The Lawletter Vol 43 No 4

Lee Dunham, Senior Attorney, National Legal Research Group

            Bankruptcy Code § 521(1) places an affirmative duty upon a debtor to disclose all assets to the bankruptcy court. A known cause of action that has accrued is an asset that must be scheduled under Bankruptcy Code § 521(1). See Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004); Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). An unliquidated cause of action need not actually be filed prior to the commencement of the bankruptcy in order to qualify as an asset that must be scheduled. See Barletta v. Tedeschi, 121 B.R. 669, 671-72 (N.D.N.Y. 1990). However, debtors frequently neglect to list unliquidated causes of action as assets, whether because they have filed a bankruptcy without the assistance of a competent bankruptcy attorney or because, through simple oversight or lack of understanding, they failed to inform their bankruptcy counsel of their existing claims.

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The Lawletter Vol 43 No 4

Matthew McDavitt, Senior Attorney, National Legal Research Group

            In circumstances where an employer subject to the workers' compensation mandate fails to obtain the requisite insurance coverage, such noncompliance can have serious legal consequences. By statute in many states, such noncompliance deprives the employer of the standard employer tort defenses barring a defendant employer from asserting (1) an assumption of risk, (2) the fellow servant rule, and (3) contributory negligence in a tort suit brought by an injured worker.

            From a policy perspective, this statutory defensive penalty was intentionally enacted so as to materially disadvantage noncompliant employers at trial (by removing an employer’s preferred tort defenses), thereby encouraging employers to participate in the system. Bath Mills v. Odom, 168 F.2d 38, 39-40 (4th Cir. 1948); Blinkinsop v. Weber, 85 Cal. App. 2d 276, 279, 193 P.2d 96, 97 (1948).

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The Lawletter Vol 43 No 3

Steven G. Friedman—Senior Attorney, National Legal Research Group

     The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures of their persons or property. See U.S. Const. amend. IV. The exclusionary rule prohibits the use of evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 347 (1974). However, the exclusionary rule does not apply to all proceedings or against all persons and is generally restricted to areas in which the goal of deterring unlawful police conduct is "most efficaciously served." Id. at 348. In determining whether the exclusionary rule applies, the U.S. Supreme Court has developed a balancing test whereby courts weigh the likely social benefits of excluding unlawfully obtained evidence against the possible costs. See INS v. Lopez Mendoza, 468 U.S. 1032, 1041 (1984).

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The Lawletter Vol 43 No 3

Suzanne Bailey—Senior Attorney, National Legal Research Group

     Coming in the midst of a national discussion on reasonable limits on the Second Amendment right to bear arms prompted by high school students’ reaction to the Parkland, Florida, school shooting, a decision from the Second Circuit Court of Appeals upholding a New York City regulation restricting the ability of individuals with a "premises license" handgun permit to remove the gun from the specified premises has special resonance. In New York State Rifle & Pistol Association, Inc. v. City of New York, 883 F.3d 45 (2d Cir. 2018), a firearms owners' association and individual holders of premises handgun licenses sued the City of New York and the New York City Police Department‑License Division (collectively, the "City"), the local office authorized by the New York State Penal Code to issue handgun permits in the City, challenging New York City Rule 5‑23(a) on the grounds that it violates the Second Amendment, the dormant Commerce Clause, the fundamental right to travel, and the First Amendment right to expressive association. The district court granted the City's motion for summary judgment, upholding the regulation on all grounds, and the Second Circuit affirmed.

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The Lawletter Vol 43 No 3
Brett Turner—Senior Attorney, National Legal Research Group

     Persons who suffer from serious disabilities can apply for and receive Social Security Disability ("SSD"). When a parent receives SSD, dependency benefits are also paid to the parent's dependents.

     In the context of child support, a majority of states consider the noncustodial parent's SSD dependency benefits to be a form of child support, paid to the child from amounts previously withheld from the income of the parent. They are treated as income for purposes of child support, but the noncustodial parent then gets a dollar-for-dollar offset against child support for the amount of dependency benefits received by the child. Read More

The Lawletter Vol 43 No 3

Charlene Hicks—Senior Attorney, National Legal Research Group

     Although the law generally does not allow a contracting party to bring a tort claim against another party to the same contract, this protection does not extend to persons or entities that are classified as "strangers" to the contract. Thus, a contracting party may maintain a viable claim for tortious interference with contractual relations against a stranger to the agreement. In practice, however, the performance of a contract is often contingent on the acts and approval of persons or entities that did not formally enter into the agreement. This makes it difficult to distinguish between a protected contracting "party" and an unprotected "stranger."

     The popular Trader Joe's grocery chain recently found itself pushed into the murky realm of being classified as a "stranger" to a contract between two parties to which Trader Joe's had close business ties.

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The Lawletter Vol. 43 No. 2

Brad Pettit, Senior Attorney, National Legal Research Group

      A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog.  See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017).  In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability.  None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

      For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious."  162 Idaho 311, 396 P.3d at 1197.  The Bright court reasoned that, since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping."  Id. (citations therein omitted).

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The Lawletter Vol. 43 No. 2

Amy Gore, Senior Attorney, National Legal Research Group

     The Virginia General Assembly has extended a grant of immunity from liability for certain otherwise defamatory statements in an amendment to Va. Code § 8.01-223.2 (Westlaw 2018).  Previously, the anti-SLAPP (strategic lawsuit against public participation) statute extended immunity to claims for tortious interference with contract and similar theories when brought over a statement made at a public hearing or similar proceeding.  Such statements were subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity.  The amendment makes two significant changes.

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The Lawletter Vol. 43 No. 2

Mark Rieber, Senior Attorney, National Legal Research Group

     Ever since Rodriguez v. United States, 135 S. Ct. 1609 (2015), courts have had to decide whether evidence discovered during routine traffic stops should be suppressed on the ground that the police unreasonably prolonged the traffic stop, even for a short time, to investigate matters unrelated to the purpose of the stop, and what should be considered matters unrelated to the purpose of the stop.  A good example is the recent decision in Lerma v. State, No. PD-1229-16, 2018 WL 525427 (Tex. Crim. App. Jan. 24, 2018), in which the court reversed the Court of Appeals’ decision suppressing evidence discovered on a passenger of a vehicle during a routine traffic stop.  Contrary to the Court of Appeals’ holding, the Court of Criminal Appeals (Texas' highest court for criminal cases) determined that the officer conducting the traffic stop had reasonable suspicion to pat-down the passenger and that by questioning the passenger and patting him down, the officer did not unduly prolong the stop in violation of the holding in Rodriguez or the holding in St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007), upon which the Court of Appeals relied.

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The Lawletter Vol. 43 No. 2

Jim Witt, Senior Attorney, National Legal Research Group

     There is no question that law of a particular country develops in the context of the country's culture, religion, and customs.  A case recently decided by the Supreme Court of Taiwan illustrates this point.  See https://www.taiwannews.com.tw/en/news/3332521.  The plaintiff, identified as Luo (surname), brought a contract action against her second son, Chu, alleging that he owed her nearly US$1 million for raising him and financing his training at dental school (Chu's brother also completed dental training; he settled a similar claim with the plaintiff).  She claimed that she and her husband had run a dental clinic but that, after the couple's divorce, she raised her sons as a single mother.  As she was concerned that her sons would not provide for her in her old age, she had each son, at age 20, sign a written agreement, providing that her sons would pay her 60% of their net profits until the total reached 50 million new Taiwanese dollars (nearly US$1.7 million).  It is implicit in the Confucian tradition of filial piety that children support their aging parents.

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