Do you talk or text while driving? If so, you better check out the status of the law in your state. Here are two links that will give you important information on these laws. And local governments are getting in on the act. For example, this Wednesday Mission, Kansas, begins the process of enacting an ordinance allowing only hands-free phones while driving.

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What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.

The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history. 

As originally posted on November 27 on Presnell on Privileges
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In a step it rarely takes, the CPSC recently initiated separate administrative enforcement proceedings against two manufacturers of desktop magnets alleging that its products contain defects that can pose serious risk of injury. The CPSC sued the makers of Buckyballs and Zen Magnets seeking an order from an Administrative Law Judge directing them to cease all manufacture and distribution of their products (and other relief) after discussions with the companies failed to result in a voluntary recall plan.

The core issue is that these magnets can be dangerous if swallowed because the magnets can bind together and become lodged in the body, posing a risk of harm and perhaps a need for surgical intervention.  The companies currently have warnings stating, among other things, that the products are not for use by children and that they should not be swallowed, but the CPSC alleges that the warnings and labeling do not effectively communicate the hazard associated with ingestion of the product.  The CPSC continues to receive reports of injuries involving use of the product by children.  

Given that most CPSC actions (e.g., recalls, civil penalties) are the result of agreements reached with manufacturers, these matters provide the public a rare opportunity to get a glimpse of a contested lawsuit regarding the justification for a recall.  This case sets up as a classic battle that features competing themes of child protection vs. personal responsibility.  On the one hand, the manufacturers say that the CPSC’s actions raise questions about when the government has the authority to stop companies from selling products that are reasonably safe if used properly.  On the other hand, the CPSC alleges that injuries continue to occur, which suggests that the warnings in place are inadequate – and that perhaps no warning is adequate.  For more information, click on the links below.

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Posted on June 29, 2012 02:23 by Alison Y. Ashe-Card

Earlier this week, the U.S. Supreme Court struck down several key provisions of an Arizona law (SB 1070, Support Our Law Enforcement and Safe Neighborhoods Act) targeting illegal immigrants, ruling the state interfered with congressional authority over U.S. borders, but it let stand a requirement that police check the immigration status of people they stop for traffic or other offenses.  Reaction by law enforcement officials in Arizona, and others, has been mixed.  Police Chief Roberto Villaseñor of Tucson said that he wonders if his agency has been dealt an “impossible mandate,” while Amy Rezzonico, spokeswoman for Arizona’s attorney general’s office said, “I’m pretty sure it will be business as usual to some degree.”  The court left open the possibility that the surviving provision could be challenged, should it lead to prolonged detentions solely to determine immigration status.  "No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes," said President Obama.

Marc Miller, a vice dean and law professor at the University of Arizona said, “By making it a mandate and lining up against the warnings of the Supreme Court, it’s created an impossibly difficult question for police and sheriffs.  Are we concerned about racial profiling? Absolutely.”  Will enforcement of this law likely result in racial profiling?  Is it fair to question one’s legal residency or U.S. citizenship simply on the basis of the color of their skin?  What impact will this law have on the Hispanic community and other minority communities?  Are the civil liberties of all Americans at risk?

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On Monday, our United States Supreme Court promised plenty of work for our brothers and sisters on the nation’s border states practicing governmental liability law.  In Arizona v. United States, 567 U.S. ___ (2012), among other rulings, the 5-3 (9-0 on Section 2(B)) Court upheld Arizona’s controversial Show Me Your Papers provision, which requires local law enforcement to check the immigration status of people they stop for another reason.

Rejecting the United States’ position that federal law pre-empts the Arizona statute in this effect, the Majority broadly reasoned that this particular law complimented, rather than stood as an encroachment, into the federal immigration power.  The Court also reasoned that as a facial challenge to a pre-effect law, it had before it neither a factual record, nor the “benefit of a definitive interpretation from the state courts” upon which to address any Fourth Amendment or other preemption concerns.

The law requires state officers to make a “reasonable attemptto determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”  Pretermitting the obvious – that every stop will take longer once reasonable suspicion kicks in, the Court also chose not to deal with 2(B)’s vagueness, nor its obvious invitation to practice racial profiling.  This comes as no surprise, given the Court’s getting the Solicitor General at Oral Argument to concede that, at least at this stage, the case does not involve a racial profiling element.

The Court has turned loose to the lawyers and the courts the responsibility to create this definitive interpretation of how this law impacts the Fourth Amendment and other rights of United States citizens.  Arizona will see plenty of litigation over the certain-to-be future interplay at the in section of 2(B) and the Fourth Amendment.

