Notice of Appeal Filed by U.S. Attorney in St. Louis Art Museum (SLAM) Ka Nefer Nefer Mummy Mask Case

One day after the U.S. District Court for the Eastern District of Missouri denied the government's latest effort to forfeit the Ka Nefer Nefer mummy mask held at the St. Louis Art Museum (SLAM), U.S. Attorney Richard Callahan filed a notice of appeal.

The notice challenges Judge Henry E. Autrey's denial of the government's motion to strike SLAM's claim, the dismissal of the government's verified complaint to forfeit the mask, the denial of the government's motion for reconsideration to reopen the forfeiture case, and the refusal to allow federal attorneys to amend its complaint.

The case now moves to the Eight Circuit Court of Appeals, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Van driver who ran down Elizabeth Brown cleared of causing death by careless driving

Evening Chronicle reports that Daniel Mackay who drove a van straight into the back of Elizabeth Brown as she was cycling on the A189 near Cramlington, Northumberland, on 13th April 2011, was today cleared of causing her death by careless driving.  A jury at Newcastle Crown Court appear to have accepted Mackay's explanation that as a vehicle ahead of him swerved suddenly to avoid Miss Brown leaving him with no opportunity to avoid running into her.
Some might think an object lesson in why not to tailgate the vehicle ahead.

Judge Once Again Dismisses Ka Nefer Nefer Forfeiture Case

U.S. District Court Judge Henry Edward Autrey yesterday denied the government's motion to file a new complaint to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM).  In a brief order, the judge described how he had ruled on the case twice before:

"On March 31, 2012 the Court entered an Order dismissing the Verified Complaint in the instant matter. After allowing The Government an extension of time to file its Motion for Reconsideration, on May 7, 2012, The Government filed a Motion to Reconsider Order and Opinion Dismissing Verified Complaint. In the motion, The Government requested, in the alternative, that the Court grant The Government an additional seven (7) days to move for leave to file an amended complaint before entry of judgment. On June 1, 2012, The Court denied the Government’s Motion for Reconsideration in its entirety. For the reasons outlined in The Court’s March 31, 2012 Order of Dismissal, and for the reasons offered in its Order denying reconsideration, The Court denies The Government’s requested leave raised in its motion submitted on June 8, 2012." (Citations omitted).

The U.S. Attorney's Office must now consider whether to appeal the rulings to the Eight Circuit.

UPDATE: The case will be appealed.

CONTACT: http://www.culturalheritagelawyer.com/
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Press release from Kate Cairns

Further to my last post, this press release from Eilidh Cairn's sister, Kate, merits the widest possible distribution:

BEGINS


‘Jail is not the justice we want’


On 5th February 2009 lorry driver Joao Lopes ran over and killed fit, strong and experienced cyclist, Eilidh Cairns as she rode ahead of him on her daily 10 mile commute through Notting Hill Gate.  

Just days after what would had been her 32nd birthday in June 2011 he again ran over bright and active holocaust survivor 97 year old Nora Guttman at a pedestrian crossing. This week at Isleworth Crown Court Joao Lopes pleaded guilty to causing the death of Ms Guttman by dangerous driving and also to falsifying data on his tachograph.

Whilst Lopes is remanded in custody there are others who may be feeling uncomfortable at the avoidable heartbreak of three broken families.

At Eilidh’s death the police failed to check Lopes’ eyesight, and did so only at the family’s request and then three months after the crash. His eyesight was so bad that it did not meet the standard to drive a car let alone an HGV. The police failed to find witnesses as they turned away vehicles without taking details. Eilidh’s sister Kate, after a personal public appeal, found two witnesses who gave key evidence at the inquest clarifying that Eilidh had been in front of lorry and not coming up alongside as assumed by the police. 

Coroner, Dr Shirely Radcliffe, failed to use her powers under Rule 43 to make recommendations to prevent further similar deaths and concluded that it was just an ‘tragic accident’. Kate challenged her and won permission to apply for judicial review. But at High Court, Judge Silber accepted Radcliffe’s argument that there were ‘no practicable preventative measures’ which could be applied to prevent further similar deaths.

