Arizona Supreme Court Rules Tattoos and Tattooing are Protected Speech

Posted on September 11, 2012 | Leave a comment

In an earlier November post, we noted that in Coleman v. City of Mesa the Arizona Court of Appeals held that tattoos and tattooing are protected speech. That decision was subsequently appealed to the Arizona Supreme Court. Late last week, the Arizona Supreme Court essentially upheld the result of the earlier court of appeals decision by ruling that tattoos and tattooing are protected speech. With this decision, the Arizona Supreme Court began the first state high court to rule that tattoos and tattooing are protected speech.

In reaching its decision ,the Arizona Supreme Court – like the court of appeals – cited with approval Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1060 (9th Cir. 2010). The Arizona Supreme Court also reversed the Maricopa County Superior Court’s dismissal of a complaint filed by Ryan and Laetitia Coleman against the City of Mesa for denying the Coleman’s request for a permit to operate a tattoo parlor within the city.

Nonetheless, the Arizona Supreme Court vacated the earlier court of appeals decision on technical grounds. The high court ruled that the court of appeals incorrectly applied strict scrutiny to due process and equal protection claims involving the First Amendment. Instead, the high court explained that the due process and equal protection claims involving the First Amendment should only be subject to intermediate scrutiny when the underlying First Amendment claim (the City of Mesa’s regulation of tattooing) is subject to intermediate scrutiny.

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Delaware High Court Upholds $300M Attorneys’ Fee Award

Posted on August 30, 2012 | Leave a comment

Earlier this week, the Delaware Supreme Court en banc held that Delaware Court of Chancery did not abuse its discretion when it awarded $304 million in attorneys’ fees in a shareholder derivative lawsuit. The fee award amounted to a 15% contingency fee on a $2 billion judgment that was recovered. If broken down hourly the attorney’s fees equaled nearly $35,000 per hour. 

The underlying shareholder derivative suit involved a proposal by Grupo Mexico SAB in 2004 to sell its 99.15% stake in Minera Mexico SA to Southern Peru Copper for approximately $3 billion in Southern Peru shares. By April 2005 when the deal closed, the value of Southern Peru Copper shares rose to $3.7 billion. The problem was that Grupo Mexico was Southern Peru’s majority shareholder at the time, thus creating a huge potential conflict of interest. Following the merger, plaintiffs brought a shareholder derivative lawsuit against Southern Peru’s special committee that advised on the merger. The plaintiffs alleged that the special committee breached its duty of loyalty to shareholders by causing Sourthern Peru to acquire Minera Mexico for more that it was worth. The Court of Chancery held in favor of the plaintiffs and determined that Minera Mexico was actually worth $2.4 billion at the time of the merger and that Sourthern Peru thereby overpaid $1.3 billion. The court granted a little over $2 billion in damages after adding both pre- and post-judgment interest.

On the issue of attorneys’ fees, the Court of Chancery noted that the plaintiffs’ attorneys had prosecuted a complex, six-year case against “major league, first-rate legal talent” entirely on a contingency basis. During the litigation, those attorneys logged over 8500 hours and incurred over a million dollars in expenses. The court noted that these attorneys secured an immense economic benefit to Southern Pacific shareholders. At the same time, the chancery court explained that it was reducing the attorneys’ fees due to the delay in timely litigating the case. But taking all of these and other factors into account, the chancery court determined that a 15 percent of the damages was a fair attorney’s fee.

On appeal, Delaware Supreme Court upheld both the damages and the attorneys’ fees. The court noted that the standard of review for attorneys’ fees was abuse of discretion. Using that standard, the court determined that the Court of Chancery’s award of attorneys’ fees was supported by a well-reasoned decision and factual findings. As such, the court found that the chancery court’s award was not capricious and that the chancery court did not abuse its discretion.

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$14.5 Million Settlement for Injury Caused to Little Leaguer by Louisville Slugger

Posted on August 25, 2012 | Leave a comment

ESPN reports that a New Jersey teenager who suffered brain damage when he was struck by a line drive while pitching in a baseball game will receive a $14.5 million settlement from the bat manufacturer, a sporting goods chain and Little League Baseball.

Steven Domalewski was pitching in a Police Athletic League game in 2006 when a batter rocketed the ball off of metal bat. The ball powerfully hit Domalewski on the chest right above the heart. The ball unfortunately struck the pitcher at the precise millisecond between heartbeats, causing the teenager to go into cardiac arrest. Domalewski stopped breathing and turned blue. Although a bystander initiated CPR within 90 seconds and paramedics got to the pitcher within a few minutes and rushed him to the hospital, Domalewski suffered irreversible brain damage. His brain went without oxygen for between 15 to 20 minutes.

