On February 24, Michael Myers, a former Dallas Cowboys lineman, filed a personal-injury suit in the U.S. District Court for the Southern District of Texas alleging that the NFL did not do enough to warn him of the permanent damage that he now suffers from the “devastating head injuries” from playing football.  He alleges that he now suffers from “migraine headaches, sleeping problems, dizziness, light-headedness, loss of short-term memory [and] other memory related problems.”

The complaint includes counts of negligence, fraud, fraudulent concealment, negligent misrepresentation, and conspiracy. John Council of  Texas Lawyer’s “Tex Parte Blog” described the background of the complaint:

[I]t also goes into deep history about the NFL, what happens to a human whose head is hit violently over and over again, and even Congressional testimony by doctors about NFL injuries. That’s because you don’t take on the league that hosts America’s most popular sport and do it lightly, says Anthony Buzbee …, of Houston’s The Buzbee Law Firm, who represents Myers.

“There are a lot of people just like me who are fanatic football fans. The point is: This has substance,” says Buzbee of the complaint. “This is not a player who is penniless and is not playing anymore and wants money.”

Mr. Buzbee says he will soon file similar suits on behalf of 50 other NFL players.

Taking on the NFL is serious business.  To minimize the headaches of litigation, we hope attorneys on both sides are armed with O’Connor’s Texas Causes of Action and O’Connor’s Federal Rules * Civil Trials.

Last month, Clare Feikert-Ahalt of In Custodia Legis (the blog of the Law Librarians of Congress) wrote an entertaining and informative post about the laws that Chris Columbus had to navigate while filming the first two Harry Potter films.  While her post may not have been about laws passed by the Ministry of Magic, she taught us so much more about the United Kingdom’s child-labor laws than we knew before—which admittedly wasn’t much. Our favorite detail of the laws was that a matron must be appointed to care for the child when the child is not with a parent or teacher.

Despite the convoluted laws and complicated procedure for obtaining child-labor licenses, Feikert-Ahalt notes that over 45,000 licenses are reportedly issued each year.

The child-labor provisions in the U.S. are codified at 29 U.S.C. §212 and the corresponding regulations. Section 213(c) lists the exceptions to §212. For the text of the statute, related case annotations, and a chart describing FLSA exemptions, check out O’Connor’s Federal Employment Codes Plus. The 2012-13 edition will be available soon; preorder your copy at the Jones McClure webstore or by calling 1-800-OCONNOR (626-6667) today.

Last month, the Supreme Court heard oral arguments in a First Amendment case about lying.  Nina Totenberg from NPR lays out the facts of the case:

The U.S. Supreme Court hears arguments Wednesday [February 22] in a case about lies, big and small, and when those lies can be a crime under the Constitution’s guarantee of free speech. At issue is the constitutionality of a law making it a crime to lie about being the recipient of military medals.

At the center of the case is Xavier Alvarez, a man nobody disputes is a liar. He lied about being an ex-professional hockey player. He lied about being an engineer. He lied about rescuing the American ambassador during the Iranian hostage crisis. He even lied about being a retired Marine.

But none of those lies is a crime. Only one of his whoppers violated the law — the one he told about receiving the Medal of Honor.

“Back in 1987, I was awarded the Congressional Medal of Honor,” he said in introducing himself at a municipal water board meeting in California, about seven months after he was elected to a neighboring board.

In fact, Alvarez had never won any military medals. He had not even served in the military. Under federal law, making false claims about winning military medals is a crime punishable by up to a year in prison.

The federal law referred to is the Stolen Valor Act (P.L. 109-437), passed by Congress and signed by the President in 2006.  At issue here is the constitutionality of that law—whether the government can punish false speech that doesn’t fit into one of the established exceptions to the First Amendment—defamatory speech, obscene speech, or speech that defrauds.

Proponents of the Act say that false statements of fact have never been constitutionally protected.  Striking down this law could undermine other laws, such as those that make it a crime to impersonate a police officer or that ban the deceptive use of a name in fundraising.

