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The Second Circuit considered the validity of class action waivers for the third time in an antitrust action brought against American Express (“AMEX”) based upon the company’s Card Acceptance Agreement. And, despite intervening Supreme Court opinions, for the third time the appellate court held class action waivers involving federal statutory rights were unenforceable. The Second Circuit’s February 1, 2012 opinion held “that each waiver must be considered on its own merits based on its own record and governed with a healthy regard for the fact that the [Federal Arbitration Act] is a congressional declaration of a liberal federal policy favoring arbitration agreements.” This third opinion likely will have an impact beyond costly antitrust litigation, but the question is how far? Indeed, the opinion cited two District Court decisions denying enforcement of class action waivers in the employment law context.
A brief review of the case’s long appellate history is helpful. The appeal was originally argued on December 10, 2007. In Re American Express Merchants’ Litigation.pdf, 554 F.3d 300 (2d Cir. 2009) (“AMEX I”) the court held the class action waiver unenforceable “because enforcement of the clause would effectively preclude any action seeking to vindicate the statutory rights asserted by the plaintiffs.” AMEX I at 304. The U.S. Supreme Court vacated that decision and remanded it for reconsideration in light of its Opinion in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758 (2010). Stolt-Nielsen, which was previously discussed in this blog, held that imposing class arbitration on parties that had not agreed to it conflicts with the FAA. The Second Circuit, however, found that Stolt-Nielsen did not affect its original analysis and again reversed the District Court’s decision and remanded the case. AMEX II, 634 F.3d at 199-200.
On April 11, 2011, the appellate court placed a hold on the mandate in AMEX II so that AMEX could seek a writ of certiorari. During that time, the Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). The Concepcion decision, also extensively covered in this blog, held that the FAA preempted California law barring the enforcement of class action waivers in the consumer context. 131 S.Ct. 1740 (2011). The Second Circuit then received supplemental briefing on Concepcion’s potential impact on the case.
. . . the cost of [Nathan Associates’] expert assistance in individual plaintiff antitrust cases has ranged from about $300 thousand to more than $2 million. However, after reviewing the complaint and doing some preliminary research in this case, it is my opinion that . . . the cost for this case will fall in the middle of the range of [Nathan Associates’] experience.
The largest volume named plaintiff merchant, with reported American Express Card volume of $1,690,749 in 2003, might expect four-year damages of $12,850, or $38,549 when trebled.
In my opinion as a professional economist . . . it would not be worthwhile for an individual plaintiff . . . to pursue individual arbitration or litigation where the out-of-pocket costs, just for the expert economic study and services, would be at least several hundred thousand dollars, and might exceed $1 million. (Emphasis added).
Largely based on Dr. French’s affidavit, the Second Circuit concluded that “the only economically feasible means for plaintiffs enforcing their statutory rights is via a class action.” In AMEX I the court had found the expert’s affidavit was “essentially uncontested”. 554 F.3d at 317. In reaching its conclusion, the court discounted the fact that the Clayton Act provides for treble damages and the recovery of attorneys’ fees and expenses.
It is tempting to give both Concepcion and Stolt-Nielsen such a facile reading, and find that the cases render class action arbitration waivers per se enforceable. But a careful reading of the cases demonstrates that neither one addresses the issue presented here: whether a class-action arbitration waiver clause is enforceable even if the plaintiffs are able to demonstrate that the practical effect of enforcement would be to preclude their ability to vindicate their federal statutory rights. (Emphasis added).
[a]lthough the Sherman Act does not provide plaintiffs with an express right to bring their claims as a class in court, forcing plaintiffs to bring their claims individually here would make it impossible to enforce their rights under the Sherman Act and thus conflict with congressional purposes manifested in the provision of a private right of action in the statute. (Emphasis added).
The Court instead looked to older Supreme Court precedent to find support for whether arbitration can be rejected if it does not fully vindicate federal statutory rights. It cited Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., for the proposition that arbitration can be “an effective vehicle for vindicating statutory rights but only ‘so long as the prospective litigant may effectively vindicate its statutory cause of action.'” Citing Mitsubishi, 473, U.S. 614, 632 (1985). The Court then looked to dicta in Green Tree Financial Corp-Alabama v. Randolph stating “that the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum.” 531 U.S. 79, 90 (2000). Because Mitsubishi and Green Tree were not impacted by Stolt-Nielson or Concepcion, the Second Circuit felt it was free to rely on those opinions.
The Court emphasized that it relied not on the size of the Merchants involved but “on the need for plaintiffs to have the opportunity to vindicate their statutory rights.” As support of this analysis, the Court cited two employment cases – Raniere v. Citigroup, Inc.pdf., No. 11 Cir. 2248, 2011 WL 5881926 (S.D.N.Y., November 22, 2011) and Chen-Oster v. Goldman, Sachs & Co.pdf., No. 10 Cir. 6950, 2011 WL 2671813 (S.D.N.Y. July 7, 2011). Raniere involved a putative nationwide collective action under the Fair Labor Standards Act as well as a New York class action under the New York Labor Law. The District Court found that since Concepcion involved state not federal rights, “even if . . . read broadly to acquiesce to the enforcement of an arbitral agreement that as a practical matter would prevent the vindication of state rights in the name of furthering the strong federal policy favoring arbitration, that would not alter the validity of the federal statutory rights analysis . . . . ” (Emphasis added).
The underlying action in Chen-Oster was a pattern and practice claim for gender discrimination under Title VII of the Civil Rights Act of 1964. After considering Concepcion, the judge in Chen-Oster found it was not a “controlling decision.” And, both Raniere and Chen-Oster cited AMEX II as controlling precedent. So, what these two lower court decisions really illustrate is that the reasoning in AMEX III may well extend into other areas of federal law.
While the AMEX III decision cautioned that it did not hold that class action waivers were “per se unenforceable, or even that they are per se unenforceable in the context of antitrust actions,” it left many unanswered questions. Instead of considering whether Congress intended to preclude arbitration of the statutory claims involved, it focused on whether arbitration would preclude vindication of the federal statutory rights. It also took a broad view of the way in which the statutory rights would be determined. It apparently based its decision on a case-by-case analysis of litigation costs (expert witness fees) and discounted the potential benefits of multiple damage awards, attorneys’ fees and expenses provided to successful plaintiffs by the federal statutes involved.
But, AMEX III established no objective guidelines for the task – other than to point out that many plaintiffs failed in their quest. “The fact that plaintiffs so often fail in their attempts to overturn such waivers demonstrate that the evidentiary record . . . is not easily assembled, and that the courts are capable of the scrutiny such arguments require.” But are they? Is it only where vindication of the federal rights would be impossible? And, does the ability to bring aggregate actions become a substantive right when the statute does not mention the procedure and when the federal statute provides multiple damages, attorneys fees for prevailing parties and other fee shifting provisions. Under what circumstances will the statutorily created remedies be considered inadequate? Hopefully, the Supreme Court will resolve some of these issues and properly interpret Concepcion when AMEX III is considered on certiorari.
The Bottom Line: AMEX III will be another potential obstacle to enforcing class action waivers, at least in the Second Circuit. However, it’s difficult to say what practical effect it will have on employment actions. It’s a rare employment case, indeed, in which a plaintiff must spend between $300 thousand to more than $2 million for expert witness costs and only expect to recover $38,549 (after being trebled).

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Today’s episode takes a look at a tragic case currently unfolding of a pregnant young woman being detained for being in this country illegally and the Trump administration’s efforts to deny her the right to an abortion.
We begin with a quick procedural update on the 9th Circuit’s ruling on EO-2 before taking a deep dive into the nuts and bolts behind Zarda v. Altitude Express, which we first discussed back in Episode 91. Thanks to some great questions from our listeners, Andrew and Thomas get into the civil procedure weeds with concepts like “claim-splitting” and res judiciata.
In the main segment, the guys break down Jane Doe v. Wright, and discuss whether the government can prohibit an minor alien in this country outside of legal status from seeking an abortion.
Finally, we end with the answer to Thomas Takes the Bar Exam Question #47 about landlord responsibility and immunity. Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!
The recent news regarding the 9th Circuit was reported by Bloomberg News and other outlets.
We first discussed Zarda v. Altitude Express in Episode 91.
New York’s Human Rights Law can be found in the New York Consolidated Laws, Art. 15, § 290 et seq.
We took you through the current status of abortion in our detailed two-part discussion of Planned Parenthood v. Casey in Episode 27 and Episode 28.
You can read Jane Doe’s complaint, as well as the en banc decision of the Court of Appeals for the D.C. Circuit in Jane Doe v. Wright.
