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CONSUMER PROTECTION Federal law applies to both car leases and sales The Magnuson-Moss Warranty Act, the federal law governing warranties on consumer products, applies to long-term leases as well as sales of automobiles, the Florida Supreme Court held on April 12. American Honda Motor Co. Inc. v. Cerasani, No. SC05-1907. Jennifer Cerasani leased an automobile from American Honda Motor Co. After experiencing problems that Honda did not address to her satisfaction, Cerasani filed suit under the federal Magnuson-Moss Warranty Act. A trial court dismissed Cerasani’s suit, holding that the statute applies only to the purchase of vehicles, not to leases. An intermediate appellate court reversed, holding that the statute does apply to leases. Affirming, the Florida Supreme Court said, “The allegations in Cerasani’s complaint are sufficient to make her a Category Three consumer entitled to enforce Honda’s new motor vehicle warranty under state law. She alleged that Honda supplied the warranty to the lessor, who then assigned it to Cerasani, and that she submitted the car to the dealer at least seven times in an unsuccessful attempt to have defects covered by the warranty remedied. Therefore, she meets the criteria for a consumer entitled to bring suit for damages under the MMWA.”   Full text of the decision CRIMINAL PRACTICE Probation inadequate as sentence for $1.4B fraud PROBATION WAS AN “unreasonable” sentence for a key figure in the large accounting fraud scandal at HealthSouth Corp., the 11th U.S. Circuit Court of Appeals held on April 19. U.S. v. Livesay, No. 06-11303. Kenneth K. Livesay was former assistant controller and chief information officer of Birmingham, Ala.-based HealthSouth, whose officials perpetrated a $1.4 billion fraud that falsely inflated earnings. Among the several HealthSouth officials charged, Livesay pleaded guilty to wire and securities fraud conspiracy and falsification of financial information. In 2005, the 11th Circuit reversed Livesay’s sentence of home confinement and probation, finding that an Alabama federal judge had provided only a “scant basis” on which to assess the reasonableness of such a light sentence. On remand, however, the trial court imposed the same sentence. The 11th Circuit again vacated, finding Livesay’s sentence “unreasonable.” According to the Federal Sentencing Guidelines, Livesay’s crimes merited a sentence between 6 1/2 and 8 years. Though he had assisted in the prosecution of several HealthSouth officials, Livesay, the court said, merited some leniency, but not a walk. His “cooperation, while commendable, extraordinary, and extremely valuable, is not a get-out-of-jail-free card, and ‘does not wash the slate clean.’ ” Livesay “ played a key role in a massive” prolonged fraud, falsified financial records and instructed and supervised others in making false entries. Parole board can’t ignore commutation of sentence The Missouri parole board cannot refuse to release two women convicted of murdering husbands after the governor has commuted their sentences, an en banc Missouri Supreme Court held on April 17. Lute v. Missouri Board of Probation and Parole, No. SC88026. Lynda Branch and Shirley Lute were each convicted of murdering husbands who had abused them consistently for years. Both petitioned the governor for clemency. The governor commuted their sentences, making them both “eligible for parole consideration.” However, the parole board denied them parole. They petitioned for writ of habeas corpus. The Missouri Supreme Court held that the board had erred in reconsidering the circumstances surrounding the women’s offenses in denying them parole, as the governor had already done that in deciding to commute their sentences. The court said that, according to the Missouri Constitution, the governor has sole authority to commute criminal sentences at his discretion. Therefore, the board must follow his orders. Court can’t quash results of tests yet to be done A trial court abuses its discretion when it commits to ordering the suppression of the results of DNA tests that have not yet been performed, the Colorado Supreme Court ruled on April 16. State v. Wartena, No. 06SA232. Fleeing after stealing a car, Matthew Wartena killed one motorist in an accident and allegedly shot another. The Colorado Bureau of Investigation notified Wartena that it would conduct a DNA test on the gun recovered at the scene of the accident; the bureau also said that the DNA sample would likely be destroyed and that no defense testing of the gun would be permitted. Wartena asked that the testing to be videotaped, but the bureau refused, citing its policy of not allowing recording of the test. Though the state said it would allow an expert defense witness to be present, Wartena refused because of the prohibitive cost: a projected $7,000. The trial court entered an order saying it would suppress the DNA test results unless the state paid all but $1,000 of the defense expert’s costs. The Colorado Supreme Court reversed. The court said that while it may be appropriate to seek to avoid a possible future suppression of evidence, the court’s commitment to a future ruling was an abuse of discretion. There had been no test, no evidence had been destroyed, no results had been offered into evidence and the defendant’s rights had not been violated. Therefore, a commitment to suppress unknown results of testing that has not yet been conducted based on circumstances that might develop exceeds the court’s authority. EMPLOYMENT OK to fire at-will worker for refusal to dismiss suit Termination of AN at-will employee for his refusal to dismiss an Open Records Act case against a third party is not contrary to public policy, the Oklahoma Supreme Court ruled on April 17. Shero v. Grand Savings Bank, No. 102154. The City of Grove, Okla., was a customer of Grand Savings Bank, where David Shero worked. Shero was named as a party in litigation initiated by the city, prompting Shero to file a counterclaim in which he asked for a declaration that certain documents were subject to the Open Records Act (ORA). The bank insisted Shero drop his counterclaim against the city. He refused, and the bank fired him. Shero sued the bank for wrongful termination in violation of public policy as set forth in the ORA. The bank filed a motion to dismiss on