May It Please The Court
Quote of the Day - If confusion is the first step to knowledge, I must be a genius.
Toxic Releases Up, No One Agrees WhyI knew things were busier in my practice, and now I may know why.
Releases of toxic materials ticked up five percent last year, for only the second time in two decades, the last increase being in 1997. Some lawyers would be as happy as a mortician in a war. I, on the other hand, am disappointed because releases in 2002 were down thirteen percent. Think about it. All told, in 2002, some 4.79 billion pounds of toxic materials were released. And that was likely the tip of the iceberg. That's the reported amount - not the amount we never hear about.
An environmental group, GHASP, claims the USEPA under-reported toxic releases by over 330 million pounds.
An industry group, the National Petrochemical & Refiners Association has this to say: GHASP's conclusions as misleading, because other USEPA data shows some decreases in nationwide air toxics emissions. The NPRA said the refining industry helped lower pollution through improved technology and management and cleaner gasoline, and pointed to this USEPA air quality report that shows a 31 percent decrease in releases.
But it's not just air, and it's not just one set of chemicals. The USEPA blamed the "extraordinarily large change" on the 1999 shutdown of BHP Copper Company's San Manuel plant in Tucson, Ariz., where 2,000 people worked. Dismantling a plant turns components and product into waste, apparently that got released. By a lot.
"If we were to take that one facility out we would see a 3 percent decrease," said Kimberly Terese Nelson, the USEPA's chief information officer.
The USEPA tracks releases of 650 chemicals at 24,379 facilities. Last year, 25,388 facilities reported their findings, perhaps contributing to the five percent increase, too.
Not necessarily good news.
One in Four Credit Reports BogusWe all have them. Credit reports, that is. You know, the ones that TransUnion, Experian, and Equifax keep on all of us.
One problem, though. Twenty five percent of them are wrong. So wrong, in fact, that one of four are so bad that they result in subprime classification by lenders, sufficient to either deny a credit application or justify imposing a very high interest rate.
This after a series of settlements totaling $2.5 million designed to correct these very problems. In 1996, Congress required Equifax, Experian and Trans Union to provide consumers with a toll-free telephone number and access to credit bureau personnel during normal business hours, with a view to helping people resolve mistakes in their credit reports.
In January 2000, the three credit bureaus paid a total $2.5 million to settle FTC allegations that they blocked calls from more than a million consumers who wanted to discuss their credit reports. Many people also were kept on hold for unreasonable amounts of time, the federal agency said.
The settlements required the bureaus to answer consumer calls within 3 1/2 minutes on average and ensure that 90 percent of callers don't get a busy signal. So, if you call and either get a busy signal or stay on hold too long, you have a right to complain. You don't have to take it.
Of the 197 credit reports collected from people in 30 states, 79 percent had some sort of error, while 54 percent included personal identifying information that was misspelled, outdated, belonged to someone else or was otherwise incorrect. Thirty percent contained credit accounts that consumers had closed but that remained listed as open. Nearly 8 percent were missing major credit, loan or mortgage accounts that indicate creditworthiness, said the Public Interest Research Group.
Beware. Check your credit. Cross-check well before you apply for a major loan. Get it fixed.
The real problem as I see it is that there really may not be any such thing as privacy. After all, if your personal information were truly private, the credit bureaus wouldn't be able to get your bank and loan information in the first place. That way, they couldn't screw it up if they tried.
Think about it.
Imperial Valley Loses Air Quality ChallengeLast October, I blogged about an air-quality case involving Imperial County and the Sierra Club. The October blog post will give you the background.
Basically, the Sierra Club forced the listing of Imperial Valley as a nonattainment area, which means that the entire county did not meet federal clean air standards. The County blamed the failure on bad air coming over the border from Mexico, and fought the designation. The real issue is, of course, money. Nonattainment means that companies in Imperial County are going to have to spend a lot more money to lower the air pollution. The real rub is that they can do nothing to stop the more polluted air from Mexico.
As you would expect after such a loss, the Imperial County Air Pollution Control District appealed to the United States Supreme Court. All the way to the top.
But unfortunately for the County, it was to no avail. The Supremes refused to hear the case, effectively upholding the 9th Circuit's ruling requiring the USEPA to list the County as a nonattainment area.
The Sierra Club, on the other hand, won, and we will ultimately all end up with cleaner air as a result. It's just going to be more expensive, take longer and use more water in an already water-starved area.
The Marshmellow WarrantYou're camping with your grade-school teacher in Yellowstone National Park. Sitting around the campfire, she gets out hot chocolate and makes s'mores. You know, graham crackers, chocolate and marshmellows.
A few ghost stories and it's time for bed, kiddies.
One little mistake, though, but luckily no serious harm, unlike the poor fellow in the last link. Teacher forgets to put away the fixin's. Ranger catches her, issues a fifty-dollar ticket. Expensive lesson, very expensive s'mores.
Time ticks by, say a year or so. Teacher Hope Clarke travels from Riverton, Wyoming to Miami to take a vacation, and goes on a Carnival Fascination cruise. Nice, relaxing trip.
Until she returns to Miami from Cozumel, Mexico. Then, she's hauled out of bed at 6:30 a.m. taken from her cruise cabin, handcuffed, leg shacked and detained for nine (count 'em - that's 9, longer than most people's workdays). Then drug before a federal magistrate to answer for the Yellowstone ticket. For a marshmellow violation.
That's right. The ticket she paid a year ago. The copy of the ticket that the magistrate had (I'm guessing here that the copy came from the Customs Agents who arrested her on an allegedly outstanding warrant from the supposedly unpaid ticket) showed that she had, in fact, paid the ticket.
