Thursday, October 31, 2002

Free the Baby Lawyers!
Deprogramming the associates at Clifford Chance.
Dahlia Lithwick reviews the pathos of a 13-page memo authored by disgruntled associates at mega law firm Clifford Chance.

On a related topic, Ernie the Attorney points out a NY Times article that talks in general about how the "billable hour" is an enemy of productivity. (The Clifford Chance associates have to bill 2,420 per year, which is about 30% more than what associates in other firms are required to bill).
There's a nice piece in the Daily Mail about Chief Justice Robin Davis, the lone moderate on the West Virginia Supreme Court. Unlike some other judges, Justice Davis vows to leave her personal views at the courthouse door.
Unusual Clash in Asbestos Case
The National Law Journal
"The traditional tug-of-war in asbestos litigation is developing a new angle as a huge West Virginia proceeding moves forward. There is a rift among plaintiffs' counsel who are representing clients with vastly different injuries, and some attorneys, like Charles S. Siegel, believe that mass proceedings such as this one encourage 'bogus claims.'" []

Wednesday, October 30, 2002

Fourth Circuit Affirms Dismissal of Antitrust Class Action Suit Against Microsoft, Dell, Compaq and Packard Bell

Dickson v. Microsoft Corp., No. 01-2458 (4th Cir. Oct. 28, 2002)

In this case, bankrupt Gravity, Inc. claimed that the restrictive licensing agreements between Microsoft and the original equipment manufacturers (OEMs) Dell, Compaq and Packard Bell violated the Sherman Act by including various anti-competitive provisions. The Fourth Circuit upheld the dismissal of the complaint, as amended, under Rule 12(b)(6).

This case is noteworthy because the Fourth Circuit decided, for the first time, that the "rimless wheel" consipiracy theory under the Sherman Antitrust Act is not a single conspiracy, but is instead multiple conspiracies.

In its complaint, Gravity alleged a single "hub-and-spoke," or "rimless wheel" conspiracy among the OEM Defendants and Microsoft. A rimless wheel conspiracy is one in which various defendants enter into separate agreements with a common defendant, but where the defendants have no connection with one another, other than the common defendant's involvement in each transaction. See Kotteakos v. United States, 328 U.S. 750, 755 (1946) ("[T]he pattern was that of separate spokes meeting at a common center, though we may add without the rim of the wheel to enclose the spokes." (internal quotation marks omitted)).

Gravity relied on Sixth and Eighth Circuit precedent holding that a "rimless wheel" conspiracy was a single conspiracy under the Sherman Act. See Elder-Beerman Stores Corp. v. Federated Dep't Stores, Inc., 459 F.2d 138, 146 (6th Cir. 1972) (setting forth requirements for proving "rimless wheel" conspiracy); see also Impro Products, Inc. v. Herrick, 715 F.2d 1267, 1279 n.14 (8th Cir. 1983) (noting that "[t]here is some question whether the conspiracy provisions of Sections 1 and 2 of the Sherman Act apply to a hub-and-spoke conspiracy," but declining to resolve the issue after suggesting that such a theory was appropriate).

The Fourth Circuit disagreed, finding that the Sixth and Eighth Circuits misinterpreted the Kotteakos decision. The court did find that Gravity had stated two separate vertical conspiracies between Microsoft and Dell and Microsoft and Compaq. However, the complaint was nevertheless properly dismissed because Gravity's § 1 and § 2 claims failed to allege facts demonstrating a significant likelihood of anticompetitive effects. In order to show anticompetitive effect, Gravity had to show that Compaq and Dell had the ability to influence competition in the relevant software markets through their separate agreements with Microsoft. Because they do not compete in the software market, their ability to do this would necessarily depend on their ability to influence competition in the PC market. Because the PC market is highly competitive and Dell and Compaq only control small percentages of it, no anticompetitive effect was apparent.

