Arbitration (Awards) Not Necessarily Private in Texas

Thanks to Professor Ross Runkel for calling my attention to a case decided in my own backyard, McAfee, Inc. v. Weiss, (Tx. App. - Dallas 3.16.11), which held that a trial court's refusal to seal an arbitration opinion and award  attached to a motion to confirm the award was not an abuse of discretion.

If you are not aware of the several excellent publications Ross has, you should be. This one was in his Arbitration Law Memo March 2011.

The case turned on an application of Rule 76a of the TRCP which deals with the sealing of records. Since one of the benefits of arbitration is privacy, this is an interesting twist.

The case was only decided a couple of weeks ago, so it is possible that this is not the last word as the full Dallas Court of Appeals might be asked to reconsider, or even the Texas Supreme Court.

Since the Texas Rules of Civil Procedure, including the sealing of documents, are promulgated by the Supreme Court and that Court, through its decisions has been a strong proponent for arbitration , it poses an interesting policy issue for them.

It could be addressed through a case like this one, or addressed through the rule making process. However, it is addressed it does seem worthy of serious focused review between two worthy goals, alternative dispute resolution and the open court proceedings.

US Attorney Takes the Offensive in SLAM Litigation by Seeking Forfeiture of Egyptian Mask

Last month the St. Louis Art Museum (SLAM) sued the US government to claim ownnership of the ancient mask of Ka-Nefer-Nefer. The US government yesterday sued to forfeit the mask.

Fearing that federal authorities could seize the Egyptian mask of Ka-Nefer-Nefer, SLAM filed a preemptive complaint on February 15 to have a federal district court declare that the mask is the museum’s property. US Attorney Richard Callahan responded on March 16 by initiating a lawsuit against the mummy mask.

In a complaint titled United States v. Mask of Ka-Nefer-Nefer, Callahan petitions a Missouri federal court for forfeiture of the ancient object pursuant to 19 U.S.C. § 1595a. That statute permits officials to seize and forfeit items that have been illegally stolen, smuggled, or clandestinely imported into the United States. Callahan also asks that a restraining order be placed on the mask so that it remains available while the court case progresses.

In its petition for declaratory judgment, SLAM argues the following points:
• The museum conducted thorough due diligence before purchasing the mask on April 3, 1998.

• “The Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

• “The United States government cannot show probable cause the Mask was ‘stolen, smuggled, or clandestinely imported or introduced’ into the United States.’” Therefore, the mask cannot be seized or forfeited under 19 U.S.C. § 1595a.

• If the mask was stolen, the United States government is barred by the statute of limitations from seizing or forfeiting it because federal authorities had information more than five years ago “sufficient to discover the alleged theft of the Mask from Egypt.”

It should be noted that SLAM’s court complaint is hesitant to admit that the mask is stolen property. At best SLAM remarks that the mask may have been “allegedly stolen.”

The US Attorney’s complaint, by contrast, argues a more forceful claim, detailing why the mask is known to have been stolen. An excerpt from the government’s complaint is reproduced below:

“In 1952, Egyptian archaeologist Mohamed Zakaria Goneim, working for the Egyptian Antiquities Service, excavated the mat burial of a 19th Dynasty noblewoman named Ka-Nafer-Nafer inside the funerary enclosure of the 3rd Dynasty king Sekhemket at Saqqara. The Mask was placed in storage in the Sekhemkhet magazine, also located at Saqqara, where it was registered as the property of the Egyptian Antiquities Service and where it remained until 1959. In July of 1959, the Mask and four other items from Saqqara were packed for shipping to the Egyptian Museum in Cairo in preparation for an exhibit in Tokyo. The packing list identified the Mask as registration number 6119 and packed in box number six. The Mask was received by police guards at the Egyptian Museum in Cairo on July 28, 1959. Ultimately, the Mask did not travel to Tokyo for the exhibit. The Mask remained in Cairo, Egypt until 1962 at which time the Mask was transferred back to Saqqara. In 1966, the Mask and other objects from the same burial assemblage were removed from packaging in Saqqara and given to the Egyptian Antiquities Organization Restoration Lab located in Cairo in preparation for future display. The Mask traveled to Cairo from Saqqara in box number fifty-four. This was the last documented location of the Mask in Egypt. In 1973, the Egyptian Museum in Cairo took an inventory of all the objects that traveled in 1966 from Saqqara to Cairo in box number fifty-four. It was discovered at that time that the Mask was missing. The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973. In or around 2006, the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum located in Saint Louis, Missouri for approximately $500,000.00 in 1998. Subsequently, the Secretary General for the Egyptian Supreme Council of Antiquities sent letters and documentation to the Saint Louis Art Museum detailing the history of the Mask and requesting its return to Egypt. To date, the Saint Louis Art Museum has refused to return the Mask.”


