Tuesday, September 29, 2009

Equal Protection, indigents and the FTC's Red Flags Rule

Lerajjareanra-o-kel-ly, v. Schow,(Idaho App.)
Prisoners - Statute generally requiring indigent prisoners to make at least partial payment of filing fees did not violate equal protection.
In a matter of first impression, the Court of Appeals of Idaho has held that the statutory scheme generally requiring indigent prisoners to make at least partial payment of filing fees, but providing for waiver of such fees in certain cases for indigent non-prisoners, had a rational basis, which was legislature's intent to reduce frivolous prisoner litigation. Thus, the statute governing indigent prisoner filing fees did not violate equal protection.

ABA sues the FTC regarding “Red Flags Rule”
The “Red Flags Rule,” mandated by the 2003 Fair and Accurate Credit Transactions Act, requires that “financial institutions” and “creditors” implement programs to detect, identify and respond to activities that signal possible identity theft. The Federal Trade Commission (FTC) has stated that the term “creditor,” as defined by the act, covers all entities—including lawyers—that regularly provide services or goods before seeking payment. On August 27, the ABA filed a complaint asking the U.S. District Court for the District of Columbia to bar the FTC from applying its “Red Flags Rule,” intended to prevent identity theft, to practicing lawyers.

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Friday, September 25, 2009

Worst of Recession is Over for Law Firms, Says PricewaterhouseCoopers Survey

ABA Journal Law News Now, 9-25-09
Worst of Recession is Over for Law Firms, Says PricewaterhouseCoopers Survey

Posted Sep 23, 2009, 06:46 pm CDT
By Martha Neil

"After the economic carnage earlier this year, financial statistics show law firms were on more solid ground by the summer.

A survey of more than 50 law firms conducted by the PricewaterhouseCoopers accounting firm found that legal work and law firm profits increased during a three-month period that ended on July 31, in part due to internal cost-cutting by the partnerships, reports the Law Society Gazette.

Although certain practice areas, such as real estate, still are struggling, others, such as corporate and mergers and acquisitions, are recovering, David Thurkettle tells the British legal publication. He is a senior director in PwC’s professional partnerships group.

"Firms have weathered the storm in the main. They have got through the cost and the financial pain, and are now reaping the rewards," he says of the survey results, which he believes are probably representative of the situation at other law firms, too. "The view here is that, if you took a basket of different law firms, most of them are over the worst in terms of activity levels." "

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Tuesday, September 22, 2009

Appeals, covenants not to compete, indemnity, loan agreements and mesclun salad with balsamic-grape seed oil mustard vinaigrette

Contracts -- Employment -- Noncompetition covenant -- Enforcement -- Attorney's fees -- Employer who had restrictive covenant with employees cannot recover its attorney's fees from a third party who knowingly aided and abetted the employees' violation of the restrictive covenant -- Conflict certified -- Attorney's fees could not be awarded as matter of equity -- To extent plaintiff sought to recover attorney's fees under section 542.335(1)(k), no such statutory authority exists against a third party who did not sign restrictive covenant -- Third party's defense of suit brought against her by employer is not an “action” challenging the enforceability of a restrictive covenant -- Section 542.16, in which the legislature declared it to be the purpose of the Florida Antitrust Act to complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition and declared its intent that the act be liberally construed to accomplish this purpose, does not provide authority for allowing employer to recover fees from third party pursuant to section 542.335(1)(k) -- Application of statute to allow recovery of fees from third party is not dictated by public policy
Reported at 34 Fla. L. Weekly D1892b

Corporations -- Indemnity -- Contracts -- Trial court properly entered summary judgment for former vice-president and general manager of defendant corporation's agency on her claim for indemnification for attorney's fees and costs incurred in her successful defense of criminal charges of money laundering and conspiracy to launder money while acting in her capacity as vice-president -- Summary judgment for plaintiff on indemnification claim was proper because plaintiff was prosecuted “by reason of the fact” that she was an officer of the corporation and was acquitted because she was “successful on the merits or otherwise” -- Trial court properly entered summary judgment for plaintiff on breach of contract claim seeking payment for past wages when she was suspended without pay -- Where corporation's personnel manual provided for suspension of employee only until charges are clarified, once charges against plaintiff were clarified, defendant had option of paying plaintiff compensation required under employment contract or terminating her under one of justified reasons for termination under contract, and defendant did neither
Reported at 34 Fla. L. Weekly D1900a

