Indiana Civil & Business Lawyer

Music Downloading - How the Canadians Do It

2009-07-06T09:17:00.000-05:00

While I have posted on music downloading, this is actually more of an intellectual curiosity of mine. With that understood, here is Maybe the Jury Didn’t Like the Songs from Slaw:

So how might this have played out in Canada? The legality of file sharing has been hotly debated in this country for many years, and the issue boiled over again recently with the Canadian Recording Industry Association (CRIA) trading pot shots in the press with copyright luminaries like Michael Geist and Howard Knopf over both the legality of the practice and its effect on the recording industry. The best guidance available to Canadians on the issue comes from two cases, decided in 2004 and 2008 respectively, which still leave some uncertainty as to the legality of file sharing in Canada. What is clear, however, is that thus far CRIA has not had nearly the same success in the Canadian Courts that the RIAA has had in the U.S.

Under Canada’s Copyright Act, private copying of a musical recording for private use is expressly permitted. The trade off is the requirement for payment by consumers of a blank media levy, which levy is payable on blank CD-ROMs and other “audio recording media”. The blank media levy provisions of the Act were inserted at the behest of CRIA and others, who have since collected multi–millions of dollars in such levies.

The private copying exemption was inserted into the Act in the days of LPs, cassettes, 8 Tracks and reel to reel recording devices – long before the Internet and digital recording media made the process of copying a recording much simpler and faster, with no degradation in the quality of the original recording, no matter how many generations removed the copy is from the original.

***

So, musical tastes aside, a case similar to the Thomas-Rasset case in Canada would by no means have the same result. Even if CRIA were able to convince a Court to order an ISP to divulge the identity of the alleged file-sharer, and even if CRIA could prove to a Court that the defendant’s conduct in uploading or downloading the recordings in question was not within the private copying exemption, the total statutory damages that could be awarded to CRIA, if not grossly out of proportion to the damage suffered, could not exceed $20,000 per recording, for a total of $480,000 (Can.). Not a trifling amount to be sure, and if the Canadian Court decided to add punitive damages on top of that, a result not far off the Thomas-Rasset decision could arise.

Having said that, the likelihood of the music industry actually receiving payment of such monies from file-sharing defendants is pretty remote: as Ms. Thomas-Rasset rightly quipped, “You can’t get blood from a turnip”. Clearly, it is the publicity from such monumental awards that RIAA and CRIA really covet in their efforts to deter what they see as a serious threat to their livelihood. Whether such deterrence is actually achieved in the long run is anyone’s guess. In any event, we may never get the chance to see a case like this in Canada: it appears that the RIAA is now changing its strategy in the U.S. to target ISPs rather than individual file sharers, and it seems reasonable to assume that CRIA will, again, follow suit.

I think we need to rethink a lot of our intellectual property law in light of the Internet. However, Congress has a few things that are probably bit more pressing at just this moment. Meanwhile, this bit from John Dvorak's FTC Is Ready to Pounce on Dishonest Bloggers gets a thumbs up from me:

This is like the government, in cahoots with the RIAA, going after some mom in Ohio for stupidly leaving Kazaa running on her machine and discovering she's been a transit point for the "Best of Bee Gee's" for the past two years. Meanwhile, the Asian mobs off the Indonesian coast are cranking out commercial counterfeit CDs by the millions. Do something about that first before you go after the oh-so-dangerous mom in Ohio.

GM Bankruptcy Moving Forward

2009-07-06T07:06:00.003-05:00

So reports The New York Times:

A federal judge approved a plan by General Motors late on Sunday to sell its best assets to a new, government-backed company, a crucial step for the automaker to restructure and complete its trip through bankruptcy court.