Admist her sobbing, the Magistrate Judge John J. O'Sullivan apologized and demanded that the Customs Agents answer up. Other than the standard "we thought we were doing the right thing," the Agents had no real answers.
The lesson here?
Be careful kiddies, it's a it's a jungle out there out there, and marshmellows can lead to a life of crime (you're not going to believe this, so scroll down to #4, and look for the "marshmallow (with an "a") effect"). Better to nip it in the bud now.
Past, Present and Future Imperfect DadsHappy Father's Day. My three kids are grown and gone, and I'm lucky if they even remember. Here's one son, who did remember, and who's becoming a lawyer, too.
One of mine is on his way to the practice of law, and attending my alma mater, too. Pretty cool, I think.
My Dad, however, was the farthest thing from a lawyer, who started at the Middleboro, Massachusetts Congregational Church. I guess, though, that the apple does not fall from the tree. We both like to preach, and I think my kids got some of that, too - but don't tell them I told you.
It's nice to remember, and it's nice to look forward. Things are looking good from my seat.
Hope your memories and dreams are bright, too. Enjoy your day, Dad.
Enron, The Trevor Law Firm, Bill Lockyer and 17200Remember Enron? Well, it turns out that the Federal Energy Regulatory Commission has ordered the State of California to repay nearly $270 million in refunds to various energy companies, including Enron.
Seems like we haven't outlived Gray Davis' legacy yet.
The FERC is heaping insult to injury, claims California Attorney General Bill Lockyer. As if we didn't already pay through the nose for all that energy already. Plus another $15 billion to boot.
So, what are we doing about it? Well, for one, Lockyer challenged the FERC's order. So far, so good. How about one better?
Like suing Enron for price manipulation. One day after FERC's order. If FERC denies us, at least we can get the money back from Enron. Here's the Complaint. But before you get too carried away, go to the end of the Complaint.
He's seeking a whopping $2,500 per day against the defendants. Sure, he's also asking for disgorgement (I'm presuming here something in the range of $270 million or so) and $25,000 per day in other fines, but the twist is that he's seeking it under Business and Professions Code 17200.
The twist is that he sought to debar an entire law firm for overusing 17200. Claims the use of the statute is an unfair business practice.
Not that I don't disagree with him in certain circumstances, such as the Trevor Law Firm.
But really. What's not fair for someone else is fair for you, Bill? And all of us Californians?
Seems to me that you ought to be careful where you throw stones.
From Founder to Flim-flam ArtistThe South Coast Air Quality Management District started a program called REgional CLean Air Incentives Market (RECLAIM). In fact, one of our own, Anne Stoltz helped design and start the somewhat successful program.
Now, however, she's been arrested for allegedly developing a Ponzi scheme of trading the RECLAIM credits. This isn't the first time she's fallen from grace. Back in '02 the SCAQMD cited her, foreshadowing this week's action.
But back in 1990, she was riding the crest of the wave.
But what does hindsight tell you about her article in 2000?
Give a Dog A Bone, Not an Arm or an AnkleWe out here on the Left Coast have a unique approach to many things, and oddly enough, to dog bite laws, too. OK, time for disclosure. I'm a defense lawyer, not a plaintiff's lawyer. That said, let's get to the issue at hand.
Seems as though dog owner Nelson needed surgery, and wanted to kennel Mugsey at a vet's during his time under the knife. Mugsey is a Staffordshire Terrier. That's doublespeak for pit bull. Perhaps not surprising, Mugsey was "dog aggressive."
In fact, Mugsey actually had earlier bit Nelson and severed an artery, putting Nelson in the hospital (presumably an unrelated surgery), along with another dog owner Mugsey attacked. Although the recent case from the 1st Appellate District didn't go so far to characterize it this way, I'm guessing Mugsey was "human aggressive," too. After all, it was an artery.
But here's the rub. It appears that Nelson might not have been completely up front with the vet who operated the kennel regarding Mugsey's biting tendencies, however characterized. Then, as you probably know by now, Mugsey bit his handler on her ankle during a walk. Next, as you also have already guessed, our walker, Priebe, sued Nelson.
This is where it gets interesting. The Left Coast has Civil Code section 3342 (second one down), commonly known as the strict liability dog bite statute. You own a dog, it bites someone, you are liable. Period. End of story. Or so you would think.
What would the law be without exceptions to the rule? And yes, we have two, or at least one, with a variant. It's called the Firefighter's Rule, and from that, the veterinary variant, announced first in our case.
Basically, it means no recovery for people employed to handle the very risk where they may be injured. It's an odd rule that results in odd outcomes. Someone negligently starts a fire, the firefighter gets injured, but the firefighter can't recover from the person who negligently starts the fire. But, if it's an arsonist (removing the negligence element), then recovery would be proper.
So too here. Our dog walker was employed to walk dogs, and inherent in that job is the risk of a dog bite. Our illustrious 1st Appellate District Court determined therefore that the veterinary variant applied, preventing application of Civil Code section 3342, the strict liability dog bite statute.
But, that's not the rest of the story. Our Court also decided that the trial court should have instructed the jury on BAJI 6.66, a jury instruction that the occupational assumption of the risk does not apply here because a domestic animal is presumed not to have vicious tendencies, the owner knew about it but failed to disclose it. Check out the last paragraph of the jury instruction, and you'll get the picture.
Remember that Nelson apparently forgot to tell the vet that Mugsey severed an artery in his arm, and put another dog owner in the hospital, too? He will likely get tagged for that failure.
You could say that the Appellate Court threw Priebe a bone.
(I had to say that.)