdivision (b) unambiguously provides that errors involving the assessor's exercise of judgment as to value are subject to a four-year limitations period."
Period. So if you don't think the value of your property was assessed properly, you only have four years from the date of the assessment to challenge it.
Can You Patent What Occurs Naturally?
What do vitamins have to do with patent law? They may be the undoing of a significant number of patents, depending on how the US Supreme Court views the issues presented by B Vitamins. Metabolite Laboratories holds a patent on tests used to identify B Vitamin deficiencies and sued a company allegedly infringing that patent.
But that's not news. What the Supreme Court did in response, however, is.
The Court asked the Solicitor General to file a brief and advise it whether Metabolite patented a law of nature, natural phenomenon or abstract idea, none of which are eligible to be patented. The Solicitor General dodged the question and replied that since the issue hadn't been raised below, this case wasn't the one to properly address it.
Not a good response to the highest court in the land. I haven't argued a case before the US Supreme Court yet, but every time I've argued before an appellate court, the judges want a direct answer to a direct question, and I'm willing to bet the justices aren't satisfied with the Solicitor General.
According to the Associated Press article linked above by Andrew Bridges, Metabloite claims that "[t]he two-step method covered by patent No. 4,940,658 is straightforward: The level of an amino acid called homocysteine is measured in a patient's blood or urine and, if elevated, it can be correlated with a deficiency of folic acid, or B12."
What may not be so straightforward, however, is whether the patent office can issue a patent on what occurs naturally. Then again, however, I have a copyright on the words in this blog, and they (hopefully) come pretty naturally.
MIPTC will be watching and reporting further on this one.
USEPA Prohibited From Applying Different Air Pollution Rules To Major Sources Of Emissions
Early on in MIPTC's reporting of legal news, I highlighted the government's instructions in 2003 to stop investigations of coal-fired plants and other major sources for alleged Clean Air Act violations. Next, I covered the lawsuit filed by 14 attorneys general challenging the USEPA's new policy.
Yesterday, the 11th Circuit decided that lawsuit and held for the various states, and against the USEPA. Now, the government can't exempt coal-fired power plants, oil refineries and other industrial facilities from the Clean Air Act's requirement to install new pollution controls to comply with with new emissions limits. Nearly 800 power plants and 17,000 other facilities must comply with New Source Rule requirements. A large majority of those plants and facilities are located in California and New York. You can read more from the New York Times and Elliott Spitzer, New York's Attorney General.
In its opinion, the Appellate Court noted: "[US]EPA’s interpretation [of the law] would produce a ‘strange,’ if not an ‘indeterminate,’ result: a law intended to limit increases in air pollution would allow sources operating below applicable emission limits to increase significantly the pollution they emit without government review." In other words, the same rules apply to everyone.
Coast to Coast Internet Radio Covers The Class Action Fairness Act
The Class Action Fairness Act became law in the U.S. in February of 2005. Has CAFA been a real benefit to the justice system across the country? Coast to Coast examines that issue with my co-host, Bob Ambrogi, and takes an in-depth look at the reform statute with our guests Howard Bashman, Shannon Duffy and Richard Cohen.
Attorney Howard Bashman is a columnist for Law.com and the Legal Intelligencer of ALM Media. He is a nationally-recognized appellate attorney and appears regularly before the U.S. Court of Appeals for the Third Circuit and Pennsylvania’s state appellate courts. He also writes the well-known and popular blog, How Appealing.
We also have as a guest Legal Reporter Shannon Duffy, who writes for other ALM Media publications. Mr. Duffy has reported and covered the federal courts in Philadelphia for over 17 years. His articles regularly appear in Philadelphia's daily legal journal, the Legal Intelligencer, as well as the New Jersey Law Journal and on Law.com. Mr. Duffy graduated magna cum laude from Temple University in 1989 with a degree in journalism. While in college, Mr. Duffy worked in Temple University's law school as a reader for a blind law student.