I suppose being GM does get a judge to work on a holiday weekend (some holiday) and work he did:

In his 95-page opinion, Judge Gerber wrote that he agreed with G.M.’s main contention: that the asset sale was needed to preserve its business in the face of steep losses and government financing that is scheduled to run out by the end of the week.
“Bankruptcy courts have the power to authorize sales of assets at a time when there still is value to preserve — to prevent the death of the patient on the operating table,” Judge Gerber wrote.
With the approval of the restructuring plan, G.M. and the government are seeking to close the sale by Thursday afternoon, when a four-day stay of the judge’s order expires. The government, which is financing the reorganization, had given G.M. until Friday to win approval for the sale or risk losing its bankruptcy financing.

***

If completed by Friday, G.M. would be near the end of an unusually quick trip through the bankruptcy courts, turning itself into smaller company with fewer brands and a new focus on fuel-efficient cars.
Under the terms of the revised deal, G.M. would sell its most desirable assets, including the Chevrolet and Cadillac brands, to a new company owned largely by the American and Canadian governments and a health care trust for the United Automobile Workers union. The Obama administration anticipates taking the company, which will still bear the General Motors name, public next year.

Let us hope that is not old wine in new bottles for several reasons - our tax dollars, the employees, the economy and, frankly, the bankruptcy system.

And now from the creditors' side (or is it just some of them?):

It is possible that creditors who objected to the terms could file an appeal. Lawyers for several opponents argued during the hearings that the G.M. sale stripped them of their rights as creditors. A lawyer representing three dissident bondholders urged Judge Gerber to call what he said was the Obama administration’s bluff on the July 10 deadline.

Er, I think Obama is anything but a bluffer. Not something I would want reported in any newspaper. The fact is that this kind of case - really any Chapter 11 - there is a bit of gamesmanship, of gambling, to get the biggest slice for one's clients without killing the business. More can be gotten if the business is merely lamed and good chance of nothing if the business is in an iron lung.

Bankruptcy - Southern District of Indiana - New Rules

2009-07-06T07:05:00.002-05:00

Effective July 13:

http://www.insb.uscourts.gov/WebForms/notices/prodchange.pdf

Also:

There is a new notice posted regarding a revised general order on the use of electronic filing and a new ECF administrative policies and procedures manual.

http://www.insb.uscourts.gov/WebForms/notices/ecfadminnot.pdf

Contracts, Language and Making a Fetish of Archaic Style

2009-07-06T07:05:00.000-05:00

I really admire AdamsDrafting Blog and Mr. Adams sane approach to drafting contracts.

What to Do When the Other Side Wants to Change Your MSCD-Compliant Language may lack a punch of some other posts but it brings to mind similar discussions:

But that said, it’s likely that anyone who’s a mindless slave to traditional usages will, on reviewing an MSCD-compliant draft, instinctively seek to change the language back to what they’re used to. I don’t know how often that happens—I’d be interested to hear, dear readers, what your experience has been.

An obvious response would be to tell anyone requesting changes that you’re only going to consider changes that have a bearing on meaning, and that nothing would be gained by racking up lawyer time discussing stylistic changes. It’s standard deal etiquette that you stick with the drafter’s language unless you have good reason for asking for a change.

I think too many clients think that a contract not overflowing with legalisms (and especially archaic legalisms) must be necessarily shoddy when the opposite is true.

A contract should say what it means in language that all understand so all know what is required of them.

And for those who think anyone can write any contract, please understand plain English contracts are harder than one might think. Those who think so might just think that parodying Ernest Hemingway is also an easy task when it is not.

Those interested in contracts need to keep an eye on the Adams Drafting Blog.

Muncie - Tomorrow - Free Legal Consult

2009-07-06T04:36:00.002-05:00

So reports The Muncie Star-Press this morning:

Free legal assistance available on Tuesday -

Low-income residents can get free legal assistance on civil matters from an attorney 9 a.m.-noon Tuesday at Maring-Hunt Library, 2005 S. High St.

