Third Circuit: First Amendment Protects Those Recording Police in Public

Is the recording of police carrying out their official duties in public places protected by the First Amendment? Recently, in a case with implications for news organizations as well as citizen-observers, a federal court judge dismissed the First Amendment claims of two citizens against police officers who disrupted, inspected, restrained and/or cited them while they were recording police officers operating in public. In Richard Fields v. City of Philadelphia, 16-1650, 2017 WL 2884391 (3d Cir. July 7, 2017), the U.S. Court of Appeals for the Third Circuit reversed, holding that the First Amendment protects this activity.

To read the full text of this Alert, please visit the Duane Morris website.

Could Bristol-Myers Squibb Co. Cure Forum Shopping?

By: Theresa A. Langschultz and Heather U. Guerena

In an 8-1 decision, the Supreme Court appeared to deal a blow to forum shopping last week in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (“BMS”).

In BMS, a mixed group of California residents and nonresidents sued Bristol-Myers Squibb in California, alleging injury due to the pharmaceutical company’s drug Plavix. The Supreme Court held that California courts lacked specific jurisdiction to entertain the claims brought by plaintiffs who are not California residents, because there was an insufficient connection between the forum and the specific claims at issue. Justice Alito, writing for the majority, noted that the nonresidents weren’t prescribed the drug in the state, didn’t buy the drug in the state, didn’t take the drug in the state, and weren’t injured by the drug in the state. Further, Bristol-Myers Squibb is incorporated in Delaware and headquartered in New York. The Court ruled that:

the mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims.

__ S. Ct. __, 2017 WL 2621322, at *8 (U.S. June 19, 2017).

The effect of the Court’s ruling was immediate: within hours of the Court’s decision, a St. Louis Circuit Court judge declared a mistrial in a products liability action brought on behalf of Missouri residents and nonresidents. See Michael Blaes et al. v. Johnson & Johnson et al., No. 1422-CC09326-01, ________ WL ________ (Mo. Cir. Ct. 22d June 19, 2017). In Blaes, defendant Johnson and Johnson moved for an immediate mistrial in a case in which a Missouri resident and two nonresidents alleged injury due to the company’s talcum products, arguing that BMS could prove fatal to the claims of the individuals who resided outside of Missouri.

BMS suggests that plaintiffs are foreclosed from bringing suits based on specific jurisdiction in a state without a sufficient connection between the forum and the specific claims at issue. However, as Justice Alito pointed out, plaintiffs still have a variety of options. Nonresident and resident plaintiffs may join together to bring a class action against a company in a forum in which the company is headquartered or incorporated. See Bristol-Myers Squibb Co. v. Super. Ct. of California, San Francisco County, __ S. Ct. __, 2017 WL 2621322, at *11. Similarly, plaintiffs may be able to bring a class action against a company in their state of residence. Id. However, BMS illustrates that nonresident plaintiffs who bring suit against an out-of-state defendant in a forum that does not bear a connection to their claim risk dismissal of their action.


How Long Does a California Civil Appeal Take?

Based on 2016 California court statistics, the time from the notice of appeal in a civil case to the filing of the Court of Appeal’s opinion differs substantially between California’s six appellate districts, and even between divisions within districts. The fastest California appellate court currently is Division 6 of the Second District in Ventura, with a median time of 423 days (a little over 14 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the court are processed in 667 days (a little over 22 months).

At the other end of the spectrum is the Third District in Sacramento, with a median time of 693 days (a little over 23 months) to process a civil appeal from the notice of appeal to the filing of the decision. Ninety percent of all civil appeals in the Third District are processed in 1,107 days (a little over 3 years).

Statewide, the median time to process civil appeals for all California appellate courts is 518 days (a little over 17 months), with ninety percent of all civil appeals processed statewide on average in 846 days (a little over 28 months).

Why the discrepancy between courts? Filings per justice explain much, but so does backlog. The Third District, for example, has far and away the largest number of pending appeals per justice.

And while we’re discussing statistics, what are your chances for success on appeal? If you’re the appellant, they’re pretty slim. Only 10% of civil appeals were reversed statewide in 2014-15. And if you decide to seek review in the California Supreme Court, it’s even more of a longshot—only 5% of petitions for review from civil appeals were granted by the Supreme Court in 2014-15.

The complete 2016 statistics can be found here.

Pyrrhic Victories Are to Be Avoided

This column discussed this subject almost 20 years ago (NYLJ April 7, 1999), but two recent decisions publicized on the front pages of the Law Journal suggest that it would be well to advise a new generation of lawyers that tactical victories in a jury trial may be followed by a loss of the appellate war. As a reminder, King Pyrrhus of Epirus, in Greece, triumphed over the Romans at Asculum, in southeastern Italy, in 279 B.C.E., but his losses were so heavy that he is reported to have said: “Another such victory over the Romans, and we are undone.” Bartlett’s, “Familiar Quotations,” p. 92, quoting Plutarch, “Lives,” Pyrrhus.

In litigation, the aim of an injured plaintiff is to obtain monetary or some other form of relief; for the defendant, vindication and dismissal of the action. It cannot be counted a victory if a favorable verdict is set aside by the trial or appellate court after a lengthy trial and the case must be retried at considerable expense, loss of time and renewed mental and emotional strain on the injured party or his or her survivors—all because of counsel’s avoidable error.

