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Zombies on the march in Minnesota


Of course! It all makes perfect sense now. The zombie vote. That explains how Al Franken was elected Minnesota’s newest U.S. senator. 

I mean, you have the dead dead voting in Chicago. Why not the living dead voting in the Land of a Thousand Lakes?


What tipped me off to the truth was this decision from the 8th Circuit. Yesterday, the court struck a blow for the constitutional rights of zombies everywhere.


That’s right, breaking new ground under the Fourth Amendment, the court said that police need probable cause to arrest, even if you are a zombie.


Here’s the scoop.


Zombies may not be the brightest bulbs around, but like the rest of us they care about the direction the country is heading.


In Minnesota, a group of zombies decided that protesting the “mindlessness” of today’s consumer culture was a statement that just needed to be made.


So they decided to stage a protest at the perfect venue to make that point: the Nicollet Mall in downtown Minneapolis.


And when you want to grab the attention of lots of people in Minneapolis, there’s no better time than during the week-long summer festival known as the Aquatennial.


At about 6 p.m. on Saturday, July 22, 2006, the crowd of Aquatennial revelers was joined by zombies Jessica Baribeau, Jamie Jones, Raphi Rechitsky, Jake Sternberg, Christian Utne, Kate Kibby and her younger zombie brother, Kyle Kibby.


The zombies wore standard issue zombie dress, accented by white powder and fake blood on their faces and dark makeup around their eyes.


After a zombie group hug, they proceeded down the mall, walking in their customary stiff, lurching fashion, carrying four bags of sound equipment from which they blared music from an iPod.


Now, you and I might perceive an inherent contradiction in buying an iPod and then using it in a protest of America’s consumer culture, but we’re talking zombies here, people, so let’s cut them some slack.


Using the sound equipment, the zombies also broadcast announcements such as “get your brains here” and “[b]rain cleanup in Aisle 5,” apparently in an effort to raise awareness about the plight of rampant consumerism.


Okay, I agree. The zombies’ protest slogans come across rather weak. But again, please keep in mind that these are zombies.


With zombies stumbling through the Aquatennial crowd and blaring music, it didn’t take long for the police to show up.


Yep, someone called 911 to complain about “people calling themselves zombies” playing loud music and “almost touching people.”


Officers Timothy Merkel and Roderic Weber showed up to figure out what in the Wide, Wide, World of Sports was going on.


The zombies explained that they were making anticonsumerist commentary, and with a warning to tone it down a bit, the officers let them go on their way.


Later in the evening, a concern was raised that the zombies were members of the Juggalos, a violent gang known for wearing face paint.


So Merkel and Weber decided to approach the zombies and ask for identification. This is when the trouble started.


The officers found the zombies gathered on a street corner. Weber said that there was at least one child in the surrounding crowd who appeared to be frightened by the group.


So when most of the zombies couldn’t produce identification, they were hauled off for disorderly conduct and spent two nights in jail.


Now, zombies know their rights. These particular zombies sued Minneapolis, claiming that they had been arrested without probable cause.


Yesterday, the 8th Circuit agreed that the city was not immune from the zombies’ §1983 suit and reversed a summary judgment in the city’s favor.


First, the court decided that Minnesota courts had narrowly interpreted the state’s disorderly conduct statute to protect expressive conduct.


Here, the 8th Circuit concluded that the zombies were engaged in conduct protected by the First Amendment.


“The plaintiffs intended to protest mindless consumerism when they dressed in zombie costumes, walked erratically, and broadcasted anti-consumerism statements over a makeshift, portable sound system,” the court said.


It followed that an unlawful arrest had occurred.


The court explained that “[b]ecause the plaintiffs’ conduct was expressive conduct and did not amount to fighting words, their conduct clearly did not fall within the narrowed reading of the disorderly conduct statute. Thus, there was no probable cause to believe the plaintiffs’ expressive conduct violated the statute. Accordingly, we hold that Merkel and Weber violated the plaintiffs’ Fourth Amendment rights.” (Baribeau v. Minneapolis)


Circuit Judge Steven Colloton dissented, arguing that decisions by the Minnesota Supreme and Appeals Courts did not support the majority’s narrow reading of the state’s disorderly conduct law.


