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Governmental Liability


Make the Motion!

"The best defense is a good offense" may be an adage once used to describe military strategy and now used in sports, but it applies just as well in the context of civil litigation. 

In the wake of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the 12(b)(6) motion has certainly taken center stage when it comes to answering complaints, however, the Federal Rules of Civil Procedure allow the crafty litigator approaches with well-crafted complaints that sufficiently and factually plead a claim for relief. 

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Civil Rights Liability for a Product Manufacturer or Supplier? An Open Question Under the Federal Fair Housing Act Two defense attorneys that do not often rub shoulders at a DRI convention (other than the annual convention) are counsel who defend civil rights claims and counsel who defend construction product claims.  As a result of the Federal Fair Housing Act and its Amendments,  42 U.S.C. §§3601 et seq. and similar state law analogs, these defense counsel may become fast friends, since counsel representing product suppliers and manufacturers have a new potential exposure to address in the coming months and years. view more
Boyle’s Law of Military/Government Contractor Immunity: Civil/Private Government Contractors Benefit from the Slow and Steady Move Toward Allowing Post-Design/Post-Production Evidence to Show Military/Government Approval of a Defective Design or Component

The year was 1988 and the United States Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), established the law that civil/private contractors who manufacture equipment for the military/government are immune from state law claims for injury or damage arising out of a defect in the equipment.  Since the 1988 decision in Boyle, this "military contractor defense" has become a widely known and applied defense utilized by private/civil equipment manufacturers to avoid liability for injury or damage caused by defects in their products provided to the military/government.  At least one court in almost every Federal Circuit has recognized the defense established in Boyle.[i]  The Boyle court set forth the three-part immunity test as follows: 

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Narrow Exception to Federal Courts’ General Denial of Bullying Claims Against Schools for Bullying of Disabled Children Bullying used to be a child's problem.  It was seen as a part of growing up, a learning experience and an inevitable part of youth.  In recent years, bullying has become a topic of discussion, legislation and litigation.  Indeed, in the advent of school shootings, resulting suicides, and the prevalence of cyberbullying, what was once considered a schoolyard topic is now emerging as an area of social concern and law.  So much so, that on March 10, 2011, President Obama and the First Lady held the first Conference at the White House about bullying (http://www.whitehouse.gov/blog/2011/03/10/president-obama-first-lady-white-house-conference-bullying-prevention); organizations have been created against bullying  (http://www.bullying.orghttp://www.youthfrontiers.org; http://www.bullypolice.org; http://solutionsforbullying.com/Associations.html) and 47 states have passed anti-bullying laws (http://www.bullypolice.org).  But with all of this attention, the fundamental question of who is responsible to stop the bullying seems to remain unanswered.  This is true in the litigation context as well, since many of the bullying lawsuits fail.  view more
Private Contractors Entitled to Attorney-Client Privilege

On March 15, 2011, a magistrate judge from the United States District Court of the Northern District of Georgia held the relationship between the private employees providing outsourcing services to the City of Sandy Springs and the attorneys representing the City justified application of the attorney-client privilege, assuming all other elements of the privilege are met.  Flanigan's Enterprises, Inc. of Georgia, et al. v. City of Sandy Springs, Georgia, Civil Action File Number 1:09-cv-2747-RLV, United States District Court, Northern District of Georgia. The outsourcing of municipal services to private companies is a relatively new practice in Georgia. With Sandy Springs blazing the trail in 2005, other cities have followed its lead.   CH2M Hill and other companies are now partnering with public clients, like the City of Sandy Springs, Dunwoody, Milton and Johns Creek to provide services such as human resource, code enforcement, planning, zoning, permitting, licensing, informational services and financing.[1] This partnership between local government and private company to perform municipal services presents legal issues that are unique to this type of contractual relationship.

For instance, this relationship between the city and the private company employee is an independent contract relationship. The private employee is not an employee of the city, although he acts like one in all respects except his paycheck comes from a private source.  When applied against the traditional attorney-client communication test, the relationship does not fit squarely into the elements qualifying for privilege.[2]  

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Containing Fires Before They Spread - The Consistent Role of Counsel to the Mayor

So what does a mayor do when he or she can no longer trust those he or she appointed? These concerns can surface at any time and don't just appear at election time.  Although sensitivities intensify during election campaigns especially during heated election campaigns, loyalty issues are paramount to local politicians from inauguration day forward.    

Whether the mayor's appointed officials are supporting political opponents or aren't supporting his or her policies and initiatives, the law allows him or her to fire them. However, as all firings go, you, as counsel to the mayor, better do some research before the mayor parts ways with once intimate friends who vow to take him to court. 

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But, It’s Just a Building! The Implications of Suits Brought Against Non-Existent Entities In an emergency, nobody has ever asked someone to "call the Sheriff and ask him, in his official capacity as a duly elected State official charged with law enforcement in this county, to send a person to whom he has delegated some portion of his duties in order that he or she may assist us!" This statement is a technically correct interpretation of Alabama law as applied to the situation. See McMillian v. Monroe County, 520 U.S. 781 (1997). Nevertheless, it would seem utterly absurd in the midst of a crisis. Instead, we simply call the "sheriff's department" or the "police." Given the popular use of these terms, it is perhaps unsurprising that many people seek to bring suit against defendants denominated only as "sheriff's departments," "fire departments," "police stations," and "jails." view more

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