The regulations implementing sexual harrassment under Title VII can be found at 29 C.F.R. § 1604.11.


This matter is before the Authority on the Union's motion for reconsideration of the Authority's decision in United States Dep't of the Army, Corps of Engineers, Portland District, 61 FLRA 599 (2006) (Army, Corps of Engineers). The Agency filed a response to the Union's motion. The Union filed an additional motion for reconsideration on August 11, 2006, and the Agency also filed a response to that submission.
The Authority's Regulations permit a party who can establish extraordinary circumstances to request reconsideration of an Authority decision. 5 C.F.R. § 2429.17. For the reasons below, we find that the Union has failed to establish extraordinary circumstances warranting reconsideration. Accordingly, we deny the Union's motion for reconsideration.
The Arbitrator found that under the [parties'] MOU, applicants for the [hydropower] training program are required to meet the "Single-Agency Qualification Standard." [Award] at 13. The Arbitrator determined that in order to meet the Single-Agency Qualification Standard for the training program, a candidate must take and pass the Office of Personnel Management (OPM) Trades Apprenticeship Examination. Id. at 5, 15. However, the Arbitrator also noted that under OPM regulations, SCEP participants are not required to pass such an exam in order to qualify for these hydropower trainee positions. See 5 C.F.R. § 213.3202(b)(15). Accordingly, the Arbitrator found the MOU inconsistent with OPM regulations to the extent that the MOU requires testing of SCEP participants.
In addressing this inconsistency, the Arbitrator fashioned an award that, in his view, required the Agency to comply with the MOU without violating OPM regulations. More particularly, the Arbitrator found that the "Agency can avoid creating a conflict between the [MOU] and the CFR [OPM regulations] simply by selecting . . . trainees from an `appropriate source' other than the SCEP." Award at 14. He further determined that where the only appropriate source available to fill a vacancy in the training program was a SCEP participant, then the Agency could fill its trainee position with the SCEP participant without requiring the SCEP applicant to pass OPM's test. Id. The Arbitrator concluded by stating that "the Agency has failed to prove it is precluded in all cases from following the terms of the [MOU] by 5 CFR 213.3202(b)(15)." Id. In reaching that conclusion, the Arbitrator noted specifically that the Agency "did not argue the application or effect of 5 USC § 7106(a)(2)(C)(ii)." Id. n.10.
Army, Corps of Engineers, 61 FLRA at 600.
In exceptions, the Agency raised a number of issues, including whether the award was consistent with 5 C.F.R. § 213.3202(b)(11). In resolving this exception, the Authority noted that the Agency had not been delegated specific authority by the Office of Personnel Management to fashion a system that differed from the testing requirements for SCEP employees under 5 C.F.R. § 213.3202(b)(15). Id. at 602. Moreover, the Authority found that the award conflicted with 5 C.F.R. [ v62 p98 ] § 213.3202(b)(11) because "the award dictates that the Agency must hire from any other appropriate source before considering SCEP candidates." Id. The Authority further stated, "[a]s the OPM regulation places SCEP candidates on an equal footing with other appropriate source candidates, the Arbitrator's award, by imposing a condition - the absence of a candidate from other appropriate sources - is contrary to regulation." Id.
With respect to the Agency's initial reply to the Union's motion for reconsideration, the Authority has previously allowed leave for a party to respond to a motion for reconsideration. See, e.g., United States Dep't of the Treasury, IRS, Washington, D.C., 61 FLRA 352 (2005). As such, the Authority will consider the Agency's reply.
However, with respect to the parties' subsequent filings, the Authority's Regulations do not provide for the filing of supplemental submissions, and as the Union failed to request permission to file its submission under 5 C.F.R. § 2429, the Authority will not consider this submission. See United States Dep't of Health and Human Services, Food and Drug Admin., 60 FLRA 250, 250 n.1 (2004); 5 C.F.R. § 2429.26. Additionally, as the Agency's subsequent submission was intended to address the arguments raised for the first time in the union's supplemental submission, the Agency's submission is moot and will not be considered. Agency's Reply at 1.
The Union asserts that the Authority "decided this case on the basis of arguments raised on its own, without allowing the parties a chance to be heard on those arguments before it issued its ruling." Motion for Reconsideration at 2. In this respect, the Union claims that the issue of whether the "Agency has been delegated specific authority" was raised for the first time by the Authority. Id. at 2.
Additionally, the Union argues that the testing at issue in this case is not one required by the Office of Personnel Management (OPM) but is "rather a test required by the Agency's own policy and the parties' negotiated agreement, as interpreted by the Arbitrator." Id. at 3.
Moreover, the Union asserts that the Authority misunderstood the Arbitrator's award. In this respect, it claims "the `remedy' portion of the award does not `dictate that the Agency must hire from any other appropriate source before considering SCEP candidates,' as the Authority says." Id. at 3. In this respect, it argues that if the Agency wants to consider only an SCEP applicant, then it must simply notify the Union of this decision, and that the Agency is not otherwise obligated to consider all other appropriate source applicants first. Id.
The Agency disagrees with the Union's assertion that the Authority raised any matters sua sponte. Agency's Opposition at 5. Specifically, it states "[t]he Agency argued all along that the regulatory waiver of the testing requirements required the denial of the grievance." Id. at 2 (citing Step 2 response, page 2; Award, p.5; and Exceptions at 9-11). In this respect, the Agency contends "the Authority's determination that there was no valid Agency-developed standard, especially given the test-waiver regulation, is not only not new, it was the heart of one of the Agency's arguments all along." Id. at 3. Additionally, with respect to the issue of delegation of specific authority, it notes that this issue was previously addressed by the parties and that "[t]he Union's Motion is simply disagreeing with the Authority's conclusion that OPM regulations waive the test for SCEP employees, which was raised early and often in the grievance process." Id. at 6.
Moreover, the Agency asserts that the Union has not shown that any other testing besides an OPM test was at issue here. It states that the award specifically notes that the test in question was an OPM test. Id. at 4 (citing Award at 13).
Finally, the Agency argues that the award "is clear that only where the sole candidate for a vacancy is a SCEP participant can the agency hire the SCEP participant, and even then only after giving notice to the union." Id. at 5.
The Authority has repeatedly recognized that a party seeking reconsideration of an Authority decision under 5 C.F.R. § 2429.17 bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See, e.g., United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 935 (2000) (IRS). The Authority has identified a limited number of situations in which extraordinary circumstances have been found to exist: (1) where an intervening court decision or change in the law affected dispositive issues; (2) where evidence, information, or issues crucial to the decision had not been presented to the Authority; (3) where the Authority [ v62 p99 ] erred in its remedial order, process, conclusion of law, or factual finding; and (4) where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in the decision. See United States Dep't of the Air Force, 375th Combat Support Group, Scott Air Force Base, Ill., 50 FLRA 84, 85-87 (1995). The Authority has repeatedly advised that attempts to relitigate conclusions reached by the Authority are insufficient to establish extraordinary circumstances. See IRS, 56 FLRA at 936.
Here, the Union argues that its motion for reconsideration should be granted because: (1) the Authority raised the issue of delegated authority sua sponte; (2) the Authority erroneously found that OPM testing was required rather than an Agency adopted, local test; and (3) Authority mischaracterized the Arbitrator's remedy. For the following reasons, we reject the Union's arguments in support of its motion for reconsideration.
First, it was necessary to resolve the issue of whether the Agency was delegated authority by the Office of Personnel Management to fashion a system that differed from the testing requirements under 5 C.F.R. § 213.3202(b)(15) because of the Union's claim that "an Agency-developed standard" required such testing even where OPM regulation did not. Union's Opposition at 6. In resolving this issue, the Authority noted that there was no evidence that the Agency had been delegated specific authority to impose such a test and that the regulations with respect to hiring SCEP candidates were issued by the "U.S. Civil Service." Army, Corps of Engineers, 61 FLRA at 602. Accordingly, as this issue was raised before the Authority, the Union's claim that it was raised sua sponte provides no basis for reconsideration.
Second, the Union claims, without evidence, that the testing in question was not an OPM test but was one that was developed locally. However, the award states that the test in question was an OPM test. Award at 5, 16. As the Union could have excepted to the Arbitrator's finding that the test at issue was an OPM test, but chose not to, such claim is not properly before the Authority on a motion for reconsideration as it is untimely. See 5 U.S.C. § 7122(b). As such, the claim provides no basis for reconsideration.
