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    The Lawletter Blog

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

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

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

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

    TAX: Free Like-Kind Exchanges of Property

    Posted by D. Bradley Pettit on Thu, Dec 27, 2018 @ 10:12 AM

    The Lawletter Vol 43 No 8

    Brad Pettit—Senior Attorney, National Legal Research Group

                The Internal Revenue Code provides generally that "[n]o gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment if such real property is exchanged solely for real property of like kind which is to be held either for productive use in a trade or business or for investment," as long as the transaction does not involve an "exchange of real property held primarily for sale." 26 U.S.C. § 1031(a) (also includes Pub. L. Nos. 115-233 to 115-253, 115-255 to 115-269; Title 26 current through Pub. L No. 115-270). "As used in section 1031(a), the words 'like kind' have reference to the nature or character of the property and not to its grade or quality." 26 C.F.R. § 1.1031(a)-1(b). Thus, "[o]ne kind or class of property may not, under that section, be exchanged for property of a different kind or class." Id. For example, "[t]he fact that any real estate involved is improved or unimproved is not material, for that fact relates only to the grade or quality of the property and not to its kind or class." Id.

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    Topics: Brad Pettit, exchange of like kind property, nature and character of property, Internal Revenue Code, personal residence

    EMPLOYMENT: Age Discrimination—Public Employers

    Posted by Nadine Roddy on Thu, Dec 27, 2018 @ 09:12 AM

    The Lawletter Vol 43 No 8

     

    Nadine Roddy—Senior Attorney, National Legal Research Group

     

                The Age Discrimination in Employment Act ("ADEA") applies to all public employers, including those with fewer than 20 employees, a unanimous Supreme Court held in its first merits decision of the October 2018 term. Thus, the 20-employee minimum that applies to private employers does not apply to a state or its subdivisions. The 8-0 decision, Mount Lemmon Fire Dist. v. Guido, ___ S. Ct. ___, 202 L. Ed. 2d 262 (2018), resolves a split of authority between the Ninth Circuit on one hand and the Sixth, Seventh, Eighth, and Tenth Circuits on the other.

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    Topics: Nadine Roddy, Age Discrimination in Employment Act, public employer, less than 20 employees, application to state and local governments

    FAMILY LAW: Role of Assets in Determining Amount of Alimony

    Posted by Brett R. Turner on Thu, Dec 27, 2018 @ 09:12 AM

    The Lawletter Vol 43 No 8

     

    Brett Turner—Senior Attorney, National Legal Research Group

                Permanent alimony awards are still alive and well in many states, especially when the marriage is long and there is substantial income disparity between the spouses.  When the court determines the amount of alimony, what effect do the receiving spouse's assets have upon the award?

     

                A good example of a modern permanent alimony case is Sweeney v. Sweeney, 420 S.C. 69, 75, 800 S.E.2d 148, 151 (Ct. App. 2017). The marriage there lasted for 28 years from marriage to filing of the divorce action. The husband had gross income of $34,100 per month, or $409,200 per year.  The wife's gross income was very limited. Sweeney was clearly a permanent alimony case.

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    Topics: family law, Brett R. Turner, permanent alimony, amount, receiving spouse's assets

    CONTRACTS: Investigating and Defending Against Student Loan Claims

    Posted by Lee P. Dunham on Thu, Dec 27, 2018 @ 09:12 AM

    The Lawletter Vol 43 No 8

    Lee Dunham—Senior Attorney, National Legal Research Group

     

                Student debt is the second-largest source of U.S. household debt, at nearly $1.4 trillion. Federal Reserve Bank of New York, Quarterly Report on Household Debt and Credit (accessed on Nov. 10, 2018). It is projected that nearly 40% of student loan borrowers will default by 2023. Judith Scott-Clayton, The Looming Student Loan Default Crisis is Worse than we Thought (accessed on Nov. 10, 2018). Many attorneys have seen increased requests for student loan advice.

                Because students are often young and legally unsophisticated at the time they borrow, many understand little about their contracts, or have lost—or never obtained—copies of the essential documents. The first step in such circumstances is to have the client contact the servicer to request copies of the promissory note and related documents, payment history, name and address of the current lender, and documentation of any transfers.

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    Topics: contracts, Lee Dunham, default on loan, student debt, obtaining essential documents

    PRODUCTS LIABILITY: No Due Process Violation in Application of Collateral Estoppel

    Posted by Jeremy Y. Taylor on Thu, Nov 29, 2018 @ 10:11 AM

    The Lawletter Vol 43 No 7

    Jeremy Taylor—Senior Attorney, National Legal Research Group

                In a decision dated September 5, 2018, the U.S. Court of Appeals for the Eleventh Circuit held that the due process rights of the defendant tobacco manufacturers were not violated by the district court’s application of collateral estoppel based on a jury’s findings in a previous class action against the defendants. See Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342 (11th Cir. 2018). Searcy was an action by the daughter of a cigarette smoker against tobacco companies for negligence, strict liability, concealment, and conspiracy to conceal arising from the death of her mother. The plaintiff alleged that her mother’s illnesses were caused by her addiction to cigarettes manufactured by the defendants. Following trial, the district court entered judgment in favor of the plaintiff for $1 million in compensatory damages and $1.67 million in punitive damages. 

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    Topics: products liability, Jeremy Taylor, due process challenge, collateral estoppel, preclusive effect, prior jury findings

    ESTATE PLANNING: Lifetime Gifts of Closely Held Business Stock to Family Members

    Posted by D. Bradley Pettit on Thu, Nov 29, 2018 @ 10:11 AM

    The Lawletter Vol 43 No 7

    Brad Pettit—Senior Attorney, National Legal Research Group

                "Rather than disposing of stock in a closely held business (by sale or corporate reorganization) at retirement the retiree may decide to transfer all or a portion of the stock by gifts to various family members." Streng & Davis, Tax Planning for Retirement ¶ 7.05[1] (Thomson Reuters Tax & Acct'g 2018).  Three important objectives can be achieved by making gifts of closely held business stock to family members:

    It eliminates the stock's dividend income from the gross income and the estate of the retiree/donor

    It removes the value of the stock from the retiree/donor's estate for federal estate tax purposes upon the retiree's death

    It solidifies the interests of the family members receiving the stock as officers of the closely held corporation, enabling them access to corporate executive compensation arrangements and other benefits.

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    Topics: Brad Pettit, estate planning, lifetime gifts, closely held business stock, gift and estate tax

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