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The Colorado Court of Appeals issued its opinion in Berthold v. Industrial Claim Appeals Office on Thursday, November 16, 2017.
Workers’ Compensation—Change of Authorized Treating Physician—Maximum Medical Improvement—Final Admission of Liability.
Claimant sustained work injuries and received medical care from Sharma, an authorized treating physician (ATP). Several months later she requested and received permission, under C.R.S. § 8-43-404(5)(a)(VI)(A), to begin treatment with another physician, Miller. Notwithstanding the agreed-upon change of doctor, claimant’s employer periodically sent her to the see Sharma. After Miller assumed her care, Sharma reported that claimant reached maximum medical improvement (MMI). Miller disagreed. Despite this disagreement, claimant’s employer filed a final admission of liability (FAL) based on Sharma’s conclusion. Claimant challenged the FAL, and an administrative law judge found that Sharma’s status as claimant’s ATP terminated when Miller began treating her, pursuant to C.R.S. § 8-43-404(5)(a)(IV)(C), the automatic termination provision. A panel of the Industrial Claim Appeals Office (Panel) disagreed, concluding that C.R.S. § 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under C.R.S. § 8-43-404(5)(a)(III). The Panel further held that the termination provision in C.R.S. § 8-43-404(5)(a)(VI)(B), which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP, did not apply either because it was not in effect when claimant changed physicians.
On appeal, claimant contended that her employer erred in relying on Sharma’s MMI finding when issuing the FAL because Sharma was no longer an ATP when he made the MMI finding. She argued that (1) her treating relationship with Sharma was automatically terminated by C.R.S. § 8-43-404(5)(a)(IV) because it applies to all changes of physicians, and (2) even if this section does not apply, her relationship with Sharma was terminated by recently amended C.R.S. § 8-43-404(5)(a)(VI). The Colorado Court of Appeals held that the C.R.S. § 8-43-404(5)(a)(VI)(B) termination provision only applies to requests to change a treating physician made after the effective date of the provision. Second, C.R.S. § 8-43-404(5)(a)(IV) is limited to changes made under C.R.S. § 8-43-404(5)(a)(III) “within ninety days after the date of the injury.” Because claimant’s request in this case to change her physician predated C.R.S. § 8-43-404(5)(a)(VI)(B), and because it was not granted under C.R.S. § 8-43-404(5)(a)(III), her treatment with Miller did not automatically terminate Sharma’s status as an ATP.
On Monday, January 27, 2014, Sen. Cheri Jahn introduced SB 14-137 – Concerning Certification of Workers’ Compensation Insurance Forms. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.
Current law prohibits workers’ compensation carriers from writing any policy of insurance or any endorsement, rider, letter, or other document affecting an insurance contract on a form that has not been previously filed with and approved by the commissioner of insurance. The bill allows the forms to be used without prior approval and to be certified on an annual basis after submission by the workers’ compensation carriers.
On Feb. 12, Business, Labor, & Technology Committee amended the bill and sent it the Senate 2nd Reading Consent Calendar. On Feb. 17 the bill passed with amendments on 2nd Reading. On Feb. 18, the Senate approved the bill on 3rd and Final Reading. The bill is assigned to the House Business, Labor, Economic, & Workforce Development Committee.
The Tenth Circuit Court of Appeals published its opinion in Macon v. United Parcel Service on Wednesday, February 19, 2014.
Jeff Macon was employed by the United Parcel Service and suffered two work-related injuries. The injuries were covered by workers’ compensation. Prior to his second injury, he was disciplined and terminated for improperly signing for a customer’s next-day air delivery. The termination was later reduced to a suspension. After several suspensions and grievances, Bacon was eventually terminated for dishonesty.
Bacon filed this action in federal district court alleging UPS terminated his employment because of his work related injury. He argued that UPS’s stated reason for his termination—dishonesty—was merely a pretext for retaliation. UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. The district court agreed and Macon appealed.
To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker’s compensation benefits or an injury that might support a future worker’s compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. The relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it honestly believed those reasons and acted in good faith upon those beliefs.
The Tenth Circuit reviewed the documents Macon cited, but none raised a genuine and material issue of fact sufficient to allow a reasonable jury to find pretext. Macon did not explain how any retaliatory motive on the part of his supervisors could be imputed to UPS when the final decision to terminate him was made by a grievance panel. Nor did he allege the grievance panel was biased, had a retaliatory motive, or merely rubber-stamped his supervisor’s decision to terminate him. The discipline imposed after the settlement of his workers’ compensation claim did not raise a triable issue of pretext.
Macon also argued a jury could determine his discharge for dishonesty was pretextual because the record showed he was not dishonest. Macon claimed he was not dishonest, merely inadequately trained. But he was not entitled to a determination of whether he was dishonest; rather, he was entitled only to a determination of whether the terminating grievance panel could reasonably have thought so.
Finally, Macon attempted to demonstrate pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness. The problem with Macon’s approach was that it failed to give UPS credit for establishing grievance panels with independent authority to assess the propriety of discipline. Even assuming the difference in treatment between Macon and another employee resulted from their supervisor’s desire to terminate Macon in retaliation for his workers’ compensation claims, this improper motive could not be imputed to UPS when the independent grievance panel concluded there was adequate reason to terminate Macon for dishonesty. But, Macon simply did not argue—and nothing in the record suggested—the grievance panel was in any way complicit in or blind to the supervisor’s retaliatory motive.
The Tenth Circuit Court of Appeals published its opinion in Pfeifer v. Federal Express Corp. on Monday, July 1, 2013.
Plaintiff Cynthia Pfeifer filed a diversity action against Defendant Federal Express Corporation in the District of Kansas alleging that Defendant retaliated against her for receiving workers’ compensation benefits by terminating her employment. Plaintiff’s employment agreement contained a provision requiring all claims against Defendant to be brought within “the time prescribed by law or 6 months from the date of the event forming the basis of [Plaintiff’s] lawsuit, whichever expires first.” The governing Kansas statute provided a 24 month statute of limitation and Pfeifer filed suit within that time period but after six months. The district court granted Defendant’s motion for summary judgment and the Tenth Circuit certified two questions to the Kansas Supreme Court.
Because the Kansas court held that the contract violated public policy by shortening the time allowed to file suit, which recognizes that injured workers should be protected from retaliation when exercising rights under the Workers Compensation Act, the Tenth Circuit reversed summary judgment and remanded.
On January 9, 2013, Rep. Spencer Swalm and Sen. Cheri Jahn introduced HB 13-1025 – Concerning an Increase in the Amount of the Authorized Deductible for Workers’ Compensation Insurance Policies. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.
Current workers’ compensation law allows employers a deductible of up to $5,000 in a workers’ compensation policy. This bill increases the amount of the authorized deductible up to the amount of the workers’ compensation insurance rate split point approved by the commissioner of insurance. Assigned to the Business, Labor, Economic, & Workforce Development Committee.
The Division of Workers’ Compensation in the Colorado Department of Labor and Employment issued a new form in September, “Request for Lump Sum Payment,” Form WC 62. The form may be used in situations where at least six months have passed from the date of injury or date of death and there is an award of permanent disability benefits.
This form is available in Adobe Acrobat (PDF) format. All of the Division of Workers’ Compensation’s forms can be found here.
The Division of Workers’ Compensation in the Colorado Department of Labor and Employment issued a new form, WC 181, “Medical Billing Dispute Resolution Intake Form.” The form is intended for use in situations where parties have followed the dispute resolution procedures outlined in WCRP Rule 16-11(A) through (D) and a payment dispute still exists.
The completed form should be submitted to the Division’s Medical Policy Unit via fax, email, or mail. Directions for submission of the completed form can be found here.