Domalewski’s injury drew a great deal of public attention to the possible dangers posed by lightweight, aluminum bats. Baseballs hit off of metal bats travel at higher speeds than balls hit off of wooden bats. With the pitcher’s mound only 45 feet away from the batter’s box, Domalewski had little time to react a hard line drive.

Following the injury, Domalewski’s family sued Hillerich & Bradbsy – the maker of Louisville Slugger bats, Little League Inc., and the Sport’s Authority (the retailer). The family sought both punitive and compensatory damages under product liability and consumer fraud laws, as well as damages for emotional pain and suffering.

Earlier this week, the parties reached a $14.5 million settlement to resolve the matter. Under the settlement, the Domalewskis are barred from discussing whether any of the defendants admitted liability.

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Arizona Supreme Court Upholds English Profiency Requirement For Public Office

Posted on August 20, 2012 | Leave a comment

Last Friday, the Arizona Supreme Court upheld the English proficiency requirement imposed on candidates for political office under A.R.S. § 38-201(C). Under that provision:

A person who is unable to speak, write and read the English language is not eligible to hold a state, county, city, town or precinct office in the state, whether elective or appointive, and no certificate of election or commission shall issue to a person so disqualified.

The statue was recently at issue when Alejandrina Cabrera was disqualifed from appearing on the ballot as a candidate for San Luis City Council due to insufficient English proficiency. The question presented for the courts was what level of proficiency the Arizona statute imposed on political office holders. Cabrera advocated for a narrow reading of the statute, arguing that the statute does not impose actual English proficiency on political office holders, but rather, merely the “ability” to read, write and speak English. Cabrera further argued that she could proficiently read English (a linguistic expert found that she could read English at a 10th or 11th grade level). She also argued that she had the ability to speak English because she had read government minutes aloud at meetings.

However, both the trial court and the Arizona Supreme Court rejected Cabrera’s argument. Both courts noted that 38-201(C) had to be read within the historical context of the Arizona Constitution and the Enabling Act, which required English proficiency as a qualification for public office even before statehood. Likewise, the court explained that the ability to conduct government business in English was the appropriate baseline for English proficiency. As part of this ability to conduct business, the court noted that state officials have traditionally been expected to be able to read, write, and speak in English without the aid of a translator. Likewise, the court explained that it especially important for a political officer holder to be able to speak English without the aid of a translator.

Consequently, the Arizona Supreme Court upheld the trial court’s determination that Cabrera did not meet 38-201(C) requirements because she lacked proficiency to conduct government business in English. In particular, the court noted that expert testimony had properly established that Cabera only had “minimal survival proficiency” in spoken English and was accordingly unable to follow non-familiar English conversation topics. As a result, the court found that Cabrera lacked the ability to carry out business in spoken English without the aid of a translator, thus didn’t meet the basic English proficiency standards.

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Los Angeles Seeks Injunction to Crack Down on Ticket Scalpers

Posted on August 15, 2012 | Leave a comment

Ticket scalpers congregating in stadium parking lots and sidewalks are familiar sites to sports fans and concert goers. Stadium and venue owners often object to scalpers because scalpers compete with legitimate ticket resellers and thereby reduce profits from ticket sales. Patrons sometimes complain about scalpers getting in their faces or obstructing sidewalks when trying to hawk tickets.

Los Angeles, it turns out, has had enough with “prolific scalpers” hawking tickets around Dodger Stadium, L.A. Memorial Coliseum, Staples Center, Nokia Center, and several other local venues. The L.A. Times reports that the Los Angeles City Attorney recent requested an injunction against 17 professional ticket scalpers who have been arrested multiple times for scalping. Under California law, it is a misdemeanor to sell tickets above face value or to sell tickets on a public street. City officials claim that, despite fines and enforcement efforts, the city has not managed to reduce ticket scalping.

In the complaint, the city claims that the scalpers engage in “nuisance activity” and “unlawful business practices.” The city alleges that the scalpers act as a magnet for theft, robbery, violent crimes, and drug sales and use. In addition, the city claims that the scalpers endanger both drivers and pedestrians by snarling traffic.

Under the injunction, the 17 professional scalpers would be required to stay at least 100 yards away from the major venues. A 25-square city block no-scalping zone would also surround each venue. Violators would be subject to enhanced penalties, including six months in jail and/or $2,500 in fines.

