AELR BLOG

In a recent post on the sports blog, the subject of the olympics being held in China was discussed. This mainly focused on the political issues surrounding the upcoming games and those in the past where major political differences were in the forefront. Much has been made about the treatment of Tibet recently due to the spotlight being on China leading up to the games.

There has been a great amount of coverage as the olympic torch has traveled around the world. Much of this has been negative as many of the torch carriers have been confronted by angry protesters in France and the U.S. Spectators have left the viewers and put out the torch on a couple occasions as a protest to the Chinese treatment of Tibet.

Some people have said that politics and the olympics should not be intertwined. However, the purpose of the olympics is to promote global unity and bring the world together. What better venue could there be for global humanitarian ideas to be brought forward? The olympics should go on as usual, however, the discussion of the treatment of Tibet needs to be addressed on a global stage and the olympics has provided the perfect opportunity for its discussion.

On the Sports Law blog, a posting titled, “When Animals Attack, Are Baseball Stadiums Liable,” discusses the recent attack of a spectator at Fenway Park by a hawk. The attack did not occur during a baseball game, but instead during a tour of the park. A witness stated: “The hawk descended upon the fan, who was on a tour of the park, and drew blood from her scalp.” The poster comments that: “As a result, [if] the fan to sue a baseball stadium it seems unlikely that the special “primary assumption of risk” notion would bar a lawsuit. Instead, the case would likely turn on whether a stadium owner has (1) any responsibility to protect fans from raptors and (2) whether the Red Sox failed to take steps that a reasonable stadium operator would take with respect to such birds.”

This would likely be the presumption, however in my opinion the poster does not give due weight the preferred status baseball receives in the United States. Baseball park owners receive preferred treatment in order to protect what courts have openly called “our national past game.” As a basic premise, owners and operators of baseball parks have a duty to maintain the premises in a reasonably safe condition and to supervise the conduct of spectators on the premises to prevent injury. In this case, the random act of a bird coming down and attacking a spectator could not have been prevented by the owners of the Boston Red Sox and Fenway Park. Courts have imposed liability on owners, but it has usually been for errors, such as holes in fences, etc. Even if a player foul balls and it hits spectators, the owners are often protected from liability. Also, even if the ball goes over spectators head hits off something and comes back to hit the spectator, courts have merely said: The fan has a duty to keep their eye on the ball.

The closest precedent may actually come from a case involving golf. In Rockwell v. Hillcrest Country Club, 181 N.W.2d 290 (1970), a case from the Michigan Court of Appeals, the Court said: the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent acts, and to warn him of latent dangers of which the occupier knows, but he must also take reasonable precautions to protect the invitee from dangers that are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition. In this case I do not believe there was any way the owners could know a bird would fly down and attack a spectator on a visit.

The only other label would be for a Public Invitee. One who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public, a possessor must warn of dangers that a reasonable inspection would have revealed and repair highly dangerous conditions to protect invitee. Rsmt. §332. Also, in this case, I do not feel there is any way to warn for the danger of a random bird swooping down to attack a spectator. In this case, the randomness of the harm, coupled with the preferred status baseball park owners receive throughout the courts of our land, lead me to the conclusion the Red Sox may bear no liability.

Previously, I blogged about the University of Chicago Law School banning internet in the classroom. However, an even more inappropriate use of the internet at a law school has been exposed by abovethelaw.com.

Apparently some students at American University Washington College of Law have been doing some interesting internet searches while in the classroom. In an e-mail sent out by David Jaffe, Associate Dean for Student Affairs at the American University Washington College of Law, on Tuesday, April 22nd, it has been brought to his attention that a several students were viewing pornography online, during class. This apparently occurred in plain view of a portion of the class and the students did not try to disguise their behavior.

Jaffe responded to an e-mail from ATL that the student had received “humorous pictures” that had the potential as being taken the wrong way. The student did not intend for anyone to see his screen and was very apologetic about the entire episode.