Opponents of the Act argue that it goes too far—it could allow for the prosecution of a person who lies about receiving a military medal in the privacy of his own home.  Could this law lead down a slippery slope?  Totenberg writes:  “Could Congress make it a crime to make false statements denying the existence of the Holocaust? Could Congress, concerned about diverting the attention of a president, make it a crime to knowingly make false statements representing that the president is not a natural-born American citizen? And what about knowing lies about military medals that are satire?”

This case is important from a First Amendment perspective, but for Alvarez?  He’s currently in jail because he claimed his ex-wife on his health insurance, a lie that constitutes fraud.

On Tuesday, the U.S. Supreme Court ruled in Coleman v. Court of Appeals, ___ U.S. ___ (2012) (No. 10-1016; 3-20-12), that state employees are not allowed to recover damages from the State for alleged violations of 29 U.S.C. §2612(a)(1)(D), the FMLA’s “self-care” provision. Sovereign immunity protects States from suits for money damages in these cases, the Court held, because the self-care provision does not validly abrogate a State’s immunity from suit.

In Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court ruled that Congress validly abrogated sovereign immunity for suits under the FMLA’s “family-care” provision (29 U.S.C. §2612(a)(1)(C)). Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees of section 1, including equal protection of the laws. The Coleman Court distinguished its decision from Hibbs by noting that “Congress relied upon evidence of a well-documented pattern of sex-based discrimination in family-leave policies” in enacting the family-care provision. The same rationale does not apply to the self-care provision, which is stated in gender-neutral terms:

Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave, it is apparent that the congressional purpose in enacting the self-care provision is unrelated to these supposed wrongs. The legislative history of the self-care provision reveals a concern for the economic burdens on the employee and the employee’s family resulting from illness-related job loss and a concern for discrimination on the basis of illness, not sex. In the findings pertinent to the self-care provision, the statute makes no reference to any distinction on the basis of sex. By contrast, with regard to family care Congress invoked concerns related to gender.

Thus, the Court held, Congress exceeded its authority in subjecting States to private lawsuits under the self-care provision. Justice Kennedy authored a plurality opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. Justice Scalia concurred in the judgment, giving the holding in the case a 5-4 majority. Justice Ginsburg dissented; Justice Breyer joined the dissent, and Justices Kagan and Sotomayor joined all except footnote 1. Justice Ginsburg read the dissent from the bench, as noted by Adam Liptak of the New York Times.

The Coleman annotation will be included in the 2012-13 edition of O’Connor’s Federal Employment Codes Plus, available soon.

Disney’s The Little Mermaid, which came out in 1989 to glowing reviews, singlehandedly rejuvenated the company’s animation division and kicked off a long streak of successful features like Beauty and the Beast, Aladdin, and The Lion King. It’s a delightful yarn about merpeople, singing crabs, and teenage rebellion. Oh, and it concludes with Prince Eric driving a ship’s splintered bow through the giant villainess’s guts, her howls of mortal agony, and a great torrent of steaming viscera blackening the waters like a capsized tanker. Family fun at its best.

Most of us have heard the (not particularly good) joke that asks what you call all the lawyers in the world at the bottom of the ocean (the answer: a good start). But what would happen if you put a lawyer¹ at the bottom of the ocean in The Little Mermaid? The answer: all that messy carnage doesn’t happen!

First of all, our lawyer would have strongly advised Ariel not to sign the contract² with the Sea Witch. But Ariel is a headstrong client, so let’s assume she ignores this sage advice. Ariel is turned into a person, and for three days she tries desperately to get Prince Eric to kiss her. She ultimately fails, thanks to some hocus pocus by the Sea Witch, and the Sea Witch comes to collect.

