A race to the finish is one thing, but if you’re finished because of your race, well, that’s quite another.  This case, recently decided by the U.S. Supreme Court, was closely watched, both because it involved allegations of racial discrimination by white firefighters of the City of New Haven Fire Department and because Judge Sonya Sottomayor took part in the Lower Court decision.  Forty-one candidates took the test and when the smoke cleared, 22 had passed – 16 whites, 3 blacks and 3 Hispanics.  The immediate cry was the test was discriminatory, as proved by the fact that so few minority applicants passed it.  That’s called the disparate impact test, and the City decided to throw out the test result because of it.  The white firefighters sued and the Lower Court backed the City, but the U.S. Supreme Court reversed, holding that no individual should face workplace discrimination based on race.  Four justices dissented, writing that a city that’s 60% Latino and African-American has to do better.  But the majority ruled and, basically, it’s as simple as black and white.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Frank Ricci v. John D’Stefano, et al., U.S. Supreme Court, No. 07- 1428 and 08-328, Kennedy, J., June 29, 2009, U.S. Law Week, Vol. 77, No. 50, Pg. 5639

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How do you feel about text spam on your cell phone?  Well, the Ninth Circuit has just short-circuited what could’ve turned out to be a real pain in the ear.  The case involved unsolicited ads sent to cell phones via the SMS system, which stands for Short Messaging Service.  The company argued that the Consumer Protection Act prohibits calls and a text is not a call.  Also, the law only outlaws calls made by automatic dialers and, lastly, the cell phone owners, in return for a special free ringtone, had agreed to receive promotional messages.  Well, the Court ruled the text message is a call, that Webster’s defines a call as to communicate with a person by telephone.  Also, although these numbers were not made by automatic dialers, the equipment had the capacity to do so and, lastly, the advertiser had to own the company making the free offer, which it didn’t.  So who you’re gonna text has run into text buster, and text spam is a hard sell for them and a soft cell phone for you.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Satterfield v. Simon and Shuster, Ninth Circuit Court of Appeals, No. 07-16356, June 19, 2009, Smith, J., U.S. Law Week, Vol. 77, No. 50, Pg. 1831, 6-30-09

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The fine print may not be so fine after all.  Joe was sure he could get out of his high-rate mortgage because federal law requires borrowers receive notice they have the right to rescind or cancel a transaction within three business days and, if that notice isn’t given, they have up to three years to rescind the deal.  In the documents Joe signed, the transaction date and the three-day deadline date had been left blank.  But the Court of Appeals for the First Circuit held it was just a technical mistake since the date of the transaction was stamped on the upper right corner and the text said the borrower had three business days to rescind.  Other Circuits have held that even the most minor technical flaw triggers the three-year rescission privilege.  But the Court said if Mel had read the document, he would’ve seen the date of the transaction and could have easily counted three days forward.  So unless the Supreme Court writes the final word, Joe is out of luck.  A little thing did in the little guy, and it looks like the fine print is fine for them, but not fine for you.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Melfi v. WMC Mortgage Corp., First Circuit Court of Appeals, No. 09-1066, Boudin, J., U.S. Law Week, Vol. 77, No. 50, Pg. 1813, 6-30-09

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Google is great but it’s not beyond the reach of the law, and a recent decision by the Second Circuit Court of Appeals may cause Google to gag.  This case was brought by a company called Rescue.com, a computer service company.  Rescue.com objected to its placement on the Google search engine and sued, claiming Google users are misled into believing that ads that appear on the screen are part of the relevance-based search engine as opposed to paid advertisements, which they are.  The way it works is that companies purchased keywords which put them high up on the list.  At issue in this case was the keyword suggestion tool, which recommends keywords to advertisers for purchase.  Rescue.com claimed trademark infringement, but the Court that first heard the case dismissed it on the grounds that Google used Rescue.com’s trademark in non-visible metatags.  But the Court of Appeals reversed, holding that visible or non-visible use of a trademark is actionable.  So Google definitely isn’t giggling and it could be in for a gaggle of changes.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Rescue.com v. Google, Second Circuit Court of Appeals, No. 06-4881-CV, April 3, 2009, Leval, J., U.S. Law Week, Vol. 77, No. 40, Pg. 1638, 4-21-09

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Cable companies are no longer insulated from competition.  That’s the result of a well-grounded decision of the D.C. Court of Appeals.  At issue was the question whether cable companies can have exclusive contracts with apartment buildings.  It used to be the rule that cable companies undertake the expense of wiring the apartment complex and then have it all to themselves.  The FCC issued an order prohibiting exclusive contracts between cable companies and apartment building owners.  The National Cable and Telecommunications Association sued claiming the FCC lacked authority to prohibit exclusivity.  The law makes it unlawful for a cable operator to engage in unfair methods of competition or interfere with any multi-channel video programming source, including satellites.  The cable operators argued the law was designed to prevent exclusivity with regard to programming, not service.  But the Court said it could mean no exclusivity for programming or service.  So on the question of why are we here, broadband has gotten broader, hopefully it won’t turn out to be wire less and pay more.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

National Cable and Telecommunications Association v. Federal Communications Commission, D.C. Circuit Court of Appeals, No. 08-1016, May 26, 2009, Tatel, J., U.S. Law Week, Vol. 77, No. 47, Pg. 1758, 6-9-09

