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Archive for February, 2009

Solis v. Summit Contractors, Inc., No. 07-2191.

Summit Contractors was the general contractor for building a college dormitory in Little Rock, Arkansas, and subcontracted the entire project.  Because of the subcontract agreement, Summit Contractors had only four employees at the project.  One of the subcontractors, All Phase Construction, failed to use personal fall protection on scaffolds without guardrails.  When an OSHA inspector visited the site and witnessed this hazard, he issued a citation to Summit Contractors based on the controlling employer citation policy.

Under the controlling employer citation policy, OSHA compliance officer can cite a general contractor for a subcontractor’s violation if the general contractor has the ability to prevent or abate the hazard through the reasonable exercise of supervisory authority.  Summit Contractors argued that the regulation at issue did not require it to protect the employees of a subcontractor.  After several hearings on the issue, the Occupational Safety and Health Review Commission petitioned the Eighth Circuit Court of Appeals for review.

After reviewing the history of OSHA and the controlling employer citation policy, the Eighth Circuit deferred to the Secretary of Labor’s interpretation of the controlling employer citation policy.  The court further noted that the regulation itself allows for citation to Summit Contractors because it was required to protect the “places of employment,” which is broad enough to cover harms to a subcontractor’s employees, even if Summit Contractors’ employees were never exposed to the harm.

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Bell v. The Hershey Co., No. 08-2458.

Plaintiff filed a class action antitrust case against several chocolate manufacturers in Iowa state court, alleging $4.99 million in damages.  Defendants removed the case to federal court under the Class Action Fairness Act of 2005 (“CAFA”).  The CAFA has three jurisdictional requirements:  (1) minimal diversity, (2) one hundred or more class members, and (3) $ 5 million in damages.  Plaintiff filed a motion to remand the case back to state court because the amount in controversy was less than the jurisdictional amount.  The federal court agreed and remanded the case.

On appeal, the Eighth Circuit Court of Appeals explained that in its non-CAFA cases, the court had required the removing party to establish jurisdictional facts by a preponderance of the evidence, a lesser standard than the legal certainty standard urged by plaintiff and used in other jurisdictions.  Accordingly, the court held that only a preponderance of the evidence standard was required and remanded the case back to federal court to determine if defendants could meet that standard.

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American Express was sued over the terms of its Blue Cash rewards program, but the case was dismissed because the credit card contracts required each member of the class to enter into arbitration with American Express individually.  On appeal, the Third Circuit Court of Appeals noted there was a question of whether state law would allow waivers of class arbitration.  For a full account of the story, click here.

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I found an interesting blog article explaining in more detail.  Click here to check it out.

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I first learned of this interesting development a few weeks ago when I stumbled upon the blog New World Liberty.  While this is not the normal sort of blog I would read, I was intrigued by the discussion nonetheless.  I happened upon the blog again today, with its updated version of the article I first read.  I clicked on the link for Arkansas and was taken to the Arkansas legislature home page and found the proposed law.

I’m somewhat taken aback by the stark language used:

THAT the State of Arkansas hereby claims sovereignty under the Tenth Amendment to the Constitution of the United States over all powers not otherwise enumerated and granted to the federal government by the Constitution of the United States.

BE IT FURTHER RESOLVED that this resolution serve as Notice and Demand to the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of these constitutionally delegated powers.

BE IT FURTHER RESOLVED that it is the position of the State of Arkansas that all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or requires states to pass legislation or lose federal funding be prohibited or repealed.

BE IT FURTHER RESOLVED that the clerk of the House of Representatives distribute a copy of this resolution to the President of the United States, the President of the United States Senate, the Speaker of the United States House of Representatives, the Speaker of the House and the President of the Senate of each state’s legislature of the United States of America, and each member of the Arkansas Congressional delegation.

State sovereignty has always been an intriguing proposition to me.  I wonder why states are deciding to do this now?

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Anthony J. Sebok, a Professor at Benjamin N. Cardozo School of Law in New York City, has written an interesting article regarding the recent mini-trials in Florida against tobacco companies.  The article is here.

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Kelly v. Estate of Kenneth Edwards, Sr., Deceased, No. 08-1234.

Under Arkansas law, a person cannot serve as administrator of an estate if he or she is a convicted felon.  In August 1996, plaintiff pled guilty to two felonies (theft of property and forgery).  After his father died, plaintiff was appointed administrator of his father’s estate by a probate court in 2003.  Plaintiff then brought a medical negligence case against Dr. Thomas Kelly and Cooper Clinic, P.A.,  in 2004 related to his father’s care and death.

After learning that plaintiff was a convicted felon, defendants sought to intervene in the probate estate case.  The probate court refused, noting that defendants’ motion was untimely.  On appeal, the Arkansas Supreme Court stated that timeliness should be determined based on the following factors:  (1) how far the proceedings have progressed, (2) whether any other parties have been prejudiced by the delay, and (3) the reason for the delay.  The court focused on the fact that the estate would be prejudiced by allowing defendants to intervene in the probate estate and affirmed the probate court’s decision.

Essentially, under these circumstances, no one can contest that a felon is acting as administrator of an estate?  Does that seem right?

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