The Lawletter Vol 36 No 8
The Lawletter Blog
EMPLOYMENT DISCRIMINATION: Availability of a Cause of Action Under §§ 501 and 504 of the Rehabilitation Act
Posted by Gale Burns on Wed, Feb 29, 2012 @ 16:02 PM
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Topics: Dora Vivaz, legal research, split in circuits, employment discrimination, The Lawletter Vol 36 No 8, Rehabilitation Act, § 501 employment of disabled individuals, § 504 prohibiting discrimination against disabled, can suit be brought under either or both
CRIMINAL LAW: Search and Seizure—Attachment by Police of GPS Device to Vehicle Constitutes a Search
Posted by Gale Burns on Wed, Feb 29, 2012 @ 15:02 PM
The Lawletter Vol 36 No 8
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Topics: legal research, The Lawletter Vol 36 No 8, GPS, search and seizure, U.S. Supreme Court affirms, United States v. Jones, violation of Fourth Amendment, use constitutes a "search", criminal law, Mark Rieber
Fifth Circuit Reverses District Court's Judgment That Hip Replacement Claims Were Preempted by Medical Device Amendments
Posted by Gale Burns on Mon, Feb 20, 2012 @ 15:02 PM
February 21, 2012
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Topics: legal research, products liability, Jeremy Taylor, Medical Device Amendments, 21 U.S.C. § 360k, some claims survived preemption, state may provide a damages remedy for violation o
PUBLIC LAW UPDATE: Screening of Airline Passengers Withstands Constitutional and Statutory Challenges
Posted by Gale Burns on Mon, Feb 20, 2012 @ 12:02 PM
January 3, 2012
John Stone, Senior Attorney, National Legal Research Group
By federal statute, anyone seeking to board a commercial airline flight must be screened by the Transportation Security Administration ("TSA") in order to ensure that he or she is not "carrying unlawfully a dangerous weapon, explosive, or other destructive substance." 49 U.S.C. §§ 44901(a), 44902(a)(1). The details of the screening process have largely been left to the discretion of the agency.
In response to a 2004 congressional directive, but also to address the inadequacies of the older magnetometers through which passengers were required to pass, the TSA began contracting with private vendors to develop advanced imaging technology ("AIT") for use at airports. One of the AIT scanners subsequently procured by the TSA uses millimeter wave technology, which relies upon radio frequency energy, and the other uses backscatter technology, which employs low‑intensity X‑ray beams. Each technology produces a crude image of an unclothed person, who must stand in the scanner for several seconds while it generates the image. That image enables the operator of the machine to detect a nonmetallic object, such as a liquid or powder—which a magnetometer cannot detect—without touching the passengers coming through the checkpoint.
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Topics: legal research, airline screening, contracts with private vendors, advanced imaging technology (AIT), secondary screening by AIT or pat down, rule allowed AIT technology instead of magnetomete, claim of statutory and constitutional violations f, Privacy Act claim failed, public law, John M Stone
TORTS: Negligent Misrepresentation—Economic Loss Rule
Posted by Gale Burns on Mon, Feb 6, 2012 @ 13:02 PM
The Lawletter Vol 36 No 7
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Topics: legal research, Fred Shackelford, The Lawletter Vol 36 No 7, tort law, recovery for negligent representation by a contrac, negligent misrepresentation v. contract or warrant, economic loss rule
The Lawletter Vol 36 No 7
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Topics: legal research, Supreme Court, The Lawletter Vol 36 No 7, discovery requirements, Brady v. Maryland, Smith v. Cain, propsecutors must turn over all exculpatory eviden, Justice Thomas dissenting, Doug Plank, criminal law
CIVIL PROCEDURE: Sovereign Immunity of Virginia Water Authorities
Posted by Gale Burns on Thu, Feb 2, 2012 @ 16:02 PM
The Lawletter Vol 36 No 7
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Topics: legal research, The Lawletter Vol 36 No 7, governmental immunity, proprietary actions are not immune, water authorities generally have limited immunity, sovereign immunity for governmental functions but, Matt McDavitt
"It's Not Delivery. It's DiGiorno®."—A Short Note on TILA's Notice and Delivery Requirements
Posted by Gale Burns on Thu, Feb 2, 2012 @ 13:02 PM
February 7, 2012
Steve Friedman, Senior Attorney, National Legal Research Group
The Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1692–1692p, is a federal consumer protection statute intended "to promote consumers' 'informed use of credit' by requiring 'meaningful disclosure of credit terms[.]'" Chase Bank USA v. McCoy, 131 S. Ct. 871, 874 (2011) (quoting 15 U.S.C. § 1601(a)). Pursuant to its authority under TILA, the Board of Governors of the Federal Reserve System has promulgated Regulation Z, codified as 12 C.F.R. part 226, "which requires credit card issuers to disclose certain information to consumers." Id. Among other things, TILA and its implementing Regulation Z give the consumer-borrower a remorse period in which to rescind a transaction.
