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ADMINISTRATIVE LAW Fruit grower gets organic regulations stricken A food producer successfully challenged, at the 1st U.S. Circuit Court of Appeals on Jan. 26, two provisions of the U.S. secretary of agriculture’s National Organic Program Final Rule, and obtained clarification of a third, to prevent dilution of the Organic Foods Production Act’s (OFPA) standards. Harvey v. Veneman, No. 04-1379. The OFPA creates national standards for organically produced agricultural products. Exceptions to the act’s general prohibition on synthetic substances appear on a national list of approved substances for organic products. Arthur Harvey, who produces, inspects and consumes organic foods, filed for declaratory and injunctive relief alleging that nine provisions of the secretary’s final rule, 7 C.F.R. Pt. 205, effective Oct. 21, 2002, are inconsistent with the OFPA, 7 U.S.C. 6501-6523, and dilute its standards. Harvey alleged that 7 C.F.R. 205.606 permits the introduction of a wide variety of nonorganic ingredients into organic products in breach of the OFPA’s ban on such ingredients. A Maine federal court granted summary judgment to the secretary on all nine claims. Harvey appealed seven of them. The 1st Circuit remanded count 1 for a declaration that Section 205.606 is consistent with the OFPA, but only if it is not read as a blanket exemption to the national list requirements for nonorganic agricultural products, but rather as permission to use only the ingredients specifically listed in that section. Further, the court reversed summary judgment on counts 3 and 7 for entry of judgment in Harvey’s favor, thus striking down the provisions that permit the use of synthetic substances in processing, and allow dairy animals being “converted” to organic production to be fed 80% organic feed (rather than 100%) for the first nine months (rather than 12) of the year prior to sale of their products as organic. The court affirmed summary judgment for the secretary on the remaining counts. Full text of the decision ATTORNEY FEES Rule capping paralegal fee is abuse of discretion A policy capping litigation expenses for paralegals in civil cases is an abuse of discretion, the Iowa Supreme Court held on Jan. 28. Greatamerica Leasing Corp. v. Cool Comfort Air Conditioning and Refrigeration Inc., No. 165/03-1581. In a breach of contract claim against Cool Comfort Air Conditioning and Refrigeration Inc., Greatamerica Leasing Corp. was partially successful and obtained a judgment for $17,000. The lower court granted half of Greatamerica’s request for attorney fees, which included paralegal work billed at $80 per hour. The lower court only awarded half of the request in part because it was concerned that the paralegal fee exceeded the $50 per hour that attorneys in Iowa are paid to defend indigent criminals. The Iowa Supreme Court reversed and remanded. Iowa Code � 625.22 states that “[w]hen judgment is recovered upon a written contract containing an agreement to pay an attorney’s fee, the court shall allow and tax as part of the costs a reasonable attorney’s fee to be determined by the court.” While it may seem unfair that paralegals earn more than attorneys in certain cases, the court explained, the lower court must determine whether the paralegal fee was reasonable based on such factors as market rates and practices for similar work in the community. Full text of the decision Habeas proceeding does not count as civil action A habeas corpus proceeding was not a civil action for the purpose of an award of attorney fees under the Equal Access to Justice Act (EAJA), the 4th U.S. Circuit Court of Appeals held on Jan. 27. O’Brien v. Moore, No. 04-8673. Joseph O’Brien pleaded guilty to bank fraud, and a district court sentenced him to 24 months in prison, recommending that his sentence be served in a halfway house when he became eligible. The Federal Bureau of Prisons assigned O’Brien to a halfway house for his entire sentence, but several months later, the U.S. Justice Department said that assigning an inmate to a halfway house at the beginning of his sentence violated the Federal Sentencing Guidelines. DOJ reassigned O’Brien and other inmates in halfway houses to federal prison. O’Brien and three other inmates filed a petition for a writ of habeas corpus. After a North Carolina district court ruled against DOJ, O’Brien moved for an award of attorney fees under the EAJA, 28 U.S.C. 2412. The court awarded him more than $35,000. The government moved for reconsideration, arguing that the fee award was not warranted because its legal positions were substantially justified, and because�for purposes of EAJA’s waiver of government sovereign immunity allowing awards of attorney fees in civil actions�a habeas proceeding was not a civil action. The district court denied the motion. Reversing, the 4th Circuit said, “[o]ne cannot reasonably conclude that the authorization for an award of attorneys fees in ‘civil actions,’ as provided by the EAJA, includes an unequivocal expression of congressional intent to authorize an award of attorneys fees to a prevailing party against the United States in a habeas proceeding. There are simply too many distinctions between habeas proceedings and civil proceedings to permit such a conclusion.” Full text of the decision CIVIL PRACTICE Order halting abortion clinic protests remanded A trial court must decide whether, and to what extent, the four violent acts a jury said anti-abortion groups committed can independently sustain injunctive relief against them under the Hobbs Act, the 7th Circuit U.S. Court of Appeals held on Jan. 28. National Organization for Women v. Scheidler, No. 