The Lawletter Vol 40, No 4

Dora Vivaz, Senior Attorney, National Legal Research Group

     The procedural requirements and burdens for showing race discrimination in employment are by now fairly well delineated and established. This is apparently not yet so for claims of reverse discrimination. In a recent case, the U.S. District Court for the Western District of Virginia, faced with such a claim, first noted that there is a split amongst the circuits as to whether the same requirements and burdens apply to reverse discrimination claims as apply to discrimination claims. Shomo v. Apple, Inc., Civ. Act. No.: 7:14cv00040, 2015 WL 777620, at *4 n.3 (W.D. Va. Feb. 24, 2015). The court referenced McNaught v. Virginia Community College System, 933 F. Supp. 2d 804, 817-20 (E.D. Va. 2013), which includes a detailed discussion of the subject and outlines the circuit split on the issue.

The Lawletter Vol 40, No 4

Tim Snider, Senior Attorney, National Legal Research Group

      Very few principles of federal appellate practice are more fundamental than that only final judgments may be appealed. Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009). That said, bankruptcy presents a unique situation, in that often adversary proceedings finally conclude the dispute between and among the parties to those proceedings and thus are appealable, even though the entire bankruptcy case may not yet be concluded. Howard Delivery Serv. v. Zurich Am. Ins. Co., 547 U.S. 651, 657 n.3 (2006) ("Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.").

The Lawletter Vol 40 No 3

Brad Pettit, Senior Attorney, National Legal Research Group

      The motion picture industry has produced many horror or suspense films that are centered on the theme of an individual or couple who purchase a dream house, only to subsequently discover, by way of terrifying sights, sounds, and other stimuli, that a gruesome event once occurred on the property. In a courtroom drama sequel to those movies, the Supreme Court of Pennsylvania made it clear that the occurrence of a murder/suicide or similar tragic event inside a house does not constitute a "material defect" therein that must be disclosed by a seller to a purchaser. Milliken v. Jacono, 103 A.3d 806 (Pa. 2014), as modified on reconsideration (Nov. 12, 2014). Accordingly, the Milliken court held that a real property seller's failure to disclose the occurrence of a murder/suicide inside a house to a buyer thereof did not constitute actionable fraud, negligent misrepresentation, or violations of unfair trade practices, consumer protection, and real estate sales disclosure laws. In short, the Milliken court concluded that "purely psychological stigmas are not material defects" in property that a seller must reveal to a buyer. Id. at 811. The Milliken court's reasons for its decision were as follows:

The Lawletter Vol 40 No 3

John Stone, Senior Attorney, National Legal Research Group

     When there is a confrontational encounter between a citizen and a law enforcement officer, it is not uncommon for a charge of disorderly conduct against the citizen to result, sometimes even though there may be no other charge that emanates from the initial reason for the interaction. Some maintain that disorderly conduct charges are too readily leveled against citizens who may be doing no more than questioning, perhaps angrily, why a police officer is taking particular actions. According to that view, a disorderly conduct charge can become a catchall offense too often used to punish someone whose remarks or conduct simply annoy the police officer. On the other hand, there certainly are instances in which the way a citizen reacts to the police crosses the line from protected speech to criminal conduct constituting disorderly conduct. One such example is "fighting words" directed at a police officer.

The Lawletter Vol 40 No 3

Sandra Thomas, Senior Attorney, National Legal Research Group

     In the first decision in the nation to address the issue, the Alabama Court of Civil Appeals has held that an Alabama trial court was under no obligation to enforce the covenant-marriage contract entered into between the parties at the time of their marriage in Louisiana where the parties subsequently moved to Alabama and sought a divorce in the Alabama court. Blackburn v. Blackburn, No. 2131043, 2015 WL 1608431 (Ala. Civ. App. Apr. 10, 2015) (not yet released for publication).

The Lawletter Vol 40 No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

     The U.S. Supreme Court continues to refine the state-action immunity doctrine first formulated in Parker v. Brown, 317 U.S. 341 (1943). In Parker, relying on principles of federalism and state sovereignty, the Court refused to construe the Sherman Act, which prohibits contracts, combinations, or conspiracies in restraint of trade, see 15 U.S.C. § 1, as applying to the anticompetitive conduct of a state acting through its legislature. Rather, the Supreme Court ruled that the Sherman Act was intended to prohibit private restraints on trade, and it refused to infer an intent to "nullify a state's control over its officers and agents" in activities directed by the legislature. Parker, 317 U.S. at 351.

The Lawletter Vol 40 No 2

Brad Pettit, Senior Attorney, National Legal Research Group

      A very recent decision by a Florida appellate court illustrates constitutional issues that arise when a state or locality seeks to impose a tax upon sales of goods to out-of-state customers via the Internet. In American Business USA Corp. v. Department of Revenue, 151 So. 3d 67 (Fla. 4th DCA 2014), the court addressed the question of whether Internet sales of flowers, gift baskets, other items of tangible personal property, and prepaid telephone calling arrangements by a corporation that was registered to do business in Florida to out-of-state consumers were subject to the Florida sales tax. The taxpayer in the American Business case objected to taxation of its Internet sales to out-of-state customers on the ground that such taxation violated the Commerce and/or Due Process Clauses of the U.S. Constitution. The American Business court upheld the State of Florida's taxation of Internet sales of prepaid telephone call cards but rejected the State's taxation of Internet sales of flowers and other tangible goods.

The Lawletter Vol 40 No 2

Matt McDavitt, Senior Attorney, National Legal Research Group

     One problematic issue regarding the administration of probate or intestate estates is that in which the property of mentally or physically incapacitated persons is found to have been significantly depleted through lifetime transfers in the period just prior to death. The Virginia Supreme Court recently addressed this problem, establishing that where such lifetime transfers benefit persons standing in a confidential relationship to the grantor, a rebuttable presumption of fraud arises so as to protect decedent estates from the depredations by third parties upon whom the decedent relied at the end of life.

The Lawletter Vol 40 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

     If a defendant's negligence causes no physical injury, can a plaintiff recover damages for the expense of monitoring his or her medical condition? That was the issue addressed by the Nevada Supreme Court in Sadler v. PacifiCare of Nevada, 340 P.3d 1264 (Nev. 2014). In that case, the plaintiffs sued a health maintenance organization for negligently failing to oversee the quality of care provided by medical providers in its network. The providers allegedly used unsafe injection practices, potentially exposing the plaintiffs to the risk of contracting HIV, hepatitis, and other blood-borne diseases.