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Family Law Attorney Brings Defamation Suit Over Wrongly Reported Attorneys Fees

Posted on August 7, 2012 | Leave a comment

In divorce and child custody proceedings that drag on, it is not uncommon for parties to complain about attorneys fees. In 2008, Lisa Payne-Naeger was the respondent in a divorce action and requested that the court appoint a Guardian ad Litem (GAL). In March 2008, the court appointed Benicia Baker-Livorsi as the GAL. Baker-Livorsi acted as the GAL until the judgment of dissolution was entered in January 2010. After the divorce was finalized, Payne-Naeger was interviewed by reporter Allison Retka of Missouri Lawyers Weekly (MLW) regarding the topic of GALs in Missouri. During the interview, Payne-Naeger stated that Baker-Livorsi earned $80,000 as the GAL in that state case. According to Courthouse News Service, Retka subsequently published the article in MLW, stating the $80,000 GAL fee. Retka also allegedly forwarded the article to ParentAdvocates.org., which republished the story with the caption “JUDICIAL CORRUPTION, Family Court Corruption: Guardian Ad Litem in Missouri.” 

The problem, however, was that Baker-Livorsi never earned $80,000 for the GAL work, but rather, only $10,084. Following publication of the MLW story, Baker-Livorsi reportedly receiving inquires from judges and other practioners regarding the $80,000 GAL fee. Baker-Livorsi then contacted Retka to issue a printed retraction regarding the GAL fee. Although a small retraction was later published in MLW, Baker-Livorsi sued Payne-Naeger and Retka for libel and sued MLW for negligently publishing the libelous content. Payne-Naeger claimed that the retraction in MLW was pointless because of the republished ParentAdvocates.org content “will forever be there because of ‘Google’”.

In the complaint, Baker-Livorsi further alleges that she suffered damage to her reputation, endured ridicule and contempt, and lost business due to the MLW story. She alleges that the all of the defendants acted with deliberate indifference, entitling her to punitive damages. The complaint seeks $500,000 in compensatory damages plus punitive damages in the libel count against Payne-Naeger and Retka as well as $500,00 in compensatory plus punitive damages against MLW on the negligence count.

On a final note, a recent Examiner.com article alleges that Retka called Baker-Livorsi before publishing the MLW article, but that Baker-Livorsi failed to either confirm or deny the GAL fee before press time. Even so, a reporter still has a duty to fact check before publishing an article, so it remains to be seen whether Retka and MLW should have looked to other sources to confirm the attorneys fees.

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NJ Supreme Court Rules that Pet Owners Can’t Sue for Emotional Distress For Dead Pet

Posted on August 2, 2012 | Leave a comment

In McDougall v. Lamm, the New Jersey Supreme Court recently ruled that pet owners cannot bring a negligent infliction of emotional distress (NIED) claim for witnessing a pet’s death. Under New Jersey case law – dating back to the famous Portee v. Jaffe, 417 A. 2d 521 (N.J. 1980) decision, a NIED claim requires four elements: (1) death or serious physical injury of another caused by defendant’s negligence; (2) a marital or intimate, familial relationship with the injured person; (3) observation of the death or injury; and (4) severe emotional distress. At issue in the recent case was whether a pet-owner relationship qualified as an intimate, familial relationship. The court held that the pet-owner relationship did rise to that level. The court explained:

The bond shared between humans and animals is often an emotional and enduring one. Permitting it to support a recovery for emotional distress, however, would require either that we vastly expand the classes of human relationships that would qualify for Portee damages or that we elevate relationships with animals above those we share with other human beings. We conclude that neither response to the question presented would be sound.

In that case, Joyce McDougall was walking her 9-year-old maltese-poodle (“Maltipoo”) mix when her dog was approached by a much larger dog. After the two dogs sniffed each other, the larger dog suddenly grabbed McDougall’s dog by the throat, lifted it off the ground, shook it several times, and ultimately killed it.

McDougall later sued the owner of the larger dog for damages, seeking the replacement cost for a well-trained Maltipoo. In addition, McDougall sought damages for NIED for witnessing the death of her dog. The trial court awarded McDougall $5,000 in damages to replace her dog, but denied her claim for emotional distress damages. On appeal, the New Jersey Supreme Court affirmed the trial court ruling and dismissed McDougall’s NIED claim.

In support of its ruling, the New Jersey high court noted that animal pets have traditionally been viewed as personal property under the law, and emotional distress damages have never been available for loss or destruction of personal property. The court also noted that the “intimate relationship” requirement has traditionally been narrowly construed and limited to close-blood family members and spouses. Since earlier cases had declined to allow emotional distress damages for witnessing injury suffered by close relationships involving non-family members (such as neighbors or friends), the court highlighted that it would be inappropriate to allow emotional distress damages for pets.

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