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    Noel King

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    EMPLOYMENT LAW: No Violation of Right of Association When Disciplined Public Employee Hires Lawyer

    Posted by Noel King on Wed, Sep 28, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 2, September 30, 2011

    John Stone, Senior Attorney, National Legal Research Group

    A county corrections employee was ultimately terminated, primarily because an investigation had indicated that while attending a conference, he had sent a sexually graphic image to the personal cell phone of a subordinate, who then displayed it to other coworkers.  In federal court, he brought federal claims under 42 U.S.C. § 1983 as well as a state law claim seeking review of the administrative decision to fire him.  In the end, the court declined to exercise supplemental jurisdiction over the state law claim because it found that the trial court had properly granted summary judgment for the county defendants on the federal constitutional claims.  Merrifield v. Santa Fe Bd. of County Comm'rs, Nos. 10-2175, 10-2179, 2011 WL 3000687 (10th Cir. July 25, 2011).

    One of the fired employee's constitutional claims was that his First Amendment right of association had been violated because the County had retaliated against him when, early in the disciplinary process, he had hired an attorney and informed the County that all communications on the matter should go through his attorney.  The argument was that the retaliation had taken the form of choosing the strongest sanction—termination—as opposed to some lesser punishment that would have let the employee keep his job.  The lower court found that the employee had failed to present enough evidence of a retaliatory motive to survive the summary judgment motion, but, as discussed by the Tenth Circuit, there was also a legal, not just factual, obstacle to the right-of-association claim.

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    Topics: legal research, employment law, right of association, public employee, state law claim, First Amendment right of association, retaliation for hiring of attorney, retaliation for termination of employment, speech as a public concern, public concern test related to freedom of associat, § 1983 claim, The Lawletter Vol 36No 2, John M Stone

    CIVIL PROCEDURE: Supreme Court Rejects General Jurisdiction over Nonresident Defendants Under "Stream of Commerce" Theory

    Posted by Noel King on Wed, Sep 28, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 2, September 30, 2011

    Paul Ferrer, Senior Attorney, National Legal Research Group

    The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state court's authority to assert personal jurisdiction over a nonresident defendant.  The canonical decision in this area remains International Shoe Co. v. Washington, 326 U.S. 310 (1945).  International Shoe and its progeny have classified cases involving out-of-state corporate defendants into two categories, which have come to be known as "general or all-purpose jurisdiction" and "specific or case-linked jurisdiction."  Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011).  A court may assert general jurisdiction over foreign corporations to hear any and all claims against them "when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State," without regard to whether the claims arise out of the corporations' contacts with the State.  Id. (quoting Int'l Shoe, 326 U.S. at 317).  The paradigm bases for the exercise of general jurisdiction over a foreign corporation are domicile, place of incorporation, and principal place of business.  See id. at 2854.  In contrast to general jurisdiction, specific jurisdiction is confined to adjudication of issues arising from or related to the very controversy that establishes jurisdiction.  See id. at 2851.  For example, many states have enacted long-arm statutes authorizing their courts to exercise specific jurisdiction over out-of-state manufacturers whose products caused injury in the forum state, where the suit arose out of that injury.  See id. at 2855.

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    Topics: legal research, Paul Ferrer, Due Process Clause, Fourteenth Amendment, general jurisdiction, specific jurisdiction, stream of commerce theory, out-of-state categories, Goodyear Dunlop Tires Operations v. Brown, claims unrelated to domicile, place of incorporation, principal place of business, U.S. Supreme court, civil procedure, The Lawletter Vol 36No 2

    FAMILY LAW: Parental Relocation

    Posted by Noel King on Wed, Sep 28, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 2, September 30, 2011

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    Topics: legal research, family law, Sandra Thomas, Utah, physical custody, The Lawletter Vol 36 No 2, parental relocation provision, divorce decree relocation stipulation, modification of decree versus enforcement of decre, change in circumstances, best interests of child, res judicata justification for requiring change of

    PROPERTY: Vendor's Purchase-Money Mortgage Priority over Third-Party Purchase-Money Mortgage

    Posted by Noel King on Wed, Sep 28, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 2, September 30, 2011

    Alistair Edwards, Senior Attorney, National Legal Research Group

    A "purchase-money mortgage" is a mortgage given to a vendor of real estate or to a third-party lender to the extent that the proceeds of the loan are used to acquire title to the real estate or construct improvements on the real estate.