The police eventually acknowledging that the original investigation report was inadequate have only in recent weeks finished a complete review of the investigation into Eilidh’s death. But the CPS this month rejected any proposed charge and will be taking no further action. Following Eilidh’s death Lopes was charged with driving with uncorrected defective vision and given three points and a £200 fine. He did not have his licence revoked.

Kate Cairns said:
For three years I have battled the whole way through an inadequate system which assumes the guilt of the cyclist, and which is rife with incompetence and complacency and which has failed us all on so many levels. There was no interest in carrying out a proper investigation nor in finding witnesses. The police report was riddled with assumptions, omissions and conclusions contrary to evidence, obvious even to a layperson but there was no interest from the CPS in questioning it. Only after the death of someone else, three years later, have the police acknowledge the report was inadequate and reviewed the case of Eilidh’s death. 
Then there is an absolute failure of the coronial process to be meaningful in anyway when the coroner refuses to put her mind to ways to avoid similar deaths. 
Nora Gutman did not have to die, Lopes did not have to loose his freedom, if the  professionals had done their jobs.

 All I wanted was the truth so that other deaths could be avoided and other families did not have to suffer. We have not had justice today, clearly there are many more drivers like Lopes on our streets. Their employers need to take responsibility and train them and incentive them, and comply with legislation and provide the tools and equipment to protect everyone from their business activities. These trucks are lethal killers, not designed for our urban streets. Those presenting the most risk must manage that risk. Whilst they profit, innocent people die. 


The President of the Institution of Highways Engineers yesterday called for a ban on HGVs on motorways on Sundays. The Institution of Mechanical Engineers last month called for a ban of HGVs in urban areas until they are made safe (Intelligent Transport Intelligent Society). The BMJ called for a ban on HGVs in 1992 following the deaths of vulnerable road users. A report ten years later also called for a ban on HGVs until the risk they posed could be reduced.


ENDS

Obamacare Decision: The Perils of Instant Analysis and Related Thoughts

I have not and will probably not read today's Supreme Court decision holding that the Affordable Care Act is (for the most part) constitutional any time soon.

But I did have a couple of thoughts on what has happened so far.

First, my first notice of the results came from a CNN email at 9:09 a.m. (CDST)
The Supreme Court has struck down the individual mandate for health care - the legislation that requires all to have health insurance.

Nine minutes later, I received the following from CNN:
Correction: The Supreme Court backs all parts of President Obama’s signature health care law, including the individual mandate that requires all to have health insurance.
And just to be fair, at 10:04, CNN seems to have finally gotten the basic result down:
Chief Justice John Roberts led the Supreme Court’s 5-4 decision upholding President Obama’s sweeping health care law.
The president is expected to speak later today on the ruling that supports the core legislative accomplishment of his administration.
The court decided that the individual mandate that requires all Americans to have health insurance will stand and is considered a tax by the court, making it constitutional.
Chief Justice John Roberts wrote about the individual mandate, citing the taxing clause: “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without insurance. Such legislation is within Congress’ power to tax."
The court also ruled that the federal government may not remove Medicaid funding from states that refuse to take part.
Voting to uphold the Affordable Care Act were R oberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The dissenters were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
Now besides a little temporary embarrasment on the part of CNN, which I would imagine is already gone, the errors they made in their initial reporting matters not.  My guess as to what happened, is they wanted to be first, they read the opinion and saw that the Administration had lost on the Commerce Clause issue and assumed that meant the mandate had fallen. When they figured out that the Administration had prevailed under the taxing clause on the mandate, they rushed to correct that, and mis-stepped again because they had not made it to the part where the Court held Congress over-reached in its putting conditions on states for the receipt of Medicaid funding.

But this brief interplay, reminded me once again that the speed with which our world now operates often times does a great disservice to the quality of advice that is given.  When we operate at hyper speed, the time for reflection and discernment is often a casualty. It didn't really matter here, but when giving advice as lawyers do every day, operating at that speed can easily cause serious error.

Secondly, although we are all told on appeal to limit our number of arguments and focus on our strong ones, today's decision points out the importance of having a Plan B. While everyone focused on the commerce clause and the hope that Justice Kennedy would be the 5th vote to support its use, who ever insisted that the fall back position of the taxing clause be there, should be getting large pats on the back by the supporters of the bill.

