The Lawletter Vol 39 No 7
Alistair Edwards, Senior Attorney, National Legal Research Group
The Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692–1692p, is a consumer protection statute that protects consumers from unfair, deceptive, and harassing collection practices, while leaving debt collectors free to employ efficient, reasonable, and ethical practices in pursuit of their profession. Among other things, the FDCPA requires a debt collector to give certain notices to the consumer. For example, § 1692g provides:
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Topics:
legal research,
Alistair Edwards,
creditor's rights,
The Lawletter Vol 39 No 7,
Fair Debt Collection Practices Act,
consumer protection statute,
initial § 1692g information may be oral
The Lawletter Vol 39 No 7
John Stone, Senior Attorney, National Legal Research Group
An architectural firm and two developers sued a City after the City abandoned its plan, under a "Memorandum of Understanding" ("MOU") into which the parties had entered, to develop a publicly funded hotel. The plaintiffs asserted claims for breach of contract and quantum meruit. The Supreme Court of South Carolina granted summary judgment for the City on both claims. Stevens & Wilkinson of S.C., Inc. v. City of Columbia, No. 27434, 2014 WL 4087936 (S.C. Aug. 20, 2014) (not yet released for publication).
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Topics:
legal research,
S.C. Supreme Court,
John M Stone,
The Lawletter Vol 39 No 7,
contracts law,
memorandum of understanding,
nonbinding,
Stevens & Wilkinson of S.C. v. City of Columbia,
only intention to enter future agreements,
document terms indicated nonbinding,
quantum meruit requires unjust enrichment
The Lawletter Vol 39 No 7
Brad Pettit, Senior Attorney, National Legal Research Group
A recent decision by the U.S. Tax Court illustrates the difficulties that can be encountered by taxpayers who want to avoid the special rules that apply with respect to the deductibility of losses from "passive" business or investment activities. In Schumann v. Commissioner, T.C. Memo. 2014-138, 2014 WL 3408198, the Tax Court ruled that since an individual who invested in rental real estate was not a "real estate professional," the deductibility of losses that he sustained in connection with his rental property activities and investments was subject to the passive activity loss rules that are set forth in § 469 of the Internal Revenue Code.
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Topics:
legal research,
Brad Pettit,
tax,
The Lawletter Vol 39 No 7,
deductibility of losses,
passive business or investment activities,
includes rental activity,
Schumann v. Commissioner,
26 U.S.C. § 469,
loss disallowed in taxable year it occurred,
documentation time involved to establish time spen
The Lawletter Vol 39 No 7
Anne Hemenway, Senior Attorney, National Legal Research Group
The Rooker-Feldman doctrine, developed by the U.S. Supreme Court, provides that because the jurisdiction of the federal district courts "is strictly original," Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923), a federal district court "has no authority to review final judgments of a state court in judicial proceedings[,]" D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). The doctrine is consistent with, and serves to implement, 28 U.S.C. § 1257, which allows only the U.S. Supreme Court to review final judgments and decrees rendered by the highest court of a state.
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Topics:
legal research,
Anne Hemenway,
civil procedure,
The Lawletter Vol 39 No 7,
federal court jurisdiction,
Rooker-Feldman doctrine,
28 U.S.C. § 1257,
Great Western Mining & Mineral Co. v. Fox Rothschi,
Truong v. Bank of America defining terms "ine
The Lawletter Vol 39 No 6
Fred Shackelford, Senior Attorney, National Legal Research Group
When a jury awards different amounts of compensatory damages to multiple plaintiffs in the same case but also awards each plaintiff the same amount of punitive damages, can a court compare the compensatory damages awards to determine whether a punitive damages award is excessive? That was the issue before the Virginia Supreme Court in the case of Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014). There, an intoxicated motorist (Canchola) caused an accident that injured another driver (Coalson) and the other driver's passenger (Stemke). In an action by both injured parties against Canchola, the jury awarded compensatory damages of $5,600 to Coalson and $14,000 to Stemke, in addition to awarding $100,000 in punitive damages to each of them. The trial court remitted Coalson's punitive damages award, noting a "significant disparity" between the plaintiffs' compensatory damages awards but identical awards of punitive damages. On appeal, the Coalson court first determined that punitive damages were warranted based on Canchola's egregious conduct, as follows:
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Topics:
legal research,
Fred Shackelford,
Va. Supreme Court,
The Lawletter Vol 39 No 6,
personal injury law,
comparing punitive damages to prove excessive comp,
Coalson v. Canchola,
determination must be based on facts and circumsta
The Lawletter Vol 39 No 6
Matt McDavitt, Senior Attorney, National Legal Research Group
It is well known that the jurisdiction conferred to the federal courts by the Judiciary Act of 1798 did not include authority over probate, as administration of decedent estates was reserved for the several states. Markham v. Allen, 326 U.S. 490 (1946). This jurisdictional exclusion of federal courts from probate matters has been deemed the "probate exception." While traditionally the probate exception was interpreted broadly, thereby deterring federal courts from assuming jurisdiction over matters even tangentially related to probate of estates, the scope of the probate exception has narrowed in recent years such that federal courts now will entertain suits involving probate estates under certain circumstances.
