Monday, May 31, 2004

Are W.Va. employer's automatically liable for all sexual harassment by supervisors?

In reviewing the Court's decision last week in Akers v. Cabell Huntington Hosp., Inc. No. 31586 (May 27, 2004), a question was raised in my mind about the status of an employer's liability for sexual harassment by a supervisor.

For the most part, our State Supreme Court has followed the United States Supreme Court in the area of sexual harassment. The West Virginia Human Rights Act is very similar in language and purpose to Title VII, and the decision was made some time ago to interpret it consistently with Title VII wherever possible. Consistency in this area of the law is extremely important because sexual harassment still proves to be a thorny issue for employers and employees alike.

In two 1998 decisions, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court developed one set of criteria to determine an employer's vicarious liability under Title VII:

(1) The employer is always liable for quid pro quo harassment;
(2) The employer is assumed to be liable for hostile environment harassment, unless the employer can demonstrate (as an affirmative defense) both that the employer took reasonable care to prevent and correct any sexually harassing behavior and that the harassed employee unreasonably failed to take advantage of the employer's preventive or correctional tools (such as an internal grievance procedure).

Although these decisions have been cited by the West Virginia Supreme Court, it has yet to formally endorse the Burlington/Faragher affirmative defense.

The Akers case involved sexual harassment by a supervisor. It is a hostile environment claim, not a quid pro quo claim. (The Court notes at one point that the plaintiff's job duties were modified, but her "wage rate, benefits, and hours of employment remained the same." Quid pro quo harassment requires a tangible employment action such as hiring, firing, failing to promote, etc., and minor changes in job duties without decreases in compensation and benefits usually is insufficient.) Yet the Court states in a conclusory fashion "[b]ecause the conduct at issue was that of a Hospital supervisor, there is no difficulty imputing Mr. Ball's alleged conduct to the Hospital." This, of course, is the fourth prong of a prima facie case of sexual harassment under syllabus point five of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995). Yet no discussion is made of whether the employer can raise the Burlington/Ellerth defense to avoid liability for this man's conduct. As this case is being remanded for another trial, wouldn't it have been helpful to have some guidance on this point? And how does the affirmative defense square with the new Syllabus Point 5 of Akers that

Once a plaintiff in a sexual harassment case introduces evidence that demonstrates the four elements set forth in syllabus point five of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), he/she has proven a prima facie case of sexual harassment, which must then be presented to the jury.

What if the employer establishes on cross examination of the Plaintiff that the Plaintiff knew about the sexual harassment policy, received a copy of it, understood its purpose, but chose to ignore it anyway? Does the case still have to go to the jury?

I suppose it could be that the Defendant in this case did not raise the Burlington/Ellerth defense, so the Court did not address it. Maybe Justice Starcher or Justice Maynard will address the issue in their separate opinions.

The points of law the court did address in Akers are as follows:

6. A statutory claim brought under the West Virginia Human Rights Acts, W.Va. Code §§ 5-11-1 to -21 (Repl. Vol. 2002), to establish sexual harassment does not require proof of psychological injury.

7. Lay or expert testimony that the plaintiff in a sexual harassment case suffered resulting mental anguish, aggravation, inconvenience, humiliation, embarrassment, or loss of dignity will support an award by the jury or other fact finder of incidental noneconomic damages.

8. Where a plaintiff in a sexual harassment action seeks to prove a specific medical or psychological condition that falls within either the discipline of psychiatry or psychology, the qualification of a proffered expert witness to testify for the purpose of connecting the alleged sexual harassment to the specific medical or psychological condition will be determined based upon the nature and extent of the witness's education, training, and expertise.

I don't have a problem with syllabus points 6 and 7. And I don't really have any problem with a "no medical degree, no problem rule" to some extent. Afterall, clinical psychologists lack a medical degree, but have doctorate level degrees from APA approved clinical psychology graduate programs. The glaring problem with this opinion is that the Court does not distinguish between clinical psychologists and garden variety counseling psychologists with bachelor's degrees.

