Well that's a little dramatic, but after staying up late to watch my Spurs complete their second sweep in a row, the subtle part of my brain is not working as well as it should be.
Although said in jest, the comment does have some truth (except for the smoky rooms), as the American Law Institute is meeting in D.C. this week and will be taking up Chapters 3 and 7 of the Restatement of Employment Law. This according to Paul Secunda, one of the editors at the Workplace Prof Blog, who will be in attendance. American Law Institute - Restatement of Employment Law.
According to Professor Secunda, Chapter 3 on compensation and benefits is authored by Sam Estreicher of NYU, and Chapter 7 which deals with privacy and autonomy interests in the workplace is authored by Matt Bodie, from St. Louis University.
Although it will be known as the Restatement of Employment Law, Third, it is actually the first. The 3rd moniker is because this is the third general round of Restatements done by the ALI. The first round was from 1923 to 1944. The 2nd round started in 1952, and the 3rd round started in 1987, and included Employment Law for the first time.
Because it takes considerable time to reach the consensus of the various reporters and advisers, and then go through the Council itself, it may well be some time before it is finalized. A list of the project participants can be found here.
Even when final, its impact will come only as courts adopt it.
But if you think it could not have impact on your world, think of the four theories of privacy rights (only three of which have been accepted by Texas courts) and intentional infliction of emotional distress. Although the latter has been substantially restricted in Texas, both concepts have been important in my career, and both arose gained prominence (if not their existence) from the Restatement of Torts.
As I have always understood the Restatements, they are meant to be a combination of what the law is, plus some looking forward to what it should be, so whatever comes out could very well be an important force, although that force is likely to be felt long after my active days of practice are ended.
If you want a preview of where it's headed, some of the drafts are available from the ALI's website under the Restatements of the Law - Employment Law section.
Prosecutors Reveal New Details of Theft Claim in St. Louis Art Museum Ka Nefer Nefer Mask Forfeiture
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| St. Louis Gateway Arch Source: Sue Ford, National Park Service |
The museum filed an objection earlier this week to the government's motion requesting the judge to reconsider the dismissal of the case. Today's pleading by the government responds to the museum's objection.
The government says that it should be permitted to amend its original complaint if the court continues to uphold its dismissal order. The prosecution goes on to reveal more specific allegations that it would articulate in a revised complaint:
"To the extent ... that a fuller explanation of the new allegations to be incorporated into an amended complaint would aid the Court in assessing the United States’ request for time to seek leave to amend, the United States is glad to elaborate. If deemed necessary by the Court, the United States' proposed amended complaint would:
• expressly allege that the Mask was stolen from box number fifty-four at Saqqara between 1966 and 1973;
• recite the provisions of the controlling Egyptian cultural patrimony law, Law No. 215, which provides that ancient artifacts excavated after 1951 are the national property of the Republic of Egypt, and establish the absence of any facts that would authorize the Museum’s ownership of the Mask under Egyptian law;
• summarize the relevant Egyptian export laws, which required application to be made to the Egyptian government before the Mask could be exported from Egypt, and allege the absence of any record of lawful exportation;
• detail the sale agreement between the Art Museum and the sellers for the purchase of the Mask, including the obligation of the sellers to provide copies of applicable export and import licenses, and allege the breach of those obligations;
• advance allegations regarding the sellers’ knowledge of the falsity of the Mask’s supposed provenance, as well as information regarding the criminal history of the sellers, to suggest the illicit nature of the sale;
• describe the Museum’s merely pro forma “investigation” into the Mask’s provenance to support the inference that it knew or was willfully blind to the fact that the Mask was stolen property both before and after its importation; and
• offer citations to numerous other provisions of law, including but not limited to Egyptian [patrimony] law No. 215 and 18 U.S.C. §§ 2314 and 2315 [the National Stolen Property Act], to bolster the conclusion that the Mask was imported into the United States 'contrary to law.'"