Indiana Legal Services sends an attorney to Muncie twice each month to offer free assistance.
No appointment is necessary.
To be eligible for services, a person must have a household income that is less than 125 percent of the federal poverty income level, meaning an income of $13,000 for a one-person household or an income of $26,500 for a four-person household. Those ages 60 or older are automatically eligible for services.
For civil legal problems requiring immediate attention, call (800) 869-0212

Indiana Lemon Law - New Case

2009-07-05T15:05:00.000-05:00

As I am still catching up from hiatus last month, I can only offer The Indiana Lawyer Daily report on a new lemon law case, COA rules on first impression lemon-law issue

The Indiana Court of Appeals tackled today an issue of first impression regarding the state's lemon law: Once a consumer has met the law's repair threshold, he can still file an action under the lemon law even if a subsequent repair fixes the problem.

In Metro Health Professionals, Inc. v. Chrysler, LLC,
No. 06A04-0809-CV-547, Metro Health Professionals purchased a Jeep from
a Chrysler dealer in October 2006. MHP took the vehicle in for service
at a repair facility authorized by Chrysler to address issues with all
the warning lights in the dash coming on, gauges that quit working,
headlights shutting on and off spontaneously, and the transmission
shifting into low gear spontaneously. Each time it was brought in,
Chrysler claimed there wasn't a problem. Finally, after the fifth time
MHP brought the car in for service, the repair facility replaced the
front control module and the problems haven't occurred since.

Congratulations to Robert Duff of Lebanon, Indiana for his win for the consumer.

Michael Jackson's Will...Why The Surprise?

2009-07-05T14:35:00.000-05:00

I caught a few headlines that expressed surprise that Michael Jackson left nothing to ex-wife. I am thinking, why should he have? More importantly, notice Jackson use of a trust.

The Associated Press headlined the story much more sedately with Judge: Mom has temp control of Jackson's property

LOS ANGELES (AP) — A judge ruled Wednesday that Katherine Jackson will retain limited control of 2,000 items from Neverland until another hearing is held Monday.

Superior Court Judge Mitchell Beckloff called for a speedy compromise between attorneys for Katherine Jackson and the two co-executors of Michael Jackson's will — lawyer John Branca and John McClain, a music executive and a family friend.

"I would like the family to sit down and try to make this work so that we don't have a difficult time in court," the judge said.

The New York Times has some interesting points in its Jackson’s Will Could Set Off Legal Struggle:

A five-page will written in 2002 and filed in state court Wednesday by two executors who were once business partners of Mr. Jackson gives the entire estate to a family trust, and names his mother, Katherine Jackson, as a beneficiary of the trust and as legal guardian of the children.

***

It was not clear if the will filed Wednesday was the only one. With Mr. Jackson employing a revolving door of legal advisers and others over the years, Mrs. Jackson’s lawyer, Burt Levitch, did not rule out possibility of multiple wills.

But if the 2002 will is deemed valid and a trust receives all of Mr. Jackson’s assets, many of the details of his finances could remain secret. The trust documents are private.

News: Sentate Version of Health Care Plan

2009-07-05T12:15:00.000-05:00

From msnbc.com's First Read blog comes Kennedy committee releases health plan

Employer Play or Play: ("Shared Responsibility of Employers")
-- companies that do not offer "adequate coverage" to full time workers would pay an annual fee of $750 per employee
-- companies that do not offer coverage for part-time workers pay $375 per employee
-- firms with less that 25 employees would be exempt from fees
-- companies most cover 60% of the cost of the monthly premiums to avoid fees

You Got an Online Presence But What If You Die?

2009-07-05T09:00:00.000-05:00

This little problem was in my mind when I ran across Legacy Locker (such as what would happen to this blog). This is how it describes itself:

The safe and secure way to pass your online accounts to your friends and loved ones.
Legacy Locker is a safe, secure repository for your digital property that lets you grant access to online assets for friends and loved ones in the event of death or disability.

Do give it a look.

Where Divorce and Business Law Intersect

2009-07-03T15:27:00.001-05:00

How can a divorce injure a business? I can think of several ways but Ex-Wife Can’t Talk About Divorce to Media—Ever, Conn. Court Rules from ABA Journal - Law News Now shows another way and the means of protection:

The ex-wife of a wealthy skin doctor can't talk about her divorce with the media—ever, Connecticut's Supreme Court has ruled.
The ruling establishes that private waivers of First Amendment free speech rights are "presumptively enforceable," the Connecticut Law Tribune reports.

