In 2004, Mercatus Group partnered with Evanston Northwestern Healthcare to open a physician center in the village of Lake Bluff, a short distance away from the almost 70-year-old Lake Forest Hospital. Recognizing the threat a competing facility would pose, Lake Forest Hospital began a lobbying and public-relations campaign to prevent the center’s launch. The hospital directly lobbied the village board and community members and offered incentives to keep physician-practice groups from leaving the hospital to join the new center. After the village board refused to rezone the land for medical use, the physicians stayed at the hospital, killing the Mercatus center. Mercatus then sued the hospital, alleging anti-competitive practices under the Sherman Act. The trial court found that the hospital’s efforts were constitutionally protected speech and granted summary judgment to the hospital.

On appeal, Mercatus argued that the hospital made misrepresentations to the board, the public, and the physicians it pulled away from the center and that those misrepresentations negated constitutional protection. The Seventh Circuit Court of Appeals rejected the arguments, noting antitrust litigation "’cannot be used to chill [the] constitutional right’ to ‘petition without fear of sanctions.’" The court further stated the following:

To make such injuries from public relations campaigns actionable under the antitrust laws would ‘be tantamount to outlawing all such campaigns.

Finally, the court explained that, though the hospital allegedly lied to physicians that Mercatus had violated certain anti-kickback regulations, antitrust laws do not prohibit "conduct that is only unfair, impolite, or unethical.” Accordingly, the court affirmed the trial court’s decision.

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In April 2005, Alicia Gonzales ended up with a blood alcohol content level that was twice the legal limit after drinking at an all-day business luncheon, which began at a Chili’s restaurant and concluded in a pair of bars eight hours later. Four pharmaceutical representatives—two from Schering Corp., one from Abbott Laboratories, and one from Merck & Co—had taken Gonzales and her colleagues out for food and drinks that day. After leaving a bar, Gonzales was speeding and crashed her car into another car driven by Gina Delfino, who was seriously hurt along with her passengers. Delfino’s son did not survive.

Delfino sued the bars and restaurant that had served Gonzales, as well as the pharmaceutical representatives and their employers. The trial court dismissed the pharmaceutical defendants from the case, however, finding that they did not owe Delfino any duty under New Mexico’s Liquor Liability Act. On appeal, the New Mexico Supreme Court reversed the trial court, noting that Delfino had “properly characterized [the] pharmaceutical defendants as social hosts under the Liquor Liability Act."

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Stern v. Stern, No. 10-2493.


Michelle Garland Stern, who has dual citizenship of the United States and Israel, first met Michael Stern, who has dual citizenship of Israel and Canada, in 2000 during a visit to Israel. Michelle later moved to Israel, and the two were married in a religious ceremony. Their son DJ was born in 2003.

In August 2005, Michelle moved to Iowa to complete a doctoral program at Iowa State University. Martin followed in October 2005, after closing his taxi business in Israel. They were married in a civil ceremony in 2006, but Michelle filed for divorce in October 2007. They attempted reconciliation, but Martin eventually moved back to Israel in February 2008. Michelle proceeded with the divorce and was granted temporary custody of DJ.

Martin then brought a separate suit in federal court, petitioning for DJ’s return under the International Child Abduction Remedies Act (“ICARA”). After a bench trial, the trial court denied Martin’s petition, noting that DJ’s habitual residence at the time of the alleged wrongful retention was the United States.


On appeal, the Eighth Circuit Court of Appeals noted that the ICARA does not control substantive custody disputes. Instead, it governs selection of the forum where such a dispute should be brought. The court explained that the key question under the ICARA is “whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence.” The court then listed factors to be considered in determining a child’s habitual residence:

  1. The settled purpose of the move from one country to another from the child’s perspective.
  2. Parental intent regarding the move.
  3. Change in geography.
  4. Passage of time.
  5. The child’s acclimation to the new country.

Martin argued that the trial court gave insufficient weight to the parties’ intent to return to Israel after Michelle finished her degree. The court, however, agreed with the trial court that the child’s perspective was paramount. From DJ’s perspective, the settled purpose of his relocation to Iowa was to reside there permanently, at least until Michelle finished her degree. Settled purpose does not require an intention to stay in the new location forever, but does focus on the perceptions and acclimations of the child.

Accordingly, the court affirmed the trial court’s decision.

In recent years, Warren Jeffs, incarcerated leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, has been charged with bigamy, sexual assault, and rape in multiple states. The $110 million trust for the polygamist sect owns more than 700 houses, farms, dairies, and other businesses on land in two communities along the Arizona-Utah border. Several entities have sued the trust as an accomplice to Jeffs, and Utah intervened in the trust amid claims of mismanagement stemming from the alleged crimes of Jeffs.

