Author Archive for David Brown

Corporations Are Legal Persons, Elephants Are Not

Elephants are not people. It may seem obvious, but the recent Nonhuman Rights Project, Inc. v. R.W. Commerford & Sons, Inc. (Conn. App. Ct. 2019) argued that three elephants were denied a writ of habeas corpus when they were imprisoned (presumably) against their will in a Connecticut zoo. The court refused to rule on the case on jurisdictional grounds, maintaining that elephants are not people and thus not entitled to habeas corpus protection. A lower Connecticut court had already ruled that habeas corpus did not apply to elephants. The lower court judge refused to elaborate on the issues in the case, stating simply and non-ambiguously, “THE PETITION IS WHOLLY FRIVOLOUS ON ITS FACE.”

However, the issue of whether an elephant is a person is not as simple as it may seem. In the notes of the “Nonhuman Rights Project” case, the court panel explains that “Black’s Law Dictionary” defines “person” as “[a] human being,” “[t]he living body of a human being,” or as “[a]n entity (such as a corporation) that is recognized by law as having most of the rights and duties of a human being.” and that “the words ‘person’ and ‘another’ may extend and be applied to communities, companies, corporations, public or private, limited liability companies, societies, and associations.” So, corporations can be “persons”, but elephants cannot.

The court went on to explain in the court notes that although animals are not people (and are thus not afforded rights like habeas corpus), others (people and organizations) can advocate for their human treatment, whether they live in the wild or captivity. However, they defined those advocates narrowly, such as caregiver, guardian or someone else with a relationship with the animals. Steven Wise and his Nonhuman Rights Project have no such relationship with the Connecticut elephants, the mini elephant bio on the website notwithstanding.

This discussion is not likely to go away anytime soon. The Nonhuman Rights Project has deep pockets and a stylish website devoted to promoting awareness of their campaign and raising funds for court cases like the recent one in the Connecticut Appellate Court.

Common Cause v. Lewis

The “New Oxford Dictionary” defines gerrymandering as “the act of manipulating the boundaries of (an electoral constituency) so as to favor one party or class.” Those who follow North Carolina politics have been discussing this practice for a while. The realignment of the state’s congressional districts in 2017 was ruled by the US Supreme Court as unconstitutional in their “Rucho v. Common Cause” ruling earlier this year. However, the high court maintained that they had little authority to police this type of redistricting, that they would rely on the state courts to do that.

In September, the North Carolina ruled in “Common Cause v. Lewis” that the 2017 redistricting in the state was contrary to the state’s Constitution and, the “Russo” ruling notwithstanding, the state courts did have the authority to enforce the redistricting provisions of the state Constitution. In particular, the state court…

1. Pointed out the ways that the North Carolina State Constitution goes beyond the outline set out by the federal Constitution on this issue.

2. Offered a different interpretation of similar language in the North Carolina Constitution to that of the Federal Constitution. For example, they said, “North Carolina’s Equal Protection Clause provides greater protection for voting rights than federal equal protection provisions. . . . North Carolina courts can and do interpret even ‘identical terms’ in the State’s Constitution more broadly than their federal counterparts.”

3. Maintained that the redistricting issue was a legal one, not a political one. Unlike the “Rucho” ruling, which maintained that the North Carolina redistricting was a political issue, the North Carolina state court maintained that the 2017 structure violated state law.

It’s important to note that this may not be the final word on this issue. The North Carolina Supreme Court could overrule the “Lewis” ruling. (Since the “Lewis” ruling is based on an “adequate and independent” state-law ground, there is no possibility of a federal court overturning the ruling. ) However, the North Carolina Attorney General has no plans to appeal the “Lewis” ruling in the North Carolina Supreme Court at this time.

Mountain Crest vs. Anheuser-Busch InBev

Mountain Crest originally sued Anheuser-Busch InBev and Molson Coors, two major heavyweights in the beer industry, for conspiring together to keep Mountain Crest out of the LCBO, the Ontario provincial government-operated liquor store system. Mountain Crest’s claim was centered around the premise that two beer company defendants worked together in a conspiracy to block Mountain Crest from selling any of its beer to the Ontario consumer market, or at least in large amounts. The only businesses the LBCO that would provide to customers in packages of more than six bottles (i.e. 12-packs or 24-bottle cases) were to be Anheuser-Busch or Molson Coors products. The Canadian district court, however, did not agree with the claim under the act of state doctrine and dismissed the case.

The logic of the district court was then appealed by Mountain Crest. The original plaintiff in the case argued that the court could in fact act without running afoul of the act of state doctrine as originally decided at the district level. Mountain Crest tried two appeal arguments formally. The first was that the regulatory six-bottle rule blocking their increases sales in the LCBO stores was an overt abuse of the act of state doctrine and illegal, basically an equity argument. The second, which was an alternate approach, posited that the court could reverse Ontario’s LCBO six-bottle limit rule and still maintain the act of state doctrine without affecting the Ontario government’s ability to create provincial government regulations in general.

