On April 30, 2013, the California Court of Appeal, Second Appellate District, Division Three, issued its opinion in the matter of Corenbaum v. Lampkin. The opinion addresses an evolving issue in California regarding the admissibility of medical bills when the medical provider has agreed to accept less than the full amount billed in complete payment for services.  The court categorically rejected plaintiff's arguments and held that the full amount billed for past medical services is irrelevant and therefore inadmissible to prove:

On December 13, 2012, the Court of Appeals for the First District filed its opinion in Beacon Residential Community Association v. Skidmore, Owings & Merrill LLP et al. (No. A134542.)  The decision is bad news for architects and other design professionals since it holds they can be held liable in negligence to third party purchasers under both the common law and Senate Bill 800. 

Misunderstood heroes. Space travel. Alien worlds. Humanoids. Greed. Imperialism. Violence. Exploitation. Intercultural war. Redemption. And Copyright Infringement?

2011 Wisconsin Act 10 (“Act 10”), which was signed into law by Governor Walker in March 2011, dramatically restricted the collective bargaining rights of municipal bargaining unit employees, except police and fire employees, and required those employees to pay portions of their retirement and health insurance benefits.  

In 2010, the Supreme Court issued Stolt-Nielsen, S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010). In that opinion, the Court held that parties could not be compelled to participate in class arbitration unless they had agreed to do so; courts and arbitrators could not infer such agreement by the mere fact that a party had agreed to arbitrate.  Defense counsel thought (or hoped) that Stolt-Nielsen would preclude class arbitration whenever the arbitration clause did not expressly allow class or collective proceedings.  As disputes worked their way to the various courts of appeals, however, we see those intermediate appellate courts finding unique ways to allow class arbitration and effectively limit Stolt-Nielsen to its facts.

Earlier this week, the United States Senate voted to confirm Paul Watford to the U.S. Court of Appeals for the Ninth Circuit.  The Ninth Circuit is the nation’s largest circuit court with a jurisdiction that covers 62 million residents of California, Nevada, Oregon, Washington, Idaho, Arizona, Montana, Alaska and Hawaii.  Prior to Watford’s confirmation, only one of the twenty-nine seats on the Ninth Circuit was held by an African-American judge, Judge Johnnie Rawlinson, who was appointed by President Clinton.  Only two other African Americans have served on the Ninth Circuit, President Carter appointed Jerome Farris and Cecil Poole, and they served until 1995 and 1996, respectively.  Judge Jacqueline Nguyen was also confirmed this month for a seat on the Ninth Circuit.  She will be the first Vietnamese American and first Asian-Pacific woman to serve on a federal appeals court.  Judge Nguyen will fill a new seat on Ninth Circuit Court of Appeals that has been vacant since it was authorized in January 2009.  

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

The U.S. Supreme Court heard oral argument Monday on the hotly questioned issue of whether pharmaceutical sales representatives are subject to the outside sales exemption under the Fair Labor Standards Act.  

The Supreme Court heard oral argument on February 28, 2012 in Kiobel v. Royal Dutch Petroleum Co., a case raising the controversial issue of corporate liability for alleged violations of international law.

Kiobel is a putative class action in which the plaintiffs, current and former residents of Nigeria, allege that three oil companies aided and abetted the Nigerian government in committing human rights violations in connection with oil exploration activities in Nigeria.  Plaintiffs invoked the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, as the jurisdictional basis for their U.S. lawsuit against foreign companies for alleged human rights abuses occurring in Africa.  The ATS, although passed by the first Congress in 1789, was first utilized in 1980 by an alien plaintiff seeking a civil remedy for alleged human rights abuses.  The ATS provides as follows: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”    

The Second Circuit dismissed the plaintiffs’ suit, holding that the district court lacked jurisdiction over plaintiffs’ claims against corporations.  The court started with the uncontroversial proposition that the ATS is a jurisdictional statute and does not create any cause of action.  Citing an earlier Supreme Court ATS case, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Second Circuit stated that it must look to “customary international law to determine both whether certain conduct leads to ATS liability and whether the scope of liability under the ATS extends to the defendant being sued.”  After an extensive review of international law, the court could not identify a single instance in which a corporation had ever been subject to any form of liability under the customary international law of human rights.  Thus, the court concluded that imposing liability on corporations for violations of customary international law had not attained a “discernible”, much less the required “universal”, level of acceptance among the nations of the world in their relations with each other.  Therefore, the court held that it lacked subject matter jurisdiction over the plaintiffs’ claims against the oil companies and dismissed the complaint.       

