Daily Archives: October 4, 2012

Sup. Ct argument for Oct, Nov, and Dec.

I am listing the 3 released calendars for this year.  If you are interested in a specific case, please let me know and I will make sure to follow it closely and report on it.

October calendar, day by day:

Mon., Oct. 1

10-1491 — Kiobel v. Royal Dutch Petroleum — application of Alien Tort Statute to human rights abuses on foreign soil; if the ATS is found to extend beyond the U.S., the issue will be whether aliens may sue corporations in U.S. courts for such overseas abuses

11-626 — Lozman v. City of Riviera Beach — definition of “vessel” for maritime law as applied to a floating structure not capable of navigation

Tues., Oct. 2:

11-184 — Kloeckner v. Solis (Labor Secretary) – appeal rights of federal government worker claiming discrimination in the workplace

11-192 — U.S. v. Bormes — liability of federal government for illegal disclosure of private credit information about a private citizen

Wed., Oct 3:

11-465 — Johnson v. Williams — federal habeas court duty to defer to state court ruling on a federal constitutional issue, if the state court has ruled without mentioning the issue (grant limited to Question 1)

11-597 — Arkansas Game & Fish Commission v. U.S. — government liability for damage from flooding following release of water from a federal dam; “takings” issue (Justice Elena Kagan is recused)

Tues., Oct. 9:

11-218 — Tibbals v. Carter — delay of habeas case until mental competency is regained

11-930 — Ryan v. Gonzales — delay of habeas case until mental competency is regained (The issue is the same, but the cases are not consolidated for argument and decision.)

Wed., Oct. 10:

11-702 — Moncrieffe v. Holder — state law conviction for possessing small amount of marijuana as a basis for deportation

11-345 — Fisher v. University of Texas — constitutionality of using race as a factor in admissions to public colleges and universities (Justice Kagan is recused)


November calendar, day by day:

Mon., Oct. 29:

11-1029 — Clapper v. Amnesty International USA — right to sue to challenge constitutionality of global terrorism wiretapping program

11-697 — Kirtsaeng v. John Wiley & Sons, Inc. — right to bring into the U.S. for resale a copyrighted item purchased abroad

Tues., Oct. 30:

11-820 — Chaidez v. U.S. — retroactivity of Padilla v. Kentucky on required legal advice to immigrants facing deportation after committing a crime

11-770 — Bailey v. U.S. — whether, if police have a warrant to search a home, they may detain the suspect elsewhere while they do the search

Wed., Oct. 31:

11-564 — Florida v. Jardines — scope of Fourth Amendment application to police use of a drug-sniffing dog on the exterior of a private home (grant limited to Question 1)

11-817 — Florida v. Harris — drug-sniffing dog’s “alert” as probable cause to search a car or truck

Mon., Nov. 5:

11-864 — Comcast v. Behrend — court power to allow a class-action lawsuit if the possibility of class-wide damages award is in doubt (grant limited to question as rewritten by the Court)

11-1085 – Amgen Inc. v. Connecticut Retirement Plans — proof needed by investors in order to take advantage of a short-cut method of pursuing a securities fraud claim by a class-action lawsuit

Tues., Nov. 6 (this is election day, but the Court will hold arguments as usual):

11-8976 — Smith v. U.S. — does the prosecution or defense have the burden of proving to a jury whether an accused withdrew from a conspiracy and thus could not be prosecuted for a role in the plot

11-1327 — Evans v. Michigan — does a judge’s directed verdict of acquittal in mid-trial, based on a legal error, bar a new trial because of double jeopardy

Wed., Nov. 7:

11-982 — Already LLC v. Nike, Inc. — scope of federal judge’s authority to rule on the validity of a federally registered trademark

11 -1175 — Marx v. General Revenue Corp. — right of debt collector under federal law to recover its court costs if it wins a lawsuit against it over its collection practices (grant limited to Question 1)


December calendar, day by day:

Mon., Nov. 16

11-1160 – FTC v. Phoebe Putney Health Sys, – whether Georgia clearly articulated and affirmatively expressed a state policy to displace competition in the market for hospital services, and whether the state policy would be sufficient to validate the anticompetitive conduct in this case

