Federal judge mulls contempt charge against Michael Flynn - POLITICO

In another gift to a teacher of Remedies U.S. District Judge Emmett Sullivan is issued an ORDER appointing former federal judge John Gleeson as amicus curiae. Gleeson is directed to argue against the Department of Justice's motion to dismiss charges against former National Security Adviser Michael Flynn. - Despite Flynn's guilty plea.  The retired General lied about his contacts with Russian ambassador Sergei Kislyak, and failed to disclose his work as a foreign agent via his $600,000 consulting contract with a foreign power - Turkey.

The Justice Department has moved to dismiss its criminal information against Flynn.  The DOJ cites evidence that FBI agents set out to catch Flynn in a lie, for which he could be prosecuted under 18 USC 1001 which makes it a crime to make a "materially false" statement to a government agent.

At the heart of this dispute is the claim that Flynn, a  retired lieutenant general and former head of the Defense Intelligence Agency should have been warned in advance that lying to an FBI agent conducting an investigation is against the law.  The disputed handwritten notes say plainly "Our goal is to determine if Mike Flynn is going to tell the truth  (re) his relationship with Russians." The agents did not tell him in advance that it is a crime to lie to the FBI, even though he was a subject of investigation, not merely a prospective witness.  Flynn - then National Security Adviser to the President -  met with the agents and lied just days after Donald Trump took the oval office.

Flynn pleaded guilty to lying.

The DOJ claims now that 

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative
basis and therefore does not believe Mr.Flynn’s statements were material even if untrue.
Moreover,we not believe that the Government can prove either the relevant false statements or
their materiality beyond a reasonable doubt.

Their account is disputed  by Bill Priestap the agent who wrote the notes. 

Federal judge mulls contempt charge against Michael Flynn - POLITICO

A constitutional right to education fulfills our democratic promise | TheHill

A constitutional right to education fulfills our democratic promise  | TheHill

BY KIMBERLY JENKINS ROBINSON,

OTHERWISE: Supreme Court: The House’s defense of its Trump investigation was a disaster - Vox

OTHERWISE: Supreme Court: The House’s defense of its Trump investigation was a disaster - Vox

Booking.com - is such a `generic' trade name protectable under the Lanham Act?

Autotrader.com logo

I've told my Business Torts students that autotrader.com is a protectable trade name.  The busy online platform does what its name describes - people buy and sell cars.  It is a term that describes what many do.  But it has been in business as a .com long enough that consumers recognize it as the name of a particular marketplace.  That is called acquiring "secondary meaning".  Argued on its first day of telephonic oral argument the Supreme Court may tell me that I'm wrong. - gwc
Booking.com - is such a `generic' trade name protectable under the Lanham Act?
by Jessica Litman  // Scotusblog May 5, 2020

The Supreme Court’s first telephonic oral argument raised the question whether a business can create a registrable trademark or service mark by combining an unprotectable generic term for the services it offers with the generic top-level domain name “.com.” Trademark law bars registration of generic terms, but it permits the registration of merely descriptive terms if they have acquired enough secondary meaning that the public understands them as trademarks rather than as terms that describe goods and services. The U.S. Patent and Trademark Office refused to register BOOKING.COM as a service mark for hotel reservation services. The U.S. Court of Appeals for the 4th Circuit held that the mark was entitled to registration, and the Supreme Court agreed to review that decision. The legal and policy issues raised by the case are straightforward, and both parties are represented by experienced lawyers, so the case presented a good vehicle for the first remote argument in this unusual May session. The court adopted a new, more formal procedure under which each justice, in order of seniority, could ask a single round of questions of each lawyer.