The Supreme Court docket has been extremely active since plaintiffs’ petition was granted in October 2011.  In addition to denying defendant Shell’s conditional cross-petition for writ of certiorari, the Court has seen over 35 amici briefs filed in Kiobel, including a brief by the United States government in support of petitioners-plaintiffs and briefs by the governments of Germany, Great Britain, and the Netherlands in support of respondents. 

The outside interest generated by Kiobel underscores the important ramifications of the Court’s decision on corporate liability, both for U.S. companies with foreign operations, as well as foreign and multinational firms.  But the outcome of the case pivots on a relatively narrow slate of legal issues.  In their merits brief, the petitioners first take the position that the Second Circuit incorrectly characterized the issue of corporate civil liability as an issue of subject matter jurisdiction.  Petitioners go on to argue that under the ATS, analysis of customary international law is necessary to determine whether a particular act constitutes a violation of a substantive international law norm, but that domestic law (which undoubtedly recognizes corporate civil liability) supplies the remedy.  The respondents of course disagree, pointing to the above-quoted excerpt from Sosa as clearly establishing that international law must recognize corporate liability before ATS liability can be imposed. 

From the outset of petitioners’ oral argument, it was apparent that the Court was concerned about the notion of U.S. courts imposing civil liability on foreign companies for foreign conduct.   Counsel for petitioners, Paul Hoffman, uttered two sentences before Justice Kennedy interjected with two statements he challenged Mr. Hoffman to rebut: (1) “International law does not recognize corporate responsibility for the alleged offenses here,” and (2) “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection”.  Justice Alito followed in the same vein shortly thereafter with the observation that “there’s no particular connection between the events here and the United States,” which fed into his later questioning “what business” a case like this one has in the courts of the United States.   Justice Roberts appeared equally concerned about U.S. courts adjudicating the instant dispute, and he questioned whether the Kiobel suit itself contravened international law insofar as it could not have been brought in any other nation.

While the Court kept Mr. Hoffman occupied with the issue of the extraterritorial scope of the ATS, Deputy Solicitor General Edwin S. Kneedler, arguing for the United States, was permitted to address several other arguments in support of petitioners’ position.  Nevertheless, the argument turned back toward broader policy issues, as Justice Kennedy posed a hypothetical to illustrate what he perceived to be the United States’ position:

Suppose an American corporation commits human trafficking with U.S. citizens in the United States. Under your view, the U.S. corporation could be sued in any country in the world, and it would -- and that would have no international consequences. We don't look to the international consequences at all. That's -- that's the view of the Government of the United States, as I understand.

Kathleen M. Sullivan, although peppered with wide-ranging questions from an active bench, was able to consistently return focus to respondents’ position that corporate liability was simply not recognized by customary international law.   Respondents’ argument was summarized succinctly by Ms. Sullivan toward the end of her oral argument:

[T]he ATS has language that says the tort must be committed in violation of the law of nations. So although, Justice Ginsburg, it doesn't specify who may be the defendants, it does point us to the law of nations to figure out what the law of nations thinks about who may be the defendants, and the law of nations is uniform. It rejects corporate liability. It rejects corporate liability.

Counsel for respondents finished her argument by clarifying that respondents did not seek a rule of “corporate impunity”, noting that corporate officers could be liable for human rights violations and that there were other avenues for suits redressing human rights violations, such as under state law or the domestic laws of nations.   