11-556 – Vance v. Ball State Univ. – whether the Faragher/Ellerth supervisor liability rule applies to (1) harassment by those whom the employer vests with authority to direct and oversee their victim’s fail work, or (ii) is limited to those harassers who have the power to hire, fire, demote, promote, transfer, or discipline their victim

Tues., Nov. 27

11-1285 – US Airways, Inc. v. McCutchen – Whether ERISA 502(a)(3) authorizes courts to use equitable principles to rewrite contractual language and refuse to order participants to reimburse their plan for benefits paid, even when the plan’s terms give it an absolute right to full reimbursement

Wed., Nov. 28

11-9307 – Henderson v. United States – whether the appellate court may correct a trial court’s plain error when the issue is unsettled at trial, but clarified when the appeal is pending.

Mon., Dec. 3

11-1059 – Genesis Healthcare Corp. v. Symczyk – whether a case becomes moot when the lone plaintiff receives an offer from defendants to satisfy all of the plaintiff’s claims

11-338 – Decker v. Nw. Envt’l Defense Ctr. – Whether a citizen may bypass judicial review of an NPDES permitting rule under 33 USC 1369 and instead challenges the validity of the rule in a citizen suit to enforce the CWA; and whether stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules

11-347 – Georgia-Pacific W. v. Nw. Env’l Ctr. – Whether the government should defer to EPA’s interpretation that stormwater discharges are not industrial stormwaters subject to NPDES

Tues., Dec. 4

11-1231 – Sebelius Sec. of H&Hs v. Auburn Regional Medical – whether the 180 statute of limitations for filing an appeal with the Provider Reimbursement Review Board is subject to equitable tolling

11-460 – Los Angeles Cty. Floor Control v. Natural Resources – whether there is a “discharge” from an “outfall” under the Clean Water Act when there is a transfer of water from a river to an engineered improvement (second question only)

Wed., Dec. 5

11-1347 – Chafin v. Chafin – Whether an appeal becomes moot when the child is returned to his/her country of habitual residence under the Petition for Return of Children pursuant to International Child Abduction Remedies Act and the Hague Convention



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Sup. Ct to look at ACA health care again

The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June. (You can access the order here).


The Supreme Court requested the Government’s position in response to a rehearing request that raises religious challenges regarding the individual mandate and the separate insurance coverage mandate for employers.


via New look at health care? (UPDATED) : SCOTUSblog.

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ACLU loses FOIA CIA request

he ACLU won’t get information on unauthorized interrogation techniques allegedly used by CIA agent on suspects captured in the wake of the terrorist attacks of Sept. 11, 2001, a federal judge ruled.  You can read the opinion here.

The group sued the federal agency for refusing to release the records under the Freedom of Information Act. According to the ruling, the records are composed of reports written by the CIA Office of the Inspector General “relating to the detention, interrogation, or treatment of individuals apprehended after Sept. 11, 2001, and held at detention facilities outside the United States.”

U.S. District Judge Amy Jackson dismissed the ACLU’s claims for all the records except for one, which the judge ordered to be remanded back to the CIA to determine if it holds information that has already been released.

The judge accepted the CIA’s argument that the records are protected by exemptions one and three of FOIA, which allow the government to withhold information sensitive to national security and protected by statute. In this case, the CIA cited the National Security Act as the statute protecting the records.

“The ACLU’s only argument is that interrogation techniques cannot be properly classified as intelligence sources or methods when they are ‘unauthorized,'” states Judge Jackson. “It provides scant support for this assertion, and there is nothing in statute or case law that requires courts to treat information about unauthorized interrogation techniques differently from information about authorized techniques.”After the ACLU’s initial complaint, the CIA released some records that were partially redacted, but withheld the 11 documents at issue in their entirety.

via Courthouse News Service.

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Medicaid liens and the Supreme Court

The U.S. Supreme Court will determine if a state can impose a lien on a Medicaid recipient’s lump-sum personal injury settlement to recoup some of its expenses.

The justices on Wednesday agreed to take up the case of Delia v. E.M.A., which asks the justice to decide if the Medicaid Act’s anti-lien provision trumps North Carolina law.

Federal law requires participating states to try to recoup some of the health-care expenses paid to tort victims.

