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Monthly Archives: February 2012

‘Sloppy’ newspaper headline isn’t defamatory

An editor for a New Jersey newspaper wrote a headline in 2005 indicating that two local stock traders had just been “arrested” for securities violations when in fact they were simply the targets of an SEC civil complaint.

Yesterday, the state supreme court decided that such carelessness wasn’t actionable.

“Although this case unquestionably involves sloppy journalism, the careless acts of a harried editor, the summary-judgment record before us cannot support a finding by clear and convincing evidence that the editor knowingly or in reckless disregard of the truth published the false teaser,” concluded the court in Durando v. The Nutley Sun

The case involved the reputations of Ronald Durando and Gustave Dotoli, both residents of Nutley, New Jersey. In November 2005, the Securities and Exchange Commission filed a civil complaint in federal court against the two stock traders, charging them with various violations of federal securities laws in connection with an alleged “pump and dump” market manipulation scheme.

The story was reported accurately by The Record, a newspaper owned by the North Jersey Media Group. Since the story had a local angle, it was picked up by The Nutley Sun, another newspaper in the North Jersey Media Group chain.

Paul Milo, an editor for The Nutley Sun, obtained permission to reprint the article in the paper’s Dec. 8, 2005 edition. In preparing the article for publication, Milo wrote a front page teaser that said, “Local men arrested in ‘pump and dump’ scheme, page 11.” The mistake about Durando and Dotoli being arrested was not repeated on the page in which the article appeared.

The next day, the lawyer for Durando and Dotoli called the newspaper to point out the error and demand a retraction. The newspaper responded two weeks later by publishing a retraction on its front page, but by that time Durando and Dotoli had already sued the newspaper in state court for libel, false light and intentional and negligent infliction of emotional distress. The trial court dismissed the complaint.

Tuesday’s decision by the New Jersey Supreme Court affirmed that dismissal. The state high court simply concluded that the plaintiffs’ complaint failed to satisfy the actual malice standard for proceeding with a defamation claim against a news organization.

Critical to the court in its decision was the fact that the front-page teaser did not mention Durando and Dotoli by name.

“Any reader who turned to page eleven of the paper learned in paragraphs one and two of the article, even before they reached the names Durando and Dotoli in paragraph three, that the two men were subject to a civil complaint filed by the SEC,” the court observed.

More importantly, the court concluded that it was plain from the record that there was no malice at work here, and that the gaffe was an honest mistake made by an editor struggling to keep up with his typically busy work schedule.

“This record does not permit us to conclude that Milo’s professions – that he made a mistake – are inherently incredible or improbable,” the court said. “He was a harried editor, responsible for a staff of ten and reading hundreds of pieces of correspondence, racing to meet a printing deadline.”

In upholding the dismissal of the lawsuit against The Nutley Sun, the court took the opportunity to scold the newspaper for its mistake, saying it should take only “grim satisfaction” in the outcome.

“The primary objective of a free press is to promote the truth so that citizens will have a better understanding of current events and of the workings of their government,” the court said. “Falsehoods in an article that needlessly do harm to a person’s reputation do not advance that objective. Moreover, ‘shoddy and careless reporting that leads to the dissemination of false or misleading information is detrimental to the enlightenment of a free society.’”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Does landlord have RICO liability for ‘harboring’ illegals?

A New Jersey man claims that the property manager of his apartment complex has laid out the welcome mat for those who have entered the country illegally. Friday, the 3rd Circuit decided that the upset tenant could not hold the property manager liable for “harboring” illegal immigrants under the Racketeer Influenced and Corrupt Organizations Act.

“We cannot imagine that Congress contemplated that our nation’s landlords (not to mention our hotel and motel operators, innkeepers, and others who are in the business of providing accommodations) would be tasked with making complex legal determinations about who is permitted to live in this country, much less that they would be criminalized for an error in so doing,” wrote Judge Julio M. Fuentes in Delrio-Mocci v. Connolly Properties

The civil RICO case was brought by Richard Bolmer. Since 2004, Bolmer has lived in the Pingry Arms apartment complex in Plainfield, New Jersey. After Bolmer became a tenant, Connolly Properties began managing the apartment. 