Friday, October 25, 2002

Jury finds in favor of 7-Eleven in wrongful firing case. MARTINSBURG, W.Va. - Eight jurors decided Wednesday that 7-Eleven did not act wrongfully when in July 2000 it fired an employee who two weeks earlier had foiled an armed robbery. [Hagerstown Herald-Mail]
Jurors find Union Carbide liable in asbestos lawsuit: CHARLESTON (AP) -- A Kanawha County jury found Union Carbide liable Thursday for exposing West Virginia workers to asbestos for over 35 years. The verdict allows phase two of the trial to begin Dec. 2. [Dominion Post]

Friday, October 18, 2002

Thank "God" Congress has its priorities straight

The House finished its business Wednesday night and the Senate last night to go home and campaign. The Senate gave final congressional approval yesterday to a bill reaffirming the phrase "one nation under God" in the Pledge of Allegiance. Meanwhile, the unfinished business of our country includes the creation of a new Homeland Security Department, the weakening of consumers' bankruptcy protections, Medicare reform, and oh, that small matter that five-sixths of the government -- everything but the military -- is still operating on last year's budget.

But at least they could agree that the Pledge of Allegiance should not be changed.

Thursday, October 17, 2002

Software licensing -- a heated debate

CNET asked two experts with very different positions on UCITA to explain the benefits and drawbacks of the proposed law. Stephen Cross, director of the Software Engineering Institute at Carnegie Mellon University, believes that the statute is flawed. Joel Wolfson, who headed the UCITA committee at the Software and Information Industry Association, explains why he thinks the new law will bring about fair regulation to software licensing.
Another win for the "equal opportunity harassers" in the Fourth Circuit

OCHELTREE v. SCOLLON PRODS. INC., No. 01-6360 (4th Cir. Oct. 10, 2002)
Reaffirming the theme of Lack v. Wal-Mart, Inc., 240 F.3d 255, 258 (4th Cir. 2001) (overturning a jury verdict for lack of evidence where the supervisor regularly told sexually explicit jokes, used sexually vulgar language, and generally had an "unabashed taste for lewd humor" because the supervisor "was just an indiscriminately vulgar and offensive supervisor, obnoxious to men and women alike."), the Fourth Circuit reiterated in Ocheltree that "Title VII was not enacted as a workplace code for 'gentlemanly conduct' or chivalry."

The court reversed a jury verdict in favor of a female employee in a Title VII sexual harassment action because the employee failed to show that her gender motivated male co-workers' sexually explicit conduct and conversations. The court found that she did not prove she would not have been exposed to the same offensive behavior had she been a man.

According to the plaintiff, some of the primarily male staff engaged in open conversations about sex, made comments about the sexual habits of others on the staff, used foul, vulgar, and profane language, and told sexually-oriented jokes. She also testified about specific incidents that occurred during her employment, including an incident when she witnessed employees pretending to perform oral sex and other sexual acts on a mannequin, another incident when employees showed Ocheltree a picture of pierced male genitalia and asked her what she thought about it, and finally, "an incident when a co-worker sang her a song in which the lyrics were 'come to me, oh baby, come
to me, your breath smells like cum to me.'"

Some of the factors that the court found persuasive in finding no "but for" connection to gender were: (1) "the uncontested evidence demonstrated that the men's behavior did not begin or change as of the date Ocheltree began working with Scollon Productions but had been ongoing before she came to work for Scollon Productions"; (2) "The discussions certainly were sexually explicit, including the discussion regarding the body-piercing magazine, and while they were generally degrading, humiliating, and even insulting, they were not aimed solely at females in any way"; (3) "Ocheltree conceded that the conduct was equally offensive both to men and women"; (4) "Two of Ocheltree's male coworkers ... complained to management about the other workers' behavior"; "the vulgarities alleged here, including
'mother f----r,' 'faggot,' 'd--k head,' 'p-ssy,' 'blow job,' and 'ass,' ... are not 'unambiguous [gender] epithet[s],' ... such that it would be reasonable to assume that they were animated by gender bias."

Wednesday, October 16, 2002

Wired News: Copyrights, Wrongs Get a Review

Starting Nov. 19, the United States Copyright Office will begin taking public comments on the section of the Digital Millennium Copyright Act, known as the DMCA, which prohibits people from breaking encryption technologies.