To enforce that requirement when the victim wins a settlement or judgment, North Carolina allows the state to assert a lien on one-third of the recipient’s settlement or the state’s actual expenses, whichever is lower.

In the underlying lawsuit, the parents and legal guardian of an infant who was severely disabled during delivery won a $2.8 million medical malpractice settlement.

Due to injuries at birth, the child is legally deaf and blind, and can’t walk, sit, crawl or talk. She is mentally retarded and has a seizure disorder, and requires between 12 and 18 hours of daily nursing care.

The state claimed it was entitled to one-third of that amount, since it had paid $1.9 million in medical and health-care expenses on the girl’s behalf.

But her parents argued that the Medicaid Act’s anti-lien provision bars the state from placing a lien on their settlement.

In its ruling for the secretary of the North Carolia’s Department of Health and Human Services, the federal district court relied heavily on the state Supreme Court’s decision to uphold North Carolina’s third-party liability laws.

The 4th Circuit vacated that decision, however, saying it disagreed with the state high court’s analysis, as adopted by the district court. It ruled that North Carolina’s one-third cap on the state’s recovery “is in fatal conflict with federal law.”

The panel’s decision rested on a 3rd Circuit opinion in a similar case, and on the Supreme Court’s 2006 decision in Arkansas Department of Health & Human Services v. Ahlborn, which rejected third-party liability laws in Arkansas.

The nation’s high court agreed to settle the conflict between the state and federal appellate courts by deciding if North Carolina’s law is similarly preempted by federal law.

via Courthouse News Service.

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Arpaio ruling by 9th Circuit

Sheriff Joe Arpaio may not detain suspects based solely on a belief that they are in the country illegally, the 9th Circuit ruled on September 25 2012.  You can read the decision here.

The federal appeals panel in San Francisco late Tuesday upheld a preliminary injunction in a class action over the sheriff’s alleged pattern of racial profiling. Other issues in the action went to trial in Phoenix in late July.

U.S. District Judge G. Murray Snow issued the preliminary injunction in 2011, prohibiting deputies from “detaining any individual ‘based only on knowledge or reasonable belief, without more, that the person is unlawfully present within the United States.” Snow has yet to rule on other aspects of the case, which was the subject of seven-day bench trial in July. Whatever his ruling, the case is likely to return the 9th Circuit on appeal.

In Tuesday’s limited review of the preliminary injunction, a three-judge appeals panel found that the plaintiffs were likely to succeed with their Fourth Amendment claims, and that they were likely to be profiled again in the absence of a court order.

“Even if the plaintiffs comply with all criminal laws enforceable by the defendants, under the defendants’ view of the Fourth Amendment, the plaintiffs remain vulnerable to unlawful detention solely because an officer has reasonable suspicion or knowledge that they are not authorized to be present in the United States,” wrote Judge J. Clifford Wallace for the unanimous panel.

The panel found the plaintiffs’ case strong and likely to succeed because “mere unauthorized presence is not a criminal matter, [and] suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is ‘afoot.'”

“While the seizures of the named plaintiffs based on traffic violations may have been supported by reasonable suspicion, any extension of their detention must be supported by additional suspicion of criminality,” Wallace wrote. “Unlawful presence is not criminal.Nor does illegal presence, without more, give rise to reasonable suspicion of violation of Arizona’s human smuggling statute, as the defendants maintain.”

via Courthouse News Service.

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NY District Ct issues preliminary injunction against NDAA

A federal judge on Wednesday permanently blocked the U.S. military from enforcing a law allowing it to indefinitely detain anyone accused of aiding or participating in terrorism.  The order can be read here.

In May, U.S. District Judge Katherine Forrest issued a preliminary injunction barring the government from enforcing one paragraph of the 2012 National Defense Authorization Act, or NDAA, a 565-page military appropriations bill that sailed through Congress late last year.

“When the government was asked by the court what the words ‘substantially supported’ mean, it was unable to provide a definition; the same was true for ‘directly supported,'” she wrote in her new order, which makes the preliminary injunction permanent. “There can be no doubt, then, these terms are vague.”

That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled.

