When you’re off the reservation, smoke signals won’t help you.  This case involved the question of whether federal overtime pay requirements apply to employees of stores located on tribal lands.  This case involved Baby Zack’s Smoke Shop located on the Puyallup Tribe Reservation.  Baby Zack’s sells to members and nonmembers of the tribe and, given the increase in tobacco taxes, which Baby Zack’s customers don’t seem to pay, it’s no surprise that Baby Zack’s and its employees were working overtime.  After complaints were received by the Department of Labor, a federal court ordered Baby Zack’s to fork over more than $31,000 in unpaid overtime.  Baby Zack’s appealed arguing that tribes possess inherent power to control events occurring on tribal lands.  But the Court of Appeals ruled that Congress can limit, modify or eliminate local tribal self government.  And since the Puyallup Tribe has not enacted its own wage and hour laws, federal law applies, proving that over time overtime applies to Indian reservations without reservation.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Solis v. Matheson, Ninth Circuit Court of Appeals, No. 07-35633, April 20, 2009, Ezra, J., U.S. Law Week, Vol. 77, No. 42, Pg. 1669, 5-5-09

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If you sign away your right to participate in a class action, well, the Courts may send you right back to class anyway.  This case involved T-Mobile customers who’d purchased wireless PC cards for use in laptop computers.  The service agreement included a mandatory arbitration clause and also stated that customers waive their right to participate in any class action lawsuit.  According to the Court, many customers couldn’t get the cards to fit into their computers, technical support didn’t help, and the stores where they bought the cards ignored them, so they filed a class action suit.  T-Mobile sought to deep-six the suit and the judge that first heard the case dismissed it on the grounds that the customer agreements were valid.  But the Ninth Circuit Court of Appeals reversed holding that a class action waiver in a contract where individual damages are likely to be small is unconscionable.  So the little guy has won one and subscribers who thought they had no class are back in class, obviously they played their cards right.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Chalk v. T-Mobile USA, Inc., U.S. Court of Appeals for the Ninth Circuit, No. 06-35909, March 27, 2009, Reinhardt, J.

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When the Supreme Court takes a close look at dirty words, well, you can read the handwriting on the wall.  This case got started when Cher appeared on Billboard Music Awards and addressed her critics saying simply, “f” them.  Then Nicole Richie asked on the Simple Life, “Have you ever tried to get cow s— out of a Prada purse?  It’s not so effing simple.”  In each situation, the FCC received complaints that children were in the audience and decided to issue notices of liability.  Fox and other networks sued arguing for years the FCC imposed liability only when expletives were used repeatedly and deliberately and that fleeting and spontaneous use were forgiven.  The Second Circuit found for the networks but the U.S. Supreme Court reversed, concluding it was reasonable for the agency to assume that creating a safe harbor for isolated uses would lead to their increase.  Four justices dissented, but the majority ruled and as for “f” words, well, there’s no way fudging way around it, fleeting has fled, replaced by future fines.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

FCC v. Fox Television Stations, Inc., U.S. Supreme Court, No. 07-582, April 28, 2009, Scalia, J., U.S. Law Week, Vol. 77, No. 42, Pg. 4337, 5-5-09

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Well, folks, here’s a case that qualifies for this year’s chutzpah award.  You, of course, remember Oklahoma bomber, Timothy McVeigh, who was convicted and sentenced to death for killing 168 people.  Well, Leslie Stephen Jones, who was his lead lawyer, decided he would donate all the files, materials and evidence to the Center for American History at the University of Texas.  Now you’re probably thinking, what’s wrong with that?  Well, the lawyer had the material appraised and then claimed a charitable tax deduction for $295,000.  The IRS disallowed it and Mr. Jones appealed to the U.S. Tax Court, which ruled he really didn’t own the materials so he couldn’t take the deduction.  Mr. Jones then appealed to the Tenth Circuit which held that ownership doesn’t really matter.  That unless the property produces a long-term capital gain, a taxpayer’s deduction is limited to his cost or basis in the property and since Mr. Jones paid nothing for the evidence, he can’t take the deduction.  Actually, the Court was quite charitable in its treatment of Mr. Jones, a lawyer who tried to make a killing out of a killing.

THIS IS NEIL CHAYET LOOKING AT THE LAW™
Leslie Stephen Jones v. Commissioner, Tenth Circuit Court of Appeals, March 27, 2009, Baldock, J., U. S. Law Week, Vol. 77, No. 39, Pg. 1618

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Sir Walter Scott once wrote “what a tangled web we weave.”  Well, the web just got a lot more tangled as a result of this case.  It involved a lawsuit brought by recording companies against individual defendants, including students, for illegally using file-sharing software to download copyrighted songs without paying royalties.  One of the defendants, a student, moved to allow the Courtroom View Network to webcast the trial live.  The Court that first heard the case allowed it, but the Court of Appeals reversed stating the rules clearly state that no person can take any photograph or make any recording or broadcast except as specifically provided by rule of Court or court order.  The students argued that webcasting is not broadcasting.  The Court acknowledged a possible semantic loophole but said that broadly speaking, both television and the internet are broadcast media and the difference between them is one of degree rather than kind.  So Courts may change webcasts, but webcasts haven’t yet changed the Courts.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

In re Sony BMG Music Entertainment, First Circuit Court of Appeals, No. 09-1090, Selya, J., 4/16/09

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Ready, aim, fire, but not on county property.  Just when you thought most of the questions about the right to bear arms had been answered by last term’s U.S. Supreme Court case, here comes another one.  This one got started when Alameda County, California officials made it a misdemeanor to bring or possess a firearm or ammunition on county property.  The County claimed the impetus of the law was a shooting at the fairgrounds, but the plaintiffs argued that the law was aimed at gunning down gun shows.  They quoted one County supervisor who said she’d been trying to get rid of gun shows for years but was thwarted by spineless people hiding behind the Constitution and attacked by aggressive gun-toting mobs on rightwing talk radio.  The Ninth Circuit Court of Appeals upheld the law ruling that unlike the D.C. ordinance, this one regulates gun possession on county property and thus falls within the Supreme Court’s express allowance of laws forbidding carrying firearms in sensitive places.  So the Supreme Court fired a shot heard around the world, and the Ninth Circuit has followed up with a silencer.

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Nordyke v. King, Ninth Circuit Court of Appeals, No. 07-15763, April 20, 2009, O’Scannlain, J., U.S. Law Week, Vol. 77, No. 41, Pg. 1651, 4-28-09

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Union members, beware.  Union suits can not only be brought against employers, they can also be brought against you.  This case got started when Joe, who was treasurer of the local union, was told the union was interested in purchasing a parcel of land right next door and he was asked to look into it.  Joe, however, allegedly told the property owner the union was no longer interested in the property and told the union president the land had been sold.  Several months later an investment group that included Joe purchased the parcel for $75,000.  It was later sold for $885,000 with Joe pocketing his share of the money.  The union sued Joe alleging violation of the Labor Management Reporting and Disclosure Act, which states that union officers occupy positions of trust and must refrain from self-dealing.  The Court that first heard the case dismissed it but the Court of Appeals held that the union can sue an unfaithful officer in federal court.  So to paraphrase, when it’s all for one and none for all, hell hath no fury like a union scorned.

THIS IS NEIL CHAYET LOOKING AT THE LAW™

Int’l Union of Operating Engineers Local 150 v. Ward, Seventh Circuit Court of Appeals, No. 08-1631, April 16, 2009, Kanne, J., U.S. Law Week, Vol. 77, No. 41, Pg. 1648, 4-28-09

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