Having recently won an appeal (at least so far) where there were 3 separate opinions, and the two judges who voted in the favor of our position did so for different reasons, I personally know how important that Plan B can be.

On the political note there has been and will be even more analysis of how this impacts the Presidential race. Although President Obama is no doubt happy with today's outcome (except for the Medicaid portion) I doubt that much thought had been given to how it would be to run when the healthcare law was supported only because it was a "tax." Justice Roberts may have given President Obama a substantive victory, but my guess is that he at least gave Romney and the Republicans a rhetorical boost.












Joao Lopes guilty of causing death by dangerous driving

Mr Lopes was the driver behind the wheel of the lorry that cut tragically short the life of Eilidh Cairns on 5th February 2009 as she rode her bicycle through Notting Hill Gate.  The sole charge pursued against Mr Lopes arising from Eilidh's death was that of driving with defective vision for which he was fined £200.  It was Eilidh's family who pressed the police to test Lopes's eyesight and her sister Kate Cairns has been campaigning tirelessly for safer lorries.

It transpires that in June 2011 Mr Lopes was driving a lorry that struck and killed a 97 year old woman pedestrian, Nora Gutmann, a holocaust survivor.  For some months many of us (though not Private Eye) have been keeping quiet about this connection for fear that it might prejudice a jury at a future trial.

However no trial is now required.  Lopes has pleaded guilty at Isleworth Crown Court to causing the death of Nora Gutmann by dangerous driving and also to falsifying the data on his tachograph.

The investigation into the death of Eilidh Cairns did not, on any view, go as it should have done.  I know that I have the benefit of hindsight but it is nonetheless surely right to point out that those who choose to, or not to, prosecute drivers following fatal crashes involving vulnerable road users have a heavy burden of responsibility to ensure that dangerous drivers are removed from our roads.

Lopes has been remanded in custody where he awaits sentence due to be passed on 1st August.

Helmets: a Dutchman goes to Canada

Hans Voerknecht has been to a Velo-City conference in Vancover to explain why mandatory helmet laws are not such a great idea.  One of his statistics is that In the Netherlands, where cycling is ubiquitous, 13.3 per cent of the cyclists admitted to hospitals with injuries wore helmets — even though just 0.5 per cent cent of Dutch cyclists wear helmets.  Maybe tourists from Anglo Saxon nations wearing helmets are disproportionately represented in the hospital statistics.  Maybe also those with helmets are perceived by motorists or perceive themselves to be less vulnerable.  The debate will go on.
Meanwhile I am reminded that earlier this year a Metropolitan Police Officer stated to me, during the course of the same conversation in which he explained that his officers were under a high workload so it was difficult to deal with law breaking motorists,  that he would like to see helmet compulsion here.  He did not seem to think there would be any problem with the Metropolitan Police finding the resources to enforce any such law and I bet he would be right.  Where there is a will, there is a way.


Still racing?


Time to get away with my disillusionment with commuting and the criminal justice system and turn to more pleasant thoughts.  Whilst my commuting mileage is down I am upping my mileage riding to and then racing.  Unlike last year these are almost exclusively at racing circuits.  Although I love racing on the open road I am realistic enough to recognise that I will almost always be dropped (most probably on a descent) and, since road race fields are invariably full,  I am preventing somebody from having a proper race.  Overall I am a bit heavier and a bit slower than last year.  I am also a far more nervous rider on the downhill as a consequence of, not one but, two front tyre blow outs when descending this spring.
I am though, I think, marginally faster in the sprint.  Last year I was usually crossing the line 100 metres behind the peloton.  This year I am managing to cross the line with other riders all around me.  This helped me to a 9th place last week which, though hardly stunning, is my best result for two years and earned me 2 BC points.
When I started this blog 3 years ago I was a 4th cat and managed the 10 BC points required to become a 3rd cat.  Now half way through this season I have 2 points so, to answer my reader who kindly enquired whether I would ever make 2nd cat,  'no' I am afraid not; 40 points are required and short of EPO and blood transfusions, 2nd cat status is for me an impossibility.  About as likely, I would say, as being appointed Lord Chief Justice.

On a slightly different note, I will be doing the etape in the Pyrenees in a few weeks time.