According to Bolmer, the apartment complex has gone downhill since Connolly Properties took over. In addition to asserting that the building has fallen into disrepair, Bolmer claims that Connolly Properties has permitted overcrowding, failed to remedy flooding and mold, allowed the building to become infested with bugs and rodents, and generally turned a blind eye to criminal activity.

Bolmer alleges that the apartment’s problems are directly related to a scheme hatched by Connolly Properties back in 2006 to solicit illegal immigrants as tenants.

According to Bolmer, the property manager hired a Spanish-speaking leasing agent to market to the Hispanic community. He claims that the leasing agent operated under instructions to exempt from normal background checks those prospective tenants who were suspected of being in the country illegally.

Bolmer claims that Connolly Properties sought out illegal immigrants as tenants because it believed that they were less likely to complain about poor housing conditions or report housing code violations.

Fed up, Bolmer filed his lawsuit in federal court in 2008, alleging that Connolly Properties violated RICO by engaging in an “Illegal Alien Rental Scheme.” As a predicate offense, Bolmer contended that the property manager violated 8 U.S.C. §1324(a)(1)(A)(iii), which makes it a criminal offense to “conceal, harbor, or shield” an individual who has entered the country illegally.

The district court dismissed the case, concluding that Bolmer’s allegations were insufficient to show that the property manager committed the predicate offense of harboring.

Last week, the 3rd Circuit affirmed the dismissal of Bolmer’s complaint. Writing for the court, Judge Fuentes explained:

While Bolmer has plausibly asserted that the Property Managers sought to conceal their own violations of local housing code and of federal prohibitions against discrimination in housing, he has not shown that they did anything to prevent their undocumented residents from being apprehended by immigration authorities. …. The picture Bolmer paints … is one of a company whose leadership cared little of what happened to its tenants so long as Connolly Properties received a steady stream of rental income from any source. Bolmer has alleged that the Property Managers engaged in a great deal of unsavory and possibly discriminatory behavior. However, he has not sufficiently alleged that their conduct “‘tend[ed] to substantially facilitate an alien’s remaining in the United States illegally’ and to prevent government authorities from detecting the alien’s unlawful presence.”

The 3rd Circuit also rejected Bolmer’s contention that Connolly Properties’ actions violated 8 U.S.C. §1324(a)(1)(A)(iv), which prohibits a person from “encourag[ing] or induc[ing] an alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is or will be in violation of law.”

In finding that Connolly Properties did not engage in the predicate offense of encouraging or inducing illegal immigration, Fuentes explained that the property manager “did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise.”

Specifically, the judge observed that “Bolmer did not allege that these aliens would not or could not have resided in the United States without renting apartments in Connolly Properties’ buildings.”

Further, Fuentes concluded that “defining the conduct at issue in this case as encouraging or inducing runs the risk of criminalizing actions contemplated by federal law and undermining the federal system of immigration enforcement.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Ohio woman can’t enforce ‘love’ contract

An Ohio woman thought she had a written contract giving her an equal share of her boyfriend’s home. The woman had fulfilled her end of the bargain by moving back in with him, so she felt pretty secure in her rights when the couple later split up. 

Last week, the Ohio Supreme Court broke the bad news that her “contract” wasn’t worth the paper it was printed on. 

“We hold that merely moving into a home with another while engaging in a romantic relationship is not consideration for the formation of a contract,” the court said.

This tale of love and contracts involves Amber Williams and Frederick Ormsby of Medina, Ohio. The two were in a nonmarital relationship back in 2004. Williams had just received a house on Hardwood Hollow as a result of a divorce. Ormsby moved into the home with the couple having plans of getting married some day.

Although Williams had title to the home, the property was evidently more expensive than she could afford. So when Ormsby moved in he began paying the mortgage and property taxes. In fact, Ormsby eventually paid the remaining mortgage balance of approximately $310,000.

Given Ormsby’s new financial stake in the home, Williams gave Ormsby title to the property by executing a quitclaim deed on Dec. 15, 2004

This proved to be bad timing for Williams because the couple broke up in March 2005 and Williams moved out. As a result of the breakup, Amber and Frederick signed a document March 24, 2005, to sell the Medina house and allocate the proceeds.

Before the house could be sold, the couple had second thoughts and reconciled. But Williams wanted the reconciliation to be on her terms and refused to move back into the house with Ormsby unless he granted her an undivided one-half interest in the property.

