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ALTERNATIVE DISPUTE RESOLUTION Arbitration clause did not cover allegation of breach In a claim of tortious interference with contractual relations, an arbitration clause in a distribution agreement between a distributor of embossing machines and a manufacturer of embossing machines encompassing “any controversy or claim arising out of or relating to this Agreement or breach thereof” did not cover the allegation that the manufacturer solicited the distributor’s employees where the agreement required that the distributor “maintain a sufficient sales and service organisation to adequately meet the needs of all customers” because the parties could not have reasonably expected that requirement to extend to such an allegation, the U.S. District Court for the Southern District of New York held on June 5. Norcom Electronics Corp. v. CIM USA Inc., No. 99-10559. CIVIL PRACTICE Imperfect instruction still enough for jury to use In a claim under the Age Discrimination in Employment Act, a district court’s jury instruction on the issue of mixed motive, although imperfect, sufficed to place the issue before the jury in determining the defendant’s actions, in a case in which the plaintiff-employees were terminated as a result of company consolidation and relocation, the 1st U.S. Circuit Court of Appeals held on June 9. Febres v. Challenger Caribbean Corp., No. 98-1916. Judge Bruce M. Selya said, “In a mixed-motive case, the burden of persuasion does not shift merely because the plaintiff introduces sufficient direct evidence to permit a finding that a discriminatory motive was at work; the burden shifts only if the direct evidence in fact persuades the jury that a discriminatory motive was at work.” Additionally, the appeals court said, the trial court’s refusal to give supplemental instructions upon the plaintiffs’ request did not constitute reversible error, and a jury verdict in favor of defendant must stand. CIVIL RIGHTS ADA suit over medical boards is time-barred A medical student’s claim under Title III of the Americans With Disabilities Act against the National Board of Medical Examiners for failure to provide a quadruple-time accommodation for his epilepsy and glaucoma while taking their standardized test was time-barred because, although Title III does not specify a time period within which claims must be brought, the claim was not brought within the three-year period for analogous personal injury causes of action, the U.S. District Court for the Southern District of New York held on June 6. Hunt v. Meharry Medical College, No. 98-7193. Former police chief may have triable Sec. 1983 case A chief of police’s motion to dismiss a former chief of police’s claims under 42 U.S.C. 1983 for false arrest, false imprisonment and malicious prosecution was denied because the current chief approved the former chief’s arrest for impersonating a police officer and there was a genuine issue of material fact regarding whether probable cause existed to arrest the past chief who was discovered during a traffic stop carrying a badge indicating that he was the past chief but did not attempt to use the badge to obtain favorable treatment or to act as a police officer, the U.S. District Court for the Northern District of New York held on June 6. DePrima v. Village of Catskill, No. 98-CV-1780. Fourth Amendment claims fail on probable cause A corrections officer’s claims under 42 U.S.C. 1983 for violation of his Fourth Amendment rights and false arrest after his arrest for burglary must be dismissed because probable cause existed for his arrest as the circumstances showed that he entered his ex-girlfriend’s home without her consent, using a spare key she had given him only in case of emergencies, in order to erase messages that he and his current girlfriend had left on her answering machine, the U.S. District Court for the Northern District of New York held on June 3. Harford v. County of Broome, No. 99-CV-0482. Plaintiff’s own objections doom Sec. 1983 claim A terminated employee has failed to show a deprivation of his procedural due process rights under 42 U.S.C. 1983 after almost two years passed before the Pennsylvania Supreme Court denied the employer’s petition for appeal of a court order requiring the employer to give the employee a new post-termination hearing because each time the employer attempted to comply with the order, the employee objected to the hearing examiner appointed, the U.S. District Court for the Eastern District of Pennsylvania held on June 7. Marchionni v. Southeastern Pennsylvania Transportation Authority, No. 98-6491. Prison doctors’ acts don’t show knowledge of risk The administrator of a decedent prisoner has failed to state a claim under 42 U.S.C. 1983 for Eighth Amendment violations by treating physicians after the physicians allegedly caused the prisoner’s death by forcing him to continue prophylactic treatment for tuberculosis, despite the decedent’s complaints that the medication was making him ill because, although the facts might suggest medical malpractice, they do not sufficiently allege that the physicians knew the decedent faced a serious risk of harm, the U.S. District Court for the Eastern District of Pennsylvania held on June 7. Outterbridge v. Commonwealth of Pennsylvania Department of Corrections, No. 00-1541. Sec. 1983 action accrues upon knowledge of act A cause of action under 42 U.S.C. 1983 accrues when a plaintiff knew or should have known of the wrongful act or acts alleged, the 1st U.S. Circuit Court of Appeals held on June 7. Connell v. Board of Selectmen of the Town of Harwich, No. 99-1860. The plaintiffs claimed that they were the targets of unlawful discriminatory acts by their town Board of