The appellate court panel viewed Ontario’s provincial government, the entity running the LCBOs, as a foreign state. Because of this status, the country’s act of state doctrine then protected the LCBO’s decisions, essentially functioning as an extension office of the Ontario provincial government. Thus, while the court actually agreed that the LCBO was giving Anheuser-Busch and Molson Coors a market monopoly, it was an act allowable under Canadian federal law. The court could not discern or separate the issue of the six-bottle cap from the bigger issue of the LCBO being part of the Ontario government. The regulatory decision and the entities are one and the same, and in this regard, the act of state doctrine was intended to protect the legislative power of the provincial government. Therefore the six-bottle rule could not be severed as an exception.

DeJoria v. Maghreb Petroleum Exploration

John Paul DeJoria, the tycoon who created Paul Mitchell hair care products, decided to venture into oil exploration. With the blessing of the Moroccan government, he set about doing this, but the reserves never materialized. DeJoria abandoned the project and is now being sued for $100 million by Maghreb Petroleum Exploration, the new manager. Originally filed in Moroccan courts, the case has been brought to Texas, as Maghreb is seeking enforcement of the judgment.

Reversals in the Texas District and Circuit Courts

The Texas district court refused to recognize the decision based on the lack of due process in Moroccan courts. However, the Fifth Circuit reversed the decision, stating that under the Texas UFMJRA, which recognizes the decisions of foreign courts, a lack of due process wasn’t enough to refuse recognition.

Subsequently, DeJoria’s lawyers went before the Texas legislature to amend the UFMJRA. Texas adopted the UFCMJRA, which allows failures of due process to result in non-recognition. Ironically, the new statute had a look-back clause, allowing it to be applied retroactively to pending cases.

On these dubious grounds, DeJoria was able to restate his case. The Texas district court found that DeJoria did not receive due process, stating the defendant couldn’t attend the Moroccan proceedings or obtain representation there. On appeal, the Fifth Circuit stated it would only look at the case again for errors of fact — despite the that there was no presentation of evidence thus far in the Texas portion of the conflict. In other words, the nonrecognition was based solely on affidavits.

What Makes This Case an Anomaly?

Texas law allowed for this finding, despite the fact that a claim must be pleaded and proven. To avoid a trial, DeJoria could have filed a Civil Procedure and brought a motion for summary judgment. This would have prevented a finding of fact.

The Fifth Circuit affirmed that DeJoria had a valid defense to recognition. His inability to present his case in Moroccan court denied his right to due process. Therefore, the Texas courts refused to recognize the decision of the Moroccan courts.

Plant-Based Milks vs. The Dairy Industry

The battle between the dairy industry and plant-based milk products to limit the legal use of the term “milk”, while perhaps not earth-shaking, is an interesting example of how regulation can be used to clarify and limit the use of terms. And when you think about the business of the law, in reality, that’s what much of it is about. You can’t have regulation and law without a strict definition of many concepts. Food standards of identity (SOI) are requirements by the FDA that do just that.

Legal Definitions

For an example close to that of the dairy vs. other kinds of milk battle, think of the use of the term “organic.” Often, the legitimate use of that term boosts a product’s value by a substantial amount. But what exactly determines whether a product is organic? A governing body must set the standards to clearly outline what “organic” is considered to be. The USDA does this for many products.

Counterfeit Milk?

The term “milk” is not problematic in the same way. It’s not as if most consumers don’t realize almond or soy milk are not from cows. They certainly do. We know, for example, that almond milk has nothing to do with bovine lactations, but features a certain type of nut. The fight seems to boil down to a certain type of proprietary value that the dairy industry feels is connected to the term “milk.” And, doubtless, the products produced by those in the plant-based segment of the milk market have converted an increasing amount of dairy-product customers.

Smelling the Roses

Does a rose by any other name really smell as sweet? In this case, the dairy industry seems to say it does not. When governing bodies like the FDA make a determination to limit a term, like “organic”, or “meat” there are usually counterfeit products claiming to be something they are not. But the many non-dairy products that use the term “milk” simply seem to be using the term in a more general, but still accepted, way, similar to the way the term “juice” is used. It’s difficult to say how much economic value use of the term “milk” has. It seems slightly ridiculous to enforce limited usage at this late stage. Still, the final determination on who exactly can utilize the term “milk” hasn’t been made yet, although an upcoming FDA public meeting may do just that.

ADA Compliance Online

The American Disabilities Act (ADA), a civil rights law protecting the disabled was put in force in 1990. The ADA prohibits discrimination against individuals with disabilities. Discrimination is not allowed in all areas of public life, including jobs, schools, transportation, and all public and private places enjoyed by the public by providing the disabled “reasonable accommodations” irrespectively of disability. For example, in the area of employment, reasonable accommodations are any modifications that help a covered person under the ADA to satisfy the essential job functions.