The US Attorney’s office describes the mask’s source of discovery and its subsequent provenance. Should these claims be proven by the government, SLAM may find it difficult to maintain its dual and nuanced positions that either the mask may not have been stolen, or that the museum's investigation “revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

If evidence of the mask’s stolen character is proven by the government, SLAM might also have to revisit its February 14, 2006 position, reproduced in the museum’s legal complaint, “expressing its willingness to return the Mask to Egyptian authorities upon verifiable proof the Mask was stolen.” Any thought about returning the mask may have vanished, however, now that SLAM has argued that the statute of limitations forbids authorities from seizing or forfeiting the mask.

Knowing the statute of limitations claim asserted by SLAM, the US Attorney’s recent legal action does not address the issue at all. SLAM’s court petition points to episodes where federal officials directly or indirectly possessed knowledge to take action to investigate the possible illicit provenance of the mask. It remains to be seen how the federal government will take on this argument when SLAM inevitably raises the claim in its response to the government’s forfeiture action.

Omega Circuits Mountbatten

I headed down, with a teammate to Portsmouth for this 3rd cat race. My first time here, and first time with any kind of banking. Odd to just fly into a corner and let gravity take you around.  There was a quite promising early break of 4 but that got reeled in, then a solo break got nowhere, then another break of around 5 went.  As soon as they came back the pace slowed and I went for my jaunt off the front. I thought maybe it was cunning to go up the bank and slingshot down again; this apparently caused merriment in the bunch and delayed the organisation of a chase until I had been out there for a few laps.  Then it was altogether for the last several laps and the bunch sprint with me on my teammate's wheel at the rear.
22.74 miles in 53:39. Average 25.4mph max 31mph
Saw ex-teammate Harry down there in the Elites' race and left him in a 3 man break which had a comfortable half lap over the field.  He always makes it look so easy.

Changing Course: Enhancing Homeland Security's Policy of Seizure and Repatriation with Investigation and Prosecution

Illegal antiquities trafficking is a global business, linked to major transnational crimes such as money laundering. Additionally, cultural property crimes target humanity’s heritage and spirit. In order to successfully tackle crimes against cultural heritage, federal officials must pursue a strategy of investigation and prosecution.

The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.

The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.

Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.

US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.

Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.

Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.

Sources:
www.ice.gov/news/releases/1103/110311washingtondc.htm

http://articles.cnn.com/2011-03-03/justice/new.jersey.artifacts.seized_1_newark-airport-antiquities-chinese-government?_s=PM:CRIME

Surrey League Road Race Dunsfold Sunday 6th March 2011

My first road race  (by which I mean a mass start race on the Highway) for the current season.  A well organised Surrey League event sponsored by Kingston Wheelers, who supplied, with the NEG, excellent traffic marshalling (and cakes back at HQ!).  A definite chill in the air as we 3rd cats gathered outside the Alford Crossways Village Hall for the start of the neutralised section down to the start proper.  The pace during the neutralised bit was quite enough to get me warmed up and after a few miles we stopped just south of Dunsfold for a few minutes before the race got going.  Soon there was a right into Chiddingford Road and we were onto the 6 mile circuit we would follow 8 times around.  Chiddingford Road had a moderate hill, on some laps this was taken at a moderate pace but sometimes there were attacks here which left me hanging off the back gasping and willing myself not to be dropped irremedially.  Then the road curved round left through a wooded section where the potholes began and we undulated more up than down to the T junction taking us back up towards Dunsfold, after which the road surface improved and we enjoyed a sweeping descent before turning left to face that hill again.
It was a race of breaks and attacks from the first lap to the last with the pace going up as they fought to get away and again as gaps were closed.
I hung on in there and finished (up another hill that had me completely spent) at the back of the main bunch which by the time we finished was around 40 strong from the 80 who started.  I enjoyed the race and was pleased with that result (last year I did around half a dozen road races and did not manage to remain with the bunch until the end in any of them).