Finally, the Arbitrator concluded that "the Agency has an obligation to fill vacancies . . . by complying with the RHPTPA [MOU]" and that, in order to comply with the MOU, "all candidates must pass the OPM test." Award at 15, 16. Moreover, the Arbitrator stated that,"[s]ince the Agency has numerous `appropriate sources' from which to select applicants, the Agency can comply with the CBA and the [MOU] as long as applicants are available from `appropriate sources' other than the SCEP." Award at 15. The Arbitrator further determined that where the only appropriate source available to fill a vacancy in the training program was a SCEP participant, then the Agency could fill its trainee position with the SCEP participant without requiring the SCEP applicant to pass OPM's test. Therefore, under the Arbitrator's award, the Agency could choose an SCEP applicant only where there are no other appropriate source candidates. Accordingly, the Union's contrary assertions provide no basis for reconsideration.
In sum, the Union's arguments in its motion for reconsideration do not establish extraordinary circumstances. The Union, therefore, has not established that reconsideration is warranted.
The Union's motion for reconsideration is denied.


While focused more on street crime, the First Step Act brings a bevy of changes to sentencing and incarceration in the federal system. Of note for purposes of the White Collar Roundup are the changes to the number of days off a sentence an inmate will receive for good behavior. The act increases it from the 47 days per year that the Bureau of Prisons (BOP) allows to 54 days per year. In addition, most offenders—including almost all offenders convicted of financial crimes—will be able to obtain early release from custody. Further, the BOP has now directed that it "shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under" 18 U.S.C. § 3624(c)(2). That section currently allows the BOP "to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months." With the addition of the new language, most white collar offenders should end up spending more of their sentence in home confinement.
Under President Trump, the Department of Justice (DOJ) has eschewed regulating the manner in which it would enforce the law through the use of so-called "guidance documents." At a speech in November 2017, then-Attorney General Jeff Sessions said, "Too often, rather than going through the long, slow regulatory process provided in statute, agencies make new rules through guidance documents—by simply sending a letter." He said this practice violates the Administrative Procedure Act and "cuts off the public from the regulatory process by skipping the required public hearings and comment periods—and it is simply not what these documents are for. Guidance documents should be used to reasonably explain existing law—not to change it." In line with that pronouncement, Acting Attorney General Matthew Whitaker announced that the DOJ was rescinding 69 guidance documents in accordance with President Trump's earlier Executive Order 13777. In doing so, Whitaker said, "Under the Constitution, Congress writes our laws and the Executive Branch carries them out. Congress has given us a specific process for implementing regulations, and we have to follow it. Unfortunately, not every previous Administration has done that, and some have overstepped their lawful authority by issuing guidance documents that impose new obligations on parties outside of the Executive Branch and go further than existing law allows. The Trump Administration has already rescinded dozens of guidance documents that were improper, outdated, unnecessary, or inconsistent with current law, and today we are rescinding dozens more. We will continue this effort to restore the rule of law and our constitutional order because this government is accountable to the American people." To see the list of what was rescinded, click here.
As announced here, the DOJ recovered only $2.8 billion from settlements and judgments in civil False Claims Act (FCA) cases. As reported here, that amount, while a large number, is the lowest amount since 2009. Last year, for example, the DOJ announced FCA recoveries for fiscal year 2017 of $3.47 billion. Nonetheless, the government is still heavily focused on the healthcare industry. The DOJ noted, "Of the $2.8 billion in settlements and judgments recovered by the Department of Justice this past fiscal year, $2.5 billion involved the healthcare industry, including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians." This the ninth straight year in which healthcare-related FCA recoveries topped $2 billion.
U.S. District Judge Amy Totenberg of the U.S. District Court for the Northern District of Georgia recently denied defendant Jun Ying's motion to dismiss the insider trading indictment against him. As some may recall, Ying was the chief information officer of Equifax Inc. when it experienced its massive data breach. Ying was tasked with working on a data breach issue "involving a potential Equifax customer, though [he was] actually assisting in the response to a breach of Equifax's entire system." Ying figured it out and then did some research about the change in stock price Experian had experienced after its 2015 breach. Less than an hour later, Ying exercised all his Equifax options and sold them, earning a profit of over $480,000. Nine days later, Equifax publicly disclosed the breach. Ying was investigated for insider trading and indicted on one count of securities fraud, in violation of 18 U.S.C. § 1348, and one count of insider trading, in violation of 15 U.S.C. §§ 78j(b) and 78ff and 17 C.F.R. §§ 240.10b-5 and 240.10b5-1. Ying moved to dismiss the indictment, a feat as likely to succeed as Don Quixote's pursuits, arguing in part that it was insufficient in light of the Eleventh Circuit's requirement from SEC v. Adler that a defendant "use" the inside information to prove insider trading. While she rejected the defendant's argument, Judge Totenberg noted that, at trial, "the Government will have to establish sufficient evidence to demonstrate defendant's willful 'use' of a deceptive scheme to engage in the stock option trades at issue in violation of § 78j(b) and §77ff [sic]." She also noted, "Defendant will have the opportunity to present evidence and rebut any inference that Defendant used the information of the data breach when he traded, as provided by Adler."
As we reported here, during the grand jury investigation of William Walters for securities fraud, an FBI agent leaked information about the grand jury proceedings in violation of Federal Rule of Criminal Procedure 6(e), which imposes on federal agents an obligation to keep such proceedings secret. After he was indicted, Walters moved to dismiss the indictment on the basis of the leak, which violated Rule 6(e) and the Fifth Amendment's Due Process Clause. The district court denied his motion. At trial, Walters was convicted and appealed. His appeal raised several issues, including that the district court erred by not dismissing the indictment. In United States v. Walters, the U.S. Court of Appeals for the Second Circuit criticized the agent's "highly improper" misconduct. It wrote, "The leaking of confidential grand jury information to members of the press, whether to satisfy public interest in high profile criminal prosecutions or to generate evidentiary leads, is serious misconduct and, indeed, likely criminal." Regardless, however, the court affirmed the conviction. In doing so, it noted that dismissal of an indictment is appropriate "only 'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." And in this case, it concluded that "Walters has not demonstrated that he was prejudiced by [the FBI agent's] actions." It also concluded that he should not receive the windfall that would come with the dismissal of the indictment when there were other, less drastic remedies for the misconduct, such as the independent investigation and possible prosecution of the leaking agent.
In United States v. Hirst, the U.S. Court of Appeals for the Second Circuit summarily rejected defendant Gary Hirst's arguments about the district court's calculation of the loss amount applicable to his offense under the U.S. Sentencing Guidelines. Hirst was convicted at trial for conspiracy, securities fraud and wire fraud. The government introduced evidence that Hirst's co-conspirators created a special purpose company, called Gerova, that traded on the American Stock Exchange. In the scheme, the conspirators created fraudulent documents authorizing the sale of millions of dollars of Gerova stock to Ymer Shahini, a citizen of Canada and Kosovo. The shares generated proceeds of more than $19 million before Gerova was delisted. At Hirst's sentencing, the district court calculated the loss amount as between $25 million and $65 million, which resulted in an increase of 22 levels under the Guidelines. The district court based its finding on the "average price of the security during the period of the fraud and the average price during the period following disclosure, multiplied by the number of shares outstanding." On appeal, Hirst argued the loss should be calculated as only $1.1 million "because the shares issued by Hirst could not be sold in the U.S. for a certain time period and thus were worth substantially less than they would have been if freely transferable in U.S. markets." The Second Circuit disagreed. It reasoned that Guidelines § 1B1.3(a)(1)(B) attributes to co-conspirators "all acts and omissions of others that were . . . (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with the criminal activity." As a result, because Hirst knew the purpose of creating the fraudulent documents was to eventually sell the shares, his conduct satisfied § 1B1.3(a)(1)(B) and he was responsible for the entire loss amount.
An insurance broker in New Jersey was arrested for conspiring to defraud three Blue Cross Blue Shield (BCBS) affiliates in Pennsylvania and Washington, D.C. According to the press release and criminal complaint, the defendant, Jonas Knopf, was the chief executive officer of Madison Financial Services (MFS). The U.S. Attorney's Office for the District of New Jersey alleges that Knopf and others created 11 fictitious companies under the MFS banner solely to collect insurance coverage premiums and fees for Knopf's alleged services for the fake employees at these companies. Knopf would then obtain coverage for Lakewood, NJ, residents who were seeking insurance coverage for which they weren't eligible. These residents paid Knopf inflated insurance premiums for BCBS plans and thus provided him payroll money. He issued bogus payroll checks to them to create the false impression they were working for these sham companies.