Okay, here’s where the lawyer would save the day. First, he would point out that the contract is completely unenforceable for at least two reasons: (1) it is illegal, as you cannot pass title in a person, and (2) Ariel is only 16, and as a minor she lacks the capacity to enter into binding contracts. Then for good measure he would inform the Sea Witch of Ariel’s colorable claim for tortious interference and gently suggest that she drop this contract business and be on her way. The Sea Witch slinks off disappointed (but alive), the young lovers tie the knot,³ and our lawyer lands a cushy in-house gig at King Triton’s palace.

Yes, there are inequities in our legal system, and yes, sometimes attorneys abuse their position and behave unethically. But for all the grief that lawyers get, they provide a good and essential service. At its core, the practice of law is all about the prevention and resolution of human conflict. Without law, life would be brutish and ugly and possibly short. Just ask the Sea Witch.



“Oh, if only I had hired a vigorous legal advocate, I…AGHHHHHH!”

For a (slightly less colorful) discussion of contract actions in Texas, including breach-of-contract actions and actions based on tortious interference, check out O’Connor’s Texas Causes of Action.

————————

¹ Assume for this exercise that our lawyer is either a world-class diver or an evolutionary anomaly.

² Synopsis of terms: Ariel gives the Sea Witch her voice in exchange for three days of humanhood.  If Ariel is able to get Prince Eric to kiss her with “the kiss of true love” within three days, she can stay human forever.  If Ariel fails, she turns back into a mermaid and becomes Sea Witch property.

³ But wait, Ariel is only 16!  Come on, Disney!

Last week, the U.S. Government Accountability Office (GAO) issued a press release announcing a new mobile application that will allow users to access GAO reports, testimonies, videos, and podcasts.

From the press release:

“GAO is committed to ensuring that our work is as accessible as possible, both to Congress and to the public,” said Gene L. Dodaro, Comptroller General of the United States and head of GAO. “On Capitol Hill and beyond, our users are increasingly accessing our work from their mobile devices. The GAO app will help them get the information they need when and where they need it.”

The app is currently available for Apple devices, and the GAO hopes to launch an Android version later this year.

In January, the Library of Congress and the Government Printing Office (GPO) introduced a free iPad app for the Congressional Record. From the press release:

The Congressional Record delivered through the app is a PDF document that can be shared via email and be able to be browsed by date and searchable by keyword within an individual document or section; documents can also be saved to the iPad. Content includes Congressional Record issues dating from January 4, 1995 through the present.

Thanks to Chris Dykes and Emily Lawson at the Nota Bene University of Houston O’Quinn Law Library blog for bringing these new apps to our attention.

The Penn Intellectual Property Group at the University of Pennsylvania Law School is now going head-to-head with French luxury-goods maker Louis Vuitton.  The group created a poster promoting a symposium on fashion law that incorporated a creative reinterpretation of the signature Louis Vuitton pattern—using a TM monogram instead of the ubiquitous LV—designed to spark conversation about intellectual-property rights in fashion.

As noted by blogger Steve Schultze at Freedom to Tinker, Louis Vuitton sent the university a cease-and-desist letter, arguing in it that the Penn Intellectual Property Group had “misappropriated and modified” the pattern.  The school not only argued that the takeoff on the LV pattern was a fair use and parody, but actually invited Louis Vuitton’s in-house counsel  to attend the symposium so they could share their views on intellectual-property issues in fashion.  No word yet on whether Louis Vuitton’s representatives will attend.  But if any representatives travel from their Paris headquarters to Philadelphia, they’ll be sure to bring some nice luggage.

If you aren’t attending the symposium on fashion law, you can find information about trademark issues in fashion in O’Connor’s Federal Intellectual Property Codes Plus, where we include an annotation from a 2007 case involving Louis Vuitton—Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 260 (4th Cir.2007).  

We’ve blogged about the importance of properly classifying employees and independent contractors to avoid FLSA problems, and InsideCounsel offered sound advice about how to identify whether someone is working as employee or as an independent contractor.