This form is available in Adobe Acrobat (PDF) format.
The Colorado Court of Appeals issued its opinion in Rodriguez v. Industrial Claim Appeals Office on August 16, 2012.
Compensable Accidental Employment Injuries—Burden of Proof—Admission of Liability.
Helen M. Rodriguez appealed from an order issued by the Industrial Claim Appeals Office (Panel) in favor of the City of Brighton and its insurer, CIRSA (collectively, Brighton). The order was set aside and the case was remanded with directions.
Rodriguez works for the City of Brighton as a special events coordinator. One morning, she fell while descending the stairs to her office. She was taken to the emergency room, where she received a CT scan and an MRI. The tests revealed unruptured brain aneurysms.
Brighton initially admitted liability for Rodriguez’s disability and medical benefits. It later sought to withdraw its admission, arguing the injuries did not arise out of her employment.
An administrative law judge (ALJ) found that (1) because Brighton initially admitted liability, it bore the burden of proof under CRS § 8-43-201(1); (2) Rodriguez’s fall was not caused by her aneurysms but was “unexplained”; and (3) because her fall was unexplained, her injuries were not compensable. Brighton therefore sustained its burden of proving non-compensability and could withdraw its admission of liability. Rodriguez appealed to the Panel, which affirmed the ALJ’s order.
Rodriguez argued the ALJ erred in ruling her injury was not compensable. The Court of Appeals agreed. An employee may recover for accidental injuries “arising out of and in the course of the employee’s employment.” It was undisputed Rodriguez was injured in the course of her employment; the question was on the “arising out of” prong. Ordinarily, the plaintiff bears the burden of proving this element. Here, the burden was shifted to the employer because of Brighton’s initial admission of liability. Consequently, the finding that the fall was unexplained was a failure of proof on Brighton’s part. Because Brighton failed to sustain its burden of proof, the ALJ erred in allowing it to withdraw its admission of liability. The Panel’s order was set aside and the case was remanded to the ALJ with directions to reinstate Brighton’s general admission and to conduct further proceedings as necessary.
The Colorado Court of Appeals issued its opinion in Cavaleri v. Anderson on July 19, 2012.
In this premises liability case, Chris Cavaleri (contractor) and Magdalena Cavaleri (wife) appealed the trial court’s judgment dismissing their personal injury claims against Aaron and Heidi Anderson (homeowners) with prejudice. The judgment was affirmed.
Contractor was the sole proprietor of a business and did not carry workers’ compensation insurance on himself. He was hired by homeowners to do some tiling work on their home. As he walked down their front steps after completing the work, he leaned on a wooden railing and it gave way, causing him to fall and sustain injuries. Contractor and his wife brought this premises liability action, seeking economic and noneconomic damages.
Before trial, the court asked the parties about the impact of CRS § 8-41-401(3) on contractor’s claims. The court ruled that the $15,000 limitation on damages applied to contractor’s claims. Homeowners immediately tendered the statutory limit. The trial court dismissed the action with prejudice and contractor appealed.
Here, homeowners are not general contractors and are excluded from the Workers’ Compensation Act. However, contractor provided no support for his argument that this somehow kept him from obtaining workers’ compensation insurance for himself. Contractor’s argument failed to address the express inclusion of “sole proprietor[s] who [are] not covered under a policy of workers’ compensation insurance” among the individuals who may bring an action against a negligent third party, but whose damages will be limited to $15,000 if they elect to forego workers’ compensation insurance. The dismissal with prejudice was affirmed.

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by George Anastaplo. Lexington: The University of Kentucky Press, 2009. 320pp. Cloth. $70.00. ISBN: 9780813125336. Paper. $26.95. ISBN: 9780813192307.
Reviewed by Christopher A. Riddle, Department of Philosophy, Queen’s University, Canada. E-mail: christopher[dot]a[dot]riddle[at]queensu[dot]ca.
In recent years, bioethical issues such as those surrounding life and death have come to the forefront of not only philosophical, political, and legal discussions, but in contemporary, non-academic thought as well. George Anastaplo’s REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is an incredibly creative and sprawling piece of work that transcends these boundaries. Anastaplo seamlessly weaves some of our most commonly held notions – life, death, religion, liberty, natural law, morality – into an intricate and cohesive story. This book is in many ways demonstrative of both Anastaplo’s breadth of scholarship, and whimsy.
The first half of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION examines a wide range of historical work to provide the reader with an understanding of how many authors of the past, such as Eurpides, William Shakespeare, and Abraham Lincoln, have framed how we think about life-and-death issues today. In Anastaplo’s words, “The Essays developed here begin with reminders of what is said elsewhere (in space and time) about matters critical for understanding the life-and-death issues addressed in American constitutional law” (p.ix). He continues, “the first half of Part One mostly recalls the ways that such issues were addressed by gifted authors prior to the emergence of the United States” (p.ix).
Here Anastaplo discusses Thucydides and funerals, Eurpides and resurrection, and mortality and the Declaration of Independence, to name but a few examples. While this first half contains many wonderfully insightful observations, there are some omissions that arise in the second portion of Part 1 that I was disappointed to discover.
Take for example, the discussion of public health and the enhancement and protection of life contained within Chapter 9, “Public Health and Private Consciences”. Here Anastaplo examines the Opinion of the Supreme Court in BUCK V. BELL (1927), a case in which Carrie Buck, a woman with an intellectual disability, was committed to a State Colony and subsequently sterilized. Justice Oliver Wendell Holmes cited utilitarian concerns for the general welfare of society in upholding the order for sterilization. Such a case immediately evokes thoughts of Ashley X, a girl born in 1997 with severe developmental disabilities whose treatment included growth attenuation, a hysterectomy, breast bud removal, and an appendectomy. Ashley’s treatment received much academic attention in early 2007 and such discussions extended into popular culture when in 2008, Ashley’s parents granted an [*859] interview to CNN to discuss their decision to undertake such treatments. Ashley would even have a Law & Order episode based upon her ordeal. While Anastaplo performs a wonderful balancing act in integrating classic texts and Supreme Court decisions, I think care needs to be taken not to omit contemporary examples such as Ashley.
That said, make no mistake that this first portion of the book is so sprawling and vast that it is somewhat churlish to criticize Anastaplo for such an omission. After all, he could not cover everything of interest, and indeed, stokes an admirable amount of fires.
While the first portion of this book is wonderfully creative and enlightening, in many ways the meat of REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is its second half. When Anastaplo contextualizes these texts within American constitutional law, REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION hits its stride. These works are critically examined in relation to complex Supreme Court decisions that may sometimes prove to be at odds with our established conceptions of life and death. Social questions such as the right to contraception, the legality of abortion, the acceptability of capital punishment, the right to die, and the presence of religious teachings in school, are all scrutinized through a thorough examination of the relevant Supreme Court decisions. GRISWOLD v. CONNECTICUT (1965), ROE v. WADE (1973), FURMAN v. GEORGIA (1972), CRUZAN v. DIRECTOR, MISSOURI DEPARTMENT OF HEALTH (1990), and EPPERSON v. ARKANSAS (1968), all serve as testing grounds and means of contextualization for the notorious slippery answers to the abovementioned questions.
Here again however, I fear Anastaplo has missed some opportunities to provide contemporary examples to contextualize some of the discussions he undertakes. Take for example, the Fourth Chapter of Part 2, “Roe v. Wade (1973) and the Law of Abortion,” which discusses the Opinion of the Court in ROE v. WADE (1973) when ruling in favor of the right of women to abort a fetus for any reason until the point when it becomes viable. Seeing as REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION is well-suited to be read by those whose expertise resides outside of the realm of legal scholarship, a more thorough discussion of the abortion debate might have served Anastaplo’s readership well. While Anastaplo eloquently captures a portion of this debate when he states, “on one side are the pro-choice advocates, who prefer not to identify themselves as advocates of abortion or the destruction of fetuses . . . on the other side are the pro-life advocates, who prefer not to identify themselves as advocates of the suppression of abortions or of the control of women” (p.123), he nevertheless missed what I think is a viable opportunity to engage his readers in this debate further – to both stimulate thought, and provide the historical context of argumentation on this debate.