the ground that Shero was an at-will employee and that his termination didn’t fall within the public-policy exception to the employment at-will doctrine. The trial court granted the bank’s motion. The Oklahoma Supreme Court, the state civil high court, affirmed. As an at-will employee, Shero could be fired without cause unless his firing was against public policy. While the Open Records Act includes a statement of public policy regarding the public’s right to know and to be fully informed about its government, it does not include any public-policy statement against conditioning continued employment on the abandonment of claims made under the act. “Thus, even if we believe Bank’s decision to terminate Employee in this case was contrary to good business decision-making or even morally wrong, we find the termination violates no clear mandate of public policy.” FAMILY LAW Only appeal before death of spouse will nix divorce A spouse’s death after entry of a judgment of divorce � but before the expiration of the appeal period � doesn’t invalidate the divorce if no appeal had been filed before the spouse’s death, the Maine Supreme Judicial Court held on April 17. MacPherson v. Estate of MacPherson, No. 2007 ME 52. Sylvia MacPherson filed for divorce against her husband, John MacPherson, citing irreconcilable differences. A Maine trial court entered a divorce judgment on May 23, 2006. The divorce was uncontested, and the parties executed a settlement agreement, which was incorporated into the divorce decree. John MacPherson died unexpectedly on June 4 � within the time period for appealing the divorce judgment. Sylvia MacPherson then moved to dismiss her complaint and have the judgment vacated, citing a substantial change in circumstances. The trial court denied the motion. MacPherson appealed, arguing that the time for appeal had not expired before John MacPherson’s death. Affirming, the Maine Supreme Judicial Court, Maine’s highest court, held that the divorce judgment was final. The court said, “Sylvia essentially argues that a judgment does not become final until that appeal period has already expired, even if no party has actually appealed. If that were true, appellants would be precluded from ever appealing a judgment because, by the time the judgment became ‘final’ by expiration of the appeal period, any appeal filed thereafter would be untimely. Thus, the divorce judgment issued by the court was final.” INTERNATIONAL TRADE Crawfish stew exempt from anti-dumping order Crawfish etouffee is not a product covered by a crawfish tail meat anti-dumping import order, the U.S. Court of Appeals for the Federal Circuit ruled on April 20. Crawfish Processors Alliance v. U.S., No. 06-1501. In 2004, Coastal Foods LLC asked the U.S. Department of Commerce to determine whether the crawfish etouffee it imported was within the scope of a 1997 anti-dumping order imposed against freshwater crawfish tail meat imported from China. The order covered tail meat, “in all its forms.” Coastal described its etouffee as being a fully cooked stew in which crawfish meat was only one of many ingredients. The Crawfish Processors Alliance, representing domestic producers, urged the Commerce Department to include etouffee within the order’s scope. Because the criteria set forth in 19 C.F.R. 351.225(k)(1) were not dispositive of whether etouffee was included within the scope of the anti-dumping duty order, Commerce considered the so-called Diversified Products factors, which were identified by the Court of International Trade in Diversified Products Corp. v. U.S., 572 F. Supp. 883 (Ct. Int’l Trade 1983). Those factors include the physical characteristics of the product, the expectations of the ultimate purchasers, the ultimate use of the product, the channels of trade in which the product is sold and the manner in which the product is advertised and displayed. The department ruled that etouffee was not covered by the order. The Court of International Trade affirmed. The Federal Circuit affirmed. Agreeing that consideration of the Diversified Products criteria was necessary, the court found “substantial evidence” that the crawfish had undergone at “substantial transformation” in becoming etouffee and can no longer be considered freshwater crawfish tail meat. “[T]he ingredients have penetrated the tail meat and have permanently altered its original flavor.” LEGAL PROFESSION Court can revoke license of attorney to practice A Virginia trial court has the power to revoke an attorney’s right to practice in its jurisdiction, the Virginia Supreme Court held on April 20. In re Jonathan A. Moseley, No. 061237. Jonathan A. Moseley represented Tracy E. Ammons in breach of contract suits against The Christian Coalition of America Inc. over a consulting agreement. The parties disagreed whether the agreement had an arbitration clause. Both sides denied having a copy of the agreement. At an evidentiary hearing, Ammons testified he had found a copy of the agreement and had given a copy to Moseley. Ammons also conceded that the agreement had an arbitration clause. The judge dismissed the case, reprimanding Moseley over the numerous frivolous pleadings and motions he had filed in the case. The judge awarded $83,141 in sanctions against Moseley and Ammons, jointly and severally. After arbitration began, Moseley filed a second motion for judgment, alleging substantially identical claims. During hearings in February and March 2006 examining Moseley’s conduct, evidence was presented showing that Moseley had written disparaging comments about participants in the case, including the judge, who had recused herself. A judge found Moseley’s conduct unethical and revoked Moseley’s right to practice in that jurisdiction. The Virginia Supreme Court affirmed. Attorney licensure in Virginia is governed by Va. Code Ann. �� 54.1-3928 and 54.1-3934, the court said. However, whether a particular court can revoke an attorney’s privilege to practice before it is a separate consideration governed by a lengthy line of cases going back to 1835. The court said that the statutory procedure to revoke or suspend an attorney’s license does not curtail a court’s “authority to control those who practice before it, including the authority to suspend or revoke an attorney’s privilege to practice before that court.”

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