In an interesting ruling earlier this week, a New Jersey appellate court held that you don’t have to be driving to get in trouble for sending a text message.   You can potentially be held legally liable for sending a text message to someone who is behind the wheel and causes an accident.  This ruling seems to open a whole new battlefield in the war on texting and driving. The Appeals Court agreed with the argument made by two Plaintiffs that were seriously injured in a crash with a teenager whose truck swerved across the center line and hit them riding on their motorcycle. The Plaintiffs settled with the driver, but they also sued his girlfriend for their injuries.  She allegedly texted him just moments before the crash. The court didn’t find the girlfriend liable because she didn’t appear to know her boyfriend was driving at the time.  Nevertheless, the judges accepted the general argument that a text sender may bear some legal liability if they know the relieving party is driving.  The opinion stated:

We conclude that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.

This is certainly an interesting new duty placed on non-driving texters.  Even if there is such a duty, one must wonder whether the sending of the text would be considered the proximate cause of any accident.  After all, wouldn’t the driver’s act of accessing and reading the text be the proximate cause of the accident, not necessarily the person sending the text? And how would the non-driving texter’s purported knowledge of the recipient’s driving be litigated under the circumstances? This opinion should make for some interesting future litigation.

The opinion is Kubert v. Best, — A.3d —-, No. A-1128-12T4, (N.J. Ct. App. Aug. 27, 2013).

In case you missed it, here are the factual findings in the recent reprimand of a former state court magistrate judge, who was recently disciplined by the South Carolina Supreme Court for the following:

Two Pennsylvania women brought a state law nuisance claim in federal court against the owner of coal fired power plant that allegedly damaged their property through the emissions of ash, chemicals, and odors.  The power plant, which is owned by GenOn Power, was apparently in compliance with the state and federal environmental regulations that govern the operation of coal power plants.  The lawsuit was initially dismissed by the district court, which held the suit was preempted by the Clean Air Act.   The Third Circuit recently reversed the district court and held that the Clean Air Act is not preemptive.

In its decision, the Third Circuit found that “nothing in the Clean Air Act [indicates] that Congress intended to preempt state common law tort claims.”  The Court further stated that the Clean Air Act is “a regulatory floor, not a ceiling, and expressly held that states are free to impose higher standards on their own sources of pollution, and that state law tort is permissible way of doing so.”  The Third Circuit relied in large part on the Supreme Court’s holding in International Paper Co. v. Ouellette, 479 U.S. 481 (1987),which held that the Clean Water Act did not preempt state law tort claims.

The Third Circuit’s ruling appears to go against strong authority supporting preemption.  In Am. Elec. Power Co., Inc. v. Connecticut, the Supreme Court held that the Clean Air Act preempted federal common law nuisance claims as a means to curb emissions from a power plant. 131 S. Ct. 2527 (2011). In that case, the Supreme Court noted that the EPA has been designated to serve as the emission regulator and is better suited to do so than judges issuing ad hoc injunctions.  Additionally, the Fourth Circuit has held that that state law nuisance claims against power plants are preempted because they threaten the comprehensive regulatory scheme. See N. Carolina, ex rel. Cooper v. Tennessee Valley Auth., 615 F.3d 291, 303 (4th Cir. 2010).

This new ruling is very significant as it opens the door to a potential onslaught of litigation.  It means that residents can pursue property claims against power plants even though they are in compliance with state and federal regulations.  That sound that citizens in Northeast are hearing is the sound of their electricity rates and bills clicking higher.

A “volunteer” can be defined as one who offers to provide a service willingly and without pay.  Apparently, one New York resident wants to rewrite the definition of volunteer.  John Chen was one of many persons that volunteered to work for free at Major League Baseball’s 2013 All-Star Fan Fest.  Now, after the fact, Mr. Chen is looking to get paid and has filed suit claiming that MLB violated wage laws. I always thought the minimum wage for volunteers was $0.  Surely, there must be more to this story, right? Allegations of fraud and deception? Broken promises? Nope, there’s nothing of the sort.

One way Plaintiffs attorneys identify potential clients is through FOIA requests seeking DMV records.  Not surprisingly, some citizens aren’t pleased about this practice. Recently, a South Carolina case on this issue went all the way to the United States Supreme Court, which held that lawyers may not obtain personal information via state driver license records in order to recruit clients for lawsuits.

For some time, the Federal Trade Commission (FTC) has been attempting to limit the scope of anti-trust immunity under the “state action doctrine.”  The state action doctrine provides that states may take regulatory actions that would have otherwise violated federal anti-trust laws.  The FTC recently recorded a big win in this ongoing fight in the matter of  North Carolina State Board of Dental Examiners v. Federal Trade Commission, Case No. 12-1172 (4th Cir. May 31, 2013).  The Fourth Circuit held that the the Board of Dental Examiners improperly expelled non-dentists from the teeth whitening market in North Carolina.

A few months back, we commented on Pennsylvania Governor Tom Corbett’s antitrust lawsuit against the NCAA.  Specifically, we addressed the issue of whether Governor Corbett had standing to bring the suit.   The Federal district court has now ruled on the issue and proved our analysis to be correct — partially.  The Court dismissed the suit, and although it found that Governor Corbett and the Commonwealth lacked standing, the lack of standing was due to deficiencies in the factual allegations and the underlying claims.