Selectmen, who were allegedly trying to disrupt and damage their business by denying the plaintiffs the licenses and permits necessary to continue operating their restaurant-inn, the court noted. Although the court recognized two tolling extensions, the plaintiffs were not entitled to extensions because they were aware of the alleged unlawful discriminatory acts while they were taking place. Cross-dresser may have grounds for credit suit Although the equal Credit Opportunity Act does not specifically include manner of dress or sexual orientation as a basis of discrimination, a district court improperly granted dismissal of a case brought under the law because it was not clear that the plaintiff actually had “no viable theory of sex discrimination consistent with the facts alleged,” the 1st U.S. Circuit Court of Appeals held on June 9. Rosa v. Park West Bank & Trust Co., No. 99-2309. The plaintiff, who applied for a bank loan, was denied an application while he was dressed in feminine attire, the court noted. The officer allegedly said that she would not give him an application until the plaintiff “went home and changed” and that the applicant had to dress “like one of the identification cards in which he appeared in more traditional male attire before she would … process his application.” CONSTITUTIONAL LAW Petitioners’ exclusion from school did not violate law School officials could exclude people seeking petition signatures without violating their First Amendment rights because the simultaneous use of the school property for voting did not turn it into a public forum; the restriction was a reasonable exercise of a principal’s discretion to exclude visitors from school property in order to protect the safety of the attending children; and there was no evidence that the restriction was based on the content of the speech, the 8th U.S. Circuit Court of Appeals held on June 8. Embry v. Lewis, No. 99-2238. CONTRACTS Unilateral abandonment of venture was not a breach Defendants’ unilateral abandonment of a planned real estate venture with the plaintiffs did not constitute a breach of fiduciary duty or violate the Massachusetts unfair or deceptive trade practices statute, the 1st U.S. Circuit Court of Appeals held on June 9. Petricca Development L.P. v. Pioneer Development Co., No. 99-1538. According to the appeals court, “[t]he essential issue was not whether the parties intended a joint venture — for surely they did — but when they intended the joint venture to commence.” The court determined that the Petricca-Pioneer business relationship could not meet the criteria in Shain, which establishes the existence of a joint venture, until the defendant exercised its option to purchase the land from the plaintiff. In addition, the plaintiff forfeited any Chapter 93A protection by electing to participate in a joint venture, without regard to whether the plaintiff’s election would have culminated in the formation of a joint venture. CRIMINAL PRACTICE Bank larceny not included under bank robbery People charged with federal bank robbery are not entitled to have the jury consider whether they committed the lesser crime of bank larceny, the U.S. Supreme Court ruled on June 12. Carter v. U.S., No. 99-5716. By a 5-4 vote, the court said the federal larceny law contains several elements that are not part of the bank robbery law, and therefore larceny cannot be considered a “lesser included offense.” Justice Clarence Thomas wrote for the court that the larceny law requires proof of three elements not included in robbery: intent to steal property worth more than $1,000 and proof that the defendant “takes and carries away” the property. “Petitioner is accordingly prohibited as a matter of law from obtaining a lesser included offense instruction,” he said. Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy joined in the majority opinion. Justice Ruth Bader Ginsburg authored a dissenting opinion in which she was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer. Juries to be given info on parole possibilities A jury considering the appropriate sentence for a man convicted of eight noncapital felony offenses should be instructed that parole for the offenses in question has been abolished, the Virginia Supreme Court ruled on June 9. Fishback v. Commonwealth, No. 991615 The court added that where applicable, juries should also be instructed on the possibility of geriatric release. The court’s decision specifically overruled Coward v. Commonwealth and its progeny, which held that juries should not be instructed on the possibility of parole. Wife may testify under state marital confidence act A state statute — Maryland Code CJP � 9-105, addressing disclosure of confidential marital communications — does not render a spouse incompetent to testify regarding those communications, the Maryland Court of Appeals ruled on June 9, in a case of first impression. Brown v. State, No. 83. Instead, the statute establishes a privilege on the part of the person making the communication to preclude testimony by the spouse who discloses it, the court said. The court held that the privilege may be waived but that it was not waived in the instant case involving a murder charge. EMPLOYMENT LAW Federal law covers injuries suffered on employer’s train An employee’s claims for injuries he allegedly suffered on company property while boarding a train owned and operated by his employer immediately after the end of his work shift fall under the Federal Employer’s Liability Act because the employee was within the scope of employment because he was on the employer’s work site, was not in an area open to the public and had the employer’s consent to use the train to travel to and from the work site, the U.S. District Court for the