Ormsby agreed to this condition and, on June 2, 2005, the parties signed a second agreement that purported to make Williams an “equal partner” in the Medina house.

As these sort of unconventional relationships often do, the relationship between Williams and Ormsby soured once again. Williams left the Medina house for good in April 2008.

Then came the lawsuits, with Williams seeking specific performance of the June 2005 contract that gave her a half-interest in the Medina home. In turn, Ormsby sued to quiet title, contending that the contract failed for want of consideration.

An Ohio trial court agreed with Ormsby and entered judgment in his favor, but the 9th Ohio District Court of Appeals reversed, concluding that under these facts “moving into a home with another and resuming a relationship can constitute consideration sufficient to support a contract.”

Now, any first year law student knows that a contract requires something other than love and affection, and the Ohio Supreme Court decided Thursday that the state appeals court’s holding was contrary to the black letter law:

[T]he evidence demonstrates that the only consideration offered by Amber for the June 2005 agreement was her resumption of a romantic relationship with Frederick. There is no detriment to Amber in the June 2005 document, only benefit. Essentially, this agreement amounts to a gratuitous promise by Frederick to give Amber an interest in property based solely on the consideration of her love and affection. Therefore, the June 2005 document is not an enforceable contract because it fails for want of consideration.

(Williams v. Ormsby)

Williams argued to no avail that the voiding of the March 2005 agreement to sell the Medina home and divide the proceeds constituted consideration for the June agreement. 

But the court rejected Williams’ theory that the parties had in effect accomplished a novation. 

“In this case, there is no substitution of party but rather an attempt to change the obligations of the parties under an existing contract,” the court explained. “But a novation is effective only where a previous valid obligation is extinguished by a new valid contract. In order to qualify as a novation, the June agreement must be a valid contract in its own right before it can be used to void the March agreement.”

In the end, the court’s refusal to recognize that Williams had contractual rights rested on its concern that a contrary ruling would open up a Pandora’s box of lawsuits to enforce purported agreements based on love and affection.

“To hold otherwise would open the door to palimony claims and invite a number of evidentiary problems,” the court said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Fifth Amendment bars forced computer decryption

The Fifth Amendment protected a child pornography suspect from having to decrypt his computer hard drives in response to a grand jury subpoena, a federal appeals court ruled yesterday. 

“[W]e hold that [the suspect’s] decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the government’s use of the drives’ contents,” wrote Judge Gerald Bard Tjoflat of the 11th Circuit.

The court’s decision in U.S. v. Doe overturns a civil contempt order against a “John Doe” suspect in a child pornography investigation. Florida investigators identified several Internet protocol (IP) addresses in connection with the sharing of explicit materials involving underage girls. Investigators linked the IP addresses to hotel rooms registered to Doe and in October 2010 tracked the suspect to a hotel in California.

Officers seized two laptops and five hard drives discovered as a result of a search of Doe’s room, but FBI forensic examiners were unable to access certain portions of the hard drives that they suspected contained child pornography. With investigators hitting a brick wall, a federal grand jury in Florida issued a subpoena requiring Doe to produce the unencrypted contents of his laptops and hard drives.

Naturally, Doe responded by invoking his Fifth Amendment privilege against self-incrimination and refused to comply with the subpoena.

In an effort to get around the Fifth Amendment, federal prosecutors asked the district court to grant Doe immunity limited to “the use [of Doe’s] act of production of the unencrypted contents” of the hard drives. This limited grant of immunity purportedly would still allow the government’s derivative use of contents of the drives as evidence against him in a criminal trial.

Persuaded by the government’s arguments, the district court concluded that Doe’s act of decryption and production would not constitute “testimony,” thus alleviating Fifth Amendment concerns. Accordingly, the district court granted Doe immunity as requested by the government, required him to respond to the subpoena, and cited him for contempt when he refused to do so.

In the 11th Circuit’s decision reversing the contempt judgment against Doe, Judge Tjoflat explained that the district court was just plain wrong when it concluded that that Doe’s act of decryption and production would not constitute testimony under the Fifth Amendment.

“We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files,” Tjoflat said.

Further, the court rejected the government’s contention that Doe’s act of production could not be deemed testimonial under the “foregone conclusion” doctrine.