Once again, the issue of internet surfing is on the hot seat. If schools truly are concerned with internet usage they should take steps to ban internet usage in the classroom. However, I think that most students who use the internet during class do so in a reasonable manner and only do so because they are very bored. Maybe instead of cutting out the internet in the classroom, we need to have more interactive classrooms. Another solution could be to lessen the legal education to 2 years.

In recent times, Class-Action litigation has lead many a plaintiff to a discount coupon for contact lenses, free burger, or a free month of Netflix. In 2004, Frank Chavez, a Netflix user, sued Netflix, behalf of a class of Netflix users, for fraud and false advertising. Chavez alleged that Netflix employed the use of an algorithm to prioritize the lowest-consuming members and gave the highest-consuming members fewer DVDs per month. Basically, the quicker you watched DVDs, Netflix would drag its feet when it came to shipping out more DVDs to you.

In 2005, Netflix reached a settlement with the class. Netflix settled with 697,000 members. The members were given either a one-month upgrade in service level for current subscribers (i.e. instead of having 1 DVD checked out at a time, 3 DVDs at a time) or one month of free service for past subscribers. On April 23rd, a California Appeals Court awarded the attorneys on the case $2 million in fees.

It doesn't seem very fair for a court to award $2 million in cash for the attorneys, but only give the actual Plaintiffs coupons for free service. The Plaintiffs can't turn around and sell their service to anyone. It effectively only has value to them, and no value on the open market. This is just another example of a problem with the class-action system. I am aware that certain states have outlawed such agreements, but those states are in the minority and this sort of thing happens a lot more than you'd think.

According to the Wall Street Journal's Law Blog, the next front in the ever-expanding wage and hour litigation could be Blackberry usage. For those unfamiliar with the Blackberry--colloquially known as the “Crackberry”--it is basically a cell phone that also combines e-mail and internet access into one mobile device. Employees are often given a Blackberry device in order to better serve customers and clients round the clock. The Blackberry also allows people to respond to a query within a few minutes.

It seems likely employees will claim overtime for all the hours they have spent typing away on their Blackberrys. Jeremy Roth, a lawyer at Littler Mendelson in San Diego, said that it is only a “matter of time” before lawsuits begin. Plaintiff firms have already began setting up websites to “troll” for people who may have worked excessive overtime from using a Blackberry.

With impending litigation, what should employers do? Employers should set forth policies which limits the amount of time hourly employees use a Blackberry for work reasons. Additionally, an Employer should only hand out Blackberrys to overtime-exempt employees. The Department of Labor has online survey which can help an Employer determine if an Employee is or is not exempt from overtime pay.

It seems everywhere you turn these days, you can't escape the media's coverage of the Democratic Primary. Between every gaffe, misstep, and viral video of some colleague saying something inappropriate, it seems as if we have been totally overloaded on primary coverage. Sticking with the status quo, I am here to give some more information.

According to the Wall Street Journal's Law Blog, via the Los Angeles Daily Journal, lawyers are the biggest contributors by profession to both Hillary Clinton and Barack Obama's campaigns-and second-biggest to the presumptive GOP nominee, John McCain. As of April 22nd, Lawyers had donated $13.7 million to Barack Obama and $14.8 million to Hillary Clinton.

This sort of campaign donation outpouring raises questions, such as: Why are attorneys giving at such a high clip? What are they getting out of this?

The optimist in me says that attorneys are generally a very educated group of people who are typically in the upper income brackets of society and therefore they have the means to support a candidate who shares similar ideals/philosophies. Moreover, attorneys typically have greater than average knowledge regarding the government-hopefully-because they spend a great deal of their academic career learning about it.

The pessimistic view is that attorneys have a lot to gain from supporting a candidate. Whether it is a future legal position within the Executive Branch or benefitting from having someone on the inside to appoint judges who will hand down favorable rulings for their clients. Perhaps they would like to see more regulations and laws, likely leading to more work for the attorneys.

