The Lawletter Vol 42 No 1

Jason Holder, Senior Attorney, National Legal Research Group

     In United States v. Carey, 836 F.3d 1092, 1093 (9th Cir. 2016), federal agents secured a wiretap order under the Wiretap Act, 18 U.S.C. §§ 2510-2522. The order was based upon evidence that Ignacio Escamilla Estrada ("Escamilla") used the number to smuggle and distribute drugs. Carey, 836 F.3d at 1093. During the seven-day wiretap, the agents realized that Escamilla was not the one using the phone. Id. Nevertheless, believing that those on the phone may be connected to Escamilla, the agents continued listening. Id. Authorities ultimately identified Michael Carey as the unknown speaker. Id. The investigation revealed that Carey was not involved with Escamilla. Id. at 1094.

     Carey moved to suppress all of the evidence derived from the use of the wiretaps, arguing that the government had unlawfully relied on the Escamilla order to justify the independent and unrelated use of wiretap surveillance against Carey. Id. The district court denied Carey's motion, explaining that (1) the government had complied with the statute for the wiretap order against Escamilla, and (2) that there was no requirement for a separate showing of necessity once the agents concluded that T-14 was not used by Escamilla because the agents reasonably believed that the callers and calls might be affiliated with Escamilla or other offenses. Id. at 1095.

The Lawletter Vol 42 No 1

Emily Abel, Senior Attorney, National Legal Research Group

      In a recent decision, the Virginia Supreme Court reiterated the importance of using due diligence and carefully examining the title when purchasing property. Washington v. Prasad, 791 S.E.2d 566 (Va. 2016), involved a suit by a purchaser against his neighbors to recover the funds the purchaser expended as a result of erroneously improving his neighbors' property instead of his own.

     After receiving notice of a public action, the purchaser, a retired chemical engineer turned house "flipper" accessed the County assessor's records and reviewed the property card for the Parcel 8-C, the parcel being auctioned. The property card correctly listed the street address as 17211 Shands Road, but incorrectly showed a picture of the neighbors' home, Parcel 9-A. The reason for the mix-up was that the neighbors' house on Parcel 9-A had previously been numbered as 17211, but the street number changed to 17201 years ago. However, the neighbors never changed the number at the front of the house or on the mailbox, thus, the neighbors' property appeared to be 17211 Shands Road to passers-by.

The Lawletter Vol 42 No 1

Brett Turner, Senior Attorney, National Legal Research Group

      In Curtis v. Curtis, 887 N.W.2d 249 (Minn. 2016), the wife sought spousal support in a divorce case. But she received, as part of her share of the marital property, an Ameritrade account worth over $2 million.

     The trial court held that the income from this account constituted income for purposes of spousal support. The account was invested in growth-oriented securities and produced income of less than $3,000 per year. This income was not sufficient to meet the wife's support needs. But the husband proved that the account could be reinvested into income-oriented securities at a rate of 7% per year and earn $9,500 per month in income. On this basis, the trial court imputed $9,500 per month income to the wife, and found that she had no need for spousal support. Minnesota's intermediate appellate court affirmed, and the wife appealed to the Minnesota Supreme Court.

The Lawletter Vol 42 No 1

Mark Rieber, Senior Attorney, National Legal Research Group

     In Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), which defines a "violent felony" to include a felony that "involves conduct that presents a serious potential physical injury to another," 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

     In Carpio v. United States, No. C16-0647JLR, 2016 WL 6395192 (W.D. Wash. Oct. 28, 2016), the court applied the holdings in Johnson and Welch to the defendant's claim, in a 28 U.S.C. § 2255 petition challenging his U.S. Sentencing Guidelines sentence, that the identically worded residual clause in U.S.S.G. § 4B1.2(a), defining "crime of violence," used to enhance the defendant's sentence, was unconstitutionally vague. The court in Carpio held that the Johnson holding applied with equal force to the residual clause in § 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague.

The Lawletter Vol 41 No 11

Alistair Edwards, Senior Attorney, National Legal Research Group

     It is not unusual for a borrower (mortgagor) who is facing foreclosure to attempt to obtain a loan modification from the lender (or the servicer acting for the lender). However, even if the borrower requests a loan modification, this does not automatically put the foreclosure process on hold. Nor does the lender (mortgagee) automatically violate some sort of duty owed to the borrower by proceeding with the foreclosure even though a loan modification has been requested.