According to this article, after seven months of living with the General Data Privacy Regulation (GDPR) in Europe, cybersecurity improvements are evident. According to BitSight, a security rating and risk management firm, there was "a steady decrease in security performance across all regions of the globe," but "organizations within continental Europe actually improved their security performance over the last year." It also noted, "The regulation appears to have inspired European companies to really get their act together in the last months before the GDPR took effect, according to the BitSight data, which also could be the reason for the EU's cybersecurity improvement in the months after." And it appears that the "severe financial penalties companies stand to incur if they don't comply" with the GDPR might have prompted the heavy investment in programs and processes causing a more effective cybersecurity regime. Of course, this could all be a fluke, but "it seems more likely the improvement was due to the enactment of the law and the companies' concern with compliance."


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Home » Government » Limits on the Use of Government Case Agents as Expert Witnesses by Richard M. Langone, Esq.
Until recently, it was common practice in both state and federal courts to allow law enforcement case agents to testify as “expert witnesses” on the criminal organizations they were assigned to investigate. Sometimes these agents spend years tracking and monitoring their assigned organized crime groups. Under the relaxed hearsay rules governing admission of “expert witness” testimony, pursuant to Rule 702 of the Federal Rules of Evidence, these police-expert witnesses were able to convey “opinions” about the organizational structure, jargon, and even codes of conduct of the criminal enterprise even if based on information obtained during custodial interrogations of informants.[i] However, since Crawford v. Washington, 541 U.S. 36 (2004), the United States Court of Appeals for the Second Circuit has held that the Confrontation Clause limits the permissible use of this type of testimony.
To begin, Crawford holds that anytime the government seeks to introduce evidence of a statement made by a witness to members of law enforcement during a criminal investigation, and the defendant has not previously had an opportunity to cross-examine the witness, the Confrontation Clause requires the production of the witness in order for the statement to be admissible against the defendant at trial. Crawford overruled Ohio v. Roberts, 448 U.S. 56, and its “indicia of reliability” test, and instead adopted a strict functional analysis of the core evils the Confrontation Clause was designed to guard against, namely, Star Chamber proceedings and trials without the right to confront the accuser.
Based on Crawford, the Second Circuit, in United States v. Mejia, 545 F.3d 179, 191 (2nd Cir. 2008), modified its prior jurisprudence by significantly limiting the practical use of government case agents as expert witnesses on organized crime groups.[ii] Specifically, Mejia held unconstitutional the admission of a police officer’s expert testimony concerning the code of conduct among members of the street gang MS-13 where that knowledge was based in part on custodial interrogations of MS-13 members. Mejia, 545 F.3d at 187. Agent Alicea, a case agent called by the government as an expert witness on MS-13, testified as a “de facto case agent in providing . . . summary information to the jury” of the ongoing investigation into MS-13’s activities on Long Island. 545 F.3d at 196. Because much of his summary was based on interrogations of MS-13 gang members and other informants, the agent’s “expert opinion” was held to have violated both the confrontation clause and the rule against hearsay, notwithstanding the fact that “experts” on organized crime groups typically rely on in-custody (“testimonial”) debriefings of informants in arriving at their expert findings. Id. 197-98.
Finally, the court went on to hold that Agent Alicia’s expert testimony came “dangerously close” to opining on an ultimate issue in the case, namely, whether the defendant committed murder for the specific purposes of obtaining respect and status in the gang. Mejia, 545 F.3d at 187, 191 (“The Government cannot satisfy its burden of proof by taking the easy route of calling an ‘expert’ whose expertise happens to be the defendant”).
The question that remains is whether the Confrontation Clause permits a case agent who testifies as expert witness to base his or her expert opinion on statements made by an informant without revealing the identity of the informant. In United States v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008), the Court of Appeals for the District of Columbia upheld a conviction where the district court had allowed a police expert to testify “about the typical operations of narcotics dealers.” Law held that only testimonial statements attributed (or perhaps attributable to) a nontestifying witness fall within the prohibition of the Confrontation Clause. Hence, merely making statements of alleged fact without the prohibited attribution does not violate Crawford.
However, it is questionable whether sanitizing a police-expert witness’s testimony in that manner can ever obviate the confrontation clause problem since it effectively immunizes the expert witness from meaningful cross examination. Any attempt by the defense to probe the bases of the so-called expert opinion would itself open the door to the expert blurting out on cross examination, or divulging on redirect examination, that his or her opinion is based on testimonial statements of co-conspirators and/or other uncalled witnesses. Such a dilemma would eviscerate the defendant ‘s constitutional right to meaningfully cross-examine the expert witness. See, e.g., Davis v. Alaska, 415 U.S. 308, 317 (1974) (holding that the Confrontation Clause “means more than being allowed to confront the witness physically”; rather, it includes the right of the defense to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness”); cf. In re Zyprexa Products Liability Litigation, 489 F. Supp.2d 230, 283 (E.D.N.Y. 2007 – Weinstein, J.) (“The most challenging and controversial gatekeeping role [of the judge under Daubert] . . . is that of ascertaining the reliability of proffered testimony, or ‘whether the reasoning or methodology underlying the testimony is scientifically valid’” [quoting Daubert v. Merrell Dow Pharm., Inc, 509 U.S. 579, 592 (1993]).
Moreover, to hoist a criminal defendant upon the horns of a government-created dilemma of having to choose between either giving up the right to meaningful cross-examination of the expert witness, or else risk having the witness reveal the testimonial nature of the information that constitute the bases of the expert’s “opinion,” would fly in the fact of the well-regarded maxim that what the government “may not do directly it may not do indirectly.” Vinluan v. Doyle, 60 A.D.3d 237, 246 (2nd Dep’t 2009) (quoting Bailey v. Alabama, 219 U.S. 219, 244 (1911]).
The Second Circuit may already have disapproved of the reasoning in Law by its statement in Mejia that merely because Agent Alicia did not specifically mention interrogations during his testimony did not obviate the error. Id. 197-99 (“We are at a loss in understanding how Alicea might have ‘applied his expertise’ to these statements [of acts of violence by MS-13 members] before conveying them to the jury, such that he could have avoided ‘conveying the substance of those statements to the jury’”). See also, United States v. Lombardozzi, 499 F.3d 61, 73-74 (2nd Cir. 2007), where the court held that the district court did not commit plain error in admitting the expert testimony because the expert’s testimony “was fully supported by evidence that in no way can be considered testimonial” (emphasis supplied). Accord United States v. Goosby, 523 F.3d 632, 638 (6th Cir. 2008) (“There is no confrontation clause violation because Gibeault did not make statements that would be characterized as testimonial hearsay”).
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analyst’s statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment (emphasis added).
See also, Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
The same rationale should apply to expert opinion testimony by a police-expert where the bases of the opinions are testimonial communications made for the purpose of criminal prosecution.
In conclusion, Crawford has significantly limited the practical use of police-expert witnesses where custodial interrogation and other forms of testimonial communications form the bases of the “expert opinion.” Criminal defense practitioners should remain vigilant of other possible applications of the rule announced in Crawford that may arise in future cases.
Richard M. Langone is a principal of Langone & Associates, PLLC, and appears as counsel in civil and criminal appeals in state and federal court.
[ii] The Second Circuit also reversed the conviction of Mejia’s co-conspirator in the related case United States v. Rubi-Gonzalez, 311 Fed. Appx. 483, 487 (2nd Cir. 2009), on the same grounds.

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There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.
There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.
Expect to see this decision widely cited in the future.
I was going to write something about this same subject. The law is going both ways in Pennsylvania, though I think the courts are leaning towards what Judge Wall decided. Recently, a Philadelphia court decided something similar to what SDNY did.
However, we some a family law cases (custody?) floating around where the parties had to turn over their Facebook credentials.
My guess is that the courts will scrutinize disclosure of Facebook in PI cases, but be more liberal in custody cases. Seems like whether or not a Facebook account is dicoverable, and to what extent, could be very fact and matter specific.
Recently, a Philadelphia court decided something similar to what SDNY did.
That PA case was Largent v. Reed? If so, it is cited in the decision. There seem to be precious few of these types of cases out there yet.
Largent v. Reed, cited in the opinion, was out of Franklin County.
We also have a case from Philadelphia – Martin v. Allstate Fire and Casualty Insurance Co., where Allstate’s motion to compel access to a Facebook page was denied. Unfortunately, the motion was denied without an opinion, though that isn’t out of the ordinary in Philadelphia discovery court. Discovery motions are usually decided on the spot at oral argument.