In rebuttal, Mr. Hoffman argued that “international law places no restriction on the way domestic jurisdictions enforce international law”.  However, despite his effort to focus the Court’s attention on domestic law as supplying the remedy for a violation of international law, he found himself answering the same line of questioning that began the argument – why should the courts of the United States entertain a “suit by an . . . alien against another alien for conduct that takes place overseas”?  This fundamental question emerged as perhaps the primary theme of the oral argument.  Whether the justices received a satisfactory answer will likely determine the outcome of the case. Keep an eye on the DRI Court Reporter for a summary of the Court’s decision when it is released.

The entire oral argument transcript can be downloaded from the Supreme Court website here.

Joshua D. Shaw practices law at Turner Padget Graham & Laney P.A. in Columbia, South Carolina.  

On March 31^st of last year, San Francisco Giants fan Brian Stow allegedly was attacked and  sucker-punched by two L.A. Dodgers fans after an opening-day game between the two clubs at Dodgers Stadium.  His head hit the pavement, leaving Stow with a fractured skull and brain trauma.  Doctors placed him in a medically-induced coma for several months.  According to Stow’s attorneys, the attack has left Stow with permanent brain injury and severely limited  movement.  Today, he is wheelchair-bound and reportedly will require 24-hour nursing care for the rest of his life.  Only recently has he begun to write and try to speak.  A former paramedic, he is unable to support himself or his family.

In May, Stow filed suit in Los Angeles Superior Court seeking $50M in damages against the Dodgers, Dodgers owner Frank McCourt, and several others.  Stow asserts that the Dodgers were negligent, among other reasons, for failing to provide adequate security, failing to provide adequate lighting, and promoting a half-off beer sale that promoted violence.  He also claims that the Dodgers fired 300 security staff shortly before the assault, and he submitted sworn declarations from eight other Giants fans alleging that they had difficulty in finding security personnel to respond to threats against them during the game.  He also argues that one of Stow’s assailants was involved in two prior incidents that day and that the Dodgers should have ejected him from the ballpark hours before he attacked Stow.  Many people online report a long-term tolerance by the Dodgers of a significant “thuggish” element at the ballpark. 

 In opposition, the Dodgers have argued that stadium security was at record levels on opening day and that they had no way to anticipate the attack.  Further, they deny any half-off beer promotion.

 In June, the Dodgers filed for bankruptcy in Delaware, resulting in a stay of the L.A. case.  Under a reorganization plan filed by the Dodgers, et al., McCourt and other Dodgers officials would be released from legal liability for any actions they took in their official capacity as team representatives that may have contributed to Stow’s injuries.

On February 3^rd of this year, the Dodgers moved in the Bankruptcy Court for a motion disallowing all of Stow’s claims, arguing that Stow cannot win the L.A. case as a matter of law because Stow cannot prove a link between security issues and the beating.  In response, Stow’s counsel has asked the Bankruptcy Court to yield to Los Angeles Superior Court. 

For several  reasons, the Bankruptcy Court is likely to allow the L.A. suit to run its course:  First, the case has obtained nationwide attention, and federal judges are not immune from media-generated pressure.  If the court stops the L.A. action, some will claim that the court hijacked the jury-trial process.  Second, the Dodgers recently disclosed documents establishing the existence of insurance of over $300M, which is more than enough for a verdict in favor of Stow.  Third, the Dodger bankruptcy is unusual in that the owners will be flush with money after reorganization.  Reports cite many interested buyers, with a predicted sale price as high as $2 billion for the franchise.  Finally, the Dodgers reportedly have admitted that, in all likelihood, all creditors will be paid in full from sale proceeds from the sale.   Bankruptcy judge Kevin Gross already has hinted at the likely outcome, noting that the Dodgers will have a considerable task in convincing him "that there are absolutely, positively no facts that could result in liability under California law."  Hearings on the matter are scheduled for March 7^th and March 21^st.   A hearing regarding the proposed reorganization plan is set for April 13^th, and sale of the franchise is scheduled for April 30^th. 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP, Chair of DRI's Sports Law & Entertainment Group, and a member of the Sporting Goods Manufacturers Association’s Legal Task Force.  He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He also is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees.