Police and prosecution roundup

Physical attendance not required? ADA and telecommuting, cont’d

If employers think they’ve got discretion to decide whether a job requires on-the-spot attendance, they’ve got another think coming [Daniel Schwartz, Jon Hyman]:

In EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals found that a former Ford employee could proceed to a trial on her claim that the company was required to allow her to telecommute on a regular basis. …

[The plaintiff was a] “resale buyer” at Ford who responded to emergency steel supply issues to make sure that parts manufacturers always had an adequate steel supply on hand.

According to Ford, her job required group problem solving, including interaction with other members of the resale team and suppliers….

[The court said that while] attendance at work is still an essential function of most jobs, “attendance” can no longer be assumed to mean presence at the physical workplace.

Instead, the court said, a jury should decide whether physical attendance is an “essential function” of the job under all the circumstances. Earlier here and, at Cato, here.

May 5 roundup

“The trial lawyers are the single most powerful political force in Albany”

Don’t take my word for it, take New York Democratic Gov. Andrew Cuomo’s:

Mr. Cuomo conceded that the scaffold law was among the “infuriating” things about doing business in New York, but couldn’t be changed because of the strength of its supporters, particularly the state trial lawyers association.

“The trial lawyers are the single most powerful political force in Albany,” he said. “That’s the short answer. It’s also the long answer.”

As Andrew Hawkins explains at Crain’s New York Business, which interviewed Cuomo, the scaffold law is New York’s alone-in-the-country legal regime ascribing 100% liability for gravity-related workplace injuries to businesses found to have contributed any fault, even if the predominant cause was a worker’s drunkenness or decision to violate safety rules. Because awards are high, some estimate that the law will contribute $200 million to construction costs at the Tappan Zee Bridge rebuilding project alone compared with a law more typical of what is found in other states. The law has been under vigorous attack for some time by a New York business coalition, to no avail.

Maryland roundup

  • Correctional Officers Bill of Rights (COBR) of 2011, developing out of AFSCME efforts to defend prison guards in western Maryland, and role it played in Baltimore jail scandal. Vital reading [Charles Lane, City Journal, Sasha Volokh; earlier; related Kevin Williamson on incident at NYC’s Riker’s Island in which mentally ill inmate was permitted to roast to death, responsible officer drawing 30-day suspension]
  • Narrowly defeated effort to enact state False Claims Act becomes issue in Senate GOP primary [Frederick News-Post, earlier here, here]
  • Citing federal guidelines, Howard County schools restrict special-event food [Ellicott City Patch]
  • Judge rebuffs lawsuit by Montgomery County police union seeking to invalidate legislative measures inconsistent with its contract [WaPo] County council race “a ‘battle royale’ between the government employee and school system unions” [Seventh State]
  • “Maryland Puts Up Roadblocks to Online Ed” which just happens to protect the state’s UMUC (University of Maryland University College) [The American Interest, Arnold Kling]
  • Will Montgomery County finally get out of the liquor distribution business? [Bethesda magazine]
  • And speaking of MoCo monopolies, its taxi near-cartel needs to go: “Uber provides a better service even without the regulation” [David Lublin, The Seventh State]

Judge Tjoflat on shotgun pleadings

Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:

We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.

After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,

the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun.

Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.

Supreme Court roundup

  • Court will hear case of mariner charged with Sarbanes-Oxley records-destruction violation for discarding undersized fish [Jonathan Adler, Eugene Volokh, Daniel Fisher]
  • SCOTUS goes 9-0 for wider patent fee shifting in Octane Fitness v. ICON and Highmark v. Allcare Health Management System Inc. [Ars Technica, ABA Journal, earlier]
  • Constitutional principle that Washington must not give some states preference over others could face test in New Jersey NCAA/gambling case [Ilya Shapiro, Cato]
  • Supreme Court grants certiorari in Dart Cherokee Basin Operating Co. v. Owens, a class action procedure case on CAFA removal [Donald Falk, Mayer Brown Class Defense Blog]
  • “Supreme Court’s Daimler decision makes it a good year for general jurisdiction clarity” [Mark Moller, WLF, earlier] Decision calls into question “the jurisdictional basis for this country’s litigation hellholes” [Beck]
  • How liberals learned to love restrictive standing doctrine [Eugene Kontorovich, more]
  • “California Shouldn’t Be Able to Impose Regulations on Businesses Outside of California” [Ilya Shapiro on cert petition in Rocky Mountain Farmers Union v. Corey (fuel standards)]