Thursday, October 30, 2003

Governor limits video lottery advertising by executive order

According to this press release and this article in today's Charleston Gazette, Governor Wise has, by executive order, prohibited video lottery licensees from using words like "casino" and "slots" in their outdoor advertisements.

This has been a pet peeve of mine for some time, and I am thrilled the Governor is not waiting for the legislature to do something about it. The measure will be enforced as of January 1, 2004. The Lottery Commission tentatively has approved rules to clarify how retailers could advertise their video lottery machines, but they couldn’t take effect until the Legislature approves next year.

I have not seen the actual order and have no idea if it is constitutional, but I'm glad it has been made. Route 11 is beginning to look like Las Vegas with all of the strip clubs and "casinos."

Wednesday, October 29, 2003

Fourth Circuit affirms verdict in FMLA case

In Babcock v. BellSouth Advertising and Pub. Corp., No. 02-1791 (4th Cir. Oct. 28, 2003) (PDF), a three-judge panel of the Fourth Circuit unanimously affirmed a $91,913 jury verdict in favor of an employee who sued her employer for discharging her after she requested leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-54.

The dispute was over Babock's eligibility for protection under the FMLA. Generally, disputes regarding employee eligibility center around whether the the employee (or a family member, etc.) has a "serious health condition" that meets the statutory definition. In this case, however, the dispute was whether Babcock had worked for BellSouth for 12 months at the time she requested leave. Sec. 2611(2)(A).

Babcock commenced her leave of absence on May 19 -- before she had worked for BellSouth for one year. Her request for short-term disability leave was granted through May 27 under BellSouth's policies. BellSouth demanded that she return by June 9, and it added that failure to return on that date could result in termination. Thus, from May 28 to June 9, Babcock was on an unexcused leave of absence. On June 9, however, Babcock requested additional unpaid medical leave. By that time, her one year anniversary had passed, making her FMLA eligible. The district court allowed the question to go to the jury which found her to be a covered employee under the Act. On appeal, the Fourth Circuit affirmed the verdict, holding
Through the FMLA, Congress gave Babcock certain protections once she passed the one-year mark at BellSouth. Having allowed Babcock to remain employed for more than one year, and having cut off her short-term disability leave, BellSouth cannot now avoid its responsibilities under the statute. The jury found that Babcock was eligible for leave under the FMLA, that her absence from work was caused by a serious health condition, and that she was fired because of her absence from work. There was ample evidence in the record — taken in the light most favorable to Babcock — to support this verdict, and BellSouth was not entitled to judgment as a matter of law. Accordingly, the judgment of the district court is AFFIRMED.

BellSouth's argument in this case was that the absence was one continuous absence that should not have been covered by the FMLA because, at its inception, Babcock was not a covered employee. Had BellSouth just fired her for unexcused absences between May 28 and May 31, it probably would not have violated the FMLA. However, BellSouth maintained her as an employee until after her June 1 anniversary date, and gave her the opportunity to request additional leave, which she did.

This would seem to indicate that any ineligible employee who becomes eligible during his or her leave of absence could be protected under the Act, so long as the other statutory requirements are met ("serious health condition," 1250 hours, etc.). Employers cannot merely look at how the leave was classified at its inception--even if the leave is continuous.

Tuesday, October 28, 2003

Number of lawyers in Wirt County jumps 25% in one day!

This is big news. According to this article, the Iraqi lawyer who gave information to U.S. Marines about the location of Jessica Lynch visited Lynch's home town in Wirt County today. That brought the total number of lawyers in Wirt County to 5!

Believe it or not, Wirt does not even boast the smallest number of active lawyers in West Virginia. That honor goes jointly to Tyler and Calhoun Counties, each of which have 3 active lawyers.

Wednesday, October 22, 2003

My proposal for a categorical ban has this AP article entitled "Parents Sue Over Game Linked to Shooting," which details a $246 million lawsuit filed against the designer, marketer and a retailer of the video game series "Grand Theft Auto" by the families of two people shot by teenagers apparently inspired by the game.