Our other guest is Attorney Richard W. Cohen of Lowey Dannenberg Bemporad and Selinger, P.C. who has first-hand experience in an ongoing class action case affected by CAFA. Attorney Cohen is a litigator with 25 years of experience and is currently representing Aetna in its defense of a class action lawsuit on behalf of retail pharmacies claiming contractual underpayments lawsuit.
You'll get the details of CAFA's first year from every side of the issue on this edition. Give a listen!
Another Reason To Review Your Bank Statements
Say you have $4.6 million in your bank account and you later notice it's gone. What should you do?
You had better notify the bank within a year of the date you first received notice of the improper transfer.
One company, Zengen, Inc. apparently didn't and lost not only its case against its bank, but also $4.6 million that Comerica Bank transferred in response to four apparently good checks that were part of an embezzlement scheme by one of the company's employees.
Soil, Grading and Compaction Reports Now Open To Public Scrutiny
You're a developer or geologist, and you submit grading documents, geology reports, compaction reports and maybe even soils reports to cities and counties as a consequence of your permit requirements. Especially if the work is done in a hillside area. Up to now, most cities and counties refused to allow individual citizens to copy those reports because they were not deemed "final" until approved by city staff. As developers know, however, no grading is allowed until the reports have been "finaled/"
The government's denial of requests for these records slows down public records requests, but what's the real reason? No one in government wants someone else (read project opponents) looking over their shoulder while doing their work.
Well, the government can avoid that level of scrutiny no longer.
California Attorney General Bill Lockyer responded to State Senator Sheila Kuehl's (D-LA) request for some clarification on the point of whether the cities and counties could deny access to these documents after receiving a Freedom of Information Act request under the California Public Records Act. His opinion, issued late last month, instructs the government to make these records available upon request and denies the use of certain exceptions under the act.
Typically, you also can't get architectural plans through a public records request because the cities and counties require a release from the architect based on fear of violating a copyright. Although architectural plans are not addressed in this opinion, they may suffer the same fate if challenged. The lesson here? Availability is increasing, which means close scrutiny of these documents is increasing as well.
Big brother in reverse.
Business Owners May Not Be Individually Liable To Employees For Unpaid Wages
You may be the "top guy" or the "big wig" and perhaps even "El jefe" at your company, but that doesn't make you liable to employees for unpaid wages - at least in California. You may even exercise day-to-day control over the operations of your company, but that still doesn't make you liable (assuming, of course, that there's no fraud involved and you scrupulously maintain your corporate records and don't intermix personal and business expenses).
Federal law is drastically different - you may be held liable as an employer under the Fair Labor Standards Act. You won't, however, be liable to California's Division of Labor Standards Enforcement. The key is in the definitions in the two codes. The FLSA includes an owner who exercises operational control over the company as an "employer." California labor law, on the other hand, has no such consistent definition.
William Gregory founded a summer camp company some 20 years ago with about 60 campers. After years of steady growth, the company netted some $10 million of revenue for the three summer months. Apparently Mr. Gregory either sold his company, Science Investors, to some investors or somehow ceded financial control to them back in 1999. Things recently went wrong when the company had a cash flow shortfall, despite the $10 million in gross revenue. The long and short of the story finds some 555 summer instructors and 147 administrators unpaid. The DLSE sued on behalf of 45 employees and obtained a judgment just over $110,000, and then sought to hold Mr. Gregory personally liable. His company had earlier filed for bankruptcy. The appellate court didn't hold Mr. Gregory personally responsible based on the provisions of the California Labor Code.
This case has an interesting twist, and Mr. Gregory may well still be found liable to his employees. The appellate court sent the matter back to the trial court for further proceedings to determine whether it is appropriate to pierce the corporate veil. If the employee's attorney carefully reads the opinion, he may also amend the complaint to include a cause of action under the FLSA, making liability a foregone conclusion.