And so we come to Dixon v. Ford Motor Co., No. 14–CV–6135 (JMA) (ARL), slip op. (E.D.N.Y. Sept. 30, 2015). Obviously, Dixon isn’t a drug or medical device case. Rather, it’s a class action alleging purely economic loss from the defendant’s alleged sale of cars that let exhaust fumes into the passenger compartment. The absence of any personal injury claims meant that the “no privity” amendment to New York’s UCC didn’t apply. Thus, “Defendant is correct that the general rule in New York is that, absent privity, a plaintiff cannot recover damages for economic loss based upon breach of implied warranty.” Slip op. at 8. Plaintiff, however, dredged up the old Goldberg “thing of danger” exception to privity and claimed that even though not seeking any personal injury damages, the purported potential exposure to exhaust fumes (focusing mostly on carbon monoxide) created a “risk” of injury that implicated Goldberg. Id. at 8.
In interpreting New York law, a federal court sitting in diversity must follow the substantive law set forth by the Court of Appeals. Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity. [S]ee also Day Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (“A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”).
Dixon, slip op. at 8-9 (other citations and quotation marks omitted).
Goldberg, the Dixon decision pointed out, was a personal injury case. Slip op. at 9. Probably due to the amendment to the UCC, “in the more than 50 years since Goldberg was decided, no New York state court has adopted [its] ‘thing of danger’ exception or followed a similar approach in purely economic loss cases.” Slip op. at 9. Rather, “New York state courts have stressed that Goldberg was a personal injury case.” Id. Equally important, “numerous New York state court decisions have rejected economic loss claims based on a lack of privity in situations where the product at issue was clearly dangerous.” Id. (citations omitted). The few contrary federal decisions didn’t offer any reasoning why Goldberg – after going uncited for so long – should be expanded into non-personal injury cases. Therefore, “this Court concludes that, under New York law, there is no ‘thing of danger’ exception to the privity rule for implied warranty claims that involve purely economic loss.” Dixon, slip op. at 10.
Since the same purveyors of no-injury class actions also target our clients with the same sorts of baseless litigation, we thought our readers would like to know about Dixon. Privity doesn’t exist in the prescription medical product realm, so the Dixon reasoning should eliminate such actions in such cases in New York.
There are other aspects of Dixon – express warranty (pp. 5-7), third-party beneficiary (pp. 10-12), Magnuson-Moss (p. 12), and consumer protection (pp. 13-17) – but they’re not very pertinent to drug/device litigation.
We’d like to thank Jeff Yeatman of DLA Piper for sending Dixon to us.
Postscript on things New York related. We’ve probably never linked to a plaintiff-side source before (except to criticize it), but the summary of New York product liability decisions from 2002-2015 – more than 500 cases – available on the Rheingold, Valet website is a valuable resource for anyone (plaintiff or defendant) looking to familiarize him/herself with this body of law. Too bad they don't seem to update it.
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[Drug and Device Law] What To Do About Junk Science That's Published?
An ever-growing chorus of academicians report that with the expanding number of academic journals there is a concomitant increase in the number of articles based on questionable methodology. Many published studies contain improper statistical conclusions, flawed methodology, and results that cannot be replicated. The recent controversy concerning the failure of parents to vaccinate their children because of the recommendations of flawed research exemplifies this crisis. This epidemic of faulty research has been exacerbated recently by the spread of low-quality academic journals and “pay-to-publish” journals, which will publish virtually anything for a fee. This Article provides an analysis of a growing crisis of reliability in scientific research and how the so-called “researchers’ privilege” allows faulty research to go undetected. This Article delineates the reasons why it is difficult, if not impossible, to evaluate published research findings without access to the underlying information that researchers have in their possession. The Article then analyzes the state of the law regarding the ability of researchers to withhold records and data based on the so-called “researchers’ privilege.” Finally, the Article explains why courts should favor the disclosure of research data and that confidentiality concerns should be addressed by a confidentiality order.
[S\ome statistical errors in research publications transcend mere misunderstanding and instead show that researchers manipulate statistical methods to obtain the desired results. Psychologist Uri Simonsohn calls this phenomena “P-hacking,” and others refer to it as “data-dredging, snooping, fishing, significance-chasing and double-dipping.” Statistics defines the P-value as “the probability that an observed positive association could result from random error even if no association were in fact present.” For example, suppose that in an epidemiology study investigating the potential association between the administration of vaccines and the development of side effects, the P-value is 0.05. This P-value indicates that even if the vaccine had no effect, a positive association could be obtained in 5% of the studies due to random-sampling error. Unfortunately, researchers can manipulate this relatively straightforward statistic.
Id. at 9-10 (numerous footnotes omitted). Basically, if somebody applies enough different statistical methods to the same data (or subsets of it), that will increase the likelihood that − purely by random chance − one of those methods will generate a significant result. A proper study sets out its protocol for statistical analysis in advance, so as to preclude after-the-fact massaging of the numbers. However, lousy journals don’t pay attention to this prospective/retrospective distinction.
If you’re into that kind of analysis, you’ll like this article.
The article’s legal recommendation – that attorneys faced with such expert opinions in litigation be able to obtain the data that supposedly supports the conclusions – is something of a two-edged sword. If we can do it (subpoena underlying raw research data) to their experts and their experts’ sources, then the other side can do it to us. Overall, however, since plaintiffs are already seeking, and often receiving, access to our client’s internal clinical trial databases, we probably have more to gain from the demise of any “researcher’s privilege” than we would lose. While all statistical studies have their flaws, we believe that those we rely upon are far more scientifically valid than what the other side has to offer. Full access to the other side’s data (where they have any) should allow us to prove that. In any event, for defense counsel attempting to examine independently the statistical basis of the studies the plaintiff is relying on, the article is also a thorough collection of the precedent in this area.
At minimum, even if the data remain confidential, we need to get our hands on, at least, the protocol and IRB (“institutional review board”) documents. Things like timing of the protocol in relation to when the research started (the p-hacking point already discussed), amendments of the protocol, the power calculations, and the prospectively identified analyses will often reveal if the study results that plaintiffs like really exist, or are the result of statistical legerdemain. This, in particular, is less of a two-edged sword, since manufacturer-funded studies can’t (for FDA reasons, if nothing else) hide this kind of information.
Beyond his article, Dr. Frank just doesn’t quit. In our recent correspondence, he sent us three recent pieces (too recent for his article) that also concern academic fraud in published scientific research: (1) how false statements by research subjects seeking to participate in clinical trials can adversely affect the results, here; (2) a retraction in which the “fabricated results” are admitted, here; and (3) an article about complete fabrication of the peer review process – involving 64 articles in 10 journals – whereby authors wrote “peer reviews” of their own articles using spoofed email addresses, and false identities, here.
We agree that all-too-frequent problems with scientific literature, whether intentional or otherwise justify courts in not permitting researchers to hide their data and methods from independent critique behind newly invented “privileges” of doubtful provenance. The scientific method is based on the process of constant exposure of all theories to rigorous tests of verification and falsification.
Michigan’s Product Liability Act is a thing of beauty. Behold its splendor and majesty: "In a product liability action against a manufacturer or seller, a product that is a drug is not defective or unreasonably dangerous, and the manufacturer or seller is not liable, if the drug was approved for safety and efficacy by the United States food and drug administration, and the drug and its labeling were in compliance with the United States food and drug administration’s approval at the time the drug left the control of the manufacturer or seller." Mich. Comp. Laws § 600.2946(5). Like a supermodel with a mole, the Michigan law possesses an imperfection that almost enhances its beauty. The Act contains two exceptions to this blanket immunity granted to drug manufacturers. First, a drug manufacturer will not be immune if it “intentionally withholds from or misrepresents” information from the FDA, whereas the provision of such information would have either prevented FDA approval to begin with or would have prompted the FDA to withdraw approval. Second, bribery of an FDA official would call off the immunity.
Pennsylvania law is not quite as good. Or let’s put that a different way. If the Michigan law is the Mona Lisa of American product liability law, Pennsylvania’s version is more like an episode of Bowling for Furniture, or a YouTube cat video. Let’s leave it at this: there is a conflict of laws.
We know which law we would apply. And, happily, the Pennsylvania court agreed. Pennsylvania’s choice of law rule combines the approach of the Restatement (Second) on Conflicts of Law and the interests of the state analysis. Michigan was the place of alleged injury for each of these cases. The conduct causing the injury occurred in both Michigan, where the plaintiffs and their prescribing physicians received any misrepresentation regarding Risperdal and where the plaintiffs were prescribed, purchased, ingested and allegedly injured by the drug, and Pennsylvania, where one of the defendants was alleged to have concealed material information regarding the safety of Risperdal. A review of the legislative history of Michigan Products Liability Act shows that it was passed for the express purpose of limiting the liability of drug manufacturers. By contrast – and here we confess to being almost amazed that our local court had such a moment of enlightenment, Pennsylvania has no interest in becoming “a repository for cases filed by Michigan residents seeking to avoid application of the Michigan Products Liability Act.” Even if the Michigan Product Liability Act seems “harsh” (that was the word the Philly court used; we prefer “sound,” “logical,” “lovely,” or “calipygian”) it governs the case of these Michigan plaintiffs.