Other Pennsylvania cases supporting a plaintiff’s right to privacy over a defendant’s right to take discovery are Arcq v. Fields and Piccolo v. Paterson (from Bucks County).
There is also Kalinowski v. Kirschenheiter, where a trial court denied a motion to compel access to plaintiff’s social media sites, but also entered a preservation order.
However, Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc. stand for the proposition that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” The defense bar’s argument is that Facebook pages are relevant to a plaintiff’s quality of life and the statements were made in a public forum.
However, it’s fair to say that the issue is currently unsettled. Some direction from an appellate court would be helpful on this issue, because it’s hard to give clients good advice when the answer isn’t clear.
I’ll probably put something together in the next week or so discussing this issue as it pertains to Pennsylvania.
All aspects of society will have to deal with the reality of social media. The balance that the two have to reach for society to continue functioning will always be a tough battle. That being said when a social media page is marked private, it should be under very dire circumstances that the courts should be able to access those records. It’s almost like having a piece of enclosed mail, the lawyers would have to show why its important before its opened. The same should be with social media especially if the owner goes through the hurdles of making it private.
Thank you for that deep analysis. I know my readers will appreciate the effort you expended.
The law is only beginning to appreciate the new landscape. I recently had a fellow lawyer client delete messages upon notice of an action. The deleted messages were brought to the attention of the state ethics board [Grievance Committee]. There are many things that are only now being fleshed out in the legal body politic.

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Derived from the Old French aisement, 'convenience or accommodation'. A right or privilege that the owner of one area of land enjoys over the land of another in order to enjoy a benefit for the former's land. "A privilege without profit which the owner of one neighbouring tenement hath of another existing in respect of their several tenements", Termes de la Ley; (25 Am.Jur.2d., Easements and Licenses (Rochester, NY), § 1). The owner of the one parcel of land (the dominant tenement or 'dominant land') derives a particular benefit from the use of the other land (the servient tenement or 'servient land') and that benefit accommodates the dominant tenement. Easements include such rights as a right of way, right of light, right to air, or a right of support. The right to use the other person's land does not grant a right to retain possession, or a right to take any profit from the land. The owner of the servient tenement retains full dominion over his land, subject only to the limitation imposed by the easement. Normally an easement is enjoyed for a specific purpose, is a permanent interest over the land of the other, but is not inconsistent with the general use of the land over which the right is exercised. It is not a right that is personal to the owner of the land, but is said to be appurtenant or incidental to the land affected.
The dominant and servient lands need not be contiguous, although they frequently are, but they must be sufficiently proximate in order to enable the dominant land to derive benefit from the easement. The right should not amount to the exclusive use or possession of the servient tenement (or a joint use with the owner of the servient tenement); the right to exclude others from the servient tenement extends only so far as to prevent their interference with the prescribed or permitted use of that land (Copeland v Greenhalf  1 All ER 809; Batchelor v Marlow, supra; The American Law Institute, Restatement of Property (Servitudes) (St. Paul, MN: 1944), § 450; Howard v. County of Amador, 220 Cal App.2d 962, 269 Cal Rptr 807 (1990)). A 'substantial interference' with the use of the servient land by the beneficiary of the right, or a use in such a way as to leave the owner with little semblance of ownership or possession, would preclude the right from being an easement (London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd, supra; Mercantile General Life Reassurance Co of Australia Ltd v Permanent Trustee Australia Ltd (1988) 4 BPR 9534 (Aus)). Thus, a right to park a car is not normally capable of being an easement as it likely to exclude the rights of the owner for most of the time (or at least whenever the user wishes to park the car) (Batchelor v Marlow, supra). However, if the parking area is well defined, but does not preclude use by the servient owner, as with a right of passage to the rear of a retail store or use for limited times of the day, that may well constitute an easement and as such be capable of being acquired by prescription (Safestore v RSN Property Ltd  PLSCS 292; Leon Asper Amusements Ltd v Northmain Carwash Enterprises Ltd (1966) 56 DLR (2d) 173, 176–9 (Can)). A right of passage does not normally imply a right to park, unless such a right has been expressly granted or it might be implied, as where parking on a short-term basis does not interfere with the reasonable enjoyment of the easement, especially if the right includes a right to "use" the passageway (Missionary Society of Salesian Congregation v. Evrotas, 229 AD.2d 392, 242 NYS.2d 122 (1930); Bulstrode v Lambert  1 WLR 1064, 1069, 1071; Robmet Investments Pty Limited v Don Chen Pty Limited (1997) 8 BPR 97649 (Aus)—accepting that a right to pass and repass included a right to stop to unload; Cf. London & Suburban Land and Building Co. (Holdings) Ltd v Carey (1991) 62 P & CR 480—no implied right to load and unload from a right of way, especially as there was adequate space to park elsewhere.
At common law, the right must be clear and prescribed; an undefined or vague right (such as a right to view, or a right of privacy) cannot constitute the subject of an easement: "there is no such right known to law as a right to a prospect or view; see Bland v Moseley (1587), cited in Aldred's Case (1610) 9 Co Rep at p. 57b", Phipps v Pears  1 QB 76, 83,  2 All ER 35, 37 (CA) (Harris v De Pinna (1886) 33 Ch D 238, 249–50) (although in the US, in some jurisdictions, a right to a view may be recognized as a valid easement where it has been enjoyed as a long, continuous, obvious or manifest use (Rohde v. Beztak of Arizona, Inc., 164 Ariz 383, 793 P.2d 140 (App Ct Ariz 1990)). As a rule, an easement does not impose a positive duty on the owner of the servient tenement, such as to construct or maintain a right of way, but the easement may be granted with express obligations such as an obligation to maintain a right of way, a gate or a fence and in some cases there may be an implied obligation to repair the servient land, especially to prevent possible injury to third parties (Jones v Price  2 QB 618, 631 (CA); Holden v White  2 QB 679, 683 (CA); Carter v Cole  EWCA Civ 398 (CA); The American Law Institute, Restatement Third, Property (Servitudes) (St. Paul, MN: 2000), § 4.13). An easement may be classified as 'continuous' or 'discontinuous'. A continuous easement does not require the interference of man for its existence, as with a right of light; whereas a discontinuous easement requires the intervention of man, as by the exercise of a right of way. The former requires the adaptation of the dominant tenement (as by the creation of a window), whereas the latter does not require any permanent adaptation of the dominant tenement.
An easement is an incorporeal hereditament, i.e. it creates no estate in land because the dominant tenement does not derive any right of ownership over the servient tenement. It does not confer any right to possession, as with a lease, but is merely a right to impose proprietary restrictions. An easement does not grant a right that is intended to exclude use of land by the owner of the servient tenement, unless that use is incompatible with the easement (Batchelor v Marlow  1 WLR 764,  4 All ER 78 (CA); London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd  1 WLR 1278). However, it is an interest in land and an easement may continue even if there is a change in the ownership of the land; it is said to 'run with the land'; although it is extinguished if both tenements come into the same hands.
In the US, many jurisdictions do not consider that the existence of the dominant tenement is an essential element to an easement, and a similar irrevocable right, which does not benefit another parcel of land, is considered to be a valid easement and is called an easement in gross (Jolliff v. Hardin Cable Television Co., 22 Ohio App.2d 49, 258 NE.2d 244, 247 (1970); 3 Tiffany on Real Property (3rd ed. Chicago: 1939), § 758, p. 204). Thus, an easement may be defined as "a right or advantage which one has in the land of another. … a liberty, privilege, or advantage in land without profit, existing distinct from the ownership of the soil. It is a right which one person has to use the land of another for a specific purpose", James v. Drye, 314 SW.2d 417, 420 (Tex Civ App 1958). Similarly, in New Zealand, the requirement of a dominant tenement is not essential (Property Law Act 1952, s. 122; Faloon and Piesse v District Land Registrar  3 NZLR 498). In Australia, several jurisdictions have laws that recognise easements in gross in favour of a public or local authority and in many cases the courts have accepted an easement need not expressly identify the dominant tenement, provided surrounding circumstances indicate that there is a dominant tenement (e.g. Gas & Fuel Corporation v Barba  VR 755 (Aus Vic)).
