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Archive for February, 2012
Friday, February 24th, 2012
Based on prior case law and the language of New Hampshire’s consumer protection statute, many have long believed that, in New Hampshire, insurance companies and public utilities were not subject to claims for multiple damages under our state’s version of the Consumer Protection Act. This differs from other states, in particular Massachusetts, where entities that do not fit the typical consumer medical, like an insurer for example, could be hit with claims for treble damages for alleged unfair and deceptive insurance practices. That said, the Supreme Court case law over the past 20 or so years has managed to issue a series of inconsistent rulings that have muddled the issue.
The New Hampshire Supreme Court recently made a significant ruling in Rainville v. Lakes Region Water Company, which clarified the issue. In brief, the court ruled that the New Hampshire consumer protection act does not apply to alleged fraudulent conduct by regulated utility companies. This dramatically affects the potential liability to insurance companies and public utilities in New Hampshire as it allows them to avoid potential liability for penalties, multiple damages and attorneys’ fees in a case where they might otherwise have faced significant damages from a large number of plaintiffs. Between the analysis of the facts in this case and another recent decision, the Court goes through a fairly detailed analysis of what is and is not exempt from the Act.
Tags: Fraudulent Conduct, Insurance Companies, Multiple Damages, New Hampshire Consumer Protection Act, New Hampshire Supreme Court, Regulated Utility Companies
Posted in Industry News | No Comments »
Thursday, February 16th, 2012
The U.S. Equal Employment Opportunity Commission (“EEOC”), just recently issued a series of Questions and Answers which clarified an earlier EEOC informal discussion letter about ADA requirements for employers who require applicants to have high school diplomas to qualify for certain jobs.
That November 17, 2011 letter opined that an employer who made high school graduate a job requirement may well violate the Americans with Disabilities Act (“ADA”), unless the employer could demonstrate that the requirement was 1) job related and 2) consistent with business necessity. The earlier EEOC letter also said that to the extent a learning disability prevented the job applicant from meeting the high school graduation requirement, the employer might also have to have to make an individualized determination whether a particular applicant could perform the essential functions of the job, with or without an accommodation, before the employer could deny the applicant a job on the basis of the failure to complete high school.
Now, the EEOC has clarified that its earlier letter did not make it illegal, per se, for businesses to require a high school diploma for a job. Rather, according to the EEOC’s recent Q & A discussion, an employer may have to allow someone who says that a disability has prevented him from obtaining a high school diploma to demonstrate qualification for the job in some other way. The new Q & A from the EEOC also made clear that its earlier opinion letter did not create protection in the ADA for people who do not graduate from high school, unless a disability as defined by the ADA was the reason that it was impossible for the job applicant to obtain a high school diploma. The Q & A’s issued by the EEOC also stated that an employer is not required to hire a person who is unable to graduate from high school because of a disability. The new EEOC Q & A’s do provide that as with any job criteria which may tend to screen out persons with disabilities, an employer who requires a high school education may have to evaluate whether there exists an ADA reasonable accommodation to allow a learning disabled person to perform the essential functions of the job. According to the EEOC:
Employers may continue to have high school diploma requirements and, in the vast majority of cases, they will not have to make exceptions to them. However, if an applicant tells an employer she cannot meet the requirement because of a disability, an employer may have to allow her to demonstrate the ability to do the job in some other way. This may include considering work experience in the same or similar jobs, or allowing her to demonstrate performance of the job’s essential functions. The employer can require the applicant to demonstrate, perhaps through appropriate documentation, that she has a disability and that the disability actually prevents her from meeting the high school diploma requirement.
The complete text of the EEOC’s Q & A can be found here.
Tags: ADA, ADA EEOC, ADA Job Description Requirements, ADA Learning Disability, Americans with Disabilities Act, EEOC, EEOC Questions, Equal Employment Opportunity Commission, Reasonable Accommodations
Posted in Industry News | No Comments »
Friday, February 10th, 2012
The Ninth Circuit recently upheld a California district court’s grant of summary judgment against a corporate owner of restaurant where copyrighted songs were performed without the artists’ permission. In Range Road Music, Inc., v. East Coast Foods, a group of copyright owners filed suit against the owners of Roscoe’s House of Chicken n Waffles (Roscoe’s) following a private investigator’s visit to the restaurant’s lounge where the investigator heard a live band perform several copyrighted “Coltrane standards” and a disc jockey play another set of copyrighted songs from a compact disc. The defendants, Herbert Hudson and East Coast Foods, argued that the plaintiffs had failed to state a claim for vicarious infringement liability because the restaurant at issue was owned by Shoreline Foods, an independent corporate entity.
The Ninth Circuit rejected the defendant’s argument on the grounds that the defendants’ had the requisite control over the restaurant to impose liability. To impose vicarious liability on a defendant for copyright infringement, a plaintiff must establish that the defendant exercises the requisite control over the direct infringer and that the defendant derives a direct financial benefit from the direct infringement. Control exists where the defendant has a legal right to stop or limit the directly infringing conduct as well as the practical ability to do so. The Court found that the evidence clearly demonstrated that the defendants exercised control over the restaurants and derived a financial benefit from the musical performances at the lounge as Herbert Hudson was the president of both East Coast Foods and Shoreline Foods. Furthermore, East Coast Foods had managerial authority over Roscoe’s, and issued the paychecks of the restaurant’s employees. Accordingly, the Ninth Circuit affirmed the district court’s decision that the defendants were liable for copyright infringement.