Anyway you look at it; attorneys are giving in record numbers for the 2008 campaign. With the primary season within 6 weeks of ending, the candidates are likely to go back to these same donors for capital contributions for the general election. The effect of the giving has yet to be seen.

Most young attorneys and law students assume that happiness is found with the big paychecks and high profile cases with a big law firm. However, the results of the Association of Corporate Counsel's 8th Annual Chief Legal Officer Survey found that 85% of General Counsels (aka CLOs) found their careers to be rewarding and “welcomed opportunities to expand their roles.” When looking for jobs it's very common to overlook these corporate opportunities.

The Wall Street Journal's Law Blog reports that the general counsel at General Mills, Roderick Palmore, is not surprised by the results. According to Mr. Palmore, the post-Enron corporate world has stepped-up compliance and regulation. This compliance and regulation has led in-house lawyers to take on significantly more responsibility.

It's common for a corporations not to post openings within their legal departments or within their legal counsel office in legal publications. Also, a corporation may not even be aware they are in need of legal counsel. Sometimes, legal counsel is someone who works for the corporation in a non-legal role, and due to an unforeseen legal concern, steps into an in-house legal advisory role.

If you're wondering what the CLOs do, the survey results show that the majority of time is spent on corporate transactional work, followed by compliance and board relations. In 2008, CLOs expect to take on records management; staff recruiting, retention, and training. CLOs deal with all sorts of problems which may arise at a corporation. This is opposed to a narrow, focused field which is so often the case with firm work.

It's a sad day in America. Wesley Snipes has been sentenced to 36 months in prison for tax evasion. This brought about the attention of the Wall Street Journal's legal blog. This development is definitely at odds with the general perception that rich people avoid prison time. However, it is still not set in stone what kind of time Mr. Snipes will be serving.

While it is disturbing that the star of such films as Passenger 57, Major League, and, of course, DEMOLITION MAN was sentenced to prison time, it is a good thing that the wealthy are being held to the same standards as the common man in the eyes of the law.

In a recent posting on the sports blog, the issue of fans assuming risk when attending sporting events was addressed. In that situation a man was injured when trying to get a "high five" from Benny the Bull, the Chicago Bulls mascot. Well, it turns out Benny tripped and took this guys arm with him causing a ruptured bicep.

The dicussion then turned to whether he had a cause of action against the Bulls. While this accident is extremely unfortunate, it should not result in a big money suit. Taking the Bulls to court over this type of incident would be an exercise in money grubbing. I am sure if the man would contact them they would be happy to help him out financially or, at the very least, compensate him in Bulls related ways without involving the legal system.

When confronted with the topic of torture, former Attorney General John Ashcroft resorted to comical techniques and frivolous joking as he responded to what he deemed actions of torturous proportion. Although Ashcroft jokingly referred to being interviewed by Jon Stewart of the Daily Show as being a form of torture, many people felt that his remarks were inappropriate and should not have been made at all. On a more serious note, Ashcroft spoke of how the American troops "poured" water down detainees throats as opposed to the forceful use of water during World War II (the tokyo tribunals).

Should we be speaking of methods of torture in a comical light? I am sure that we all enjoy a great laugh at various times in our lives, however, the issue of torture is an extremely serious and sensitive one with the ongoing War in Iraq and the increased attention on the detainees in Guatanamo. Maybe if the jokes had come from a person who is not in the lime light or who has not formerly held such a high governmental position, there would not be such an uproar about the comments made by Ashcroft. But the problem seems to be just that...when you take on certain positions, you are held to certain standards. We must all prepare to monitor the words that we utter for they may be offensive to some individuals or groups including the ACLU and other civil rights organizations. Torture seems to be a subject that would cause people to take offense. The subject is no laughing matter.

