Latest 11 Cases This Week: Robinson v. Town of Marshfield (1st Cir.), Sea-Land Services, Inc. v. DOWCP, et al. (5th Cir.), Summer J. v. United ...

The Clients’ Waiver of Their Rights Under Regulation BI of the Securities and Exchange Commission

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses the Securities and Exchange Commission (SEC)’s Regulation Best Interest (BI), which imposes on broker-dealers a commitment to act in the best interests of their clients. Specifically, Frankel addresses the SEC’s treatment of client waivers of the Regulation BI, which goes even further than general fiduciary law to prohibit any waiver of the broker-dealer’s conflicting interests.

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Robinson v. Town of Marshfield

Court: US Court of Appeals for the First Circuit

Docket: 19-1155

Opinion Date: February 14, 2020

Judge: David J. Barron

Areas of Law: Civil Rights, Contracts, Labor & Employment Law, Personal Injury

The First Circuit affirmed the district court's grant of summary judgment on Appellant's federal law claims under the Age Discrimination and Employment Act, and on the state-law claims for discrimination, retaliation based on a complaint of age discrimination, and failure to investigate and vacated the summary judgment on the state law claims for retaliation based on a report of gender discrimination, breach of contract, intentional interference with contractual relations, and defamation, holding that the court erred in granting summary judgment as to these claims. This lawsuit arose from events that led to Appellant's retirement from his position as Fire Chief for the Fire Department of the Town of Marshfield, Massachusetts. The district court granted summary judgment in favor of the Town on all of Appellant's federal and state law claims. The First Circuit affirmed in part and vacated in part, holding (1) summary judgment was properly granted as to some of Appellant's claims; but (2) as to the remaining state law claims, there was no analogue to the common law claims in the federal law claims that were addressed, and rather than attempt to resolve the state law issues that were in dispute as to these claims, their dismissal was directed without prejudice.

Sea-Land Services, Inc. v. DOWCP, et al.

Court: US Court of Appeals for the Fifth Circuit

Docket: 18-60698

Opinion Date: February 14, 2020

Judge: Jerry E. Smith

Areas of Law: Admiralty & Maritime Law, Government & Administrative Law, Personal Injury

Clarence Ceasar, Jr. injured his neck and back while working as a longshoreman for Sea-Land Services, Inc. in 1997. Because of those injuries, Ceasar was unable to work and had to undergo several medical procedures. Thirteen years later, Ceasar and Sea-Land reached a settlement, under which Ceasar received a lump sum instead of continuing disability payments. Sea-Land remained on the hook for Ceasar’s ongoing medical expenses. Ceasar was cleared to return to longshoreman duties in 2010 with no restrictions, despite chronic neck and lower back pain. Ceasar started working for Universal Maritime Service Company ("UMS") and was injured again a year later when a coworker lowered a cargo container onto his hands. Sea-Land petitioned the Fifth Circuit Court of Appeals for review of an order of the Benefits Review Board (“BRB”) which upheld the determination of an administrative law judge (“ALJ”) that Ceasar did not aggravate his 1997 injury at Sea-Land while working for UMS in 2011. After review, the Fifth Circuit determined the BRB did not err, denying Sea-Land's petition.

Summer J. v. United States Baseball Federation

Court: California Courts of Appeal

Docket: B282414(Second Appellate District)

Opinion Date: February 18, 2020

Judge: Dennis M. Perluss

Areas of Law: Entertainment & Sports Law, Personal Injury

The provision of adequate protective netting in a perceived zone of danger behind home plate (or for field-level seating along the first- and third-base lines between home plate and the dugouts) increases safety and minimizes the risk of injury to spectators without altering the nature of baseball as it is played today in professional and college ballparks. The Court of Appeal reversed the trial court's judgment entered in favor of US Baseball after sustaining without leave to amend US Baseball's demurrer to the first amended complaint of a 12 year-old who was seriously injured by a line drive foul ball while watching a baseball game sponsored by US Baseball. The court held that plaintiff's proposed second amended complaint stated causes of action for negligence and premises liability against US Baseball. In this case, plaintiff adequately alleged duty and breach, and any issue of "open and obvious danger" could not be resolved on demurrer. Accordingly, the court remanded with directions to the trial court to vacate its order sustaining US Baseball's demurrer without leave to amend and to enter a new order sustaining the demurrer and granting plaintiff leave to file a second amended complaint.