Dependent children -- Appeals -- Non-final orders -- Post-dependency order denying father's motion for reunification -- Father's notice of appeal and amended initial brief treated, together, as petition for writ of certiorari -- Father made no showing that trial court's decision to deny immediate reunification was an abuse of discretion -- In absence of transcript, appellate court unable to determine whether father adduced evidence that could support any additional findings that would militate in favor of reunification -- Accordingly, father has not shown that trial court's findings of fact were materially inadequate or incomplete, much less that they were departure from essential requirements of law -- Petition for writ of certiorari denied
Reported at 34 Fla. L. Weekly D1881a

Interest -- Prejudgment -- Waiver -- Appeal of judgment providing that prejudgment interest would be awarded by separate order -- Questions certified: Where there has been an agreement on, or no objection to, a reservation of jurisdiction to award prejudgment interest, should the reservation be upheld in order to prevent an injustice notwithstanding the rule in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992)? -- Where a judgment contains a reservation of jurisdiction to award prejudgment interest, should the appeal of such judgment be treated as a premature appeal under Florida Rule of Appellate Procedure 9.100(l), or must the appeal be treated as accomplishing a waiver of prejudgment interest pursuant to McGurn v. Scott? -- Whether a trial court should be allowed to reserve jurisdiction to award prejudgment interest post-appeal as it can with attorneys' fees and costs?
Reported at 34 Fla. L. Weekly D1902a

Contracts -- Loan agreement -- Guaranty -- Lender's action for nonpayment of promissory note and breach of guaranty -- Discovery -- Order requiring guarantor's wife, a nonparty, to disclose personal financial information that was neither relevant to lender's claims nor reasonably calculated to lead to the discovery of admissible evidence departed from essential requirements of law -- To extent order requires wife to disclose personal financial information, it undeniably violates her right to privacy, and such disclosure may cause irreparable harm that cannot be remedied on appeal -- Lender's argument based on case law involving claim asserted under Uniform Fraudulent Transfer Act is unavailing where lender has neither alleged claim under UFTA nor added putative fraudulent transferee as defendant in pending action -- Lender's claim that inquiry into wife's finances was justified because it had relied on wife's personal assets in reaching decision to make loan is not only unsupported by sufficient record evidence and lacking in credibility, such reliance would not give lender rights it would otherwise lack to obtain discovery from nonparty concerning her personal financial information
Reported at 34 Fla. L. Weekly D1910b

Civil rights -- Torts -- Pretrial detainees -- Correction officers -- Deliberate indifference to serious medical needs -- Cruel and unusual punishment -- Negligent or wanton breach of duties -- Action arising out of pretrial detainee's death, alleging jailer was negligent in fastening detainee to D-ring in jail cell when detainee became increasingly agitated, in failing to ensure that detainee received Librium doses prescribed by medical personnel, and in failing to check on detainee for several hours although detainee was on fifteen-minute observation status; and that jailer falsified close-observation documents to indicate that fifteen-minute checks had been done -- Sovereign immunity -- Alabama law is unclear on whether jailers are entitled to absolute immunity against state law claims -- Question certified to Alabama Supreme court: Are jailers, like sheriffs and their deputies, absolutely immune from state claims for money damages based on actions taken within the scope of their employment?

Reported at 22 Fla. L. Weekly Fed. C136a
Banks -- Torts -- Breach of fiduciary duty -- Negligent misrepresentation -- Injunctions -- Plaintiffs seeking to restrain bank from paying an irrevocable standby letter of credit, which was issued for purpose of paying for the purchase of a luxury motor yacht to be built in China and which named codefendant/contractor's Chinese bank as beneficiary, based on alleged oral misstatements and omissions by bank's employee -- Claim for breach of fiduciary duty by issuing bank must fail where relationship between plaintiffs and this bank was nothing more than lender-borrower -- Plaintiff produced no evidence to support testimony that issuing bank told plaintiff that he would be protected in letter of credit transaction with a stipulation that the letter of credit would only be paid upon completion of the yacht construction -- Where letter of credit contained language requested by and provided entirely by the plaintiff to bank's employee and plaintiff read, approved, and signed the document, reliance on alleged oral representations is unjustified, and claims for negligent misrepresentation and equitable estoppel must fail -- Fraud -- Although letter of credit is normally independent from underlying contract, letter of credit must be rescinded if underlying contract was procured through fraud -- Plaintiffs' claim that Chinese bank engaged in fraud by making loans to contractor without securing those loans with collateral, loaning money to contractor to build a yacht when it knew that contractor did not have the capability of doing so, and lying when it demanded payment on letter of credit by stating that it was indebted to contractor for building the yacht, although yacht was never built, was unsupported by evidence in the record -- Unjust enrichment claim against Chinese bank must fail where plaintiffs presented no evidence that Chinese bank engaged in any wrongdoing -- Moreover, it was equitable for Chinese bank to demand payment on letter of credit where it had loaned money to contractor to finance construction of yacht and money had not been repaid -- Civil conspiracy -- Evidence did not support claim that issuing bank and Chinese bank entered into agreement to defraud plaintiffs of the money they put up to purchase yacht -- Court finds in favor of defendants -- Injunction previously issued by court enjoining payment of letter of credit is vacated and dissolved
Reported at 22 Fla. L. Weekly Fed. D43a