Federal attorneys further argue that "that the Museum apparently now concedes, for the first time on this Motion, that probable cause, not a preponderance of the evidence, is the ultimate trial burden that the United States will have to bear. The Museum also appears to agree that the United States should not have to allege 'the date, location, or motive behind the stealing, let alone the identity of the thief' in order to meet that burden, so long as it can establish that the Mask is 'stolen.' The Museum likewise appears to admit that an artifact is considered 'stolen' if its private ownership violates originating country’s patrimony laws."
Prosecutors add that SLAM does not correctly construe the law or the facts of the case. The U.S. Attorney's Office writes
"The Museum takes a detour, however, when it attempts to distinguish United States v. One Lucite Ball Containing Lunar Material on the ground that 'until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask.' That claim is not only outside the face of the complaint; it is also incorrect. As the United States set out in its Motion to Strike the Museum’s claim for lack of standing, Egyptian law has provided for national ownership of cultural artifacts like the Mask since at least 1951. While it will ultimately be for the Court to determine whose interpretation of Egyptian law is correct, any such determination is a matter of law that did not need to be pled, and in fact was not pled, on the face of the complaint. Thus, any such contention of the Museum’s is beyond this Court’s consideration on this motion."
[Blogger's sidebar: United States of America v. One Lucite Ball containing Lunar Material (one Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque is a federal district court case where authorities successfully seized a moon rock originally given by President Richard Nixon to Honduras. The rock was bought for $50,000 by claimant Alan Rosen, who purchased the moon rock from a retired Honduran military officer. The moon rock went missing from the Honduran presidential palace during the 1990's. The case resulted in the forfeiture of the lunar rock to the federal government in 2003 after government lawyers argued that the rock was stolen from Honduras and smuggled into the United States in violation of 19 U.S.C. 1595a(c)(1)(A), the same statute invoked in the Ka-Nefer-Nefer case.]
CONTACT: www.culturalheritagelawyer.com
5th Circuit Dashes Class Action in Arbitration Setting
The interaction between arbitration and class/collective actions which seems to be continually evolving, took another positive step for employers in the 5th Circuit with today's decision in Reed v. Florida Metro University, Inc. (5th Cir 5.18.12).
Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."
The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.
Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers. Judge Lee Yeakel in Austin denied the School's Motion to vacate award.
The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.
On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.
In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010). In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."
The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.
Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen, but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.
Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.
Reed sued claiming that his on line Bachelor's degree in paralegal studies would not be recognized either by law schools, nor a police department where he sought employment. Since that was contrary to his understanding as to what the school told him, he filed suit claiming a violation of the Texas Education Code. He sought $51,000 plus attorneys fees, but also sought relief on behalf of a class of everyone who "contracted to receive distance education from Everest University Online while residing in Texas."
The defendant successfully moved to compel arbitration, but the Court deferred the decision as to whether it could be brought as a class action to the arbitrator.
Noting it was a close question, the arbitrator held that the matter could proceed as a class action. Reed sought affirmation of that ruling and the School asked that it be vacated on the ground the arbitrator exceeded his powers. Judge Lee Yeakel in Austin denied the School's Motion to vacate award.
The 5th Circuit first addressed whether Judge Yeakel's decision to allow the arbitrator to decide whether or not the matter could proceed as a class action was correct and concluded that it was.
On the second issue, whether the arbitrator exceeded his powers in holding that it could proceed as a class action, the 5th Circuit found Judge Yeakel had erred. The Court reversed and held the arbitrator had exceeded his powers and since there was "only one possible outcome on the facts before us" held that the arbitration must proceed only between the two parties, rather than sending it back to the Arbitrator for reconsideration.
In doing so, the Court noted it was openly disagreeing with the 2nd Circuit's interpretation of the Supreme Court's decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (U.S. 2010). In Jock v. Sterling-Jewelers, Inc. (2nd Cir. 2011), cert. denied Mar. 19, 2012, the 2nd Circuit emphasized the deference to be given to the arbitrator, ultimately concluding that "whether the arbitrator was right or wrong in her analysis, she had the authority to make the decision, and the parties to the arbitration agreement or bound by it."
The 5th Circuit chose to respectfully disagree with the 2nd Circuit, holding instead that a court had to ensure that an arbitrator has a basis for his class arbitration determination, even while applying a deferential standard of review.