Thomson of course, argues for the rights of the woman, and asks: “Is it morally incumbent on you to accede to this situation? No doubt it would be very nice of you if you did, a great kindness. But do you have to accede to it? What if it were not nine months, but nine years? Or longer still?” (p.49).
Through the utilization of the above argument, Anastaplo could have demonstrated in an accessible, but no less rigorous manner, how arguments have been framed and addressed within the rich academic history surrounding this topic.
Similarly, within the Ninth Chapter of Part 2, “Washington v. Glucksberg (1997) and Assisted Suicide,” Anastaplo makes the distinction between “killing” and “letting die,” or “letting go.. This debate has an equally rich history of argumentation that is largely absent in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION. There are numerous influential texts that clearly outline this debate that could have been drawn upon by Anastaplo. Take for example, LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIA DEBATE, by Germain Grisez and Joseph M. Boyle, Jr.; ACTIVE AND PASSIVE EUTHANASIA, by James Rachels; IS KILLING NOT WORSE THAN LETTING DIE?, by Winston Nesbitt; or finally, WHY KILLING IS NOT ALWAYS WORSE – AND SOMETIMES BETTER – THAN LETTING DIE, by Helga Kuhse.
However, as stated previously, Anastaplo covers an admirable amount of ground in REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION and sparked my interest and curiosity to such an extent, that I found myself wanting more. It was a very rare occasion that I was intrigued by a topic only to find subtle aspects of the debate missing.
In fact, Anastaplo offers a sprawling and rigorous contribution to legal scholarship that is at the same time, accessible to a remarkably wide audience. Readers interested in bioethics, political science, history, or even literature, will find themselves enthralled by Anastaplo’s thoroughness. In this sense, the monograph would be of interest to not only political or legal scholars, but a wide breadth of individuals. Anastaplo’s contribution to legal scholarship is a large one, and REFLECTIONS ON LIFE, DEATH, AND THE CONSTITUTION only serves to further establish him as one of the most interesting legal theorists of today.
Grisez, Germain and Joseph M. Boyle, Jr. 1971. LIFE AND DEATH WITH LIBERTY AND JUSTICE: A CONTRIBUTION TO THE EUTHANASIC DEBATE. Notre Dame: University of Notre Dame Press.
Kuhse, Helga. 1998. “Why Killing is Not Always Worse – And Sometimes Better – Than Letting Die”. CAMBRIDGE QUARTERLY OF HEALTHCARE ETHICS 7(4):371-4.
Nesbitt, Winston. 1995. “Is Killing No Worse Than Letting Die?” JOURNAL OF APPLIED PHILOSOPHY 12(1):101-106.
Rachels, James. 1975. “Active and Passive Euthanasia”. NEW ENGLAND JOURNAL OF MEDICINE 292(2):78-80.
Thomson, Judith Jarvis. 1971. “A Defense of Abortion.” PHILOSOPHY & PUBLIC AFFAIRS 1(1):47-66.
EPPERSON v. ARKANSAS, 393 U. S. 97 (1968).
ROE v. WADE, 410 U.S. 13 (1973).
© Copyright 2009 by the author, Christopher A. Riddle.

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A recent Alabama Court of Civil Appeals decision held that the business model used by a prominent classroom bookseller did not create use tax nexus in Alabama during a lengthy audit period at issue (Alabama Dep't of Rev. v. Scholastic Book Clubs, Inc., No. 2161077 (Ala. Civ. App. 9/7/18)). In doing so, the court provided the litigants an opportunity to weigh in on how the U.S. Supreme Court's groundbreaking decision in South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018), could apply in the case, implying that future sales tax nexus cases may result in substantially different results.
Scholastic focused on whether the activities of Scholastic Book Clubs Inc. (SBC) gave rise to use tax nexus requiring registration, collection, and remittance of use tax on taxable transactions. SBC, a seller of books and classroom supplies to students and classrooms via catalogs distributed by teachers, did not have actual physical presence in Alabama. SBC's sales to Alabama consumers arose from orders placed by the teachers or the parents of the teachers' students. These orders were placed onto forms sent to SBC, fulfilled at SBC's Missouri warehouse, and sent back to classrooms for distribution. SBC was owned by Scholastic Inc. (Scholastic), which contracted with Alabama to provide the state with math textbooks beginning in 2012.
SBC's sales model attracted the scrutiny of the Alabama Department of Revenue, which ultimately issued an assessment against SBC for over $815,000 in unpaid use tax and interest, for SBC's tax periods from April 1, 2007, to March 31, 2013. The department's assessment relied upon a statute providing that certain activities performed by an out-of-state seller involving significant in-state contacts created an Alabama use tax filing obligation (Ala. Code §40-23-68(b)).
SBC appealed the assessment, arguing that it did not have an obligation to collect and remit use tax to the state of Alabama because it did not have actual physical presence in the state. The Alabama Tax Tribunal affirmed the department's assessment on the basis that SBC was using classroom teachers to solicit sales and perform other activities on behalf of SBC in Alabama (Scholastic Book Clubs, Inc. v. Alabama Dep't of Rev., No. S. 14-374 (Ala. Tax Trib. 3/25/16)).
SBC appealed the tribunal's decision, and the Montgomery (Ala.) Circuit Court held in SBC's favor, vacating the department's assessment of use tax against SBC (Scholastic Book Clubs, Inc. v. Alabama Dep't of Rev., No. CV-16-900562 (Montgomery Cir. Ct. 8/18/17)). The circuit court based its determination primarily on the grounds that SBC's Alabama contacts were not included within any of the enumerated categories of activities described in the Alabama nexus statute under Alabama Code Section 40-23-68(b). Specifically, Alabama teachers and parents were acting on behalf of students in placing orders rather than on behalf of SBC. Further, the teachers' and parents' activities could not be considered acts of sales agents or representatives or be described under a "catchall" provision within the Alabama nexus statute.
The department appealed the circuit court decision to the Alabama Court of Civil Appeals, which reviewed the arguments raised by the parties in the circuit court, along with an argument dealing with Alabama's related-party nexus statute (Ala. Code §40-23-190(b)) that was not addressed by the trial court or tribunal. With respect to the related-party argument, the department contended that Scholastic maintained an Alabama presence through its contract with the state of Alabama as a textbook provider, and that Scholastic and SBC used a substantially similar name, trade name, and trademark to develop, promote, and maintain an Alabama market. SBC rebutted this argument, stating that SBC and Scholastic were entirely separate and that any in-state activities attributable to Scholastic could not be applied to SBC. The department also argued that SBC was a statutory affiliate of Scholastic (Ala. Code §41-4-116(a)) and, as a result, maintained a duty to register, collect, and remit sales, use, and lease tax to Alabama.
The Court of Civil Appeals found no basis for reversing the judgment of the circuit court with respect to the activity nexus, related-party nexus, or affiliate nexus statutes. The court noted that SBC did not retain employees or agents under contract in Alabama and that SBC did not receive and accept orders from Alabama residents within the state of Alabama. Therefore, SBC had no specific obligation to collect use tax based on its activities.
The Court of Civil Appeals likewise rejected the department's argument that the related-party nexus statute applied because of Scholastic's in-state activities, as the department did not argue or explain how the assessment against SBC would be upheld on that basis. Finally, the Court of Civil Appeals held that since the department had not demonstrated that SBC was subject to the obligation to collect and remit use tax under the activities nexus statute, there was no basis to reverse the judgment and reinstate the assessment under the affiliate nexus statute.