Still, the state's high court said such decisions should be made on a case-by-case basis and should consider the abilities of the individual waiving rights.

The ruling enforces a confidentiality agreement signed by Madeleine Perricone, the wife of multimillionaire skin doctor Nicholas V. Perricone, who agreed not to talk about her divorce in the early stages of its bitter and contentious filing, the Associated Press reports.

Tweeting Employees?

2009-07-03T08:45:00.003-05:00

Let us count the ways Internet access has impacts employment law: E-mail. web surfing, downloading files, and blogging. All have had their crisis moments and now Tweets Create Legal Issues for Lawyers and Employers:

By answering, in 140 characters or less, the question "What are you doing now?" corporate and professional employees "may convey proprietary information, may reveal other privileged or private information and may expose the company to claims of defamation or harassment," writes Jones Day partner Steven Bennett in a cover story for the May issue of the New York State Bar Association Journal.

The original article is here in PDF format.

Not to denigrate the problems of tweeting, but my online experience makes me think that the real problem with any such employee is a lack of common sense. That lack may create more problems for the employer than merely tweeting.

What to do if your company gets a deposition notice?

2009-07-02T15:22:00.000-05:00

Read Be Prepared to Deal With Deposition Notices and get ready to call your lawyer:

Your company has just been served with a 30(b)(6) deposition notice under the Federal Rules of Civil Procedure, and it is your job to respond to the notice and determine who will testify on behalf of the corporation. Is there anything you can do to ensure that your company puts its best foot forward at the deposition? The answer is yes: There are numerous strategies for selecting and preparing witnesses to participate in these depositions.

A 30(b)(6) deposition is a widely used litigation tool that requires a corporation to appear at a deposition and respond to questions regarding a specific list of topics contained in the notice. Since these depositions make it easier to depose the right corporate officers and managers on the right topics, as in-house counsel you need to be aware of how to avoid the many potential pitfalls of 30(b)(6).

Take a good look at the list of topics in the notice. Once you fully comprehend the crucial points involved, you need to identify the right witness or witnesses to speak on behalf of your company. Balance the number of witnesses against cost and time constraints.

The scope of a 30(b)(6) deposition is broad: A company can proffer as many witnesses as it needs to cover all areas of inquiry. A corporation may prefer to respond to a particular topic of inquiry covered in a plaintiff's notice by designating several corporate representatives. But doing so may unnecessarily subject the corporation to many hours of deposition testimony that an opposing party otherwise might not have the ability to take. And that isn't necessarily an outcome that you want to encourage.

Oh, if you think just because it says "federal" that this may not apply to you, then think again. Indiana's trial rules have a similar rule for our state courts:

(6) A party may in his notice name as the deponent an organization, including without limitation a governmental organization, or a partnership and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, executive officers, or other persons duly authorized and consenting to testify on its behalf. The persons so designated shall testify as to matters known or available to the organization. This subdivision (B)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

What does it take to start an Indiana partnership?

2009-07-02T08:33:00.003-05:00

The following pretty much condenses Indiana's law on forming a partnership:

... Copenhaver v. Lister, 852 N.E.2d 50, 58 (Ind. Ct. App. 2006). To form a partnership, parties must join together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits. See id. In addition, to establish a partnership relation between parties, there must be: (1) a voluntary contract of association for the purpose of sharing profits and losses, which may arise from the use of capital, labor, or skill in a common enterprise; and (2) an intention on the part of the parties to form a partnership. Id. The intention that controls in determining the existence of a relationship is the legal intention deducible from the acts of the parties. Id. The intention to form a partnership must be determined by examining all the facts of the case, and the conduct of the parties reveals their true intentions and the construction they placed upon any agreement. See id.

What may not be so clear is that the "partners" may not know that they are partners. No formal partnership agreement is required - only actions as listed above.