As Tjoflat explained, the “foregone conclusion” doctrine essentially provides that an act of production is nontestimonial – even if it reveals facts pertinent to the existence, location, possession, or authenticity of the subpoenaed materials – if prosecutors can show with “reasonable particularity” that they already knew of the materials, making any testimonial aspect a “foregone conclusion.”

Explaining why the foregone conclusion doctrine did not apply here, Tjoflat wrote that “[n]othing in the record before us reveals that the government knew whether any files exist or the location of those files on the hard drives; what’s more, nothing in the record illustrates that the government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives.”

In overturning the contempt order against Doe, Judge Tjoflat also pointed out that the district judge was mistaken in limiting Doe’s immunity to the government’s use of his act of decryption and production, while allowing the government derivative use of the evidence disclosed by his compliance with the subpoena.

“Immunity coextensive with the Fifth Amendment requires both use and derivative-use immunity,” the judge explained. “The government’s offer of act-of-production immunity clearly could not provide the requisite protection because it would allow the government to use evidence derived from the immunized testimony. Thus, because the immunity offered here was not coextensive with the Fifth Amendment, Doe could not be compelled to decrypt the drives.”

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Judge: State can’t force pharmacy to sell Plan B

A federal judge ruled yesterday that the state of Washington cannot compel pharmacies and pharmacists to dispense emergency contraceptives over their sincere religious beliefs.

The decision enjoins the enforcement of regulations issued in 2007 by the Washington State Board of Pharmacy that require pharmacies to timely deliver all lawfully prescribed medications, including the emergency contraceptives Plan B and ella.

Under the state’s so-called “stocking” and “delivery” rules, a pharmacy’s refusal to make available such contraceptives is grounds for discipline, including loss of license. In practice, the rules prevent a pharmacy from referring patients seeking Plan B to other pharmacies, forcing them to dispense the drug.

Two individual pharmacists and a corporate pharmacy sued to stop enforcement of the rules. The plaintiffs refused to dispense Plan B, arguing that doing so would be contrary to their sincere religious belief that life begins at conception.

For them, the problem with Plan B and other “morning after” pills is that they prevent a fertilized egg from adhering to the wall of the uterus.

U.S. District Judge Ronald B. Leighton decided yesterday that the state pharmacy board’s enforcement of the rules violated the Free Exercise Clause of the First Amendment. In reaching this conclusion, he noted that the state pharmacy board declined to enforce its rules against Catholic institutions.

“The Free Exercise Clause prohibits the government from selectively enforcing otherwise generally applicable regulations against one group of religious objectors, but not another,” the judge observed.

The judge found most troubling evidence that pharmacies were not disciplined when they failed to stock certain drugs for non-secular, business reasons, such as the fear that having oxycodone on the shelves would invite robbery.

“The most compelling evidence that the rules target religious conduct is the fact the rules contain numerous secular exemptions,” Leighton wrote. “In sum, the rules exempt pharmacies and pharmacists from stocking and delivering lawfully prescribed drugs for an almost unlimited variety of secular reasons, but fail to provide exemptions for reasons of conscience.”

In concluding that the regulations were unconstitutional as applied to the plaintiffs, Judge Leighton said the “Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted.” (Stormans, Inc. v. Selecky

Of course, yesterday’s decision comes just when the country is debating President Obama’s plan to dictate birth control policy to the Roman Catholic Church.

The church is objecting to a new federal rule requiring church-affiliated organizations to provide free contraception in their employee health insurance policies. President Obama has tried to finesse the controversy by imposing the obligation on insurers, but several Catholic organizations already have lawsuits in the pipeline that assert the health insurance mandate violates the First Amendment.

Yesterday’s decision by Judge Leighton illustrates just how thorny a constitutional path the Obama Administration will have to travel in its fight against the Catholic Church.    

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Macey & Aleman suit over client theft dismissed

A federal judge in Illinois ruled last week that consumer bankruptcy giant Macey & Aleman couldn’t show personal jurisdiction in its lawsuit against an Arizona firm that allegedly took 220 of its clients. 

“Illinois has no connection to the claim … other than that Macey & Aleman is an Illinois partnership and has its principal place of business in Chicago,” wrote U.S. District Judge James F. Holderman in granting a dismissal in Macey & Aleman v. Simmons

Macey & Aleman is an Illinois partnership with its principal place of business in Chicago, Illinois. The law firm bills itself as the nation’s largest consumer bankruptcy firm and boasts having 100 offices in 19 states.