During the Court of Civil Appeals' review of the record, it asked both parties to submit briefs addressing the effect, if any, of Wayfair on nexus-creating activities in Alabama, even though the audit period in question occurred well before the Wayfair decision. SBC opined that the application of Wayfair was unnecessary, as the case should be decided solely on Alabama statutory grounds in effect well before Wayfair. The department, in its brief, put forth the contention that the decision in Wayfair strengthened its position, as Wayfair established the test to determine what constitutes substantial nexus and would allow Alabama to tax an entity with extensive business connections and economic presence in the state.
Ultimately, the Court of Civil Appeals did not reach the question of the department's potential reach under Wayfair, as the department was unable to show that in SBC's case, "its specific interpretation and application of the Alabama taxing statute" imposed an obligation to collect use tax on SBC. In addition, the Court of Civil Appeals refused to express an opinion on whether, under a different interpretation of the Alabama taxing statutes, Alabama could constitutionally impose use tax obligations on SBC in light ofWayfair.
Scholastic has a long history of state and local tax litigation concerning whether a jurisdiction can impose a sales and/or use tax on it as an out-of-state seller, with somewhat mixed results. In the pre-Wayfair world of nexus, statutes designed to require out-of-state sellers to collect and remit sales tax have not always been successful from the states' perspective. The Alabama courts' statutory interpretation proves that distinctive fact patterns (as reflected in the SBC's business model) and nonuniform sales tax nexus statutes will result in inconsistent nexus findings on a multistate basis, even in jurisdictions that have expanded concepts of what constitutes nexus.
It is interesting that the Court of Civil Appeals asked both parties to comment on the application of Wayfair so soon after that decision, even though it would have been difficult for the Court of Civil Appeals to hold that Wayfair could be applied retroactively to SBC. Given that sales-and-use-tax controversies can take several years to reach high-level state courts, it stands to reason that, soon enough, courts will be wrestling with the applicability of pre-Wayfairstatutes that have tried to impose nexus based on tangential connections to states, under the argument that Wayfair prospectively has changed the game. Companies that are currently challenging the historic nexus statutes at the audit level and in litigation are already beginning to grapple with how they will deal, going forward, with state statutes imposing broad economic nexus standards that have quickly been enacted in light ofWayfair.


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COMMONWEALTH vs. GORDON C. RAMOS.
The defendant was found guilty of assault with force and violence and with intent to rob, under G. L. c. 265, Section 20, at a jury waived trial in the Superior Court. The sole issue on appeal (pursuant to G. L. c. 278, Sections 33A-33G) is whether the evidence was sufficient to prove an essential element of the offence; namely, an assault "with force and violence." The evidence was as follows. At a supermarket checkout counter, the defendant grabbed at $100 in bills which a cashier was holding in her hand. The cashier held onto the money and tugged back. The corners of the bills tore off in the defendant's hands as a result of the tug-of-war. The defendant ran from the store, and the cashier screamed for someone to stop him. The defendant's actions in grabbing at the money while the victim resisted by tugging back constituted an assault (see Commonwealth v. Slaney, 345 Mass. 135, 138, 140 ; Commonwealth v. Shaffer, 2 Mass. App. Ct. 658, 662-663 , S.C., 367 Mass. 508, 515 ; cf. Commonwealth v. Ordway, 12 Cush. 270 ) with sufficient "force and violence" (see Commonwealth v. Jones, 362 Mass. 83, 89 ; Commonwealth v. Brown, 2 Mass. App. Ct. 883 ) to support the judge's finding of guilty as to the elements of the offence required to be proved under G. L. c. 265, Section 20. The defendant's motion for a directed finding of not guilty was properly denied.
JAMES W. SANTRY, JR. & another vs. MILTON RICHMAN.
principal amount of $6,396.38. 1. The defendant was barred by the parol evidence rule from introducing, in defense of the action, evidence of an alleged contemporaneous oral agreement between the parties to renew the note indefinitely until such time as the defendant could sell or refinance certain land. Such evidence would contradict the terms of the note, which was an unconditional promise to pay. See Commonwealth Trust Co. v. Coveney, 200 Mass. 379, 381 (1909); Buckley v. Hacking, 258 Mass. 525, 526 (1927); Sherman v. Koufman, 349 Mass. 606, 610 (1965); Trustees of Tufts College v. Parlane Sportswear Co., 4 Mass. App. Ct. 783, 783-784 (1976). The judge was correct in excluding the offered testimony. 2. There was sufficient evidence to support the jury's award to the plaintiffs of $1,200 as a reasonable attorney's fee. Expert opinion testimony regarding a reasonable fee was given by one of the plaintiffs, an attorney, and by the plaintiffs' trial attorney. The former based his opinion on forty-eight years of experience at the bar, and the latter, on the Massachusetts Bar Association's then existing guide to legal fees in retail collections. The jury were free to give the experts' testimony such weight as they deemed appropriate and, on all the evidence, to determine a reasonable fee. See Arena v. John P. Squire Co., 321 Mass. 423, 425-426 (1947); Perkins v. Blake, 3 Mass. App. Ct. 415, 418-419 (1975); Annot., 57 A.L.R. 3d 475, 489-540, 502 n.71 (1974). Recovery was not limited to the amount sought by the plaintiffs in their declaration (complaint). See Goldstein v. Gontarz, 364 Mass. 800, 815-816, & n.15 (1974).

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This data protection declaration explains to you the type, scope and purpose of the processing of personal data (hereinafter referred to as “data”) within our online offer. With regard to the terms used, such as “processing” or “person responsible”, we refer to the definitions in Art. 4 of the General Data Protection Regulation (GDPR). The purpose of such processing is the provision of the online offer, its functions and contents as also responding to contact enquiries and communication with users, security measures and marketing.
This website uses SSL or TLS encryption for security reasons and to protect the transmission of personal data and other confidential content (e.g. enquiries to the person responsible). You can recognise an encrypted connection by the character string “https://” and the lock symbol in your browser.
We only process the personal data of our website users as far as this is necessary to provide a functional website as well as our contents and services. The processing of our users’ personal data is only carried out with the user’s consent. An exception applies in those cases where prior consent cannot be obtained for proper reasons and the processing of the data is permitted by law.
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Art. 4
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 21


text:
As a signatory of the agreement regarding the hiring of articling students, entered into by certain Montreal law firms, Woods LLP holds interviews every year in March at our offices in Montreal for articling positions commencing two years later.
Send us your curriculum vitae and transcript to the coordinates below.
WERE YOU BORN TO PLEAD?
In litigation, the lawyers take centre stage. This role is at once very gratifying and very demanding. It requires a plethora of abilities. Lawyers must, of course, master the procedure and the substantive law. They must be able to identify what is at stake, the real issues and their solutions. They must be at once strategist, communicator, psychologist and negotiator, and always endeavour to understand human nature. They must know how to listen. They must know to speak, and, at times, how to hold one’s peace. They must above all other things demonstrate judgment and provide counsel and guidance to their client in a process to which the latter is often a stranger.
Litigation is a branch of the legal profession that concerns the resolution of disputes. Although prevention and alternative dispute resolution mechanisms play an increasingly important role in resolving disputes, when compromises cannot be met, the court system remains the only viable solution.
Our lawyers possess vast experience in litigations relating to all aspects of commercial relations, such as contract performance, civil and professional liability, unfair competition, shareholder remedies, injunctions and extraordinary recourses, class actions, private international law, bankruptcy and insolvency litigation, and individual employment contracts. Furthermore, the high level of trust that we have built with our clients has enabled us to develop expertise in domains related to commercial litigation, such as disciplinary and administrative law.