The essential purpose of the ADA is to allow people who are physically disabled to enter public buildings (via ramps, wide doors, large bathroom stalls, etc.) and to provide auditory and visual aids for those with visual and auditory impairments, as well as modified educational programs for the learning disabled. Internet websites were not contemplated by the ADA, and in 1990 there were no ADA accessibility rules for websites. Websites offer content and have not been considered to require modifications to comply with the ADA.

However, there are both linguistic and nonlinguistic elements of content that add to an understanding of such through the development of the Web Content Accessibility Guidelines (WCAG). WCAG is prepared by a worldwide group of individuals and organizations. Standard guidelines are developed to make content accessible and meet the needs of website development by individuals, organizations, and governments internationally to place websites within the sphere of disability regulations. The focus on ADA compliance is on the elements of content such as:

a) perceivable issues,

b) operable issues involve the ability to navigate the website,

c) understandable issues to comprehend website content and

d) robust issues that test the strength and adaptability of the website to meet the linguistic needs of the disabled.

ADA is under the control of the Department of Justice (DOJ). Modifications of the WCAG guidelines are continually being upgraded. For example, the final rule of the WCAG 2.0 guideline was adopted in January 2017 and again in 2019. Initially, the WCAG guidelines were modified to update Section 508 of the Rehabilitation Act of 1973. To be ADA compliant, you must adopt the final rules prepared by the WCAG and the DOJ enforces website accessibility. The fail-safe method to be compliant is to find sources that tutor one in how to analyze the complexities of website compliance or retain professionals that apply the technical ADA rules of website compliance.

American Vape Epidemic: The need for federal intervention

As of September 17th, the Center For Disease Control (CDC) announced the number of vaping related injuries has reached 530 cases across 38 states and confirmed that a seventh person has died from their illness. Health officials are racing to determine the exact cause of the injuries but have been unable to pinpoint a common factor among test samples. The current official recommendation is to avoid all vaping products.

The recent epidemic of sudden and severe injuries has accentuated the need for standardized federal regulations for nicotine and cannabis vaping industries. The Tobacco Control Act (2016) gives the U.S. Food and Drug Administration (FDA) regulatory authority over electronic nicotine devices. The Center for Tobacco Products (CTP) monitors e-cigarette manufacturing, including the ingredients, production process, and marketing campaigns. Unfortunately, similar legislation does not exist for products containing THC, the primary ingredient in cannabis responsible for its medicinal and mind-altering properties.

Currently, 33 states permit medical marijuana use and 11 have legalized recreational use. A lack of federal oversight allows each state to define its own set of laws and regulations, making it impossible to create a consistent standard by which to compare and evaluate products. While many states have testing and reporting policies, there is no interstate collaboration, creating a confusing environment for suppliers and consumers.

Outside of registered dispensaries, illegal street products represent a more serious risk to the public. A complete absence of regulation makes it cheap and easy for suppliers to distribute substances that may contain harmful ingredients or toxins. Legal dispensary owners are pointing the finger at illegal street products as the root of the recent vaping illnesses.

Several countries have set standards for the vaping industry. France and the U.K. have led the charge in creating uniform policies to govern vape products. The International Organization for Standardization (ISO), a Swiss-based committee, is working with over 17 countries to develop standards for e-liquids and vaping equipment. The group promotes safety and quality requirements, standardized test methods, transparent ingredient reporting, and accurate labeling.

It clear that the Federal Government must act swiftly to protect the American public from the harmful effects of vaping. Marijuana advocates and medical professionals are calling for regulation that would eliminate black-market products and enforce rigid production, safety, and testing methods for legal distributors.

Data in Law

Data may be the biggest business there is these days. The speed of modern computers permits them to mine voluminous data sources to find correlations simply unfindable and unthinkable not many years back. Perhaps unsurprisingly, the data itself says that data is vital to decision making. According to that data, data-driven organizations are many times more likely to keep customers and be profitable. That shouldn’t shock anyone. Quantification turns the vagaries of hunch and intuition into measurable facts. The advent of the computer simply permitted the beginning of the full realization of the potential of data use. Why, then, has the legal profession, which represents some of the largest, most profitable, data-utilizing organizations in the world, lagged so far behind in becoming data-driven as well?

Tradition and Transformation

Simple tradition is one answer often given. The law is steeped in it. The traditional law firm structure has been blamed. Mark Cohen, in Forbes, called the transition occurring now to more customer-centered structures, one from guild to marketplace. This transition is being driven by a number of factors. Areas of expertise long monopolized by attorneys are now being digitized and utilized directly by consumers. Lower-level legal functions are increasingly being handled by a paralegal or other legal functionaries. There is a definite movement among larger corporations to utilize in-house legal departments and coordinate corporate data functions with legal matters. As Cohen puts it, the legal delivery system pyramid has been turned on its head. All of these changes are eroding the traditional law firm’s old familiar structures and ways of doing business.