I am tired of these "inspired by" suits. In the 70s and 80s it was Dungeons & Dragons and Black Sabbath. In the 90s it was first-person shooters like Doom and Quake. Now it's the Matrix and Grand Theft Auto. These suits are never successful, and they only serve to burden musicians, game makers and movie makers that have to spend tens of thousands of dollars defending them. People refuse to take any responsibility for their own actions--that especially goes for criminals. Of course they are going to say they were moved to commit their misdeed by some game, song or movie. They don't want to take responsibility for their actions. Courts don't like to throw out these cases because the plaintiffs are sympathetic. That's why legislation is needed in this area.

Tuesday, October 21, 2003

A handy application you'll want to take note of

A handy application that I use every day is a free program called TurboNote+. This program allows you to post virtual "sticky notes" on your desktop. A little icon resides down in your system tray beside the clock. When you want to bring up a new note, just double-click on the icon and a new note pops up with the date. To delete a note, simply right click on the note and click on delete. Note text is automatically saved, so there is no need to hit a "save" button. I have found the program to be highly stable. Even when my system crashes and I can't recover data from a Word document, data contained in these notes is secure.

This application is great for such things as jotting down time entries, telephone messages and numbers, case citations, things to do, quotes from case authorities, and anything else you might write on a paper sticky note. Plus, these electronic sticky notes do what paper notes can't: for instance, the new version 5.2 also allows you to perform mathematical calculations. Type 12*3, hit F2, and the note completes the equation "=36." No need to load up the windows calculator.

Users can upgrade the the registered version for enhanced functionality, but even the free version will make your life simpler and your desk less cluttered.

Monday, October 20, 2003

Correction to previous post

Thanks to the folks at the Virtual Chase for pointing out that the link in this post to the Pennsylvania Code was, in fact, linking the administrative code. I hope that didn't excite anyone too much. If anyone can find a link to the real Pennsylvania code, please let me know. All I can find is an unofficial collection, linked from this page at

Saturday, October 18, 2003

The Law is Free: Here's where you can find some

As Rory Perry explains at his weblog, the law is free. Finding it is not always easy. I wanted to share some of my bookmarks to substantive state law that I think would be of interest to West Virginia practitioners.

West Virginia
Constitution (alternative)
Case Law (1991 to present)
Code of State Rules
Court Rules

Code (free from Lexis-Nexis)
Case Law
Code of Regulations
Court Rules

Case Law (2/98 to present)
Administrative Code
Register of Regulations

Case Law (1997 to present)
Administrative Code
Local Court Rules

Some other West Virginia resources I find useful are the Service of Process Information database (WV Sec'y of State); the W.Va. Business Organizations database (WV Sec'y of State); the Local Rules of the U.S. District Courts for the Northern and Southern Districts of West Virginia; and of course the West Virginia Supreme Court Clerk's site, which has unofficial summaries of recent opinions.

Here's another tip. LexisOne offers the most recent 5 years of case law from every state and every U.S. Court of Appeals. It is an incredibly useful place to begin your legal research, and it is completely free. One-time registration is required, but I highly recommend you take the time. However, there are two main annoyances with using LexisOne for case law research: (1) although you can search the opinions just like you would on regular Lexis, none of the terms "light up" in the cases. In other words, you come up with relevant cases, but you have to read through them a good deal to figure out why they are relevant. (They don't want to make it too easy, you know, they are running a business afterall); and (2) your search terms are deleted each time you do a new search.

Here are two tips to minimize these annoyances:

1. Lighting up your search terms. To make searching through the opinion easier, download and install the Google Toolbar. (You have to use Internet Explorer). Once you are in the LexisOne case, you can type your search terms into the Google Toolbar, and the terms will pop up as buttons on the right hand side. (You can even have a single button for phrases by typing the phrase in quotation marks - e.g. "due process") Click on those buttons to search for those terms in your case. If you are looking for two or three different terms in each case, it is much easier than using the browser's find function because you can keep multiple terms on hand to search through the various cases that came up in your search result.