Friday, October 11, 2002

Simple Web Sites Let Lawyers Share Knowledge, Opinions
ABA Journal eReport

Rory Perry's W.Va. Supreme Court weblog garners more national attention in this article. We're really lucky to have a guy with Rory's skills working as our Supreme Court Clerk.

Wednesday, October 09, 2002

How fractured the West Virginia Supreme Court has become

As evidence of how fractured our Supreme Court has become, take look at Justice Davis's dissent in McKenzie v. Smith:

"'The right to dissent is the only thing that makes life tolerable for a judge of an appellate court.' (See footnote 1) As is evident from the numerous separate opinions I have authored this term, I find ever more frequently the need to exercise my right to dissent, and to urge my brethren to refrain from torturing the law of this state, and/or usurping the role of the legislature, to achieve their desired result du jour. And so, once again, I must disagree with the decision of the majority."

Several members of the high court have been criticized for ignoring legal precedent and creating new "bad law" in order to obtain the result they believe to be fair in a particular case. Some have found the appellate court's oral arguments to be more like trial court arguments because the justices are concerned only with the facts and not the law. You can see the oral arguments for yourself through the Court's live oral argument webcasts.

With ExxonMobil's recent settlement, Dow is now the only defendant left in the mass asbestos trial.
City after lawyers to pay up
Charleston Daily Mail

"Many out-of-town attorneys who descend on Charleston for mass litigation like the ongoing asbestos trial, city officials said, never fork over B&O taxes from their winnings."

Tuesday, October 08, 2002's Dahlia Lithwick has some entertaining observations about "First Mondays" at the U.S. Supreme Court.

Monday, October 07, 2002

California passes new e-mail account protection bill

"The governor late last month signed a bill that requires e-mail service providers to give 30 days' notice before shutting down e-mail accounts. The law, which goes into effect Jan. 1, does not apply in situations where an account holder has violated the terms of service or when service is interrupted for reasons beyond the e-mail provider's control."

It's good that legislatures are recognizing the importance of a stable e-mail account in this "new economy." This bill comes at the right time, too, as many of the free e-mail providers that were so common during the dot-com boom are now evaporating. The West Virginia legislature should take look at passing similar legislation here, as well.

Friday, October 04, 2002

'Epidemic' of ATV fatals may not be enough to get legislation in W.Va.
Hagerstown Herald-Mail

"West Virginia between 1997 and 2001 had the nation's highest per capita ATV-related death rate, with 93 people killed - almost 19 a year. It remains one of a few states that has failed to regulate ATV use."

These ATV folks are single-issue voters, and have threatened to vote out any legislators who support even the mildest regulation of ATVs. For example, House Bill 2287 [ftp link] (introduced February 19, 2001) which sought such basic regulations as banning ATVs from public highways and requiring helmets for children operating ATVs, has been defeated. How many West Virginians must die before basic ATV legislation is passed?
Groups oppose judge's nomination to appeals court
Clarksburg Exponent-Telegram

West Virginia women and minorities speak out against the nomination of Judge Dennis Shedd to the Fourth Circuit bench. "With women's lives and futures at stake, we believe that only jurists committed to upholding women's reproductive rights, civil rights and individual liberties should be considered and confirmed[.]"
Good Press for the W.Va. Supreme Court
Rory Perry, the Clerk of the West Virginia Supreme Court of Appeals, continues to receive good publicity from the media regarding his efforts to bring the law to the people through the use of technology.

Wednesday, October 02, 2002

Committee seeks to dismiss grant suit
Charleston Gazette

"Attorneys for the state Economic Development Grant Committee have filed a motion to dismiss a lawsuit challenging the panel’s authority to award $200 million-plus of development grants, contending that the allegations in the suit are baseless and rely on wrong interpretations of the law."

Tuesday, October 01, 2002

West Virginia 18th-smartest state, report says
Charleston Gazette

West Virginia ranks as the 18th-smartest state in the country, according to a new report.
Bras, briefcases cross up security at courthouse
Charleston Gazette

"A new metal detector system at the Ohio County Courthouse in Wheeling has some people up in arms. Among the complaints: The digital system is sensitive to the underwire in women’s bras, and lawyers don’t want their briefcases searched because they may contain confidential material."