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The Lawletter Blog

INSURANCE: Automatic Revocation of Beneficiary upon Divorce

Posted by Amy Gore on Mon, Nov 12, 2018 @ 10:11 AM

The Lawletter Vol 43 No 6

Amy Gore—Senior Attorney, National Legal Research Group

            The area of presumed intent in the designation of life insurance policies has long been a source of dispute and litigation. When a state legislature enacts statutes that address an automatic revocation of insurance beneficiary status under particular circumstances, additional litigation is likely to result. Such was the case in Sveen v. Melin, 138 S. Ct. 1815, 1817 (2018). There, a couple were married in 1997 and the following year the named insured designated his wife as the primary beneficiary under his life insurance policy, and his two children from a prior marriage as contingent beneficiaries. The couple divorced in 2007, and the divorce decree never addressed the disposition of the life insurance policy or the rights of the contingent beneficiaries. Upon the named insured's death in 2011, both the wife and the two children made competing claims for the entire proceeds.

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Topics: insurance policy, designation of beneficiary, revocation after divorce, right to contract, legislative presumption, presumed intent

ESTATES: Succession to the Estate of Charles Manson

Posted by James P. Witt on Mon, Nov 12, 2018 @ 10:11 AM

The Lawletter Vol 43 No 6

Jim Witt—Senior Attorney, National Legal Research Group

            In 1971, Charles Manson (“Manson”), the leader of the Manson Family cult, was convicted of first-degree murder and conspiracy to commit murder for the deaths of nine people in July and August 1969. He was originally sentenced to death, but his sentence was commuted to life with the possibility of parole after the suspension of the death penalty under both California and federal law (California's adoption in 1978 of a death penalty that qualified under federal guidelines and the sentence of life imprisonment with no possibility of parole could not be applied retroactively to Manson). After 46 years of incarceration, Manson died on November 19, 2017 of acute cardiac arrest, respiratory failure, and colon cancer. What has ensued, however, is an estate proceeding that has been complicated by a number of factors:

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Topics: estates law, Charles Manson, domiciliary at death, rights to assets, conflicting wills

EMPLOYMENT: Breach of Fiduciary Duty and Unfair Competition

Posted by John Buckley on Wed, Oct 31, 2018 @ 12:10 PM

The Lawletter Vol 43 No 6

Nadine Roddy—Senior Attorney, National Legal Research Group
John BuckleyPresident, National Legal Research Group

            A federal district court sitting in Pennsylvania has held that an employer may proceed with its unfair competition suit asserting contract and tort claims against a former employee and the employee’s current employer. The employer adequately stated claims of common-law breach of fiduciary duty and unfair competition against the employee, and of aiding and abetting the same against the competitor. However, the employer’s claim of tortious interference with prospective contractual relationship against the employee would be dismissed because the complaint failed to allege a sufficient likelihood of a prospective contract. Neopart Transit, LLC v. CBM N.A., Inc., 314 F. Supp. 3d 628 (E.D. Pa. 2018).

            The plaintiff in the case, an American corporate distributor of parts for transit buses (“employer”), brought suit against a former employee and the employee’s current employer, a Canadian corporation (“competitor”), alleging that the employee stole confidential and proprietary information before resigning to go to work for the competitor, which then used the stolen information to compete with and harm the employer’s business in the United States.

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Topics: employment law, breach of fiduciary duty, unfair competition, tortious interference with contract, prospective contract

CRIMINAL LAW: Fourth Amendment Applies to Cell Site Location Information

Posted by Mark V. Rieber on Wed, Oct 31, 2018 @ 11:10 AM

The Lawletter Vol 43 No 6

Mark Rieber, Senior Attorney, National Legal Research Group

        Cell-site location information ("CSLI") is location information generated by cellular phone providers that indicates which cell tower a particular phone was communicating with when a communication was made. United States v. Curtis, No. 17-1833, 2018 WL 4042631, at *1 (7th Cir. Aug. 24, 2018). It is capable of pinpointing a phone's location within 50 meters. Id. Because cell phones are in constant communication with the nearest cell site—often affixed to a cell tower—they can collect CSLI as frequently as several times a minute. Id.

            In June 2018, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme Court extended Fourth Amendment protection to CSLI and held that the government conducts a "search" when it accesses historical cell phone records that provide a comprehensive chronicle of the user's past movements. The Court concluded that the government must generally obtain a warrant supported by probable cause before acquiring such records and rejected application of the "third-party doctrine," even though the records at issue were held by a wireless carrier.

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Topics: criminal law, Fourth Amendment, cell phones, location information, third-party doctrine rejected, warrant needed for probable cause

TAX: Sales and Use Tax: The End of the “Physical Presence” Test

Posted by D. Bradley Pettit on Tue, Oct 2, 2018 @ 11:10 AM

The Lawletter Vol 43 No 5

Brad Pettit, Senior Attorney, National Legal Research Group

            On January 12, 2018, in South Dakota v. Wayfair, Inc., 138 S. Ct. 735 (2018) (Mem.), the U.S. Supreme Court granted a petition for writ of certiorari with respect to the decision by the Supreme Court of South Dakota in State v. Wayfair Inc., 2017 SD 56, 901 N.W.2d 754, holding that a state statute that requires Internet sellers with no physical presence in the state to collect and remit sales tax violated the dormant Commerce Clause of the U.S. Constitution.

            In reaching this decision, the Supreme Court of South Dakota had relied on the prior rulings from the United States Supreme Court in National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), and Quill Corp. v. North Dakota, 504 U.S. 298 (1992), holding that the Commerce Clause of the federal Constitution prohibits a state from requiring an out-of-state seller to collect and remit sales or use tax with respect to mail-order and similar sales and shipments of merchandise to in-state purchasers unless the former has a "physical presence" in the taxing state.