Landau's Theft of Historical Documents Earns Time Behind Bars

A federal prison in Maryland.
Source: BOP
Historical documents thief Barry Landau was sentenced today to prison.  Landau pleaded guilty to his crime in February, admitting to stealing volumes of treasured documents from cultural institutions throughout the east coast and selling some for financial gain.

Prosecutors for the United States Attorney's Office filed a sentencing memorandum with the federal district court of Maryland (docket 1:11-cr-00415-CCB) today in support of their recommendation to incarcerate Landau.  He faced up to 15 years in prison.

According to a press statement issued by U.S. Attorney Rod J. Rosenstein, prosecutors asked for nine years. Judge Catherine Blake ordered seven followed by three years of supervision. She also restitution in the amount of $46,525 to make whole three dealers swindled by Landau.

Rosenstein accurately remarked that “[p]urchasers who innocently buy stolen property do not gain lawful title and are required to return it to the rightful owner. Anyone who has information about historical documents obtained from Barry Landau should contact the National Achives Archival Recovery Team at 800-786-2551.”

One of many institutions targeted by Landau was the University of Vermont.  In October 2011, authorities returned 67 historical papers to UVM that had been recovered.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Two Sacred Cows - Performance Appraisals and Job Descriptions - Time for the Scrap Heap?

I don't always appreciate non-trial lawyers telling me how to try a case (although I try to listen, because often I can learn something that is helpful), and so I am also leary of getting too far into the realm of HR advice.

But I have long been a skeptic on both annual performance reviews and job descriptions. In defending employers over the last 35 years, I would say I have seen both types of documents end up as Plaintiff's Exhibits, not Defendant's exhibits more often than not.  Since the employer is in control of both, even if it were 50/50, that's a pretty poor ratio.

The problem is that for the most part they are either rushed through as after thoughts (performance reviews) or done in a vacuum and put on a shelf (job descriptions).

About job descriptions I have often said if they are accurate and up to date then they are good; unfortunately that does not describe very many job descriptions I have seen. That basic premise holds true for performance appraisals as well.

It's one thing for lawyers who see these documents through the admittedly cloudy filter of litigation to make those kind of comments, but it seems those who actually do specialize in HR advice are having some of the same thoughts.

Today's comment was sparked by the recent Harvard Business Review posting by Eric Mosley, Crowdsource Your Performance Reviews, which was inspired by a study of HR leaders where 45% said they "did not think that annual performance reviews are an accurate appraisal for employee's work." 

So to HR professionals, just a thought from the cheap seats, have an open mind about whether these rituals of HR are still worthwhile as they are, or even at all.

Come Join Us - Space is Still Available for the Arts, Culture & The Law Conference and Cultural Property Law

The second annual Arts, Culture, and the Law conference will take place June 28, 2012 at the University of New Hampshire School of Law in Concord, NH.  This was a big event last year, attended by artists, gallery owners, museum professionals, archaeologists, librarians, lawyers, and many others. Many are already registered for this year's conference, but scholarships and some space for late registrants remain.  You can register here.

Panels cover copyright, alternative dispute resolution, volunteer issues, and more.  Sessions I will be presenting focus on the legal risks of collecting undocumented objects and cultural institution disaster preparedness. For more information about this event, click here.

Next week then begins an intensive two week Cultural Property Law course taught in Concord, NH (one hour north of Boston), part of Plymouth State University's heritage studies program.  This course begins July 3 and ends July 14 with a field trip to Boston's Museum of Fine Arts.

The class examines the international, national, and state legal frameworks for the protection and movement of cultural property.  Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act, and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed.

There is still space left.  For more information or to register, contact Professor Stacey Yap at (603) 535-2333 or e-mail staceyy@plymouth.edu.

CONTACT: http://www.culturalheritagelawyer.com/
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Jury Duty, An Obligation Sure, But Also a Large Reward

I just happened on this post today by Adam Rich, talking about his 5 Lessons From Jury Duty that was posted on an American Express Forum for small businesses. I think his points are valid, although frankly, my role is more as a consumer of juries than as a participant.

So perhaps it is a little stretch for me to claim how large a reward jury service can be, but from jurors I have talked with or heard talk about their experiences, even those who thought a case was silly or a waste of time, have never the less come away with a renewed respect for the judicial process.

