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HIGH COURT TRIMS REACH OF OSHA Homeowners are not subject to state safety regulations when they hire tree trimmers for personal yard work, the California Supreme Court ruled Monday. “Overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming,” Justice Janice Rogers Brown wrote for a unanimous court in Fernandez v. Lawson, 03 C.D.O.S. 5903. “Imputing OSHA liability to a homeowner under the circumstances of this case,” she continued, “violates basic notions of fairness and notice.” Tree trimmer Miguel Fernandez sued homeowner Truman Lawson Jr. after falling from a 50-foot palm tree in the yard of Lawson’s Glendora home in 2000. He argued that Lawson was liable under the California Occupational Safety and Health Act. Los Angeles County Superior Court Judge Peter Meeka disagreed, saying Cal-OSHA historically had applied only to business, industry and trade, not household domestic services. But the Second District Court of Appeal reversed in holding that trimming a 50-foot tree could not be considered a household service. Justice Brown ruled Monday that the appeal court’s approach “creates massive uncertainty for a homeowner as to when OSHA would apply. Homeowners are in no position to assess whether they are an ‘average’ homeowner in terms of their tree-trimming competence.” — Mike McKee CREDIT CARD ANTITRUST SUITS WILL PROCEED NEW YORK — A series of antitrust class actions charging VISA, MasterCard and their governing banks with colluding on fees for goods purchased abroad will proceed following a ruling by a federal judge. Southern District Judge William Pauley III denied the bulk of motions to dismiss made by the defendants, who are accused of violating the Sherman Act by charging a 1 percent fee for foreign “currency conversion,” even where the banks incur no costs for the transaction. The suits, a collection of 20 class actions sent to Judge Pauley by the Judicial Panel on Multidistrict Litigation, also allege that consumers who purchased goods and services abroad were often charged a “second-tier” fee of an additional 2 percent or higher. And they charge that the banks that issue the bulk of the credit cards, including CitiGroup Inc. and J.P. Morgan Chase & Co., violated the Truth in Lending Act by failing to clearly disclose the fees in statements to customers. Citicorp-owned Diners Club card is also accused of being part of the price-fixing conspiracy. The ruling last week in In re Currency Conversion Fee Antitrust Litigation, 1409 M 21-95, was the latest in a series of cases in which the governance structure of Visa and MasterCard has been attacked for fostering anti-competitive behavior. — The New York Law Journal RESIGNATION MEANS ERISA DOESN’T APPLY PHILADELPHIA — A former Rite Aid Corp. executive who claims the company reneged on its promise to lay him off with a severance package has lost his court battle to enforce the deal now that a federal appeals court has held that his resignation left him with no standing to sue under ERISA. In Miller v. Rite Aid Corp., a unanimous three-judge panel found that Anthony Miller lost his status as a “participant” in the company’s ERISA plan when his promised layoff was repeatedly delayed and he resigned to take a new job. Miller’s lawyer, Robert Klein of Conrad O’Brien Gellman & Rohn, argued that his client was a participant in the Rite Aid severance plan because he was on the list of employees to be laid off, his severance benefit had been approved; the plan administrator had been instructed to implement the plan, and his layoff was announced. But U.S. Circuit Judge D. Brooks Smith found that Miller’s argument “entirely misses a critical point” because he “had to be laid off to become ‘eligible’ for severance.” Since Miller never was laid off, Smith found that he “may be correct that for a fleeting period of time he met ERISA’s definition of participant,” but that “he did not meet that definition after he voluntarily left Rite Aid before the vesting of his benefits.” The ruling is a victory for attorneys A. James Johnston and Jonathan Sprague of Post & Schell, who defended Rite Aid in a nonjury trial before U.S. District Judge William Yohn Jr. and before the Third Circuit U.S. Court of Appeals. Smith’s opinion was joined by U.S. Circuit Judge Theodore McKee and visiting U.S. Circuit Judge Faith Hochberg of the District of New Jersey. — The Legal Intelligencer

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