So, saddled with the law of the jurisdiction where they live, vote, and root for the hapless Lions, the plaintiffs presented three arguments why the Products Liability Act does not apply. First, they argued that Risperdal was not, in fact, approved for safety and efficacy by the FDA because its label did not contain an indication for adolescent use. Second, the plaintiffs argued that they met the first exception to the Products Liability Act because the defendants withheld information from the FDA and a question of fact existed as to whether Risperdal would have been approved, or maintained its approval, if the withheld information had been supplied to the FDA. Finally, the plaintiffs argued that a prior guilty plea by one of the defendants was tantamount to a federal finding of fraud on the FDA.
Each one of those arguments was a swing and a miss – something seen often this season with the surprisingly crummy American League Detroit baseball franchise. First, a physician’s decision to use a pharmaceutical for an “off-label” purpose is not only an acceptable practice, but also “an accepted and necessary corollary of the FDA’s mission to regulate in this area without directly interfering with the practice of medicine.” The “off-label” use did not somehow render the label unapproved. Second, the issue of whether the defendant lied to the FDA in getting its label opens up once more the issue of whether such an exception is preempted by Buckman. The Michigan state courts have not yet addressed the issue of whether § 600.29(5)(a) is preempted by the FDCA. As we have mentioned many times before, the federal courts are split on the preemption issue. The Sixth Circuit, which includes the federal courts in Michigan, decided that § 600.29(5)(a) is implicitly preempted. Garcia v. Wyeth-Ayerst Labs., 385 F.3d 961, 966 (6th Cir., 2004). Conversely, the Second Circuit went the other -- that is, wrong – way. Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2nd Cir., 2007), aff’d by an equally divided court sub nom, Warner-Lambert Co., LLC v. Kent, 552 U.S. 440, 128 S.Ct. 1168 (2008) (per curiam)(4-4 decision).
We wish the Philly court would have come down on the side of Garcia, but it concluded that it did not need to, because (1) there had been no federal finding of fraud, and (2) even if there was a federal finding of fraud, the plaintiffs produced no facts showing that “the drug would not have been approved, or the [FDA] would have withdrawn approval for the drug if the information were accurately submitted.” Indeed, in response to a citizen’s petition, the FDA recently declined to withdraw Risperdal from the market, stating “based on review of clinical data submitted by the sponsor, published literature, and postmarketing surveillance, there is no evidence … that would warrant revocation of the pediatric indication of [Risperdal]."
That leaves the plaintiffs' argument that a November 2013 guilty plea showed fraud. And here we must confess, ala a classic Elmore Leonard story, to withholding a fact that registered a bigger impact upon delayed disclosure. That guilty plea related to promotion of the drug for the treatment of dementia in the elderly. That guilty plea was, in other words, “wholly irrelevant” to the question of whether the defendants submitted accurate information to the FDA concerning the frequency of developing gynecomastia after taking Risperdal during adolescence.
There are one or two other rulings in the case. They are minor characters. Leonard famously issued his Ten Rules for Writing. One of them was “Try to leave out the part that readers skip.” Perhaps we have already violated that rule. This is the punchline: the Philly court did a fine job, it chose the right law, any merit to the plaintiffs’ arguments was out of sight, and the summary judgment in favor of the defendants was entirely justified.
Twice this month we’ve reported on “the saga of Cymbalta plaintiff lawyers who keep pushing the litigation up a hill in an effort to create a class action, mass action, MDL, or whatever will allow them to park as many meritless cases in one place, only to have that litigation roll back down the hill, resulting in crushed toes, directed verdicts, and jury findings of no liability.” Let’s make it a trifecta. Both with our third post and with three more decisions severing the claims of misjoined plaintiffs who have nothing in common except that they each used Cymbalta and they each allege injury. The cases are Jones v. Eli Lilly, 2015 U.S. Dist. LEXIS 141925 (S.D. Ind. Oct. 19, 2015) (15 plaintiffs from 11 states); DeCrane v. Eli Lilly, 2015 U.S. Dist. LEXIS 141924 (S.D. Ind. Oct. 19, 2015) (2 plaintiffs); Boles v. Eli Lilly, 2015 U.S. Dist. LEXIS 141922 (S.D. Ind. Oct. 19, 2015) (19 plaintiffs from 11 states).
the claims of fifteen Plaintiffs from eleven different states whose allegations rest on distinct, unrelated factual scenarios: Cymbalta treatment over fifteen different time periods, presumably in eleven different states, for several different conditions....; use of the medicine under the care of multiple healthcare professionals from a range of medical subspecialties, affiliated with different practices and, potentially, varying degrees of exposure to the relevant product labeling; a host of potential co-medications and comorbidities; and, finally, Plaintiffs' particular discontinuation methods (whether abrupt or tapered over varying lengths of time) which allegedly resulted in a range of symptoms of varying type, severity, and duration.
Jones, 2015 U.S. Dist. LEXIS 141925 at *16-17 (all three decisions are virtually identical, so we cite to Jones throughout).
In response to plaintiffs’ arguments that Lilly’s conduct was the “common issue” permitting joinder of these diverse claims, the court noted that what plaintiffs never said was why these particular plaintiffs were joined together. It appears “claims by people from different states were batched together in haphazard fashion.” Id. at *18 (emphasis added). Plaintiffs had no reason why any particular group of plaintiffs was joined together in a single complaint because there is no reason. See above case description.
The court was never persuaded by any of plaintiffs’ arguments that tried to make Lilly’s conduct “the sun, the moon, and the stars” of the litigation. While some claims may turn on how the product was marketed and sold generally, “the crux of Plaintiffs’ claim – that Lilly’s actions caused injury to them – do not.” Id. at *21. As an example, the court uses allegations of fraud which “likely will not turn on the wording of Lilly’s warning, but rather on whether each Plaintiff’s medical provider – or “learned intermediary” – conveyed that warning to their patient.” Id. Quite right. And because the learned intermediary doctrine comes into play in both fraud and failure to warn claims, the plaintiffs’ individual doctors are the stars of the show. “So, while there may be some occurrences that are common to Plaintiffs’ claims, the key occurrences (here, Plaintiffs’ interactions with their medical providers) will not be common.” Id.
Each Plaintiff will need to show that Lilly's conduct caused his/her injuries, which will require evidence relating to why his/her health care provider prescribed Cymbalta, the nature of his/her health care provider's knowledge regarding withdrawal from Cymbalta, for what medical condition he/she was taking Cymbalta, how much Cymbalta he/she was taking, how long he/she took Cymbalta, and how he/she attempted to discontinue using Cymbalta. These issues are at the very core of those Plaintiffs' claims, require highly individualized inquiries, and are apparent from Plaintiffs' allegations in the Complaint, which include plaintiffs who took Cymbalta for different amounts of time, for different reasons, likely discontinued Cymbalta using different methods and strategies, and suffered different symptoms. These differences make Plaintiffs' claims improper for joinder.
The Court also recognizes that keeping Plaintiffs' claims joined will have little to no positive impact on each Plaintiff, but will be much more convenient for Plaintiffs' counsel. … Plaintiffs' counsel chose to file numerous lawsuits, most with numerous plaintiffs from numerous states, all over the country. The joinder rule does not include convenience to counsel as a consideration. Instead, Plaintiffs' counsel must be prepared to devote the resources needed to effectively litigate each client's claim, and should not file numerous lawsuits on behalf of dozens of clients if unable to do so. Rather than convenience to counsel, the Court is concerned with effectively and efficiently resolving each litigant's controversy.
Id. at *28-29 (emphasis added). Even plaintiffs’ counsel’s arguments that savings to them would be savings that they could pass on to their clients weren’t enough to get the court to overlook the glaring misjoinder problems with these cases. The reality is these cases were brought by a handful of plaintiffs’ lawyers who assumed there would be consolidation of some sort and they don’t have the means (financial or otherwise) to litigate them individually and spread out throughout the country. To this the court said, don’t file what you can’t handle.
whether defendant is willing to bring its witnesses for live testimony at trial.
Id. at *36-37. With only the last factor potentially weighing against transfer, this list looks pretty good. We don’t know where all of the defendant’s witnesses are or what kind of burden that last factor might be, but given the likely benefits of transferring these cases around the country, we sure think it’s worth considering.
We’ll be on the lookout for the transfer decisions to see if this turns out to be the complete trouncing of plaintiffs’ counsel that it should. Who knows, there may be a Cymbalta case headed to your home jurisdiction in the near future.
[Drug and Device Law] Should We Expand the Collateral Source Rule? No Thanks.
But, when plaintiffs try to expand the rule to allow recovery of medical costs that were never actually billed, it’s time to hold the line. That’s exactly what the plaintiff in Hoffman tried to do, seeking to hold the defendant liable for the $1,500 sticker price for an MRI at a hospital and not the $475 discounted price that plaintiff was actually billed. In other words, plaintiff wanted payment for a theoretical bill, not the real one. It wasn’t enough that the defendant pay medical bills that had already been paid once before by plaintiff’s insurer. Plaintiff also wanted the defendant to be liable for an amount higher than the bill. That’s not the purpose of the collateral source rule.
[A]llowing the plaintiff to recover an amount for which he has not paid, and for which he has no obligation to pay, is at cross purposes with the basic principles of tort recovery in our Civil Code. The wrongdoer is responsible only for the damages he or she has caused.
Id. at *4. Nor did it matter to the court that the plaintiff got the MRI price discount through negotiations by his lawyer. Granting an exception for attorney-negotiated discounts would verge on subverting the American Rule that litigants bear their own legal fees and create a quagmire of ethical questions surrounding the arrangements between plaintiff’s lawyers, their clients and medical providers. Id. at *5. There could be too much, how should we say it, collateral damage. Better to simply stop expansion of the rule.


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COMMONWEALTH vs. SAMUEL M. CAZE.