We are all binded by our own biases, but from my seat in trial representing employers, I am always amazed at how it is the individuals we would typically identify as those most likely to share the employer's perspective who are the least able to serve because they are too busy (an excuse that never works by the way) or because they just can't set aside their long held beliefs about the frivolousness of laws suits or whatever and listen to the evidence and be fair and impartial.

Call me cynical, but I am inclined to think that much more often they have figured the "out" than that they are any less able to be open minded jurors than all the other folks who seem to be able to put aside their past experiences and be fair.

Which if you are an employer type, you might think about when you hear that time honored phrase in reference to your particular law suit being tried by a "jury of your peers. " What that often means is a jury panel where all those who will at least understand the context in which the decisions you are defending were made, are the most likely to be gone well before the time that peremptory strikes are made.

Texas Supreme Court Advisory on Attorneys' Fees in TCHRA Cases

A short message to plaintiff's attorneys in TCHRA cases from the Supreme Court: join your defense brethren in "measuring out your life with coffee spoons," i.e. keeping contemporaneous time records of what you do.

Actually Justice Medina's opinion did not reference T. S. Eliot's The Love Song of J. Alfred Prufrock, that was my literary spin, but the message from today's decision El Apple I, LTD. v. Olivas (TX 6.22.12) makes just that point.
Thus, when there is an expectation that the lodestar method will be used to calculate fees, attorneys should document their time much as they would for their own clients, that is, contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed.
The Court also cast a doubtful eye on the lower court's doubling of the lodestar amount. Although the majority found that because in this case there was no appropriate lodestar, it was too soon to address the validity of the doubling, it gave a general standard to be applied:
We accordingly accept the premise that [a] lodestar presumptively produces a reasonable fee,
but that exceptional circumstances may justify enhancements to the base lodestar. 
But by noting that while state courts are not bound by federal standards, that they "may appropriately consider them," it seems clear that the Court was signaling that such adjustments should be rare.

All of this came about because an award of just over $100,000 to the plaintiff had resulted in an attorneys fees award of $464,000 for the trial of the case with another $99,000 for defending post-judgement motions and appeals.



Coach driver acquitted of charges relating to the deaths of Christian and Niggy Townend

The News and Star reports that a Carlisle jury has acquitted coach driver Robert Wightman of all charges relating to the deaths of the Townend brothers who were cycling on a main road in the Lake District on 5th December 2010 when they were struck and killed by a coach driven by Wightman.  Wightman did not see the cyclists before running them down and appears to have implicated the sun.  he appears to have acknowledged that he was driving too fast to be able to stop in the distance that he could see to be clear.
We can never know what went on in the jury room.  Personally I believe it to be an odd outcome.
I do not know all the evidence.  However the Judge of course did and it is important to note his comment that there could be no criticism of the CPS for bringing the charges (which included causing death by dangerous driving).
It would only compound the tragedy in this case were that jury verdict to be used as a justification for not bringing the appropriate charges in future similar cases.

Eternal Rest Not Coming Soon for Ka Nefer Nefer Mummy Mask as Motions are Once Again Filed in Missouri Forfeiture Case

"This Court has previously denied the Government’s motion for reconsideration of its Order of Dismissal, and this latest filing by the Government amounts to little more than a second motion to reconsider."  That is what lawyers for the St. Louis Art Museum (SLAM) write in their Motion to Strike the Motion of the United States to File First Amended Verified Complaint.  SLAM's latest motion and memorandum to the Missouri federal court in the forfeiture case of United States v. Mask of Ka Nefer Nefer comes on the heels of the government's filing of a new complaint alleging that the mummy mask should be forfeited.

SLAM's lawyers argue that the parties should not have to keep coming back to court to argue an issue that has already been put to rest:

"The Government’s renewed attempt to re-open this case is unsettling. Not only has this Court dismissed this case, this Court has already once denied the Government’s request to reopen this case on the very same bases now reasserted in the Government’s Motion, and effectively denied the Government’s previous requests for leave to amend post-judgment. The Government now asserts that the Federal Rules of Civil Procedure (“Rules”) grant it limitless attempts to reexamine and to re-open this case until they are successful. The Government’s misinterpretation of these Rules would result in an abuse of procedure, a waste of judicial resources and burden on this Court, and a continued strain on the Claimant Museum’s limited resources."