Somewhat lost in the shuffle, is the Obama Administration’s having cancelled some agreements allowing Arizona Police Departments to enforce federal immigration laws. The Administration has set up a hot-line and email address for the public to report civil rights concerns.  It is unclear what impact this will have on the overall landscape.  It seems unlikely the Feds would pull such agreements nation-wide.


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Private attorneys representing government entities are entitled to assert qualified immunity as a defense to civil rights claims, the U.S. Supreme Court unanimously ruled on Tuesday in Filarsky v. Delia.  The Court’s decision allows private attorneys to rely on the same protections that their public counterparts use.

The decision reverses a ruling of the Ninth Circuit Court of Appeals that held a private attorney could not rely on qualified immunity.

The City of Rialto, California hired a private attorney to conduct an internal affairs investigation of a firefighter taking sick leave after cleaning up a toxic spill. The firefighter’s superiors suspected that he was not ill because he had been the subject of disciplinary action immediately prior to the spill.

The firefighter claimed that he was forced to allow a warrantless inspection of his home as part of the investigation.  He sued both the City and the attorney who conducted the investigation under 42 U.S.C. § 1983, claiming violations of his civil rights. 

Section 1983 is the enforcement arm of the Fourteenth Amendment, which guarantees equal protection of rights under federal and state laws, and establishes a cause of action against persons who violate constitutional rights under color of state law.

Speaking for a unanimous Court, Chief Justice John G. Roberts, Jr. cited historical examples of the protections available to persons who worked for the government when Congress passed the statute in 1871.  He concluded that the protections provide did not vary depending on whether the person worked full time or part time for the government.

“The government’s need to attract talented individuals is not limited to full-time public employees,” the Chief Justice wrote.  “Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent workforce to secure the services of private individuals.”

The Court noted that the private lawyer had specialized experience in conducting internal affairs investigations, and that the City had no permanent employees with comparable qualifications. 
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In a recent Corporate Counsel article, the authors describe a Federal Trade Commission ruling about the disclosure of connections between corporate advertisers and those who shill, directly or indirectly, the advertisers’ wares. 

In this particular case, a media firm working for Hyundai Motor America had given certain bloggers gift certificates as an incentive to include links to Hyundai advertising videos in their blogs and/or to comment, in advance, on Hyundai’s 2011 Super Bowl advertisements.  Some of the bloggers had not disclosed to their readers that the media firm had provided these (admittedly minimal) incentives for the bloggers to drop Hyundai’s name into their blogs.

Problem was, Section 5 of the Federal Trade Communications Act requires the disclosure of a material connection between an advertiser and an endorser, when such a relationship is not otherwise apparent from the communications containing the endorsement.  See 15 U.S.C. §45.  The FTC has explained this requirement in some detail in its aptly named “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” found at 16 C.F.R. Part 255.

Fortunately for Hyundai, the FTC decided not to punish it for the conduct of the outside media firm, because (1) Hyundai had a robust corporate compliance program in place that barred such conduct, and (2) neither Hyundai nor the media firm had intended to deceive consumers.  The authors then use this little tale to point up the need for corporate compliance programs, particularly in the areas of antitrust and consumer protection (noting, ominously, that federal criminal antitrust fines exceeded $1 biiiillllion dollars in 2011).

The article, and the FTC’s investigation, raise a couple of interesting issues.  First, yes, I do believe that corporate compliance programs in the “Age of Compliance” serve multiple purposes, not the least of which is to meet the Government’s expectation that your clients have them.  Indeed, I, myself, have written on this topic in the past.  (FTC:  Please note my full disclosure of the connection between Me The Blogger and Me The Author of the Article, in case that wasn’t otherwise obvious.)  Having just attended an ABA conference that included an in-house counsel panel discussion on this topic, however, one might reasonably wonder just how much good such programs do.  On the one hand, they may prevent shenanigans before said shenanigans occur.  On the other, and as some in-house counsel noted at the conference, when was the last time you heard of the Government cutting a Fortune 500 company any slack in a criminal case, just because it had an expensive compliance program in place?  Just sayin’.