Over the the last few months the newsmedia has reported almost daily on the mortgage crisis here in the United States, and today's posting on the Consumer Law & Policy blog is no exception. The heading simply reads, " 6.5 Million". That is the number of loans that may be forclosed on by the year 2012 according to a recent report by Credit Suisse - to be clear, not the number of subprime mortgages, but the the number of good old-fashioned mortgages that may be forclosed. (check out the Reuters article here) The CL & P blog broke that down roughly to one in eight borrowers who may lose their home. The Credit Suisse report attributes some of the problem to falling home prices, as borrowers owed more than their home was worth as well as the shutdown of mortgage bond markets catering to risky borrowers hoping to refinance more affordable loans.

The numbers are astonishing, no doubt, but I have to question the objectivity of the Credit Suisse report in their overall outlook. In February, Credit Suisse announeced it would suspend some of its traders in connection with the overvaluation of assets by $ 2.85 billion dollars. According to the CNN article, "An internal review found "mismarkings and pricing errors" in the bank's structured credit trading business..." I have to wonder what impact this had on lending market conditions - it sounds like more than falling home prices are to blame. In all fairness though, Credit Suisse is not the only financial empire that has gotten a black eye. The Joint Economic Committee has compiled a 21-page report, the Subprime Mortgage Market Crisis Timeline , dating all the way back to December 2006 that chronicles the market misgivings of all the major financiers; JPMorgan Chase, Citibank, Bear Sterns and Goldman Sachs to name a few.

If you can remember back to first year contracts, most contracts are bilateral proposition and require both parties to meet their end of the bargain in order to collect on what was initially agreed to. Recently, this phenomenon has overtaken the sports world. This is especially true when it comes to college football and basketball coaches.

One of the most important aspects of a long-term contract is that both parties can be reasonably certain regarding costs, performance, and overall stability/consistency. The Sports Law Blog states that coaching contract numbers are basically a farce. They list the example of Travis Ford who signed a seven-year contract extension and left for a new school one week later. This sort of behavior effectively renders contracts only as stable as the coaching offers a coach may receive after having a great year.

However, it's important to remember that job mobility is an element of many white-collar professions. If a law firm is going to offer better salary and benefits, more responsibilities, and preferred specialty; most lawyers are going to listen. If an attorney doesn't believe they are currently valued as much as they should be, they can take this information to their current employer and re-negotiate employment terms or they can simply move on to their new employer.

Update: Sports Law Blog filed a report today on former University of Hawaii Football Coach, June Jones. Jones terminated his 5 year contract and immediately signed a new contract to coach Southern Methodist University's team. Hawaii is now seeking $400,000 in damages from Jones for his breach. The contract directly states that Mr. Jones will owe $400,008 if he terminates his contract prior to it's effective end date. More as the situation develops.

According to Insurance Claims and Issues a California insurer, Anthem Blue Cross, is being sued for rescinding over 500,000 policies upon filing of claims. The City Attorney, Rocky Delgadillo has accused the insurer of the most eggregious type of fraud and false advertising and seeks $1 billion in penalties for violating more than 25 state and federal laws.

It is unfortunate when people purchase health coverage in anticipation of medical coverage if the need ever arose and deligently paid their premiums on time only to find out when the need did arise that they were not covered. For example, as illustrated in the Los Angeles Times article, a 61-year-old Palm Desert real estate agent was dropped last December for failure to disclose breast cancer after she had a hysterectomy for endometrial cancer, scrutinizing 10 years of medical history and assurances from the soliciting agent that her breast cancer 11 years earlier did not need to be included in the application. She was left with about $160,000 in medical bills and without insurance for the first time in her life.