      For example, in Afridi v. Residential Credit Solutions, Inc., No. CV 15-13632-NMG, 2016 WL 3017382 (D. Mass. May 24, 2016), the U.S. District Court for Massachusetts recently held that the lender (or the servicer acting for the lender) did not breach its implied duty of good faith by proceeding with a foreclosure sale while the borrower was attempting to obtain a loan modification. In that case, the servicer sought to foreclose, and in order to avoid that outcome, the borrower applied for a mortgage modification under the Home Affordable Modification Program ("HAMP"). The servicer initially denied the application as incomplete. The servicer ultimately provided a list of the missing documents and the borrower updated his application. However, the servicer scheduled a foreclosure sale without first rendering a decision on the borrower’s modification application. The servicer ultimately denied the application.

The Lawletter Vol 41 No 11

John Stone, Senior Attorney, National Legal Research Group

     As with most forms of employment discrimination, an employer's retaliation against an employee for asserting discrimination under the Equal Pay Act ("EPA") gives rise to an additional and distinct cause of action for the employee. To state a claim for retaliation under the EPA (as incorporated into the Fair Labor Standards Act), a plaintiff must plausibly allege (1) engagement in protected activity, (2) materially adverse action that might well have dissuaded a reasonable worker from making or supporting a charge of discrimination, and (3) causality.

     A showing of the causality element requires either (1) that the retaliation closely followed the protected activity, or (2) that the plaintiff put forth a sufficient explanation for the delay between the protected activity and the alleged retaliation. Where the time between the protected conduct and the alleged retaliation is too great to establish causation based solely on temporal proximity, a plaintiff must present other relevant evidence to establish causation, such as continuing retaliatory conduct and animus in the intervening period. In addition, when there may be valid reasons why an adverse employment action was not taken immediately, the absence of immediacy between the cause and the effect does not disprove causation in a retaliation case.

The Lawletter Vol 41 No 11

Paul Ferrer, Senior Attorney, National Legal Research Group

      All states have a statute of frauds, based on the original Statute of Frauds enacted in England in 1677, barring actions upon some types of promises unless evidenced by a writing signed by the party to be charged with the promise. The promises typically covered by a state’s statute of frauds include "any promise to answer for the debt, default, or misdoing of another," and "any agreement that is not to be performed within one year from the making thereof." Ky. Rev. Stat. Ann. § 371.010(4), (7). In Chin v. Chin, 494 S.W.3d 517 (Ky. Ct. App. 2016), the Kentucky Court of Appeals held that neither of these provisions barred a claim by parents ("the Chins") against their son ("Raymond") for breach of an oral contract to repay a college loan that the parents had taken out for his benefit.

     In that case, Raymond attended college at the Rose-Hulman Institute of Technology, a top-ranked engineering college that carried a price tag of about $54,000 per year in 1999. At the time, Raymond’s father was making $55,000 per year as a teacher, while his mother was making $18,000 per year as an aide. The Chins obtained a Parent PLUS loan to pay for Raymond’s college expenses, which ultimately totaled more than $58,000 (Raymond received a partial scholarship). Although the Chins signed for the loan, Raymond orally agreed that he would be responsible for paying the loan, and would repay any amounts the Chins had already paid, as soon as he had a job.

The Lawletter Vol 41 No 11

Steve Friedman, Senior Attorney, Senior Attorney

     "Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.

     In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the paper to  . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party). In turn, the statute defines "mailing" as

The Lawletter Vol 41 No 10

Matthew McDavitt, Senior Attorney, National Legal Research Group

     The average layperson might assume that digital music files (i.e., songs purchased from services such as iTunes and Amazon) can be passed by will or intestate succession. This is certainly true for music recorded onto physical media, such as CDs. However, the law currently treats digital files differently, given (a) the manner in which digital music is purchased, (b) the use of multiple digital files when accessing digital music files, and (c) the perishable nature of nondigital media.

     Because most consumers never read the "Terms & Conditions" agreements when purchasing digital music, they may be surprised to learn that when buying a song from iTunes or Amazon, the purchaser is not granted ownership of the downloaded song file, but merely acquires a nontransferable license to use the file on the purchaser’s device for the contract duration. Thus, by contract, such files cannot pass at the death of the purchaser, as the usage license is nontransferable to other persons.

The Lawletter Vol 41 No 10

Fred Shackelford, Senior Attorney, National Legal Research Group

      The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).