The difference between a clinical psychologist and a counseling psychologist is like the difference between a physician's assistant and a physician or a paralegal and a lawyer. Fortunately, the Court did not conclude that the counseling psychologist in this case was competent to testify that the plaintiff's psychological disorders were connected to the supervisor's sexual harassment. However, by holding that any "psychologist" might be competent to testify on such issues, the Court left the door wide open. (The W.Va. Employment Lawyer's association apparently wrote an amicus brief urging the court to allow counseling psychologists to offer such testimony.) This is certain to create mischief. I foresee every sexual harassment plaintiff in West Virginia going to their local psychologist to get "diagnosed" with PTSD to bolster their damages claim. This will, of course, only increase the cost of litigation for employers, who will feel compelled to offer a true expert clinical psychologist or psychiatrist to refute the claims.

Wednesday, May 26, 2004

Rule 11 sanctions reversed where party failed to observe safe-harbor requirement

The en banc Fourth Circuit explained several new points of law and procedure today in Brickwood Contractors, Inc. v. Datanet Engineering, Inc., Nos. 00-2324 and 002325 (May 26, 2004) (PDF) regarding Rule 11.

Point 1: The 21-day safe-harbor provisions of Rule 11(c)(1)(A) are mandatory, "inflexible claim-processing rules," but are not "jurisdictional." In making this distinction, the court is taking a cue from the Supreme Court's opinion in Kontrick v. Ryan, 124 S. Ct. 906 (2004), that "[c]larity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority." Id. at 915. (In the future, we are likely to see more rules previously labeled "jurisdictional" switched to "inflexible claim-processing rules.")

Point 2: Although the safe-harbor provisions are mandatory, they do not implicate the district court's subject-matter jurisdiction and thus may be forfeited if not timely raised. In other words, unlike a truly jurisdictional issue, the safe-harbor issue can be waived.

Point 3: However, given the important purposes served by Rule 11(c)(1)(A) and the mandatory nature of its language, in most cases involving failure to comply with the safe-harbor provisions, a proper application of the plain error (Olano-Taylor) standards will lead to correction of the error.

That's exactly what happened in this case. The sanctioned party did not raise the failure to comply with the safe-harbor provisions until the appeal, but the court corrected the error and reversed the sanctions anyway.

Point 4: Because Rule 11 requires that the party submitting the challenged pleading be given an opportunity to withdraw the pleading, sanctions cannot be sought after summary judgment has been granted.

This was yet another defect present in this case. Get those Rule 11 motions in with your motion for summary judgment (after you comply with the 21-day safe-harbor provision, of course.)

En banc Fourth Circuit rules confederate flag decal case improperly removed

Via How Appealing:
En banc Fourth Circuit rules that lawsuit filed by employee who claimed he was improperly fired for displaying two Confederate flag decals on his toolbox was improperly removed from state court to federal court: You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. The result appears to be unanimous. The three-judge panel in this case oddly consisted of two district judges and one active Fourth Circuit judge, and the result advocated in dissent by U.S. District Judge Joseph R. Goodwin of the Southern District of West Virginia, sitting by designation, has today prevailed. You can access the three-judge panel's ruling at this link. My earlier posts about this case are both conveniently available here.


I previously remarked that Judge Goodwin's dissent raised a good point. Looks like his dissent finally won the day.

Update: The Fourth Circuit has issued a corrected opinion in this case here. The SW Virginia Law Blog has a good summary of the case here.

Tuesday, May 25, 2004

Creating Electronic Briefs

Yesterday, I read this post in the PDF for Lawyers blog, which led me to an article by Dennis Kennedy called Putting PDF and Adobe Acrobat into Your Tech Toolbox, which contains a link to this 2002 article by David L. Masters on how to create an electronic brief using Adobe Acrobat. Even though the article is from 2002, it is still very relevant and useful. I wish I would have seen it back in February when I created my first electronic brief by trial and error. Mr. Masters does an excellent job of outlining the steps.

As I was drafting my brief, I jotted down the steps so I could share them with other lawyers. Mr. Masters' article covers most of the ground, and I won't repeat what he has done. But I do have a few tidbits to offer that supplements his advice.