Which makes partnerships a bit dangerous for the unwary. See partners can be held liable for the actions of other partners even without the first partner's knowledge and all the partners' personal assets are on the line.

Got an EEOC Mediation in Your Future?

2009-07-02T08:03:00.002-05:00

Then give workforce.com's 10-Plus Tips for Succeeding in an EEOC Mediation: Part One a read:

...A simmering-pot is a person whose resentment is at a low boil. Simmering-pot employees have turned off, left the organization prematurely, sabotaged their companies or gone out on extended stress leaves. Some of these pots, if left unattended, will become the people who file charges with the Equal Employment Opportunity Commission, alleging discrimination. The best goal for your organization is to stay out of the EEOC process, and mediation can help you do that. But if a charge has been filed and you’re before the EEOC, consider these tips on how to prepare for success in a mediation. In part two of this article, I’ll suggest some tips for the EEOC mediation itself, as well as some ideas for steering clear of problems in the future.

Tip One: Don’t ignore the simmering pot.
Tip Two: Honestly ask yourself whether you really have a workplace
dispute ‘covered.’
Tip Three: Consider hiring a neutral third-party mediator
to work through the issues.
Tip Four: Understand that EEOC mediators want the employer
to bring a substantive offer to the table.
Tip Five: Consider whether to bring counsel to the mediation.

Another Receivership Case in The News

2009-07-02T06:22:00.001-05:00

Not much news but Foreclosed tower goes up for sale shows that receivership are not dead in Indiana:

The property at 3801 N. Meridian St. is in control of a court-appointed receiver after the previous owner, Chicago-based Freemont Sheridan Properties, defaulted on a loan from Prudential Mortgage Capital Co. The loan balance is more than $11 million.

The receiver, Michigan-based apartment owner and manager McKinley Inc., also manages the Brandywine and The Courts in Indianapolis and Carmel Woods in Carmel.

Somewhat further afield - Arizona - comes WARFIELD V. BESTGEN (9th Cir, PDF format):

The Receiver filed the instant complaint seeking the return
of commissions paid to agents by the Foundation for the sale
of the charitable gift annuities. The Receiver alleged breach
of fiduciary duty, constructive fraud in confidential relationship,
negligence and gross negligence, common law fraud,
federal and state security fraud, actual and constructive fraudulent
transfer, conversion, and unjust enrichment.
The district court denied the Receiver’s motion for summary
judgment on the fraudulent transfer claim and denied
Defendants’ motion for summary judgment on all but the
common law fraud claim. Warfield v. Alaniz, 453 F. Supp. 2d
1118 (D. Ariz. 2006). It also denied Defendants’ request to
dismiss the non-resident Defendants for lack of personal jurisdiction,
finding that it had personal jurisdiction over them
under 15 U.S.C. § 78aa, which confers nationwide service of
process in suits to enforce liabilities or duties created under
the Securities Exchange Act of 1934. Id. at 1128-29.
After a seven-day jury trial, the jury found for the Receiver
on the federal and state securities law, constructive fraud,
negligence per se, and unjust enrichment claims and for
Defendants on the general negligence, conversion, and fraudulent
transfer claims. Defendants were ordered to pay damages
ranging from $31,900 to $109,900 per person.
Defendants timely appealed the judgment, and the Receiver
filed a protective cross-appeal from the district court’s denial
of summary judgment on the fraudulent transfer claim

***

For the above reasons, we affirm the judgment of the district
court. The charitable gift annuities sold by Defendants on
behalf of the Foundation were investment contracts, and
hence securities for purposes of federal and state securities
laws. Defendants were not exempt from registration as securities
brokers under the terms of the Philanthropy Act. Because
the charitable gift annuities were securities, the district court
had personal jurisdiction over the non-resident Defendants.
Finally, the district court did not err in giving the jury an
Allen charge. Given our resolution of these questions, we
need not reach any other issue urged by the parties, including
the matters argued by the Receiver in his protective crossappeal.