Northern District of Illinois held on June 5. Ponce v. Northeast Illinois Regional Commuter R.R. Corp., No. 98 C 7976. ERISA doesn’t cover severance pay package A severance pay agreement signed by a company’s senior executive — providing for a lump-sum election and health and welfare benefits for up to one year in the event of a company takeover — is not governed by Employee Retirement Income Security Act because the plan places little administrative burden on the employer; has no requirement that the employer analyze the circumstances of the employee’s termination; is effective for a short period of time; and applies only to a small group of executives, rather than to all employees, the U.S. District Court for the Northern District of Illinois held on June 5. Leamon v. Platinum Technology Inc., No. 3:99-CV-2310-H. Plans can sue brokers for roles in money-losing deals Employee benefit plans can sue brokers and others who provide services for their roles in money-losing deals that had been barred by a federal pension-protecting law, the U.S. Supreme Court ruled on June 12. Harris Trust and Savings Bank v. Salomon Smith Barney Inc., No. 99-579. Sec. 406(a) of the Employee Retirement Income Security Act of 1974 (ERISA) bars a fiduciary of an employee benefits plan from causing the plan to engage in certain transactions with a “party in interest” that the fiduciary may be inclined to favor at the expense of the plan’s beneficiaries. At issue was whether a plan could sue a nonfiduciary “party in interest” over prohibited transactions. Justice Clarence Thomas wrote for a unanimous court that ERISA authorizes such lawsuits. “We reject … the … conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfiduciary party may not be held liable under Section 502(a)(3), one of ERISA’s remedial provisions,” he said. That provision “itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued.” Court lightens burden of intent in job bias cases Workers who say that their employers illegally discriminated against them can win lawsuits, or at least get their accusations to a jury, without direct evidence of intentional bias, the U.S. Supreme Court ruled on June 12. Reeves v. Sanderson Plumbing Products Inc., No. 99-536. The court’s unanimous decision in an age discrimination case also will apply to employment bias cases that allege discrimination based on race, sex and physical disabilities. Some federal appeals courts routinely had dismissed lawsuits lacking smoking-gun evidence of employers’ discriminatory intent, but the justices said that circumstantial evidence often is enough to sue employers successfully. The court previously had said that employees must show they were subjected to adverse treatment covered by an anti-bias law and that the employer’s asserted reason for such treatment was a lie. Some lower courts said that employees who discredit an employer’s stated reason must also offer proof of discriminatory motive. Justice Sandra Day O’Connor said that assumption is incorrect. “Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive,” she wrote for the court. “In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.” Justice Ruth Bader Ginsburg wrote a concurring opinion. Hiring of cops’ girlfriends didn’t bolster sex bias case A former police dispatcher who was denied reinstatement to her job could not claim quid pro quo sex discrimination on the ground that the village hired as dispatchers only those women who were or had been romantically involved with police officers, as there was no evidence that those women were coerced into those relationships or that this treatment was based on gender rather than romantic attachment, the Ohio Court of Appeals, 9th District, held on June 7. Sheffield Village v. Ohio Civil Rights Commission, No. 99CA007283. Also, the court said, the former dispatcher had no hostile work environment claim because at the time of her former employment, only one of her co-dispatchers was dating an officer. Superintendent’s comment supports race bias case A white teacher suspended for his involvement in an altercation with a black teacher provided sufficient direct evidence of employer discriminatory intent to survive summary judgment, the Tennessee Court of Appeals held on June 2. Paschall v. Henry County Board of Education, W1999-0070-COA-R3-CV. The superintendent’s comments that the white teacher was being suspended to avoid the appearance of giving preferential treatment to a white employee was relevant, the court said, because of the superintendent’s meaningful involvement in the school board’s decision, even if he was not the ultimate decision maker. Benefits may be denied for off-duty gross misconduct A lower court erred in finding that an employee who was fired for savagely beating a co-worker at his home was entitled to unemployment compensation benefits, the West Virginia Supreme Court of Appeals held on June 9. UB Servs. Inc. v. Gatson, No. 26565. The state’s highest court held that unemployment compensation may be properly denied for off-duty gross misconduct when there is a substantial nexus between the misconduct and the work environment, and when the effects of that misconduct extend substantially into the work area. Burden of proving pretext in firing rests on plaintiff Summary judgment dismissing hotel credit manager’s discriminatory termination claim under Title VII of the Civil Rights Act of 1964 was proper because employee failed to provide evidence raising a genuine issue of material fact, the 1st U.S. Circuit Court of Appeals held on June 7. Feliciano v. El Conquistador Resort, No. 99-1810. Once the employer is able to show a legitimate, nondiscriminatory reason for termination, the court said, the burden is on the employee to show that the reason