In light of the Ninth Circuit’s decision in Range Road Music, Inc., restaurant owners should proceed carefully in allowing the performance of live music in their establishments. An owner of an establishment where live music is played should attempt to ensure that all publicly performed music is either not under copyright protection, or the appropriate licenses have been obtained.
Tags: Copyright Infringement, Live Music in Restaurants, Public Performance, Roscoe’s Chicken n Waffles, Vicarious Liability
Posted in Industry News, Restaurant Liability | No Comments »
Wednesday, February 8th, 2012
 
NK+M to Exhibit at the Massachusetts Restaurant Association’s annual trade show, The New England Food Show (NEFS). With over 11, 000 guests attending the show annually, The New England Food Show is the region’s largest trade event focused on the retail and foodservice markets. This year, the NEFS exhibition will run in Boston from March 11-13, 2012. Come visit us at our booth and find out more how NK+M can assist your hospitality enterprise in meeting its business and legal goals. We truly look forward to meeting you. Download your VIP Pass here.
Tags: NEFS, New England Food Show
Posted in Industry News | No Comments »
Tuesday, February 7th, 2012
The US District Court for the Eastern District of Louisiana found a clearly drafted engagement letter provided a defense to the client’s allegation that the firm did not provide adequate representation.
The plaintiff had formed a community development district to issue bonds in order to fund a planned residential development. The defendant law firm was hired as special counsel and bond counsel, and the parties signed a detailed engagement letter defining the scope of representation. After development of the project commenced, the Army Corps of Engineers issued a public notice that part of the property had been used for gunnery, rocket and bombing practice in the 1940s, and noted the potential for unexploded munitions. All further permits and approvals for the property were withheld pending investigation and remediation of concerns related to the notice.
The developer defaulted on the bonds and filed suit against the law firm for failure to conduct environmental due diligence, failure to obtain informed consent for limited scope of representation and charging excessive fees. The law firm argued its engagement letter clearly defined the scope of its obligations, and that it undertook no duty to perform environmental due diligence. The plaintiff countered that the firm failed to obtain informed consent for the limited scope of its duties.
The Court granted the law firm’s summary judgment motion based on its finding that the engagement letter was clearly drafted and created a clear scope of representation.
Posted in Industry News | No Comments »
Saturday, February 4th, 2012
The First Circuit recently refused to overturn a jury’s finding of retaliation under the Age Discrimination in Employment Act (“ADEA”) despite the defendant’s claims that the plaintiff had not established a prima facie case. In Munoz v. Sociedad Espanola de Auxilio Muto Y Beneficiencia De Puerto Rico, the Plaintiff was a cardiologist who was terminated by the defendant-Hospital one day after the Plaintiff was deposed in a lawsuit against the hospital for age discrimination. The Plaintiff then promptly filed a second suit against the Hospital claiming that he was terminated in retaliation for his pending age discrimination suit. The jury agreed with the Plaintiff and awarded him nearly $2 million. On appeal, the Hospital argued that its renewed motion for judgment as a matter of law should have been granted with respect to the Plaintiff’s retaliation claim because the Plaintiff had failed to establish a prima facie case of retaliation or any evidence of a causal connection between his protected conduct and his termination.
The First Circuit rejected the Hospital’s argument that judgment as a matter of law should be granted for the Plaintiff’s failure to make out a prima facie case on the grounds that it was “not the correct focus at this juncture.” The McDonnell-Douglas framework that requires the plaintiff to prove a prima facie case before putting the burden of proof on the defendant “is not a religious rite” but “merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of retaliation.” Once the question of retaliation has been submitted to the jury “backtracking serves no useful purpose.” The First Circuit therefore held that its correct focus on appeal was whether a jury reasonably could have inferred by a preponderance of the evidence that the Plaintiff was terminated because of his protected conduct.
The First Circuit went on to reject the Hospital’s argument that the Plaintiff had failed to establish the causal connection required to prove retaliation on the grounds that the evidence presented at trial was sufficient to support the finding, even if the determination was not “inevitable.” The Hospital’s argument hinged on the fact that Hospital decided to terminate the Plaintiff three weeks before the Plaintiff was deposed in his age discrimination case, claiming that the causal element of retaliation was therefore lacking in the Plaintiff’s claim. Although the Court agreed with the Hospital that an adverse employment action pre-dating the protected activity generally cannot support a retaliation claim, it found that the remainder of the evidence presented at trial supported the jury’s finding. Accordingly, the First Circuit affirmed the trial court’s decision.
Tags: Age Discrimination in Employment Act, Causal Connection, Judgment as a Matter of Law, McDonnell Douglas Framework, Prima Facie Case, retaliation
Posted in Employment Law/Cases, Industry News | No Comments »
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