INDICTMENTS found and returned in the Superior Court Department on January 3, 1994.
A pretrial motion to suppress evidence was heard by Barbara A. Dortch-Okara, J., and the cases were tried before her.
IRELAND, J. The defendant, Samuel M. Caze, was convicted of attempted armed robbery and first degree felony-murder after a trial by jury. On appeal, the defendant claims that a confession he made to the police should have been excluded from evidence because the police failed to inform him of his statutory right to use a telephone. G. L. c. 276, s. 33A. We also consider the entire record pursuant to our obligation under G. L. c. 278, s. 33E. We conclude that the evidence obtained from the defendant's confession was merely cumulative. Therefore, even if admission of the confession in evidence was error, it did not affect the verdicts. In addition, our examination of the record reveals no basis for exercising our statutory power to order a new trial or direct the entry of a verdict of a lesser degree of guilt. Thus, we affirm the convictions.
The facts relevant to this appeal are essentially as follows. Derrick Jones, a friend of the defendant, testified that on or about January 28, 1993, the defendant told him that he spoke with Demetrius Salley about committing "an act of crime towards" a McDonald's restaurant located on Route 1A in Walpole. The defendant also mentioned to his then girl friend, Kiet Chandler, that he was thinking of robbing the McDonald's restaurant.
The defendant applied for a job at the McDonald's in May 1993, began working the closing shift on May 19, and quit on May 21. While he was employed there, he learned where the safe was located and how to gain access to the building from the rear. The clean-up and closing employees would routinely prop open the back door while they took out the trash at night.
Late in the evening on May 31, the victim propped open the back door and took the trash out. The defendant and Salley, both wearing masks, were hiding in the area. Salley, who was armed with a gun, grabbed the victim. After a brief struggle, Salley shot the victim in the shoulder. After hearing the shots, the defendant claimed that he turned, jumped over a fence, and ran home. The victim bled to death within one hour.
several witnesses after the incident. Jones testified that the defendant told him that "somebody got seriously hurt, and he didn't know what [Salley] was going to do," and that somebody tried to be a hero. Dennis testified that the defendant told him, "[T]hings went wrong. Things didn't go like they were supposed to," and that "the other dude panicked and stuff and he got shot." He also told Dennis that he was not the shooter. The defendant was convicted of attempted robbery and first degree felony-murder on March 10, 1995.
1. Suppression of the defendant's confession. The defendant argues that, because he was not informed forthwith on his arrival at the police station that he had a right to use the telephone, as required by G. L. c. 276, s. 33A, his statements to the police should have been suppressed. He claims that the police officers' failure to inform him was intentional because the officers who questioned him were very experienced and well aware of his right under the statute. In addition, he asserts that there was a deliberate plan by the officers to keep him psychologically intimidated and without emotional support as evidenced by the length of the interrogation, his isolation, and the fact that he was handcuffed.
Evidence obtained as a result of an "intentional deprivation of a defendant's right to make a telephone call pursuant to G. L. c. 276, s. 33A, should be suppressed." Commonwealth v. Johnson, 422 Mass. 420 , 429 (1996). See Commonwealth v. Jones, 362 Mass. 497 , 502-503 (1972). The statute provides that "[t]he police official in charge of the station. . . shall permit the use of the telephone . . . for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be informed forthwith upon his arrival at such station. . . of his right to so use the telephone, and such use shall be permitted within one hour thereafter."
G. L. c. 276, s. 33A. The purpose of suppressing the evidence is to "make the legislation effective in the absence of an express penalty for a violation." Commonwealth v. Johnson, supra at 429. This rule has not been extended to situations where the police officer's failure to inform was unintentional. Id. See Commonwealth v. Parker, 402 Mass. 333 , 341 (1988), S.C., 412 Mass. 353 (1992), and 420 Mass. 242 (1995); Commonwealth v. Bradshaw, 385 Mass. 244 , 266 (1982); Commonwealth v. Meehan, 377 Mass. 552 , 567-568 (1979), cert. dismissed, 445 U.S. 39 (1980).
In this case, we need not determine whether the deprivation by the police was intentional or not, because it makes no difference. Even if we assume that it was intentional, and determine that the confession should have been suppressed, there is substantial other inculpatory evidence demonstrating the defendant's guilt. See, e.g., Commonwealth v. Semedo, 422 Mass. 716 , 728 (1996); Commonwealth v. Judge, 420 Mass. 433 , 451 (1995); Commonwealth v. Palladino, 346 Mass. 720 , 722-723 (1964). The defendant gave detailed accounts to several witnesses before the incident that he was planning to rob the McDonald's. After the incident, he told several witnesses that he had been involved in the attempted robbery. The defendant's confession to the police provided no new material facts to confessions he made to others. Therefore, admission of the confession in evidence was cumulative and did not affect the outcome of the case. Id. We reach this conclusion only because there was overwhelming evidence independent of the defendant's confession to convict him of the crimes charged. Had this independent evidence not existed, the defendant's claim of a G. L. c. 276, s. 33A, violation would have in all likelihood led to the suppression of the confession and resulted in a new trial.
2. Review under G. L. c. 278, s. 33E. We have examined the entire record and conclude that the interests of justice do not require ordering a new trial or directing the entry of a verdict of a lesser degree of guilt.
[Note 1] Dennis recalled that he had at some point seen the defendant with "an old .380."
[Note 2] The defendant points out that, during the evidentiary hearing, the judge did not mention the failure of the police officers to tell the defendant that he had a statutory right to use a telephone. The judge stated: "The motion to suppress is denied. I find that the defendant was given fully his Miranda rights before questioning, and he understood those rights."
"The evidence indicates that there was no coercion, [and] that the atmosphere was not oppressive. There is nothing to indicate that the defendant was intoxicated or under the influence of alcohol or drugs at the time of questioning. There is no evidence that he was fearful, there is no evidence of any mental disability, or any trickery by the police. Therefore, I find beyond a reasonable doubt that he made a knowing, voluntary, and intelligent waiver of his Miranda rights, and his statements will be admitted."

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Kaup J. J. 1855. Enchelynassa, neue Gattung aus der Familie der Aale. Arch. Naturgeschichte v. 21 (no. 1). 213-214.
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Böhlke E. B. & McCosker J. E. 1982. Monopenchelys, a new eel genus, and redescription of the type species, Uropterygius acutus Parr (Pisces: Muraenidae). Proc. Acad. Nat. Sci. Phila. v. 134. 127-134.
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The Florida Bar's Environmental and Land Use Law Section has posted my column on the environmental and land use cases in Florida that you need to know about in the second quarter of 2012.
North Port Road and Drainage District v. West Villages Improvement District, 82 So. 3d 69 (Fla. 2012), holding that a dependent special district could not make a valid non-ad valorem special assessment on real property that was owned by an independent special district.
Nader v. Florida Department of Highway Safety and Motor Vehicles, - So. 3d -, 37 Fla. L. Weekly S130, 2012 WL 572985 (Fla. Feb. 23, 2012), clarifying that on second-tier certiorari review before a District Court of Appeal, the court's standard of review is the same whether the court is reviewing a circuit court appeal from county court or a first-tier certiorari review before a circuit court. Further, the District Court of Appeal may grant second-tier certiorari relief to quash a circuit court decision that obeyed the controlling precedent of another DCA.
Donovan v. Okaloosa County, - So. 3d -, 37 Fla. L. Weekly S6, 2012 WL 16587 (Fla. Mar. 5, 2012), validating beach renourishment bonds because beach renourishment is a public purpose, and confirming that bonds may be issued before a project has obtained all necessary permits.
Washington County v. Northwest Florida Water Management District, - So. 3d -, 37 Fla. Law Weekly D658, 2012 WL 879284 (Fla. 1st DCA Mar. 16, 2012), explaining that section 373.709, Florida Statutes, allows administrative challenges to water supply plans. In this particular case, however, the appellants lacked standing to challenge the plan.
North Palm Beach v. S&H Foster’s, Inc., 80 So. 3d 433 (Fla. 4th DCA), presenting a case where a tenant could not be grandfathered into zoning ordinance because the landowner had voluntarily annexed the subject property into the municipality. That is, once a property is annexed, it must comply with the ordinances of its new municipality.
Pruitt v. Sands, - So. 3d -, 2012 WL 1317228 (Fla. 4th DCA Apr. 18, 2012), holding that it is not appropriate for a court to defer to a local government’s interpretation of its comprehensive plan. This is different from a situation where a private party brings suit to enforce an ordinance, when a court must defer to the local government’s interpretation of its land development code.
Take a look at past posts for previous cases I've summarized about Florida environmental and land use law. As usual, please get in touch with me about recent cases that others need to know about.

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IN RE: the TRUST OF Violet NELSON, Deceased.
Before Judges Sabatino, Ostrer and Whipple. Chiesa Shahinian & Giantomasi PC, West Orange, attorneys for appellants/cross-respondents Jacob Nelson and Ayelet Nelson, Ariel Nelson and Alexandra Nelson–Tal (A. Ross Pearlson, Daniel D. Barnes and Brigitte M. Gladis, on the briefs). Lorraine Teleky–Petrella, Hackensack, attorney for respondent/cross-appellant Jared M. Lina.
The principal issue in this appeal is whether a trial court may look beyond the apparently plain language of a trust that benefitted the settlor's “grandchildren,” to determine whether the settlor intended to benefit only some of her grandchildren. We conclude a court may. As the trial court here confined itself to the words found within the four corners of the trust, we reverse the grant of partial summary judgment to a claimed beneficiary, and remand for trial.