Salvador Simao’s article takes the issue a bit further, identifying some particularly high-risk areas:

The following are areas in which there are reoccurring misclassification issues:

• Temporary Employment Agencies: Often companies will retain the services of temporary employment agencies to avoid misclassification issues. However, a common technique used by the DOL is to target a temp agency and investigate its clients. If an agency is improperly paying its employees then the DOL will pursue the matter against its clients as joint employers.

• Former Employee Consultants: This violation often occurs when companies try to assist a former employee. The most common example is the retiree or former employee who is hired as a consultant to perform the same work he did while employed, but on a part-time basis.

• Seconded Consultants: Most of the time, these consultants are skilled professionals who come from large companies. Often these consultants are brought in for a specific project but are so well-liked that they are integrated into the workforce. Typically, such consultants work only for one company and are present during business hours. These consultants, even if they are skilled professionals, such as nurses, lawyers, accountants and industrial psychologists, are probably misclassified contractors.

• Sales Representatives: Sales representatives in various industries are considered and paid as independent contractors. These employees tend to have flexible schedules and little supervision; however, these factors alone are not sufficient to overcome a misclassification claim.

• Installers and Delivery/Couriers: Generally, these employees do not report to a set location. Rather, they receive assignments at home and report to various locations to perform work. Examples include cable installers, HVAC professionals, fire alarms installers, computer repair, route drivers, distributors, marketing representatives and product demonstrators.

O’Connor’s Federal Employment Codes Plus includes the text of the FLSA, related case annotations, and charts detailing the FLSA exemptions. Look for the 2012-13 edition next month.

According to an article posted by Debra Cassens Weiss on the ABA Journal blog, Law News Now, attorneys in New York who want to advertise discounted legal services through Groupon or other similar websites can do so without violating state ethical rules, as long as they follow certain guidelines.

The New York State Bar Association Committee on Professional Ethics issued an ethics opinion stating that such advertising is not improper if:

1) the money paid to the website is a reasonable payment for that type of advertising;

2) the advertisement is not false, deceptive, or misleading and complies with the rules governing attorney advertising and solicitation;

3) the advertisement clearly discloses when the attorney-client relationship will be created; and

4) the attorney gives the coupon buyer a full refund if the offered service cannot be performed.

Although attorneys in New York can advertise discounted legal services through Groupon, this rule may not apply in every state. Be sure to check with your State Bar before you advertise through Groupon or other similar websites.

Happy Texas Independence (From Proper Pronunciation) Day! Keep in mind that Texas is a state where “Buda” is pronounced “BYOO-duh,” “Gruene” is pronounced “GREEN,” “Seguin” is pronounced “suh-GEEN,” and “Manor” is pronounced “MAY-nur.”  It shouldn’t be surprising, then, that a French legal term may be subject to some creative pronunciation around these here parts.

As John Council reports in Texas Lawyer’s Tex Parte blog, an informal poll of over 100 attorneys from around the country (including quite a few from Texas) conducted by Lyn Robbins indicated that “voir dire” has at least six common (mis)pronunciations spread across multiple regions of the United States.  The most common pronunciations seem to be “vorr dyer,” “vwuah deer,” and “vwar deer.”  On the scholarly side, Black’s Law Dictionary (9th ed. 2009) lists three common pronunciations, including “vwahr deer,” “vor deer,” and “vor dIr.”

Those of us who studied French have a soft spot for “vwahr deer.”  Those of us who learned the law in Texas were probably taught “vorr DY-ur.”  If you studied French and learned the law in Texas, you’ve probably been wrestling with this issue in your head for many years.  For you, we suggest going with the alternative pronunciation:  “JUR-ee suh-LEK-shun.”

However you say it, O’Connor’s has you covered.  Check out our coverage of voir dire in O’Connor’s Texas Rules * Civil Trials (2012), “Voir Dire Examination,” ch. 8-A, §4, p. 661 and O’Connor’s Federal Rules * Civil Trials (2012), “Voir Dire,” ch. 8-A, §5, p. 671.