May It Please The Court
Quote of the Day - You never ask why you've been fired because if you do, they're liable to tell you.
Twice Is Just As Nice: If Firing Your Employee Didn't Work The First Time, Then Try It Again
You can fire your employees twice.
That's right, twice, I said. Why would you need to fire an employee twice? Let's say, for example, that your employee sues to be reinstated after you fire the employee the first time. Then the employee gets reinstated, and just to add insult to injury, say with back pay and penalties. Ouch.
Can you fire your employee again? The answer is yes, if you're in the Ninth, Seventh or now Third Circuits. Click on the link for map. Of these three, MIPTC is admitted only in the Ninth, so consult your local attorney if you're an out-lander. Mirroring decisions in both the Ninth and Seventh Circuits, the Third Circuit just released this opinion, approving the second termination of an employee, once for using a stolen receipt to pick up meat from the company, and the second time for beating up a security guard who was involved with the first termination.
Presumably, if an employee wins reinstatement a second time, you can fire the employee a third time, but no court has approved that circumstance yet.
Call me silly, but maybe the arbitrator approving the first reinstatement got the message the second time around.
The Sky Is Falling; It's Y2K All Over Again
E-Discovery Comes of Age, Right In Time For The Holidays
If you've been in business long enough to remember the hullabaloo over computers' supposed inability to deal with any date after 2000, then you may pause slightly when you read about the impending doom and gloom over the federal government's new E-discovery rules.
But don't pause too long.
This time, it's real, and unlike the supposed Y2K fiasco featuring Steve and Bill (Jobs and Gates, respectively), the other side of this issue features federal judges. With lifetime appointments, if I forgot to mention that fact before. Remember, they have lightning bolts at the ready.
If you have any questions, ask a geek lawyer.
Who Will Pick Up The Torch?
As an environmental lawyer, MIPTC notes with deep sadness the death of Daniel J. Curtin, Jr., who among many other things almost singlehandedly drafted California's Environmental Quality Act Guidelines.
We owe a deep debt of gratitude to this visionary, the likes of which we rarely get to glimpse.
MIPTC Announces Its Association With Newspapers; Dead Or Alive?
These two services take MIPTC's daily feed and channel it to various news services, including newspapers like the Washington Post and the Houston Chronicle. Other services include Xinhua, the state news agency of the People's Republic of China, AP, UPI, the BBC, the Korea Times and Al Bawaba, the news source for the Middle East.
So why apparently concede to the success of newspapers despite my pronouncement that they're dead? Your own experience and a close reading of my post shows that while newspapers may have one foot in the grave, they're likely to go the way of radio - still on the air and the choice of many New York train commuters.
Besides, why not proselytize to the Middle East?
How Can You Lose A Case You Already Won? Read on ...
Here's a conundrum for you: as a defendant, you win a lawsuit against the plaintiff. The court holds that you owe nothing to the plaintiff. Zip. Zero. Nada. Butkus.
Not to be outdone, however, the plaintiff sues someone else, and then that someone else sues you, seeking indemnity for the very same thing the plaintiff sued you.
Do you owe money to the someone else? Of course not, you think. I already won that lawsuit, so how could I be liable to someone else for the same thing that I'm not liable to the plaintiff?
You may not have read the case entitled: Prince v. Pacific Gas & Electric Co. yet.
Let's get to the facts. Ten-year old Joshua Jackson and his friend were playing video games at the friend's house and got bored. His friend's Mom suggested that Josh and and her son go outside and fly Josh's new kite. They did, but the kite got away from Josh and became tangled in some low-hanging power lines on his friend's Grandmother's property, just next door.
The boys knocked on Grandma's door to get help, but she wasn't home. They spied an aluminum pole just long enough to reach the kite, and tried to free the kite from the power lines. The pole accidentally touched one of the power lines, and Josh was severely injured. Not surprisingly, Josh sued PG&E to recover for his injuries.
PG&E won in a case referred to as Jackson I. There's a statute in California that protects easement holders like PG&E for injuries resulting from recreational use of their easements. Josh's use in flying a kite easily qualified as a recreational use, so PG&E ended up not liable to Josh.
Josh next sued his friend's Grandmother, who promptly cross-complained against PG&E for indemnity. PG&E responded that the company couldn't be liable for two reasons: first, they won in the first suit, so they couldn't be liable here. Second, PG&E claimed that there can be no indemnity where there is no liability. The Grandmother, you see, "enjoyed" the same protection from liability as PG&E, since Josh's use of her property was recreational.
Here's where it gets a bit tricky.
The easement Grandma granted to PG&E, however, requires that PG&E maintain the power lines in such a way that they won't injure someone. Here, as noted above, the power lines were hanging too low, allowing Josh to reach them with an aluminum pole. Typically, in a tort case, the idea that PG&E has no liability would likely hold up, but here we're dealing with a contract, which invokes an entirely different theory of laws.
