May It Please The Court
Quote of the Day - They want the federal government controlling Social Security like it's some kind of federal program.
Surprise: California Can Regulate Itself
South Coast AQMD Limits Air Emissions Of State And Local Fleets
We've seen this case before: Engine Manufacturers Association v. South Coast Air Quality Maintenance District. It's been up, down and all around the court system and appellate ladder, all the way to the Supreme Court and back again. In the latest iteration, the government wins. In previous versions, businesses won.
But it's far from over. We're going to see more of this case because the Ninth Circuit sent part of it back to the lower court.
The SCAQMD is trying to regulate vehicle emissions by attacking fleets of cars and trucks of 15 or more, rules that are now seven years old and haven't been implemented yet. As noted in the Court's opening lines, the South Coast Basin is the only area in the United States classified by the US Environmental Protection Agency as an extreme non-attainment area for ozone.
The question before the Ninth Circuit (this time) revolves around preemption. Can the SCAQMD regulate fleets of vehicles or is that task solely left to the USEPA under the federal Clean Air Act?
The Ninth Circuit decided that the SCAQMD can regulate state and local government fleets with these rules. The part of the case that went back to the lower court requires a reexamination of the preemption issue as it relates to private fleets. There's a doctrine of law that applies to the state and its local governments when they act as a market participant instead of a regulator, with certain limitations. Here, the SCAQMD elected to force other branches of the government to fall within its emission regulations when it went to the auto and truck market to purchase cars.
State sovereignty allows the state to regulate itself and local governments within a state. The open question, however, is whether the SCAQMD can also regulate private fleets given the breadth of the federal Clean Air Act.
More to follow. Film at 11 (years from now).
Private Company Levels Class Action Against DHL For Delivering Nothing More Than A Bill
Rarely do you see companies filing class actions. Usually, it's an individual who sues with a cadre of plaintiff's lawyers on the caption. That set of circumstances makes it all the more interesting to consider Cerdant, Inc. of Ohio sued DHL. Cerdant provides network security, data vaults and virtual private networks for other companies and DHL (also known as Airborne Express) delivers packages.
Cerdant, however, alleges that when DHL doesn't deliver a package, it delivers a bill anyway. In fact, Cerdant complains in its complaint that DHL charges "shipping fees" and "fuel surcharges" to customers who price information and print a waybill on DHL's website, but never asked DHL to deliver anything. Cerdant also complaints DHL's website creates billing accounts for potential customers and then sends a bill regardless of whether the potential customer ever delivered anything to DHL to be shipped.
MIPTC looks skeptically at most class actions, and I've frequently complained in the past about the apparent boondoggle of attorneys fees that result, along with the modicum of relief usually granted by the court, such as coupons that frequently go unused instead of actual monetary damages. But that's another rant.
Here's one you'll want to stay tuned to follow. Oh yes. FedEx and UPS? Pay attention, too.
Lawyer 2 Lawyer Internet Radio Digs Deep
A company indicted for involuntary manslaughter? It raises interesting, timely legal questions involving the company that provided the epoxy blamed in the fatal Big Dig tunnel collapse in Boston killing a woman in a car. On Lawyer 2 Lawyer, join me as I welcome David Frank, News Reporter from Massachusetts Lawyers Weekly and Attorney Bradley M. Henry, partner in the Boston law firm of Meehan, Boyle, Black & Bogdanow, P.C. and the "Plaintiffs' Liaison Counsel" on behalf of the children of the victim in this case.
We discuss the case of Milena DelValle, who died after 26 tons of ceiling tiles fell on her in the Boston "Big Dig" tunnel the resulting criminal indictment of powers Fasteners and discuss the reaction to this indictment, charging Powers Fasteners with one count of involuntary manslaughter, the cap on criminal penalties for corporations and what the future holds for the other companies who could potentially be charged for this tragedy.
The ESI Report On The Legal Talk Network Starts Out With a Big Case
Regular listeners and readers know MIPTC is a co-host of the Internet radio show, Lawyer 2 Lawyer on the Legal Talk Network.
The LegalTalkNetwork has launched 'The ESI Report' sponsored byKroll Ontrack, an e-discovery provider who offers computer forensics and consulting products and services. In modern litigation, you can't afford to ignore electronically stored information, so this program is essential for any law practice.
The show is hosted by Michelle C.S. Lange, Esq., Director of Product Line Management and Legal Technologies forKroll Ontrack. Ms. Lange has been a guest on Lawyer 2 Lawyer and is a leading expert on technology's role in the law. She also co-authored the American Bar Association book, Electronic Evidence and Discovery: What every Lawyer Should Know.
The first ESI Report covers advanced e-discovery search technologies with guest Dave Chaplin, VP of Engenium Search. Ken Withers, Director, Judicial Education and Content at The Sedona Conference aslo joins Michele for The Buzz, including news about the recently revised "Sedona Principles." Finally, Joni Heikes, Staff Attorney at Kroll Ontrack provides a Bits & Bytes Legal Analysis of Columbia Pictures Industries v. Bunnell, better known as the RAM case.
By clicking here, you can listen to this Legal Talk Network show, the ESI Report.