99-3076. In 1986, the National Organization for Women and two abortion clinics filed a class action alleging that a coalition called the Pro-Life Action Network, and certain individuals, engaged in a pattern of extortion in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). After a jury found that the defendants had violated federal extortion law (the Hobbs Act), an Illinois federal court ordered a permanent nationwide injunction on certain anti-abortion activities at clinics. The 7th Circuit affirmed. The U.S. Supreme Court granted certiorari on certain issues, and held that the defendants did not commit extortion because they had not obtained property as required by Hobbs, and that, therefore, the other predicate acts supporting the jury’s RICO verdict were insufficient. Without an underlying RICO violation, the injunction must be vacated. On remand to the 7th Circuit, the plaintiffs argued that no one had petitioned the Supreme Court for certiorari on the four predicate acts involving “acts or threats of physical violence to any person or property,” and that thus the high court did not decide whether those acts alone could support the injunction. The defendants countered that the Hobbs Act does not outlaw physical violence other than extortion and robbery. Thus the high court’s holding that the defendants did not commit extortion precludes a finding that the four “predicate acts” could independently support an injunction. The 7th Circuit remanded to the district court, declaring that it “would be an abuse of discretion for the district court to re-enter any nationwide injunction based only on the four remaining acts of violence found by the jury.” The court has to decide whether “any injunction is appropriate to redress the four acts of physical violence that the jury found had taken place and that were not encompassed within the Supreme Court’s ruling.” Full text of the decision CIVIL RIGHTS Refusal to let paraplegic play didn’t breach ADA A fitness club’s refusal to allow a wheelchair-bound racquetball player to compete in its top division in club tournaments violated neither commonwealth law nor the federal Americans With Disabilities Act (ADA), the Massachusetts Supreme Judicial Court held on Jan. 28. Kuketz v. Petronelli, No. SJC-09314. Stephen Kuketz, a paraplegic, was a nationally ranked wheelchair-bound racquetball player. He joined the Brockton Athletic Club, and sought to compete in its “A” league, the club’s most competitive league. When, citing safety concerns, the club refused, Kuketz filed a complaint with the Massachusetts Commission Against Discrimination, alleging violations of both commonwealth law and the Americans With Disabilities Act, 42 U.S.C. 12101 et seq. In addition to its safety concerns, the club argued that accommodating Kuketz would fundamentally change the nature of its game. After the club ceased operations, Kuketz named the club’s parent company, its president, and club manager Roslyn Petronelli as defendants and removed the matter to a superior court. The court granted summary judgment to Petronelli and her co-defendants on all claims. The Massachusetts Supreme Judicial Court granted review on its own motion. The Massachusetts Supreme Judicial Court affirmed. Citing PGA Tour Inc. v. Martin, the U.S. Supreme Court decision involving professional golfer Casey Martin’s ADA claim that he should be allowed to use a golf cart, the Massachusetts high court held that the club did not violate the ADA in refusing to accommodate Kuketz because to do so would be a “fundamental alteration” of its game. The court said, “Fitness and athletic clubs open to the public may choose to ‘level the playing field’ in any number of ways, and such practices are not to be discouraged, but the law does not require modifications that change the fundamental rules of the sport.” Full text of the decision CONSTITUTIONAL LAW Halting coat-display ads a First Amendment breach A prohibition on the use of raincoat-clad workers as off-site advertisements for a store is an unconstitutional restriction of commercial speech, the Washington Supreme Court ruled on Jan. 27. Kitsap County v. Mattress Outlet/Kevin Gould, No. 73913-7. Mattress Outlet, a retail mattress business with locations in the state of Washington, hires independent contractors to stand on public sidewalks wearing yellow raincoats displaying the store name, address and telephone number. A law enforcement officer cited Mattress Outlet for violation of Kitsap County’s Code (KCC) 17.445.010, which requires a permit to display a sign unless a sign is exempt, and KCC 17.445.070(C), which provides that “[b]illboards and signs not directing attention to products or services available on the premises where the sign is situated are prohibited.” A limited-jurisdiction district court found the ordinances unconstitutional. A superior court reversed. The Washington Supreme Court reversed, finding that the ordinances were not narrowly tailored to the government’s interests of aesthetics and safety. There are other, less restrictive, means of fulfilling the government’s interests, such as time and place restrictions. Full text of the decision EMPLOYMENT Whistleblower statement must be on public policy A plaintiff’s whistleblower action must give the employer clear notice that his complaint is connected to a governmental policy, the 6th U.S. Circuit Court of Appeals ruled on Jan. 25. Jermer v. Siemens Energy & Automation Inc., No. 03-4191. A firm hired by Jon Jermer, a Siemens Energy employee, to investigate the facility’s air quality recommended replacing the HVAC system. Siemens began the replacement, though the project was delayed. Jermer periodically asked how the