Attorneys for the government counter in their Memorandum of Opposition that its recent petition asking the court's permission to accept a new forfeiture complaint is timely filed.  They argue:

"The Museum’s Motion to Strike is merely its latest attempt to generate procedural confusion in this case in order to avoid a decision on the merits. In any other setting, one would expect the Museum’s arguments to be presented in the form of a memorandum in opposition to the United States’ Motion for Leave to Amend. Instead, the Museum declined to respond and sought instead to strike the United States’ motion, presumably in the hopes of delaying this Court’s decision on the motion until after July 1, 2012, when the United States’ time to file notice of appeal might arguably run."

The pleadings, published on June 15, are expected to be ruled on by the court.

Hat tip to Gary Nurkin.

CONTACT: http://www.culturalheritagelawyer.com/

Function Over Form: The Supreme Court's Realistic View of the FLSA

For those who think that one of the travesties of the recent history of employment law has been the explosion of FLSA collective action litigation, today's 5-4 decision by the Supreme Court holding that pharmaceutical representatives are in fact exempt employees under the outside sales exemption is a re-affirmation that common sense can in fact prevail.  Christopher v. SmithklineBeacham Corp. (6/18/12).

Although a critical decision for the pharmaceutical industry in its own right, the case has generally been viewed more importantly for its insight as to the weight the Supreme Court would give to agency views of the laws they enforce. Here the DOL had weighed in as amicus in a series of law suits arguing that the pharmaceutical sales reps were not exempt, although the DOL had given differing views as to why that was so.

The majority opinion begins with Justice Alito's description of why the DOL's position is not entitled to deference. Perhaps more significantly, the dissent written by Justice Breyer, the member of the court with the most claim to administrative law expertise, agrees. In fact, on this key point, it would be fair to say that this is a 9-0 decision. Justice Breyer writes:
In light of important, near-contemporaneous differences in the Justice Department’s views as to the meaning of relevant Labor Department regulations, I also agree that we should not give the Solicitor General’s current interpretive view any especially favorable weight.
Although casting the blame on the Department of Justice, not the Department of Labor, it is clearly a rebuke to the DOL.

Having jointly rejected the DOL's view, the two wings of the Court still reach a different outcome on their own independent review of the exemption.

The problem is that we have a 1938 statute designed for a very simple economic model which existed at the time was adopted.  The FLSA was designed for an even pre-Leave it to Beaver world, where a factory was divided between the white collar workers in the front office and the blue collar workers in the back, whose product was sold by the Willy Loman's of the world, who packed their sales bag and left on Monday through Thursday and returned to do their paper work on Friday.  Trying to use regulations written for that world, in today's workplace results in often ludicrous results.

It seems clear to me that the Supreme Court understands this historical fact, at least as relevant to the outside sales exemption, as it noted that the DOL had been authorized by the statute to issue regulations, and that those regulations were issued in 1938, 1940 and 1949, and in 2004 "following notice-and-comment procedures, the DOL reissued the regulations with minor amendments." Although they limit that historical reference to the outside sales exemption, I think a review would indicate that it is applicable for much of the remainder of the FLSA and its regulations as well.

The points relied on by the majority in rejecting the formalistic view of the minority are significant and could be utilized by other courts to rein in what has been an overly mechanistic view of the FLSA:
  • that until 2009, the pharmaceutical industry had "little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA."
  • that the DOL had never initiated any enforcement actions or otherwise suggested that it thought the industry was acting unlawfully.
  • the realization that pharmaceutical sales reps, whose average income is $90,000 a year according to the opinion,  "typically earn salaries well above the minimum wage" and enjoyed other benefits that "set them apart from the nonexempt workers entitled to overtime pay." Hardly the kind of employees the FLSA was intended to protect.
  • That it would be "challenging, to say the least" for pharmaceutical companies to compensate reps for overtime going forward without significantly changing the nature of that position.
  • Rejecting a legalistic argument, that requires title to pass, to instead taking a more "realistic approach" of what the outside salesman exemption is meant to reflect.
Let me be clear what my argument is. At least with respect to mis-classification cases, in the last 10 years plus, the FLSA has been used to extract tremendous sums from employers, who had no intent to cheat or abuse their workers. The beneficiaries of that extraction have been employees, who generally knew what their job involved and knew what they were going to be paid for doing it. In other words, the true economics were already baked in, and an after the fact application of a formalistic approach, with its accompanying lack of "fair warning" discussed by Justice Alito, is not a good economic use of resources.