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Topics: sales and use tax, Internet sellers, Commerce Clause, physical presence in taxing state

CONSTITUTIONAL LAW: Convicted Domestic Abuser's Gun Rights Go Up in Smoke

Posted by John M. Stone on Tue, Oct 2, 2018 @ 10:10 AM

The Lawletter Vol 43 No 5

John Stone—Senior Attorney, National Legal Research Group

            The Gun Control Act of 1968 bars firearm possession by certain groups of individuals, including convicted felons and those “adjudicated as a mental defective or who ha[ve] been committed to a mental institution.” 18 U.S.C. § 922(g)(1), (4). In 1996, Congress added a domestic violence misdemeanant restriction.  Id. § 922(g)(9). Recognizing  that  “[e]xisting felon-in-possession  laws . . . were not keeping firearms out of the hands of domestic abusers, because many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies,” Congress extended the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence to “close this dangerous loophole.” United States v. Hayes, 555 U.S. 415, 426 (2009) (internal quotation marks, citation, and bracket omitted).

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Topics: constitutional law, Gun Control Act, firearm prohibition, misdemeanor crime of domestic violence, second amendment

PROPERTY: Do Short-Term Vacation Rentals Violate Covenant Prohibiting Commercial Activity or Use?

Posted by Alistair D. Edwards on Mon, Oct 1, 2018 @ 11:10 AM

The Lawletter Vol 43 No 5

Alistair Edwards—Senior Attorney, National Legal Research Group

            Short-term vacation rentals have become increasingly popular and easier to obtain with the advent of websites such as Airbnb. Now, an owner can simply use such a website to attract potential renters and lease the property to vacationers on a very short-term basis. Some of these rentals can be as short as a one- or two-day rental. However, owners of residential properties that are subject to restrictive covenants are often prohibited from using their properties for commercial activities, uses, or purposes. Does this include renting the property to vacationers on a short-term basis?

        Recently, in Forshee v. Neuschwander, 2018 WI 62, 914 N.W.2d 643 (Wyo. 2018), the Wisconsin Supreme Court considered this exact issue.

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Topics: property, short-term vacation rental, commercial activity use, restrictive covenant

CIVIL PROCEDURE: Submission of Materials Outside the Pleadings in Response to a Rule 12(b)(6) or Rule 12(c) Motion

Posted by Paul A. Ferrer on Mon, Oct 1, 2018 @ 11:10 AM

The Lawletter Vol 43 No 5

Paul Ferrer—Senior Attorney, National Legal Research Group

         We have written frequently in the Lawletter about the revolution in federal pleading practice occasioned by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under the new standard, a claim is sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a motion for judgment on the pleadings under Rule 12(c)) only when, accepting as true the facts alleged in the complaint but not any legal conclusions, the claim has “facial plausibility,” that is, it allows the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 570 (the plaintiff must allege enough by way of factual content to “nudge” her claim “across the line from conceivable to plausible”). This standard requires the plaintiff to include more facts in her complaint than were necessary before the dawn of the Twombly/Iqbal era.

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Topics: civil procedure, Rule 12 motion, facial plausibility, evidentiary support documents

CIVIL RIGHTS: SCOTUS Overturns Lower Courts' Conclusions on Probable Cause And Qualified Immunity

Posted by Jason Holder on Fri, Sep 28, 2018 @ 11:09 AM

The Lawletter Vol 43 No 4

Jason Holder, Senior Attorney, National Legal Research Group

            Early in the morning on March 16, 2008, the D.C. Police received a complaint of loud music coming from a house in Northeast D.C. District of Columbia v. Wesby, 138 S. Ct. 577, 583 (2018). When officers responded to the house, they found it in a state of disarray with beer bottles and cups of liquor all over. Id. The floor was so dirty, the officers noted, "that one of the partygoers refused to sit on it while being questioned." Id. Although it had working electricity and plumbing, the house contained no furniture aside from a few folding chairs. A further inspection of the house found the living room transformed into "a makeshift strip club," and "more debauchery upstairs." Id.

            While many of the 21 individuals found in the house claimed to be throwing a bachelor party, none could identify the supposed bachelor. Id. A woman identified only as "'Peaches' or 'Tasty,'" was allegedly renting the house, but when the officers attempted to contact her, "Peaches" refused to meet with police "because she was afraid of being arrested." Id. "Peaches" eventually admitted that she did not have permission to be in the house and a call to the owner confirmed this. Id. at 583-84. Based upon their investigation, the officers arrested all 21 individuals present for unlawful entry, id. at 584, although a lieutenant later decided to charge them with disorderly conduct. Id. All charges were ultimately dropped. Id.

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Topics: criminal procedure, probable cause, qualified immunity, totality of the circumstances

TORTS: Is Your Computer Tracking You?

Posted by Alfred C. Shackelford III on Fri, Sep 28, 2018 @ 10:09 AM

The Lawletter Vol 43 No 4

Fred Shackelford, Senior Attorney, National Legal Research Group

            In a case of first impression, the Wyoming Supreme Court has adopted the intrusion upon seclusion branch of the common-law tort of invasion of privacy. In Howard v. Aspen Way Enterprises, Inc., 2017 WY 152, 406 P.3d 1271 (Wyo. 2017), the plaintiffs leased computers from a rent-to-own store. They alleged that the store installed software on the computers that allowed the store to track the computers' locations, remotely activate the computers' webcams, and capture screen shots and key strokes. The customers sued the store, alleging claims for the invasion of privacy and breach of the covenant of good faith and fair dealing. The lower courts ruled that Wyoming does not recognize a claim for the intrusion upon seclusion.

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Topics: torts, invasion of privacy, intrusion upon seclusion, tracking by computer

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