Beyond legal knowledge, the litigator’s craft is shaped by a multitude of strategies and practices which can only be acquired through experience. Understanding how to interact with the judiciary; communicating with opposing counsel; preparing, examining and cross-examining witnesses; drafting appropriate proceedings; pinpointing the weaknesses in the opponent’s pleadings and arguments; pleading effectively and with style, both orally and in writing; listening to the needs of the client, and providing advice and guidance to the client in view of the intricacies of the judicial process.
Litigators are resourceful. No matter how complicated the situation, they will always find an appropriate solution and are not intimidated by the challenges with which they are presented.
When they are not in court, litigators divide their work time between legal research and writing, developing their professional knowledge, and exchanging information and ideas with their clients or with professionals such as experts and other lawyers.
Woods is among the first litigation boutiques of its kind in Montreal. Our lawyers are devoted exclusively to the resolution of contentious matters through pleading, mediation, arbitration and negotiation. In Montreal and beyond, the Woods name is synonymous with professionalism and high-quality litigation.
Our firm is comparable to the litigation department of a full-service office in terms of size and resources. However, the resemblances end there. Woods offers its team a more flexible and less rigid hierarchical structure as well as a congenial working environment in which the junior litigator often plays a central rather than supporting role.
The superior reputation of Woods LLP is recognized both nationally and internationally. Our lawyers have played key roles in many significant and noteworthy litigations, such as Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc. and Lac d’amiante du Canada, Ltée,  2 R.C.S. 743; Laidley v. Kovalik,  R.R.A. 429 (C.A.); Del Guidice v. Honda Canada inc.,  6 R.J.Q. 1496 (C.A.); Automobiles Jalbert inc. v. BMW Canada inc.,  QCCA 1068; and Quebecor inc. v. Société Radio-Canada, 2011 QCCA 387. We represent our clients before the courts in Quebec and Ontario, as well as the federal courts and the Supreme Court of Canada.
Recently, in Metcalfe & Mansfield Alternative Investments II Corp., (Re), 2008 ONCA 587, we represented the most important group of holders of asset-backed commercial paper in Quebec within the framework of a $32-billion restructuring. We also successfully acted on behalf of the intended purchasers of BCE Inc. in the now famous case of BCE Inc. v. 1976 Debentureholders,  3 S.C.R. 560 (S.C.C.). We subsequently represented those parties in the dispute against BCE Inc. concerning an indemnification clause of $1.2 billion dollars.
Of course, our office also acts in disputes that are not in the multi-million-dollar range! Our well-balanced practice includes diverse cases which touch upon all avenues of the commercial disputes. Some of our lawyers also practice disciplinary and administrative law. Our clients, regardless of the monetary value in dispute, entrust us with quality files which allow us to maintain a high level of practice. At Woods, there is no second-class dispute. Every case is handled with the attention and professionalism that it deserves.
At Woods, the articling period marks the start of a fruitful and independent professional career. Our lawyers are always available to lend a helping hand to their new colleagues. Because our office is relatively modest in size, our articling students quickly become a privileged centre of attention. Quality cases are plentiful and lawyers look forward to involving the talent of our articling students.
In addition to fulfilling the tasks with which they familiarized themselves during the course of their summer job at Woods, our articling students are encouraged to become increasingly independent and attend court for various matters. They assist experienced lawyers in complex files and, in parallel, assume more active roles in files that are less complex in nature. In this manner, the articling students are given the opportunity to learn through their experiences with all stages of a mandate, from preliminary research to trial.
Students recruited for an articling position may work at Woods during the summer if they wish to. We never lack stimulating mandates that can be entrusted to them. They can also work part-time during the school year.
Our students collaborate directly with the lawyers that seek their assistance. They are immersed in the files in which they work; their implication is proportional to their curiosity. Whoever wants responsibilities will have them!
We offer our students practical experience of the profession. A summer job at Woods involves more than just research— communicating with clients, writing demand letters, drafting complete procedures, familiarizing yourself with the evidence and analyzing it, accompanying lawyers during negotiations, examinations and representations before the courts are all part of the experience. Our lawyers trust the students, often ask for their opinion and are happy to take advantage of their legal knowledge freshly acquired from law school.
We provide students with the best research tools and a library that is constantly being updated. We also encourage our staff to take advantage of training in the use of legal databases, word processors and information management.
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Woods, the foremost litigation, arbitration and insolvency boutique in Montreal, is currently seeking a litigation lawyer with 3 to 6 years of experience to join its dynamic team, in its downtown offices.
The candidate must be a member in good standing of the Québec Bar, provide superior academic and professional credentials and demonstrate verbal and written proficiency in both French and English.
Resourceful, autonomous and a team player, the candidate must be capable of simultaneously handling numerous files while responding quickly to the needs and expectations of our clientele, thereby demonstrating their availability and proactive approach.
We offer a positive work environment, highly competitive remuneration based on experience and a full range of benefits.
If you are interested in joining a dynamic team, in a friendly and stimulating work environment, please submit your cover letter, curriculum vitae and a copy of your university transcript to the attention of Helen Tuitt by email: htuitt@woods,qc.ca. All information submitted will be treated on a confidential basis.
While we thank all applicants for their interest in this position, only those selected for an interview will be contacted.
Woods LLP is a law firm specializing in civil and commercial litigation, arbitration, bankruptcy, insolvency and restructuring, on a national and international basis. Its members appear before all levels of Québec and Ontario courts as well as federal courts and the Supreme Court of Canada.

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This case is brought before the court from the Eastern District of Louisiana, by a division of the judges on certain points, which are certified under the act of Congress.
The complainants in their bill state that Daniel Clark, late of the City of New Orleans, in the State of Louisiana, in the year 1813 died, seized in fee-simple, or otherwise well entitled to and lawfully possessed of, in the district aforesaid, a large estate, real and personal, consisting of plantations, slaves, debts due, and other property, all of which is described in the bill.
That the said Myra was the only legitimate child of the said Clark. That about the month of July, 1813, he made his last will and testament, according to law, and in which he devised to his daughter Myra all his estate, real and personal, except certain bequests named. Col. Joseph Deville, Degontine Bellachasse, James Pitot, and Chevalier Dusuau de la Croix were appointed executors of the will, and the said Chevalier de la Croix was also appointed tutor to the said Myra, who was then about seven years of age. In a few days after making the will the said Clark died.
From her birth, the said Myra was placed, by her father, in the family of Samuel B. Davis, who at the time resided in New Orleans, but in 1812 removed to Philadelphia, where the said Myra resided until her first marriage, being ignorant of her rights and her parentage.
In the year 1811, being about to make a journey to Philadelphia, and fearing some embarrassments from a partnership transaction, the said Clark conveyed property to the said Samuel B. Davis and others, to the amount of several hundred thousand dollars to be held in trust for the use of the said Myra. And about the same time he made a will devising to his mother, then residing out of Louisiana, his property, and appointed Richard Relf and Beverley Chew, two of the defendants, his executors. That afterwards, on his return from Philadelphia, he received back a portion of the property conveyed in trust as aforesaid; and by the will of 1813 revoked that of 1811.
The bill charges that immediately upon the death of the said Clark, the will of 1813 came into the possession of the said Relf, who fraudulently concealed, suppressed, or destroyed the same, and did substitute in its place the revoked will of 1811; that the will of 1813 was never afterwards seen except by the said Relf and Chew, and their confederates.
