Attorney-Client Privilege

July 11th, 2019 by Rieders Travis in Miscellaneous

Newsuan vs. Republic Servs., 2019 Pa. Super. LEXIS 613.  Opinion by Stevens, P.J.E.  At issue is whether the court erred in ruling that neither an attorney-client communications privilege nor an attorney work product privilege applied to interviews between counsel for Republic Services and 16 non-party Republic Services laborers identified by Newsuan as potential worksite eyewitnesses. Upjohn Co vs. U.S., 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).  Accordingly, we conclude the particular communications shared between Republic Services’ employees and corporate counsel fall within Republic Services’ scope of attorney-client privilege.  We, therefore, vacate the trial court’s order requiring Republic Services to disclose each such communication.   Given the learned trial court’s appropriate concerns, however, that corporate counsel’s handing of the 16 employees had – whether or not by design – the effect of blocking Newsuan’s access to factual statements pertinent to the accident, we reiterate the clarification in Upjohn that the privilege “only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.”  Id at 395; see also Gillard, 15 A.3d at 52 n. 8 (acknowledging…

VICARIOUS LIABILITY-CORPORATION FOR ACTIONS OF BUS DRIVER

June 27th, 2019 by Rieders Travis in Miscellaneous

Bus accident in which several people were killed. Driver fell asleep at the wheel. The jury assessed 55% of the liability to the bus driver and 45% of the liability to Greyhound on Plaintiffs' independent liability claim. The jury awarded each Plaintiff $500,000 in punitive damages. The court was correct to leave out evidence of drinking alleged by a truck driver because there was no indication of alcohol or drug consumption at the time of the accident. The standard for admission of alcohol evidence or drug consumption just was not met. Punitive damages were legitimate. The driver was subjectively aware for extended period before the accident that was too fatigued to drive safely and in danger of falling asleep. In terms of liability for Greyhound for punitive damages, they are liable vicariously and not for any independent act on their part. There is no dispute that the bus driver was within the scope of her employment. The punitive damages thus are attributable to Greyhound. Livingston vs. Greyhound Lines, Inc., 2019 Pa. Super. LEXIS 400.

FEDERAL TORT CLAIMS ACT-STATE LAW-TORTIOUS INTERFERENCE WITH EXERCISE OF MINERAL RIGHTS

June 24th, 2019 by Rieders Travis in Miscellaneous

This case involves a dispute between the owner of four tracts of subsurface property in the Allegheny National Forest ("ANF")-Duhring Resources Company-and the United States Forest Service-the department of government responsible for managing the surface estate of the ANF. Duhring brought suit under the Federal Tort Claims Act ("FTCA"), seeking damages for the Service's tortious inference with its ability to exercise its oil, gas, and mineral ("OGM") rights. In order to have a cause of action under the FTCA, Duhring's action must be one that Pennsylvania would recognize against a private individual. The District Court held that Pennsylvania does not recognize Duhring's cause of action, and thus dismissed Duhring's complaint for lack of jurisdiction. Our reading of Pennsylvania case law in light of an intervening decision from the Pennsylvania Supreme Court leads us to vacate the District Court's order and remand for further proceedings consistent with this opinion. Duhring urges that the District Court erred in dismissing its complaint in toto. We agree, but we part ways with Duhring as to the extent of the Government's liability under Pennsylvania law. The resolution of the issues before us requires us to…

CONFIDENTIALITY-CRITERIA

June 24th, 2019 by Rieders Travis in Miscellaneous

The court holds public right of access to pretrial motions of non-discovery nature whether preliminary or dispositive or no exception. It is the rule. This common law right of access is not absolute. There is a strong presumption in favor of access. The court discusses when that presumption is overcome. This case involved the attempt by healthcare plans to unseal documents in connection with a summary judgment. As indicated, there is presumption of access. There is important public right of access. There interests are particularly important in a case such as this one, which implicates the public's trust in a well-known and (formerly) widely-used drug. By giving insufficient weight to the public's strong interest in the openness of judicial records, the District Court erred as a matter of law in applying the common law right of access. The District Court also erred by not conducting a document-by-document review, instead analyzing sixty-five disputed documents in a single paragraph contained in a footnote. This collective evaluation of the harm allegedly suffered by GSK falls short of the exacting analysis our precedent requires. The Court remanded for an evaluation based upon the Court…

ANTITRUST-STANDING

June 19th, 2019 by Rieders Travis in Miscellaneous

Justice Kavanaugh delivered the opinion of the court. In 2007, Apple started selling iPhones. The next year, Apple launched the retail App Store, an electronic store where IPhone users can purchase IPhone applications from Apple. Those apps enable IPhone owners to send messages, take photos, watch videos, buy clothes, order food, arrange transportation, purchase concert tickets, donate to charities, and the list goes on. There is an app that has become part of the 21st Century American Lexicon. In this case, however, several consumers contend that Apple charges too much for apps. The consumers argue, in particular, that Apple has monopolized the retail market for the sales of apps and has unlawfully used its monopolistic power to charge consumers higher-than-competitive prices. A claim that a monopolistic retailer (here, Apple) has used its monopoly to overcharge consumers is a classic antitrust claim. But Apple asserts that the consumer-plaintiffs in this case may not sue Apple because they supposedly were not direct purchasers from Apple under our decision in Illinois Brick Co. vs. Illinois, 431 U.S. 720, 745-746 (1977). We disagree. The Plaintiffs' purchased apps directly from Apple and therefore are direct…

