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CIVIL PRACTICE Long-arm law doesn’t reach nonresident’s heirs The Mississippi long-arm statute does not provide personal jurisdiction over the heirs of a deceased nonresident motorist, the Mississippi Supreme Court held on Feb. 10 in an issue of first impression. Sealy v. Goddard, No. 2003-IA-02144-SCT. George Sealy, a Louisiana resident, struck and killed an 18-month-old pedestrian child with his car. Nearly three years after the accident, the child’s mother, Jeanie Danos, brought a lawsuit against Sealy in Mississippi, her state of residence. An insurance company that had been named as one of the defendants filed a motion to dismiss, in part because Sealy had died since the date of the accident. Denying the motion to dismiss, the trial court instead allowed the plaintiffs to serve Sealy’s heirs. The Sealy heirs petitioned for an interlocutory appeal. The Mississippi Supreme Court reversed. Mississippi’s long-arm statute, Miss. Code Ann. � 13-3-57, provides that in the event of the death of a nonresident person “[s]ervice of process or summons may be had or made upon such nonresident executor, administrator, receiver, trustee or any other selected or appointed representative of such nonresident person.” Looking to the language of the statute, the court determined that a deceased’s heirs were clearly not included. Full text of the decision CONSTITUTIONAL LAW Sex offender has no right to perform with balloons A county ordinance requiring a permit for performances in public using props or equipment was constitutionally applied to deny a permit to a street busker and balloon artist who was also a convicted child molester, the 2d U.S. Circuit Court of Appeals ruled on Feb. 7. Hobbs v. County of Westchester, No. 03-7985. Westchester County, N.Y., originally denied Richard Hobbs a permit to make balloon animals at a family park. Hobbs successfully challenged the permitting process. The county then discovered that Hobbs had been convicted of sex crimes against children and so changed the ordinance to deny permits to applicants with past convictions involving sexual assault of children. Hobbs again challenged the ordinance. The district court found the ordinance to be constitutional on its face and as applied to Hobbs. The 2d Circuit affirmed, finding the ordinance to be constitutionally content-neutral. Hobbs’ First Amendment rights were not unduly restricted because any political message he chose to convey could still be conveyed through traditional means, rather than through his balloon-making performances. Also, the props prohibition advanced the county’s interest in protecting children from being enticed into performances by sex offenders who might engage in lewd acts. Full text of the decision Police order to roll down car window is seizure A University of Maine police officer’s order to the occupant of a parked vehicle to roll down the car’s window was a seizure for purposes of evidence-suppression under the Fourth Amendment to the U.S. Constitution, the Maine Supreme Judicial Court held on Feb. 9. State v. Patterson, No. 2005 ME 26. Joshua Patterson was driving his car on the University of Maine campus when a university police officer noticed him signal and slow down at an intersection, but not turn. Although she admitted that there was nothing unlawful about Patterson’s driving, the police officer described it as “slightly erratic,” and asked another officer, Robert Norman, to take over surveillance of Patterson. After Patterson parked his car in a campus parking lot, Norman noticed smoke coming from the car. Suspecting the occupants to be using alcohol or illegal drugs, Norman tapped on the window and said, “Please roll down the window.” Norman ordered Patterson out of the vehicle, and he was charged with operating under the influence and operating after suspension. A trial court granted Patterson’s motion to suppress all evidence obtained after the order to roll down the window, holding that Patterson had been seized without any articulable suspicion, a breach of the Fourth Amendment. Affirming, the Maine Supreme Judicial Court held that a reasonable person would interpret Norman’s instruction to Patterson to roll down the window as an order rather than a request, making it a seizure for Fourth Amendment purposes. The court said, “Because a reasonable person would not feel free to disobey an order from a police officer, Sgt. Norman’s command constituted a seizure, and the evidence obtained thereafter was properly suppressed.” Full text of the decision CRIMINAL PRACTICE Defendant’s nonfamily may attend closed trial A criminal defendant’s drug counselor should have been admitted to an otherwise closed courtroom, the New York Court of Appeals ruled on Feb. 10. People v. Nazario, 1 No. 23. Portions of Ariel Nazario’s trial for buying heroin from an undercover police officer were closed to the general public to protect the identity of confidential informants. Nazario asked that his brother