PG&E"s problem, is two-fold. First, a child got hurt, and courts don't like to allow children to be hurt without compensating them. More important and perhaps much more relevant, however, is that PG&E breached its contractual obligation to Grandma. It didn't maintain its lines in a way that would have avoided injury to Josh. So, the Court ruled that PG&E is obligated to pay Grandma.
The real problem with PG&E's argument that there is no indemnity without liability lies in PG&E's own actions. It created the situation that resulted in Josh's injury.
The legal wrangling in the case linked above is a great read for lawyers involved in these types of cases, especially here where this case is the first time a California case has applied the "no indemnity without liability" in a case involving contracts.
Newspapers Are Dead; Internet Dispenses Expert News And Analysis Like No Other
OK, maybe the headline is a bit overstated, but perhaps not by too much. Think about it this way - why are you reading a legal blog? Why do you turn to any number of other Internet sources for specific types of information? You use the Internet for much more. Can you get the kind of legal analysis you get here in a newspaper? The law isn't the only search you've run on Google recently.
And think about this ruling barring the San Francisco Chronicle and the Hearst Corporation from joining forces, with one federal judge issuing a temporary injunction to stop the merger. The two intended to offer joint distribution services and advertising to their clients, but are now barred from doing so, at least for the nearly foreseeable future. The case is far from over, but TROs are not issued unless there is a likelihood of success, which the government appears to have established.
Communicating news to one another has been with us longer than anyone knows, and it will be with us for a long time to come. The form it will come in, however, remains an open question. Newspapers are a comparatively recent phenomenon, and have stayed with us largely because they generate profit for those who publish them and because they provide a more tangible source than radio and TV news. The nascent Internet news sources have yet to develop a model broad enough to allow bloggers and independent journalists the same method for profit, but the medium is changing as those same newspaper advertisers embrace the Internet.
Remember when our parents listened to the radio and advertisers flocked to radio stations? Television claimed the same demise of radio once it debuted, but we still have radio. The Internet claims the same demise of newspapers, but as more computers come online, advertisers will likewise turn to the Internet to reach buyers, but will will still have newspapers, much like radio exists alongside TV.
Some journalists label the demise of newspapers as a slow suffocation, but many point to the continued profitability of papers to argue that they're not dead, despite what some of their most profitable columnists think.
This discussion is not new, and newspapers are obviously far from dead. While many would put newspapers on life support, newspapers will be relegated to the same corner as radio, alongside Internet news, but split into many sources. Advertisers will have to join in or lose their audiences.
It's time for advertisers to catch up. Many of us stopped reading newspapers long ago, we have TIVO to skip TV commercials and XM and Sirius to avoid radio commercials.
Figure it out.
Coast to Coast Internet Gets the Skinny on Compliance
Corporate governance is one of the main concerns for American corporations. In this show, we will discuss the compliance issues that companies are facing and the General Counsel’s role. Is the GC the ‘guard-dog’ of corporate compliance?
Join me and my co-hosts and fellow Law.com blogger Robert Ambrogi as we welcome this week's experts. Coast to Coast turns to Attorney Lanny J. Davis, partner from the Washington D.C. office of the global law firm, Orrick, Herrington & Sutcliffe, Gary Levine, President and Founder of Two Step Software, Inc., which provides tools for compliance and finally Professor Charles Elson, Chair in Corporate Governance and the Director of the John L. Weinberg Center for Corporate Governance at the University of Delaware.
This show is of interest to general counsel and corporate compliance officers.
Prevent Unauthorized Access To Your Computers Through Rules
Fine. You've got hardware firewalls, software firewalls, spam filters, phishing filters and even antivirus programs running on your computers to keep out hackers.
But do you have rules?
What's that? Rules, you say? We don't need no stinkin' rules; nobody can get in our computer system from the outside.
Perhaps true, but what about your employees on the inside? How do you protect your computer data from them and prevent unauthorized access? According to a spate of recent court decisions under the Computer Fraud and Abuse Act, you need rules if you intend to protect your data from access by your employees and former employees. That means a set of written rules specifically tailored to your industry and thoroughly communicated to your employees.
Take, for example, a hospital. An employee in the hospital's IT department should not be allowed access to the actual content of patient files and records because that employee is not treating the patient. Doctors and nurses, on the other hand, need to see the patient's chart, but at the same time, probably don't need to see the patient's social security number or financial information to properly treat the patient. You get the idea.
But don't stop there. If your customers or vendors access your servers to place orders or obtain other information, then you need a clear set of guidelines for them, as well. You'll also want to ensure your customers and vendors receive notice of your guidelines, too. This article provides an in-depth discussion of the relevant cases, if you're interested in the specifics. If you're in need of a set, give me a call. I'm not only a geek, I'm a lawyer, too.
Once you have a set of rules in place that have been clearly communicated to those concerned, you can then use the CFAA as a weapon to prosecute employees and others who gain unauthorized access to your computer data. Although it may also be a crime, you don't even have to wait for the U.S. Attorney or your local District Attorney to prosecute the case. Your company can rush in and get an injunction preventing further use of the data, access to your computer systems and requiring the return of the data.