Leap Year Litigation

Leap Year

Today is February 29, 2016, which is unusual, because February typically only has 28 days. Apparently, the purpose of a leap year is that “the number of Earth’s revolutions about its own axis, or days, is not equal to or connected in any way to how long it takes for the Earth to get around the sun.” The full explanation is more extensive and exceeds the scope of this post, but it is worth the read for those who are interested. Here, we examine the appearance of the leap year in reported case law.

It should not be surprising that courts have faced leap year related excuses for late filings. A plaintiff has allegedly waived the right to file a discovery-related motion, because the plaintiff allegedly “calendared the due date of the motion as Monday, March 26, 2012, and filed it that day based on a lack of awareness that 2012 is a leap year.” Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357-CIV, 2012 U.S. Dist. LEXIS 56272, at *3 (S.D. Fla. Apr. 23, 2012). Unfortunately, the Court ruled that “[t]his type of error, in and of itself, however, does not provide good cause for out-of-time filing.” Id. A notice of appeal was not timely filed, despite the excuse that “the late filing” was caused in part by the appellant’s alleged “miscalculation of the time due to Leap Year . . . .” Hardman v. Comm’r, No. 08-1118, 2008 U.S. App. LEXIS 13613, at *1 (D.C. Cir. June 24, 2008). A leap year was not a basis for equitable tolling, despite the fact that the leap year “caused the statute of limitations to begin running on March 29, 2004, instead of March 30, 2004.” Simpson v. Wolfenbarger, No. 05-CV-71298-DT, 2006 U.S. Dist. LEXIS 6509, at *12 (E.D. Mich. Feb. 21, 2006).

The leap year has also spawned litigation. Litigation has arisen out of a dispute as to how an employer’s payroll practices should be adjusted to deal with the fact that “every eleven (11) years, a leap year causes a 27th pay period to occur.” Matter of Cty. of Erie v. Faculty Fedn. of Erie Cmty. Coll., 2014 NY Slip Op 24158, ¶ 2, 44 Misc. 3d 593, 594, 988 N.Y.S.2d 449, 450 (Sup. Ct.). A court has refused to give a prisoner “an extra day of credit for each leap year that he has served or will serve.” Keystone v. Johnson, Civil Action No. 7:06-cv-00503, 2006 U.S. Dist. LEXIS 63778, at *3 (W.D. Va. Sep. 7, 2006).

Leap years have also thrown wrenches into interest calculations. Kreisler & Kreisler, LLC v. Nat’l City Bank, 657 F.3d 729, 732 (8th Cir. 2011) (“Because the numerator and denominator do not match as they do in the other methods, the 365/360 method increases the effective interest rate by .01389 in a non leap year.”).

The above is by no means an exhaustive list of leap year appearances in litigation, but it does show that even the leap year is not immune from being dragged into the courthouse.


Friday Links

Don’t forget! If you are a South Carolina attorney, you must 2015-16 file your compliance report with the Supreme Court Commission on CLE and Specialization on or before March 1.

Remember that we have Leap Day on February 29 this year. Prepare yourself.

Are you following our law firm, Gallivan, White, & Boyd, P.A., on Facebook? If not, you can do so here. You’ll be able to keep up with all the news from our offices in the Carolinas!

Our favorite legal tweet of late comes from our editor, Jim Dedman, who recently attended the Hospitality Law Conference in Houston, Texas. It is self explanatory.

Abnormal Use and the Hospitality Law Conference II

As you may recall, we recently noted that Abnormal Use editor Jim Dedman, along with contributor Rob Corney, would be attending the Hospitality Law Conference in Houston this week. Jim spoke at the conference not once, but twice, first on legal ethics and technology, and again on preparedness for an active shooter situation.

Writing for Hotel Business, Nicole Carlino quoted Jim in a piece that was just run:

Meanwhile, Jim Dedman, partner, Gallivan, White & Boyd, P.A., discussed active shooter situations. “Studies suggest 10-15 minutes is about the amount of time these incidents take to unfold,” he said, noting that this means preparedness and training is paramount.