and drug counselor be allowed to attend. The trial court allowed the brother to attend, but not the drug counselor. Following conviction, Nazario appealed on the ground that he had been deprived of a public trial. An intermediate appeals court affirmed. The New York high court reversed. The court held that after the state has met its burden justifying the closure of a courtroom, the defendant then has the burden to prove that the person he wants to attend is someone he has a close relationship with. Nazario’s drug counselor would have provided the same kind of moral and emotional support normally given by a family member and should have been allowed inside the courtroom. Full text of the decision DAMAGES No concealment claim if no fiduciary relationship Because the relationship between a cigarette buyer and seller is not fiduciary in nature, a concealment claim has to fail, the 10th U.S. Circuit Court of Appeals ruled on Feb. 9. Burton v. R.J. Reynolds Tobacco Co., No. 02-3262. David Burton smoked cigarettes starting as a teen for 43 years until 1993, when both of his legs were amputated due to smoking-induced peripheral vascular disease (PVD). He brought a products liability action against the manufacturer of his brands, including R.J. Reynolds. After a 13-day trial applying Kansas law, a jury found in his favor on fraudulent concealment, pre-1969 negligent failure to warn and negligent failure to test claims. The jury awarded $196,000 in compensatory damages and authorized a punitive damages award for fraudulent concealment. A Kansas federal court awarded $15 million. The 10th Circuit reversed in part and affirmed in part. The court said that, in light of the weight of the core authority holding that the relationship between a product buyer and seller is not fiduciary in nature, ordinary transactions for the sale of cigarettes do not create fiduciary relationships. Without a fiduciary relationship, a concealment claim fails. However, the court affirmed the jury’s pre-1969 failure to warn verdict in Burton’s favor, rejecting R.J. Reynolds’ statute of limitations defense, holding that the jury had enough evidence to conclude that Burton’s injury was not “reasonably ascertainable” by him more than two years before he filed his claim. Also, the jury’s failure-to-warn verdict was supported by evidence of literature linking smoking with PVD from the 1930s on. Full text of the decision LABOR LAW Enron-related Andersen layoffs fit law’s exception Layoffs of Arthur Andersen employees following indictment by the Justice Department (DOJ) did not require 60-day advance notice under the Worker Adjustment and Retraining Notification Act (“WARN”), the 7th U.S. Circuit U.S. Court of Appeals held on Feb. 9. Roquet v. Arthur Andersen, No. 04-1616. Arthur Andersen LLP counseled Enron Corp. and audited its financial statements before the disclosure of Enron’s gross misstatements of earnings. In 2001, Andersen received a subpoena from the Securities and Exchange Commission requesting Enron-related documents. The SEC learned that Andersen employees had destroyed relevant documents in the preceding weeks. On March 14, 2002, DOJ unsealed an indictment charging Andersen with obstructing the SEC investigation. From March 15 to March 31, Andersen lost $300 million in business. On April 8, 560 employees at an Andersen practice group in Chicago were given notices of termination. Some of them filed a class action alleging violation of the WARN act, which requires 60 days’ advance notice to employees of mass layoffs. An Illinois federal court granted summary judgment for Andersen, because the act excepts any mass layoff that is “caused by business circumstances that were not reasonably foreseeable” at the time notice would be required. The 7th Circuit affirmed. The layoffs had begun on April 23, which means notification would be required by Feb. 22, barring the exception. The majority says that, as of that date, “Andersen had not suffered a significant loss of business nor was it giving any thought to a mass layoff.” The majority said “the need for mass layoffs was caused by the public announcement of the indictment on March 14,” not by Andersen’s felonious misconduct, as the plaintiffs alleged. An indictment was possible, but not “probable,” at that time. Full text of the decision LANDLORD/TENANT LAW OK to deny apartment to welfare recipient The Equal Credit Opportunity Act (ECOA) does not preclude a landlord from denying a residential lease to a prospective renter because she uses public assistance, the 7th U.S. Circuit Court of Appeals held on Feb. 9. Laramore v. Ritchie Realty Management Co., No. 04-1421. Brenda Laramore asked Ritchie Realty for an application to lease an apartment she had found on the Internet. A representative told her it was available to rent, but later said Laramore could not rent it because Laramore would be paying her rent in part with vouchers from Section 8 of the U.S. Housing Act. Laramore filed suit claiming Ritchie’s actions violated the