During the evidence phase, four of them — Icelandic Parliamentarian Birgitta Jonsdottir, reporter Alexa O’Brien, activist Kai Wargalla, and Hedges — testified that fear of the NDAA made them change how they worked, traveled and associated.

Their testimony convinced the judge that the law had a “chilling effect” on free speech, making the law impermissible under First Amendment grounds.

“Courts must safeguard core constitutional rights,” she wrote. “A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases — primarily decided during World War II — in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment.”

“Presented, as this court is, with unavoidable constitutional questions, it declines to step aside,” Forrest wrote.

She blasted the government’s position that federal courts should provide habeus, rather than judicial, review to military detainees as “without merit” and “dangerous.”

“Habeas petitions (which take years to be resolved following initial detention) are reviewed under a ‘preponderance of the evidence’ standard (versus the criminal standard of ‘beyond a reasonable doubt’) by a single judge in a civil proceeding, not a jury of twelve citizens in a criminal proceeding which can only return a guilty verdict if unanimous,” Forrest wrote (parentheses in original). “If only habeas review is available to those detained under § 1021(b)(2), even U.S. citizens on U.S. soil, core constitutional rights available in criminal matters would simply be eliminated. No court can accept this proposition and adhere truthfully to its oath.”

The judge refused to “abdicate” her duty to protect constitutional rights out of deference for executive power.

“The court is mindful of the extraordinary importance of the government’s efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch’s expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security,” the order states. “Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this court’s responsibility to safeguard the rights it has sworn to uphold.”

via Courthouse News Service.

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Citizens United in MN Court (8th Circuit en banc)

Minnesota can ban corporations from contributing to political campaigns but its regulation of independent expenditures is unconstitutional, the full 8th Circuit ruled.

Unlike direct campaign contributions, which are illegal for corporations in Minnesota, an independent expenditure represents money that the corporation pays to advocate for the election or defeat of various candidates.

The state requires corporations making political contributions greater than $100 to form a separate political fund with an appointed treasurer. Corporate donors must also disclose contact information for its treasurer, and a list all depositories or safe deposit boxes used.

The laws regulate not just corporations but almost all associations, meaning a group of two or more people acting together, who are not all family members.

As long as the fund is in existence, the treasurer must file annual reports with the state election board detailing the fund’s activity.

During general election years, which happen every other year, the treasurer must file four additional reports, 28 and 15 days before a primary, and 42 and 10 days before a general election.

These requirements continue until the fund is dissolved. Before dissolution the treasurer has to pay all of the fund’s debts, dispose of all assets valued at more than $100 and file a termination report, including the same info required in the fund’s periodic reports.

With supporting documentation the treasurer has to keep track of all contributions over $20, and all the fund’s expenditures. For four years from the date of filing these disclosure reports the treasurer must maintain the fund’s records for state inspection.

Associations and treasurers that do not comply with the law are subject to criminal and civil penalties ranging from fines to up to five years imprisonment.

Even if the fund is inactive during a general election year it still has to file the five reports.

Three organizations – Minnesota Citizens Concerned for Life, the Taxpayers League of Minnesota and Coastal Travel Enterprises – sued Minnesota to block the laws in July 2010.

After a federal judge refused to enjoin the laws, a split three-judge panel of the 8th Circuit affirmed last year.

The full St. Louis-based court then agreed to hear the case en banc and vacated the panel decision Wednesday.

A six-judge majority enjoined the political fund reporting requirements, and all 11 judges agreed that the ban on corporate campaign contributions can stand.

“Minnesota’s law hinders associations from participating in the political debate and limits their access to the citizenry and the government,” according to the majority opinion authored by Chief Judge William Riley. “The law manifestly discourages associations, particularly small associations with limited resources, from engaging in protected political speech.”

“We conclude Minnesota’s requirement that all associations make independent expenditures through an independent expenditure political fund … is most likely unconstitutional,” Riley added.

The judges noted that their decision on the ban law relies on the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, which found that it does not violate the First Amendment to make corporations use Political Action Committees if they wish to make direct political contributions.

Judge Michael Melloy authored a partial dissent on behalf of three other members of the panel. That 12-page opinion states that Minnesota’s disclosure laws are not overly burdensome, and the majority should have deferred to state lawmakers.