Zehia v. Super. Ct.

Court: California Courts of Appeal

Docket: D076449(Fourth Appellate District)

Opinion Date: February 20, 2020

Judge: Judith McConnell

Areas of Law: Civil Procedure, Personal Injury

California resident Nicholas Nadhir sued non-resident Yousef Zehia for defamation, violation of the online impersonation law, appropriation of name or likeness, and intentional infliction of emotional distress based on Zehia's sending of allegedly defamatory statement to California residents through private online social media messages with the aim of interfering with the residents' personal relationships. Zehia moved to quash service of summons and the trial court denied the motion to quash on grounds that the exercise of specific personal jurisdiction over Zehia was proper. Zehia filed a petition for writ of mandate requesting that the Court of Appeal direct the trial court to vacate its order denying his motion to quash and enter a new order granting the motion to quash. The Court concluded Zehia's suit-related conduct created a substantial connection between Zehia and California sufficient to support the exercise of specific personal jurisdiction over him. Therefore, the trial court correctly denied the motion to quash. Zehia's writ petition was denied.

Jackson v. Estate of Gary Day

Court: Kentucky Supreme Court

Docket: 2018-SC-000297-DG

Opinion Date: February 20, 2020

Judge: Hughes

Areas of Law: Personal Injury

The Supreme Court affirmed the court of appeals' opinion affirming the trial court's grant of summary judgment in favor of Defendants and dismissing Plaintiffs' complaint based on this Court's holding in Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999), holding that the lower courts correctly held that Plaintiffs' claims were filed outside the statute of limitations period and that the requirements of Ky. R. Civ. P. 15.03 were not met. Plaintiffs were injured when their vehicle was struck in the rear by a vehicle operated by Gary Day. Before the limitations period expired on their claims, Plaintiffs filed a personal injury complaint against Day. The parties did not know, however, that Day had died a year earlier. After expiration of the statute of limitations Plaintiffs successfully petitioned the probate court to appoint a public administrator for Day's estate. Plaintiffs then filed a complaint correctly naming the Estate as a party with the correct administrator. The trial court concluded that the claims were time barred. The Supreme Court affirmed, holding (1) Gailor is applicable and controlling; (2) knowledge of a claim cannot be imputed to a non-existent party to satisfy the notice requirement of Rule 15.03; and (3) this case did not warrant tolling of the statute of limitations.

Williams v. Hawkins

Court: Kentucky Supreme Court

Docket: 2019-SC-000012-DG

Opinion Date: February 20, 2020

Judge: Hughes

Areas of Law: Personal Injury

The Supreme Court affirmed the decision of the court of appeals affirming the judgment of the trial court dismissing as untimely Tracie Williams' complaint against Katelin Hawkins as the administratrix of the estate of Charlotte Hawkins, holding that no extraordinary circumstance justified deviating from the routine application of the statute of limitations. In March 2015, Williams was injured in a two-vehicle accident with Charlotte. Charlotte died in October 2015. Williams, however, did not discover Charlotte's death until one day prior to the expiration of the statute of limitations in March 2017. When Williams filed her initial complaint against Charlotte the trial court dismissed it as a legal nullity because the court could not have jurisdiction over a deceased individual. After Katelin was appointed as administratrix, a new complaint was filed against Katelin in May 2017. The trial court dismissed the complaint because it was not filed within the two-year limitations period. The court of appeals affirmed. The Supreme Court affirmed, holding (1) no extraordinary circumstances existed to justify equitable tolling; and (2) equitable estoppel was inapplicable.