2. Save your search argument. To avoid losing all of your search arguments, before you hit the search button, select your search terms and hit CTRL+c to copy them onto your clipboard. Then if you have to do another search, select your jurisdiction again, click on the search window, hit CTRL+v to paste your terms back in the window where you can modify them for the next search. If you keep doing this, you can avoid having to type your terms in again and again.

Applying these two tips makes research on LexisOne much more efficient and enjoyable.

Friday, October 17, 2003

Gamblers Unanimous

The State Supreme Court has decided unanimously that video lottery machines are constitutional and it has paved the way for the issuance of economic development grants supported by the lottery revenues. SER Cities of Charleston v. WV Economic Development, No. 31540 (October 17, 2003) was a consolidation of three petitions for writs of mandamus: one filed by the Cities of Huntington and Charleston seeking to have the Economic Development Grant Committee issue revenue bonds; a second seeking an order that private corporations and persons that benefit economically from the grants be required to repay, at a low interest rate, the equivalent of the economic benefit received from the grants; and the third seeking an order compelling the cessation of the operation of all video lottery machines until they are brought into full compliance with state regulations.

The Court granted the first writ and denied the other two. In so doing, the Court created the following new law:

The State Excess Lottery Revenue Fund statute, W.Va. Code § 29-22-18a, as amended by Acts of the Legislature, Special Session, 2003, Chapter 29 (a) does not violate the separation of powers provision in article five, section one of the West Virginia Constitution; (b) does not violate the appointments provision in article seven, section eight of the West Virginia Constitution; and (c) sets forth sufficient criteria to guide the West Virginia Economic Development Grant Committee in its execution of the Legislature's intent in enacting the statute. (Syl. Pts. 1-3)

The Court reiterated that “[t]he word 'lottery' is commonly understood to mean 'a scheme for the distribution of prizes by chance.'” Syllabus Point 1, State v. Matthews, 117 W.Va. 97, 184 S.E. 665 (1936). (Syl. Pt. 6). That's a broad term that is not limited to Powerball and scratch-off tickets. The Court did a great job of analyzing the history of the term lotteries throughout the West Virginia case law (and there are several cases that interpret the term).

The Court further held that "[t]he video lottery created pursuant to the Limited Video Lottery Act, W.Va. Code §§ 29-22B-101, et seq., is a lottery which is regulated, controlled, owned and operated in the manner provided by general laws enacted by the West Virginia Legislature so that it properly and lawfully may be conducted in accordance with the exception to the prohibition against lotteries set forth in article VI, section 36 of the West Virginia Constitution." (Syl. Pt. 9)

Justice Maynard, writing for the majority, noted that many question the wisdom of expanded video gambling and disagree with the politics of the Economic Development Grant Committee, but noted that these are political questions to be sorted out by the legislature and the people, not by the State Supreme Court.

I am proud of this well-reasoned unanimous opinion of our Court. Even though I do not necessarily agree with the invasion of video lottery into every nook and cranny of this state, and I think that the Economic Development Grant Committee is going to prove to be an instrument of pork-barrel politicians, neither is unconstitutional. The Court made the right decision here, and the Court's comments concerning the limitations of its role in political controversies is well-received.

I am also proud of Justice Starcher's "concurring and lamenting" opinion. He has captured my precise thoughts and feelings on this subject, which I am sure are the same feelings held by many West Virginians. (I am also proud that he felt he could include a reference to Jesus and the teachings of the Bible.) To his concurring opinion, I say Amen!

I believe it was State Senator John Unger who said (not in these exact words) that gambling is like crack, not only to the gamblers, but to the state legisalture who is addicted to its revenue to balance its budget. Once a state expands gambling to this extent, can it ever go back?

You know you're in a down economy when...