Why Deeds Are Tricky - Indiana Joint Tenancy Case

2009-07-01T09:00:00.000-05:00

Screw them up and big trouble and Court reverses joint tenancy interest ruling has the latest example:

In Janice and Burdette Ramer v. Betty Smith, No.
57A04-0804-CV-202, Betty and Richard Smith executed a warranty deed
conveying a tract of land to Betty's daughter, Janice, and her husband,
Burdette Ramer, who had begun constructing a home on the land with the
help of Richard. After some problems with the conveyance, the parties
executed a second warranty deed, with the Smiths conveying a 16.99 acre
tract of the property and the Ramers conveying the original 6.60 tract
of land conveyed in the first deed to all four individuals, creating a
23.59 acre tract. The granting clause of the second deed read: "RICHARD
W. SMITH and BETTY J. SMITH, husband and wife, and BURDETTE RAMER and
JANICE RAMER, husband and wife ... Conveys and warrants to: RICHARD W.
SMITH, BETTY J. SMITH, BURDETTE RAMER, and JANICE RAMER, as Joint
Tenants With right [sic] of Survivorship ...."

Richard died four years later, and Betty filed a petition for partition of the 23 acre tract. The trial court concluded the second deed conveyed a one-half joint tenancy interest to the Ramers, which they held as tenants by the entireties, and Betty was entitled to one-half. The trial court valued the land at nearly $310,000, with the Ramers' house valued at $185,400. The trial court appointed a commissioner to sell the property at public sale because the property can't be divided into equal shares of value without physically dividing the residence.

The Court of Appeals reversed the trial court, finding instead the parties had one-third undivided interest as joint tenants.

"In addition, the phrase 'with right of survivorship,' the placement of the names in a list implying equal treatment, and the omission of the phrase 'husband and wife' from the grantee clause after having been used in the grantor clause all indicate intent to create a joint tenancy," wrote Judge Margret Robb.

The appellate court also affirmed the Ramers weren't entitled to contribution for value added to the property. The Smiths had contributed to the value of the property by giving the Ramers a 6-acre tract of land, and Richard had helped excavate the land for construction of their home, wrote the judge. In addition, when joint tenancy is created, each tenant acquires an equal right to share in the use and enjoyment of the land during their lives and are entitled to an equal share upon partition, wrote Judge Robb.

Non-Competes and Trade Secrets - IBM Loses a Case

2009-07-01T06:26:00.000-05:00

I am not so sure that I buy not signing on the correct line means that the non-compete agreement in Judge: Former IBM executive can work at Dell is enough. I am more worried about the implication that IBM had an employee sign a non-compete after the start of employment.

According to a court document, IBM in 2005 required executives to sign noncompete agreements to continue receiving equity benefits. Johnson didn't agree with certain conditions in the noncompete agreement, so he signed the document on the wrong line. Johnson said that IBM discovered that the signature wasn't properly executed and sent him a new noncompete agreement, which he never signed.

In a court filing, IBM alleged that Johnson had indeed signed a noncompetition agreement. However, the court said that IBM's case wasn't strong enough and that its actions raised significant doubts as to whether Johnson had entered into the noncompete agreement.

Frankly, this argument from the employee from Reuters' IBM loses injunction against Dell executive better explains what went wrong at IBM:

He maintains that the non-compete agreement is invalid because he intentionally signed his name in "the wrong spot" on the document in a bid to win time to work out his differences with his superiors.

"I believed that IBM did not consider the non-compete agreement agreed upon or entered because IBM returned to me the one I had signed in the wrong spot unexecuted and asked me to sign a new form," Johnson said in an affidavit.

I find the trade secrets issues even more interesting:

The judge also said that Johnson didn't have access to IBM trade secrets. "The Court ... believes that IBM has overstated its case. Mr. Johnson does not have the sort of information that is considered quintessential trade secret information--detailed technical know-how, formulae, designs, or procedures," Robinson wrote. In addition, Johnson could suffer great hardship if the court enforced the agreement, the judge wrote.