The insurer has began the process of looking into the reinstatements of several patients whose policies were rescinded by health plans as well as a process for other patients to have their rescissions reviewed and reconsidered. The insurer also claims that attempts to meet with Delgadillo have been rebuffed. However, Delgadillo's assistant claims that there has only been one such request and usually such offers constitute a classic delay tactic. Furthermore, Delgadillo asserts that the claims are well founded, and has taken steps to bring further public awareness to Anthem's deplorable conduct by launching a website www.protectingtheinsured.org aimed at encouraging patients and physicians to share their complaints about the practices of health insurers. This site has already received 40,000 hits.

This suit seems meritorious and the conduct of Anthem, if true, cannot be condoned. Not only have policy holders forfeited their premiums, this type of conduct creates distrust in the insurance industry and subjects the industry to more regulation. It is unfortunate that Anthem has chosen this method to turn a profit, and it was obvious that this would be the result because their denial of coverage was so blatant.

Congress recently revisited and act dealing with equal wages for all citizens. H.R. 2831/S1843 was enacted in an effort to equal the playing field in the area of wage payment for employees. Titled, "The Ledbetter Act" for Lilly Ledbetter who attempted to sue her employer, Goodyear when she learned after 15 years of employment that she made 15% less than the lowest paid male employee, this act has now come under scrutiny because of its very short and what many deem unreasonable, statute of limitations of 180 days from the date of employment.

The problem with this 180 day statute of limitations is that employees would have to know that they are being discrimination against on the basis of unequal pay, very closely after they have been hired, a requirement that seems unattainable in most employee settings. While the House has already passed the new version of the bill which would allow for a longer period of time for the statute of limitations to run, the result of the voting in the Senate led to a filibuster which essential stalled the bill in its tracks.

For women, minorities, disabled employees and the like, this filibuster presents a serious issue because the refusal to amend this bill which coincides with the Civil Rights Act of 1964 makes it very easy for employers to employ discriminatory tactics, and very difficult for employees to file lawsuits against their employers in such a short statutory period. We should urge the Senate to support the extension of the statute of limitations to make the Civil Rights Act stronger and to send the message that discrimination will not be tolerated in the employer/employee setting on any basis. For a complete listing of the breakdown of the Senate votes, visit the Witchita NAACP Blogspot.

According to Insurance Claims and Issues Pharmacy Benefit Managers (PBMs) are padding their own pockets in that they are entering into exclusive contracts with drug companies to market specialty drugs which have no generic substitute and are very expensive to the employers for which they are supposed to be getting medicines at the best available price.

Wikipedia defines PBMs as a third party administrator of prescription drug programs. They are primarily responsible for processing and paying prescription drug claims. They also are responsible for developing and maintaining the formulary, contracting with pharmacies, and negotiating discounts and rebates with drug manufacturers.

However, as illustrated by the New York Times article from which the Insurance Blog has drawn from, the PBM firm Express Scripts was given exclusive distribution rights to the anti-seizure drug H.P. Acthar Gel by the pharmaceutical manufacturer Questcor, and Merck's health plan took a $226,000 hit for the two Acthar Gel treatments of an employee's daughter. This type of business behavior on the part of PBMs presents a conflict of interest as illustrated by Wikipedia because the PBMs are breaching a fiduciary duty to their clients by secretly retaining rebates and discounts that the PBMs were obligated to pass through to their clients. Wikipedia describes the process by which these PBMs operate as "spread pricing", meaning PBMs execute contracts with their clients allowing the PBMs to purchase drugs at lower prices, but invoice their clients at higher prices, thus profiting from a "spread" in the pricing. A few PBMs implement "pass through pricing". These PBMs execute contracts with their clients that require the PBMs to "pass through" to their clients the PBM's precise purchase or reimbursement drug cost. These PBMs generate their profits by charging a flat, per claim, or per member, administrative fee.

PBMs serve the function of bringing awareness to certain drugs for the benefit of the consumer health provider, and have a common corollary also known as a street pharmacist. This type of conduct of playing both sides against the middle is unacceptable, and especially whenever the cost reduction agent is using their position to turn a substantial profit at the principals expense.

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