The Lawletter Vol 35, No 10, July 8, 2011

Paul Ferrer, Senior Attorney, National Legal Research Group

Discussed in a prior issue of The Lawletter, see Paul Ferrer, Enforceability of Arbitration Clause Prohibiting Classwide Arbitration, 35 Lawletter No. 2 (Jan. 21, 2011), the case of Scott v. Cingular Wireless, 161 P.3d 1000 (Wash. 2007) (en banc), is indicative of the growing trend among state courts to strike down as unconscionable class action waivers in otherwise enforceable arbitration agreements in cases where there are a large number of potentially affected consumers, each of whom has only a small claim.  In Scott, for example, the plaintiffs alleged that Cingular had overcharged its individual customers between $1 and $45 per month by unlawfully adding roaming and other hidden charges to their cellular telephone plans.  In finding the class action waivers in the plaintiffs' arbitration agreements to be unenforceable, the court reasoned that "class actions are a critical piece of the enforcement of consumer protection law," because "[w]ithout class actions, many meritorious claims would never be brought":  It simply would not be cost-effective for individual consumers to proceed on such small claims.  Id. at 1006.  This reasoning was echoed in Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005), in which the California Supreme Court similarly held that under such circumstances, class action waivers in arbitration agreements are unconscionable and, thus, unenforceable:

The Lawletter Vol 35 No 9, June 17, 2011

Suzanne Bailey, Senior Attorney, National Legal Research Group

May an employee voluntarily leave work due to emotional distress arising out of a family crisis and still be eligible for unemployment compensation?  In Pennsylvania, a claimant qualifies for benefits if s/he demonstrates that the cause for voluntarily leaving employment is "of a necessitous and compelling nature."  43 Pa. Stat. Ann. § 802(b).  To meet that burden of proof, the claimant must establish that (1) circumstances existed that produced real and substantial pressure to terminate employment; (2) like circumstances would compel a reasonable person to act in the same manner; (3) s/he acted with ordinary common sense; and (4) s/he made a reasonable effort to preserve the employment.  In the recent case of Fiedler v. Unempl. Comp. Bd. of Review, No. 1984 C.D. 2010, 2011 WL 1486078 (Pa. Commw. Ct. Apr. 18, 2011), the Commonwealth Court of Pennsylvania applied this standard to the case of a worker who left his out-of-state job and returned home to Pennsylvania to reunite with his family to cope with the tragic loss of his adult son.  The court found that the claimant had met the burden of proof and was entitled to benefits.

The Lawletter Vol 35 No 9, June 17, 2011

Charlene Hicks, Senior Attorney, National Legal Research Group

In the global marketplace of today, the need to secure personal jurisdiction over a foreign national often arises in disputes of either a personal or a business nature.  The most commonly used method of obtaining service on a party outside of the United States is through the Hague Convention on International Service.  More than 70 nations have ratified the Hague Convention, including the United States, most Western European countries, China, the Russian Federation, Mexico, and Argentina.

If the country wherein the foreign defendant is located is a signatory to the Hague Convention, service must be accomplished in accordance with the requirements of the Convention.  Volkswagenwerk AG v. Schlunk, 486 U.S. 694, 700 (1988).  Generally speaking, the Hague Convention authorizes service through the state's designated Central Authority, via international registered mail, or by directly serving the party through an agent in the destination state.  However, some countries, such as China and Mexico, have specifically objected to certain generally authorized forms of service.  In such cases, service must be accomplished in a manner not objected to by the signatory country.  In any event, the surest and most effective way to obtain service over a foreign defendant is through the designated Central Authority.  See, e.g., Intercont'l Indus. Corp. v. Luo, No. CV 10-4174-JST EX, 2011 WL 221880, at *2 (C.D. Cal. Jan. 20, 2011); Xyrous Commc'ns, LLC v. Bulg. Telecommc'ns Co. AD, No. 1:09-cv-396, 2009 WL 2877084, at *10 (E.D. Va. Sept. 4, 2009) (slip copy).

"Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person."  In re Alyssa F., 6 Cal. Rptr. 3d 1, 4 (Ct. App. 2003).  Notably, however, the provisions of the Hague Convention do not apply if the address of the person to be served is unknown.  Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, art. 1.