“How do we as attorneys or risk managers conceptualize and attempt to respond to an incident that is violent, rapidly evolving and unpredictable? Is this something we address pre-incident from a human resources standpoint where we attempt to de-escalate or recognize potential signs of violence? Is this something that we address by virtue of a preparedness plan or safety policy? Is this something we look to federal publications, which advise people who find themselves in an active shooter situation should run, and if they can’t run, to hide, and if they can’t hide, then fight? Is this something we address like earthquakes or fires in training?” he asked. “The answer to those questions is it’s a bit of all of them; it depends on the nature of your business, the size of your business and the location of your business.”

You can read the full article here.

Antonin Scalia, The Legacy of Democracy

The Originalist. The New Hamilton. The Italian Wordsmith. The Conservative Catholic. The Right-Winged Nut. Ginsburg’s BFF. Call him what you will. Justice Antonin Scalia left his footprint on the jurisprudence of the United States over the last thirty years that will not soon be forgotten. His opinion in Heller and his dissents in King v. Burwell, Lawrence v. Texas, Obergefell v. Hodges, and Fisher v. University of Texas are well-known and will be remembered for years to come, love ‘em or hate ‘em. Though many disagree with his originalist construction of the Constitution, Scalia was a revered and respected justice, by his friends and foes alike. And perhaps that is the legacy of Scalia, looking past some of his less-than-popular dissents or looking beyond his way with words. It is the legacy of democracy.

We live in a country where men and women, from different backgrounds and walks of life, are permitted to engage in debate, discourse, and flat out disagreement about what the Constitution and other laws mean. The Supreme Court is an institution that represents democracy (ignoring for a moment the political stare downs that have ensued since Scalia’s death). We all, from time to time, fail to appreciate democracy, and the justices’ bouts on the Supreme Court are a good reminder. Indeed, it is an arena of Frazier versus Ali, except it is Scalia versus Ginsburg. Sotomayor versus Thomas. Twelve rounds of writing and rewriting and at the end, harsh blows are exchanged.  No holds barred and, for the time being, a winner is declared. And at the end of the day, after the ink is dry, the justices remain friends, even best buddies. The band marches on, the flag still flies. This is America. As the wise, faux president (played by the ever-talented Michael Douglas) said in The American President, “America isn’t easy. America is advanced citizenship. You gotta want it bad, ‘cause it’s gonna put up a fight. It’s gonna say ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.'”

Think about that. The legacy of Scalia that perhaps everyone can agree on and build upon is his enduring love of country and the bench’s most fervent liberal justice, Ginsburg. The two were not mutually exclusive in Scalia’s eyes. And Ginsburg’s tribute to her dear friend and fellow justice states it best: “We are different, we are one, different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.”

$72 Million Verdict in Baby Powder Lawsuit

Baby powder

CNN reports that St. Louis jury recently awarded $72 million to the family of Jackie Fox, who died of ovarian cancer in 2015 at the age of 62.  Fox allegedly used talcum powder manufactured and sold by Johnson & Johnson for 50 years. Fox’s deadly cancer was allegedly caused by exposure to carcinogens in the talcum powder. Apparently, the case is part of a wider lawsuit brought by dozens of women against Johnson & Johnson. Allegedly, Johnson & Johnson knew about the risks of using products containing talc, but failed to warn consumers about the risks.

Johnson & Johnson stands by its product and its conduct.  A spokesperson recently stated: “The recent U.S. verdict goes against decades of sound science proving the safety of talc as a cosmetic ingredient in multiple products, and while we sympathize with the family of the plaintiff, we strongly disagree with the outcome.” For those who are unfamiliar with talc, it “is a naturally occurring mineral composed of magnesium, silicon, oxygen, and hydrogen. It’s used to absorb moisture in many kinds of cosmetic products, from baby powder to make up.”