    In real estate transactions, it is common for a vendor of real estate to convey title to the purchaser, receive part of the purchase price in cash, and take back a mortgage on the real estate to secure a promissory note for the balance of the purchase price.  Such a mortgage is frequently referred to as a "vendor purchase money mortgage."  In an alternative and more common form of the transaction, third party institutional financing is used to "cash out" the vendor. In this situation, the vendor receives part of the purchase price in cash from the purchaser and the balance in cash from a third party lender who takes the purchaser's promissory note secured by a mortgage on the purchaser's newly acquired real estate.  This type of mortgage is usually termed a "third party purchase money mortgage."  Some land transactions utilize both types of purchase money mortgages.  This section focuses on the priority accorded purchase money mortgages of either type over other liens or claims arising through the purchaser that antedate the purchase money transaction, and also on the priority relationship between the two types of purchase money mortgages.

    Restatement (Third) of Property:  Mortgages § 7.2 cmt. a (1997 & Westlaw current through Apr. 2011).  According to the Restatement and the laws of many jurisdictions, "[a] purchase money mortgage, whether or not recorded, has priority over any mortgage, lien, or other claim that attaches to the real estate but is created by or arises against the purchaser‑mortgagor prior to the purchaser-mortgagor's acquisition of title to the real estate."  Id. § 7.2(b).

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    Topics: legal research, Alistair Edwards, property, The Lawletter Vol 36No 2, third-party purchase-money mortgage, Restatement (Third) of Property § 7.2

    CONTRACTS: Internet Job Posting Ruled Not Solicitation or Inducement

    Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 1, September 9, 2011

    Charlene Hicks, Senior Attorney, National Legal Research Group

    The effect a job advertisement posted on the LinkedIn webportal may have on a nonsolicitation clause in an existing contract was recently addressed by the Indiana Court of Appeals in Enhanced Network Solutions Group v. Hypersonic Technologies Corp., No. 02A03-1011-PL-609, 2011 WL 2582870 (Ind. Ct. App. June 30, 2011) (slip op.).  The case is notable in that it suggests that an Internet job posting does not amount to a solicitation or an inducement.

    Enhanced Network Solutions involved an existing contract between Hypersonic, an advanced software engineering company, and ENS, a company in the business of modifying existing software.  Under the contract, ENS agreed to acquire certain services from Hypersonic to serve ENS's own clients.  In addition, ENS agreed that if the two companies successfully bid on a joint project, it would authorize Hypersonic to act as a subcontractor.  The contract also contained an "employee protection clause," which provided that each party would "refrain from soliciting or inducing, or attempting to solicit or induce, any employee of the other Party in any manner that may reasonably be expected to bring about the termination of said employee[.]"  Id. at *1.

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    Topics: legal research, Charlene Hicks, contracts, Internet job posting, LinkedIn, webportal posting, solicitation or inducement, nonsolicitation clause in contract, The Lawletter Vol 36 No 1

    WORKERS' COMPENSATION: Workplace Stress-Induced Suicide May Be Compensable Under Workers' Compensation Law

    Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 1, September 9, 2011

    Suzanne Bailey, Senior Attorney, National Legal Research Group

    Is a suicide prompted by stress in the workplace compensable under the workers' compensation law?  A New York appellate court has left open the possibility that a suicide committed in reaction to an office investigation is covered as long as the office investigation was not a good-faith personnel action against the decedent.