Which is pretty straightforward trade secrets law, but IBM argues the employee possesses a different kind of information:

IBM argued that Johnson could hurt the company because he has knowledge of the "most sensitive confidential strategic information," according to the filing.

I am trying to figure out what strategic information could be confidential. Client lists....but we are talking about IBM here. Those likely to be IBM clients are what I would call obvious and not a secret.

If I can find the time, I might jump on Pacer and see what else there is to find out.

GM bankruptcy and Franchising Law

2009-06-30T12:37:00.000-05:00

Another potential problem from the GM bankruptcy (and actually any franchisor's bankruptcy) gets point out in PA Joins 36 States With Objections in GM Bankruptcy Case

Additionally, Corbett said that there are serious concerns regarding the methods being used in the termination of dealer franchises, along with the terms that continuing dealers are being forced to accept.

“Pennsylvania law specifically prohibits manufacturers from coercing dealers and allows dealers to formally protest any substantial modifications to their franchise agreements,” Corbett said. “Our community-based businesses are being asked to sign away important protections they have under state laws.”

Problem I see is this: bankruptcy law being federal law trumps state law and the coercion and modification claims may go nowhere.

FMLA case out of Indiana Supreme Court

2009-06-30T11:36:00.000-05:00

A victim of my hiatus is Worker's entire service decides FMLA eligibility from The Indiana Lawyer:

In an issue of first impression, the majority of Indiana Supreme Court justices ruled an employee filling multiple positions with the same employer is eligible for leave under the Family and Medical Leave Act if the employee's total service is sufficient to qualify, even if the service in either position alone doesn't qualify.

Gary Community School Corporation v. Tom Powell, No. 45S03-0809-CV-482, the high court had to determine whether an employee's FMLA eligibility is determined by the employee's entire service to the employer or separately for each position. The trial court ruled Tom Powell was an eligible employee for purposes of both his teaching and coaching positions; the Indiana Court of Appeals reversed, holding the issue is controlled by the parties' treatment of the jobs as unified or separate.

Powell worked as a math teacher, night school teacher, and head football coach in the summer of 2001 when he had to take FMLA leave for seven weeks. When he returned to his job as math and night school teachers, he learned the Gary Community School Corp. fired him from his head football coaching job. He complained to the high school principal and spoke with a news reporter. He was denied the position in 2002 and 2003. That led to his action against GCSC alleging it violated FMLA by not restoring him as coach for the 2001 season and by retaliating against him for taking FMLA leave by rejecting his application in subsequent years to become the head coach.

GM Bankruptcy and Warranty Issues

2009-06-30T11:30:00.000-05:00

Although Lemon Law Blog worried over GM's warranty claim in GM Bankruptcy - A Looming Consumer Disaster. It now appears that GM will honor those claims; although I would like a better confirmation than this.

On the other hand, this bit of news shows the conumser concerns are shared by others: PA Joins 36 States With Objections in GM Bankruptcy Case

Corbett noted that the Attorneys General who joined in this filing do not necessarily oppose the planned sale of General Motors, but they have expressed concern that the current agreement is unclear or ambiguous about many important consumer issues, including:
· Lemon Law claims and warranty issues
· Personally identifiable information of consumers
· Workers compensation claims
· Tax claims
· Environmental claims

We amy know more later today as GM has a hearing scheduled for today.

Trade Secrets/Inevitable Disclosure Case: $1.6 Million in Attorney Fees

2009-06-30T06:02:00.000-05:00

The Pacific Coast Business Times sedately headlines an interesting trade secrets case with Court clears way for infrared venture.

What happened?

Bill Parrish and Tim Fitzgibbons have been in a legal wrangle with Oregon-based Flir Systems for three years. The two sold their former company, Indigo Systems, a Goleta-based maker of infrared vision systems components, to Flir in 2004 for $185 million.