Colloton contended that probable cause existed to arrest the zombies because the state’s disorderly conduct law plainly applies to persons who engage in “boisterous, or noisy conduct … tending reasonably to arouse alarm, anger, or resentment in others.”


The dissenting judge wrote that the “officers knew collectively that the plaintiffs played music loudly over their speakers on downtown streets while an outdoor festival was ongoing, that they were ‘coming up close to people,’ and that someone called 911 to complain that they were loud and almost touching people. These facts were sufficient to warrant a reasonable person of caution in the belief that the plaintiffs engaged in boisterous or noisy conduct that was likely – and that the plaintiffs had reasonable grounds to know was likely – to arouse alarm, anger, or resentment in others.”


This is a tough one.


Generally, I’m a law and order guy. Since it’s a well-known fact that zombies rise from the grave and go on flesh-eating binges, my sense is that police should have probable cause to arrest zombies on sight.


That goes double for when they’re in my neighborhood.


But I’m not some highfalutin judge on the U.S. Circuit Court of Appeals, so what do I know?


It is true that the zombies in this case seemed pretty tame by zombie standards.


The record doesn’t show that they were chomping on anyone at the Aquatennial. And it just doesn’t seem right that their social activism should be held against them.


So in the end I come down on the side of the zombies and the First Amendment. Besides, the way things are going, Al Franken will need every vote he can get next time around. — Pat Murphy




Airline tries to ‘pick off’ irate customer

There must be a special place in Hell reserved for airline executives. Any doubt about that was erased a few years ago when they started charging extra for checked-in luggage. 

Yet, we can be thankful for those airline passengers who decide they just won’t take it anymore and battle the Darth Vaders of the airline industry tooth and nail.


Andrea Barber is one of those guerilla fighters, and her battle with American Airlines provides a lesson for consumer attorneys in how to parry a tactic that businesses often use to short-circuit class actions.


No refund for you!


Barber’s tale began when she booked a flight from Chicago to White Plains, New York, scheduled for Aug. 11, 2008.


Barber showed up at Chicago O’Hare Airport for the flight and was greeted by the news that American Airlines had just started charging passengers extra for luggage.


So Barber forked over an additional $40 for two suitcases that she checked in.


As if that bitter pill wasn’t tough enough to swallow, American Airlines proceeded to cancel her flight.


Barber’s annoyance turned to outrage when American Airlines said her baggage fee was non-refundable.


According to Barber, a ticket agent told her that American Airlines was entitled to keep her $40 because she requested a refund of her ticket instead of accepting a later flight.


Four days later, Barber sued for breach of contract in Illinois court. She alleged that nothing in American Airline’s baggage policies authorized the company’s retention of baggage fees in the event of a cancelled flight.


What got the airline’s attention was that Barber filed a class action claim on behalf of those customers who were also out their baggage fees following a cancellation.


American Airlines evidently figured it had a problem on its hands, so the corporate wheels slowly started to grind to make the problem go away.


Six weeks after Barber sued, American Airlines credited her credit card account with a refund of the baggage fee.


Problem solved. At least that’s how the trial judge saw it, concluding that Barber’s case had been rendered moot by the refund and granting American Airlines’ motion to dismiss.


‘Pick off’ move foiled


Barber knew what had happened. American Airlines had “picked her off” before she could develop her class action. But could she revive the suit?


Earlier this month, the Illinois Appellate Court said she could.


The court acknowledged that one huge problem for Barber was that American Airlines had tendered the refund before she had even filed a motion for class certification, let alone getting her class certified. That generally means that the case is over.


But the court gave Barber some room to maneuver.


It said that when a “when a plaintiff makes a ‘pick-off’ allegation, and a defendant’s refund occurs before plaintiff’s motion for class certification, a court must consider ‘whether, under the circumstances, the plaintiff exercised the required reasonable diligence in pursuing his class action claim.’”