"Five employees at the state Bureau of Employment Programs will lose their jobs at the end of the month because of changes in how the agency handles computer work." [The Charleston Gazette]

Wednesday, October 15, 2003

Free California case law

[Via How Appealing]
State Available Free on Court's Web Site: The Metropolitan News-Enterprise reports here today that "All appellate opinions published in California since it became a state in 1850 are now available online without charge at the state courts' website, the state Supreme Court announced yesterday." You can access the caselaw via this link, and be sure to check out the lengthy disclaimer from LexisNexis.

4th Circuit to AOL: "You've got... No coverage"

AOL's insurer, St. Paul Mercury Insurance Co., has no duty to defend or indemnify AOL against consumers' complaints that AOL 5.0 access software caused damage and data loss to their computers, said the Fourth Circuit Court of Appeals today. America Online, Inc. v. St. Paul Mercury Ins. Co., No. 02-2018 (4th Cir. Oct. 15, 2003) (PDF).

After AOL released to the public its Version 5.0 access software, consumers filed numerous class actions against AOL, alleging that the software had substantial "bugs" in it and was incompatible with their computers’ other applications software and operating systems, causing the computers to be damaged.

AOL tendered the defense of these actions to St. Paul. St. Paul denied coverage mainly because the damages claimed by the consumers were not "property damage" as defined by the relevant provisions of the applicable policy. AOL filed a declaratory judgment action against St. Paul seeking coverage. The district court granted summary judgment to St. Paul, and today a split 3-member panel of the Fourth Circuit affirmed.

Thanks to Howard Bashman for the link.

New opinion in Amway v. Proctor & Gamble battle

Steve Minor over at the Southwest Virginia Law Bloghas this pointer to an amusing new Sixth Circuit opinion--the latest in a decades-old battle between Amway and Proctor & Gamble.

The case arose out of the publication of a complaint filed by P&G against Amway in a Texas federal district court, alleging, among other things, that Amway operates as an illegal pyramid scheme.

It's official: 2 out 3 branches of W.Va. Government love ATVs

On the heels of this wonderful announcement a few days ago that state legislators are saddling up on ATVs to research proposed ATV safety laws, the Charleston Gazette has this piece reporting that State Supreme Court Justice Warren McGraw wrecked his ATV Tuesday, flipping over the handlebars and rolling into a briar patch. And get this -- he was not wearing a helmet... He doesn't even own one. I hope he didn't read my previous post and attempt to get the authentic ATV-riding experience by riding with no helmet and a six-pack of Natural Lite in his hand.

Now we know that both the legislative and the judicial branches of government here in West Virginia have an affinity for off-road, no holds barred, 4-wheeling excitement. Governor Wise, although interested in deer jerky and NASCAR, has not, to my knowledge, been spotted on an ATV--yet.

If the legislature is not moved to pass ATV safety legislation to save our children, at least they might consider saving our judicial branch.

Final opinion summaries posted

Rory has posted summaries of the final 24 majority opinions from the January 2003 term.

Tuesday, October 14, 2003

Wise says W.Va. denied money to improve schools

Governor wise criticizes President Bush's No Child Left Behind program in this Washington Post article that is reprinted in the Daily Mail. About 45 percent of West Virginia's schools do not meet the new standards, resulting in a loss of millions of dollars in federal education funds.

"I find it ironic . . . the party that talks about being opposed to unfunded mandates is giving us a very significant unfunded mandate," said Wise, whose state spends about 70 percent of its budget on education.

Monday, October 13, 2003

No shoes, no books, buddy. reports that the Sixth Circuit has affirmed the dismissal of a lawsuit brought by a barefoot man who was denied access to the services of the Columbus Metropolitan Library.

I'm just glad the guy was not from West Virginia.

First opinions of the Fall 2003 term

Rory posts links to the first three opinions of the year.

In Corliss. v. Arcadia Dev. Co., No. 3119 (Oct. 10, 2003) a zoning case, the Court held that the decision of a zoning board of appeals was entitled to more deference than the circuit judge gave it on appeal to the lower court.