Reportedly, after talc product manufacturers learned that the talc they were using contained asbestos in the 1970’s, “all manufacturers stopped using this kind of talc. Instead they swapped to corn starch, which is currently used by most US companies and has never been linked to cancer in any way – or asbestos-free talc.” Apparently, talc is generally believed to be safe, but some studies have “suggested it could cause ovarian cancer if used on the female genital area.” Specifically, some scientists “have suggested that talc particles could travel to the ovaries, irritate them and cause inflammation –  potentially increasing the risk of certain cancers.” The criticism of these reports, though, is that they are flawed because they “often relied on people who previously used talc that could have contained asbestos.”

According to the American Cancer Society, the International Agency for Research on Cancer has classified inhaled (asbestos-free) talc as not carcinogenic, but “based on limited evidence from human studies of a link to ovarian cancer, IARC classifies the perineal (genital) use of talc-based body powder as ‘possibly carcinogenic to humans.'”

So, it appears that the link between talc exposure and cancer is suspect at this point, but the large verdict will likely spawn many more lawsuits. Toxic tort lawyers should familiarize themselves with the issues surrounding talc exposure cases, because the odds are pretty good that the talc lawsuits may be coming to a courtroom near you.

Lawsuit Over Negative Yelp Review Has Unexpected Consequences

Like many businesses, Prestigious Pets, a pet sitting company in Dallas, Texas, is open to reviews on the crowd-sourced site, Yelp. Until a few short weeks ago, the company had a plethora of 4- and 5-star reviews and undoubtedly enjoyed the benefits of being a highly rated business. However, Prestigious Pets didn’t take too kindly to one negative reviewer and has decided to file suit. Now, those precious high-star reviews are getting drowned out by backlash from the Yelp community.

According to a report from Fox News, Robert and Michelle Duchouquette saw the positive Yelp reviews for Prestigious Pets and retained the company to take care of their dogs and fish while they were away on a trip. However, when they checked into their fish tank’s live video feed (who has this?) and saw the tank looked cloudy, they took to Yelp to voice their displeasure with the tank and some of the company’s billing practices.  The Duchouquettes were so upset about the experience that they left Precious Pets with the dreaded 1-star review. In response, Precious Pets filed suit against the couple for allegedly violating a non-disparagement clause contained in a contract the couple signed when retaining the company.  Prestigious Pets is seeking more than $6,700 in damages.

This is the classic case of not weighing the benefits of a “legal win” versus the negative repercussions of filing the lawsuit. Prestigious Pets has a total of 109 Yelp reviews.  Forty-eight of those reviews have come since news of the lawsuit broke. Of those 48, there are 43 1-star and 2 2-star reviews. Prior to the news, Prestigious Pets had 53 5-star and 5 4-star reviews. Doing the crude math, the filing of this lawsuit has brought Prestigious Pets’ rating from an overall average of 4.5 down to a 3 and that number continues to fall.  \Sure, Yelpers can read the reviews and discover that many of the recent negative reviews are mere reactions to the suit and not focused on the services provided. But, they can also see that the risk of a negative review is the possibility of accepting service of a summons and complaint. Not exactly the business model Prestigious Pets envisioned.

Friday Links

Rest in peace, Justice Scalia. Here’s a link to his obituary in The New York Times. And, of course, here is a link to Politico’s recent collection of the best Scalia quotes.

We welcome new attorney Amy Hill to our Columbia office! Click here for more info!

Once again, several members of our firm attended a Bruce Springsteen concert together. This time, it was last night at Philips Arena in Atlanta, and partners Phil Reeves, Ron Tate, and Jim Dedman all attended (as they usually do when Springsteen plays nearby).

If you’re a member of the State Bar of Texas (as our editor, Jim Dedman, is), you have two weeks to submit your entry to that bar’s short story contest. If you’ve got a 2,000 story in you, go for it. Click here for more details.