Erica Ross, representing the Patent and Trademark Office, argued first. Ross relied heavily on an 1888 Supreme Court decision, Goodyear’s India Rubber Glove v. Goodyear Rubber Co., which held that the combination  of a generic term with a corporate designation like “Company” did not create a protectable trademark. She emphasized that the principle that generic terms cannot be protected as trademarks is longstanding and fundamental. For that reason, courts have long held that evidence that seems to show that a generic term has acquired secondary meaning will not allow the term to be protected as a trademark. Further, she explained, because only one entity at a time can use any given internet domain name, it will be easy for a generic.com business to generate a survey that proves that a significant number of consumers associate any domain name with a specific business, even if the consumers are not familiar with that business. That would allow online businesses to monopolize generic terms even though they would not be able to do so for an equivalent brick and mortar business.

Attorney Lisa Blatt argued on behalf of Booking.com. Blatt insisted that when Congress passed the Lanham Act, the primary federal trademark law, it repudiated the 1888 Goodyear case, in favor of a rule that asks what consumers believe that a term signifies. The statute tells trademark examiners and the courts to determine whether a term is generic by examining the primary significance of that term to consumers. This test allows consumers to decide which terms merit trademark protection. Blatt insisted that the anticompetitive harms the government predicted would not materialize. Her client has no interest in suing a company that uses a similar domain name, she argued, because it would be unable to show a likelihood that consumers would be confused. A registered mark would give her client a weapon against counterfeiting, fraud and cyberpiracy.

Workers' Compensation: A Federal Heroes Compensation Fund

Workers' Compensation: A Federal Heroes Compensation Fund

by Jon Gelman

The COVID-19 pandemic has the potential of generating an enormous number of occupational illness claims from health care workers [HCW] and first responders [FR]. Several governmental leaders have called for a nationalized workers’ compensation benefit program to handle the surge of claims. 

The ability of the patchwork of individualized state programs to handle the potential monumental surge of claims has come into question. The efficiency and effectiveness of a multitude of non-integrated and stand-alone schemes of workers’ compensation will be challenging. The fractionalized handling by multiple jurisdictions will produce an inconsistent and erratic benefit delivery solution that will impact the strategy to provide the best public health initiative nationally to cope with the COVID pandemic.

Federal Government Will Provide a Uniform Program

Typical federal benefits provide a uniform national solution. Issues as to exposure and casual relationship can be standardized across all claims. Fiscal stability of the states and insurance companies can be obtained through federal administration and financing of both administration and delivery, without regard to state budgets and insurance carrier premium dollars. Integration with collateral benefit programs such as Medicare and Medicaid can be fashioned in an integrated solution. State unemployment, pension and supplemental benefits can be applied, setoff and recovered on a common basis thorough a nationalized central Federal agency management.

State Programs Stressed

The state workers compensation structure will be seriously stressed to handle the growing number of potential claims. HCW and FR are experiencing increased rates of COVID-19 illness and fatalities. The workers are fulfilling their heroic frontline roll in the battle against the disease and enduring enhanced risk that threaten: themselves, their families, health care facilities and the community at large.

Workers’ compensation insurance carriers are not prepared for these unanticipated catastrophic losses. Premium coverage for this type of “once in an 100 year event” has not been calculated into the rates. The losses are not backstopped by other revenue sources. The economic consequences to the already monetarily and administratively challenged state budgets could be severe and could result in state and local public and private entity bankruptcy. States are already overwhelmed in processing unemployment benefits.

The fractionalized state programs are not equipped to handle the adjudication and administration of the exponential volume of potential claims and multitude of complicated legal issues. Legal jurisdictional issues over state-wide partnerships alone will lead to complicated and prolonged litigation. 

Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal

Appellate Division Sheds Light on Statutory and Common Law Claims in Environmental Cleanup Cases | New Jersey Law Journal


In 1969 Hess Oil spilled 8 million gallons of crude oil into the tidal Smith Creek and the Arthur Kill which runs between New Jersey and Staten Island, New York.  Other "discharges" of waste occurred in 1990 and 1992.  In an action filed in 2018 [!?] the state sought damages on multiple theories.
Common law trespass is not available to the State in an action against a polluter of rivers and streams, the Appellate Division of Superior Court held in New Jersey Department of Environmental Protection v. Hess Corporation.  As two environmental practitioners note the implications are not fully developed.  They report that "the State  filed a complaint seeking damages, injunctive relief and declaratory relief under the Spill Act, along with common law claims sounding in public nuisance, trespass and strict liability. These claims arose out of the environmental contamination of property formerly operated as an oil refinery and terminal."