Carlene Simmons and Elizabeth Kamper are Arizona lawyers who used to work for Macey & Aleman at the firm’s Phoenix office. In July 2010, the two lawyers decided to bolt Macey & Aleman for supposedly greener pastures, joining Davis Miles, the Tempe, Ariz. firm.

At first, Macey & Aleman was miffed that the two departing lawyers left without giving the standard two weeks’ notice. Annoyance turned to outrage when over 220 of Macey & Aleman’s clients followed Simmons and Kamper to Davis Miles.

Macey & Aleman cried foul, alleging that the two Arizona attorneys had taken confidential information, including the firm’s Phoenix client list, when they moved to Davis Miles. According to Macey & Aleman, Simmons and Kamper used the contact information to solicit Macey & Aleman clients to switch firms.

To stop the loss of clients, Macey & Aleman first sued Simmons and Kamper in Illinois state court. The case was removed to the U.S. District Court for the Northern District of Illinois where Macey & Aleman upped the ante by adding claims against Davis Miles for conversion, tortious interference with a business expectancy, and defamation.

The defamation claim related to statements in letters that Davis Miles allegedly sent to Macey & Aleman clients in order to encourage them to switch firms.

The Arizona law firm moved to dismiss for lack of personal jurisdiction.

In arguing that its claims against Davis Miles should not be dismissed, Macey & Aleman contended that specific jurisdiction existed because Davis Miles engaged in intentional conduct expressly aimed at Illinois with knowledge that the Chicago law firm would be injured there.

Last week, Judge Holderman decided that Macey & Aleman failed to show personal jurisdiction under the so-called “effects test.”

In dismissing Davis Miles from the case, the judge explained:

Macey & Aleman has failed to provide any evidence of a connection between Davis Miles’s allegedly tortious conduct and Illinois. All of the events leading up to the tort and the tortious conduct itself took place in Arizona. The employees that Davis Miles allegedly lured away from Macey & Aleman all lived and worked in Arizona as employees of Macey & Aleman’s Phoenix office, and the confidential information Davis Miles allegedly converted was located in Arizona. The clients Davis Miles allegedly stole were clients of Macey & Aleman’s Phoenix office who presumably lived in and around Phoenix. The allegedly defamatory letter sent to those clients was thus sent only to Arizona, and not to Illinois. … [A]ll of the commercial relationships with which Davis Miles allegedly interfered were entirely in Arizona. The “focal point” of the tort is thus Arizona, not Illinois.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Tyrannical’ supervisor may be protected by ADA

A federal judge decided Thursday that an Oregon police sergeant whose interpersonal skills were impaired by Attention Deficit Hyperactivity Disorder could proceed with his disability discrimination suit against his former employer.

Sergeant Matthew Weaving apparently didn’t have a lot of fans when he worked at the Hillsboro Police Department. According to Deputy Chief Chris Skinner, numerous colleagues described Weaving as “tyrannical, unapproachable, non-communicative, belittling and demeaning, threatening/intimidating, arrogant and vindictive.”

That’s a pretty long laundry list of faults which, if believed, would lead most employers to take some form of corrective action. Indeed, the city of Hillsboro was concerned enough to launch an internal affairs investigation. As a result of that disciplinary proceeding, the city terminated Weaving on Nov. 24, 2009.

Weaving sued Hillsboro under the Americans with Disabilities Act. You see, Weaving was diagnosed with ADHD as a child and he claims that his condition is at the root of his communication problems. According to Weaving, Hillsboro violated the ADA by failing to accommodate his medical condition, which he asserts could be treated with medication.

Weaving’s ADHD was brought up in Hillsboro’s internal affairs investigation. However, his bosses allegedly didn’t give the disorder much weight. In any event, the city argued in the lawsuit that Weaving wasn’t “disabled” within the meaning of the Act. 

Last week, U.S. District Judge Marco A. Hernandez denied the city’s motion for summary judgment, ruling that “a genuine issue of material fact exists as to whether [Weaving’s] ADHD substantially limits him in the major life activities of communicating with others and interacting with others.”