It is further charged that the said Relf fraudulently set up the revoked will of 1811, and obtained probate of the same; that he, with the said Chew, being sworn as executors, fraudulently took possession of the real and personal estate of the deceased, and also his title papers and books. That they appropriated to their own use large sums of money and a large amount of property of the estate, and in combination with the defendants named, who "had some knowledge, notice, information, belief or suspicion, or reason for belief or suspicion and did believe," so that the said Relf and Chew had acted fraudulently in setting up and proving the will of 1811. And the complainants pray that effect may be given to the will of 1813, and that the will of 1811 may be revoked, and that the defendants may be decreed to deliver up possession of the lands purchased as aforesaid, and account for the rents &c., and that the executors may be decreed to account. The complainants also represent that the said Myra is the only heir-at-law of the said Clark, and that his property descended to her &c. In addition to the special relief asked, the complainants pray for "such other and further relief in the premises, as the nature of the case may require."
1. Is the bill multifarious? and have the complainants a right to sue the defendants jointly in this case.
2. Can the court entertain jurisdiction of this case, without probate of the will set up by the complainants, and which they charge to have been destroyed or suppressed.
3. Has the court jurisdiction of this case, or does it belong exclusively to a court of law. The demurrer is not before the court, but the points certified. In considering these points, all the facts stated in the bill are admitted.
Whether the bill be multifarious or not is the first inquiry.
real and personal, by purchase or otherwise, which belonged to Daniel Clark at the time of his death. That a bill which is multifarious may be demurred to for that cause is a general principle; but what shall constitute multifariousness is a matter about which there is a great diversity of opinion. In general terms, a bill is said to be multifarious, which seeks to enforce against different individuals, demands which are wholly disconnected. In illustration of this, it is said, if an estate be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance. Nor could the vendor file a bill for a specific performance against all the purchasers. The contracts of purchase being distinct, in no way connected with each other, a bill for a specific execution, whether filed by the vendor or vendees, must be limited to one contract. It has been decided that an author cannot file a joint bill against several booksellers for selling the same spurious edition of his work, as there is no privity between them. But it has been ruled that a bill may be sustained by the owner of a sole fishery against several persons who claimed under distinct rights. The only difference between these cases would seem to be, that the right of fishery was necessarily more limited than that of authorship. And how this should cause any difference of principle between the cases is not easily perceived.
"to lay down any rule, applicable universally, or to say, what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible."
Every case must be governed by its own circumstances, and as these are as diversified as the names of the parties, the court must exercise a sound discretion on the subject. Whilst parties should not be subjected to expense and inconvenience, in litigating matters in which they have no interest, multiplicity of suits should be avoided, by uniting in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.
(he says) to which I do not assent. It would indeed be extremely mischievous if such a rule were established in point of law. No possible advantage could be gained by it, and it would lead to a multiplication of suits, in cases where it could answer no purpose to have the subject matter of contest split up into a variety of separate bills."
The same doctrine is found in Story's Equity Pleading sec. 534; Attorney General v. Cradock, 3 Myl. & C., 85; 7 Sim. 241, 254.
"The object of the rule against multifariousness is to protect a defendant from unnecessary expense; but it would be a great perversion of that rule, if it were to impose upon the plaintiffs, and all the other defendants, two suits instead of one."
The bill prays that the defendants, Relf and Chew, may be decreed to account for moneys &c., which came into their hands, as executors, under the will of 1811, and that the other defendants, who purchased from them real and personal property, may be compelled to surrender the same, and account, &c., on the ground that they had notice of the fraud of the executors.
The right of the complainant, Myra, must be sustained under the will of 1813, or as heir-at-law of Daniel Clark. The defendants claim mediately or immediately under the will of 1811, although their purchases were made at different times and for distinct parcels of the property. They have a common source of title, but no common interest in their purchases. And the question arises on this state of facts, whether there is misjoinder or multifariousness in the bill, which makes the defendants parties.
On the part of the complainants there is no misjoinder, whether the claim be as devisee or heir-at-law. And the main ground of the defense, the validity of the will of 1811, and the proceedings under it, is common to all the defendants. Their interests may be of greater or less extent, but that constitutes a difference in degree only, and not in principle. There can be no doubt that a bill might have been filed against each of the defendants, but the question is whether they may not all be included in the same bill.
without subjecting the defendants to inconvenience or unreasonable expense. There are, however, two exceptions to this remark, one of which relates to Caroline Barnes and her husband. She is represented to be a devisee in the will of 1813, and consequently can have no common interest under the will of 1811. The other exception is the prayer of the bill that the executors may account. In the rendition of this account the other defendants have no interest, and such a matter therefore ought not to be connected with the general objects of the bill. The bill in these respects may be so amended in the circuit court as to avoid both the exceptions.
"whether the court can entertain jurisdiction of this case, without probate of the will set up by the complainants, and which they charge to have been destroyed or suppressed."
The bill charges that the will of 1813 was fraudulently suppressed or destroyed by Relf, and that he fraudulently procured the will of 1811, in which he and Chew were named as executors, to be provided.
It is contended that the court of probate in Louisiana has exclusive jurisdiction of the probate of wills, and that a court of chancery can exercise no jurisdiction in such a case.
"the courts of probate shall have no jurisdiction except in the cases enumerated in the preceding article, or in those which shall be mentioned in the remaining part of this title."
"Art. 934. If the will be contained in a sealed packet, the judge shall order the opening of it at the time appointed by him, and shall then proceed to the proof of the will."
may be opened and proved, or that the execution of it may be ordered."
"Art. 937. If the notary or other individual to whom the said order is directed, refuses to obey it, the judge shall issue an order to arrest him, and if he does not adduce good reasons for not producing the will, shall commit him to prison until he produces it; and he shall be answerable in damages to such persons as may suffer from his refusal."
From the above provisions it is clear that, in Louisiana, the court of probates has exclusive jurisdiction in the proof of wills, and that its jurisdiction is not limited, like the Ecclesiastical Court in England, to wills which dispose of personal property. Has a court of equity power to set up a spoliated will and carry it into effect?
Formerly it was a point on which doubts were entertained, whether courts of equity could not relieve against a will fraudulently obtained. And there are cases where chancery has exercised such a jurisdiction. Maundy v. Maundy, 1 Ch. 66; Welly v. Thornagh, Pr.Ch. 123; Goss v. Tracy, 1 P.Wms. 287; 2 Vern. 700. In other cases such a jurisdiction has been disclaimed though the fraud was fully established, as in Roberts v. Wynne, 1 Ch. 125; Archer v. Moss, 2 Vern. 8. In another class of cases, the fraudulent actor has been held a trustee for the party injured. Herbert v. Lawnes, 1 Ch. 13; Thynn v. Thynn, 1 Vern. 296; Devenish v. Banes, Pr.Ch. 3; Barnesly v. Powell, 1 Ves. 287. These cases present no very satisfactory result as to the question under consideration. But since the decision of Kenrick v. Bransby, 3 Bro.P.C. 358, and Webb v. Cleverden, 2 Atk. 424, it seems to be considered as settled in England that equity will not set aside a will for fraud and imposition. The reason assigned is, where personal estate is disposed of by a fraudulent will, relief may be had in the ecclesiastical court, and at law, on a devise of real property. Bennett v. Vade, 2 Atk. 324; 3 id. 17; Gingoll v. Horne, 9 Sim. 539; Jones v. Jones, 3 Meriv. 171.
"It is impossible that at this time of day it can be made a serious question, whether it be in this court that the validity of a will, either of real or personal estate, is to be determined."
satisfactory reason for this exception. The exclusive jurisdiction over the probate of wills is vested in another tribunal is the only one that can be given.
By art. 1637 of the Civil Code, it is declared that "no testament can have effect unless it has been presented to the judge," &c. And in Clappier v. Banks, 11 La. 593, it is held that a will alleged to be lost or destroyed and which has never been proved cannot be set up as evidence of title in an action of revendication.