If the foreign defendant is an individual who is present in a country that has not ratified the Hague Convention, then service of process may be obtained in accordance with the methods authorized by Rule 4(f) of the Federal Rules of Civil Procedure, which authorizes service "by any means not prohibited by international agreement, as may be directed by a U.S. court."  Fed. R. Civ. P. 4(f)(3).  This Rule confers broad flexibility upon the court and the litigants to obtain service upon the foreign defendant by any reasonable means available that comport with the constitutional notion of due process.

Court-ordered service under Rule 4(f)(3) is also valid upon an individual foreign defendant who is present in a country that has ratified the Hague Convention if the address of that foreign defendant is unknown.  See United States v. Distribuidora Batiz CGH, S.A. De C.V., No. 07cv370-WQH-JMA, 2011 WL 1561086, at *5 (S.D. Cal. Apr. 21, 2011).  In other words, in cases where the plaintiff is unaware of the foreign defendant's address, the court has the discretion to validate service by any means that comport with constitutional notions of due process.  See id.

June 14, 2011

Doug Plank, Senior Attorney, National Legal Research Group

Most people undoubtedly assume that their personal e-mail correspondence is a private matter between them and the recipients of the correspondence and that when they send an e-mail to a particular person, that e-mail carries an expectation of privacy such that it will be protected from disclosure to the Government.  However, the scope of an individual's right to privacy with regard to his e-mail account is far from settled, as the U.S. Supreme Court has specifically declined to decide whether an individual's electronic messages are within the scope of Fourth Amendment protection, and the lower courts have taken different approaches in addressing the scope of e-mail privacy.

In City of Ontario v. Quon, 130 S. Ct. 2619 (2010), a civil rights action brought under 42 U.S.C. § 1983, the Supreme Court reversed a Ninth Circuit decision that had held that a police officer had a reasonable expectation of privacy in personal text messages he had sent to a third party, using a pager that had been issued to him for work use, and, further, that the officer's employer could be liable for damages for its violation of that privacy right because it had obtained the text messages from the wireless communications provider without a search warrant.  Stating that "[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," id. at 2629, the Court declined to rule on the Fourth Amendment issue but instead concluded that even if the officer did have a right to privacy in the text messages, his employer had not violated the Fourth Amendment in reviewing those text messages to and from a Government‑owned pager, because its review was reasonable and motivated by a legitimate work‑related purpose.  [For a discussion of Quon in the Employment Law context, see John Buckley, Employment Law:  Workplace Computers and Other Devices, www.nlrg.com/employment-law-legal-research (posted Jan. 21, 2011).]

Subsequently, in Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010), the Eleventh Circuit declined to resolve the issue of whether e-mails are protected by the Fourth Amendment, also choosing to decide the case on an alternative ground.  Rehberg was a civil rights action brought by a citizen whose e-mails had been obtained by law enforcement officers from the citizen's Internet service provider ("ISP") and examined without a warrant.  The Eleventh Circuit noted that at the time of the officers' conduct, no court decision had held a Government agent liable for Fourth Amendment violations related to e-mail content received by a third party and stored on a third party's server, and thus it held that the officers were entitled to qualified immunity under the doctrine announced in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

More recently, the Sixth Circuit became the first court to squarely hold that a person's e-mails are private and protected by the Fourth Amendment, even after they have been sent to a recipient.  In United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), the issue reached the court after the defendant had been charged and convicted of fraud in connection with the operation of several of his businesses.  In the course of the Government's investigation of the defendant, it had subpoenaed the defendant's ISP to obtain the content of e-mails sent and received by him.  These e-mails contained incriminating evidence of the defendant's criminal culpability and were used at trial to convict him.

June 7, 2011

John Buckley, Senior Attorney, National Legal Research Group

Title VII makes it unlawful for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). "Religion" includes "all aspects of religious observance and practice, . . . unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's . . . religious observance or practice without undue hardship on the . . . employer's business."  Id. § 2000e(j).  Thus, it is unlawful for an employer not to make reasonable accommodations for an employee's religious practices, unless doing so would impose an undue hardship.  Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 & n.1 (1986).