In concluding that Weaving’s disorder substantially limited a major life activity, the judge noted that the former police sergeant “offers evidence indicating his problems extend beyond just getting along with coworkers. For example, Plaintiff proffers evidence showing Lieutenant [Richard] Goerling observed that his behavior ‘demonstrate[d] complete failure of basic interpersonal relationship skills such as emotional and social intelligence that are embodied . . . generally in society.’ The allegations of hostility and lack of interpersonal skills described by Deputy Chief Skinner and Lieutenant Goerling raise a genuine issue of material fact as to whether Plaintiff is substantially limited in the major life activity of interacting with others.”

Moreover, the judge concluded that Weaving presented sufficient evidence to show that his former bosses regarded him as being disabled:

Deputy Chief Skinner testified he had been aware of “flaws” in Plaintiff’s “communication style and relationships” before the City had even hired Plaintiff and expressly testified that Plaintiff had issues concerning his “communication styles and/or lack of being able to connect/foster relationships with people or be relational in the way he communicated with people.” Based on these statements, a reasonable jury could find that the City regarded Plaintiff as disabled within the meaning of the ADA at the time the City had hired Plaintiff and held that same belief at the time it terminated him.

(Weaving v. City of Hillsboro

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Is doctor liable for patient’s crash?

Doctor Christianne Heck must have had that sinking feeling when she heard that one of her patients had suffering an epileptic seizure while driving and been involved in a serious accident.

Perhaps the doctor even felt a measure of responsibility for the crash since she had just certified to the California DMV that her patient was safe to drive.

Cang and Xiaofen Wang believe that Dr. Heck was more than a little responsible for the accident. They were in the path of Amr Sarieh’s car when he suffered an epileptic seizure and lost consciousness. Struck down by the out-of-control vehicle, Mr. Wang’s injuries were serious enough to require the amputation of his legs. Mrs. Wang kept her limbs but suffered a traumatic brain injury.

The accident occurred on Nov. 18, 2008, two and a half months after Dr. Heck helped Sarieh get his driver’s license reinstated by assuring the California Department of Motor Vehicles that her patient was safe to drive.

Sarieh was born in 1971 and has suffered from seizures since the age of 13. Sarieh’s license was suspended for three years in 2001 or 2002 when he suffered a seizure and hit a lamp post. His license was suspended again when he had another seizure-related accident in 2007.

Heck began treating Sarieh in 2003. After his license was suspended in 2007, Sarieh pestered Heck to certify that he was safe to drive so that he could get his driving privileges reinstated.

Heck wouldn’t budge at first. The doctor was concerned that, even after corrective surgery, Sarieh suffered seizures approximately once every couple of months. Moreover, the doctor allegedly didn’t trust Sarieh to take his anti-seizure mediation.

Dr. Heck began to relent in September 2008 after Sarieh reported that he had been seizure-free since November 2007. On Sept. 2, 2008, Heck completed a DMV evaluation form so that Sarieh could have his license reinstated. In the form, Heck indicated that Sarieh’s prognosis was good, that his condition was stable, and that his condition did not affect safe driving, so long as he took the prescribed medication.

On Oct. 22, 2008, a DMV investigator interviewed Sarieh to determine whether to reinstate his license. Based on the results of the interview and Dr. Heck’s evaluation, a DMV hearing officer decided to lift the suspension.

Unfortunately, Sarieh allegedly failed to take his epilepsy medication several weeks later on the night before he suffered a seizure and ran down the Wangs.

Upon learning of Heck’s role in getting Sarieh’s driver’s license reinstated, the Wangs sued Heck for negligently evaluating her patient’s fitness to drive. The centerpiece of their lawsuit was the DMV evaluation form that Heck completed in furtherance of Sarieh’s efforts to have his suspension lifted.

Unfortunately for the Wangs, Los Angeles County Superior Court Judge Lisa Hart Cole decided that that their suit was barred by the state’s litigation privilege, which protects communications in furtherance of judicial or “quasi-judicial” proceedings.

Last month, the California Court of Appeal agreed that the DMV evaluation form completed by Dr. Heck fell within the scope of the privilege:

Although Heck did not complete the DMV evaluation form for purposes of testifying in judicial proceedings, the form was used in the DMV hearing in order for the DMV hearing officer to determine whether to reinstate Sarieh’s license. Thus, the form was used in an administrative proceeding, which is a “truth-seeking proceeding” for purposes of applying the litigation privilege.

In an attempt to get around the privilege, the Wangs stressed that the real issue was Dr. Heck’s alleged medical negligence.