Fortunately for Barber, she was sufficiently diligent in pursuing her class claim to negate American’s Airlines attempted pick-off move.


The court was impressed by the fact that Barber had started the discovery process to identify class members one month after serving American Airlines with her complaint. Shortly thereafter, Barber moved to compel discovery.


“By seeking discovery promptly and filing a motion to compel it, plaintiff ‘exercised the required reasonable diligence’ in pursuing her class action claim,” the court said.


It concluded that Barber’s “‘pick-off’ claim survives the tests articulated by this court….. Thus, defendant’s unilateral act of crediting plaintiff’s credit card did not make plaintiff’s claim moot.” (Barber v. American Airlines)


— Pat Murphy


Gov’t car auction leads to Mexican jail

When the federal government sells you a car, you’d think that it would be safe to assume that the vehicle doesn’t contain a secret stash of illegal drugs. 

Francisco Agredano found out the hard way that it’s best not to assume anything when dealing with the government. 

All Agredano wanted was a good deal on a used car. In 2001, Agredano attended an auction of forfeited vehicles held by the U.S. Customs and Border Protection Service. 


At the auction, a 1987 Nissan Pathfinder caught Agredano’s eye. He purchased the vehicle and happily took his prize home. 


All was well until Jan. 24, 2002. That fateful day found Agredano and his friend, Alfonso Leon, tooling around Mexico in the Pathfinder. 


They came upon a checkpoint manned by Mexican soldiers. No problem, they thought, they had nothing to hide. 


You can imagine their shock when the soldiers inspected the Pathfinder and came across a cache of marijuana. 


Agredano’s shock turned to horror when he and his compadre were hauled off to a Mexican prison.


Of course, it was all a huge mistake.


The Pathfinder had come into the possession of U.S. Customs when its previous owner was caught attempting to transport marijuana across the Mexican border. While Customs agents detected and removed some of the marijuana at that time, more remained secreted in the vehicle.


That’s what the Mexican military discovered when they stopped Agredano.


The problem for Agredano was proving to Mexican authorities that the marijuana was an unfortunate leftover from the Pathfinder’s previous owner. And sorting out the whole mess would take time, time that Agredano and Leon would be stuck in Mexico’s infamous prison system.


A Mexican court finally did exonerate the two men, but not until they had spent nearly an entire year behind bars.


Naturally, Agredano had a beef with the U.S. government. He sued under the Federal Tort Claims Act, alleging that Customs agents were negligent in failing ensure that there was no more marijuana in the Pathfinder before it was sold to him.


But that claim was foreclosed by recent Supreme Court precedent that a statutory exception to the FTCA bars all claims based on any injury suffered in a foreign country, regardless of where the federal government’s negligent actions occurred.


Agredano had one more trick up his sleeve.


He sued the government for breach of warranty.


Agredano’s theory of the case was that a contract arose when he agreed to purchase and Customs agreed to sell the Pathfinder, the contract contained an implied-in-fact warranty that the vehicle did not contain contraband, and Customs breached this warranty.


The U.S. Court of Federal Claims bought this argument.


Because Agredano had a hard time of it in Mexican prison, the Court of Claims awarded him damages for his past and future medical bills and his past and future psychiatric treatment. Agredano also was awarded his attorney fees incurred in the criminal proceedings in Mexico, as well as what it cost his family to visit him in prison.


Unfortunately for Agredano, the Federal Circuit on Wednesday overturned that verdict.


The Federal Circuit found that “Customs’ responsibility to remove contraband from forfeited vehicles does not provide a contractual warranty to future purchasers of the vehicles that it has done so. While Agredano is correct that the sale of the vehicle was a commercial transaction, not a regulatory function, the source of any responsibility on the part of Customs to search vehicles and remove contraband is its regulatory function and a failure to adequately perform this responsibility does not provide a contractual remedy.”


Probably Agredano’s main problem was that U.S. Customs sold him the Pathfinder “as is.”


The bidder registration form that he signed at the car auction bound him to the terms of Custom’s sales catalog for the event, which expressly stated that vehicles were sold “without warranty or guarantee as to condition, fitness to use, or merchantability stated, implied or otherwise.”