52.25 miles in 02h13m22s for an average speed of 23.5 mph.  Max 37.5 mph.

Traffic was generally not a problem with oncoming vehicles in the main having the good sense to stop or at least slow and move over.  There was only one vehicle that careered on at unmodified speed inches from the centre line.  Why the police anywhere should think that every road race requires a road closure (as apparently some police forces do believe) puzzles me, certainly when the race is as well escorted and marshalled as this one was.  All that is required is for traffic to stop or slow for the few seconds that it takes for the race to pass.  It will undoubtedly be helpful if marshals and motorcycle escorts are given an express power to direct traffic in dealing with the very few individual road users who seem to have a problem with cyclists racing on the road.

Legal Update - Spring 2011

First, it's cycle helmets again.  Last week His Honour Judge Wilcox sitting as a Deputy Judge of the High Court delivered his Judgment in Phethean-Hubble v Coles.  On 28th November 2005, Tobias Phethean-Hubble, then aged 16, suffered severe brain injuries when he was cycling and came into collision with a Rover motor car driven by the then 17 year old Sam Coles.
Tobias's cycling was not above criticism; immediately prior to the collision he was cycling at 8pm unlit along the pavement and moved onto the carriageway of the road into the path of the Rover.  The street was, however, well lit and Sam had no difficulty seeing Tobias.  The failure to carry lights at night therefore only affected the outcome to the extent that it may explain why Tobias had been riding on the pavement, where the Judge observed that 'strictly' he should not have been.
The area was subject to a 30 mph speed limit.  At trial there was an issue over speed with Sam accepting a speed slightly in excess of the speed limit and those representing Tobias alleging a rather greater speed.  In the event the Judge found that the speed was 35 mph and found Sam to be liable for Tobais's injuries because of his excessive speed.
The Judgment is promising in that it accepts the dangers of speeding and emphasises the vulnerability of the cyclist.  There was a finding that a reasonable motorist ought to have anticipated that the cyclist riding on the pavement would move into the road and a prudent motorist should have been prepared for such an eventuality and driven accordingly.
Driving 'accordingly' essentially meant moderating his speed.  At 35mph there was no chance of avoiding the collision, he should not merely have been driving within the speed limit but should have slowed to 3-4 mph or so below the limit.  At that speed there was a greater likelihood that the cyclist would have become aware of the approaching car in time, and the motorist would have had longer to react so as to avoid the collision, or at least cause less serious injury.  Emphasis was placed on the significant difference between the two road users.  One a cyclist with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
The Judge also found fault on the part of the cyclist in riding onto the road creating the emergency.  He found this was an equal cause of the accident but given Tobias's age he considered a reduction of one third for contributory negligence was just and equitable.
There was in addition criticism of Tobias for not wearing his cycle helmet.  The Judge accepeted as his starting point the words of Griffith Williams J in Smith v Finch who had likened fault on the part of a cyclist not wearing a helmet to fault on the part of a motorist for not wearing a seat-belt.  On the face of it this is another blow for those who wish helmet wearing to be a matter of personal choice rather than external prescription.  However the authority of the decision on this point is weakened by the fact that the contrary High Court authority A v Shorrock was not cited to the Judge and, rather extraordinarily, it appears that it was not even argued on Tobias's behalf that he was not at fault in leaving his helmet at home.  As it was, the Judge made passing reference to risk compensation and to the fact that helmets may sometimes make injuries worse; suggesting a distinct possibiltiy that he may not have followed Smith v Finch had the matter been argued out.
As always (at least thus far) in cases of severe impacts, the finding was then made that the wearing of a helmet would not have made a significant difference to the extent of Tobias's injuries.

Comment.  Although Claimant cyclists can usually be fairly confident that a Defendant motorist will be unable to establish that a helmet would have made any difference, this is not a good reason to permit assertions that a bare-headed cyclist is at fault to go uncontested.  It is inimicable to the interests of cyclists generally to allow a series of cases to build up on a premise that not wearing a helmet equates to fault.  I hope that this is the last time that such an assertion will be allowed to go unchallenged.
Aside from the helmet issue though there is much in the Judgment about the standard of care owed to cyclists by motorists and about the dangers of even 'moderate' speeding to merit a cheer.  I believe it to be a useful antidote to the mantra that I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc.  As I have made clear before, I personally reject this artificial 'evenhandedness' which is blind to the degree of potential to do harm to others.