Jack, the trustee, sought a declaratory judgment that Jacoba's two sons were not included among Violet's “grandchildren.” He maintains that Violet did not consider Jacoba's sons to be her “grandchildren,” because Jacoba married outside their Orthodox Jewish faith. Jack contends that after Jacoba's marriage in 1970, Violet mourned her as if she were dead and cut off contact with her.
That fact and other extrinsic evidence allegedly illuminate the restrictive meaning of “grandchildren” that Jack propounds. The attorney who drafted the trust stated that he understood that Violet did not count Jacoba's children among her grandchildren, nor even acknowledge their existence. He used the word “grandchildren” to include only Jack's and Robert's children. Although Jack and Violet's husband directed the attorney to draft the trust, the attorney said that he reviewed the trust with Violet, explained that only Jack's and Robert's children would benefit, and she understood.
One of Jacoba's sons, Jared Lina, opposed Jack's declaratory judgment action. Jared and his brother first learned the trust existed when its scrivener sent him a letter, asking him to renounce and waive any claim. Jared refused. He contended the trust was clear on its face. He also marshaled competing extrinsic evidence to show that Violet intended to bestow her property on her grandchildren without exception. He presented evidence of the reconciliation between his mother and Violet in 1986. He included letters in which Violet expressed her love for Jacoba and alluded to the role her husband played in the schism between them. Jared also described gatherings involving his branch of the family and Jack's family, to belie the claim that his mother's side was “dead” to the rest of the family. He noted that his mother visited Violet during her final illness.
Jared filed a counterclaim, alleging that Jack breached his fiduciary duty by wrongfully retaining income from the trust after his father died, rather than promptly terminating the trust and distributing the principal and income to the grandchildren. Jared also sought an accounting and appointment of a successor trustee.
After a period of discovery, Jared and Jack filed cross-motions for summary judgment on the trust's interpretation.2 The trial judge determined that Jared and his brother were trust beneficiaries. The court relied solely on the plain meaning of “grandchildren.” The judge concluded that In re Estate of Gabrellian, 372 N.J. Super. 432, 443, 859 A.2d 700 (App Div. 2004), which we discuss below, barred the court from considering extrinsic materials. The judge acknowledged that had he looked beyond the trust's four corners, the evidence would have created a genuine issue of material fact, which would have precluded summary judgment for either side.
The court later denied Jack's subsequent motion to reconsider. Jack contended the court should have applied the New Jersey version of the Uniform Trust Code (NJUTC), L. 2015, c. 276, codified at N.J.S.A. 3B:31–1 to –84, which was enacted while the cross-motions were pending. Jack invoked two sections of the new law that allow a court to construe or reform a trust to conform to a settlor's probable intent. N.J.S.A. 3B:31–31 (Section 31) states, “The court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor's probable intent if it is proved by clear and convincing evidence that there was a mistake of fact or law, whether in expression or inducement.” The following section states, “Nothing in this act shall prevent the court from construing the terms of a trust, even if unambiguous, to conform to the settlor's probable intent.” N.J.S.A. 3B:31–32 (Section 32).
The court held that the NJUTC did not apply because its effective date occurred after the decisions on the cross-motions and the motion to reconsider. See L. 2015, c. 276, § 4 (stating the act shall take effect on the 180th day after enactment). The court was unconvinced that Sections 31 and 32 of the NJUTC applied pursuant to N.J.S.A. 3B:31–84(a)(3). That section states that, except as otherwise provided, the new law “applies to judicial proceedings concerning trusts commenced before its effective date unless the court finds that application of a particular provision ․ would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties ․” Ibid.
The court had earlier denied Jared's motion to dismiss Jack's complaint for lack of standing and to appoint a substitute trustee. In the order denying Jack's motion for reconsideration, the court granted Jared's request for an accounting—the court having determined that Jared, as a recognized beneficiary, had standing to request one. The court also awarded Jared fees.
Jack thereafter appealed from the court's order that found Jared and his brother to be beneficiaries. Jared cross-appealed from the order denying his motion to dismiss and to appoint a substitute trustee.
In considering Jack's appeal from the grant of summary judgment, we review the trial court's order de novo, and employ the same standard as the motion judge under Rule 4:46–2(c). Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329–30, 9 A.3d 882 (2010). We do not quarrel with the trial court's assessment that the evidential materials on file create a genuine issue of fact as to the intended meaning of the term “grandchildren.” But the trial judge concluded the fact issue was not material, as he believed he was bound to apply the plain meaning of the term. As to that legal conclusion, we disagree.
The court's primary goal in interpreting a trust agreement is to fulfill the settlor's intent. “[T]he goal always is the ascertainment of the testator's intent and it is not to be thwarted by unduly stressing ‘the literal meaning’ of his words.” Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 565, 178 A.2d 185 (1962) (quoting Bank of New York v. Black, 26 N.J. 276, 284, 139 A.2d 393 (1958) ). The court may even read a trust or will “contrary to its primary signification” if necessary “to prevent the intention of the testator from being defeated by a mistaken use of language.” Id. at 566, 178 A.2d 185 (citation omitted); see also In re Estate of Branigan, 129 N.J. 324, 331–32, 609 A.2d 431 (1992) (noting that under the doctrine of probable intent the courts have “construed the language of a will in a fashion contrary to its literal, technical, or settled meaning”); Bottomley v. Bottomley, 134 N.J. Eq. 279, 291, 35 A.2d 475 (Ch. 1944) (recognizing judicial power “to effectuate the manifest intent of a testator by inserting omitted words, by altering the collocation of sentences, or even by reading his will directly contrary to its primary signification is well established”).
The Court has acknowledged that in ascertaining intent, its focus really is probable intent. “[W]hen we say we are determining the testator's intent, we mean his probable intent.” Fidelity Union, 36 N.J. at 564, 178 A.2d 185; see also In re Estate of Payne, 186 N.J. 324, 335, 895 A.2d 428 (2006). The Court speaks of “probable intent” because “it is impossible to determine with absolute certainty [the testator's] actual subjective intent.” Morristown Trust Co. v. McCann, 19 N.J. 568, 572, 118 A.2d 16 (1955).
The Court “continue[s] to adhere to the view of the doctrine of probable intent expressed in Fidelity Union.” Payne, 186 N.J. at 335, 895 A.2d 428. The doctrine does not permit a court to “conjure up an interpretation or derive a missing testamentary provision out of whole cloth.” Engle v. Siegel, 74 N.J. 287, 291, 377 A.2d 892 (1977) (quoting In re Estate of Burke, 48 N.J. 50, 64, 222 A.2d 273 (1966) ). However, a court “may, on the basis of the entire will, competent extrinsic evidence and common human impulses strive reasonably to ascertain and carry out what the testator probably intended ․” Ibid. (quoting Burke, 48 N.J. at 64, 222 A.2d 273).
The preponderance-of-the-evidence standard of proof applies to interpretation; however, the more rigorous clear-and-convincing standard of proof applies to reformation. See Fidelity Union, 36 N.J. at 565, 178 A.2d 185 (stating “the object is to ascertain ‘the probable intent’ of the testator by a ‘preponderance of the evidence’ ”); Pivnick v. Beck, 326 N.J. Super. 474, 481, 741 A.2d 655 (App. Div. 1999) (noting that “[r]eformation of trust agreements in probate actions requires clear and convincing proof”), aff'd, 165 N.J. 670, 671, 762 A.2d 653 (2000) (noting “preponderance of evidence to resolve ambiguity in donative instruments; clear and convincing evidence to reform such instruments” (quoting Restatement (Third) of the Law Governing Lawyers § 51 cmt. f (Am. Law Inst. 1998) ) ); see also St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of Camden, 88 N.J. 571, 581, 443 A.2d 1052 (1982) (reformation is proved by clear and convincing evidence); Restatement (Third) Prop. § 10.2, cmt. i; but see In re Estate of Munger, 63 N.J. 514, 521, 309 A.2d 205 (1973) (stating that a court must be “thoroughly convinced” of a testator's probable intent, where the interpretative issue pertained to whether the trustee's power to invest in “securities” included real estate).
With respect to interpretation, our courts have long disapproved the so-called “plain meaning rule,” which bars a court from looking beyond the face of a writing to consider extrinsic evidence in ascertaining intent. “Evidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement. This is so even when the contract on its face is free from ambiguity.” Atlantic N. Airlines v. Schwimmer, 12 N.J. 293, 301, 96 A.2d 652 (1953); see also Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 269, 901 A.2d 341 (2006) (quoting Schwimmer and noting that the Court has long followed Professor Corbin's “expansive view” of a court's interpretative task). “[I]n construing contractual instruments, our courts will broadly search for the probable common intent of the parties, will consider their relations, the attendant circumstances and the objectives they were trying to obtain, and will endeavor to find a reasonable meaning ‘in keeping with the express general purpose.’ ” Fidelity Union, 36 N.J. at 567, 178 A.2d 185 (quoting Tessmar v. Grosner, 23 N.J. 193, 201, 128 A.2d 467 (1957), a contract case). If an ambiguity exists, then resolution of the document's intended meaning is a fact issue. Michaels v. Brookchester, Inc., 26 N.J. 379, 387–88, 140 A.2d 199 (1958).