proffered is a pretext and that the true reason is discriminatory animus. The employee offered no evidence that the hotel fired Puerto Ricans in greater proportion than non-Puerto Ricans, engaged in a pattern of firing Puerto Ricans, or adopted corporate policies discriminatory toward Puerto Ricans. HABEAS CORPUS Federal courts can’t review ‘future danger’ sentence Federal courts are not authorized to review a convicted Virginia murderer’s death sentence, based on his “future dangerousness,” even though he was barred from telling sentencing jurors he would be ineligible for parole under state law, the U.S. Supreme Court ruled on June 12. Ramdass v. Angelone, No. 99-7000. Justice Anthony M. Kennedy wrote in a plurality opinion that the Virginia Supreme Court’s finding that the state’s three-strikes law did not cover the defendant until shortly after he was sentenced must be honored because it “was neither contrary to, nor an unreasonable application” of a 1994 decision in which the justices said that defendants have the right to tell jurors about their parole status in such cases ( Simmons v. South Carolina, 512 U.S. 154). The vote was 5-4. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas joined in Justice Kennedy’s opinion. Justice Sandra Day O’Connor supplied the fifth vote in a concurring opinion. Justice John Paul Stevens wrote a dissenting opinion in which Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined. HEALTH LAW Medical testing company doesn’t fall under medicare A lawsuit by a patient’s husband alleging that a clinical laboratory testing company violated Medicare law by billing his wife, a Medicare B beneficiary, for amounts to which it was not entitled must be dismissed for lack of subject-matter jurisdiction because the testing services furnished were not “incident to” a practitioner’s services, as the husband did not allege that his wife’s blood was drawn by a practitioner and did not allege that the testing company was either an employee of the clinic at which his wife’s blood was drawn or directly supervised by anyone at the clinic, the U.S. District Court for the Northern District of Illinois held on June 5. Clemons v. Quest Diagnostics Inc., No. 99 C 6122. HMOs shielded from some federal suits over treatment Patients cannot invoke federal law to sue their health maintenance organizations for giving doctors a financial incentive to cut treatment costs, the U.S. Supreme Court ruled on June 12. Pegram v. Herdich, No. 98-1949. By a unanimous vote, the justices said that Congress has authorized such considerations by HMOs, shielding them from allegations that they had breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA). “The fact is that for over 27 years the Congress of the United States has promoted the formation of HMO practices,” Justice David H. Souter wrote for the court. “The federal judiciary would be acting contrary to the congressional policy … if it were to entertain [a claim] portending wholesale attacks on existing HMOs solely because of their structure.” To rule otherwise, he said, “would be nothing less than elimination of the for-profit HMO.” Justice Souter’s opinion noted that some states allow tort lawsuits against HMOs. IMMIGRATION LAW Naturalization governs status of citizen’s son A defendant facing deportation unsuccessfully argued that the removal statute should not apply to him because he was the child of a naturalized U.S. citizen and should have citizenship by operation of law under 8 U.S.C. 1432, which automatically confers citizenship upon children of naturalized citizens, the 1st U.S. Circuit Court of Appeals found on June 5. Fierro v. Reno, No. 99-8018. Although the defendant’s father became a naturalized citizen when the defendant was 15 years old, the father was not the defendant’s custodial parent at the time the father attained citizenship, the court noted. Although domestic relations are governed by state law, the court said, the circuit panel declined to recognize a Massachusetts state probate court judgment entered May 1998 that purported to award custody of the defendant to the father. SCHOOLS AND EDUCATION Failure to exhaust remedies sinks IDEA asthma claim Summary judgment was properly granted in favor of the defendants — the Coventry, R.I., school department and several Coventry public school officials — who challenged the plaintiffs’ claims that the school district and its officials violated the Individuals With Disabilities Education Act and state educational regulations by allegedly denying a “free appropriate education” to a minor child suffering from asthma, the 1st U.S. Circuit Court of Appeals held on June 8. Rose v. Yeaw, No. 99-2225. The court agreed with a federal magistrate, who, in recommending that the district court grant summary judgment, found that the plaintiffs had failed to exhaust their available administrative remedies before bringing the action. TAXATION Exclusionary rule applies to drug excise act The fourth amendment’s exclusionary rule applies to the Controlled Substance Excise Tax Act, invalidating taxation on cocaine that was seized pursuant to a tax warrant based upon judicially determined illegally seized evidence, the Indiana Tax Court held on June 5. Adams v. Department of Revenue, No. 49T10-9904-TA-00024. TRUSTS AND ESTATES Executor suffered injury upon adverse verdict An estate executor who, on the advice of counsel, turned down a $325,000 settlement offered by doctors whom the estate was suing for malpractice should have realized that he had suffered a cognizable injury as soon as the jury returned a verdict in favor of the doctors, the Tennessee Court of Appeals held on May 31. McDonald v. Ishee, W1998-00258-COA-R3-CV.

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