Next Time, Deliver Them Yourself
Leroy Greer placed an order with 1800Flowers.com to send one dozen long-stemmed roses and a cuddly plush stuffed animal to his girlfriend. He was nice enough to send along a card that read, "Just wanted to say that I love you and you mean the world to me!"
Pause here for an appropriate "aaahhh" for Leroy's thoughtfulness.
There were just two little problems, however. Leroy was married at the time and when 1800Flowers.com months later sent Leroy a thank you note with a discount coupon for his next order, Leroy's wife didn't remember getting flowers or a stuffed toy as a result of the first order. When she called 1800Flowers.com to inquire, the company sent her a copy of everything, including the invoice, a copy of Leroy's note card and even the name and address of Leroy's girlfriend.
Leroy filed the Complaint because his wife upped the ante in their divorce and moved it into the contested proceedings realm, which means Leroy will end up paying more to his wife, Bernice. Leroy and Bernice were actually separated at the time he sent the flowers/stuffed toy and they had been (mostly) amicably progressing along the way to an uncontested divorce. Apparently, according to the Complaint, Texas law allows for a contested divorce when one of the parties commits adultery, even during a separation pending a final divorce.
There's nothing worse than a woman scorned. When Bernice sent a copy of the incriminating evidence to Leroy, she penned a taunting note at the bottom, "Be a man! If you got caught red handed then don't still lie."
Golf Goes To Court ... Again ... Swinging and Backswinging
The only effective way to get value from a patent is to enforce it. Callaway Golf lives that adage time and again, this time pursuing rival TaylorMade Golf for allegedly violating several of its patents, both on golf balls and golf clubs. Callaway filed the golf club head suit in patent-plaintiff-friendly Marshall, Texas and on the golf ball in San Diego, of all places (both companies are from Carlsbad).
According to the IP Golf Guy, the two suits were filed within five days of each other last week. He's got the entire California complaint on his website, if you're interested, along with links to several previous Callaway suits, including ones filed against Acushnet. In the club head suit, Callaway sued over its patented "Golf Club Head with Audible Vibration Attenuation." According to Callaway, the club head has a structure on the front wall that decreases audible vibration when a golf ball is struck.
I don't know about that. I kind of like that "whack" sound when the club hits the ball, even if the ball goes farther without it. The other suit involves a TaylorMade polyurethane golf ball cover that supposedly produces a softer feel and increased ball spin.
You can expect a TaylorMade backswing: an LA Times article by Molly Selvin quotes "TaylorMade spokesman Scott Leightman [who] said: 'We feel good about our case against their allegations. . . . There are two sides to the story.' TaylorMade executives believe 'many currently available Callaway drivers infringe on several TaylorMade patents covering industry-leading metal wood technologies,' Leightman said, adding that the company had not gone to court against Callaway."
Big business Callaway golf reports income last year of just over a billion dollars. A division of Adidas, TaylorMade's income will likely hit one and a half times that of Callaway.
It's a game, but in Court, this game translates into dollars for Callaway and for euros TaylorMade, along with some pretty serious bragging rights about who makes the best club and the best ball.
Don't look at me. My only tournament golf trophy is for the highest score. I must have misunderstood the scoring system.
MIPTC Steps Inside the Small Screen
I had the opportunity to participate in a television interview this past weekend, hosted on The Insider Exclusive TV Show with Steve Murphy. You can click on the link above and watch the video, with sound, from the Insider Exclusive website. Let me know what you think!
California Can Regulate Website Advertising If Water Filters Sold In-state
PuriTec sells water filtration devices throughout the world from its headquarters in Nevada, and mainly so through its website. PuriTec, not surprisingly, sells its filters in California, too. In its website advertisements, PuriTec claimed that its filters removed or reduced organic, inorganic or microbiological contaminants.
California has two statutes that require water filter companies to submit their filters to the Department of Health Services for certification that the filters live up to these claims.
Prior to 2003, PuriTec had not submitted certain filters to the DHS for certification, but nonetheless advertised those filters on its website, advertising the claims regulated by statute. When DHS found out, it issued a Notice of Violation to PuriTec, and in response, PuriTec said it would remove the claims from its website. In the words of the court of appeal, over the following year PuriTec "assured DHS that it would change its website to comply with California law, but it dragged its feet along the way."
DHS wasn't happy about the foot-dragging, and sued PuriTec to gain compliance.
PuriTec defended the lawsuit, and drug up the defense of the "dormant commerce clause," which is shorthand for saying a state cannot legislate requirements that interfere with interstate commerce. PuriTec essentially claimed that California's regulations created a burden on its ability to sell its products throughout the country. It said California's regulations discriminated in favor of filter companies in California and the benefit of the certification process did not outweigh the burdens on its sales.
The Court quickly dealt with PuriTec's claims, ruling that in-state companies were regulated in the same manner as out-of-state companies, and Californians (as well as residents of other states, presumably) benefited substantially from the DHS' efforts to make sure PuriTec's products lived up to its advertising claims.
The Court's opinion caused PuriTec to create a separate website for California residents, where its products are certified by the state as compliant with its advertisements. PuriTec has another website for everyone else, presumably listing filters not certified for sale in California.
You can decide which site you want to buy products from.