Emphasizing the Supreme Court's concerns about class action arbitration as expressed not only in Stolt-Nielsen, but its subsequent decision in AT&T Mobility v. Concepcion (U.S. 2011), the 5th Circuit chose to emphasize the Supreme Court's view that there must be a showing that the parties consented to class action determination.
Although the Supreme Court may have had enough of class actions and arbitration for awhile, the 5th Circuit has done its best to tee up another one for them. In the mean time, employers whose arbitration agreements are silent on class actions can breathe a sigh of relief, at least in three states.
Court Denies Sotheby's Request for Discovery Conference in Cambodian Statue Forfeiture Case
The case involves an effort by U.S. Attorney Preet Bharara to forfeit a Khmer statue known as the Duryodhana, claiming that the statue was stolen from a temple. Sotheby's placed the statue up for auction this spring. Now Sotheby's and Ruspoli di Poggio Suasa, who alleges that her husband purchased the statue in 1975 in the United Kingdom, are claimants in the forfeiture action.
In a case seemingly dominated by letters to the court--which are not easily accessible to the public as compared with the filing of formal motions--Sotheby's Inc. reportedly sent a letter to the court to ask for a discovery conference under Rule 37. That Federal Rule of Civil Procedure is generally used to compel discovery. The judge ruled: "Claimant Sotheby's Inc.'s letter request for a Rule 37.2 conference to seek the court's assistance with a discovery dispute regarding the production and translation of foreign law is DENIED."
The motions deadline in the case has been set for June 5, 2012.
CONTACT: www.culturalheritagelawyer.com
SLAM Opposes Government's Motion to Reopen Ka Nefer Nefer Mummy Mask Case
Attorneys for the St. Louis Art Museum (SLAM) oppose reopening the case of United States v. Mask of Ka-Nefer-Nefer. Last week U.S. Attorney Richard Callahan's office urged the eastern district federal court in Missouri to reconsider its March 31 dismissal of the forfeiture caselaunched to recover the mummy mask. SLAM's lawyers today filed their objection.
Mohammed Zakaria Goneim originally excavated the 19th Dynasty mask at Saqqara, Egypt during the 1950's. The museum bought it on the antiquities market in 1998. Federal authorities say that the mask is illegal contraband, while the museum maintains that it is the owner of legitimate property.
SLAM's pleading argues that the district court should not reconsider its decision to dismiss the case, and the court should not permit the government to file a newly amended complaint. The museum's attorneys suggest that the government's remedy is to appeal the dismissal of the case to the Eight Circuit Court of Appeals.
The museum's lawyers complain that federal prosecutors
"In the Eighth Circuit, where an order dismisses a complaint for failure to state a claim but remains silent on whether the order is final, whether it dismisses the entire action, and whether the plaintiff has the right to amend, the entire action is dismissed.... The March 31st Order of this Court is silent ...: it does not state whether it is final, whether it dismisses the entire action, or whether the Government may appeal. As such, the Order was plainly a dismissal of the entire action."
"In its Motion for Reconsideration, the Government does not allege that it has discovered new evidence since the Court’s dismissal of this action that would warrant alteration or amendment of this Court’s Order. Instead, the Government offers evidence it 'could' now present evidence that could have been presented before the dismissal of this case. The Government had ample time between its decision to initiate this lawsuit and the dismissal of this action to provide evidence necessary to bolster its case, but has now missed its opportunity to do so."
"In its Motion for Reconsideration, the Government did not allege any exceptional circumstances that warrant a reexamination of the Court’s final judgment in this case. The Government has had a fair and full opportunity to offer evidence in opposition to Claimant Museum’s Motion to Dismiss, either in the Government’s responsive pleadings or by way of an amended complaint. In fact, the Government now brings to the Court the very same arguments it made in its responsive pleadings to the Claimant Museum’s Motion to Dismiss. Other channels of relief are available to the Government, as it has the option to seek redress from this Court’s Order by appeal to the Eighth Circuit. For all these reasons, this Court should deny the Government’s Motion for Reconsideration."