Fair Labor Standards Act -- Overtime -- Settlement -- Extent to which court should inject itself into process of approving FLSA settlements -- Objection to magistrate's report and recommendation, which included recalculation of and reduction of attorney's fees amount using lodestar method -- FLSA settlement which involves a compromise of plaintiff's claims requires court approval -- If parties submit proposed FLSA settlement that constitutes a compromise of plaintiff's claims, makes full and adequate disclosure of the terms of the settlement, including the factors and reasons considered in reaching the same and justifying compromise of plaintiff's claims, and represents that attorney's fees were agreed upon separately and without regard to the amount paid to the plaintiff, then, unless the settlement does not appear reasonable on its face or there is reason to believe that plaintiff's recovery was adversely affected by the amount of fees paid to his attorney, court will approve the settlement without separately considering the reasonableness of the fee to be paid to plaintiff's counsel -- However, if parties can only agree as to the amount to be paid to the plaintiff, the court will continue past practice of determining a reasonable fee using the lodestar approach -- Parties in this case are given leave to amend their renewed joint motion to approve settlement agreement to address whether plaintiff's attorney's fee was agreed upon separately and without regard to amount paid to plaintiff
Reported at 22 Fla. L. Weekly Fed. D51a

Torts -- Defamation -- Counties -- School boards -- Privilege -- Action against school board and elected member/vice-chair of board based on allegedly defamatory statements made at school board meetings and to the media regarding plaintiff, who was terminated from her position as “school board attorney” for alleged misconduct in accepting moving expense allowance, although she never moved -- School board member enjoys absolute privilege with respect to all of the alleged statements where the alleged defamatory statements were made in connection with the performance of her official duties and responsibilities
Reported at 22 Fla. L. Weekly Fed. D54a

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Wednesday, September 16, 2009

Latest on healthcare reform legislation

This morning Senate Finance Committee Chairman Max Baucus (D-MT) introduced healthcare reform legislation, America’s Healthy Future Act of 2009. Because of its significance to our shared interest in health law, below is a link to the bill so you access it immediately. The text of this bill is available at:

http://finance.senate.gov/sitepages/leg/LEG 2009/091609 Americas_Healthy_Future_Act.pdf

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Tuesday, September 15, 2009

Insurance, autism screening, arbitration, health law, foreclosure and a dash of salt

Florida Insurance - General - State Bill Tracking
2010 Florida House Bill No. 107 112th Regular Session (SUMMARY - NETSCAN)
Autism; Requires that physician refer minor to appropriate specialist for screening for autism spectrum disorder; requires certain insurers & HMOs to provide direct patient access to appropriate specialist for minimum number of visits per year for screening, evaluation, or diagnosis of autism spectrum disorder. EFFECTIVE DATE: 07/01/2010
2010 FL H.B. 107 (NS)

Tuesday, September 15, 2009
Wrongful Death: ARBITRATION CLAIM: LUNG TRANSPLANT PATIENT BLED TO DEATH AFTER NURSE REMOVED CLAMP, 5 No. 8 West's Medical Malpractice Law Report 1, West's Medical Malpractice Law Report September 14, 2009
A Maryland man who underwent successful bilateral lung transplant surgery bled to death after a nurse accidentally removed a clamp, according to documents filed with a state health claims arbitration panel. The claim filed on behalf of Bryan DeWitt Harris by his wife, Denise, also accuses the hospital of trying to cover up the true cause of his death. Denise Harris filed the claim with the Maryland Health Claims Alternative Dispute Resolution Office.