Anderson v. Wiggins

Court: Supreme Court of Mississippi

Citation: 2017-CT-00607-SCT

Opinion Date: February 20, 2020

Judge: Josiah D. Coleman

Areas of Law: Civil Procedure, Personal Injury

The Chancery Court granted summary judgment in favor of Darnice Wiggins in a conversion case she brought against Chastity Anderson, the fiancée of Wiggins’s deceased son Jhonte Sanders. Sanders and Anderson met each other while serving in the military in 2009. The two lost touch with one another. In 2011, Sanders was diagnosed with leukemia while living in Chicago, Illinois. In May 2013, Sanders reconnected with Anderson online. Sanders then moved to Rankin County, Mississippi and continued his chemotherapy treatment at University of Mississippi Medical Center (UMMC). In 2014, Sanders settled a personal-injury claim and received a monetary settlement in excess of $350,000. Sanders made multiple transfers of those settlement funds to Anderson. Sanders died soon after the transfer of his funds. Following Sanders’s death, the Chancery Court appointed Wiggins administratrix of his estate. Wiggins filed a “Complaint for Conversion” against Anderson, the crux of her complaint revolved around transfers Sanders made after his personal-injury settlement. In support of her conversion claim, Wiggins alleged that Anderson was aware of Sanders’s pending settlement, that Sanders qualified as a vulnerable adult, and that Anderson either unduly influenced him to transfer the funds or utilized her position of trust to take advantage of him while he was a vulnerable adult. During the summary judgment hearing, Wiggins offered multiple exhibits into evidence. Wiggins argued that the court should grant her motion because Anderson’s admissions, the established facts, and a doctor's affidavit proved that no genuine issue of material fact existed. The chancellor agreed and granted summary judgment, reasoning that the pleadings, answers to discovery and requests for admission, together with the affidavit of the doctor showed no genuine issue of material fact. De facto affirming the chancery courts decision by a 5-5 vote, the prevailing opinion wrote that Anderson’s failure to respond to the motion for summary judgment meant she rested upon her allegations, and those were insufficient to show there was a genuine dispute of material fact. The Mississippi Supreme Court determined the Chancery Court erred by granting the motion for summary judgment. Viewing the evidence in the light most favorable to the nonmoving party left genuine issues of material fact unresolved. The matter was remanded for further proceedings.

Holland v. Murphy Oil USA, Inc.

Court: Supreme Court of Mississippi

Citation: 2018-CA-01491-SCT

Opinion Date: February 20, 2020

Judge: Leslie D. King

Areas of Law: Business Law, Personal Injury, Real Estate & Property Law

In 2016, Mario Holland parked his vehicle at Black’s Food Market and walked to West Lounge. Upon returning to his vehicle after patronizing West Lounge, Holland was shot and robbed in the Black’s Food parking lot. He alleged the assailant came from a vacant lot across the street from Black’s Food. Murphy Oil owned the vacant lot. Holland suffered serious injuries from the assault. The trial court granted summary judgment in favor of defendant Murphy Oil, finding that, as a landowner that owned land near the scene of an assault, it did not owe any legal duty to Holland. Holland appealed, arguing that the Mississippi Supreme Court should adopt Section 54 of the Restatement (Third) of Torts, which provided for instances when landowners might owe a duty to persons or property located off the landowner’s property. The Supreme Court determined it did not need to address the Restatement because it did not apply to the facts of this case. Further, the Court affirmed the trial court’s grant of summary judgment because the landowner did not owe any legal duty to Holland.

In the Matter of the Estate of Julisa Matute

Court: Supreme Court of Mississippi

Citation: 2018-CA-01772-SCT

Opinion Date: February 20, 2020

Judge: Griffis

Areas of Law: Health Law, Personal Injury, Trusts & Estates

Sixteen-year old Julisa Matute, along with her sister and father, were involved in a motor-vehicle accident in Harrison County, Mississippi. Julisa was transported to Mobile, Alabama, and was admitted to University of South Alabama Medical Center, a hospital operated by University of South Alabama (USA). Julisa died there intestate. Julisa’s mother and sister executed an authorization for the donation of Julisa’s organs with the Alabama Organ Center (AOC). An estate was opened; Julisa’s mother was appointed administratrix of the Estate. Shortly thereafter notice was served to creditors, USA probated a claim against the Estate for medical expenses. The Estate filed a “complaint to contest illegal probated claim and compulsory counterclaim,” alleging that before Julisa’s death, USA representatives approached Julisa’s family and asked that they donate her organs and, in turn, Julisa’s hospital bill incurred at USA would be “totally wiped out and not be collected.” As a result of this alleged agreement, the Estate contested USA’s probated claim and asserted that the “probated claim [wa]s null and void and uncollectable.” In a counterclaim, the Estate alleged emotional distress, fraud, and punitive damages because, according to the Estate, “[t]he hospital told [Julisa’s family] that the bill would be wiped clean for allowing them to have [Julisa’s] organs . . . .” A wrongful-death lawsuit related to the motor-vehicle accident was filed then by the Estate. A settlement was reached among the parties in September 2018. Months later, a hearing was held on USA’s contested probated claim. The chancellor entered a judgment approving the Estate’s Petition to Receive First and Final Accounting, Discharge Administratrix and Close Estate. USA filed a motion to alter or amend the order granting the Estate’s Petition to Approve Settlement of Claims of Wrongful Death Beneficiaries of Julisa, and asserted that the chancellor’s reference to a “hospital lien claim” was erroneous. The chancellor denied the motion. USA timely appealed. The Mississippi Supreme Court determined that while the chancellor properly denied USA's probated claim as uncollectable, the chancellor erred in finding the probated claim was invalid and erroneously ruled on USA's hospital-lien claim. As a result, the chancery court's judgment was affirmed in part, reversed in part, and remanded for further proceedings.