Our favorite legal tweet of late once again concerns the perils of social media:

Abnormal Use at the IADC Midyear Meeting

Our very own Stuart Mauney will be speaking at the IADC Midyear Meeting in Pebble Beach, California, this coming Monday, February 22. Stuart’s presentation is entitled “Taking Action: Recognizing & Responding to Depression, Suicide & Substance Abuse in the Legal Profession.” He will be talking about some of the data on lawyer mental health and substance abuse from a recently published study, sponsored by the ABA Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation. This study was published in the Journal of Addiction Medicine, Jan./Feb. 2016.

As you may know from his past posts here at Abnormal Use, Stuart is a mental health advocate and frequent speaker on lawyer mental health. We have asked him to provide further information on this landmark study in a future blog post.

Advice to Law Students – Participate in Moot Court

Perry Mason

We are frequently approached by law students and aspiring law students for advice. Of course, we advise that they should make good grades and not borrow one penny more than needed. That is common sense. What we also advise, and what is not common sense, is that for aspiring litigators, participate in moot court.

Like many others, the aspiring law student enters law school with visions of Perry Mason courtroom moments and dramatic cross examinations. Until recent decades, expectations were pretty close to reality. Now, though, as various outlets have recently reported, very few civil cases go to trial compared to those in the past. However, some cases still make it to a jury, and one must be prepared to try those cases when they do.  And if a trial doesn’t go your way, you may need to appeal. If most cases settle before trial, it goes without saying that there are fewer appeals, as well. To further complicate matters, in order to be adequately prepared to try a case or argue an appeal, one probably needs courtroom experience. So how does one obtain trial or appellate experience if cases rarely go to trial? One answer is moot court.

This author was fortunate to have participated in a well-organized, well-run moot court program that involved appellate court competitions with real appellate judges, trial competitions with real juries and trial judges, and various other simulated courtroom experiences that were as close to real life as you can get without someone’s real life or real money being on the line. This author spent the second and third year of law school participating in every appellate and trial competition that the team would allow. And for each competition, there were dozens of practices during which lawyers from the community watched and provided criticism. The result was that, when this author transitioned from law school to firm life, he had hundreds of trial and appellate experiences under his belt. As a result, the “first time” he was asked to argue a motion or try the case, it was not nearly as terrifying a proposition as it could have been otherwise. Where some people would need to overcome the initial fear of the unknown, and ascertain the basics of how the courtroom worked, he was able to focus on the merits of the argument, trial, et cetera, and walk into the courtroom with confidence.

This post is not meant to downplay the importance of learning legal principles in the classroom or the importance of learning how to write briefs. The point, though, is that there is no shortage of brief writing experience to be had for law firm associates, and unless you practice criminal law, you will need to learn the law in your practice area when you transition to firm life anyway. For aspiring litigators, the most important thing you can do in law school is to devour as many appellate and trial experiences as you can in the short amount of time you are in law school. You will be glad you did the first time a partner hands you a file and tells you the case is up for trial in a week. Additionally, for firms like ours who pride themselves in being trial ready on every case, the trial is the end goal, and if the litigator understands the end goal, it will help to focus all of the legal research and fact finding efforts on what is important.

Abnormal Use at the Hospitality Law Conference

For the third year in a row, we here at Abnormal Use will be at the Hospitality Law Conference in Houston, Texas. The conferences, which takes place in Houston next week from February 22 to 24, will also feature our own editor, Jim Dedman, as a speaker. In fact, he’s speaking not once, but twice. On Day One (Monday the 22nd), he’ll be speaking on Ethics and Technology. On Day Two (Tuesday the 23rd), he’ll be giving a talk called “Workplace Violence: Preparing, Recognizing, Training, and Responding to an Active Shooter” (a presentation he could not have put together without the assistance of Rob Corney and Lindsay Joyner). Rob will be at the conference, as well, so say hello!