The court found that the disclaimer showed “that Customs did not intend to make any warranty with regard to the vehicle. The meeting of the minds required to form an implied-in-fact warranty therefore could not have occurred.” 


Agredano’s last arrow in the quiver was his contention that the disclaimer was limited to the mechanical operation of the vehicle. 


But the court said that Agredano’s interpretation of the disclaimer “ignores the language found in the sale catalog, which indicates that the disclaimer goes beyond mechanical operation of the vehicle by stating that no warranties are provided ‘regarding any aspect of the vehicle or its ability to operate’” 


The court noted that the sales catalog for the auction “offers as examples of aspects of the vehicle for which no warranty is provided the vehicle’s identity, previous ownership, and registration status. These examples further demonstrate that the disclaimer is not limited to the ability of the vehicle to function for transportation. Customs clearly and unambiguously stated that it was not extending a warranty regarding any aspect of the vehicle, and it is incongruous to find that Customs impliedly warranted what it expressly disclaimed.” (Agredano v. United States


This seems like a pretty harsh result for Agredano. After all, he appears to be the quintessential innocent bystander caught up in a Hitchcock-like twist of plot. 


For lawyers and plaintiffs alike the case serves as a stark reminder that every injury does not necessarily have a remedy.


— Pat Murphy


Employee beats computer crime rap

Who would ever dream that the back story for a cutting-edge case on computer crime would begin with a drunk driver answering the call of nature on the side of a road? 

Somehow, we get from that dreary image to answering an important legal question: Does an employee commit a crime when he uses his password-protected access to his employer’s computer system for a purpose that violates workplace policies?


The saga begins with a traffic stop in Mercer County, New Jersey.


In the early morning hours of Jan. 6, 2008, Princeton Borough police stopped a suspected drunk driver. Police Sergeant Robert Currier participated in the stop.


At some point, the driver apparently indicated that he desperately needed to answer the call of nature.


Currier, demonstrating the humanity and common sense that most of us would appreciate in a good police officer, allowed the driver to step into some nearby bushes and relieve himself.


All well and good except that Currier has an enemy in the Princeton Borough Police Department.


For reasons unknown, Sergeant Kenneth Riley allegedly has it out for Currier.


Riley got wind of Currier’s encounter with the drunk driver. Because allowing public urination isn’t exactly in accordance with the letter of the law and department policy, Riley saw an opportunity to cause Currier some grief.


That’s when Riley allegedly took two steps that resulted in criminal charges against him.


Traffic stops by the Borough’s police officers are digitally recorded and automatically downloaded to the Mobile Vision Recorder (MVR) database on the department’s computer system.


Knowing this, Riley allegedly used his computer password to access the MVR database and view the video of Currier allowing the drunk driver to relieve himself in the bushes.


Riley allegedly then showed the video to others in the department with an eye towards embarrassing Curry and perhaps getting him disciplined. 


Now, police department policy allows supervisors such as Riley to view and disseminate MVR videos for training and job evaluation purposes.


But because Riley accessed the video of Currier’s traffic stop for an allegedly improper purpose, the state of New Jersey indicted Riley for violating provisions of the state’s computer crime law.


Under New Jersey law, a person commits a third degree offense if he knowingly or purposely “accesses” computerized data “without authorization” or “in excess of authorization.” A person also commits a third degree crime if he knowingly or recklessly discloses the data that was wrongfully accessed.


So Riley was charged with both criminally accessing and disclosing the recording of Currier’s traffic stop that was stored on the department’s computer system.


This raised a question of first impression for Judge Mitchel Ostrer of the New Jersey Superior Court.


In seeking to dismiss the indictment, Riley argued that the computer crime laws at issue did not apply to him because he had password-protected access to the department’s computer system.


Last week, Ostrer found the statutes ambiguous.


“It is uncertain what it means, first, to access computerized data, and second, what it means to do so ‘without authorization’ or ‘in excess of authorization,’” Ostrer wrote. “It is also unclear whether unauthorized access may be proved solely with evidence that a defendant, who is an employee or other ‘insider’ with current password-access, knowingly violated internal guidelines regarding use of computer-based information.”