Most attorneys know about PDFs. (If you don't take a look at this article in LLRX.) But very few attorneys seem to be taking full advantage of all that PDF has to offer. As the Masters article explains, the PDF format allows attorneys to create electronic "cyberbriefs" or "e-briefs" that hyperlink citations to all exhibits and legal authorities. Even though I knew about this capability of PDFs for years, I had no idea whether it was difficult or easy.

The motion I was working on in February was summary judgment motion in federal court that referenced about 1,300 pages of exhibits. With such a large amount of information for the court to wade through, it seemed like the perfect opportunity to make life easier for the judge and his law clerk by providing an electronic brief in addition to our paper brief. Although the process is not difficult, it's too much work for minor motions, but for motions like this, it is definitely worth it.

In the way of system requirements, here's what I was using:
1. MS Word 2000
2. Adobe Acrobat, full version (we use Acrobat 6.0 Standard, but 5.0 will work as well).
3. Konica 7165 high volume scanner/copier
4. CD-R drive and CD-R media.

Here are my additional tips:

Research.
The only time-saving tip I can offer for this step is to download your case authority in PDF instead of in a word processor format or (worse yet) printing to paper. Lexis and Westlaw both offer a PDF download option. If you don't subscribe to those services, you can convert your cases to PDF by printing to the Adobe PDF "paperless printer" or use the Acrobat Distiller as Mr. Masters explains. Paper cases can be scanned and converted to PDF.

The brief.
Before converting your brief to PDF, you will want to take the timesaving step of coloring your hyperlinks in your word processor. In PDF, hyperlinked text is not automatically changed to blue. So, if you want your hyperlinks to stand out visually, it's up to you to make the changes yourself. Although it is possible to change the color of text in Acrobat using the touch up text tool, it is a frustrating, time-consuming process. So before conversion, go through your brief and change the text color to blue for every cite you intend to hyperlink. Blue is the standard, universally-recognized hyperlink color, so I recommend using it. Once the text color has been changed for your future links, convert the brief to PDF by "printing" to the Adobe PDF driver and saving the file to your hard drive.

Linking in Acrobat.
When creating your links in Acrobat, set the linked document to use “inherit zoom.” Adobe Acrobat allows you to choose the zoom level of the page you are linking to. Most of the time, you will want to set Acrobat to inherit the zoom of the previous page. So, for instance, if the reader has the zoom set at 75%, when he clicks on your hyperlink to another part of the PDF, the zoom won’t instantly change to 100%. The reader can always change the zoom if he or she wants to, but it is annoying for the zoom to change on you automatically.

This next tip is for folks who are creating an all-inclusive single PDF file with the brief and all authority included. Write down the PDF page numbers for the first numbered page of all the depositions you plan to cite. When you are submitting a brief on CD, there is no reason not to include an entire deposition transcript rather than just selected pages. Believe it or not, it is actually easier to link to a deposition when all of the pages are scanned and present in your PDF. Whenever you create an internal hyperlink in a PDF, you must type in the target PDF page. (By "you," I mean you, your paralegal or secretary. Linking is a good job for support staff). For example, page 201 of a certain deposition may be PDF page 352. Instead of scrolling to search for every page of a deposition you cite, you can just keep track of the first PDF page number of each deposition transcript. So, for example, if Exhibit C is a deposition, and page one of that deposition begins on PDF page 85, you would write down on a scrap piece of paper, “Smith depo, Ex. C, is +85.” That way, when you go to link a page in that deposition, you will know to add 85 to the deposition page number. So, when you go to create a hyperlink for the cite “Smith Depo., Ex. C at 201” you will link it to PDF page 286 (201 plus 85). This method is much easier than scrolling through your PDF to find the page number for every cite to that transcript.

Bookmarks.
Write descriptive bookmarks. Your electronic brief will look much more professional if you bookmark a case with its full citation rather than just “Smith case.” It is also helpful for the judge or clerk to see the entire case cite just as she would see it in a table of authorities. Bookmarks should also be organized in a hierarchical fashion. For example, if you cite a deposition as Exhibit A, and the deposition has its own exhibits 1-15, put the bookmarks to Exhibits 1-15 beneath Exhibit A in the bookmark hierarchy. This will keep your bookmarks neat and organized in an outline fashion.