An easement, once acquired, cannot be substantially or radically changed in nature or purpose without a further grant. Thus, for example, the dominant owner of a private right of passage does not automatically have the right to lay pipes under that right of way (Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch D 374; Anno: 3 ALR3d 1278: Easement—Private Way—Reasonable Use, § 8 Installing Utilities). Nor can the easement granted for the use of one parcel of land be used to serve property other than the dominant land, unless the terms of the original grant provide otherwise or there is a further grant (Crimmins v. Gould, 149 Cal App.2d 383, 308 P.2d 786 (1957); Mancini v. Bard, 396 NYS.2d 621, 364 NE.2d 1313 (1977); Cf. Bateman v. Board of Appeals of Georgetown, 46 Mass App Ct 236, 775 NE.2d 1276 (2002); Harris v Flower (1904) 74 LJ Ch 127; Bracewell v Appleby  Ch 408; Peacock v Custins  13 EG 152,  2 All ER 827 (CA)). In the event that the easement throws a substantially increased burden on the servient tenement, it may even lead to the extinguishment of the right (Ray v Fairway Motors (Barnstable) Ltd (1968) P & CR 261; Cf. Attwood v Bovis Homes Ltd  Ch 379,  4 All ER 948—a useful review of the English cases and holding that a change in the extent of a right of drainage did not extinguish the right). However, the right may be intensified or improved to a reasonable degree if that is required to better facilitate the permitted user of the dominant tenement (British Railways Board v Glass  Ch 538, 568  3 All ER 418 (CA)—increase in the membership of a golf club; White v Grand Hotel Eastbourne Ltd  1 Ch 113 (CA)—house converted to a hotel; McAdam Homes Ltd v Robinson  EGLR 93,  1 P & CR 30 (CA)—bakery converted to two houses; Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 73 P.3d 369 (2003)—increased use of access to clear irrigation ditches; Anno: 20 ALR3d 1026: Easements of Way—Improvements—Repairs; Anno: 111 ALR5th 313: Misuse of Easement). Thus, changes in the use of an easement may be permitted if they are merely adaptations to the circumstances, but not changes to the nature of the arrangement; they may be "evolutionary but not revolutionary". Similarly, a change in the use of the benefited land (for example, from a house to a hotel) may be permissible if that does not unreasonably increase the burden on servient land (Ray v Fairway Motors (Barnstable) Ltd, supra; Gaither v. Gaither (1958) 165 Cal App.2d 782, 332 P.2d 436, 438). What is important is the actual words of the grant of the easement and the factual background (South Eastern Railway v Cooper  1 Ch 211—easement granted "for all purposes" was usable to access a sand mine that had been established on land that was formerly part of a farm; Davill v Pull  EWCA Civ 1309,  NPC 142 (CA)—easement granted to be used "for all reasonable and usual purposes" does not preclude building a house even though dominant land described as "garden ground"; Florida Power Corp. v. Hicks, 156 So.2d 177 (Fla 1964)—easements once granted and fixed are not subject to the whims of the dominant or servient owner and can only be changed by the mutual consent of the parties).
As to whether a right of way can be realigned, in English law it has been held that a right cannot be altered, unless there is an express or implied right to permit the realignment (Deacon v South-Eastern Railway Co. (1889) 61 LT 377; Heslop v Bishton  EWHC 607 (Ch)). However, the court has refused to grant an injunction that would have prevented such an alignment when the servient owner had been given notice and had not objected to the proposal, especially as the realignment was considered to be of substantial public importance (Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust  1 WLR 1749, 1754). Also, the existence of an alternative right of way does not necessarily extinguish an established right and, even though an injunction may be refused, compensation may be paid for any loss or inconvenience (Heslop v Bishton, supra). In the US, in the majority of jurisdictions, the rule is that if the right of way is clearly defined, or its route has been definitely determined, unless there is a provision in the agreement that created the right of way, the location cannot be changed without the express or implied agreement of both parties (Sakansky v. Wein, 86 NH 337, 169 A 1 (1933); Consolidated Amusement Co. v. Waikiki Bus. Plaza, Inc., 719 P.2d 1119, 1123 (Haw App 1986); Youngstown Steel Products Co. v. City of Los Angeles, 38 Cal.2d 407, 240 P.2d 977 (1952); Herren v. Pettengill, 273 Ga 122, 123, 538 SE.2d 735, 736 (2000); Carrollsburg v. Anderson, 791 A.2d 54, 61 (DC 2002); Alligood v LaSaracina, 122 Conn App 479, A.2d _ (2010)). A minority of states accept the view of The American Law Institute, Restatement Third, Property (Servitudes) (St. Paul, MN: 2000), § 4.8(3), which proposes that the burdened landowner should be permitted to relocate the easement at his own expense as long as the new location does not "significantly lessen the utility of the easement"; "increase the burdens on the owner of the easement," or "frustrate the purpose for which the easement was created". This rule "is designed to permit development of the servient estate to the extent it can be accomplished without unduly interfering with the legitimate interests of the easement holder", supra § 4.8, comment (f) (J.W. Bruce & J.W. Ely. The Law of Easements and Licenses in Land (St. Paul, MN: Loose-leaf) § 7.05; M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87, 91, 809 N.E.2d 1053 (2004)—court may still need to consider what would be a "reasonable change in the location"; Lewis v. Young, 92 NY.2d 443, 451–52, 682 NYS.2d 657, 705 NE.2d 649, 652 (1998)—"in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired … so long as the landowner bears the cost of the relocation [endorsing the Restatement Third, Property (Servitudes), § 4.8(3)]"). Also, in some jurisdictions, even though the grant does not specify an alternative location, it may be possible to relocate the easement along another line, as long as the new location is reasonable (Lewis v. Young, 705 NE.2d 649 (NY 1998); MaCammon v Meredith, 830 SW.2d 577, 581 (Tenn App 1991); 7 Thompson on Real Property (2nd ed. Charlottesville, VA: 1994) § 60.0 (c)(1)(ii)).
In the US, 'easement' is more generally used to refer to a right of way (or an analogous rights such as a drainage or utility easement), or a right to light or air. In English law, a broad number of other rights have been classified as 'easements' (A-G of Southern Nigeria v John Holt & Co (Liverpool) Ltd  AC 599, 617 (PC)—a right to store casks and trade products on neighbour's land; Dowty Boulton Paul Ltd v Wolverhampton Corpn (No 2)  Ch 13—right to use an airfield; William Hill (Southern) Ltd v Cabras Ltd  1 EGLR 37—right to fix a signboard to the wall of an another's house; Gale on Easements (18th ed. London: 2008), §§ 1-64—1-68).
An easement may be distinguished from a profit à prendre as the latter allows someone to take something physically from the land or benefit from the profits of the soil, whereas an easement does not (Alfred F Beckett v Lyons  Ch 449, 482B; McDonald v. Board of Mississippi Levee Comm'rs, 646 F Supp 449, 463 (ND Miss 1986); 25 Am.Jur.2d., Easements and Licenses (Rochester, NY), § 4). Also, a profit à prendre may exist 'in gross', i.e. it need not benefit another parcel of land, whereas at common law (but not in most jurisdictions in the US) an easement cannot exist without a dominant and servient tenement (Boatman v. Lasley, 23 Ohio St 614 (1873); London & Blenheim Estates Ltd v Ladbroke Retail Parkes Ltd  1 WLR 1278). An easement may be distinguished from a licence as the latter does not create any interest in land, but is merely a privilege that is personal to the parties and may not be assigned and is of limited duration (IDC Group Ltd v Clark  1 EGLR 187 (CA); Lodestar Tower North Palm Beach, Inc. v. Pal Beach Television Broadcasting, Inc., 665 So.2d 368, 370 (Fla App 1996); Race v. Meyer, 219 AD.2d 67, 640 NYS.2d 664, 667 (1996) Zotos v. Marketspan Corp., 729 NYS.2d 705, 709, 186 Misc.2d 795 (2001), app. den.). An easement, like a profit à prendre is a 'right', whereas a licence is a mere 'privilege'. Unless tied to some other right, a licence may be terminable at will, whereas an easement exists for a determinable period or in 'perpetuity'. On the other hand, a licensee may be granted a right to occupy land, or may be granted a right that is combined with an easement. A license, unlike an easement, may be created orally (although an easement may be created orally if supported by an act of part performance) and a license may be revoked unilaterally and, generally, at the will of the grantor. A license is temporary; need not be capable of forming the subject of a deed of grant; requires no dominant tenement; does not grant exclusive use of land; nor runs with the land; and is always an equitable right.
An easement may be distinguished from a customary right as the latter may be used by a specific class of persons and benefits no defined area of land.