In 2005, Parrish and Fitzgibbons decided to start a company that would compete with Flir. They offered Flir a stake in the new venture, but Flir turned them down. In 2006, Parrish and Fitzgibbons left Flir and started talks with Raytheon about technology for the new company.

Flir sued in Santa Barbara County Superior Court to stop them, alleging there was no way the pair could carry out their business plan without stealing trade secrets that belonged to Flir. Raytheon pulled out of the business talks after Flir filed suit.

So Flir loses out on a piece of action in exchange for a lawsuit. Parrish and Fitzgibbons loose out on the Raytheon deal. Flir has now to pay $1.6 million for losing on its theory of inevitable disclosure.

Why?

In Yegan’s (the trial judge) decision, he wrote that Flir erred in arguing from a doctrine called inevitable disclosure. The idea is that an employee knows a company’s trade secrets so intimately that he or she would inevitably put them to use if working for a competitor.

In some East Coast states, companies can use that doctrine as an argument to stop former employees from forming or working for a competitor. But Yegan pointed out in his ruling that California courts have rejected inevitable disclosure for nearly six decades in favor of letting employees compete against their former companies and even go after the same customers.

New Indiana Workmen'c Comp Cases

2009-06-28T15:37:00.001-05:00

Employers read this.

Judges rule on workers comp billing issues

Employers or their insurers - not health care providers - must prove when medical expenses for injured employees might be considered higher than what's allowed under the state's workers' compensation statute, according to the Indiana Court of Appeals.

In a series of rulings today that deal with injured firefighters and city workers in multiple Hoosier communities, a three-judge appellate panel interpreted the Indiana Workers' Compensation Act and how it applies to state statutes about medical billing disputes.

"This case requires us to review several statutes under the Act that balance the right of medical service providers to seek payment for medical care to injured workers, against the right of employers to demand that such payments not be excessive," the unanimous panel wrote, turning to its own Indiana precedent as well as rulings from other state and federal courts.

The cases are Washington Township Fire Department v. Beltway Surgery Center, No. 93A02-0811-EX-01006; City of Michigan City v. Memorial Hospital, No. 93A02-0811-EX-01010; and Onward Fire Department v. Clarian Health Partners, No. 93A02-0811-EX-01007. Three other suits on identical issues, filed the same day in November and assigned to the same writing panel of judges, have not been ruled on.

United States Supreme Court and Age Discrimination

2009-06-27T15:34:00.000-05:00

Trying to catch up from my hiatus with this new report from workforce.com on the latestADEA case from the United States Supreme Court:

Supreme Court Puts Age Bias Burden of Proof on Plaintiff

In a 5-4 ruling Thursday, June 18, the court held that in an age bias case, an employee has to prove that age was the only reason he or she was fired, demoted or suffered some other work setback.

The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vermont, called the decision an “overreaching by a narrow majority” that would hurt older employees.

Leahy’s reaction may signal that Congress will act to overturn the decision, as it did recently in a pay discrimination case.

The Supreme Court held that under the Age Discrimination in Employment Act, age cannot be one of many factors that led to an adverse employment action.

2009-06-27T15:19:00.001-05:00

Oops, seems someone else had a less than stellar week.

From The Indiana Lawyer comes Judge criticizes counsel seeking class certification

Don't expect one federal judge to re-examine a ruling by another jurist on the same court if you don't present any new facts or arguments on a similar case and issue.

That's the message to federal attorneys practicing in the Southern District of Indiana, as detailed in a decision Thursday from U.S. District Judge David F. Hamilton in Blanca Gomez and Joan Wagner-Barnett v. St. Vincent Health, No. 1:08-CV-0153. The judge denied a class-action certification motion involving two ex-hospital workers who allege their former employer didn't provide adequate notice of COBRA rights to more than 250 people qualified for that extended health insurance between May 2004 and January 2006.

New OSHA Law Blog

2009-06-27T14:34:00.002-05:00

Big firm Jackson Lewis publishes OSHA Law Blog. For those employers/businesses dealing with federal OSHA issues, you should subscribe to this blog. It actually has a RSS feed!