The Supreme Court held in Wilson v. Flowers, 58 N.J. 250, 263, 277 A.2d 199 (1971), that it does not matter whether an ambiguity was “latent”—that is, discernable only by resort to extrinsic evidence—or “patent”—identifiable on the face of the document. “[I]n deciding whether there is an ambiguity, a court should always admit extrinsic evidence including direct statements of intent since experience teaches that language is so poor an instrument for communication or expression ․” Ibid. Extrinsic evidence shall be considered twice: to determine if there is ambiguity, and, if there is, to resolve it. Ibid.; see also In re Estate of Baker, 297 N.J. Super. 203, 212, 687 A.2d 1047 (App. Div. 1997). If a factual issue remains, the court must conduct an evidentiary hearing. Baker, 297 N.J. Super. at 212–13, 687 A.2d 1047.
“Once the evidence establishes the probable intent of the testator, ‘the court may not refuse to effectuate that intent by indulging in a merely literal reading of the instrument.’ ” Payne, 186 N.J. at 335, 895 A.2d 428 (quoting Wilson, 58 N.J. at 260, 277 A.2d 199). In Wilson, the Court held, based on resort to extrinsic evidence, that a testator's provision that a portion of his residuary trust be dedicated to “philanthropic causes,” meant “charitable causes,” a narrower category. 58 N.J. at 264, 277 A.2d 199.
Against the backdrop of this substantial authority, we cannot endorse the general statement in Gabrellian, 372 N.J. Super. at 443, 859 A.2d 700, upon which the trial court relied (and for which we intend no criticism), that “[t]he doctrine of probable intent is not applicable where the documents are clear on their face and there is no failure of any bequest or provision.” As noted, a court may resort to extrinsic evidence to unveil ambiguity that does not appear on the document's face.
Nor is our Court's long-held resistance to the “plain meaning rule” limited to cases where there is a failure of a bequest. For example, in Branigan, 129 N.J. at 336, 609 A.2d 431, the Court was faced not with a failure of a bequest; just a higher tax bill under laws enacted after the will's execution. Given the testator's overarching intent to reduce tax liability, the Court reformed the terms of a testamentary trust to “derive maximum benefits under the federal estate tax laws.” Id. at 335–36, 609 A.2d 431. See also Payne, 186 N.J. at 338, 895 A.2d 428 (applying probable intent doctrine to interpret a “just debts clause” to require estate to pay off mortgage debt on two properties, where will expressly referred only to one of them).
We should not tolerate interpreting a trust to provide benefits the settlor did not intend. “The claim of an unintended taker is an unjust claim.” Restatement (Third) Prop. § 12.1 cmt. b. In In re Estate of Bonardi, 376 N.J. Super. 508, 517–18, 871 A.2d 103 (App. Div. 2005), the court relied on the trust's text, and extrinsic evidence from the scrivener, to bar “acceleration and termination of [a] trust [that] would have resulted in a distribution to a person other than those intended by the testator.” The settlor's probable intent deserves vindication to bar unintended takers, as well as to protect intended beneficiaries.
In any event, the statement in Gabrellian was unnecessary to its holding. The testator's adult son sought reformation of his father's will. He was not suggesting that any particular word or phrase was ambiguous and should be construed in his favor. Aside from a $625,000 bequest, the will left the father's entire residuary estate, including business assets, to his wife. The son contended that, despite the will's clear language, his father intended to leave him in control of the father's business. 372 N.J. Super. at 440, 859 A.2d 700. The son failed to marshal evidence of his father's purported intent. The court found, “There is nothing to support's [the son's] claim ․ to retain control of his father's businesses.” Id. at 443, 859 A.2d 700.
Jack's principal argument depends on interpretation of the trust's language. He contends the simple word “grandchildren” had a meaning personal to Violet, which excluded Jacoba's sons. Alternatively, he contends that the scrivener made a mistake, by failing to identify the grandchildren Violet intended to benefit; and the trust should be reformed to conform to that intent. In assessing both arguments, the trial court was obliged to consider the extrinsic evidence Jack presented.
We are satisfied that, extending to Jack all favorable inferences, extrinsic evidence demonstrated that “grandchildren,” as the term was used in this trust, was ambiguous. While “grandchildren” generally means “the children of children,” Jack presented evidence that Violet used the term in a different sense, personal to her. “[A] latent ambiguity arises if the donor's personal usage differs from the ordinary meaning of a term used in the text.” Restatement (Third) Prop. § 11.2 cmt. r; see also id., illus. 22 (where extrinsic evidence demonstrated that testator habitually referred to his actual grandchildren as “cousins,” will that left property to “my cousins” could be interpreted to benefit the grandchildren); id. § 14.10 cmt. d (although generally a “term of a relationship in a class gift does not include relatives by marriage,” contrary intention may be demonstrated by “[e]xtrinsic evidence that the donor habitually referred to his or her relatives by marriage as his or her relatives”).
Even if the court as fact-finder is not persuaded that “grandchildren” excluded Jacoba's children, Jack should be allowed to establish that the scrivener made a mistake in using the word, and in drafting the trust without identifying the four grandchildren Violet intended to benefit. That would require reformation of the trust. Jack would bear the burden of demonstrating that general intent by clear and convincing evidence.
Given our disposition, we need not reach Jack's contention that N.J.S.A. 3B:31–31 and –32 of the NJUTC apply pursuant to N.J.S.A. 3B:31–84. Under prior law, as we have described, the trial court was obliged to consider extrinsic evidence.
Finally, Jared's cross-appeal lacks sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(1)(E).
1. The trust delayed distribution to any grandchildren under twenty-one years of age. When Violet executed the trust in 2005, two of the grandchildren fell into that category. Robert's only child was sixteen. The youngest of Jack's three children was nineteen.
2. Jack filed his motion on behalf of himself and his three children as “parties in interest.” All four filed the notice of appeal. However, for convenience, we will refer to appellant as Jack. We note that neither Robert's son, nor Jared's brother Jason, formally participated in the litigation. Jason wrote an email to the trust's scrivener recognizing that Violet never intended to leave him a share. He expressed his willingness to renounce in writing any interest in the trust, provided there were no negative tax consequences to him.
3. Enactment of the NJUTC did not affect N.J.S.A. 3B:3–33.1, which appears consistent with N.J.S.A. 3B:31–31, –32, quoted above.
4. Section 31 of the NJUTC is based on Section 415 of the uniform law. Only the former uses the term “probable intent.” Section 415, by comparison, states: “The court may reform the terms of a trust even if unambiguous, to conform the terms to the settlor's contention if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement.” Uniform Trust Code, § 415.
5. In interpreting an instrument, the court attempts to ascertain actual and specific intent, even if not clearly expressed. In reforming an instrument, the court ascertains actual intent, mistakenly expressed, or inferred intent, that is, what the settlor or testator “probably intended should be the disposition if the present situation developed.” Burke, 48 N.J. at 64, 222 A.2d 273.
6. The New Jersey drafters of the NJUTC stated their intention to preserve existing law pertaining to the doctrine of probable intent. Sponsor's Statement to Assembly Bill No. 2915, at 37 (March 13, 2014). We therefore presume that it did not intend to preclude resort to the preponderance-of-the-evidence standard where discernment of probable intent involves interpretation, not reformation.
7. We recognize that our Court has enunciated a less expansive view of statutory construction. In discharging its responsibility to effectuate the Legislature's intent, a court shall “start with the plain language of the statute. If it clearly reveals the Legislature's intent, the inquiry is over.” State v. Harper, 229 N.J. 228, 237, 160 A.3d 1281 (2017); see also In re Kollman, 210 N.J. 557, 568, 46 A.3d 1247 (2012) (“If the plain language is clear, the court's task is complete.”). Whether this represents a shift in our jurisprudence, we need not say. Compare Fidelity, 36 N.J. at 568, 178 A.2d 185 (stating, regarding statutory construction, that “when the probable intent is made manifest, any language which may read literally to the contrary must give way”). Our modern Court has not hesitated to look beyond the apparently plain meaning of a statute when it “would lead to absurd results,” Harper, 229 N.J. at 237, 160 A.3d 1281, or violate “the overall statutory scheme.” DiProspero v. Penn, 183 N.J. 477, 493, 874 A.2d 1039 (2005). In any event, a stronger case can be made for applying the “expansive view” to interpreting donative instruments, because one is ascertaining the intent of a single donor; and, unlike a Legislature that can correct its own mistakes, a donor is often unable to correct or refine the expression of his or her intent. See Restatement (Third) Prop. § 12.1, Reporter's Note 5 to cmt. d.
8. Although the scrivener here stated he used “grandchildren” to conform to Violet's personal sense of the term, use of a professional scrivener may tend to counter evidence of personal usage. Restatement (Third) Prop. § 1.2 cmt. r. Also, although a scrivener may relate objective manifestations of a settlor's intent, such as statements and conversations with the settlor, In re Trust Created by Agreement, 194 N.J. at 282, 944 A.2d 588, and the scrivener's own “rationale for selecting certain language,” id. at 285, 944 A.2d 588, a scrivener may not offer a lay opinion about a settlor's “unspoken thought processes,” id. at 283, 944 A.2d 588.
9. For example, although Jack relies on Violet's explicit exclusion of Jacoba's children in her will as evidence of a similar intention in the trust, the omission of such an explicit exclusion in the trust may instead reflect her intent to include all the children of her children.