An easement may be granted as an indefinite right, or it may be limited for a period of time, or even for a life. It can be created by statute (as by appropriation by a public authority); by an express grant, i.e. a written agreement (the most common way); by express reservation or, in a few cases, by implied reservation; by implied grant based on the intention of the parties, especially when it arises out of the existence of a quasi-easement; by 'presumed grant' or prescription; or even by estoppel when it would be unconscionable to deny that such a right exists. However, like any other proprietary right it cannot normally be created or transferred orally (Cottrell v. Nurnberger, 131 W Va 391, 47 SE.2d 454 (1948)). An easement may arise as 'of necessity' (an easement of necessity), as when a parcel of land is 'landlocked'. However, whether created expressly or by implication, an easement is always granted; it cannot arise purely as an amenity or privilege, enjoyed by virtue of an informal understanding or custom.
An easement can be 'positive' or 'affirmative', or it can be 'negative'. A positive easement is a right to do something positive on the servient land, but not a right to demand anything from the owner of that land; it is enjoyed for a specific purpose. Examples of positive easements are: a right of way; a right of support; a right to share a party wall; a right to water, i.e. a right to enter land to extract it; a right of access for the purpose of facilitating repair to a building, a right to run utilities across land, or even a right to use a letter box on another's land. A negative easement is a privilege by which the servient owner may be obligated to refrain from certain uses, or actions, on the servient tenement, for the benefit of the dominant owner, for example not to build above a given height and thereby obstruct the access of light to a house on the dominant tenement, and not to restrict the passage of air to a building on the dominant tenement (Shelf Holdings Ltd v Huskey Oil Operations (1987) 38 DLR (4th) 441, 448–55 (SCC Can); Sanborn v. McLean, 233 Mich 227, 206 NW 496, 60 ALR 1212 (1925); The American Law Institute, Restatement of Property (St. Paul, MN: 1944), § 452).
As a rule, English law does not recognise a negative easement, because such a privilege is merely a right to insist that a person use his land in a certain, but limited, way (Moore v Rawson (1824) 3 B & C 332, 107 Eng Rep 756); a true right or privilege to prevent the use of land, for the benefit of other land, being a restrictive covenant. To give some support to that proposition, English law limits the recognition of negative easements to: (i) a right of light; (ii) a right to a free flow of air through a defined aperture; (iii) a right not to have support undermined; and (iv) a right to prevent the diversion of water running in an artificial channel. Any other right that restricts the use of one parcel of land for the benefit of another is recognized only in the form of a restrictive covenant (Phipps v Pears, supra at 82G–83A, at 37).
An action may be brought for an interference with the use of an easement, even if no damage has resulted as such. The primary remedy for the breach of an easement is an injunction, which may be granted if there is a substantial interference with the enjoyment of the right. Damages may be awarded in addition to, or in place of, an injunction for the financial loss incurred. An injunction will not be granted if that would be oppressive to the defendant or when the injury is small and capable of being quantified in monetary terms (Shelfer v City of London Electric Lighting Company  1 Ch 287; Watson v Croft Promo-Sport Ltd  EWCA Civ 15,  18 EG 86 (CA); 28A C.J.S., Easements, § 186).
An easement does not lapse, but it may be extinguished by (i) express release, usually by deed (but not by unilateral revocation); (ii) implied release when the nature or intensity of the use has so changed that it no longer corresponds to the terms or basis of the original grant; (iii) implied and clear intention on the part of the dominant owner not to resume the right, i.e. abandonment; (iv) merger of the dominant and servient tenements into common ownership and possession (called 'unity of seisin') (an easement may be temporarily suspended if there is merely unity of possession between the holders of the dominant and servient tenements); (v) expiration of a period of time, or purpose, stipulated in the original grant; by an alteration in the dominant tenement in such a way that the easement is unnecessary, as when the dominant tenement is a building that is destroyed; (vi) losing it to another by prescription (although English law prefers to look on this as an abandonment of the right and the Limitation Act 1980 expressly excludes an "incorporeal hereditament", which includes an easement, from the definition of land in this respect); or (vii) by statute, as when a statutory authority uses its powers to extinguish a right of way (effectively by expropriation).
In English law, an authority that acquires land by compulsory purchase may extinguish "all private rights of way and rights of laying down, erecting, continuing or maintaining any apparatus on, under or over the land", Town and Country Planning Act 1990, s. 236. Also, a local authority, or any other perty "deriving title under them", may build or carryout work on land acquired for "planning purposes", even though it involves "interference with an interest or right … or a breach of a restriction as to user of land arising by virtue of a contract". The "interference" may apply to "any easement, liberty, privilege, right or advantage annexed to land and adversely affecting other land, including any natural right to support", TCPA 1990, s. 237(1). These rights do not apply to the rights of statutory undertakings or telecommunication works. (Similar provisions are contained in other statutes.) Such an extinguishment only applies to work carried out in accordance with the planning permission (or an extension thereof) for which the land was acquired or appropriated and is subject to the payment of compensation as for any loss resulting from the interference on the same terms as for any other compulsory purchase (R v Mayor and Commonality and the Citizens of London v Royal London Mutual Insurance Company, ex p Barbers of London  2 EGLR 128). (An easement that is extinguished in this way is sometimes called an 'overidding easement', although that term is confusing as the easement is 'overidden'.
In Australia, most jurisdictions have statutory provisions that enable an easement to be removed from the public records if it is considered to have been abandoned. In some States, the power extends to extinguishing or modifying an easement.
Cf. servitude. See also apparent easement, conservation easement(US), conveyance, easement appurtenant(AmE), easement by estoppel, equitable easement, general words, implied easement, jus spatiandi, legal easement(Eng), natural rights, overburdening(US), riparian rights, scenic easement(US), secondary easement(US), servitude(F), water rights, wayleave(Eng), writing.

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Brian T. Smith, a member of Dykema's Litigation Practice Group, focuses on general civil litigation, with an emphasis on product liability defense. He has handled numerous product liability cases involving catastrophic injury and death, consumer product class action claims, and a variety of commercial and contract disputes. He has defended numerous automotive and other product manufacturers in litigation across the country, including in Michigan, Illinois, Ohio, Tennessee, Indiana, California, Alabama, Florida, Texas, Nevada, Missouri, Pennsylvania, New Jersey, New York, Arizona, and the U.S. Virgin Islands. Several of these manufacturers have asked Mr. Smith to present at in-house seminars on a variety of topics including rollover accidents, forklift litigation, and Michigan procedural requirements. Mr. Smith is also counsel for automobile negligence cases. He has handled several automobile negligence cases, including company car and fleet related claims, on behalf of a number of companies. Mr. Smith has also first chaired automobile negligence trials.
In addition to his automotive work, Mr. Smith has handled a number of premises liability and workplace safety cases in Michigan, Illinois and Indiana.
Mr. Smith also represents a number of clients in asbestos related matters and has presented on asbestos litigation and expert issues in asbestos cases. He currently serves as Michigan and Illinois counsel for a number of manufacturers of valves, pumps and automotive related parts.
Mr. Smith has assisted in the trial numerous cases to verdict throughout the U.S. He serves as national and regional trial counsel for automotive manufacturers and suppliers on a variety of commercial and intellectual property disputes.
Mr. Smith also serves as regional counsel for asbestos cases in Michigan and Illinois.
Regional counsel for premise and workplace safety claims.
In-state counsel for automobile negligence claims for a variety of companies.
In-state counsel for lemon law related claims.
Desiree Henry v. Mark Redmond and General Motors, Case No. 15-104390-NI, Genesee County, MI. Defense verdict following a one-week trial. Plaintiff claimed to have suffered serious impairments, including a closed head injury, as a result of an automobile accident involving a company car. Plaintiff alleged that the company driver ran a red light.
Sally Small, as guardian of Keanna Small v. Ford Motors Company and Key Safety Systems, Inc., 9:12-cv-80841-KAM, USDC, MD, FL. Defense verdict following a three week trial and after less than two hours of deliberation. Plaintiff sued Defendants, alleging that Keanna Small was ejected from the front passenger seat of a 2002 Explorer during a rollover accident because of a defect in a seat belt. Ms. Small was ejected from the Explorer and sustained a traumatic brain injury. Plaintiffs asked the jury to return a verdict in excess of $100 million, as compensation for $2.2 million in past medical expenses, $26 million for future medical and life care, and pain and suffering.
Harman v Key Safety Systems, Inc., Mobile, Alabama, Case No. CV-08-901193. Defense verdict following a three week trial on plaintiffs’ claim that a defective seat belt system caused her to be ejected from her 2003 minivan during a rollover accident. Plaintiff Patricia Harman, who was 6 weeks pregnant, sustained injuries that rendered her quadriplegic and caused her son to be born with cerebral palsy. Plaintiffs sought damages that included over $22 million in economic loss and future medical expenses.
