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The Lawletter Blog

EMPLOYMENT: Arbitration—“Gateway Issues”

Posted by Nadine Roddy on Mon, Feb 4, 2019 @ 12:02 PM

The Lawletter Vol 44 No 2

Nadine Roddy—Senior Attorney, National Legal Research Group

            When an arbitration agreement is in effect, who decides whether an employment dispute—or any dispute for that matter—is arbitrable? The Supreme Court recently released a pair of decisions that address this issue under the Federal Arbitration Act (FAA), Henry Schein, Inc. v. Archer & White Sales, Inc., ___ S. Ct. ___, 202 L. Ed. 2d 480, 2019 WL 122164 (Jan. 8, 2019), and New Prime, Inc. v. Oliveira, ___ S. Ct. ___, 2019 WL 189342 (Jan. 15, 2019).

            Each case involved an arbitration agreement that contained a clause delegating the issue of arbitrability of disputes to an arbitrator rather than a court. The Supreme Court had previously held that such clauses are enforceable under the FAA. Rent-A-Center W., Inc. v. Jackson, 561 U.S. 63 (2010) (applying 9 U.S.C. § 2). Some courts of appeals developed an exception to this general rule, holding that a court need not grant a motion to compel arbitration under § 4 of the FAA if the argument that the underlying claim is within the scope of the arbitration agreement is "wholly groundless." These courts reasoned that such an exception would enable courts to block frivolous attempts to transfer disputes from the court system to arbitration.

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Topics: Federal Arbitration Act, contracts, arbitration clause, exceptions to Act, Nadine Roddy, gateway issue of arbitrability

CRIMINAL LAW:  No Constitutional Right to Engage in Bestiality

Posted by Mark V. Rieber on Mon, Feb 4, 2019 @ 12:02 PM

The Lawletter Vol 44 No 2

Mark Rieber—Senior Attorney, National Legal Research Group

            In an unusual case, and one apparently of first impression, the Virginia Court of Appeals has very recently upheld the constitutionality of the state's statute prohibiting bestiality.  Va. Code Ann. § 18.2-361(A); Warren v. Commonwealth, No. 2086-17-3, 2019 WL 189386 (Va. Ct. App. Jan. 15, 2019).  The defendant in Warren was convicted of soliciting another person to "carnally know a brute animal or to submit to carnal knowledge with a brute animal" in violation of Va. Code Ann. §§ 18.2-361(A) and 18.2-29 (criminal solicitation). The evidence against the defendant included videos of the prohibited activities. The defendant argued that the bestiality statute was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), because the activities at issue amounted to nothing more than private sexual conduct of consenting adults. Read More

Topics: criminal law, bestiality, legitimate state interests, constitutionality, Mark V. Rieber

CIVIL RIGHTS: Noncitizen Charged with Deportable Crime Is Entitled to Jury Trial

Posted by Jason Holder on Thu, Jan 31, 2019 @ 12:01 PM

The Lawletter Vol 44 No 2

Jason Holder—Senior Attorney, National Legal Research Group

            Following an incident in which he allegedly grabbed, choked, and struck the mother of his children, Saylor Suazo (“Suazo”) was charged with a variety of crimes including assault in the third degree, unlawful imprisonment in the second degree, criminal obstruction of breathing or blood circulation, endangering the welfare of a child, menacing, and harassment in the second degree.  People v. Suazo, No. 117, 2018 WL 6173962, at *1 (N.Y. Nov. 27, 2018).  Immediately before the start of trial, however, the prosecution moved to reduce the charges to attempt crimes.  Id.  This reduction meant that Suazo now faced a maximum sentence of three months in jail and, more importantly, that the offenses could be tried without a jury pursuant to Criminal Procedure Law § 340.40(2).  Id. 

            Suazo challenged the reduction and continued to assert his right to a jury trial, arguing that he was a noncitizen charged with deportable offenses rendering any conviction sufficiently serious to mandate a jury trial under the Sixth Amendment.  Id.  In response, the prosecution argued that any deportation was merely a "collateral consequence" and not a criminal penalty for the purposes of the Sixth Amendment.  Id. 

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Topics: civil rights, noncitizen, deportable crime, entitlement to jury trial, Sixth Amendment, Jason Holder

ATTORNEY AND CLIENT: Maintaining Professional Competence in the Digital Age

Posted by Amy Gore on Thu, Jan 31, 2019 @ 11:01 AM

The Lawletter Vol 44 No 2

Amy Gore—Senior Attorney, National Legal Research Group

            The Model Rules of Professional Conduct provide that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  Model Rules of Prof’l Conduct R. 1.1 cmt. 8.  Maintaining computer security is both a business responsibility and an ethical obligation for all lawyers.  Additionally, attorneys are charged with the ethical obligation to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.  Id. R. 1.6(c).  The need for attorneys to maintain current security protocols for the technology used in their offices has never been more pressing. 

            Computer “hackers” have infiltrated thousands of computer systems from private individuals to government entities, and litigation firms have increasingly been targeted.  A recent article highlights the story of several firms involved in litigation arising out of the 9/11 attack, including the ransoming of sensitive and confidential information that had been on the firms' systems.  Dan Packel, “Dark Overlord” Hack Shows Mounting Cyber Risks for Law Firms, The American Lawyer (Jan. 07, 2019).  In another case, hackers destroyed files of global law firm DLA Piper in 2017, requiring expensive and time-consuming reconstruction of systems and documents. 