    In Veeder v. New York State Police Department, 86 A.D.3d 762, 928 N.Y.S.2d 89 (2011), the decedent had been employed by the state police department as a forensic scientist for approximately 31 years.  In April 2008, during a reaccreditation process for the laboratory in which the decedent worked, an audit uncovered an inconsistency in the fiber proficiency tests that he regularly performed. The department commenced an investigation, and, over the course of three days, several meetings between the decedent and his supervisors were held to discuss the inconsistencies in the test results.  The decedent advised his supervisors that he had skipped a step in the fiber test analysis procedure and, therefore, was noncompliant in performing the test.  Thereafter, the department initiated a "nonconforming work inquiry."  The decedent stopped going to work and ultimately committed suicide on May 23, 2008.  The decedent's wife filed a claim for workers' compensation benefits, which was denied by the Workers' Compensation Board on the ground that the decedent's death had not arisen out of and in the course of his employment.

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    Topics: legal research, workers' compensation, suicide, workplace stress, nonconforming work inquiry, lawful personnel decision, The Lawletter Vol 36 No 1

    SCHOOLS/SOCIAL NETWORKING: MySpace: A 2011 Odyssey—School-Imposed Discipline for Off-Campus Internet Speech

    Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 1, September 9, 2011

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    Topics: legal research, Internet, social networking, Steve Friedman, schools, The Lawletter Vol 36 No 1, off-campus discipline, free speech rights, First Amendment, MySpace, disruption of school environment, bullying

    PRODUCTS LIABILITY: Is the Statute of Limitations in Individual Products Liability Actions Equitably Tolled During the Pendency of a Class Action in Another Jurisdiction?

    Posted by Noel King on Mon, Sep 19, 2011 @ 13:09 PM

    The Lawletter Vol 36 No 1, September 9, 2011

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    Topics: legal research, products liability, Jeremy Taylor, statute of limitations, The Lawletter Vol 36 No 1, class action, tolling, putative class action, statutory tolling during pendency of putative clas

    CRIMINAL LAW: Search and Seizure—Warrantless Use of GPS Device on Defendant's Vehicle Found to Be a "Search"

    Posted by Noel King on Thu, Aug 25, 2011 @ 10:08 AM

    The Lawletter Vol 35, No 12, August 26, 2011

    Mark Rieber, Senior Attorney, National Legal Research Group

    The U.S. Supreme Court recently granted certiorari to the U.S. Court of Appeals for the District of Columbia Circuit to address the issues surrounding the Government's use of a global positioning system ("GPS") tracking device on a defendant's motor vehicle.  See United States v. Maynard, 615 F.3d 544 (D.C. Cir.), rehearing en banc denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010), cert. granted, 2011 WL 1456728 (U.S. June 27, 2011) (Nos. 10‑1259, 10A760).

    In Maynard, among other surveillance techniques used by police to investigate the defendant, who was suspected of illegal drug activity, was the covert installation, pursuant to a court order, of a GPS tracking device on the defendant's motor vehicle.  There were technical violations of the court order, however.  The police then used the GPS device to track the defendant's movements 24 hours a day for four weeks.

    On appeal following the defendant's drug conviction, the District of Columbia Circuit, disagreeing with three other circuits, held that the use of the GPS device to track the defendant's movements was a search under the Fourth Amendment, stating:

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    Topics: legal research, DC Circuit, GPS, Fourth Amendment rights, The Lawletter Vol 35 No 12, warrantless search, suppression of evidence, lack of consent, U.S. v. Maynard, vehicle surveillance, criminal law, Mark Rieber

    EMPLOYMENT DISCRIMINATION: Retaliation for Opposition to Discrimination

    Posted by Noel King on Thu, Aug 25, 2011 @ 10:08 AM

    The Lawletter Vol 35 No 12, August 26, 2011

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    Topics: Dora Vivaz, legal research, Title VII, employment discrimination, The Lawletter Vol 35 No 12, reasonableness standard, prohibition against retaliation

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