Significantly, when the TILA notice is provided in writing, as opposed to electronically, Regulation Z requires that lenders "deliver two copies of the notice" and that such notice include "[t]he date the rescission period expires." 12 C.F.R. § 226.23(b)(1). Ordinarily, the rescission period is three business days, see 15 U.S.C. § 1635(a), but that period is extended to three years if the requisite notice of the right to cancel is not delivered to the borrower, see 12 C.F.R. § 226.23(a); see also 15 U.S.C. § 1635(f). This distinction proved critical in a recent case from the U.S. Court of Appeals for the Ninth Circuit.
In Balderas v. Countrywide Bank, No. 10-55064, 2011 WL 6824977 (9th Cir. filed Dec. 29, 2011), a Spanish-speaking couple alleged that they had been pressured by a bank and its representatives to enter into a mortgage loan that the bank knew they could not afford and on terms they did not agree to. Among other theories, the plaintiffs sought to rescind the entire transaction, alleging that they had been given defective copies of TILA's notice of right to cancel in that the notice did not include the date on which their right to rescind expired. However, the district court granted the bank's Rule 12(b)(6) motion to dismiss, because the court determined that the plaintiffs had been entitled under TILA to only a three-day rescission period, which had elapsed prior to the filing of their lawsuit. The court's decision was based upon a copy of a nondefective notice-of-right-to-cancel letter bearing the plaintiffs' signatures, attached as Exhibit 14 to the complaint, that included an acknowledgment that the plaintiffs had received two copies of said notice. Upon the plaintiffs' appeal, the Ninth Circuit reversed and remanded.
Initially, the appellate court recognized that the plaintiffs' signatures on the disclosure statement did not conclusively prove that it had been delivered to them as required by TILA. "[P]roviding someone a document long enough to sign it does not comply with 12 C.F.R. § 226.23(b)(1), which requires the lender to 'deliver' copies of the Notice of the Right to Rescind to the consumer." Id. at *3. By using the word "deliver," Regulation Z undoubtedly commands that the consumer be allowed to keep the notice. See also 12 C.F.R. § 226.17(a)(1) (the requisite written disclosures must be provided "in a form that the consumer may keep"). The court drove this point home by relating a couple of common-sense analogies: "When you have pizza delivered, you don't sign for it and let the deliveryman take it back to the restaurant. And when a newspaper boy delivers a paper, he doesn't show you the headlines and then return it to the printer." 2011 WL 6824977, at *3.
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Topics: legal research, Truth in Lending Act, TILA, Regulation Z, consumer-borrower remorse period, rescission period extended if notice of right to c, "deliver" mandates notice borrower is al, complaint not proper use for document production, distinct standard for review of motion to dismiss, property law, Steve Friedman
EMPLOYMENT LAW: Supreme Court Upholds Arizona Illegal Workers Law Against Preemption Challenge
Posted by Gale Burns on Mon, Jan 23, 2012 @ 16:01 PM
January 24, 2012
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Topics: legal research, employment law, John Buckley, Legal Arizona Workers Act, sanctions against employers knowingly hiring undoc, E-Verify to check legal status, federal court challenge to Act, U.S. Chamber of Commerce v. Whiting, 131 S. Ct. 1968, federal Immigration Reform and Control Act not pre
TAX: IRS's Right to Examine a Taxpayer's E-Mails
Posted by Gale Burns on Thu, Jan 19, 2012 @ 11:01 AM
The Lawletter Vol 36 No 6
Brad Pettit, Senior Attorney, National Legal Research Group
A recent advisory issued by the Chief Counsel's Office of the Internal Revenue Service ("IRS") sets forth the IRS's position on the procedures that its agents must follow in order to obtain a taxpayer's e-mails from his or her Internet service provider ("ISP"). In I.R.S. Chief Counsel Advisory ("I.R.S. C.C.A.") 2011-41-017 (July 8, 2011), the IRS interpreted provisions of the Internal Revenue Code relating to examination of a taxpayer's records, the Stored Communications Act ("SCA"), and a decision by the U.S. Court of Appeals for the Sixth Circuit, and concluded that there are certain restrictions on the ability of an IRS agent to issue a summons to a taxpayer's ISP, seeking the contents of a taxpayer's electronic communications.
The Internal Revenue Code provides that
For the purpose of ascertaining the correctness of any return, making a return where none has been made, [or] determining the liability of any person for any internal revenue tax . . . , the Secretary [of the Treasury] is authorized—
(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary may deem proper, to appear before the Secretary at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry[.]
I.R.C. § 7602(a)(1)–(2). The federal SCA states that
[a] governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system for one hundred and eighty [180] days or less, only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.
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Topics: legal research, The Lawletter Vol 36 No 6, IRS, examination of taxpayer records, access to emails, Internet service provider ISP, warrant needed for probable cause, good-faith reliance exception, 18 U.S.C. § 2703, Brad Pettit, tax