Faced with a perceived ambiguity in the criminal code, Ostrer adopted a narrow reading of the term “authorization” that precludes the conviction of employees with password-protected access to the computer database at issue.


“Neither the statute’s plain language, nor its legislative history, clearly compels a broad reading of the statute that supports the State’s indictment,” Ostrer concluded. “Under such circumstances, this court must construe the statute strictly, against the State and in favor of defendant. A strict construction, favoring defendant, would limit the concepts of ‘without authorization,’ and ‘in excess of authorization,’ by construing ‘authorization’ to refer to password or code-based rights.”


In dismissing the computer-crime indictments against Riley (leaving intact charges of official misconduct), Ostrer submitted the proposition that employees regularly violate workplace guidelines concerning computer use.


The judge said that to criminalize such commonplace misconduct would open a Pandora’s box of criminal prosecutions.


“[A]ssuming that a broad range of the population violates internal workplace computer use policies at one point or another, then deeming such violations a crime would empower the State, unguided by firm definitional standards, to choose to prosecute whomever it wishes from that broad cross-section of the population. The vagueness doctrine is designed to prevent that. In short, the criminal law should not be some pliable material that the State may bend and mold at will to fit an unwarned defendant,” the judge wrote. (New Jersey v. Riley)



— Pat Murphy


Stupid juror tricks: Anti-Semitic slurs give employer a second shot


She said what?

Yep, it’s time to be appalled by the fact that there are still jurors out there whose ugly beliefs can make a train wreck out of a perfectly good trial. 

These are the sorry facts.


A Missouri jury slapped Pepose Vision Institute (PVI) with a $130,000 wrongful discharge verdict.


Michelle Fleshner had sued PVI, a refractive surgery practice, alleging that she was fired because she spoke with a U.S. Department of Labor investigator concerning alleged overtime violations at the company.


After the jury was dismissed, one juror approached PVI’s attorneys complaining about anti-Semitic comments made during the course of deliberations.


According to the juror’s affidavit, another juror described the wife of PVI’s president — who testified for the company — as a “Jewish witch,” “Jewish bitch” and “penny-pinching Jew.” This foul-mouthed juror allegedly said that the witness “was such a cheap Jew that she did not want to pay Plaintiff unemployment compensation.”


The trial judge denied PVI’s request for a new trial, following the general rule that a juror’s testimony about jury misconduct affecting deliberations may not be used to impeach the jury’s verdict.


But the Missouri Supreme Court on Tuesday concluded that the allegations of juror misconduct in the case against PVI were so over the top that the general rule did not apply.


“The alleged anti-Semitic comments made during deliberations in this case are ‘not simply a matter of “political correctness” to be brushed aside by a thick-skinned judiciary,’” the court said.


Instead, the court held that “if a juror makes statements evincing ethnic or religious bias or prejudice during jury deliberations, the parties are deprived of their right to a fair and impartial jury and equal protection of the law.”


So the court decided that the trial judge goofed by overruling PVI’s motion for a new trial without first holding a hearing to determine whether the anti-Semitic comments were actually made. (Fleshner v. Pepose Vision Institute


This is the second recent decision in which state courts have seemingly adopted a zero tolerance policy when it comes to the expressions of bigotry in the jury room.


In December, the Washington Court of Appeals decided that jurors’ racially insensitive remarks against a plaintiff’s Japanese-American lawyer justified overturning a defense verdict rendered in a medical malpractice case.


The juror misconduct alleged in Fleshner v. PVI would appear to be more extreme, with particularly ugly anti-Semitic statements directed against a witness who in essence was a party in the case.


In the Washington case, the racially insensitive remarks seemed to be more in the line of ham-fisted attempts at humor.


In any event, the lesson seems clear: If you’re dissatisfied with a verdict, the whiff of bigotry in the jury room may be just enough for your client to get a second bite at the apple.  