Hegger v. Valley Farm Dairy Co.

Court: Supreme Court of Missouri

Docket: SC97993

Opinion Date: February 18, 2020

Judge: Powell

Areas of Law: Labor & Employment Law, Personal Injury

The Supreme Court affirmed the decision of the labor and industrial relations commission denying Claimants' claim for enhanced mesothelioma benefits under Mo. Rev. Stat. 287.200.4(3)(a), holding that because the deceased employee's employer (Employer) did not "elect to accept mesothelioma liability," Claimants were not entitled to the enhanced benefit. The decedent died from mesothelioma cause by toxic exposure to asbestos during his employment with Employer. Prior to his death, Claimants filed a claim for workers' compensation benefits and specifically sought enhanced benefits under subdivision 287.200.4(3)(a). An administrative law judge denied the claim. The commission affirmed the denial of the enhanced benefit, concluding that an employer that ceased operations sixteen years before section 287.200.4(3)(a) took effect could not have elected to accept enhanced liability under that section. The Supreme Court affirmed, holding that Claimants were not entitled to the enhanced benefit because Employer did not affirmatively elect to accept liability for the enhanced benefit as required under statute.

Dean v. Bowling Green-Brandywine

Court: Supreme Court of Pennsylvania

Docket: 26 MAP 2019

Opinion Date: February 19, 2020

Judge: Doughtery

Areas of Law: Civil Procedure, Personal Injury

The issue this case presented for the Pennsylvania Supreme Court’s review centered on the scope and application of the qualified immunity provided under Section 114 of the Mental Health Procedures Act (MHPA), 50 P.S. sections 7101-7503. On November 20, 2012, twenty-three year-old Andrew Johnson (Andrew) voluntarily admitted himself to Bowling Green-Brandywine Addiction Treatment Center (Brandywine). Andrew sought drug rehabilitation treatment for his addiction to opiates (OxyContin) and benzodiazepines (Xanax), which were first prescribed to him two years earlier for pain and anxiety related to back injuries arising from an ATV accident. He was accompanied by his mother, appellant Melissa Dean, and reported his health history to Brandywine staff. Appellee Mohammad Ali Khan, M.D., a physician at Brandywine, took Andrew’s medical history and performed a physical exam. At approximately 8:15 in the evening of November 28, 2012, the nursing staff informed Khan of Andrew’s elevated vital signs, but Khan declined to examine Andrew, did not issue any new treatment orders, and instructed the nursing staff not to transfer Andrew to the emergency room. The nursing staff again checked Andrew every few hours, noting his vital signs but giving no additional treatment. At approximately 7:50 a.m. the next morning, Andrew was found lying on the floor of his room, face down, without a pulse. He was transferred to a nearby hospital where he was pronounced dead. Andrew’s parents, appellant Dean and Clifton Johnson, as administrators of Andrew’s estate and in their individual capacities, filed suit against Brandywine, Dr. Kahn, and others who treated Andrew, raising medical malpractice, wrongful death and survival claims. Specifically, appellants alleged Andrew died of a cardiac arrhythmia due to the combination of medications prescribed during treatment at Brandywine, and that his death was the result of medical negligence including the failure to properly examine, diagnose, appreciate, and treat his medical condition. The Pennsylvania Supreme Court concluded the Superior Court erred in affirming entry of a compulsory nonsuit and held immunity did not apply under circumstances where: (1) the patient was admitted for and primarily received drug detoxification treatment; and (2) the patient did not receive treatment to facilitate recovery from a mental illness. Consequently, the Court reversed and remanded for further proceedings.