To read the full text of this article by Duane Morris attorney Thomas R. Newman, please visit the Duane Morris LLP website.

U.S. Supreme Court to Hear Major Sports Betting Case

The U.S. Supreme Court announced today that it will hear an appeal from the en banc Third Circuit in the closely watched and long-running New Jersey sports betting litigation (consisting of two consolidated cases, Governor Christopher J. Christie, et al., v. NCAA et al., No. 16-476 and New Jersey Thoroughbred Horsemen’s Association, Inc. v. NCAA et al., No. 16-477).  The consolidated appeal, which will be argued next term, urges the Supreme Court to reverse the en banc Third Circuit panel that refused to allow New Jersey to expand sports betting in that state.

This appeal and the potential nationwide consequences of reversing the Third Circuit panel were the subject of an extended presentation and discussion at Duane Morris’ Future of Sports Betting panel, held on April 27, 2017.  The panel included John Brennan, staff writer for The Record; Andrew Brandt, Director of the Moorad Center for Sports Law at Villanova Law School; and Christopher Soriano, Partner at Duane Morris.

The “Death-Knell” Doctrine is Really Most Sincerely Dead

On June 12. 2017, the United States Supreme Court decided Microsoft Corp. v. Baker, 582 U.S. ___. The Court phrased the question before it as follows:

Do federal courts of appeals have jurisdiction under §1291 and Article III of the Constitution to review an order denying class certification (or, as here, an order striking class allegations) after the named plaintiffs have voluntarily dismissed their claims with prejudice?

Spoiler alert: the Court (8-0) answered “No.”
Continue reading The “Death-Knell” Doctrine is Really Most Sincerely Dead

When is an “Aggrieved Consumer” Not Aggrieved?

In 1981, New Jersey enacted the Truth in Consumer Contract, Warranty and Notice Act (the “TCCWNA”), N.J.S.A. §§ 56:12-14 to 12-18. Although the law languished in relative obscurity for decades, there has been a widely-discussed uptick recently in putative class actions invoking the TCCWNA. The TCCWNA broadly prohibits any:

offer to any consumer or prospective consumer or enter[ing] into any written consumer contract or giv[ing] or display[ing] any written consumer warranty, notice or sign . . . which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the consumer contract is signed or the warranty, notice or sign is given or displayed.

N.J.S.A. § 56:12-15.

Continue reading When is an “Aggrieved Consumer” Not Aggrieved?

Recent Appellate Decision Draws Attention to Key Steps to Enforcing Restrictive Covenants

The Pennsylvania Superior Court’s recent decision in Metalico Pittsburgh, Inc. v. Douglas Newman, et al., No. 354 WDA 2016, 2017 PA Super. 109 (Apr. 19, 2017), confirms the importance of careful contractual drafting in agreements containing non-compete clauses and other post-employment restrictive covenants.  In circumstances where an employee is hired for a term of employment but later becomes an at-will employee, that contractual language may determine the enforceability of the agreement’s non-compete and non-solicitation provisions.

Metalico entered into employment agreements with two employees in 2011. Each employment agreement had a three‑year term and a non‑solicitation provision prohibiting solicitation of employees and customers to join competitors during their employment and for a finite period thereafter. After the three‑year employment terms ended in 2014, both employees continued to work as at‑will employees for one year. Shortly thereafter, the two employees began working for a business competitor and allegedly began soliciting Metalico customers and employees to move to that competitor. Metalico sued to enforce the agreements’ non-solicitation provisions.

Continue reading Recent Appellate Decision Draws Attention to Key Steps to Enforcing Restrictive Covenants

The Future of Administrative Deference in Pennsylvania

By Brian J. Slipakoff and Joseph J. Pangaro

As Justice Neil Gorsuch’s confirmation hearings progressed in the early part of 2017, one of the most commonly discussed aspects of his legal background was his opposition to administrative deference. The legal profession will surely be watching to see whether the Supreme Court’s long standing position “that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer” will remain intact. Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837 (1984).  However, administrative deference is not simply a federal issue, and Pennsylvania’s view of the question is closely tied to the federal regime.  Continue reading The Future of Administrative Deference in Pennsylvania

How Long Will My Ninth Circuit Civil Appeal Take?

We hear that question frequently. Using the most recent statistics from the Administrative Office of the United States Courts published in its Judicial Business 2016 report for the fiscal year ending September 30, 2016, the median time from Appellee’s brief to oral argument in civil appeals terminated on the merits in the Ninth Circuit is 16.5 months, and from notice of appeal to decision is 25.5 months (and that is just the median time–half the appeals take longer.) (See Table B-4A.) This is the slowest of the circuits. The next slowest circuit—the DC Circuit—handles civil appeals in 3.8 months from Appellee’s brief to oral argument, and 11.7 months from notice of appeal to decision.

The Ninth Circuit is the largest circuit geographically, and it remains the busiest, with 13,152 cases pending as of December 31, 2016. The next busiest circuit—the Fifth—had 5,252 cases pending as of the same date.  But measured by matters terminated on the merits per active judge, the Ninth Circuit is very much in the middle of the circuits, with 488 merits-based terminations per judge through December 31, 2016. The circuit with the heaviest workload, using this same measurement, is the Eleventh Circuit, with 1,151 merits-based dispositions per judge. The lowest terminations per active judge is the DC Circuit, with 163.