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Topics: computer security, unauthorized disclosure, security protocols, ethical obligations of attorneys, safeguards

FAMILY LAW: Admissibility of GPS Surveillance Data in Civil Cases

Posted by Anne B. Hemenway on Fri, Jan 18, 2019 @ 09:01 AM

The Lawletter Vol 44 No 1


Anne Hemenway—Senior Attorney, National Legal Research Group


          When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible.  Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data.

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Topics: family law, GPS, no consent, admissibility of data, Anne B. Hemenway, exclusionary rule, invasion of privacy

PERSONAL INJURY: Liability for Employer's Failure to Obtain Workers’ Compensation Insurance

Posted by Matthew T. McDavitt on Fri, Jan 18, 2019 @ 09:01 AM

The Lawletter Vol 44 No 1


Matthew McDavitt—Senior Attorney, National Legal Research Group


            Sometimes, through ignorance or neglect, employers subject to the state statutory workers' compensation mandates fail to obtain or maintain the requisite insurance. Where employers subject to the system's mandates are found on the date of an employee's workplace accident (or other compensable event) to lack such insurance (either as a self-insurer or through a third-party insurer), such noncompliance with the workers' compensation insurance mandate has serious consequences for the employer.


First, a noncompliant employer loses a primary benefit of the workers' compensation system's exclusive remedy provision.  This provision bars injured workers from suing their employers in tort in exchange for statutorily defined wage replacement and medical benefits, thereby significantly limiting the potential legal exposure of the employer regarding such accidents.

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Topics: workers' compensation, state's employer mandates, noncompliance consequences, insurance requisite, Matthew T. McDavitt

CIVIL PROCEDURE: Facebook's Alleged Intrusion on Users' Privacy Confers Standing to Maintain Class

Posted by Paul A. Ferrer on Fri, Jan 18, 2019 @ 09:01 AM

The Lawletter Vol 44 No 1


Paul Ferrer—Senior Attorney, National Legal Research Group


         In a putative class action against Facebook, a federal district court in California has determined that "[i]ntrusion on privacy alone can be a concrete injury" for purposes of establishing standing to bring suit in federal court. Patel v. Facebook Inc., 290 F. Supp. 3d 948, 954 (N.D. Cal. 2018). In reaching that conclusion, the court applied the concreteness analysis laid out by Justice Alito in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).


         The judicial power of the United States resides in the federal courts and extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2. Standing to sue is a doctrine "rooted in the traditional understanding of a case or controversy," and limits the category of litigants who can maintain an action in federal court. Spokeo, 136 S. Ct. at 1547. To have standing, a plaintiff must plead and prove three elements: (1) an injury in fact that is (2) fairly traceable to the defendant's conduct and (3) likely to be redressed by a judicial decision in the plaintiff's favor.

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Topics: Facebook, invasion of privacy, concrete injury, putative class action, Paul A. Ferrer

BUSINESS LAW: Is Predictive Dialer an Autodialer Subject to the Telephone Consumer Protection Act?

Posted by Alistair D. Edwards on Fri, Jan 18, 2019 @ 09:01 AM

The Lawletter Vol 44 No 1


Alistair Edwards—Senior Attorney, National Legal Research Group


            The Telephone Consumer Protection Act (“TCPA” or the “Act”) makes it unlawful “to make any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).


            In Maes v. Charter Communication, No. 18-cv-124-jdp, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), the United States District Court for the Western District of Wisconsin recently considered whether a predictive dialer constituted an autodialer (an automatic dialing system) under the TCPA. In that case, the telemarketer called the plaintiff using a predictive dialer, a piece of equipment used in call centers to automatically dial phone numbers and connect representatives to customers that answer the phone.

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Topics: Telephone Consumer Protection Act, autodialer, cellular service, telemarketing, Alistair D. Edwards

EMPLOYMENT: Disability Discrimination in Employment—Health-Care Employer

Posted by John M. Stone on Fri, Jan 18, 2019 @ 09:01 AM

The Lawletter Vol 44 No 1


John Stone—Senior Attorney, National Legal Research Group


            The Americans with Disabilities Act ("ADA") prohibits covered employers from discriminating against qualified individuals on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). This prohibition against discrimination can apply to certain medical examinations and inquiries.


            However, the ADA does not forbid all medical examinations and inquiries. Their permissibility and scope varies depending on the stage of employment. Employers are generally prohibited from making any disability-related inquiries or requiring medical examinations of applicants before offering employment.

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Topics: ADA, health-care employer, employment discrimination, screening and vaccination, John M Stone

TORTS: Therapist's Liability for Eliciting False Memories of Sexual Abuse

Posted by Alfred C. Shackelford III on Thu, Dec 27, 2018 @ 10:12 AM

The Lawletter Vol 43 No 8

Fred Shackelford—Senior Attorney, National Legal Research Group

            When individuals are accused of sexual misconduct on the basis of "recovered memories," courts must sometimes decide whether a therapist can be held liable for eliciting such memories from patients. In Mower v. Baird, 2018 UT 29, 422 P.3d 837 (as corrected July 11, 2018), the plaintiff's ex-wife took the couple's child to a therapist, who suspected child abuse. The therapist contacted authorities and was told to gather more information. Contrary to established guidelines, the therapist continued therapy instead of asking a forensic interviewer to talk to the child. Subsequently, there was a "supported" finding of sexual abuse against the plaintiff.

            The plaintiff sued the therapist for medical malpractice and negligence, but the trial court found that the therapist owed no duty to him. The Mower court examined five factors in deciding whether a duty exists:

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Topics: torts, therapist, eliciting recovered memories, inappropriate treatment techniques, improper application of treament, Alfred C. Shackelford III

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