Medication Error: MEDICATION ERROR FORCED BIRTH INSTEAD OF STOPPING IT, SUIT SAYS, Comerica Bank v. Tenet Healthcare Corp., 5 No. 8 West's Medical Malpractice Law Report 2, West's Medical Malpractice Law Report September 14, 2009
A Florida woman who was admitted to the hospital to prevent premature labor says she was given an abortion medication instead of a drug to help maintain her pregnancy, causing her to deliver her premature baby into a bedpan. Tesome Sampson's daughter Traniya Guy survived the premature delivery at 24 weeks but was left severely brain-damaged, according to the suit filed in the Palm Beach County Circuit Court.

Birth Injury: 'ERROR OF JUDGMENT' CHARGE NOT PROPER IN PA. MED-MAL TRIALS, Pringle v. Rapaport, 5 No. 8 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report September 14, 2009
A Pennsylvania appellate court has ruled that the "error of judgment" jury instruction should not be given in medical malpractice cases since it "confuses, rather than clarifies the issues a jury must decide." The 7-2 Superior Court ruling means that Dennis and Christine Pringle will get a new trial in their lawsuit against Dr. Adolfo Rapaport, whose allegedly negligent delivery of their son Austin resulted in injuries to his right arm.

Adoption -- Termination of parental rights of unmarried biological father of child pending adoption -- Consent -- Error to enter summary judgment terminating biological father's parental rights based on father's failure to file claim with Putative Father Registry and pledge of commitment to child where father was not given timely notice of and opportunity to preserve his parental rights -- Notice was untimely where it was not provided to father until after petition for termination of parental rights was filed
Reported at 34 Fla. L. Weekly D1859a

Civil procedure -- Discovery -- Deposition of opposing counsel -- Action against physician alleging that defendant failed to bill plaintiff through insurance network rather than through arrangement whereby defendant had been paid by plaintiff's attorney in separate litigation involving plaintiff's injury in a traffic accident -- Trial court did not depart from essential requirements of law in denying defendant's motion to disqualify plaintiff's counsel where counsel was not a necessary witness in claim against defendant, but court did depart from essential requirements of law in denying defendant's motion to compel deposition of plaintiff's counsel where counsel qualifies as a material witness in claim against defendant
Reported at 34 Fla. L. Weekly D1871a

Dissolution of marriage -- Contempt -- Enforcement of marital settlement agreement whereby former husband agreed to pay certain expenses incurred by child in lieu of conventional monthly child support -- Where agreement provided that former husband would pay certain of child's expenses until he reached age eighteen or twenty-one, but provided that former husband would pay child's tuition and related education expenses while child is enrolled as a full-time student, without specifying an ending date, trial court erred by finding that provision regarding payment for educational expenses such as books, school supplies, computer software and routine automobile maintenance is ambiguous and unenforceable because the provision contains no ending date -- Attorney's fees -- Court did not abuse discretion in denying former wife award of attorney's fees where parties have similar financial ability to obtain counsel
Reported at 34 Fla. L. Weekly D1870b

Mortgage foreclosure -- Appeal from post-judgment order denying motion to vacate was premature where trial judge stamped motion “denied” and affixed his signature and date to motion, but there was no indication that this “order” was rendered by filing it with the clerk after judge had signed it, as required by rule 9.020(h) -- Jurisdiction relinquished for proper rendition of order -- Courts discouraged from using rubber stamps to rule on motions -- To enable meaningful appellate review, trial court to provide basis for denying motion to cancel sale, which was also stamped “denied” but never rendered, and motion to vacate sale
Reported at 34 Fla. L. Weekly D1866b

Torts -- Veterinary malpractice -- Claim arising out of physical ailments suffered by plaintiff's dogs after defendant veterinarian recommended and administered a new heartworm medication to dogs -- Claim regarding administration of heartworm medication was barred by settlement and release executed between plaintiff and manufacturer of heartworm medication -- Release was not rendered unenforceable because it did not expressly reference negligence -- Requirement that a preclaim exculpatory clause must state that it releases party from liability for his own negligence is inapplicable in case of a postclaim release -- Reference in release to “all other persons, corporations and entities” applied to defendant for claims resulting from sale, use or administration of heartworm medication -- Although summary judgment for defendant was proper as to claims arising out of administration of heartworm medication, it was error to enter blanket summary judgment as to claims not within the scope of the release
Reported at 34 Fla. L. Weekly D1861a

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