Reversing the trial court's dismissal in the main the panel's most interesting conclusion is not that common law nuisance and strict liability survive the State's Spill Act.  But that trespass is unavailable because the State holds the rivers and streams in trust and therefore does not have the exclusive possession that underlies  common law trespass.


The plaintiff DEP argued that the State holds "water resources as trustees of the State, that they have a parens patriae responsibility to protect its resources, and any pollution of public waters constitutes a trespass".  The panel rejected that argument. Parens patriae is the doctrine under which public access to ocean front beaches has been preserved in New Jersey law.  But the court, saying the issue had not been raised below, took another tack.  It explained:

Under New Jersey law, "[a]n action for trespass arises upon the unauthorized entry onto another's property, real or personal." Pinkowski v. Township of Montclair, 299 N.J. Super. 557, 571 (App. Div. 1997). A trespass requires that the invasion be to land that is in the exclusive possession of the plaintiff. [State DEP v.] Ventron, 94 N.J. at 488-89 [1980]. Land in the public trust is held by the State on behalf of a second party, the people. Such land cannot be in "exclusive possession" of the State as the interest created by the doctrine is intended to ensure that others have use of the same land. It does
not grant to the State the exclusive possession of property.

Because it was decided by a two judge panel the opinion is unpublished [2020 N.J. Super. Unpub. LEXIS 622] and therefore of limited precedential weight.  But the discussion of remedies is thorough.  Because nuisance and New Jersey's strong strict liability for environmental torts doctrines stand its impact is limited.  But the implications that the common law trespass doctrine is unavailable to a public trustee is noteworthy and the sort of thing that students looking for a Note topic could seize upon.  Teachers too.  - GWC

OTHERWISE: Plaintiffs defeat J&J Daubert motion in NJ talc powder cases - NJ Law Journal

OTHERWISE: Plaintiffs defeat J&J Daubert motion in NJ talc powder cases - NJ Law Journal

Opinion | A Constitutional Right to Literacy for Detroit’s Kids? - The New York Times

Opinion | A Constitutional Right to Literacy for Detroit’s Kids? - The New York Times

Remedies - BP Oil Spill - Deepwater Horizon

SLIDES BP Deepwater Horizon Class Action

Deepwater Horizon Settlement Center

Economic and Property Damage Claims

Deepwater Horizon - film 2012 TRAILER

FAQ

NOAA explainer - Deepwater Horizon

Oil Pollution Act of 1990 - (OPA) key provisions

Prof. John Goldberg  Memo to BP claims administrator Kenneth Feinberg  re extent of BP's civil liability for damages

Remedies: Punitive Damages Spring 2020

SLIDES Mass Torts and the Troubled Rise of Punitive Damages
Video embedded below and link HERE

BACKGROUND AND REFERENCE MATERIALS
Deadly Dust: Silicosis and the politics of industrial disease - Conk, Rutgers Law Review 2017
Asbestos Timeline - ADAO - Asbestos Disease Awareness Organization
The Tobacco Institute
The Ford Pinto - Grimshaw v. Ford Motor Company (1978)
Black Lng Act of 1973
Eric Weinberg: Blood on their Hands - podcast 
BLOOD: An Epic History of Medicine and Commerce - Douglas Starr (1998)
Vioxx - McDarby v. Merck (2007)
Merck Agrees to pay $950 million  in false claims settlement with DOJ
Oregon - Distribution of punitive damage awards 
2017 ORS 31.735 70/30 split state/plaintiff

62 Minutes