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The Los Angeles Times reports today that Bill Lerach will leave Lerach Coughlin, the law firm he established three years ago after splitting off from Milberg Weiss. The news follows a WSJ story, by Nathan Koppel and Laurie Cohen, that Milberg Weiss partner David Bershad has opened plea negotiations with prosecutors. A grand jury indicted Bershad, Milberg Weiss, and Steven Schulman for alleged payment of kickbacks to clients in class action cases.
Barry Barnett
Say you apply for life insurance. The insurer tests your blood and urine and finds that you have too much of two chemicals -- alkaline phosphatase and creatinine. The first puts you at higher risk for several diseases, but the second reflects poor kidney function. The insurer discloses to you the alkaline phosphatase but not the creatinine. It issues you a policy at a "non-preferred rate due to the high alkaline phosphatase levels". Your kidney disease continues to progress, and eventually you suffer kidney failure, necessitating a transplant.
Do you have a negligent misrepresentation claim against the insurer for disclosing one problem but not a worse one? Not according to the Fifth Circuit. Applying Louisiana law, the court held as a matter of law that "[a] reasonable person would have thought that New York Life did the tests only for its benefit and reported only what it thought actuarially relevant, not medically relevant." McLachlan v. New York Life Ins. Co., No. 06-30449 (5th Cir. May 30, 2007).
Blawgletter doesn't share the court's Olympian view of what a reasonable person would have thought. That strikes us as a prototypical jury question. And we can imagine a fair and honest jury finding that Michael J. McLachlan reasonably believed that New York Life's report of one "actuarially relevant" condition implied the non-existence of another, even more pertinent one.
Barry Barnett
Orson Welles wrote, produced, and starred in
Citizen Kane (1941).
The daughter of Orson Welles sued Turner Entertainment to establish her ownership of the copyright in Citizen Kane and her right to distribute home video versions of the epic and for an accounting. The district court granted summary judgment against her. The Ninth Circuit upheld summary judgment on her copyright claim but otherwise reversed. Welles v. Turner Entertainment Co., No. 05-55742 (9th Cir. May 30, 2007).
The interesting part of the decision deals with the question of whether a grant in 1939 of "motion picture and television" rights in the Citizen Kane screenplay necessarily encompassed a right to exploit the screenplay in a home video format. The court held that the Production Agreement alone didn't answer the question, not least because home video didn't exist in 1939. Because the extrinsic evidence conflicted on the meaning of "motion picture and television", the court reversed the summary judgment for defendants.
Barry Barnett
When "happenstance" -- rather than the parties' actions -- moots a case during an appeal, should the appeals court vacate the district court's opinion? Yes, the Ninth Circuit held today. The court distinguished between mootness that occurs as a result of settlement, on the one hand, and mootness that happens by, well, happenstance, on the other. The first kind doesn't usually justify vacatur, but the second type does. NASD Dispute Resolution, Inc. v. Judicial Council of the State of Calif., No. 02-17413 (9th Cir. May 30, 2007).
The appellees in the case wanted to hold onto a decision that declared their immunity from suit. The Ninth Circuit sympathized but pointed out that vacatur wouldn't rip the opinion from the pages of the Federal Supplement 3d and wouldn't eliminate its preclusive effect on parties and their privies.
Barry Barnett
Terminal disclaimer, in patent law lingo, means a statement that disclaims some of a patent's duration. The disclaimer has the effect of making the patent coterminous, time-wise, with an earlier patent -- one that covers substantially the same invention. It serves to avoid the sin of double-patenting the invention.
Got that? Great.
One other thing. Blawgletter learned yesterday that a terminal disclaimer "simply is not an admission that a later-filed invention is obvious." Motionless Keyboard Co. v. Microsoft Corp. , No. 05-1497 (Fed. Cir. May 29, 2007). We suppose that one could assume, as the district court in Motionless Keyboard did, that a patent holder wouldn't file a terminal disclaimer unless its later patent duplicated the earlier one, making it obvious. But we can also see why the Federal Circuit wouldn't want to make admission of obviousness the price of filing a terminal disclaimer. That would encourage unnecessary disputes about double-patenting.
