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CIVIL PRACTICE Voluntary-payment rule applies to class members A trial court failed to consider the effect of a voluntary-payment rule on current and former members of a BMG music club who had paid late fees since May 1998, the Texas Supreme Court ruled on Nov. 18, decertifying the class. BMG Direct Marketing Inc. v. Peake, No. 03-0547. Having paid $7.35 in late fees (in increments of 95 cents and $1.50) to BMG over three years of membership, Patrick Peake filed a class action against the music club, saying that the late fee was an illegal penalty because it did not reasonably forecast BMG’s actual damages resulting from members’ late payments. The fee, as spelled out in the membership rules, was imposed if members waited longer than 30 days to pay for music CDs shipped to them. The trial court certified the class, finding inapplicable the voluntary-payment rule, an equitable rule that often bars restitution of money that has been voluntarily paid with full knowledge of all facts and without fraud, deception, duress or coercion. An intermediate appellate court affirmed. The Texas Supreme Court reversed. Though statutory remedies have gradually supplanted the rule, and the state high court had not applied it in 40 years, it still has limited application. Knowledge of a late fee amount and the circumstances under which it will be imposed is sufficient to charge someone with full knowledge of the facts necessary to impose the voluntary-payment rule. The court said that the trial court should have weighed the rule’s application to the class members when considering class certification.   Full text of the decision Clerical error does not annul properly made rule An obvious scrivener’s error in the text of the Oklahoma Register does not invalidate a rule concerning driving while intoxicated, the Oklahoma Supreme Court held on Nov. 15. Charlson v. St. ex rel. Dep’t of Public Safety, No. 102117. Marland Charlson was stopped and arrested by a police officer who noticed him driving erratically. At the police station, Charlson took a breath test using an Intoxilyzer 5000D machine, which measures the amount of alcohol in the breath, with an attached simulator designated as Guth 2100, which calibrates the intoxilyzer. Test results showed an alcohol concentration of 0.08 grams of alcohol per 210 liters of breath, sufficient for an arresting officer to seize the driver’s license. The Board of Tests for Alcohol and Drug Influence promulgated the rule adopting the Guth 2100 as an approved breath simulator. At a hearing, the Department of Public Safety presented evidence that a typographical error caused the model number of the Guth 2100 to be entered incorrectly in the Oklahoma Register. The trial court sustained Charlson’s demurrer. The Oklahoma Supreme Court reversed. The rule at issue was published in the Oklahoma Register listing “Alcoholic Breath Simulator, Model 210021, Guth Laboratories” as an approved breath simulator rather than Model 2100. The court said that the rule was properly made and that a scrivener’s error cannot change the law. The error did not cause a citizen to comply with a rule of which he was unaware, and, in fact, the proper simulator was used. CONSTITUTIONAL LAW Police impoundment of car in driveway illegal A district court erred in granting summary judgment to a municipality and a towing company in a suit over the police impoundment of a vehicle, the 9th U.S. Circuit Court of Appeals held on Nov. 17. Miranda v. City of Cornelius, No. 04-35940. Irene Miranda, who did not possess a driver’s license, drove her family’s minivan around her neighborhood as her husband, Jorge Miranda, taught her to drive. Observing the poor driving and believing the driver to be possibly impaired, a police officer activated his lights and followed the vehicle until Irene Miranda parked the car in her driveway. The officer wrote tickets and impounded the vehicle. The Mirandas sued under 42 U.S.C. 1983, alleging violations of the Fourth and 14th amendments. An Oregon district court granted summary judgment to the city and the towing company that towed the car, and the Mirandas appealed. Reversing, the 9th Circuit held the impoundment of the car was unlawful because, under the community caretaking doctrine, which would have enabled police to impound the vehicle, the police had no community caretaking function once the car was in the Mirandas’ driveway. The court said, “Defendants have argued that the impoundment satisfied the ‘caretaking’ function by deterring the Mirandas from repeating this illegal activity in the future. Such a rationale would expand the authority of the police to impound regardless of the violation, instead of limiting officers’ discretion to ensure that they act consistently with their role of ‘caretaker of the streets.’ “ EMPLOYMENT Lateral transfer to job far away may be adverse A lateral transfer to a job 120 miles away may be considered an adverse employment action in a case brought under Title VII of the 1964 Civil Rights Act, the 6th U.S. Circuit Court of Appeals ruled on Nov. 17. Keeton v. Flying J Inc., No. 04-6023. Kyle Keeton claimed that his boss fired him from his job as associate store manager at a Flying J in Walton, Ky., after turning down her sexual advances. The day he was fired, Keeton called the district manager of another store to tell him what happened. The district manager called Keeton back 90 minutes later and said he could come work at the district manager’s store, which was 120 miles away, in the same position. Keeton took the position, but eventually quit. Keeton sued Flying J for sexual harassment in a Kentucky federal court. A Kentucky jury said Flying J was liable for sexual harassment resulting in a tangible employment action. However, it found that Flying J did not retaliate against Keeton. The 6th Circuit affirmed. The termination was not an adverse employment action because it lasted only briefly, and Keeton was immediately rehired. The lateral transfer, however, was reasonably found by the jury to be an adverse employment action because of the increased commute that forced him to consider relocating in order to maintain employment. EVIDENCE Marijuana seized illegally had to be suppressed A trial court erred in failing to suppress evidence of marijuana seized in a traffic stop because police did not have reasonable suspicion to stop a motorist, the District of Columbia Court of Appeals held on Nov. 17. Duckett v. U.S., No. 03-CM-1462. Without any reason to suspect Dustin Duckett of a crime, a Washington police officer ran a computer check of the license plate of a vehicle Duckett operated. When the check indicated “no record,” the officer noticed the smell of marijuana. The officer found marijuana, and Duckett was charged with possession with intent to distribute. Duckett moved to suppress, arguing that the stop violated his Fourth Amendment rights. The police officer testified that, in his experience, most of the times a computer returned a “no record” result, the vehicle in question was not registered in violation of the law. In fact, evidence indicated there could be multiple reasons for “no record” results. A trial court denied Duckett’s motion to suppress and convicted him in a bench trial. Reversing, the District of Columbia high court held that the police stop was illegal. The court said, “[T]he government has invoked cases holding that, at least in some circumstances, police officers reasonably may rely on erroneous information in law enforcement databases without violating the Fourth Amendment. . . . There is a critical difference between those cases and this one, however: the difference between erroneous information and no information. Rightly understood, this is a case of no information. Officer Gallagher did not receive inaccurate information that Duckett’s car was unregistered; he received no information about the registration status of Duckett’s car.” FAMILY LAW Suit immunity for child- custody expert witness There is no cause of action for tortious interference with a parental relationship against an adverse expert witness based on the witness’s testimony and participation in custody or visitation proceedings, the West Virginia Supreme Court of Appeals ruled on Nov. 18. Wilson v. Bernet, No. 32578. When a doctor alleged in a custody proceeding that his ex-wife’s boyfriend sexually abused the doctor’s child, the wife hired an expert in child psychiatry to investigate the issue. The expert found no evidence of abuse and neither did the trial court, which awarded permanent custody to the wife. The husband sued the expert witness for tortious interference with a parental or custodial relationship. Refusing to dismiss the claim, the trial court certified the issue to the West Virginia Supreme Court of Appeals. The state high court reversed. Citing several nationwide opinions granting immunity from suit to experts in child custody cases and other types of cases, the court answered the question “no,” there cannot be a cause of action for tortious interference with a parental or custodial relationship against an adverse expert witness. The court does not, however, address those situations where an expert witness’s testimony or participation in a judicial proceeding may constitute criminal activity, a situation not present here. GOVERNMENT Preference points don’t breach city charter The civil service preference-point rule, which allows points to be awarded for successful completion of the Fire Apprentice Program, does not violate the charter of the city of Dayton, Ohio, the Ohio Supreme Court held on Nov. 16. International Association of Firefighters, Local Union No. 136 v. City of Dayton, Civil Service Bd., No. 2004-1103. Pursuant to the city charter, the civil service board of Dayton adopted Rule 6 of the Civil Service Board Rules and Regulations, which provides standards for administering competitive examinations for positions within the competitive class of the classified service. The program is defined in a written report known as the Diversity Plan, which recommended the creation of the Fire Apprentice Program to facilitate recruitment and training of females and minorities into the Dayton Fire Department. Under an amendment to Rule 6, preference points could be added to the scores of people taking the firefighter recruit examination who have completed the Fire Apprentice Program. Local unions and residents of Dayton filed an action seeking a declaration that Rule 6 violated the city charter and an injunction preventing the civil service board from awarding preference points. The trial court found in favor of the unions. An intermediate appellate court reversed. The Ohio Supreme Court affirmed. Section 96 of the Dayton city charter states that positions within the competitive classified service, including firefighter recruits, must be based on “merit, efficiency, character, and industry.” People completing the Fire Apprentice Program are likely to have increased these qualities because they are each paired with a firefighter in a mentoring relationship. While the charter prevents preference points from being awarded based solely on sex or race, the court found that the purpose of the Fire Apprentice Program is to attract