In Armstrong v. Administrators of Kosciusko, 12 Wheat. 169, this Court held that an action for a legacy could not be sustained under a will which had not been proved in this country before a court of probate, though it may have been effective, as a will in the foreign country where it was made.
"the bill cannot be sustained for the purpose of avoiding the probate. That should have been done, if at all, by an appeal from the court of probate, according to the provisions of the law of Alabama."
The American decisions on this subject have followed the English authorities. And a deliberate consideration of the question leads us to say that both the general and local law require the will of 1813 to be proved before any title can be set up under it. But this result does not authorize a negative answer to the second point. We think, under the circumstances, that the complainants are entitled to full and explicit answers from the defendants, in regard to the above wills. These answers being obtained may be used as evidence before the court of probate to establish the will of 1813 and revoke that of 1811.
"in civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages where positive law is silent."
This view seemed to be necessary to show on what ground and for what purpose jurisdiction may be exercised in reference to the will of 1813, though it has not been admitted to probate.
The third point is, "has the court jurisdiction in this case, or does it belong exclusively to a court of law?"
Much that has been said in relation to jurisdiction on the second point, equally applies to this one. Indeed, they might have been considered under the same general head.
1. Under the will of 1813.
2. As heir-at-law of the deceased.
The first has been examined, and we will now consider the second.
"an heir-at-law claiming a share of the succession of her deceased sister, who was the wife of the defendant, who holds possession of it under a will, as instituted heir and universal legatee."
The defendant pleaded to the jurisdiction of the district court, on the ground that the court of probates for the parish St. Landry had exclusive jurisdiction of the matters and things set up in the petition.
"that as the will sought to be annulled had been admitted to probate, and ordered to be executed, the court had no jurisdiction, but that the probate court had exclusive jurisdiction of the case."
"The plaintiff sets up a claim under the law of inheritance of lands, slaves, and a variety of movable property; that these are proper subjects for the exercise of the jurisdiction of district courts cannot be doubted. But the petitioner proceeds further, and alleges the nullity of the will, which constitutes the very title under which the defendant holds the property in controversy. Before what court then must the validity of this will be tested?"
"It appears that the jurisdiction of the court of probates is limited to claims against successions for money, and that all claims for real property appertain to the ordinary tribunals, and are denied to courts of probate. The plaintiff in this case was, therefore, compelled, in suing for the property of the succession, to seek redress in the district court, and whether she attacked the will or the defendant set it up as his title to the property, the court having cognizance of the subject must of necessity examine into its legal effect."
"that a court of ordinary jurisdiction, having cognizance of the principal matter, shall suspend its proceedings until another court of limited powers shall pronounce upon the subject. . . . If the ordinary courts should examine into the validity of testaments, drawn in controversy before them, they will do no more than we have often said a court of limited jurisdiction may do, even in relation to a question it could not directly entertain."
Lewis' heirs v. His Executors, 5 La. 387, and say there is no conflict, as indeed there is none, between that case and the one before it. It says that in the case before it, the functions of the executor had expired, the probate of the will had taken effect, and the devisee had entered into possession under it. The decision of the district court was reversed on the ground that it had jurisdiction of the case.
"the distinction repeatedly made by this court to be that whenever the validity or legality of a will is attacked and put at issue (as in the present case) at the time that an order for its execution is applied for or after it has been regularly probated and ordered to be executed, but previous to the heirs' or legatees' coming into possession of the estate under it, courts of probate alone have jurisdiction to declare it void. . . . But when an action of revendication is instituted by an heir-at-law, against the testamentary heir or universal legatee who has been put in possession of the estate, and who sets up the will as his title to the property, district courts are the proper tribunals in which suits must be brought."
6 Mart. N.S. 263; 2 La. 23.
The functions of the executors under the will of 1811 have long since terminated, and the property of the deceased, both real and personal, has passed into the hands of purchasers. If the heir-at-law and the devisee were the only litigant parties, a suit at common law might afford an adequate remedy. But the controversy is rendered complicated by the numerous parties and the various circumstances under which their purchases were made. Besides, many facts essential to the complainant's rights are within the knowledge of the defendants, and may be proved only by their answers. Of this character is the fraud charged against the executors in proving the will and acting under it, and the notice of such fraud before their purchase, alleged against the other defendants.
in this view, are required to do complete justice between the parties.
This remedy under the Louisiana law and before the Louisiana courts of ordinary jurisdiction would be undoubted. For although those courts cannot annul the probate of a will, when presented collaterally, as a muniment of title, they inquire into its validity. Under the peculiar system of that state, the forms of procedure, being conformable to the civil law, are the same in all cases. But the circuit court of the United States, exercising jurisdiction in Louisiana, as in every other state, preserves distinct the common law and chancery powers. In either the state or federal court, the relief is the same; the difference consists only in the mode of giving it.
It is insisted that trusts are abolished by the Louisiana code, and that consequently that great branch of equity jurisdiction cannot be exercised in that state.
"That substitutions and fidei commissa are and remain prohibited. . . . Every disposition by which the donee, the heir or legatee, is charged to preserve for, or to return a thing to a third person, is null, even with regard to the donee, the instituted heir or the legatee,"
This abolishes express trusts, but it does not reach nor affect that trust which the law implies from the fraud of an individual who has, against conscience and right, possessed himself of another's property. In such a case, the Louisiana law affords redress as speedily and amply as the law of any other state. There is therefore no foundation for the allegation that an implied trust, which is the creature of equity, has been abrogated in Louisiana. Under another name, it is preserved there in its full vigor and effect. Without this principle, justice could not be administered. One man possesses himself wrongfully and fraudulently of the property of another; in equity, he holds such property in trust, for the rightful owner.
In answer to the objection that the validity of the will of 1811, collaterally, can only be tested by an action at law and on an issue devisavit vel non, it may be said that such an issue may be directed by the circuit court.
the mode of proceeding there in the state courts was adequate to all the purposes of justice, and knowing with what pertinacity even forms are adhered to, I was averse to any change of the practice in the federal courts. But I was overruled, and I see in the change only a change of mode which produces uniformity in the federal courts throughout the Union. No right is jeoparded by this, and to say the least, wrongs are as well redressed and rights as well protected by the forms of chancery as by the forms of the civil law.
From the foregoing considerations, the Court answers the first point certified in the affirmative, subject to the amendments of the bill, as suggested. And it answers the second and third points, with the qualifications stated, also in the affirmative.
I agree the points certified must be answered favorably to the complainants, but I do not altogether agree with the reasoning that has led a majority of my brethren to this conclusion.
"Can the circuit court entertain jurisdiction of this case without probate of the will set up by the complainants, and which they charge to have been destroyed or suppressed?"
The will of 1813, cannot be set up, without a destruction of the will of 1811; this will has been duly proved, and stands as a title to the succession of the estate of Daniel Clark; nor can the circuit court of the United States set the probate aside; this can only be done by the probate court.
jurisdiction to set aside the probate of a will alleged to have been forged or to be fraudulent, after the testator's death; as will be seen by the cases cited; although he who committed the fraud, or forgery, procured the probate to be had of the paper, in the probate court.
"That donations either inter vivos or mortis causa cannot exceed the fifth part of the property of the disposer if he leaves at his decease one or more legitimate children or descendants, born or to be born."
By the case made in the bill, Mr. Clark could only dispose of one-fifth part of his property at the time of his death, provided he had no wife living, and if she was living, then only of the one-fifth part of one-half. It follows, if the will of 1811 is permitted to stand as Daniel Clark's last and only will, that Mrs. Gaines can come in as heir for the four-fifths. On this aspect of the bill she can proceed to establish, and enforce her rights as heir, without making probate of the will of 1812 -- and the second question must be answered in the affirmative.