"The appropriate time for the Government to submit an amended Complaint was at some point during the nearly eleven months between the Claimant Museum’s Motion to Dismiss and the Court’s Order dismissing this action due to those very insufficiencies. Now, more than a year after the Museum first identified the deficiencies of the Verified Complaint, the Government offers only facts it 'could' include in an amended Complaint. But the Government stops there, without submitting a proposed amended Complaint, any documentary evidence of the additional facts the Government 'could' provide, or even a specific description in its Motion of what facts exist to cure the myriad defects identified by the Court."
"[O]ne of the marked deficiencies in this case [is that] until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask. It is well settled that such a clear declaration of ownership is necessary before exportation of an article constitutes theft. The Government’s objection about being required to 'establish the date, location, or motive behind the stealing, let alone the identity of the thief' overstates what the court expected. In its Order, the Court used the absence of those very basic 'factual and logical steps' to illustrate the utter lack of any facts connecting the Mask’s absence from Egypt with its 'theft.'"
"[T]he Government in this case offered no facts regarding: the date (or even the year) of the theft; the place from which the Mask was stolen; the identity of the thief or thieves (or even so much as speculation as to the identity); the location of the Mask at any time between its suspected location in 1966 and its purchase by the Museum in 1998; the year in which the Mask was exported from Egypt; that there was any law enforcement investigation conducted and, if so, what it revealed; the chain or suspected chain of custody; the identity of any witnesses to either the theft, recording, transport, storage or possession of the Mask in the intervening three decades; or the Egyptian patrimony law that purportedly established Egypt’s ownership of the Mask."
"Nevertheless, the Government requests leave to amend its Verified Complaint. It is interesting that after more than six years during which the Museum has repeatedly sought--first from the Egyptian government, then from the United States government--any evidence suggesting theft or even that the Museum’s possession of the Mask was less than legitimate, the Government now hints at but still does not specify what additional facts may satisfy its burden. The Government has clearly had sufficient time, even within the time frame of this case, to amend its Verified Complaint to cure the deficiencies."
CONTACT: www.culturalheritagelawyer.com
Mohammed Zakaria Goneim originally excavated the 19th Dynasty mask at Saqqara, Egypt during the 1950's. The museum bought it on the antiquities market in 1998. Federal authorities say that the mask is illegal contraband, while the museum maintains that it is the owner of legitimate property.
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| St. Louis Art Museum Source: Colin Faulkingham. Public Domain |
The museum's lawyers complain that federal prosecutors
- did not state any new evidence that should reopen the case,
- failed to explain any exceptional circumstances that would prompt a reexamination of the dismissal,
- did not submit an amended complaint when it had the chance, and
- failed to show that Egyptian law declared ownership over cultural property prior to 1983.
"In the Eighth Circuit, where an order dismisses a complaint for failure to state a claim but remains silent on whether the order is final, whether it dismisses the entire action, and whether the plaintiff has the right to amend, the entire action is dismissed.... The March 31st Order of this Court is silent ...: it does not state whether it is final, whether it dismisses the entire action, or whether the Government may appeal. As such, the Order was plainly a dismissal of the entire action."
"In its Motion for Reconsideration, the Government does not allege that it has discovered new evidence since the Court’s dismissal of this action that would warrant alteration or amendment of this Court’s Order. Instead, the Government offers evidence it 'could' now present evidence that could have been presented before the dismissal of this case. The Government had ample time between its decision to initiate this lawsuit and the dismissal of this action to provide evidence necessary to bolster its case, but has now missed its opportunity to do so."
"In its Motion for Reconsideration, the Government did not allege any exceptional circumstances that warrant a reexamination of the Court’s final judgment in this case. The Government has had a fair and full opportunity to offer evidence in opposition to Claimant Museum’s Motion to Dismiss, either in the Government’s responsive pleadings or by way of an amended complaint. In fact, the Government now brings to the Court the very same arguments it made in its responsive pleadings to the Claimant Museum’s Motion to Dismiss. Other channels of relief are available to the Government, as it has the option to seek redress from this Court’s Order by appeal to the Eighth Circuit. For all these reasons, this Court should deny the Government’s Motion for Reconsideration."