In a 27 page opinion issued last week, Judge Yvette Kane dismissed the Commonwealth’s antitrust lawsuit.  As we noted in our original analysis, the Commonwealth’s standing to bring the lawsuit was based on the parens patriae doctrine. The Court essentially agreed that the Commonwealth would have standing under this doctrine if it brought a valid antitrust claim.  However, the Court did not believe that factual allegations relating to the underlying claims were sufficient to qualify as an antitrust violation and dismissed the suit accordingly.  Specifically, the Court found that there could be no antitrust violation because the NCAA was not engaged in economic activity and the facts alleged were not sufficient to show a conspiracy.

Forbes.com legal contributor Marc Edleman wrote a good piece outlining why the Court was wrong with respect to the underlying claims.  He notes how illogical it is for the Court to find the NCAA is not an economic actor given how many teams, including Penn State, generate over $100 million dollars in revenue.  With respect to the Court’s finding of a lack of conspiracy, Edleman observes that although NCAA President Mark Emmert is just one person, when independent businesses come together to form a trade association,their association-wide decisions are collective action.

It will be interesting to see if Governor Corbett appeals the ruling.  Many believe that regardless of the suit’s merit, Governor Corbett’s real motivation for bringing the suit was to boost his approval ratings. He may let this one stand given that any appeal decision might not come until after the next gubernatorial election in 2014.

Here we go again.  Another purported case of a for-profit law school alleged to have played games with its students.  Except this time, some professors claim they also got the shaft when they tried to stick up for the students.  The Phoenix School of Law (not that Phoenix, but rather this Phoenix) has been sued by two of its former professors, who claim that they were improperly fired after raising concerns about new school policies designed to make it difficult or impossible for students transfer after their first year.

As the National Law Journal recently reported, Michael O’Connor and Celia Rumann filed suit alleging that were essentially terminated after they opposed the school’s proposed changes to policies and curriculum dubbed “Legal Ed. 2.0.”  So what the heck is “Legal Ed 2.0?”  According to the complaint, it’s a set new “improvements” designed to prevent current students from transferring to more highly ranked schools after the first year.  Among the “improvements” that the administrators considered implementing included:

1. Refusing to write recommendation letters for transfer students;
2. Reordering mandatory first-year classes to render them incompatible with other law schools; and
3. Adopting a pass/fail grading system for 1Ls to prevent competitors identifying top students.

Yeah, that sounds exactly like the kind of school that is looking out for the best interests of students.  Perhaps this sort of thing should be expected when a school’s stated goal is to make $$$$ and they’ve got upwards of 15 percent of students transferring after the first year.  Maybe the school could spin this as a free business lesson to all of its students.  Once again, when it comes to law schools, buyer beware.

The Velvet Underground’s first album cover, which featured a drawing of a large yellow banana, has been the subject of recent litigation.  Why? In a collaborative effort with the band in the 1960’s, Andy Warhol designed the banana that was featured on the album cover.  A recent spat arose between the Velvet Underground and the  Warhol Foundation’s over the Foundation’s proposed licensing of the banana for use on case  for Apple products.  The suit recently settled out of court for an undisclosed amount.

The suit was first filed by The Velvet Underground in January of 2013 alleging that Warhol Foundation violated its rights to the album design by licensing the design for commercial purposes.  The banana graces the cover of the band’s album The Velvet Underground and Nico, which was rated by Rolling Stone as the 13th best album of all time.  However, the band never sought or received trademark registration for the image from the U.S. Patent and Trademark Office.  Nevertheless, they claim instead that they earned trademark rights by virtue of years of association with it. Without the trademark registration, the band was certainly facing an uphill battle.  It would have had to prove that the design has come to be associated by the public with the band itself.  While that may be true with regard to certain segment of the population that is really into music, most of the general public would recognize the drawing as nothing more that a typical piece from Warhol’s collection.  Especially given that the album cover also prominently featured Warhol’s signature.

Probably best for both parties that they just went ahead and split this banana (pun intended).

Straight from the Hoosier State is a lawsuit that invokes memories of Jackie Chiles.  According to Business Week and the Associate Press, an Indiana trade group filed a lawsuit seeking to overturn certain restrictions on the sale of chilled beer.  Can’t you picture Kramer walking into Jackie’s office complaining about the lack of cold beer at the local convenience store? As Jackie once said, “Yeah that’s going to be a problem. It’s gonna be a problem for them. This a clear violation of your rights as a consumer. It’s an infringement on your constitutional rights. It’s outrageous, egregious, preposterous!” Under a 1963 state law, chilled beer cannot be legally sold in Indiana unless it is sold in a liquor store.  Now, the Indiana Petroleum Marketers and Convenience Store Association has challenged the ban in federal court.  The lawsuit claims that the law is arbitrary and discriminates against grocery and convenience stores.

According to a representative of the group:

“In reviewing the history, it became more and more clear to us there really was not a rational basis for the current law. The fact the law says pharmacies, convenience stores and grocery stores are capable enough to sell the product warm, then it gets rather arbitrary about what temperature it can be sold at. When you change the temperature, it doesn’t change the alcohol content.”

Ironically, the grocery stores and convenience stores can already sell chilled wine.  I’d say the probably have a decent case that the law is indeed arbitrary.  Nevertheless, it’s probably still a long shot that they win the lawsuit, but here’s to hoping the good guys win this one.