By the will of 1811, Mary Clark is the principal devisee. She made her will and died; by this will, Caroline Barnes is entitled to part of Daniel Clark's estate, and ought to be before the court to maintain her rights. I therefore do not concur that as to her the bill is multifarious. As to the purchasers from the executors, I have more difficulty. I agree, where there is one common title in the complainant, and this could only be the true source of all the titles in all the defendants, and they have not obtained the first link in the chain of title; that then the true owner may sue them together in chancery although they claim by separate purchases from a spurious source. Such is the general rule; nor do I think the purchasers from Chew and Relf are exempt from its operation, on the ground that they have no concern with the settlement of the accounts growing out of the administration. I therefore concur in answering the first question -- that the bill is not multifarious.
Mrs. Clark co-distributees with Mrs. Gaines under the will of 1811, as to the one-fifth part of Daniel Clark's estate.
The purchasers are charged with having purchased with knowledge of Mrs. Gaines' superior title; and with having fraudulently purchased from the executors with such knowledge, there being jurisdiction to grant relief against the executors, in chancery, the same court can grant relief against the purchasers, involved in the fraud of the executors. If they could be compelled to account in regard to the real estate when it remained in their hands; purchasers with notice of Mrs. Gaines' rights, and who purchased with the intention to defeat her rights and deprive her of them, can stand in no better situation than the executors, and must account likewise; both being held in a court of equity equally as trustees for the true owner. Therefore, on the face of the bill, a court of equity has jurisdiction, and a court of law has not exclusive jurisdiction, and thus the third point ought to be certified.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and on the points and questions which were certified to this Court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof it is the opinion of this Court that the first question should be answered in the affirmative, but that the bill should be so amended in the circuit court as to avoid both of the exceptions stated in the opinion of this Court, and that the second and third questions should also be answered in the affirmative, with the qualifications stated in the opinion of this Court. Whereupon it is now here ordered and adjudged that it be so certified to the judges of the said circuit court.


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What the Heck’s Going on With Class Actions?
1) the Court granted cert in State of Mississippi v. AU Optronics Corp., to address the issue whether parens patriae actions filed by state attorneys general seeking restitution on behalf of state citizens are “mass” actions, permitting removal under the Class Action Fairness Act (CAFA). For more on the case, see Deborah Renner’s post on the BakerHostetler Class Action Lawsuit Defense Blog. If it were up to me, I’d go further and say that parens patriae cases are actually “class” actions under CAFA, but apparently the Court has its own idea about the scope of the issue.
2) The Court vacated Judge Richard Posner’s decision in Butler v. Sears Roebuck & Co. and remanded for reconsideration in light of its recent decision in Comcast Corp. v. Behrend. This follows the Court’s earlier decision to vacate the Sixth Circuit’s decision in In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation for the same reason. Given the many questions left unanswered by the Comcast decision, it will be interesting to see what the Sixth and Seventh Circuits do with the moldy washer cases on remand.
From time to time we will troll the class action blogosphere for news and information about our favorite class action topics. Here are just a few of the recent headlines from around the web.
Complex litigation as a commodity investment?
Hedge funds have traditionally been willing to explore new territory in the non-traditional investment sphere. At least some appear to be finding potentially attractive opportunities in so-called Litigation Funding Companies. LFC’s are often run by former lawyers–some with an investment or hedge fund background. They identify potentially profitable lawsuits and agree to fund the litigation (to a point) in exchange for a percentage of the settlement. Three Geeks and a Law Blog has an interesting multi-part series on this new trend. Read it here.
Andrew Trask, class action attorney at McGuire Woods and co-author of the Class Action Playbook recently put together a list of takeaways explaining how class action defense attorneys can use Wal-mart v. Dukes. His post links to a power point presentation he recently gave at DePaul University. It’s a quick read and worth checking out.
Irregular transaction was not enough to show a Bank had actual knowledge of an alleged Ponzi scheme.
Race to the Bottom contributor Susan Beblavi unpacks the Eleventh Circuit’s semi-recent opinion in Lawrence v. Bank of America, D.C. Docket No. 8:09-cv-02162-VMC-TGW, 2012 LEXIS 777 (11th Cir. Jan. 11, 2012). In that case, putative class action plaintiffs alleged the Bank of America substantially assisted in a Ponzi scheme operated by one of its account holders. The Eleventh Circuit upheld the District court’s dismissal of the case reasoning that even though BOA authorized numerous large transactions by the account holder, the bank wasn’t required to investigate them under Florida law. Moreover, the court found the purported red flags were too weak to infer that it was plausible that the bank had actual knowledge of the alleged scheme. Read more at the link below.
Parens Patriae actions, class actions?
Skaddon’s Russell Jackson posts that the Louisiana Supreme Court has again reversed class certification due to problems of commonality and causation. Previously, the Louisiana high court adopted the U.S. Supreme Court’s common question analysis in Walmart v. Dukes to reverse class certification in Price v. Martin. In a recent per curiam opinion in Alexander v. Norfolk So. Corp., No. 11-C-2793, Slip op. (La. Mar. 9, 2012), the Louisiana Supreme Court cited Price for the proposition that class certification requires a rigorous analysis and significant proof of a common question. The case involved a chemical spill involving train cars. Hundreds complained of a bad smell and irritation to their eyes, throat and nose. This led to a class action that was certified by the trial court and affirmed by an appellate court. It turned out, each putative class member would need individual toxicology testing to determine whether they are among the minority of people who are susceptible to very low levels of the released chemical. The Louisiana Supreme Court ultimately reversed class certification based on the lack of predominance of common issues, and the need for individualized trials. Read more here.
Todd Dawson’s post on Baker Hostetler’s Employment Class Action Blog illustrates just how badly things can go when a key “smoking Howitzer” document slips through defense counsel’s ESI review and ends up in the plaintiffs’ hands. In an FLSA Collective Action, the employer produced two million documents. Prior to the production, the employer’s attorneys used various search terms to identify privileged documents. Inevitably, one got through – a bad one. Even worse, the court concluded that the employer had waived privilege. Thus, not only did the plaintiffs’ counsel get to see the document, they got to use it as well. To see how this disaster could have been avoided, read more here.
Washington State v. Chimei Innolux Corp., No. 11-16862 (9th Cir. Oct. 3, 2011) – joining the Fourth Circuit in holding that a parens patriae action brought by state attorneys general or other state officials for the benefit of the state’s citizens is not a “class action” for the purposes of removal under the Class Action Fairness Act (CAFA).
Klier v. Elf Atochem N. Am., Inc., No. 10-20305 (5th Cir., Sept 27, 2011) – holding in the absence of an express provision in the settlement agreement to the contrary that unclaimed funds should be distributed pro rata to class members who participated in the settlement as opposed to being given to charity as a cy pres distribution. Take note of the concurrence by Judge Edith H. Jones, which makes a strong argument that in the absence of any agreement to the contrary or express waiver of the right to recover unclaimed funds, the equities favor returning those funds to the defendant rather than paying them to the class or distributing them to charity.
Esurance Ins. Co. v. Keeling, No. 11-8018 (7th Cir., Sept. 26, 2011) – holding that when punitive damages are at issue, the correct standard is whether it would be “legally impossible” for the plaintiff to recover an amount of punitive damages that, when combined with the amount of compensatory damages sought, would exceed the $5 million amount in controversy threshold under CAFA, but concluding that it was not legally impossible under Illinois law, even though it was unlikely, that $4.4 million in punitive damages could be awarded in a case where the compensatory damages were slightly more than $600,000.
A great resource for more timely commentary and analysis on recent class action decision in the federal courts of appeals is Alison Frankel’s blog On the Case.

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