Replacing pages.
If you find a mistake on a page, use the replace function. When you create a cyberbrief, you will review your brief with a fine-tooth comb and you will notice more mistakes. Don’t panic, even if you see a mistake you want to correct and you have already linked the page. If it is a minor correction that will not change the page significantly, chances are you can use the replace page command. Simply correct the page in your word processor, print the corrected page to PDF, then use the replace command to remove the old page and insert the new one, preserving all of your links. Here is a tip sheet on using the replace command. If the mistake is just a minor typo such an incorrect page reference, you might even be able to use the touch up text tool.

CD labeling.
Do not wait until the last minute to burn CDs and create your CD labels. Although they do not have to be fancy, your CD labels should at least contain the critical identifying information about you and your case. As a rule of thumb, label the CD with the same information you would see on a docket sheet or on the first page of your motion (case name, civil action no., date, title of document) along with your contact information. I recommend labeling the CDs and not just the jewel cases because, as you likely know, CDs can get separated from their cases forever. Use the thin jewel cases and don't include a paper insert. Your CD label will show through, and there is no "spine" to label on the case.

Compliance with court rules.
Always check the court’s local rules regarding electronic submissions to make sure you are in compliance. Even when local court rules do not address electronic briefs, most courts probably will not refuse a brief submitted on CD as long as a paper brief is submitted as well. Appellate Courts seem to be more picky about such submissions than trial courts. The CD copy, however, is just a “convenience” copy, not the official copy of your submission. It may or may not ever be opened. Also, you’ll want to check with the clerks’ office to see if filing is required. Certainly, if it is provided to the judge, it should be served on the other parties' counsel in the case.

I am happy to say our motion for summary judgment carried the day. I have no idea if it was because we filed an electronic version of it, but I like to think so. Certainly, it didn't hurt.

Monday, May 24, 2004

State Supreme Court upholds intentional acts exclusion

In West Virginia Fire & Casualty v. Stanley, No. 31230 the West Virginia Supreme Court of Appeals ruled that "[t]he inferred-intent rule set forth in Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988), applies to minors so that there is neither a duty to defend an insured in an action for, nor a duty to pay for, damages allegedly caused by the sexual misconduct of an insured who is a minor, when the liability insurance policy contains a so-called "intentional injury/acts" exclusion. In such a case, the intent of the minor insured to cause some injury will be inferred as a matter of law.

The case involves insurance coverage for Stanley, who is a disabled coal miner that won a $5.6 million lottery jackpot 18 years ago. He is accused of looking the other way while his youngest son, Jesse, repeatedly molested a granddaughter. The ruling was issued 5-0.

Even though the complaint included several negligence counts along with accusations of intentional sexual misconduct, the Court nevertheless found that the intentional acts exclusion applied. On this point, the Court relied upon Syllabus Point 4 of Smith v. Animal Urgent Care, Inc., 208 W.Va. 664, 542 S.E.2d 827 (2000), which held that, "[t]he inclusion of negligence-type allegations in a complaint that is at its essence a sexual harassment claim will not prevent the operation of an 'intentional acts' exclusion contained in an insurance liability policy which is defined as excluding 'bodily injury' 'expected or intended from the standpoint of the insured.'" The Court stated that "we believe it is clear that the gravamen of Cass-Sandra and Sandra Stanley's complaint is that Jesse Stanley intentionally sexually abused and sexually exploited Cass-Sandra Stanley, and that he intended, or at least expected, bodily injury to result. Accordingly, we conclude that any alleged negligent acts against Jesse Stanley are precluded by the intentional acts exclusion."

Questions await as ATV law takes effect

On Wednesday, West Virginia's ATV law takes effect. This article in the Dominion Post reviews the highlights of the new law.

Highlights of law regulating ATVs
* Child Safety

-- Riders under 18 must wear a helmet at all times, including on private land.

-- Riders under 18 can carry child passengers only if they have a driver's license.

-- As of Jan. 1, 2005, riders under 18 must pass free, state-certified safety courses to be offered in DMV offices and perhaps other sites.

-- Riders under 18 may ride on the Hatfield-McCoy Trail, or other public recreational trails with their own safety programs, without first passing state-certified safety courses.

* Roads

-- ATVs are allowed on unlined roads. About 13,000 of the state's 34,000 miles of roads have center lines.