[UPDATE:  The Defendant's appeal against this Judgment was heard yesterday (28.11.11) and Judgment is awaited.  The Defendant did not appeal the finding that a cycle helmet would have made no difference but there may well be some observations form the Court of Appeal on the degree of contributory negligence].

Death on the roads is sadly continuing at much the same rate this year, notably the 18 year old potential Olympian, Lewis Balyckyi, was run down by a Transit van and killed whilst out training in Lancashire in January. 

In the criminal courts, the motorist responsible for the death of Cath Ward of Solihull CC was sentenced last December to a community order and disqualified from driving for one year.  Cath had been competing in a 10 mile time trial last summer in good weather conditions on the A46 dual carriageway when she was hit from behind by a car driven by Arron Cook.  Prosecutors decided to charge Cook with causing death by careless driving rather than by dangerous driving.  (It is possible this case differs significantly from that of Major Gareth Rhys-Evans, see my legal review a year ago, but I do not see it as obvious from any of the reports).  The result of this charging decision was that the Magistrates were empowered to, and rather unusually did, deal with the sentence themselves rather than referring to a higher Court.  I continue to wish for greater consistency in charging and sentencing decisions in cases that involve killing, harming or endangering vulnerable road users.

With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly

Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v. Proctor (S.Ct. 3.1.11) [pdf] and coupled with his earlier opinion in Thompson v. North American Stainless, should readily disabuse them of that notion.

Nothing is rarely as bad as it appears on first blush, and perhaps a closer reading will lessen my angst over today's opinion. But at least I am not the only one feeling the same way. Jon Hyman at Ohio Employer's Law Blog, calls it a "huge victory" for employees.

One immediate concern is that the Court takes what is a relatively narrow range of cases, where a decision maker is deemed to have been "used" by another to carry out his or her discriminatory intent, and by focusing on the underlying disciplinary actions and the motives of those who carried them out,  seems to invite numerous fights over each and every warning or other disciplinary activity that were given to an employee in the past and that might could arguably have been a factor in the termination decision. It is almost certain that there will be many more "Staub cat's paw cases" after today's decision than we have dealt with before.

Proponents will argue that this is not so, that it is only those that rise to the high level of proximate cause that are at issue. But those who do, probably do not deal with day to day employment litigation where every opportunity to raise a fact issue is yet another arrow in the plaintiff's quiver. Today, I am afraid, at least until courts below fill in the gaps, the Court has created more complexity and less certainty.

And in a time when there is confusion enough over what is the standard for determining the basic question "what is discrimination," the addition of the negligence tort doctrine of proximate cause into the mix seems to me less than a beneficial step.

Although as Paul Secunda of Workplace Prof Blog points out in his approving comment on the decision, there  is an argument that it does not apply to ADEA cases, it appears likely that the Court intended it for Title VII and other statutes that use similar language:
The statute is very similar to Title VII, which prohibitsemployment discrimination "because of . . . race, color,religion, sex, or national origin" and states that suchdiscrimination is established when one of those factors "was a motivating factor for any employment practice,even though other factors also motivated the practice."
If there is any good news, it is that the Court remanded the case to the 7th Circuit for application of its newly articulated rule in determining whether the jury verdict for Staub should be re-instated or a new trial granted. The basis is that the trial court's instruction did not conform to the "rule we adopt today". Perhaps that learned bench can shed some early guidance.

Goodness knows we will all need some.

This is another case where not only bad facts, but a bad procedural background made it an unfavorable case for employers. The Court was faced with a case where the appellate court had reversed a jury verdict, which meant that all facts had to be construed in the most favorable of light to the employee. Also the fact that it was a USERRA case, here a military reservist, is not the best context in today's world with two wars and numerous military personnel being asked for extraordinary measures, for any case focusing on the whether or not an employee was treated badly.

Although I have long felt this, I think today's decision makes it more clear that the Supreme Court although still adhering to the broad notion that courts should not function as super-human resources departments, second-guessing the decisions of an employer, have and continue to create a set of rules that at least encourages, if not requires, the lower courts to be just that.

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