The biggest beneficiaries of course have been the repeat players, lawyers who represent the plaintiffs in those cases, who of course have taken their share of the extraction, and lawyers who represent the defendants (including me and my firm) in those cases. 

In a world where there are many issues that call out for righting, for the most part mis-classification under the FLSA has not been in my mind a worthy fight. Today's decision is by no means the end, but it is at least a bright and correct light.



The NLRB in the Non-Union Setting: Making A Point

For years I have been a member of seminar planning committees, and inevitably the talk gets round to an NLRA topic. In Texas, that usually meets groans and comments to the effect that no one is really interested because very few practitioners actually deal with union related matters.

Inevitably, one solution was to title the program slot, something along the lines, The NLRA for the Non-union Company. And while that often at least made the program, it was still hard to generate much enthusiasm.

However, the current Board seems intent on getting out the message that indeed concerted activity, not just union activity, is what is protected, including today's launch of a web page describing Protected Concerted Activity, complete with state by state links to cases where the Board has found such activity.

For example, clicking that link and the button located prominently in Texas, pulls up 16-CA-025349:
A supervisor at a dental association was fired after she refused to divulge the names of employees who had anonymously signed a petition protesting top management. The Board found the discharge was unlawful because she had rightfully refused to violate federal labor law by punishing concerted activity. In a settlement, the supervisor and another former employee waived reinstatement in exchange for $900,000 in lost wages and benefits.
It will not take too many stories of that nature to get the word out.

That's a far cry from what life was back in the late 1970's and early 1980's. I can't remember the exact date, but I was in the San Antonio office of the NLRB waiting to see some one and the phone rang.  The secretary answered the phone, and sitting right across from her I could tell that it was an employee calling with a possible complaint. After listening a moment, she asked, "Is there a union involved?" and obviously getting a negative response, hung up the phone with a "Well, we only handle matters where there are unions."

Oh how times have changed.









DC Court Dismisses Ancient Coin Collectors' FOIA Case as Baltimore Test Case Presses Forward


Cypriot coin subject to U.S. import restrictions.



"Unfortunately for the plaintiffs, I agree with the State Department's decision."  That is the opinion of Judge Richard Leon of the United States District Court for the District of Columbia in his ten page decision dismissing the case of Ancient Coin Collectors Guild et al. v. U.S. Department of State.

The Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists, and the Professional Numismatists Guild together filed a Freedom of Information Act (FOIA) lawsuit against the State Department in 2007.  The federal district court dismissed the case in 2009, but the court of appeals in 2011 reversed in part, sending the case back to the district court for further review.  The district court reviewed the matter and decided on May 28, 2012 (opinion published on June 11, 2012) to dismiss the suit.

The plaintiffs sought information from the State Department related to the review process of the Cultural Property Advisory Committee (CPAC), which advises the President about enacting import controls to protect cultural property in jeopardy.  Congress fashioned the CPAC process as an integral component to America's implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Cultural Property.

The plaintiffs wanted the Bureau of Educational and Cultural Affairs at the State Department to turn over any information relative to U.S. import controls placed on ancient coins originating from China, Italy, and Cyprus.  In response, the State Department released 109 out of 128 found documents, including 70 full documents and 19 redacted documents.  The balance of the papers were not disclosed based on legal grounds.

When the appeals court sent the case back for reconsideration, the federal district court's task was to assess the redactions contained in a series of emails between an archaeology professor and a State Department employee.  The court's other task was to review whether the State Department sufficiently scoured its files to locate FOIA materials.  The court found that the redacted portions of the emails could be kept confidential because there was a "demonstrated expectation of confidentiality between the parties" under the FOIA law.  The court also found that "the State Department conducted a search reasonably calculated to uncover all the email records responsive to the plaintiffs' FOIA requests."  Therefore, the court dismissed the case.