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If you decide to strip search a 13-year old girl, you could find more than you bargained for.  This case got started when 13-year old Savana Redding was taken into the assistant principal’s office.  He showed her a day planner containing knives and other contraband and Savana admitted only to the planner, but said she lent it to her friend, Marissa.  He then produced prescription-strength pain pills and said he had a report Savana was handing them out.  She denied it and agreed to a search of her backpack.  She was then taken to the school nurse’s office and told to remove her outer clothing.  The nurse pulled down her bra and her underpants, but no pills were found.  The Court found for Savana holding that while searching her backpack was okay, strip searching her was not, that it was frightening and humiliating and, while such searches are not outlawed, the context of suspicion must match the degree of intrusion.  The Court did not award damages because prior cases weren’t clear, but from now on if you strip search 13-year old girls, you’d better find something and that’s the stripped down version of a case that wasn’t even a clothes call.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Safford Unified School District No. 1, et al. v. Redding, U.S. Supreme Court, No. 08-479, June 25, 2009, Souter, J.

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It looks like the worldwide web is going to lead to some world-class taxes.  The battle raging all over the country is between cities and towns, and states and counties against online travel companies, also known as OTCs.  This one involved Expedia in the City of Columbus, Georgia. The question was whether the OTCs have to pay the hotel and motel tax on the reduced rate they pay for the room or on the full price paid by the consumer.  The city argued the plain language of the city hotel and motel occupancy excise tax requires Expedia to collect and remit the taxes based on the final retail charge.  The OTCs argued the hotel taxes are only due on the wholesale price, that they are not in the hotel business, and they’re not renting the room, but the Court ruled for the city, stating the law requires the tax on the full rate and Expedia must collect and pay it.  So in the end, instead of paying wholesale, we’ll all pay on the whole sale.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Expedia, Inc. v. Columbus, Georgia, Georgia Supreme Court, No. S-09-A057, June 15, 2009, Benham, J., U.S. Law Week, Vol. 77, No. 49, Pg. 1805, 6-23-09

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If they go after your pets, you can go after them in court.  This case began when the City of Barceloneta, Puerto Rico, took control of three public housing complexes.  Although pets had been banned, nobody enforced the rules and pets were prevalent.  As soon as the City took over, the pet projects turned into pet peeves, and the tenants were notified that all pets had to be immediately surrendered.  A week later without any further notice, city employees and a private contractor showed up and “violently captured numerous cats and dogs,” in some cases taking them out of the arms of children.  The animals were then injected, slammed against the side of a van, and then thrown to their deaths off a 50-foot high bridge.  The tenants sued for compensatory and punitive damages and the mayor claimed immunity, but the Court refused to dismiss the case stating that pets are covered by the Fourth Amendment guaranty against unreasonable search and seizure.  So those who turned a pet policy into a pet cemetery will face dogged determination and possibly a catastrophic result.

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Maldenado v. Fontanes, First Circuit Court of Appeals, No. 08-2211, June 4, 2009, Lynch, J., U.S. Law Week, Vol. 77, No. 49, Pg. 1791, 6-23-09

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When you use a fake ID to go drinking at a bar, can the bar sue you?  This case got started when a college student named Charles decided to go drinking at the Old Stone Jug, located near Colgate University.  The only problem was, Charles was nineteen and the drinking age in the state of New York is twenty-one, so Charles got himself a fake New Hampshire driver’s license, showed it, and started drinking.  When he ended up at the campus police station completely intoxicated, he told officers he’d used a fake ID.  The State charged the bartender and the bar with selling liquor to a minor and moved to revoke its liquor license.  The Jug managed to hang on to its license but at great cost, and decided to sue Charles for trespass and fraud, asking for $250,000 in damages.  But the Court found for Charles, stating that if bars that serve underage drinkers are going to be able to successfully sue those drinkers; the legislature will have to permit it.  So the Old Stone Jug has come up empty and Charles, who was sued for having a fake ID, has faked them out once again.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
OSJ d/b/a The Old Stone Jug v. Charles E. Work, Supreme Court of NY, 4/12/99, William J. O’Brien III, J., 1999 W.L. 261666

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When Barney goes up against the famous chicken, it’s gonna take more than a wing and a prayer to get even.  Everybody knows and loves Barney, and even those who can’t stand looking at him anymore, would acknowledge he’s part of the American scene.  In the words of the Court, his awkward and lovable behavior, good-natured disposition and renditions of songs like, “I love you, you love me” have warmed the hearts and captured the imagination of children around the world.  Ted Jiannoulas is the famous San Diego chicken, a sports mascot that for the past 35 years had jumped, tackled and flattened Barney at ballparks across America.  Barney’s owners finally sued arguing that beating up Barney is harmful to children.  One parent described how his 2-year old was in tears as he said, “chicken step on Barney.”  The famous chicken claimed in defense that Barney is a symbol of the platitudes thrust unthinkingly upon our children, and the Court found the famous chicken Barney battle is a legally acceptable parody.  So the good guy lost this one, but maybe the last year for the famous chicken, and Barney still stands tall and definitely carries a big schtick.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Lyons Partnership vs. Ted Giannoulas, d/b/a The Famous Chicken, U.S. Court of Appeals Fifth Circuit, 7/7/99, Jolly, J., 1999, W.L. 409585 (5th Cir. Texas)

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