matches: § 4 v. v. v. v. v. v. v. § 51 v. § 10 v. v. v. v. v. § 12 § 11 § 14 § 415 v. v. § 12 § 1


Michael Di Re was convicted on a charge of knowingly possessing counterfeit gasoline ration coupons in violation of § 301 of the Second War Powers Act, 1942. 1 The decisive evidence was that obtained by search of his person, after he was arrested without a warrant of any kind. The Circuit Court of Appeals, Second Circuit, 159 F.2d 818, considered that any question as to the timeliness of his objection to this evidence was eliminated by its disposition on its merits by the District Court, and, one judge dissenting, it held both his search and arrest to have been illegal. The Government was granted certiorari, 2 raising no question other than the correctness of the holding by the Court of Appeals that the evidence was the fruit of an illegal arrest and search.
The belief that an automobile is more vulnerable to search without warrant than is other property has its source in the decision of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. That search was made and its validity was upheld under the search and seizure provisions enacted for enforcemen of the National Prohibition Act and of that Act alone. Transportation of liquor in violation of that Act subjected first the liquor, and then the vehicle in which it was found, to seizure and confiscation, and the person 'in charge thereof' to arrest. 4 The Court reviewed the legislative history of enforcement legislation and concluded (267 U.S. at page 147, 45 S.Ct. at page 283), 'The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in 5 the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is. The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.' The progeny of the Carroll case likewise dealt with searches and seizures under this Act. Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629, 74 A.L.R. 1407.
Some members of this Court rest their conclusion that the arrest was invalid on § 180 of the New York Code of Criminal Procedure which requires an officer making an arrest without a warrant to inform the suspect of the cause of arrest, except when it is made during commission of the crime or when in pursuit after an escape. 6 This question was first raised from the Bench during argument in this Court. Di Re did not assert this ground of invalidity at the trial. Had he done so the Government might have met it with proof of circumstances which in themselves would show that Di Re had been effectively informed, even if the circumstances fell short of establishing the statutory exception. The proceedings below did not develop the facts concerning Di Re's arrest in connection with this requirement. Inasmuch as the issue would lead to exploration of the law as to waiver when the defense was not raised in either court below, or indeed by the petition here, and as to applicability of he statute if, as the Government contends, lack of express declaration was unnecessary because circumstances supplied the required information, we do not undertake to determine on this record whether Di Re's arrest satisfied this provision of the New York law.
We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.' 8 There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest.
In denouncing unlawful search by federal officers as a misdemeanor, Congress provided that it should not apply to one 'arresting or attempting to arrest any person committing or attempting to commit an offense in the presence of such officer, agent or employee, or who has committed, or who is suspected on reasonable grounds of having committed, a felony.' 12 Thus the legislative sources, while yielding some common provisions, also contain many inconsistencies. No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall.
The Act of September 24, 1789 (Ch. 20, § 33, 1 Stat. 91), concerning arrest with warrant, provided: 'That for any crime or offence against the United States, the offender may, by any justice or judge of the United States, or by any justice of the peace, or other magistrate of any of the United States where he may be found agreeably to the usual mode of process against offenders in such state, and at the expense of the United States, be arrested, and imprisoned or bailed, as the cae may be, for trial before such court of the United States as by this act has cognizance of the offence.' This provision has remained substantially similar to this day. 18 U.S.C. 591, 18 U.S.C.A. § 591. See also 1 Ops.Atty.Gen. 85, 86.
48 Stat. 1008, 49 Stat. 77, 5 U.S.C. 300a, 5 U.S.C.A. § 300a.
49 Stat. 378, 28 U.S.C. 504a, 28 U.S.C.A. § 504a.
1 Stat. 425, 12 Stat. 282, 28 U.S.C. 504, 28 U.S.C.A. § 504.
49 Stat. 877, 18 U.S.C. 53a, 18 U.S.C.A. § 53a.
18 U.S.C. 88, 18 U.S.C.A. § 88.
18 U.S.C. 72, 18 U.S.C.A. § 72.


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The Awad case does not represent an exception allowing tort claims in Claims Court. It does not address that circumstance. It addresses the opposite issue, whether a contract case that the plaintiff brought also had tort claims that could be litigated in district court. The problem the courts face is determining what the real cause of action is: a contract claim, a tort claim, or whether there are both independent tort and contract claims. As the Awad case points out, if the duty that gives rise to the claim is a contractual one, then the case is really a contract case not withstanding that the reason the defendant breached the contract is because he or she did the performance called for in the contract negligently. And if it is a contract claim against the government then it has to go to the Court of Claims. The rule in the case law is clear and reinforces the statute: tort cases cannot be brought in the Court of Claims. "The limited statutory jurisdiction of the court cannot be expended beyond the bounds established by Congress. Soriano v. United States, 352 U.S. 270, 273, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Carney v. United States, 462 F.2d 1142, 1144, 199 Ct.Cl. 160, 162 (1972). The court specifically lacks jurisdiction in cases sounding in tort. Somali Development Bank v. United States, 508 F.2d 817, 205 Ct.Cl. 741 (1974)." Tree Farm Dev. Corp. v. United States, 585 F.2d 493, 498 (Ct. Cl. 1978). Consider the case of King v. United States, That case is a curious one in that the Court of Claims decided that it had the power to hear declaratory judgments involving contract claims. On the face of it, that seemed reasonable since all a declaratory judgment involves is basically an advance determination of whether a particular situation would breach the contract, and the Claims Court has jurisdiction over contract claims. But on appeal, the U.S. Supreme Court rejected that expansion of the Claims Court jurisdiction, saying that for the Claims Court to have jurisdiction, that jurisdiction must be expressly stated in the statute: United States v. King, 395 U.S. 1, 4–5, 89 S. Ct. 1501, 1502–03, 23 L. Ed. 2d 52 (1969). Based on the holding there, in order for the Claims Court to hear a tort case, the statute must expressly provide for that. It doesn't, and thus exceptions allowing tort claims to be brought would not be allowed. The Supreme Court did not reverse another part of the King case, however, that speaks to a common rule regarding jurisdiction in that court — one cannot get into Claims Court by refashioning the claim as one that is permitted in the Claims Court: "Claimants with tort claims against the Government, or other causes of actions over which we have no power, cannot evade the subject-matter limitations on our jurisdiction by refashioning their actions in the terms of a declaratory proceeding." King v. United States, 390 F.2d 894, 909 (Ct. Cl. 1968), rev'd on other grounds, 395 U.S. 1, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969). Remember, at the time the court made this statement it had held it had jurisdiction to hear declaratory relief cases. So the statement can be understand to mean more generally that one cannot get into the Court of Claims by refashioning a tort claim to be a claim that the court could hear, like a contract case. So it is not about an exception to the tort rule. It is about looking under the claims as plead to determine what the real cause of action is. If it's a tort claim, it cannot be brought in the Court of Claims. If it is a contract claim against the federal government, it cannot be brought in district court.
The employer must pay you for all the time you work. Under California law, the employer must reimburse you for all expenses you incur in doing your work. Apart from that, I see nothing in your post that is illegal. What the employer is asking for may be annoying, frustrating, and pointless for you to do, and seems to me to be poor management. Unfortunately for you though, poor management is not illegal.
Title 2 of what? What decision is it exactly that you want to appeal and what agency/organization made that decision? In what state are you located? A little explanation of what happened and what you want to appeal would help people to give you some useful information.
I don't have the details as to why you are getting paid a share of the sale proceeds when you weren't on the title, and that might make a difference here. But assuming that you were an equitable owner of the property and inherited your interest in the property 20 years ago that is clearly a long term capital gain. For a single person with total income (including the $7,500 from the sale) of less than $38,600 your tax rate on the long term capital gain is indeed zero percent. Your gain is probably less than $7,500 because you subtract from what you got in the sale your share of the basis in the land. That basis would be your share of what the property was worth when your parent died 20 years ago. You may have some tax to pay to Mississippi though.
Yes. Being on a property owned or controlled by the federal government does not exempt you from all state laws. For example, if Fred shoots and kills Barney on the steps of a federal courthouse the state may certainly prosecute Fred for that homicide. Of course the exact charges matter. In any event, the state would need sufficient evidence to bring the case. If it is literally true that there is no evidence against you then the state would not bring charges either. However, if the issue is that there is evidence but that the feds just didn't feel it was enough to go forward or the act you committed was not a federal crime then it is possible that the state might take a different view of the evidence and charge you if what you are alleged to have done is a state crime.
You will need to report the gain (or loss) on returns in both Tennessee and California for this. But you will get a credit on your California return for the tax paid to Tennessee.
Actually, the U.S. Polo Association lost several cases of trademark infringement brought by PRL. The result of that litigation was that the Association either had to license its marks from PRL or change them as directed by the Court. The Court, in the sale of clothing, stated that the the Association could use its full name on its merchandise, i.e. U.S. Polo Association or USPA, without emphasizing the term POLO. The Association logo had to be redesigned to be more distinct from the PRL logo, too. So if you look at the merchandise sold today, you see it with either the full name of the association or USPA. It does not use the name POLO alone nor does it make the word POLO stand out from the rest of the words in its name. The USPA had the benefit of being associated with the sport of polo and a recognized name in the sport that allows the public to readily distinguish it from PRL. That may have been a factor in the court allowing the USPA to use the word polo at all with clothing merchandise. Before you try using the word POLO in your marketing, I would strongly recommend you consult a trademark attorney. PRL has shown it is willing to litigate to protect its trademark, even against organizations with some significant resources. Should you market clothing with the word polo in it, you may well find yourself in PRL's sights. The litigation, even if you could win, would be very expensive. And, just like the USPA, you might well lose the case with the result that you would owe damages for infringement and have an injunction against you prohibiting further use of the mark. That would force you to adopt a different mark. Why not develop a completely different mark that does not use the word polo? That would be a stronger mark for you and would eliminate the problem of potential trademark infringement claims by PRL. The only reason I can see you wanting to use the word polo is to trade off the reputation PRL has built, and that's the very thing that gets you into trademark infringement problems. If your clothing is good, it will sell without having to piggyback off the Polo name.