— Pat Murphy



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‘Bait and switch’ victim escapes arbitration



You gotta love car salesmen. Those wacky tricksters are always up to something. 

Just ask Amos Partain. The South Carolinian claims he agreed to buy one particular Nissan truck from Upstate Auto Group and ended up with another Nissan truck that was not nearly as nice.


Here’s how one happy shopping experience turned sour.


Partain was in the market for a truck in March 2006. So he went to Upstate Auto and there was greeted by Mikel Gadoran, one of the dealership’s many fine salesmen.


Partain had his eye on a 2006 Nissan truck. Partain and Gadoran got right down to the ancient rite of haggling over price, but Partain left the showroom without a deal.


As car salesmen typically do, Gadoran later phoned Partain and (Surprise!) informed him that Upstate Auto’s sales manager had authorized the sale at Partain’s offered price. So Partain returned to test drive the truck and give the go ahead for the purchase.


Gadoran called several days later and told Partain that his vehicle was ready.


Things went awry at that point. Partain showed up at Upstate Auto to complete paperwork and drive the truck home.


But as Upstate Auto employees walked Partain through the “vehicle introduction” process, he noticed that a truck bed extension previously affixed to the truck was missing. Upstate Auto employees allegedly assured Partain that the extension had been removed but would be reinserted, so he took the truck home.


Eventually, though, Partain came to the conclusion that the truck was not the same vehicle he had negotiated to buy and taken for a test drive.


When Upstate Auto refused Partain’s demand to make things right, he sued alleging a “bait and switch” in violation of the South Carolina Unfair Trade Practices Act.


Upstate Auto had an ace up its sleeve in that Partain’s purchase agreement included a broadly worded arbitration clause.


But on Monday, the South Carolina Supreme Court decided that the arbitration clause did not apply to Partain’s claim because Upstate Auto’s alleged actions constituted “illegal and outrageous acts” unforeseeable to a reasonable consumer in the context of normal business dealings.


“Partain cannot be held to have foreseen that Upstate Auto, after completing a sale, would substitute an entirely different vehicle in place of the truck he had agreed to purchase,” the court explained. “Moreover, Partain cannot be held to have contemplated that, in signing the arbitration clause, he was agreeing to arbitrate claims arising from allegedly fraudulent conduct.”


The court cautioned that its decision in favor of Partain should not be read as providing an “end run” around arbitration clauses.


It emphasized that where “parties have contractually agreed to arbitrate a claim, a party may not escape its commitment simply by presenting his claim as a tort.  Only where the claim presented was clearly not within the contemplation of the parties will a court decline to enforce an otherwise proper arbitration agreement.” (Partain v. Upstate Automotive Group)


So Partain gets his day in court.


And, like spritely forest elves, car salesman around the world merrily go about their way, plotting new mischief.



— Pat Murphy


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Lawyers go to war over client files


There’s nothing like a fight between lawyers. You’re talking big egos and just enough smarts to pose a serious danger to themselves and those around them. 

And when the battle is over clients, whoo boy, it’s time for children and the faint of heart to avert their eyes.


Today’s tale of woe involves two Tampa Bay attorneys who engaged in a battle royale, the facts of which “are enough to make any legal ethics professor cringe.”


At least that’s how Judge Craig Villanti described it in a decision issued at the end of last month by the Florida Court of Appeal.


Smash and grab


William Winters worked for over 15 years as an associate at Richard Mulholland’s law firm.


One Friday in June 2001, Winters packed up certain client files and left for the weekend.


Winters never returned to work. Instead, the following Monday he called Mulholland’s office manager and told him that a letter of resignation was on his desk.


Okay, so right now we know that this was not exactly the most amicable of partings.


Sure, Mulholland was probably saddened not to have Winters’ sunny disposition brightening up the office any more. But what about those missing client files?


Mulholland claimed that Winters had been sneakily planning his exit for months.


According to Mulholland, in the months leading up to his departure, Winters cherry picked choice clients he wanted to try to take with him when he left the firm. Mulholland alleged that Winters removed at least one client file from Mulholland’s office and copied it before returning it. He kept other client files with him.