"The appropriate time for the Government to submit an amended Complaint was at some point during the nearly eleven months between the Claimant Museum’s Motion to Dismiss and the Court’s Order dismissing this action due to those very insufficiencies. Now, more than a year after the Museum first identified the deficiencies of the Verified Complaint, the Government offers only facts it 'could' include in an amended Complaint. But the Government stops there, without submitting a proposed amended Complaint, any documentary evidence of the additional facts the Government 'could' provide, or even a specific description in its Motion of what facts exist to cure the myriad defects identified by the Court."
"[O]ne of the marked deficiencies in this case [is that] until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask. It is well settled that such a clear declaration of ownership is necessary before exportation of an article constitutes theft. The Government’s objection about being required to 'establish the date, location, or motive behind the stealing, let alone the identity of the thief' overstates what the court expected. In its Order, the Court used the absence of those very basic 'factual and logical steps' to illustrate the utter lack of any facts connecting the Mask’s absence from Egypt with its 'theft.'"
"[T]he Government in this case offered no facts regarding: the date (or even the year) of the theft; the place from which the Mask was stolen; the identity of the thief or thieves (or even so much as speculation as to the identity); the location of the Mask at any time between its suspected location in 1966 and its purchase by the Museum in 1998; the year in which the Mask was exported from Egypt; that there was any law enforcement investigation conducted and, if so, what it revealed; the chain or suspected chain of custody; the identity of any witnesses to either the theft, recording, transport, storage or possession of the Mask in the intervening three decades; or the Egyptian patrimony law that purportedly established Egypt’s ownership of the Mask."
"Nevertheless, the Government requests leave to amend its Verified Complaint. It is interesting that after more than six years during which the Museum has repeatedly sought--first from the Egyptian government, then from the United States government--any evidence suggesting theft or even that the Museum’s possession of the Mask was less than legitimate, the Government now hints at but still does not specify what additional facts may satisfy its burden. The Government has clearly had sufficient time, even within the time frame of this case, to amend its Verified Complaint to cure the deficiencies."
CONTACT: www.culturalheritagelawyer.com
NLRB Enjoined, Again
Earlier it was the NLRB's posting regulations, see post here, which were enjoined. Today it's the regulations regarding the conduct of elections (sometimes referred to as the ambush election rule) which was the subject matter of yet another injunction.
District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.
In Chamber of Commerce et al v. NLRB (D.D.C. 5/14/12) the Court noted that
And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.
District Judge James E. Boasberg of the District of Columbia, has enjoined the rule because of a lack of a quorum. This one does not have anything to do with the last recess appointments to the Board which are under challenge, but to the fact that Member Brian Hayes, did not participate in voting on the passage of the final rule.
In Chamber of Commerce et al v. NLRB (D.D.C. 5/14/12) the Court noted that
This was after he had cited an even better known authority:At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle.
According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that.Undoubtedly this is not the last chapter in the litigation or the rule for that matter. Even if the Board is able to overcome the lack of quorum on its initial rule making, there will still be the substantive challenges which were not addressed.
And, if the Board should choose to re-enact the legislation, the new vote will include members whose recess appointment is being challenged and that of course will result in another hurdle, even before the challenges on the merits of the rule are addressed.
For those ready to decry this as a partisan gesture, Judge Boasberg was nominated by President Obama and at least according to Wikipedia, was recommended by Delegate Eleanor Holmes Norton, the non-voting member of the House of Representatives from the District of Columbia and the former Chair of the EEOC.
Gordon Ivory Smuggling Prosecution on Trial Track
The case of United States v. Victor Gordon appears on track for trial. The US District Court for the Eastern District of New York has issued a schedule that slates the trial for December 3, 2012. Motions are due in July.
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| U.S. Attorney Loretta Lynch |
A federal grand jury indicted Philadelphia art dealer Victor Gordon last summer for allegedly importing and selling illegal African elephant ivory. U.S. Attorney Loretta Lynch's office is prosecuting the case. Her office is also handling the alleged antiquities smuggling case of United States v. Mousa Khouli et al.
An indicted defendant is presumed innocent unless proven guilty beyond a reasonable doubt.
CONTACT: www.culturalheritagelawyer.com
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