The court found that the circuit judge did not adhere to "the limited scope of review" applicable to appeals of zoning decisions when it altered the established manner in which adjacent property measurements were determined for purposes of evaluating a conditional use permit application. It appears the circuit judge simply preferred a different method of measurement.

The court also decided an important standing issue for folks who wish to challenge zoning decisions. In a new syllabus point, the Court held that
A person qualifies as “aggrieved” within the meaning of West Virginia Code § 8-24-59 (1969) (Repl. Vol. 1998) and thereby has standing to challenge a decision or order of the Board of Zoning Appeals as illegal where the individual demonstrates that, as a result of the challenged ruling, he/she will uniquely suffer injury separate and apart from that which the general citizenry might experience as a result of the same ruling.
In this case, the court found that several farmers who owned lots adjacent to a 371-acre tract that was to be used for a 392-home subdivision had standing to challenge a conditional use permit allowing the development. The reasoning supporting the finding of standing to sue is not altogether clear, however. The Court simply stated that the plaintiffs "proceeded to demonstrate how those concerns [of increased traffic, water table lowering, and other growth-related effects on the existing infrastructure] would bring about particularized harm given their specific occupational needs as farmers." Using this standard, any farmer would have standing to challenge just about any land use decision.

In Williams v. Charleston Area Medical Center, Inc. (CAMC), No. 31227 (October 10, 2003), a disability discrimination case, the Court explicitly held for the first time that "[a]n employer's duty to accommodate an individual with a disability under the West Virginia Human Rights Act, W.Va. Code 5-11-1, et seq., does not require the employer to eliminate an essential function of a job."

This holding was a no-brainer, but it had never been explicitly stated before. Williams was a disabled maintenance worker who could not climb ladders and work overhead due to his disability. Because those were essential functions of the job, they could not be relaxed. CAMC accommodated him by transferring him to a lower paying position and he sued. The jury found for the employer and the Supreme Court affirmed. "'[R]easonable accommodation' is intended to allow a disabled individual 'to fully perform the job's essential functions,'" the Court held. Eliminating essential functions is therefore not a reasonable accommodation.

The third case, State ex rel. Pritt v. Vickers, No. 31356 (October 10, 2003), involved an odd discovery issue. The defendants had all moved for dismissal under Rule 12(b)(6), and the circuit court permitted pre-answer discovery. The defendants used the discovery to support their motions for summary judgment, which were granted but ultimately reversed and remanded by the Supreme Court. Upon remand, the trial court refused to permit more discovery. The Plaintiff brought a writ of prohibition, asking that the circuit court be compelled to permit post-answer discovery. In granting the writ, the Supreme Court held that "[w]hen a dispositive pre-answer motion by a defendant is denied by a trial court, or granted and subsequently reversed by the Supreme Court, a plaintiff must be permitted to conduct discovery after the defendant files an answer even though the parties may have previously engaged in pre-answer discovery."

Footnote 10 of the opinion contains a noteworthy procedural admonition for all of you litigators. You may want to pencil this in to your rule book:
Pursuant to Rule 12(a)(3)(A) of the West Virginia Rules of Civil Procedure, a defendant must serve an answer within 10 days of receiving notice of the trial court's adverse ruling on the defendant's Rule 12(b) motion. See Godlewski v. Affiliated Computer Servs., Inc., 210 F.R.D. 571, 572 (E.D. Va. 2002); Finnegan v. University of Rochester Med. Ctr., 180 F.R.D. 247, 249 (W.D.N.Y. 1998); Hoffman v. Hunt, 845 F. Supp. 340, 352 (W.D.N.C. 1994); Brocksopp Eng'g, Inc. v. Bach-Simpson Ltd., 136 F.R.D. 485, 486 (E.D. Wis. 1991). Rule 12(a)(3)(A) does not specifically address the issue of the time period for filing an answer when a trial court grants a motion to dismiss and the ruling is subsequently reversed by the Supreme Court. We believe, as both a logical and practical matter, that a defendant, who obtains a favorable ruling under Rule 12(b) that is subsequently reversed by the Supreme Court, should file an answer to the complaint within 10 days of receiving notice of the Supreme Court's decision.