ECOA, which makes it unlawful for a “creditor to discriminate against any applicant, with respect to any aspect of a credit transaction because all or part of the applicant’s income derives from any public assistance program.” An Illinois federal court granted Ritchie’s motion to dismiss, on the ground that a rental application is not a “credit transaction” under the ECOA. The 7th Circuit affirmed. Holding that Ritchie would be a creditor if a residential lease were to mean the right of a lessee to defer payment of a debt for the purchase of property or services already purchased, the court said that a typical “residential lease does not involve a credit transaction,” but rather “a contemporaneous exchange of consideration-the tenant pays rent to the landlord . . . each month for the right to continue to occupy the premises for the coming month,” rejecting Laramore’s view that a tenant’s monthly payments are not for the month’s occupation of the apartment when the rent is paid, but instead, 1/12th of the year’s rent. Full text of the decision MEDIA LAW Paper’s sources secrecy justified default judgment The refusal of a newspaper and its reporter to divulge their sources for a series of articles critical of a physician justified entry of default judgments in favor of the physician, the Massachusetts Supreme Judicial Court held on Feb. 9. Ayash v. Dana-Faber Cancer Inst., No. SJC-09236. Boston Globe health columnist Betsy Lehman died after receiving massive overdoses of a chemotherapy drug during an experimental breast cancer treatment study at Boston’s Dana-Farber Cancer Institute. Globe reporter Richard Knox wrote a series of articles about the overdoses, some critical of Lois Ayash, a Dana-Farber physician who was principal investigator of the study. After some of the Globe’s reporting about Ayash proved to be inaccurate, Ayash sued Knox and the Globe’s parent company, along with Dana-Farber and David Livingston, its chief physician. Ayash accused Knox and the Globe of defamation and infliction of emotional distress, and Dana-Farber and Livingston of inappropriately focusing public attention on her in order to deflect attention from widespread deficiencies in the hospital. After Knox and the Globe refused to reveal their confidential sources, a trial court entered pretrial default judgments against them, and a jury later found damages of $2.1 million against Knox and the Globe and another $2.1 million against Dana-Farber and Livingston. The Massachusetts Supreme Judicial Court upheld awards against all parties except Livingston. Regarding the judgments against Knox and the Globe, the court held that there was no error in the trial court’s balancing of the public interest in protecting Ayash’s right to evidence against the public interest in protecting the Globe’s ability to provide a free flow of information. The court said, “At the heart of the plaintiff’s case were her intertwined assertions that the officials at Dana-Farber were intentionally ‘scapegoating’ the plaintiff, at the same time the Globe and Knox were intentionally ‘spotlighting’ her for public censure. The plaintiff had the right to know whether it had been an agent of Dana-Farber (or, possibly, Livingston himself) who had divulged confidential information to the Globe.” Full text of the decision TORTS Liquor licensee may be liable for patron’s crimes A liquor licensee may be liable over the rape and murder of a woman that took place after the perpetrator had been served alcohol causing him to become intoxicated, the Iowa Supreme Court ruled on Feb. 11. Berte v. Bode, No. 161/03-1147. Randy Lee Bode and Nicole Berte were patrons of Pep’s Inc. on the night of Nov. 17, 2000. Employees of Pep’s served Bode alcoholic beverages, and Bode became intoxicated. After Berte agreed to give Bode a ride home in the early morning hours of Nov. 18, 2000, Bode raped her and strangled her to death at a location away from Pep’s. Berte’s husband brought a dramshop action against Pep’s. The trial court rejected Pep’s motion for summary judgment. The Iowa Supreme Court affirmed and remanded. Iowa Code � 123.92 states that “[a]ny person who is injured in person or property or means of support by an intoxicated person or resulting from the intoxication of a person, has a right of action for all damages actually sustained, severally or jointly, against any licensee or permittee . . . who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated, or who sold to and served the person to a point where the licensee or permittee knew or should have known the person would become intoxicated.” Although the court agreed with Pep’s affirmative defense that its actions were not the proximate cause of Berte’s death, Pep’s had failed to establish that Bode’s intoxication did not contribute to his injurious actions. “Proximate cause is not an issue, when . . . the injurious action was caused by the intoxicated person,” the court said. Full text of the decision

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