But the court rejected this characterization of their claims:

[The Wangs] argue that their claims are based on Heck’s negligent conduct in reaching her conclusion that it was safe for Sarieh to drive, rather than the conclusion itself. However, it is clear that Heck’s conduct prior to completing the September 2, 2008 DMV evaluation form was the basis of her communication in completing the form. Although appellants attempt to characterize their claim as medical negligence by failing to warn Sarieh not to drive, the basis of their complaint is Heck’s statement on the DMV medical evaluation form that Sarieh could drive safely. Because “[t]he offending conduct alleged by appellant[s] occurred during and as part of the preparatory activities which were directed toward and done in contemplation of” determining Sarieh’s fitness to drive, this case “falls squarely within the rationale of [the litigation privilege].”

(Wang v. Heck)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

2nd Circuit: WSJ reporter shielded by privilege

The 2nd Circuit decided yesterday that a former Wall Street Journal reporter couldn’t be compelled to testify in a business lawsuit, recognizing that even permitting questioning on a non-privileged matter would open the door to delving into privileged material on cross-examination.

The decision affirmed a federal judge’s order quashing a subpoena directed to Jesse Eisinger.

James and Janet Baker subpoenaed Eisinger in their lawsuit against Goldman Sachs. Goldman Sachs had acted as the Bakers’ financial advisor when they sold their company, Dragon Systems, to Lernout & Hauspie (L&H) in exchange for L&H stock. That stock became worthless and the Bakers in their lawsuit alleged that Goldman Sachs breached a duty to discover accounting fraud at L&H.

The Bakers wanted Eisinger to testify because he had written a couple of articles for The Wall Street Journal on problems at L&H. In particular, his reports indicated that L&H’s list of Asian customers was largely illusory.

According to the Bakers, Eisinger’s testimony would demonstrate that it should have been a fairly simple matter for Goldman Sachs to determine that L&H was smoke and mirrors.

Eisinger invoked New York’s journalists’ shield law in an effort to quash the subpoena.

The state’s shield law provides journalists an absolute privilege from testifying with regard to news obtained under a promise of confidentiality, but only a qualified privilege when the news is both unpublished and not obtained under a promise of confidentiality.

Here, Eisinger only claimed a qualified privilege, but that would be enough.

The district court found that the information sought was covered by the shield law and that the Bakers failed to overcome the privilege by establishing through “clear and convincing evidence” that the testimony “would be critical and relevant” to the maintenance of their claim.

In particular, the lower court found that Eisinger’s testimony would require disclosure of the “unpublished details of the newsgathering process” and that the scope of questions could not be realistically confined to published information.

In appealing the quashing of their subpoena, the Bakers before the 2nd Circuit tried to finesse the issue by assuring the court that the only question that their lawyer would ask Eisinger was whether his published reports, which are not subject to the qualified privilege, were “accurately reported.”

But the court pointed out that such a question would necessarily be followed by cross-examination and that “such cross-examination would have to dwell on the inferences that the question is intended to support and thus would enter the area of the privilege.”

The court explained:

Subpoenas seek attendance and testimony at a deposition or trial to be questioned about matters relevant to the underlying litigation. The compulsion applies to both testimony on direct and cross-examination on that subject matter. The would-be cross-examiner is not required to seek a second subpoena to ask questions within the scope of the direct. This is so even when the witness asserts a privilege.

In upholding the quashing of the subpoena, the court noted that, should Eisinger be compelled to testify, it was “absolutely clear” that there would be a need for cross-examination within the area of the privilege. In conclusion, the court said:

[The Bakers’] position, if adopted, would undermine the privilege created by New York’s statutory shield law. If the proposed question was allowed to be asked and answered on the ground that it sought information outside the protected area, the cross-examiner could then easily overcome the privilege by showing a critical need to establish Goldman’s defense to the inferences to be drawn from the answer. The result would turn the statute on its head by allowing an evasion of the privilege through a question deliberately framed to be (supposedly) outside the scope of the privilege to have the effect of compelling testimony on cross-examination within the privilege. We decline to follow a route leading to this result.

(Baker v. Goldman Sachs)

– Pat Murphy

patrick.murphy@lawyersusaonline.com

Black Friday shove suffices for excessive force suit

Officer Hasheen Basil probably didn’t imagine that he’d wind up herding Black Friday shoppers when he signed on to become a member of the Philadelphia Police Department.