“Instead of deferring to the legislature, the majority would instead impose its own judgment to determine that a $100 threshold for requiring reporting is too low, that five disclosure reports in an election year are too many, and that the administrative costs of keeping records in accordance with the law are too high,” Malloy wrote. “These issues are typically and best left to Minnesota’s democratically elected legislators.”

Though Judge Steven Colloton said he echoed Melloy’s opinion, he wrote separately to fight the assertion that Minnesota’s disclosure laws are appropriate to prevent “improper or suspect relationships between elected officials and the persons or groups that support them.”

Colloton wrote that the statement contradicts the Citizens United holding that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”


See the decision here.

via Courthouse News Service.

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“Show Me Your Papers” Challenges Moves on to the Ninth Circuit

A coalition of civil rights groups has appealed a federal court decision that would allow the most-notorious portion of Arizona’s anti-immigrant law to go into effect.

The appeal, with the U.S. Court of Appeals for the Ninth Circuit, was filed eight days after U.S. District Court Judge Susan Bolton denied a request to block the “show-me-your-papers” provision of the Arizona law, S.B. 1070, from going into effect later this month. The coalition today asked the Ninth Circuit to suspend the provision for the duration of its appeal.

The provision requires police to verify the citizenship or immigration status of people arrested, stopped or detained if there is a reasonable suspicion that they are in the country unlawfully. In June, the Supreme Court confirmed that three other key provisions of S.B. 1070 are unconstitutional, but declined to block section 2B, the “show me your papers” provision. Several other parts of SB 1070 are blocked by separate injunctions issued by the district court.

“The racial profiling provision threatens the civil rights of many communities of color in Arizona. For the growing Asian American and Pacific Islander community in Arizona, this law will cause irreparable harm to families and individuals, making communities less safe,” said Jessica Chia, staff attorney at the Asian American Justice Center. “AAJC will continue to fight against this discriminatory law until the court rightfully strikes it down.”

“The plaintiffs in this case have raised substantial claims against section 2B and the courts should not allow the provision to go into effect without even considering those claims, which is what will happen if the court of appeals denies the request we are filing today,” said Omar Jadwat, senior staff attorney with the ACLU Immigrants’ Rights Project. “As the history of this litigation shows, we are determined to fight SB 1070 and continue to work to preserve all Arizonans’ rights to be free from harassment and profiling.”

The coalition includes the ACLU, the ACLU of Arizona, NILC, MALDEF, the National Day Laborer Organizing Network, the Asian Pacific American Legal Center and the Asian American Justice Center, both members of the Asian American Center for Advancing Justice, as well as the NAACP.

via ImmigrationProf Blog: “Show Me Your Papers” Challenges Moves on to the Ninth Circuit.

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D. Minn Court Holds Defendant in Contempt (ESI)

Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4135848 (D. Minn. Sept. 18, 2012)

In this case, the Magistrate Judge recommended that an adverse inference be issued, that Defendant be held in contempt and that significant monetary sanctions be imposed upon his determination that two of Defendant’s employees had intentionally spoliated evidence by deleting certain information and by failing to reveal the existence of encrypted data.  Upon the parties’ objections, the District Court adopted in part the Magistrate Judge’s recommendation, but increased the monetary sanctions imposed.

While the details provided in these opinions are somewhat complicated, the bottom line is simple: two of Defendant’s employees were found to have intentionally spoliated evidence.  The spoliation was discovered by a forensic investigator who had been appointed by the court following Plaintiff’s first motion for sanctions.  At the time of that appointment, pursuant to an ESI protocol crafted by the court, the parties were each ordered to bear a portion of the costs of further investigation.

Briefly, the relevant incidents of spoliation included the use of wiping software by Defendant’s Director of Quality Assurance and the deletion of a PST file by the Vice President of Sales and Marketing.  The Magistrate Judge also found that the Vice President’s failure to reveal the existence of encrypted data on his laptop despite an order requiring that Defendant provide the court-appointed forensic investigator with “reasonable access to personnel and facilities,” which encompassed the custodian’s computers, amounted to spoliation:

[He] knew that an encrypted and passwordprotected [sic] volume was installed and in use on his computer, and he failed to provide any notice that such a volume existed.  Encryption software exists so that—without notice and a password—entities like CFS are unlikely to find and access the ESI stored on encrypted volumes.  Thus, the failure to provide any notice of the encrypted volume until November 2011 violated the ESI Protocol Order and amounts to spoliation of evidence.