Saturday, October 11, 2003

Princeton grad won't be sued after all

Following up on a previous post, CNET is now reporting here that "[i]n an abrupt reversal, SunnComm Technologies said Friday that it will not sue a Princeton University graduate student who published a paper that describes how to bypass CD copy-protection technology simply by pressing the Shift key."

That's a good move for the industry who want to keep the DMCA around a while longer. This case certainly would have been fodder for the legislators seeking to repeal the Act.

Friday, October 10, 2003

Parents Sue School Over Wi-Fi

Wired News reports that parents of five elementary school children attending a school outside of Chicago have sued the school district for installing a Wi-Fi network. The parents are worried that the exposure to the radio waves could harm the children.

The article notes that "[t]he radio waves in a Wi-Fi network use the same frequency as wireless home phones, and have one-thirtieth the power of cordless phones[.]"

See the complaint here (PDF).

Princeton Student Sued Over Paper on CD Copying

According to this article in FindLaw, a Princeton graduate who posted a paper on his Web site revealing that a new CD copy protection scheme could be defeated by holding down the shift key when the CD was inserted is being sued by the maker of the software under the Digital Millennium Copyright Act (DMCA).

This is truly getting out of hand. We need to repeal the DMCA now, and suits like this are only fueling the fires of opposition.

Only in W.Va.--Legislators saddle up on ATVs

Unfortunately, USA Today has picked up this story: "Legislators studying all-terrain vehicle safety want firsthand knowledge of the vehicles. So they plan to ride ATVs on the Hatfield-McCoy Trail in southern West Virginia on Oct. 21. West Virginia is among a handful of states that don't regulate ATVs. Nineteen people have died in ATV accidents this year."

If they want a truly authentic experience, I hope they ride them on the highway without helmets with big wads of snuff in their lips transporting six packs of Natural Lite from the nearest Go-Mart.

Wednesday, October 08, 2003

Reducing litter in W.Va.

USA Today reports that the West Virginia Citizen Action Group is lobbying the Legislature to pass a bill that calls for a 10-cent deposit on all single-use beverage containers. The West Virginia Retailers Association opposes the bill, saying it would be expensive and time consuming for small businesses. The Daily Mail has this article explaining the proposed bill in more detail.

The intent of the bill is to reduce litter. In my opinion, bottles are not our biggest problem. The largest litter menace in this state is plastic grocery bags. These things are everywhere. After a flood, the trees along the rivers are so full of them I can't see how anything could have been living in the water. We ought to impose a 10-cent deposit on those things, or require everyone to bring their own reusable grocery bags to the stores.

According to this article in National Geographic "somewhere between 500 billion and a trillion plastic bags are consumed worldwide each year. Of those, millions end up in the litter stream outside of landfills-estimates range from less than one to three percent of the bags." The article contains a link to a web site,, that is promoting the use of reusable grocery bags. Apparently in Ireland, a tax on plastic bags has greatly increased the use of reusable bags, and has vastly improved the scenic countryside where plastic bags were once ubiquitous. Until Americans have some incentive to reduce the use of plastic bags, the baggers will continue their current practice of putting one or two grocery items in each bag, leaving the shopper with 15 or 20 bags from a single trip. Even a one or two-cent tax on the bags would create an incentive for change.

Tuesday, October 07, 2003

Promise scholarship program may raise standards

Apparently, some of the state's Promise scholars have wound up in remedial college classes in math and English--a fact that is a bit embarassing for the Promise program. Currently a composite score of 21 on the ACT is required, but subscores for math and English can be lower. Students who receive less than 19 in math and 18 in English are placed in remedial college classes in many colleges, according to the report in today's Daily Mail. So, the Promise Board of Control may begin requiring a certain minimum subscore in both math and English. The effect will be fewer Promise recipients, but hopefully a more successful program overall.