Evangelista v. Key Safety Systems, Inc., Superior Court of New Jersey, Case No. L-2845-09. Defense verdict following a two week trial on claims that a defective airbag sensor prevented a vehicle airbag from deploying and allowed plaintiff to sustain a severe neck injury that rendered her quadriplegic.
Andrade v. General Motors, 336 Ill. App. 827, (2003). Upholding a defense verdict in a quadriplegic seatback case..
Leibel v. General Motors, 250 Mich. App. 229, (2002). Holding that an internal memorandum was subject to the attorney-client and work product privileges.
Robert David v. Machinery Distribution Inc., 2003 WL 21920396 (2003). Affirming trial court's dismissal of plaintiff's defective design claim in a forklift case.


§ 1043.41 EIAPP certification process.
§ 1043.50 Approval of methods to meet Tier 1 retrofit NOX standards.
§ 1043.55 Applying equivalent controls instead of complying with fuel requirements.
§ 1043.60 Operating requirements for engines and vessels subject to this part.
§ 1043.70 General recordkeeping and reporting requirements.
§ 1043.80 Recordkeeping and reporting requirements for fuel suppliers.
§ 1043.95 Great Lakes provisions.
§ 1043.100 Incorporation by reference.
75 FR 23013, Apr. 30, 2010, unless otherwise noted.


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Appeal from Qualified Domestic Relations Order (QDRO), Supreme Court, New York County (Judith Gische, J.), entered February 22, 2002, issued in connection with a judgment of divorce entered April 11, 1985 and entered pursuant to the parties' so-ordered stipulation dated January 31, 2002, unanimously dismissed, without costs. Order, same court and Justice, entered April 3, 2002, which denied plaintiff's motion to vacate the QDRO and stipulation, unanimously affirmed, without costs.
Leonard G. Florescue, for Plaintiff-Appellant.
Patricia Ann Fersch, for Defendant-Respondent.
Before: SAXE, J.P., SULLIVAN, ELLERIN, LERNER, GONZALEZ, JJ.
The appeal from the QDRO must be dismissed since a QDRO is not appealable as of right, and we decline to grant leave to appeal where plaintiff signed a stipulation withdrawing his opposition to the QDRO's entry without indicating that he would be seeking such leave (see Gormley v. Gormley, 238 A.D.2d 545; Lewis v. Lewis, 269 A.D.2d 429). Nor is there basis for vacating or modifying the QDRO where the record shows that plaintiff was at all relevant times represented by counsel, present in court for the argument of his opposition to plaintiff's proposed QDRO, and, in open court, read and signed the stipulation agreeing to the entry of that QDRO. Plaintiff's mistaken belief that the stipulation was preserving his right to appeal the QDRO does not overcome "`the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties'" (Friedman v. Friedman, 247 A.D.2d 430, 431;cf. Knickerbocker Props. v. Razy, 202 A.D.2d 374). Plaintiff should have known what he was signing (see Lewis, 269 A.D.2d 429 at 430; Twiss v. Twiss, 245 A.D.2d 502), and if he did not, he, not defendant, should suffer the consequences (see Rivera v. State of New York, 115 A.D.2d 431, 432-433, citing Hallock v. State of New York, 64 N.Y.2d 224, 330).

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Today, the Supreme Court concluded its session by handing down decisions in the vitally important Harris v. Quinn and Burwell v. Hobby Lobby cases—Quinn dealing with the ability of unions to raise money and Hobby Lobby dealing with the ability of corporations to claim 1st Amendment rights in order to refuse to cover birth control.
Unfortunately, as was feared by many, these two cases have become the most recent examples of situations where the five “conservative” (read: corporatist) justices on the court have ignored sanity, legal precedent, and the welfare of Americans to rule in favor of entrenched money.
In the Harris v. Quinn case, the Supreme Court ruled that partial public employees who gain the benefits negotiated by unions cannot be compelled to pay dues to those unions. In effect, this allows people to freeload off of the unions by demanding their services (ex. legal help) and negotiation power, while refusing to pay anything back.
According to a 1977 case called Abood et. all v. Detroit Board of Education, public unions must represent all workers who work in their so-called union shop. This decision benefitted workers in that it caused unions to improve wages and compensation for even non-union workers, but it also helped unions by allowing them to compel donations from said workers—they may not be part of the union, but they are getting benefitted by its activities and should be expected to pay their dues.
The Harris v. Quinn case amends this arrangement by forcing public sector unions to represent everybody, including partial public employees, but allowing portions of the membership to freeload. Over time, this will erode the unions’ funding and ability to negotiate, thus giving employers more of an ability to exploit all workers.
The right wing section of the Supreme Court has proven itself time and time again to be a political arm of the conservative movement—they have destroyed campaign finance reform in cases like Citizens United, aided in voter disenfranchisement by striking down portions of the Voting Rights Act, and even installed an unelected presidential candidate during the 2000 race—and this case is simply an extension of this pattern. Unions disproportionately donate to and activate for Democratic candidates (because Democrats haven’t made it a part of the platform to destroy the unions and crush workers under the whims of the “job creators”), so they have become a favorite target of the right wing. By crushing unions, the right wing can simultaneously reduce the cost of labor for their corporate donors, while eroding the power of their major political enemy.
While it is unlikely that the Harris v. Quinn decision will have any dramatic effects in the immediate future, this case will further the erosion of unions and will cause real damage over time. The unions gave us the 40 hour work week, the weekend, the minimum wage, sick leave, worker’s compensation, and most of the safety regulations that separated our factories from those in Bangladesh—as unions weaken, these things will start to regress or disappear.
In 2010, the Supreme Court ruled that corporations have the right to free speech, thus are allowed to “speak” to politicians with their money. Given this contorted view of personhood and speech, it was pretty much inevitable that a case would come up that would grant corporations some degree of religious protections—after all, if you truly believe that a corporation is a person in regard to one part of the 1st Amendment, it follows that you would believe that it is a person in regard to the rest of it.
Today’s Hobby Lobby ruling by the right wing majority found that businesses owned by religious individuals couldn’t be forced under the Affordable Care Act to provide birth control, at no cost, through their employee health coverage. This ruling opens the door to letting religious zealots deny their employees easy access to birth control, but it limited in its scope in a way that prevents other zealots from banning procedures like vaccination or blood transfusions (two medical procedures that also have come under religious fire).
While limited in its scope to contraception, this decision is absurd, unprincipled, and harmful to women. Corporations are legal fictions created so that individuals can avoid liability and effectively structure the pooling of resources; they are not alive, nor is it possible for them to have any sort of religious view. Religious individuals certainly form companies, but that action has, in everybody’s minds but these five justices (lower courts rejected this legal argument), been separated from their personal views.
In the past, an employer who has a problem with birth control doesn’t have to use it, but they cannot force those who are economically tied to their legal fiction to follow religious practices that they do not personally hold. By refusing to allow insurers to pay for birth control under the policies offered to their employees (most insurers actually prefer to supply free birth control because it saves them money from pregnancy-related health coverage), religious employers can now impose a serious obstacle to their employees accessing reproductive health care.
The Supreme Court’s decision carves out a specific exception for birth control that puts it apart from all other religious objection and gives religious adherents who have a problem with birth control special status. If the Supreme Court were truly being consistent (albeit extremely wrong), they would have expanded this to cover all religious beliefs and medical procedures—that said, they recognize how destructive this would be and chose to limit the harm of their decision to poorer women, whose welfare is clearly not a priority for the right wing.
In 1971, Lewis Powell was a lawyer for the Chamber of Commerce who wrote a now-infamous memo outlining a corporate capture of the judiciary that would allow big-business to control American law and, by extension, our government.
Two years later, Nixon placed Powell on the Supreme Court and the corporate coup began. During the decades since then, corporate judges have eroded democracy (ex. Buckley v. Valeo, Citizens United, protected corporations, and made it almost impossible for the common person to win in court against large interests (ex. the SCOTUS throwing out the Walmart discrimination case because they harmed too many women).
Unfortunately, the Roberts court has accelerated this corruption into overdrive and our country is now facing a true disaster. The top court that interprets our laws—over which there is no oversight—has become corrupted and is focused upon advancing an extremist ideology that could never win through democratic means. They are, in effect, trying to perform a soft-coup of our democracy in order to pass their agenda with a veneer of political legitimacy.
With chills of premonition – I agree. I see this November’s elections as a test. If the elections go one way, I will work even harder to help overcome the oligarch’s tentacles. If the elections go to the dark side, well, I’m ready to get my blanket and trod off into the woods.
As always, you have defined the problem.