-- ATVs cannot be ridden on roads with center lines or more than two lanes, except to cross them at a 90-degree angle.

-- ATVs can be ridden on the shoulder of roads with center lines or more than two lanes at speeds of 25 mph for up to 10 miles.

-- ATVs can be operated on interstate highways only by public safety personnel.

* General Safety

-- No ATV can be ridden with more than one passenger unless recommended by a vehicle's manufacturer.

-- All applicable rules of the road, from illegal turns to drunken driving to insurance requirements, apply to ATV drivers.

* Local Regulations

-- Municipalities can regulate or ban ATVs within city or town limits.

-- County commissions operating under comprehensive land-use plans can regulate or ban ATVs on county roads. About a dozen counties operate under such land-use plans.

-- Homeowner associations can petition county commissions to regulate or ban ATVs within their areas.

* Penalties

-- Violators, including parents who allow their children to violate the law, face misdemeanors punishable by fines up to $100 and 10 hours of community service for a first offense; $200 and 20 hours of community service for a second offense; and $500 and 100 hours of community service for subsequent offenses.

New York lawyer fined for barking at case's witness

Doesn't this guy know we have an image problem?

Wednesday, May 19, 2004

Deadly snails

As Dave Barry would say, "I am not making this up."

This article in today's Daily Mail notes that the West Virginia Department of Agriculture is trying to round up giant African land snails because they pose serious risk to human health.

Apparently, these critters can be purchased on the Internet, and are popular with science teachers who have no idea they can kill. No, they don't eat you with their powerful giant snail jaws, they have lethal bacteria and parasites on them that can damage the central nervous system.

But good news. Here in West Virginia, the agriculture department has set up an amnesty period for anyone who's in possession of a giant African land snail. According to this article, "[a]s long as people notify the department and hand over the creatures, no one will be penalized." Illegal possession of restricted and exotic wildlife usually results in hefty fines.

Thursday, May 13, 2004

Mexican Air Force Films UFOs

According to this article in Wired News, pilots conducting drug surveillance over Campeche state filmed 11 unidentified flying objects in early March, after the UFOs appeared to surround the aircraft. Now, Mexican officials release the video.

This raises the burning question in our minds... Mexico has an air force?

Update: CNN is reporting that the UFOs were probably just ball lightning. Oh, sure. That's what the government wants us to think.

Tuesday, May 11, 2004

Dr. McCammon appeals dismissal of suit over frivolous lawsuits

This article in today's Charleston Gazette notes that Harrison County OB/GYN Julie McCammon has appealed the dismissal of her lawsuit against the trial lawyers and their president for conspiring to file frivolous and malicious lawsuits against physicians.

As I've noted before, I am intrigued by the delicious irony of the suit. Could the Supreme Court of Appeals possibly be interested in hearing this one? I hope they don't waste their time with it.

Sunday, May 09, 2004

News anchor sinks at State Supreme Court

Judge Matish correctly ruled that former WBOY news anchor Erik Wells' employment-related claims are subject to arbitration. The West Virginia Supreme Court of Appeals denied Mr. Wells' writ of prohibition on Friday in SER Wells v. Matish, Judge, No. 31684 (May 7, 2004). WBOY placed Mr. Wells on an unpaid leave of absence after his wife, co-anchor Natalie Tennant, commenced an upaid leave of absence to campaign for West Virginia Secretary of State. (See news story here.) Wells sued the station for breach of contract, public policy violations, defamation, and tortious interference with business relations. WBOY moved to compel arbitration under Wells' employment contract, and the Court ruled that the breach of contract and public policy violation claims were subject to arbitration. Having no immediate appeal right, Wells petitioned the supreme court for a writ of prohibition to prevent the claims from being sent to arbitration.

In his petition, Wells argued (1) that the costs of arbitration were financially burdensome, (2) that WBOY-TV grossly misrepresented the costs of arbitration, and (3) that his public policy violation claims cannot be arbitrated. The supreme court disagreed with all three arguments.