AMERICANS WITH DISABILITIES ACT-“REGARDED AS” THEORY-JURY VERDICT IN CIVIL RIGHTS

April 8th, 2019 by Rieders Travis in Miscellaneous

Robinson v. First State Cmty. Action Agency, 2019 3rd Cir. LEXIS 9503 (April 1, 2019) Fuentes, J.-Tamra Robinson was told by her manager Karen Garrett that her work performance was so poor that “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” Taking Garrett’s words seriously, Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner, and she was advised to focus on improving her performance. Weeks later, she was fired. During the litigation in the District Court between Robinson and her former employer, First State Community Action Agency, Robinson acknowledged that she could not prove she was dyslexic. She proceeded on a different theory, that she was perceived or regarded as dyslexic by her employer and was therefore entitled to a reasonable accommodation the same way someone who was dyslexic…

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTOR-ENFORCEMENT OF SECURITY INTERESTS

April 1st, 2019 by Rieders Travis in Miscellaneous

Obduskey v. McCarthy & Holthus, LLP, 2019 U.S. LEXIS 2090 (March 20, 2019) Breyer, J.  The Fair Debt Collection Practices Act regulates “debt collector[s].” 15 U.S.C. §1692a(6); see 91 Stat. 874, 15 U.S.C. §1692, et. seq. A “debt collector,” the Act says is “any person … in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts.” §1692a(6). This definition, however, goes on to say that “[f]or the purpose of section 1692f(6)” (a separate provision of the Act), “[the] term [debt collector] also includes any person … in any business the principal purpose of which is the enforcement of security interests.” Ibid. The question before us concerns this last sentence. Does it mean that one principally involved in “the enforcement of security interests” is not a debt collector (except “[f]or the purpose of section 1692f(6)”)? If so, numerous other provisions of the Act do not apply. Or does it simply reinforce the fact that those principally involved in the enforcement of security interests are subject to §1692f(6) in addition to the Act’s other provisions? This…

UNFAIR TRADE PRACTICES & CONSUMER PROTECTION LAW-SUBSURFACE MINERAL RIGHTS-ATTORNEY GENERAL’S ACTION-ANTI-TRUST LAW

March 28th, 2019 by Rieders Travis in Miscellaneous

Anadarko Petroleum Corp. v. Commonwealth, 2019 Pa. Cmwlth. LEXIS 236 (March 15, 2019) Ceisler, J.-In these combined interlocutory appeals by permission, we address two issues of first impression pertaining to Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (Law or UTPCPL). The first is whether Appellee Commonwealth of Pennsylvania, Office of Attorney General (Attorney General), can bring a cause of action against lessees pursuant to the UTPCPL, due to allegedly wrongful conduct perpetrated by the lessees in the context of leasing subsurface mineral rights from private landowners. The second issue is whether the Attorney General can bring a cause of action against those lessees, pursuant to the UTPCPL, for alleged violations of antitrust law. The Court of Common Pleas of Bradford County (Trial Court) answered both questions in the affirmative; however, after thorough consideration, we affirm in part and reverse in part. We hold that the Attorney General was permitted to file a UTPCPL-based lawsuit against Appellants, but can only pursue antitrust claims through the UTPCPL where the so-called “antitrust” conduct qualifies as “unfair methods of competition” or “unfair or deceptive acts or practices,” as those terms have been either…

FAIR AND ACCURATE CREDIT TRANSACTIONS ACT OF 2003-STANDING

March 28th, 2019 by Rieders Travis in Miscellaneous

Ahmed Kamal v J. Crew Group, Inc.; J. Crew, Inc.; J. Crew Intermediate, LLC; J. Crew International, Inc.; J. Crew Operating Corp.; J. Crew Services, Inc.; Chinos Acquisition Corp.; Chino’s Holdings, Inc., 2019 3rd Cir. 2018 (March 8, 2019) Scirica, J.-Enacted to combat credit card and identity theft, the Fair and Accurate Credit Transactions Act of 203 (FACTA) prohibits anyone who accepts credit or debit cards as payment from printing more than the last five digits of a customer’s credit card number on the receipt. 15 U.S.C. §1681c(g). Plaintiff-Appellant Ahmed Kamal brought this suit after receiving three receipts from Defendants-Appellees J. Crew Group, Inc. (and related entities) that included both the first six and last four digits of his credit card number. The District Court dismissed Kamal’s suit under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing based on its determination that Kamal did not suffer a concrete injury from the alleged violation. We agree, and we will affirm on that issue. We will vacate and remand, however, for the District Court to dismiss Kamal’s complaint without prejudice.

FAIR DEBT COLLECTION PRACTICES ACT-DEBT COLLECTORS-PRINCIPAL PURPOSE

March 1st, 2019 by Rieders Travis in Miscellaneous

Barbato v. Greystone Alliance, LLC, No. 18-1042 (3d Cir. February 22, 2019) Krause, C.J. The Fair Debt Collection Practices Act (“FDCPA”) protects consumers from abusive, deceptive, or otherwise unfair debt collection practices.  15 U.S.C. § 1692(a). It applies to “debt collectors,” defined alternatively as those engaged “in any business the principal purpose of which is the collection of any debts” and those “who regularly collect[]” debts “owed or due another.” Id. § 1692a(6). This appeal concerns only the first definition and requires us to determine whether an entity that acquires debt for the “purpose of . . . collection” but outsources the actual collection activity qualifies as a “debt collector.” The District Court held that it does, and we agree: an entity that otherwise meets the “principal purpose” definition cannot avoid the dictates of the FDCPA merely by hiring a third party to do its collecting. We therefore will affirm.