That is what the rule says. For most motions the reply is due 10 days after the moving party has served it on the responding party but the court may by order shorten or extend the time for reply. You linked this question with the timing question and I'm not seeing what the timing has to do with this issue. However, generally the reply to the supplemental brief is limited to the issues raised in the supplemental brief that was filed. If the responding party exceeds the scope of the supplemental brief the moving party may file a motion to strike the parts of the reply that exceed the scope. As an example, see this footnote from a case in the 3rd Circuit: Sharp v. Johnson, 669 F.3d 144, 153 FN 13 (3d Cir. 2012). As it is the court setting the deadlines it what that order says that matters. If the court gives specific dates for filing the brief and reply, then no matter when the moving party files his brief (so long as it is timely, of course) the responding party still has until the date the court specified to file his reply. So in your example if the order literally says "appellee's response brief is due to be filed in this court by June 8, 2019" then the appellee has until that date to file, even if the appellant filed his brief early. If instead the court specifies number of days, then the result is different. For example, if the order says "appellee's response brief is due to be filed in this court 30 day after appellee is served with appellants brief" then the date that the appellant files his brief starts the 30 days that appellee has to respond. In short, the precise language of the order matters in how the deadlines play out.
You're right, it is not a matter of federal law. In Florida, it is Chapter 743 of the Florida Statutes that covers emancipation (though that word does not explictly appear in the statutes). As you will see, nothing in those statutes provides that enlistment in the military automatically results in emancipation.
The details count. What do you mean by "shared"? Do they both own the residence, or does he own the residence by himself but they both live there? Why is he the only beneficiary of the trust? Has she agreed to the transfer? In general if she has some legal interest in the residence and he uses his power of attorney to effectively transfer that interest to himself without her knowledge and consent then that self-dealing will create a presumption of a conflict of interest and expose him to possible breach of fiduciary claims. This is something he'd really want to get advice from a Colorado attorney before he does it.
Your argument would be that Colorado issued the last license and thus triggers the 5 year period. Read literally that section would allow the state to issue the license, but does not require the state to issue the license. If the the state law prohibits the department from issuing a license if a person has those convictions then it cannot issue the license. You have the further problem that you are not a resident of Michigan and it will not issue you a license unless you are a resident of that state. So unless you are resident of that state trying to get the state to issue you a license will do you no good. What you need to do is get the suspension or revocation cleared.
You didn't say in what state the house is located. But since they are month-to-month, all you need to do is serve them with the notice that state law requires, making sure it is done to give them the minimum number of days state law requires and is delivered in the manner state law requires. Then if they are not out by the day after that period expires, go to court to start eviction proceedings. The estate personal representative should see an attorney in the state where the home is located who handles eviction actions for landlords. The sooner you get started the sooner you get them out. And if they stop paying rent on time, serve the shorter notice period, in many states just 3 days, that the law provides when tenants are not paying rent. I'd have laughed in their face if they made the request to me for $50,000. That's just ludicrous.
There are two federal laws that impact credit card loans and billing, the Truth-in-Lending Act (TILA) and the federal CARD Act. Those laws and the related regulations issued by the Federal Trade Commission (FTC) and Consumer Financial Protection Board (CFPB) require that when several different rates apply to your credit card balance (say one rate for purchases and another for cash advances) that the payments apply first to the highest rate balances. Under those rules there also needs to be a disclosure on the billing statement about when any deferred interest rate period ends. So the billing statements should have told you when the deferred interest on this purchase was going to end. See the CFPB page on interest free period  purchases. The way the JCP deferred interest programs typically work is spelled out in the card agreement, a copy of which you would have been sent upon opening the account. What happens is the purchase is interest free so long as you fully pay the entire balance off before the interest free period ends — in your case, that was 2 years. If you don't pay off the balance before that period ends, the bank then charges you all the interest that accrued on the purchase during that two years. Currently the rate of interest they use is 27.99%, very high, so it's critical you keep track of when that two years is coming up and ensure it is completely paid off before that date. Note that if you make other purchases to the account, payments you make during the two years are going to go to those other purchases first since during those two years they are generating more interest. So if you start buying stuff that you aren't paying off in full every month you pay a ton in interest and your payments never go to the interest free purchase either. With card accounts like this, you want to pay the bill for other purchases in full each month and make sure that the interest free period purchase is paid for well before that period ends. Otherwise you end up paying a lot in interest, likely far more than you'd pay on other credit arrangements. It's up to you to protect yourself so you don't overpay. Jewelry bought at most retail places, and especially department stores, tends to be hugely marked up and sold for a lot more than it is worth. If you tried to sell them now, you're likely to find that you'd only a get a fraction of what you paid for them. Buy them if you like them and will wear them, and can afford them, but don't think they are any kind of investment.
Assuming that the statute of limitations to prosecute you for the offense has not expired you certainly could be arrested and charged with the crime. That's true whether you make the admission in your book or not, but of course that admission in your book could be used against you in the prosecution. Consult a lawyer to review the book and any admissions in it prior to distributing it. I would advise my clients to never admit to any crime in a book whether or not the statute of limitations is closed. The admissions might still be used in civil proceedings or might be used against you in some other manner either now or in the future.
Because no law requires the police department investigate and make arrests in every complaint made to it, even if the complaint might have merit. There are lots of factors that could lead the police and/or prosecutor to refuse the case. The evidence may not be strong. They may not have the resources to pursue it given the other cases they have. They may conclude that criminal prosecution is simply not justified given the facts; they may see a civil remedy as most appropriate. And these are just some of the reasons that the police and prosecutor may have for not pursuing something.
You did not indicate the state, and that will matter here. The problem is that in at least most states (and probably all states) she'd have very little in damages for which she could sue. The employee owed the tax to the federal government (and state, if the withholding problem affected state withholding) the same amount of tax either way. The only thing that the employer's actions did was not deduct as much of that tax from the employee's wages as the employee wanted. Thus, the employee got that extra money in her pay check. As a result, she wasn't shorted any money out this. It just amounts to a timing issue. Without a financial loss, there is nothing for which to sue. The one possibility I could see is that the employee might have a claim to get back any penalty she had to pay for underwithholding. However, that penalty is likely to be pretty small in absolute dollar terms. Would it be worth it to her to sue her employer over what might be a few hundred dollars in penalty at the risk of ticking off that employer and getting fired? There is also the issue that the court may well say the underwithholding penalty is on the employee since the employee should look at what is actually being withheld and determine if that will be enough to cover her tax liability. She should not rely on the employer getting the W-4 change input. She should look at the amount withheld afterwards to ensure that the tax withheld will be enough. Too many employees never really look at the deductions from their pay and it costs them when they fail to detect problems early.
The victims do not have that right under federal law, including FERPA. Any such right would have to be provided by state law. It is important to understand what FERPA is about. It is a law that prohibits schools from disclosing student information to others without the student's consent (or if the student is a minor, without the consent of the student's parents). There are some exceptions that allow a school to release the records of student without consent. One of those exceptions allows a school to disclose certain records of discipline taken against a student. Where that student committed an act of violence against another student, the law allows the school to inform the victim of what discipline was taken. The key point is that it allows the school to make the disclosure. FERPA does not require the disclosure. What this means is that the school may release that information without violating FERPA if it chooses to do that. But if it chooses not to do that, there is nothing in FERPA that will force the school to do it. For the school to be forced to do it there must be a state law that requires the school to make that disclosure. As you did not mention the state I cannot tell you if there if there is any kind of requirement for that in your state.
Simply the fact that he had a mental illness does NOT make a will invalid. Lots of people have various degrees of mental illness and can make valid wills. Only if his mental state was such that he truly lacked the capacity to make a will would the will be invalid. If the state of probate is Nevada, then the standard for capacity is this: Matter of Blanchard, No. 67099, 2016 WL 3584702, at *4 (Nev. App. June 16, 2016). That's a standard that a lot of states use. Put in more plain English, he had the capacity to make a will if at the time he signed it he could do the following: 1. Tell you that the document he was signing was a will that will distribute his property to others after he dies; 2. Tell you generally what kind of property he owned; and 3. Tell you who his close relatives are. If he could do those 3 basic things when he signed the will then you won't get the will invalidated because of his mental state.
The fact that he died in Mexico does not make his will invalid. Contesting a will on the grounds of mental illness is not a proper grounds for a contest. A contest can be done on the grounds that the person lacked the capacity to make a will. The capacity to make a will does not require a whole lot. A person can have a mental illness and still be competent to make a will. So I think you'll need more than just those e-mails to prove that he was incompetent. As pg1067 suggested you should see a probate attorney in the state where he resided at the time of his death (that he died while visiting Mexico does not make Mexico his place of residence). Also, will contests can get expensive. How much money is in those bank accounts?
A small company (one employing less than 50 people) can fire everyone at any time with no advance notice required.

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Willa V. Ford, Appellant, v. Frederick L. Ford, et al., Appellees, & Todd & Sheppard Partners LLC, Intervenor.
Before Beckwith and Easterly,Associate Judges, and Nebeker, Senior Judge. James M. Loots was on the brief for appellant. Darryl F. White was on the brief for appellees. Carrie Frank was on the brief for intervenor.