replacement was going, and was told there were still “issues.” Jermer also asked for an air filter in his office. A year later, noting his excessive absences and his low score on an employee-retention matrix, Jermer was laid off as part of a companywide work force reduction. Jermer filed a whistleblower suit, alleging that he was fired for continually asking about Siemens’ response to its air-quality problems. The district court granted Siemens’ motion to dismiss. The 6th Circuit affirmed. One of the four elements a whistleblower has to establish is whether dismissal of employees under similar circumstances would jeopardize a government public policy. Though an employee’s statements need not refer to a specific statute or law, he nonetheless must connect his statements to a general governmental public policy, in this case, a public policy of workplace safety. Jermer’s requests for updates on the HVAC replacement were not statements about workplace safety, and his request for an air filter was akin to asking that the heat be turned up or down. Full text of the decision GOVERNMENT City may be immune over water main break A city’s asserted immunity from liability for damage allegedly caused by a water main break can’t be decided without a finding as to whether the city had notice of the defect and had failed to perform its duty of repairing it, the Wisconsin Supreme Court held on Jan. 27. Milwaukee Metropolitan Sewerage District v. City of Milwaukee, No. 02-2961. The Milwaukee Metropolitan Sewerage District (MMSD) brought negligence and nuisance claims against the city of Milwaukee relating to the collapse of the city’s water main, which allegedly caused MMSD’s nearby metropolitan interceptor sewer (MIS) to collapse. MMSD sought to recover costs it incurred repairing and replacing the MIS. A trial court granted summary judgment to the city, but the appellate court reversed. The Wisconsin Supreme Court affirmed, holding that a prima facie nuisance case requires proof of nuisance and proof that the underlying tortious conduct caused the nuisance. Here, the alleged nuisance is “the City’s interference with the MMSD’s property interest in its sewer.” The court concluded that the only actionable tortious conduct was the city’s alleged negligence in failing to repair its leaky water main before it burst, which requires proof of notice. The court further held that a municipality may be immune from nuisance suits depending on the nature of the tortious acts giving rise to the nuisance. Immunity exists for negligent acts that are discretionary in nature, but not negligent acts performed pursuant to a ministerial duty. Here, decisions concerning the “adoption, design and implementation of a public works system” would be immune, but not necessarily negligent failure to repair. Full text of the decision INTERNET LAW Privacy act doesn’t apply to ISPs in normal times Internet service providers, acting in the ordinary course of their business, are not subject to the Electronic Communications Privacy Act’s prohibition against intercepting another person’s electronic communications, the 2d U.S. Circuit Court of Appeals ruled on Jan. 25. Hall v. Earthlink Network Inc., No. 04-0384. Peter Hall, an independent movie producer, signed up for an Earthlink e-mail account to market his movie. An e-mail traffic routing company notified Earthlink that “lot99,” which was Hall’s I.D., was sending out spam. Earthlink immediately terminated Hall’s access to his account and placed him on a “net abuse report.” After a brief investigation, Earthlink retracted the net abuse report, forwarded messages that had arrived for lot99 in the interim, and offered to reinstate Hall’s account, but he refused. Hall sued Earthlink under the electronic privacy act, alleging that Earthlink had illegally intercepted his e-mail and that the interruption in his service caused his movie to lose money. Finding Hall’s damages speculative, the district court dismissed the suit for failing to meet the jurisdictional amount-in-controversy. The 2d Circuit affirmed, but for different reasons. The court concluded that ISPs acting in the ordinary course of business are not included among those prohibited from intercepting electronic communications. Hall presented no evidence that Earthlink’s actions were not in its ordinary course of business. Full text of the decision TORTS Anti-stalking law does not apply to private eyes Surveillance by licensed private investigators that contributes to the goal of obtaining information is conduct that serves a legitimate purpose and cannot be the basis of a complaint of stalking, the Michigan Supreme Court ruled on Jan. 25. Nastal v. Henderson & Associates Investigations Inc., No. 125069. Ronald Nastal brought a personal injury suit against the owner of a tractor-trailer that crashed into his car. Several medical and psychological examinations threw Nastal’s claims of injury into doubt, though a prelitigation panel recommended a $450,000 damages award. The defendant’s insurer hired a private investigator to watch Nastal. For a one-month period, investigators tailed Nastal. Nastal later sued the private investigators for civil stalking. A trial court denied the investigators’ motion to dismiss, and the appeals court affirmed. The Michigan Supreme Court reversed, finding the exception to the stalking statute for activities serving a “legitimate purpose” to be applicable to the investigators’ actions. Surveillance by a licensed private investigator is conduct that serves a legitimate purpose as long as the surveillance serves or contributes to the purpose of obtaining information. Full text of the decision

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