And the story gets juicier.


There are the alleged antics of Elizabeth Chapa, a former paralegal at the Mulholland firm.


The court describes Chapa as Winters’ “paramour.” According to Mulholland, Chapa hacked into the firm’s computer system and altered client contact data in an effort make it more difficult for Mulholland to contact clients Winters had designs on. 




Mulholland was evidently blindsided when Winters bolted, probably thinking he and Winters were best of buds, breaking bread together, mi casa es su casa, and all that.


When he found out about the client files, Mulholland was even more flabbergasted.


Mulholland demanded that Winters hand over the files, but Winters gave him the raspberries and told Mulholland that he would have to sue him to get them.


Putting a cherry on top, Winters allegedly boasted that as part of his scheme he told clients that Mulholland was retiring and no one would be available to handle their cases.


When Mulholland pointed out that he wasn’t going anywhere, Winters allegedly replied, “I know it, but they don’t.”


The upshot of the whole deal was that Mulholland lost twelve of his most lucrative clients.



Catch me if you can


So Mulholland filed for a writ of replevin to get his client files back.


Winters ultimately returned the files — allegedly without some key documents — but none of the twelve clients who left with Winters ever returned to Mulholland’s firm.


Next, Mulholland sued Winters for everything under the sun: civil RICO, federal RICO, civil theft, conversion, intentional interference with business relationships, etc.


But the only claim that ultimately made it before a jury was a claim for civil theft under Florida law, which offered the chance for treble damages.


And was Mulholland thrilled with the outcome.


The jury awarded Mulholland $748,502.90 in damages and $130,500 in attorney fees.


The trial court remitted the damages award to $383,105, but then trebled it to $1,149,315 pursuant to the civil theft statute, giving Mulholland a grand total of $1,470,453.


But Mulholland’s Snoopy Dance came to end Jan. 29 of this year when the Florida Court of Appeal decided that judgment should be entered for Winters.


You see, the court concluded that Mulholland failed to present evidence to prove that the theft of his client files was connected to the loss of his clients and, therefore, resulted in any damages.


“Mulholland presented no evidence that any client chose to leave Mulholland and go with Winters because Winters had a copy of their file,” the court explained. “While Winters may have made unauthorized use of Mulholland’s paper files, in the absence of some evidence that Mulholland was injured by Winters’ having taken and copied these files, the evidence is insufficient to support a judgment for civil theft.”


What about the alleged hacking of Mulholland’s computers by Winters’ paramour?


Well, let’s just say that the court was unimpressed with Mulholland’s evidence that that caper caused him harm.


“[W]hile the alterations to the client information in the computer system may have affected Mulholland’s ability to contact his clients, no client testified that he or she left Mulholland and went with Winters because Mulholland never contacted them,” the court said.


And that fib about Mulholland retiring didn’t amount to much either, according to the court.


“Mulholland did not call a single client to testify that he or she was told by Winters that Mulholland was retiring and that he or she would have stayed with Mulholland knowing otherwise,” the court said. “Thus, Mulholland presented no evidence to establish that Winters’ behavior supporting the finding of ‘theft,’ loathsome as it might have been, actually caused any of the clients to leave Mulholland, resulting in his loss of the right to the fees.” (Winters v. Mulholland)


What a bitter pill for Mulholland to swallow.


He loses a large chunk of his business due to the alleged connivance of an associate in his firm. And we can safely surmise that he had trouble getting his erstwhile clients to testify in support of his claim of civil theft, so he loses his court case against Winters as well.


Where’s the justice in that?


— Pat Murphy


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Mutiny on the Bountiful


Here’s a shot across the bow for employers. 

If one of your supervisors thinks he has the liberty to abuse subordinates like some sadistic Captain Bligh, you could wind up shelling out some big bucks to a fed-up employee.


That’s what faces Bountiful Light and Power after a decision by the Utah Supreme Court last month.


The court ruled that the municipal power company in Bountiful, Utah, could be liable for allegedly allowing a verbally abusive supervisor to conduct a virtual reign of terror in the workplace.