Appellant Willa V. Ford challenges the trial court's order of a partition sale for the property located at 1801 Massachusetts Avenue, Southeast, with the proceeds to be distributed evenly among Willa Ford and her four siblings, who include the three appellees.1 On appeal, Willa Ford argues that the trial court erred in granting partition and in awarding appellees proceeds from the sale because the evidence was insufficient to demonstrate that all of the appellees were owners of the property. We affirm the order of a partition sale, but reverse the order of distribution and remand for a redetermination of who owns the property.
The trial court issued a default judgment against Willa Ford that was docketed on September 21, 2012, because she failed to respond to the complaint in the time specified. She argued for the first time at an ex parte proof hearing held on October 19, 2012, that partition should not be granted. At the hearing, however, Willa Ford also conceded that her brother's name, Frederick Ford, was on the deed to the property in addition to her name. Accordingly, because Willa Ford was not the sole owner of the property, the court did not err in ordering partition.2 See Arthur v. District of Columbia, 857 A.2d 473, 487 (D.C.2004) (“[A] cotenant enjoys a unilateral right of partition.”).
The trial court's finding that all five siblings owned the property, however, was not supported by sufficient evidence in the record. In determining ownership, the trial judge relied upon two documents: (1) a 2007 “Real Property Recordation and Transfer Tax Form FP 7/C,” which listed all siblings except for Robert Ford as “grantees” of the property, and (2) their mother's 1998 will, in which she indicated that she wished to leave a life estate in the property to Willa Ford, Ernest Ford, and Harold Ford, with the remainder to all five children. But the tax form is merely a tax return and, unlike a deed, it does not operate to grant or transfer title to land. Moreover, the 2002 deed to the property, which plaintiffs had attached to their complaint, indicates that the mother added Frederick Ford to the deed to establish a joint ownership before she died. Thus, Willa Ford argues on appeal that upon the mother's death in 2004, Frederick Ford became the surviving joint tenant and sole owner of the property. Therefore, the property was no longer subject to the mother's will and could not be inherited by the other siblings. See Gallimore v. Washington, 666 A.2d 1200, 1203–04 (D.C.1995) (“[U]pon the death of one of two joint tenants, there is no transfer of the decedent's future interest to the survivor; rather, the future interest of the deceased ceases to exist, the threat of severance by the other joint tenant is eliminated, and the present interest of the surviving joint tenant in the whole property becomes exclusive.” (citation omitted)). Willa Ford also includes in the record on appeal the probate docket for her mother's will, to support the argument that her siblings did not inherit the property because it was not part of the probate proceedings. The record shows that Frederick Ford then added Willa Ford – but no one else – to the deed as a joint owner in 2007.
FN1. The appellees here are Frederick L. Ford, Robert A. Ford, and Ernest B. Ford. The trial court also awarded sale proceeds to their brother, Harold Ford, after determining that all five siblings owned the property, even though Harold was not named as a plaintiff.. FN1. The appellees here are Frederick L. Ford, Robert A. Ford, and Ernest B. Ford. The trial court also awarded sale proceeds to their brother, Harold Ford, after determining that all five siblings owned the property, even though Harold was not named as a plaintiff.
FN2. As we have previously noted, “ ‘the right to partition, while normally an integral part of the cotenancy form of ownership, is like most property rights subject to possible limitation by voluntary act of the parties or in its initial creation.’ ” Arthur, 857 A.2d at 487 (quoting Carter v. Carter, 516 A.2d 917, 921 (D.C.1986)). But we see no such limitation in this case.. FN2. As we have previously noted, “ ‘the right to partition, while normally an integral part of the cotenancy form of ownership, is like most property rights subject to possible limitation by voluntary act of the parties or in its initial creation.’ ” Arthur, 857 A.2d at 487 (quoting Carter v. Carter, 516 A.2d 917, 921 (D.C.1986)). But we see no such limitation in this case.
FN3. On appeal, Willa Ford also asserts that the trial court erred in failing to dismiss the case under Superior Court Rule 4(m) for failure to prove service within 60 days of filing the complaint. Plaintiffs filed their complaint on February 14, 2012, and on March 6, 2012, filed an affidavit stating that the summons had been mailed to Willa Ford. The signature on the return receipt, however, had been crossed out and the word “REFUSED” had been written on the receipt. On April 19, 2012, the trial court denied default against Willa Ford pursuant to Rule 55(a), and directed the plaintiffs to “[f]ile a motion for approval of service” by May 24, 2012. Plaintiffs' then-counsel later filed a motion to withdraw as counsel on May 2, 2012, following which the trial judge ordered a hearing on the motion to be held on May 25, 2012. At the hearing, the trial judge noted that the summons had not been properly served and granted the plaintiffs 30 additional days to effect service. Plaintiffs then filed an affidavit of service on June 5, 2012, which stated that Willa Ford had been served on June 3, 2012. Although failure to prove service within 60 days typically results in automatic dismissal of the case under Rule 4(m), the trial court “shall” extend the 60–day time period if warranted by the circumstances, and may also vacate dismissal within 14 days upon a showing of good cause under Rule 41(b). Accordingly, the trial judge through its April 19 and May 25 orders properly extended the time period for plaintiffs to effect and prove service.. FN3. On appeal, Willa Ford also asserts that the trial court erred in failing to dismiss the case under Superior Court Rule 4(m) for failure to prove service within 60 days of filing the complaint. Plaintiffs filed their complaint on February 14, 2012, and on March 6, 2012, filed an affidavit stating that the summons had been mailed to Willa Ford. The signature on the return receipt, however, had been crossed out and the word “REFUSED” had been written on the receipt. On April 19, 2012, the trial court denied default against Willa Ford pursuant to Rule 55(a), and directed the plaintiffs to “[f]ile a motion for approval of service” by May 24, 2012. Plaintiffs' then-counsel later filed a motion to withdraw as counsel on May 2, 2012, following which the trial judge ordered a hearing on the motion to be held on May 25, 2012. At the hearing, the trial judge noted that the summons had not been properly served and granted the plaintiffs 30 additional days to effect service. Plaintiffs then filed an affidavit of service on June 5, 2012, which stated that Willa Ford had been served on June 3, 2012. Although failure to prove service within 60 days typically results in automatic dismissal of the case under Rule 4(m), the trial court “shall” extend the 60–day time period if warranted by the circumstances, and may also vacate dismissal within 14 days upon a showing of good cause under Rule 41(b). Accordingly, the trial judge through its April 19 and May 25 orders properly extended the time period for plaintiffs to effect and prove service.

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On March 9, 2016, both the Southern District of New York and the Central District of California awarded attorneys’ fees to defendants in two separate disputes after they successfully moved for summary judgment on the plaintiffs’ respective copyright claims. The New York case involved the Beastie Boys (and related parties), UMG, and Capital Records, while the California case involved the makers of the hit TV show New Girl, including Fox (and related parties) and WME.
17 U.S.C. § 505. Both courts applied the “nonexclusive factors” set forth by the Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 14 (1994) in deciding to award attorneys’ fees. Those factors include the degree of success obtained on the claim, frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case), and the need in particular circumstances to advance considerations of compensation and deterrence. Id. at 534. The New York court focused heavily on the objectionable unreasonableness of the plaintiff’s suit, while the California court – analyzing each factor in turn – found that the majority of factors weighed in favor of awarding defendants their attorneys’ fees.
In determining the amount of fees to award, both courts applied the “lodestar approach,” which multiplies the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). It was the defendants’ burden to establish that their fees were reasonable, including that their hourly rates were reasonable when compared to the prevailing market rates in their communities. See, e.g., Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).
Sought: 1,155.4 hours of billable work. Awarded: 1039.86 hours, deducted by 5% for block billing with “considerable detail” and 5% for duplication of effort with UMG and Capital Records’ counsel.
Sought and awarded hourly rates of $678.23 and $675 for partners.
Sought and awarded hourly rate of $560 for associate that had been with the firm since 2005.
Total approved fees: $591,274.79. The Court also approved $11,553.29 in costs.
Sought: 464.6 hours of billable work. Awarded: 394.91 hours, deducted by 10% for block billing with fewer details and 5% for duplication of effort with the Beastie Boys’ counsel.
Sought and awarded hourly rates of $715.44, $572.71 and $476.17 for the primary attorneys on the case. The court’s opinion did not specify whether these attorneys were partners.
Total approved fees: $207,367.65. The Court approved an additional $27,302.60 for those fees incurred in preparing the motion for fees, with the same deductions and reduced rates applied. The Court approved $8,098.90 in costs.
Sought and awarded discounted hourly rates of $701.25 and $552.50 for partners.
Sought and awarded discounted hourly rates of $488.75, $466.25, and $340 for associates.
Sought and awarded hourly rates ranging from $500 to $650 for partners.
Sought and awarded an hourly rate of $375 for an associate.
In short, two separate March 9, 2016 decisions in California and New York federal courts have showcased the courts’ willingness to award fees to defendants that prevail against copyright infringement claims. This is consistent the Gilbert v. New Line Productions, Inc., et al. opinion from 2010, where the Central District of California awarded the defendants $801,130 in attorneys’ fees and $14,571 in costs, which was approved by the Ninth Circuit. See Gilbert v. New Line Prods., Inc., No. CV 09-02231-RGK RZ40, 2010 WL 5790688 (C.D. Cal. Dec. 6, 2010) aff’d in part, vacated in part, remanded, 490 F. App’x 34 (9th Cir. 2012); Gilbert v. New Line Prods., Inc., No. CV 09-02231-RGK RZ, 2013 WL 653967 (C.D. Cal. Feb. 20, 2013).