a diverse group of potential firefighters. INTELLECTUAL PROPERTY Trademarks use is OK after collapse of deal A manufacturer has a license to use a distributor’s trademarks after the distributor rejected their agreement, the 8th U.S. Circuit Court of Appeals determined on Nov. 17. A&L Laboratories Inc. v. Bou-Matic LLC, No. 05-1469. A&L Laboratories Inc. manufactures chemicals used in dairy sanitation and udder hygiene and for many years supplied distributor DEC International with them. In a global purchasing agreement entered into by A&L and DEC in June 2000, A&L and its parent company, Hypred, agreed to manufacture products for DEC and place trademarks on the product labels. Their agreement also stated that A&L could sell directly to DEC customers if it obtained DEC’s permission and paid a 5% commission over the first $4,000 of those sales. After DEC filed for bankruptcy in August 2001, A&L and DEC negotiated an amendment to their agreement that allowed A&L to sell directly to customers without obtaining prior permission at an 8.5% commission rate for each sale. When Bou-Matic LLC, a new company, bought, through the bankruptcy court, the division of DEC that did business with A&L, DEC rejected the agreement and the amendment. Negotiations between A&L and Bou-Matic for a new supply agreement failed, and A&L sued Bou-Matic. A Minnesota federal court found that Bou-Matic owned 41 of 67 trademarks and that A&L held a license in them under the agreement. The 8th Circuit affirmed. The amended agreement provided that “[i]f, after the effective date of this Amendment and before June 27, 2005, DEC commits a new and material breach of the [agreement] which remains uncured fourteen (14) days after DEC has received written notice of the breach . . . [A&L] . . . will be entitled to continue to use the trade names and product names associated with those Chemicals and Supplies, but excluding the trade name ‘BOU MATIC.’ ” 11 U.S.C. 365(g)(1) treats a rejection as a breach that occurred right before the filing of the bankruptcy petition. While the rejection could arguably be said to not be a “ new breach” because it occurred after the filing of the bankruptcy petition but is treated as occurring before it under the statute, the 8th Circuit effectuated the intent of the parties under the amendment in determining the licensing rights. LEGAL PROFESSION Ads featuring pit bulldog violated ethics rules A law firm’s advertisement, featuring a pit bulldog and displaying the law firm’s telephone number as 1-800-PIT-BULL, violated state ethics rules, the Florida Supreme Court held on Nov. 17. Florida Bar v. Pape, nos. SC04-40; SC04-41. John Pape and Marc Chandler aired television advertisements featuring a pit bulldog and which displayed their law firm’s television number as 1-800-PIT-BULL. The Florida Bar filed a complaint against Pape and Chandler, alleging that the advertisement was an improper communication concerning the services provided. After noting that pit bulls are perceived as “loyal, persistent, tenacious, and aggressive,” a discipline referee ruled that these qualities the ad conveyed were “objectively relevant to the selection of an attorney as they are informational, because these are qualities that a consuming public would want in a trial lawyer.” In addition, the ad was protected First Amendment speech. The Florida Supreme Court reversed, holding that the advertisement violated Florida ethics rules and that the appropriate punishment was a public reprimand and attendance at the Florida Bar Advertising Workshop. The court said, “Prohibiting advertisements such as the one in this case is one step we can take to maintain the dignity of lawyers, as well as the integrity of, and public confidence in, the legal system. Were we to approve the referee’s finding, images of sharks, wolves, crocodiles, and piranhas could follow. For the good of the legal profession and the justice system, and consistent with our Rules of Professional Conduct, this type of non-factual advertising cannot be permitted.” TORTS Smoker’s death not tolled for addictiveness notice A wrongful death claim fails if a smoker’s daughter seeks to toll the limitations period until she realized that the addictive nature of cigarettes caused the death, the 1st U.S. Circuit Court of Appeals held on Nov. 14. Arturet-V�lez v. R.J. Reynolds Tobacco Co., No. 04-2578. Maribel Arturet-V�lez brought a wrongful death action against tobacco companies in 2003, four years after her father, Angel, died. He had smoked cigarettes for more than 56 years. A Puerto Rico federal court dismissed the complaint based on Puerto Rico’s one-year statute of limitations for tort claims. Arturet-V�lez alleged that her father had tried to quit smoking after doctors’ warnings, but had failed due to his addiction. Puerto Rico tolls the running of the statute of limitations until the claimant is on notice of both the injury and the person who caused it. Arturet-V�lez claimed she did not learn that addiction was a substantial factor in her father’s death until a lawyer told her in 2003. The 1st Circuit affirmed, saying that the complaint essentially claimed that the proximate cause of the father’s death was one or more tobacco-related diseases. The $6 million in compensatory damages she was seeking had to be losses resulting from Angel’s death, not simply from discomfort he may have suffered due to the addiction itself. The court said, the “statute was triggered by the fact that a wrongful death claim was reasonably possible even if the aggravating circumstance of addiction was not yet known.”

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