He also probably never thought that a simple push in the back might amount to a violation of a shopper’s Fourth Amendment rights.

Thursday, a federal judge in Pennsylvania decided that a simple push is enough to support a §1983 claim for excessive force.

The lawsuit was brought by Michael P. Bannan. In the early morning hours of Nov. 26, 2010, Bannan somehow allowed himself to be trapped into going Black Friday shopping with his wife and daughter at a Philadelphia Walmart.

Bannan and his wife and daughter arrived at around 1:30 a.m. and duly lined up in the “cattle chute” that Walmart had set up at the entrance to control the flow of shoppers into the store. Once inside, they discovered that the shopping carts were all gone.

Displaying a fundamental ignorance of the dynamics of Black Friday shopping, Bannan made the mistake of thinking that it would be a simple matter for him to go back outside, get a cart from the parking lot, and then return to the store. 

Grabbing a cart outside, Bannan turned around only to be faced with once again navigating the cattle chute. Bannan evidently thought he had obtained squatters rights by making it to the store entrance the first time, so he attempted to rejoin his family by lifting the cart over the barrier separating the entrance from the exit at the front of the store.

As Bannan tried to perform this maneuver, he was confronted by Officer Basil and Officer Margaret Donnelly, who were trying to maintain some kind of order in the Black Friday madness.

The officers would later claim in their respective depositions that Bannan was intoxicated at the time. Bannan disputed that claim, but admitted that he had had two beers before going shopping, presumably to stiffen his resolve.

Anyhow, perceiving a breach of Black Friday etiquette, the officers told Bannan to leave. In order to help him along, Basil grabbed Bannan by the arm and escorted him away from the entrance.

Bannan went back to his car and stewed for about ten minutes before deciding to head back into the store to go shopping with his family. But Bannan had learned his lesson and this time followed store procedure by walking through the cattle chute to the store entrance.

However, at the end of the cattle chute, instead of a cheerful welcome by a smiling Walmart greeter, Bannan was confronted by Officer Basil. The police officer had meant what he said when he told Bannan to leave. After asking, “What, are you f-ing stupid?”, Basil grabbed Bannan’s arms, and moved him away from the entrance area.

There’s a dispute as to what happened next. Bannan claims that he did nothing threatening and did nothing to resist the officer in any manner.

The police office had a different account of what occurred. According to Basil, Bannan objected to being moved and “stiffened-up” to resist the officer’s efforts to lead him away from the store.

There is no dispute that, as Basil escorted Bannan away from the store entrance, Basil pushed Bannan in the back. The store’s security camera confirms this fact.

The officer’s push caused Bannan to fall to the pavement. Bannan claims that he was injured in the fall. In any event, he requested an ambulance at the time and was taken to the hospital.

Next came the inevitable §1983 suit against Basil in which Bannan alleged that the officer used excessive force in violation of his Fourth Amendment rights.

Basil moved for summary judgment, arguing that one shove is not excessive as a matter of law.

U.S. District Judge Legrome D. Davis agreed with the general proposition that not every push or shove violates the Fourth Amendment, but pointed out that whether a particular push or shove is excessive must be evaluated under the standard of reasonableness.

The judge concluded that Bannan raised a jury issue on this point based on his allegation that he did nothing to resist Officer Basil as he was being escorted from the Walmart.

“Basil says Bannan resisted, while Bannan says he did not,” the judge explained. “We have reviewed the surveillance video of the incident and find it inconclusive on the resistance issue. Of course, if Bannan resisted, Basil’s shove seems much more reasonable. In light of this genuine issue of material fact, we cannot grant summary judgment.”

Moreover, the judge found that Basil was not entitled to qualified immunity:

[W]e believe that a reasonable officer would know … that it would be excessive to shove a non-resisting, non-threatening, non-armed man in the back hard enough that he falls to the ground, merely to move him away from a Walmart entrance and arrest him for disorderly conduct. This is particularly true if the officer did not first verbally warn the individual not to enter the store, as Bannan contends here. Stated differently, the right not to be pushed in the back by a police officer for no legitimate reason is clearly established, even if no precedent addresses these precise factual circumstances. 

 (Bannan v. Philadelphia

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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