‘Little Hitler’


Yes, most of us have had the misfortune of working for this breed of boss.


You know the type, bitter about life, treating his position of authority as a license to vent his personal frustrations on those beneath him in the food chain.


According to Kipp Cabaness, the devil at Bountiful Light and Power was Brent Thomas.


Cabaness worked as a line foreman at Bountiful under the direct supervision of Thomas, the superintendant of operations.


A number of Bountiful employees testified that Thomas consistently verbally harassed, intimidated, and ridiculed subordinates, so much so that behind his back he was called “Little Hitler.”


Being called into Thomas’s office was something to fear. The path to his door was known as the “green mile,” in reference to the movie and prison slang describing the long walk to the electric chair.


Thomas also allegedly enjoyed messing with the heads of his workers. Some claimed that he forced crews to work in the rain at times when the work was unnecessary and unsafe. Others cited times when on a whim Thomas would order a completed job done all over again.


There’s also an allegation that one time Thomas dropped an employee to the ground with a knee to the groin, after which Thomas stated, “I guess I showed you who is boss.”


Profanity seemed to be a key element of Thomas’ management style.


Cabaness claimed that Thomas frequently insulted and demeaned him, calling him “dumbass,” “jackass” and other less complimentary names.


And Cabaness became the object of a particular form of head game. Cabaness claimed that Thomas would prod him by saying, “You know what your problem is? It’s your wife. You need to get rid of your wife.”


Cabaness worked at Bountiful from 1978 to 2004. Thomas was his boss most of that time. And it wore on Cabaness.


In 1997, Cabaness was first diagnosed with depression related to “unusual stress in his work environment from his supervisor.”


His condition worsened.


 In 2003, Cabaness was diagnosed with major depression and chronic dysthymia with insomnia. His doctor testified that Cabaness’ work environment and abusive boss were a “substantial factor” in his diagnosis of depression.


Cabaness took about six weeks off in 2003 due to his medically-diagnosed depression.


When Cabaness returned to work, Thomas picked up where he left off, allegedly singling Cabaness out in an employee meeting. Thomas threatened to fire Cabaness and criticized him about personal issues in front of other employees.


Cabaness quit Bountiful in 2004, and then he sued.


Breach of employment contract


Cabaness brought a variety of claims in state court, but the most interesting to employment attorneys is his claim that the Bountiful employment manual created an implied contract breached by Thomas’ alleged antics.


The Bountiful employment manual states that the employer’s work environment policy “will not tolerate verbal or physical conduct by any employee which harasses, disrupts, or interferes with another’s work performance or which creates an intimidating, offensive, or hostile work environment….”


In addition, the manual’s “Work Place Violence” provision mandates that “[o]ral or written threats, physical assault, harassment, intentional damage, and every other act or threat of violence is strictly prohibited.”


The Utah Supreme Court decided last month that these and other workplace conduct policies “rise to the level of promises on the part of Bountiful Power on which its employees should reasonably be able to rely.”


Bountiful tried to argue that Cabaness’ contract claim was precluded by a disclaimer in the employment manual.


But the court nixed that argument, explaining that “the disclaimer in this case does not contain broad and conspicuous language disclaiming any and all contractual liability. To the contrary, it only disclaims contractual liability ‘with respect to’ a few specifically identified items. Indeed, the plain meaning of the disclaimer in this case is that Bountiful Power intended to create a contract with its employees with respect to the items in the Employee Manual that are not specifically listed in the disclaimer.”


What’s more, the court said that Cabaness could recover damages for mental distress in connection with his breach of contract claim.


“Bountiful Power contracted with Cabaness and agreed, among other things, that it would ‘not tolerate verbal or physical conduct by any employee which harasses, disrupts, or interferes with another’s work performance or which creates an intimidating, offensive, or hostile work environment.’ This contractual provision of the Employee Manual and other similar provisions are specifically directed toward matters of mental concern and solicitude, and any breach thereof would almost certainly result in emotional distress and mental anguish,” the court said. (Cabaness v. Thomas)


— Pat Murphy


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