Supreme Court to hear smoking ban cases

The Daily Mail reports that the State Supreme Court will hear arguments today on whether local boards of health can ban smoking.

Since Berkeley County banned smoking in most restaurants, dining has been much more enjoyable. Secondhand smoke is a public health risk, and the county boards of health should have the power to curb it. I sincerely hope the West Virginia Supreme Court does not invalidate these smoking bans. If it does, I hope it does so in a way that allows for valid legislation that accomplishes the same purpose. Our government should have the power to regulate air quality in our communities. It is a simple quality of life issue.

Sex offenders want limits on site

This article in the Daily Mail notes that a group of convicted sex offenders are challenging the way West Virginia publicizes their personal information in the State Police sex offender registry. The case is set for oral argument today.

Monday, October 06, 2003

Battle royal looms over grants, lottery

The Charleston Gazette has this piece that discusses the competing interests involved in the gambling industry in West Virginia. The state Supreme Court is set to hear oral arguments this Friday on the constitutionality of so-called "video lottery" and other games of chance that have taken hold in West Virginia in the past decade. The state's constitution allows a lottery, but the opponents of the video slot machines and other games argue that only traditional lottery (PowerBall, scratch off tickets, etc.) was intended and not gambling machines.

Friday, October 03, 2003

Hotel owner appeals surveillance damage award

The AP reports that the owner of a Comfort Inn in Kanawha County has asked the state Supreme Court to determine whether using surveillance equipment to monitor employees and customers is a violation of the state's wiretapping law. The company is appealing a $500,000 jury award in a lawsuit filed against his company by a former employee.

Although video surveillance of employees is permitted except under certain circumstances, audio surveillance is a violation of the wiretapping law unless one of the parties to the conversation consents. The defendant in this suit claims the audio surveillance was necessary for business reasons, and that the conversations were recorded in public areas (front desk, lobby, bar and lounge) where the employee had no reasonable expectation of privacy.

If the Supreme Court decides to hear the appeal, the case could have implications for businesses across West Virginia. At least one other similar suit is currently pending in another part of the state, according to the report.

Internet drug ruling due soon

The Charleston Gazette reports that Kanawha Circuit Judge Duke Bloom said he will rule by the end of the month whether a Fairmont store helping prescription drug purchasers locate the drugs they need in Canada is operating an unlicensed pharmacy. The State Board of Pharmacy is looking to close the Discount Prescription Center, even though the store does not give medical advice, stock drugs or dispense drugs.

The board’s lawyer, Christie Utt, said the Food and Drug Administration has shut down similar stores in other states, and that the business is “aiding and abetting” the importing of illegal drugs.

Most of the store's 85 customers are senior citizens who aren't capable of logging on to the Internet to order the discounted drugs themselves. The store is represented by Professor Robert Bastress from the WVU College of Law.

I think this case is part of a mini-Boston Tea Party in the United States. Instead of throwing tea into the harbor, people are logging on to Canadian pharmacies to purchase their drugs. My sympathies are with the store owner, but I don't see how they can continue to operate a business that is illegal under FDA rules. I hope Professor Bastress can pull out a victory here.

Thursday, October 02, 2003

Typo diverts readers to anti-abortion site

The Charleston Gazette reports an incident of cybersquatting that leads people attempting to find the Charleston Daily Mail's website to an anti-abortion website. The Daily Mail's URL is "". If a user types in "," he is directed to an anti-abortion website showing "graphic images of aborted fetuses," according to the report.

The Daily Mail shouldn't tolerate this type of cybersquatting. They could sue under the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)(1) ("ACPA") for dilution of the "Daily Mail" mark. There are plenty of cases out there now that would support such an action. They could also try to get the domain name transferred back to them through ICANN's dispute resolution system, the Uniform Domain Name Dispute Resolution Policy ("UDRP").