In 2006, the U.S. Supreme Court dramatically limited the scope of the probate exception, departing from prior jurisprudence and defining more precisely when federal courts may validly assume jurisdiction over disputes involving probate estates. The federal courts are not permitted to adjudicate issues involving (a) the administration of decedent estates, or (b) the disposition of property actually and presently in the in rem custody of the probate court, but issues outside these bounds are fair game for federal jurisdiction:
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Topics:
legal research,
Matt McDavitt,
estates,
U.S. Supreme court,
Third Circuit,
probate exception,
federal jurisdiction,
Marshall v. Marshall,
Three-Keys Ltd. V. SR. Utilities Holding Co.,
federal court may not probate,
annul,
dispose of property,
The Lawletter Vol 39 No 6
The Lawletter Vol 39 No 6
Doug Plank, Senior Attorney, National Legal Research Group
In what some commentators have described as the most important criminal law decision of its 2013-2014 Term, the U.S. Supreme Court ruled unanimously in Riley v. California, 134 S. Ct. 2473 (2014), that before police may search the contents of a cell phone seized after an arrest, they must first obtain a search warrant. In reaching this determination, which is a departure from the Court's general rule that a person's belongings may be searched without a warrant incident to an arrest of that person, the Court found that "[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." Id. at 2489. In fact, the Court noted, many cell phones are actually minicomputers that also happen to have the capacity to be used as a telephone, and they could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. The Court found that because cell phones are both a repository of sensitive personal data, with immense storage capacity, and a portal to private records stored on remote servers, they simply could not fairly be said to be analogous to physical containers under the search-incident-to-arrest rule.
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Topics:
legal research,
cell phone,
warrantless search,
U.S. Supreme court,
Doug Plank,
criminal law,
not analogous to physical containers,
Riley v. California,
only case-specific exceptions applicable
The Lawletter Vol 39 No 5
Topics:
legal research,
Charlene Hicks,
contracts,
Washington Supreme Court,
Gandee,
The Lawletter Vol 39 No 5,
arbitration provision,
unconscionable,
US Supreme Court controversial cases require indiv,
Concepcion,
131 S. Ct. 1740,
Stolt Nielsen,
559 U.S. 662,
unconscionable claim analyzed under state law
The Lawletter Vol 39 No 5
Suzanne Bailey, Senior Attorney, National Legal Research Group
Arizona is one of seven states that make it unlawful for a driver to be in actual physical ontrol of a motor vehicle while there is a proscribed drug or "its metabolite" in the operator's body. Ariz. Rev. Stat. § 28-1381(A)(3). (The other six zero-tolerance jurisdictions are Delaware, Georgia, Indiana, Minnesota, Pennsylvania, and Utah. Joshua C. Snow, The Unconstitutional Prosecution of Controlled Substance Metabolites Under Utah Code § 41-6a-517, 2013 Utah L. Rev. OnLaw 195, 212 n.14 (2013).) In State ex rel. Montgomery v. Harris, 322 P.3d 160 (Ariz. 2014), the Supreme Court of Arizona was asked to determine whether the phrase "its metabolite" includes Carboxy-Tetrahydrocannabinol ("Carboxy-THC"), a nonimpairing metabolite of marijuana, which is a drug proscribed by statute. The court concluded that it does not.
In Montgomery, the driver was stopped for speeding and making unsafe lane changes. After admitting to smoking some "weed" the night before, the driver voluntarily submitted to a blood test that revealed Carboxy-THC in his blood. He was charged with driving under the influence of a drug, in violation of section 28-1381(A)(1), and driving while a metabolite of a proscribed drug was in his body, in violation of section 28-1381(A)(3). The justice court dismissed the charge based on the presence of "its metabolite," and the State voluntarily dismissed the driving-under-the-influence charge. The superior court affirmed the justice court, but the court of appeals reversed, finding that the statute included the metabolite Carboxy-THC and that inclusion was not overbroad. State ex rel. Montgomery v. Harris ex rel. County of Maricopa, 301 P.3d 580 (Ariz. Ct. App. 2013). The state supreme court vacated the opinion of the court of appeals and affirmed the dismissal of the "its metabolite" charge, with one justice dissenting.
The court found "its metabolite" to be ambiguous because it could mean all of a proscribed drug's metabolites, some of its metabolites, or only metabolites that cause impairment. The driver argued that the phrase referred to only Hydroxy-THC, the initial product of the metabolism of THC. The State insisted that the statute referred to all metabolites, including the nonimpairing Carboxy-THC, which was tested for. Significantly, the impairing Hydroxy-THC does not remain in the blood for very long and quickly converts to Carboxy-THC, which is why the State tests for Carboxy-THC but not for Hydroxy-THC. Carboxy-THC, on the other hand, can remain in the body for as many as 28 to 30 days after the ingestion of marijuana.
Looking to the legislative history, which demonstrated an intent to prevent impaired driving, the court concluded that "its metabolite" is limited to metabolites capable of causing impairment. To hold otherwise could lead to the absurd result that a driver could be found guilty regardless of how long the metabolite remained in his or her body or whether it had an impairing effect. Furthermore, given that Arizona legalizes marijuana for medicinal purposes, the State's overinclusive reading could criminalize legitimate use after the impairing effects have worn off. Finally, a broad reading of "its metabolite" could allow the prosecution of an individual who drives after ingesting a legal substance that shares a nonimpairing metabolite with a proscribed substance.
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