Data into Information

Causation is complex and almost never completely transparent. Regardless, increased use of data analytics will doubtlessly continue to transform the legal profession, as the medical profession has been changed, with more specialization and democratization of knowledge. That transformation is visible and already underway. Without context, data means little. To be properly utilized, data has to be set into a framework and turned into information. That information, if valid, can find hidden correlations of value. It can help predict the desires and needs of consumers in the future, and point to ways to meet them. The most innovative and knowledgeable in the legal industry, in general, and the most effective utilizers of data, in particular, will have, by far, the best chances to survive and prosper.

$58M Judgment for NYC Chemistry Class Injuries

A jury in New York awarded $58 million to a former student injured by a dangerous chemistry class experiment in January 2014.

The New York City Dept. of Education and the Board of Education are defendants ordered to pay the sum. The city education department and board intend to appeal the judgment amount to levels more commonly awarded in similar cases.

Alonzo Yanes was a sophomore at New York’s Beacon High School when he attempted an experiment called the “rainbow demonstration.” The experiment involves combusting various chemicals and salt, which let off multi-colored smoke.

Instead of creating smoke, the experiment caused an explosion and fire. The mishap caused chemical burns to Yanes’ upper torso, neck and face. Yanes still receives autografts for his injuries and said he continues to endure pain and suffering. Yanes argued the city education department and board did not alert the school and its teachers about potential dangers involving the rainbow experiment. That caused Yanes to unknowingly face a high-risk of suffering injury, and he said the resulting explosion ensured his injuries would be severe and produce enduring pain.

The U.S. Chemical Safety and Hazard Investigation Board in December 2013 warned about dangers involving the rainbow demonstration. At the time, the experiment was relatively common in high school chemistry classes. It uses a flammable solvent to create combustion and colorful smoke. The U.S. Chemical Safety and Hazard Investigation Board, though, warned the demonstration was “high-risk” when carried out on an open bench.

Yanes said his high school chemistry teacher completely controlled the demonstration and was responsible for his and other students’ safety. He now is disfigured and has permanent scarring.

Shortly after Yanes’ mishap, the American Chemical Society’s Committee on Chemical safety recommended schools stop using the experiment. New York City schools no longer use the demonstration.

A jury awarded Yanes $29 million for pain and suffering. It also awarded $29 million to pay for future rehabilitation. That money will pay for plastic surgery, but Yanes said he suffered life-changing injuries and endures ongoing pain.

The New York City Dept. of Education and the Board of Education intend to seek a reduction in damage amounts. They say they want the amount reduced to those paid in judgments for similar accidents.

The Case Against Roundup – Now with Lighter Consequences

Bayer AG, the company behind the popular weed control product Roundup, has made top headlines throughout the news this week with their poor management practices and shocking number of personal injury lawsuits.

As of 2019, Bayer was found to knowingly include the controversial active ingredient glyphosate, an agricultural chemical that some health officials find harbor known carcinogenic properties. The Roundup product has undergone continuous production since the 1970s, holding its place as one of the most popular weed control products on the market. A study done by the International Agency for Research on Cancer in 2015 found that the active chemical glyphosate was indeed a cancerous product, but this didn’t stop the new owners of the Monsanto Corporation from marketing their product in stores across the country. After thousands of personal injury cases surfaced citing Roundup as the cause for their disease, Bayer faced nearly $75 million in punitive damages.

This all changed on June 29 when San Franciscan District Judge Vince Chhabria ruled that the $75 million verdict was not legal due to previous case precedents. Punitive damages, which chastise willful, malicious, oppressive, fraudulent, or reckless behavior, must not be more than four times larger than listed compensatory damages. Reduced by Judge Chhabria to $20 million, this significant update has cut Bayer’s award amount by more than 69%.

The Judge still had scathing words for the agricultural giant, writing in a statement that trial evidence had proven Bayer’s marketing of Roundup “was indeed reprehensible.” To him, the agricultural control company seemed to almost be “focused on attacking or undermining the people who raised concerns, to the exclusion of being an objective arbiter of Roundup’s safety.” Bayer AG declined to comment on the accusation, instead welcoming the lowered award amount and assuring stakeholders that all would be well.

Even after the barrage of allegations and legal ramifications, the German-owned company has continuously assured the public that their popular weed killer is safe for use. Losing three trials in California based courts as of last year, the company is more desperate than ever to restore their image and smooth over dropping stock shares. Only time will tell how much damage both Bayer and its victims will suffer.