Barry Barnett
Today, the Sixth Circuit resolved a federal/state conflict over enforceability of a "floating" forum selection clause as the basis for personal jurisdiction over an out-of-state defendant. Such a clause "floats" when the choice of forum varies according to the location of any possible assignee of the clause-containing contract.
The Sixth Circuit and the Supreme Court of Ohio reached opposite conclusions about enforceability, the latter deeming the clause unenforceable if at the time of signing the contract the beneficiary of the clause intended "almost immediately" to assign the contract but didn't disclose that intention. The Sixth Circuit held that the law of the forum state, Ohio, controlled the question and that the district court did not err in refusing to enforce the floating forum selection clause. Preferred Capital, Inc. v. Sarasota Kennel Club, Inc., No. 06-3063 (6th Cir. May 29, 2007).
Barry Barnett
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment decisions, including decisions to underpay women. It also specifies a 180-day statute of limitations.
Today, the U.S. Supreme Court applied the limitations (or "charging") period to restrict the "back pay" that victims of unlawful employment bias may recover. Title VI, the 5-4 Court held, allows recovery of back pay only to the extent the employee suffers from actionable discrimination that occurs during the charging period. The Court "reject[ed] the suggestion that an employment practice committed with no improper purpose and no discriminatory intent is rendered unlawful nonetheless because it gives some effect to an intentional discriminatory act that occurred outside the [180-day] charging period." Ledbetter v. Goodyear Tire & Rubber Co., Inc., No. 05-1074 (U.S. May 29, 2007).
The ruling bars liability for low pay that a plaintiff receives during the charging period but that results from earlier acts of discrimination. If an employer -- for discriminatory reasons -- starts underpaying an employee before the charging period and -- for non-discriminatory reasons -- continues underpaying her during the charging period, the plaintiff may not recover for the present consequences of the old bias.
Barry Barnett
Bob Murphey, a tobacco-chewing lawyer and volunteer fire chief in Nacogdoches, Texas, told stories, many on himself. Blawgletter remembers hearing him on the radio, telling tales as if a group of coffee-drinkers and idlers sat with him around a table at a drug store fountain. One story we recall:
People don't know this, but I played for Vince Lombardi.
I went out for football at Nacogdoches High School. In those days, the practice field sat alongside a creek, so that particular location added high humidity to intense East Texas August heat.
The coach stood off to the side while the boys ran around on the field, throwing and catching and blocking and tackling. After watching me for awhile, coach called me over. He asked me my name.
"Bob Murphey, coach."
"Are you a football player, son?"
"Why, yes, sir."
"Well, if you're a football player, my name is Vince Lombardi."
And that's how I came to play for Vince Lombardi.
Barry Barnett
The only surviving image of Abraham Lincoln
at Gettysburg.
Tomorrow, on Memorial Day, we honor the men and women who died in military service to the United States. We pay them our respects by remembering them, their families, and their searing sacrifice.
Abraham Lincoln commemorated the Union dead on November 19, 1863, at Gettysburg, Pennsylvania. We, today, can think of no better way to remember all of our nation's sons and daughters than with his words:
- Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.
- Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
- But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.
Amen.
Barry Barnett
Lionel Hutz (Phil Hartman) -- lawyer, realtor,
and cobbler.
Blawgletter loves The Simpsons -- not least for its often hilarious treatment of our justice system. Who can forget the blue-hair lawyer and his "let the record show the witness made the drinky-drinky motion"? Lionel Hutz's law-and-shoe-repair practice? Jimbo's question, to Judge Constance Harm, whether she "used to be a dude"? Super lawyer Eleanor Abernathy's transformation into the crazy cat lady? And the trial (with Ned Flanders as Satan presiding) over ownership of Homer's soul?
We mention all this because The Simpsons Movie comes out this summer (July 27, we think). You can check out previews here and here.
Barry Barnett