(CFS was the court-appointed forensic examiner.)

In light of Defendant’s spoliation, the Magistrate Judge recommended that an adverse inference be imposed at trial and that Defendant be held in contempt and required to pay $25,000 to the court and $475,000 to the plaintiff.  The Magistrate Judge’s order took into account Plaintiff’s “reasonable expenses” caused by Defendant’s actions, including the significant fees of the forensic examiner.

Both parties objected.  Upon review, the District Court adopted the recommendations of the Magistrate Judge, in part, but increased the amount of monetary sanctions to be paid to Plaintiff.  The court indicated that the amount was increased for several reasons, including to better compensate Plaintiff for the significant costs of the forensic investigator and its attorneys’ fees and in light of the court’s consideration of other circumstances, such as the “significant prejudice” suffered by Plaintiff (which the District Court determined could not be mitigated to the extent indicated by the Magistrate Judge) and the fact that this was not the first sanctions order in this case.

The District Court largely rejected Defendant’s assertion that Plaintiff was “at least partially responsible” for the investigator’s “ballooning costs” (Plaintiff initially estimated the cost of the investigation would be around $10,000 + travel) and that some portion of the fees were not reasonably attributable to Defendant because of Plaintiff’s failure to timely inform Defendant or the Court that the fees would be far greater than expected.  Despite acknowledging the disparity between the estimated and final cost and that Plaintiff should have disclosed the “exploding” costs sooner, the court ultimately determined that it was largely Defendant’s conduct that resulted in the extensive fees: “It is no fault of Multifeeder that documenting the extent of British’s drive wiping was extremely time consuming.”

Accordingly, the court raised the sanction to $600,000, an amount which “represents reasonable expenses and attorneys’ fees because it encompasses much of CFS’s current unpaid invoices, at least some past paid amounts by Multifeeder to CFS, and reasonable legal fees and expenses in litigating this discovery dispute.”  The court also ordered Defendant to pay the recommended $25,000 to the court.

Indicating its reluctance to modify the previously imposed ESI protocol which ordered Plaintiff to pay a portion of the investigator’s costs, but recognizing that the fees owed could financially devastate Plaintiff absent receipt of the payment ordered from Defendant, the court ordered Defendant to make staggered payments to Plaintiff and that Plaintiff in turn pay the investigator its fees within a time certain.

A copy of the Magistrate Judge’s order is available here, a copy of the District Court’s order is available here.

via For Spoliation, Court Holds Defendant in Contempt, Orders $600,000 to be Paid to Plaintiff, $25,000 to be Paid to the Court : Electronic Discovery Law.

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NLRB Issues First Facebook Decision

Karl Knauz Motors, 358 NLRB No. 164 (Sept. 28, 2012), is going to be a lead case in the area of social media simply because it is the first actual decision from the Board. Click here to download  Knauz BMW The Board issued a press release describing the decision. The decision was divided along party lines.

Basically, the Board held that a Facebook posting that caused an employee’s discharge was not unlawful under the NLRA. Another interesting aspect of the case is that it found that a courtsey rule was unlawful as overbroad because it might chill Section 7 activity. With respect to that issue the Board stated:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them. First, there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach. See generally Costco Wholesale Corp., 358 NLRB No. 106 (2012) (finding unlawful the maintenance of a rule prohibiting statements posted electronically that “damage the Company . . . or damage any person’s reputation”).

Second, an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as “disrespectful” or “injur[ious] [to] the image or reputation of the Dealership.”

With respect to the discharge, the Board found that the employee was not engaged in protected activity, the Board summarily affirmed

the ALJ who found that the employee was not discharged for protected activity. As the ALJ explained:

Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise. It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting. It is therefore necessary to determine whether Becker was terminated because of the Event posting, the Land Rover posting, or for both.

via Adjunct Law Prof Blog: NLRB Issues First Facebook Decision.

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