A federal trial court entered an order returning control of the trust, including financial and property records and all of the trust’s assets, to the Fundamentalist Church of Jesus Christ of Latter-Day Saints. Then a state trial court filed a motion with the Tenth Circuit Court of Appeals, requesting a stay of the first order. The Tenth Circuit agreed and indefinitely stayed that order, halting the return of control of a $110 million trust to the polygamist sect.

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Kerry Christensen drove a truck that hit John Boyle in the crosswalk of a grocery story parking lot. Boyle, a former professional golfer, underwent back surgery after the accident and lost his job at a golf shop because he cannot carry two buckets of golf balls at a time. Christensen admitted liability, and the case went to trial to determine damages. In closing arguments, Christensen’s lawyer said the following:

Ladies and gentlemen, they want a lot of money for this. A lot of money. . . . How many days has it been since the accident? How many days for the rest of his life? And how much per day is that worth? That’s what’s been done here. That’s how we get verdicts like in the McDonald’s case with the cup of coffee.

In that case, Liebeck v. McDonald’s, a jury awarded $2.7 million in punitive damages to a woman who was scalded by hot coffee. Boyle’s attorney objected to the reference, but the trial court allowed it.

On appeal, Boyle argued that the cultural reference unduly prejudiced the jury, which subsequently awarded him $62,500 – far short of the $458,724 he sought for pain and suffering. The Utah Supreme Court and reversed and remanded the case for a new trial:

We reverse and remand for a new trial because under the circumstances, the reference had a reasonable likelihood of influencing the jury verdict to Mr. Boyle’s detriment.

The court noted that a new trial is an “extreme remedy,” but stated that, without the reference, there was a reasonable likelihood of a more favorable outcome for Boyle.

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In September 2005, Tanisha Matthews, an overnight stocker at Wal-Mart for nine years, became involved in an impassioned discussion about God and homosexuality with a lesbian co-worker named Amy during a break. When Wal-Mart officials investigated the incident, they learned that Matthews screamed at Amy that God does not accept gays, that gays should not "be on earth," and that they will "go to hell" because they are not "right in the head." After the three-month investigation, Matthews was fired for violating Wal-Mart’s Discrimination and Harassment Prevention Policy, which prohibits employees from harassment based on an individual’s status, including sexual orientation.

Matthews sued Wal-Mart, arguing that Wal-Mart fired her for stating her religious belief that gays will go to hell, which she maintains is central to her Apostolic-Christian faith. If perceived harassment had really spurred Wal-Mart’s action, Matthews said the company would not have let her continue working with Amy for the next three months during the company’s investigation. The trial court granted summary judgment to Wal-Mart, finding no evidence that similarly situated employees had received different treatment.

On appeal, the Seventh Circuit Court of Appeals affirmed the decision, noting the following:

Wal-Mart fired [Matthews] because she violated the company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship.               

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In 2009, the Pacific Merchant Shipping Association (“PMSA”) sued the head of the California Air Resources Board over the state’s Vessel Fuel Rules, which require ships to use cleaner fuels within 24 miles of the coast as they move through the state’s busy ports. The PMSA argued that the regulations were pre-empted by the federal Submerged Lands Act (“SLA”). The PMSA filed a motion for summary judgment on its pre-emption claim, but the trial court denied it.

On appeal, the Ninth Circuit Court of Appeals unanimously affirmed that decision. The court noted that the rules amount to an "expansive and even possibly unprecedented state regulatory scheme," but found that California has a right to mitigate its environmental problems, which "are themselves unusual and even unprecedented." Although the regulations will likely cost the shipping industry some $1.5 billion through the end of the 2014, the court stated that California had “clear justification” for the rules:

It appears uncontested that ocean-going vessels have long been a leading source of air pollution in California, due in large part to the widespread use of low-grade bunker fuel.

The court referenced data showing that ocean-going vessels traveling within 24 nautical miles of the California coast spew about 15 tons of diesel particulate matter per day, as well as 157 tons of nitrogen oxides and 117 tons of sulfur oxides. The vessel fuel rules are expected to significantly reduce such harmful emissions and "should prevent, between 2009 and 2015, approximately 3,500 premature deaths and nearly 100,000 asthma attacks as well as reduce cancer risks."

The court noted that, while the SLA granted states the rights to all of their coastal lands within 3 nautical miles of the continent, other courts have rejected challenges to state laws despite the 3-mile regulatory limit:

Applying this effects test to the vessel fuel rules, we conclude that there are genuine issues of material fact with respect to both the effects of the fuel use governed by California’s regulations on the health and well-being of the state’s residents as well as the actual impact of these regulations on maritime and foreign commerce.

Accordingly, the court remanded the case back to the trial court for further proceedings.

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