With regard to the costs issue, the Court held that Wells' estimate of the arbitration costs was "simply speculative at this point," and that he has "simply not shown that arbitration would be prohibitively expensive." Regarding the misrepresentation, Wells had argued that the offending misrepresentation by WBOY was that "arbitration was cheaper than litigation." Citing federal decisions in Circuit City Stores Inc. v. Adams, 532 U.S. 105, 123 (2001) and Bradford v. Rockwell Semiconductor Systems, Inc. 238 F.3d 549, 552 (4th Cir. 2001), strongly encouraging arbitration in employment cases, the Court held that "we are unable to find any merit to Mr. Wells' argument that the costs of arbitration as compared to litigation were misrepresented...." (The Fourth Circuit case estimated that the costs of the average employment case was $50,000 and 2 1/2 years in litigation. Great for lawyers, terrible for everyone else.)

Finally, and perhaps most significantly, the Court held that Harless-type claims alleging violation of some substantial public policy are subject to arbitration where the arbitration clause covers "any dispute" that arises between the parties as a result of the employment contract. The Court noted that the Northern District of West Virginia ruled that a Harless claim was subject to arbitration in Eastern Associated Coal Corp. v. Munson, 266 F.Supp.2d 479 (N.D.W.Va. 2003).

This decision offers hope that the West Virginia Supreme Court of Appeals will interpret arbitration clauses in a manner consistent with the federal courts, including the Supreme Court of the United States. Consistency among the jurisdictions is good for everyone involved, especially employers trying to decide if arbitration clauses are worth bargaining for.

Thursday, May 06, 2004

Supreme Court affirms defense verdict in tobacco medical monitoring cases

The West Virginia Supreme Court of Appeals affirmed today the jury's defense verdict in In Re: Tobacco Litigation (Medical Monitoring Cases), No. 31157. The class-action case was brought on behalf of more than 250,000 West Virginia smokers who alleged that smoking cigarettes placed them at an increased risk of contracting serious diseases. None of the class members claimed current illness.

In affirming the jury's decision, the majority found that there was not a "serious challenge to the jury's conclusion" that exposure to cigarette smoke does not "make it reasonably necessary for all class members to undergo periodic medical examinations different from what would be prescribed in the absence of exposure." This was one of the six elements required to establish a medical monitoring claim.

In the per curiam opinion, the Court addressed the critics of the judicially-created medical monitoring cause of action. The Court wrote: "To say that one 'needs no evidence to prove a medical monitoring cause of action' is a clear misstatement of the law." It's not clear who raised this argument or what the court was quoting from, but my guess is, the Court was talking to the West Virginia Chamber of Commerce as much as anyone else.

In footnote three, the Court elaborated:
Critics of medical monitoring obviously do not understand the rationale for such a cause of action. A simple example to demonstrate justification for recovery of such damages would be a situation in which a single industrial polluter admittedly dumped a toxic substance into a stream that ran through a neighborhood of six homes. The families in three of the homes contracted cancer that was traced directly to the toxic substance, but no one in the other three families contracted any disease. However, medical doctors for the three families who were currently free of disease advised those families that they should undergo annual medical examinations to monitor for disease from the toxic substance for the remainder of their lives. Costs for the medical monitoring would be, according to the doctors, estimated to be $500.00 to $1,000.00 per year. Common sense should suggest that these medical monitoring costs be borne by the negligent industrial polluter of the toxic substance, and not the innocent victim of the toxic exposure.
Two and a half years after the verdict, this case finally comes to a close. The opinion is short and not really noteworthy, as one would expect from a per curiam opinion. For what it's worth, the Court did offer that "Bower [v. Westinghouse Elec. Corp.] establishes an extremely high bar for a plaintiff to overcome before there can be any recovery for medical monitoring." The majority is obviously attempting to reassure the public that Bower is not going to ruin the state's economy. Bower has been a flashpoint in the debate over the judicial system since it was decided, and I have always thought the concerns about it have been overblown. Don't get me wrong, I think it was wrong to create the medical monitoring cause of action from the bench, I just don't think it will keep West Virginia on the judicial hellhole list until it is overturned, as some seem to argue. The idea that every non-frivolous case deserves a jury trial is more problematic to me than the Bower decision. But, taking a stand against the jury system is political suicide, so the judicial reformists will continue to seize on cases like Bower to support their position that changes are needed.