Meanwhile, the Fourth Circuit Court of Appeals scheduled oral argument in the matter of ACCG v. US Customs and Border Protection et al.  The court selected dates between September 18 and September 21.  This case began when the ACCG hoped to challenge cultural heritage import protections enacted by the Cultural Property Implementation Act (CPIA) on Chinese and Cypriot coins.  The ACCG appealed the case following its dismissal in the Maryland federal district court in 2011.

Photo: U.S. State Department.  Hat tip to Paul Barford and Peter Tompa for publicizing news of the FOIA decision. 

CONTACT: www.culturalheritagelawyer.com

Blogroll

azplanningforwildlife.com m2tvchannel.com bapedaldaprovjambi.com kreis-dl.net news-1212.com landratsamt-doebeln.net landkreis-doebeln.net canadiangoldreserves.net chicagohearse.com tattooremovalessex.com braziltrade-uae.com 333asia.com calliemacdesigns.com gemdoc.net simplefoodjuiceplus.com postabortionstresssyndrome.com descendingpath.com casadopinhole.net myspeechandlanguage.net sezambook.com rerecognition.info bebetsy.info carsoncitybraces.info summitcardiology.info sanfojiangsi.info trailheadgeararchery.info immigrationconnect.info nhhomeless.info tundradialogues.info ibexretail.com kreis-dl.com agiles-eam.com bestbcgolfcourse.com niittyneito.com yenikapimevlevihanesi.com hnr100.com eplogin.com richard-wagner-festival.com landratsamt-doebeln.com lra-doebeln.com terrecatalane.com thesmarterhybrids.com Political Science,Politics And Religion,Lamp For Home,Internet Media Services,Book Holidays Online,Electric Car Engine,House And Garden Magazine,Fashion Art Music,Allobits Business Finance Solutions,Amelia Island Living,Sectb Business management,Biblepl College And University,Synergysigns Home Furniture,Marketing and Promotion,Meristem Nature,Success Business,Food and Nutrition,New Health Foundation,Real Estate Designer,Chase Auto Loans,Economic and Business Review,Business Insurance Quotes,Gambling Commission,Game and Media Technology,TakingBusinessOpportunities,MedicalCenter,FashionModelling,FashionCelebrity,BusinessMarketing,ComputersandTechnology,SubjectAboutTechnology,Children'sEducation,EconomicsBusinessandFinance,Entertainment,BusinessAccounting,HealthTechnology,AirHealth,BodyHealth,HousingDesigners,ArtsandEntertainment,GamingTournament,ForexEducation,HomeDesignIdea,BeautyClinic Professional Translation Streaming Wizard Alcoholism and Drug Medical Laboratory Commerce Business Educational Kids Play Space Education Home Repair Volunteer Fashion Talent Health and Safety Executive Play Web Games Travel and Surfing Property and Estate Agents Technology Group Solutions Student Service Center Construction Industry Media Center Computer Teny Fashion Home Remodeling Services Inspector Network Car Rentals Leader Dogs Rise Health Systems Business Strategy Consultant
Personal Life Coaching
Company Business Coaching
Entertainment News
Physics and Astronomy
Science and Technology
Cheap Vacation Packages
World Business Academy
Planets Project
Travel and Leisure
Prevent Drug Abuse
Education Certified
Play Kids Games
Legal Defense Fund
Real Estate Strategies
Isolation Globale
Insurance Coverage Law
Rock Hotel and Resorts
Medical Insurance
Healthy Mind and Body
Marjahaan Autokatsastus
Free Sports Authority
Auto Insurance Coverage
Global Technics
Advitium Manufacturing
Professional Core Education
Special Finance Services
Bergen County Contractors
Great Children's Art
Health Supply Company
Social Media Power
Texas House Restaurant
Carbon Consultant
Carbon Expert
Low Carbon
Reset Carbon
Healthcare Commissioning
Virtual Job Tryouts
Ethos Academy (Education)
Intrinsic Schools
Attorney General
Technology Software
Business Plans
Digital Media
High School Resources
Adult Resources
Gamblers Anonymous
Ecuador Real Estate
Software Development
Festival Fashion
Drugs And Alcohol
Food Network Recipes
Journal Human Resources
Games and Technology
Technology Development
Web Resources Express
Payday Loans Bad Credit
Art and Craft
Business and Finance News
Ecological Sciences
Education Resources
Web Design
Music Education
World Resources Institute
Business Health Guide