Second, and I have to ask:  Is this whole FTC thing just stupid?  According to the article, the bloggers were commenting on, and including links to, Hyundai Super Bowl ads.  Does that mean they were vouching for the quality and desirability of Hyundai vehicles?  And even if they were, ask yourselves these questions:  (1) Do you trust bloggers to give you the unbiased, unvarnished truth about anything?  I mean, they’re bloggers, for goodness sake.  (2) Do you buy products based on what someone says about the company’s advertisements?  (3) Do you buy a car because one guy in the local paper writes a good review of it?  (4) Is the FTC’s investigation patronizing?  Is this the Nanny State run amok?  Are we truly too stupid to decide for ourselves whether we like a commercial and want to buy the product?  Or whether we should believe, and/or agree with, anything that Me The Blogger just wrote?  Just sayin’.

Kurt Stitcher, a trial lawyer and former federal prosecutor, is a Partner in the Chicago office of Faegre Baker Daniels LLP.  Kurt's practice encompasses white collar defense and investigations, product liability, and commercial/business litigation.  He can be reached at or at 312-212-6526.
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 The EEOC recently issued a letter of determination to Belmont Abbey College, a Roman Catholic college in Belmont, North Carolina, after a number of its employees filed a sexual discrimination complaint when the College elected to revise its health care plan by eliminating contraceptives and other population control measures from its health care plan, finding that Belmont Abbey College had engaged in discriminatory practices by implementing this change in its health care plan.  The college is a private institution, although the materials I’ve read indicate that it did accept public funds.  Nevertheless, the Roman Catholic church has condemned the use of contraceptives, abortion and other population control measures since its inception, so the question then becomes to what extent, if any, can the United States government force a private employer to conform with governmental beliefs even where those beliefs are diametrically opposed to the fundamental religious beliefs held by the private employer?  Under what circumstances can the federal government disregard the fundamental tenets of separation of church and state and dictate to a Roman Catholic institution that it much condone, endorse and in fact pay for its employees to have access to health care options that are the antithesis of the fundamental teachings of the Church?  More importantly, can the United States government force private religious institutions to abandon these fundamental religious principles and adopt those social policies held by the government simply because an institution for higher learning happened to accept governmental funds?  If so, where is the line drawn?  If a Roman Catholic Church accepts FEMA money to repair its facilities after a catastrophic event, does it necessarily give up its sovereignty simply because it accepted government assistance?  If so, does this mean that an individual would, too, under similar circumstances?  

The effect of the Belmont Abbey College determination could have potential catastrophic effects on the separation between religious freedom and state regulation, especially now, when health care reform has taken center stage.  Should the public option force private insurance out of business, which legislators suggest would never happen (we’ll see), will the government be able to force health care policies on individuals in violation of religious freedom?  But, the bigger and more practical issue is whether the government can allocate tax dollars to pay for plans that violate religious freedom?  Can the government force you to pay for another person’s abortion?  In short, yes.

Quite simply, individuals do not have control over how tax dollars are spent.  While anyone has the ability to contact his or her legislator and try to make a change in governmental policy, the fact is that individual citizens have no control over how tax dollars are spent.  See English v. Comm’r of Internal Revenue, T.C. Memo. 1986-409, 1986 WL 21620 (U.S.Tax Ct. 1986).  In English, the plaintiff argued that he could validly withhold tax payments when he disagrees with the manner in which the government is spending tax dollars.  The Tax Court held that, regardless of the sincerity of his beliefs, the plaintiff’s arguments were totally without merit.  

While it comes as no surprise that individuals or private companies have no say so when it comes to telling the government how to spend tax dollars, the question then becomes whether the inverse would be true as well.  If tax payers cannot dictate how the government spends tax payer dollars, can the government control personal liberties when tax payers take government dollars?  

The real answer is that the government can do anything it deems just and proper as long as it can identify some “public purpose” for implementing its plan.  See Maready v. City of Winston-Salem, 467 S.E.2d 615 (NC 1996).  In Maready, a tax payer challenged a municipality’s ability to grant economic development incentives to private businesses, arguing that the statute permitting such expenditures was unconstitutional because it was impermissibly vague and violated the public purpose clause of the North Carolina Constitution.  Unbelievably, the lower court held that the statute was in fact unconstitutional; however, the North Carolina Supreme Court later “corrected” this seemingly just result, finding that the case specific “public purpose” standard was not unconstitutionally vague, and holding that governmental entities could use tax payer monies to subsidize or entice private businesses by offering economic development incentives.  The dissent poignantly contemplated that, 

If it is an acceptable public purpose to spend tax dollars specifically for relocation expenses to benefit the spouses of corporate executives moving to the community in finding new jobs or for parking decks that benefit only the employees of the favored company, then what can a government not do if the end result will entice a company to produce new jobs and raise the tax base? If a potential corporate entity is considering a move to Winston-Salem but will only come if country club memberships are provided for its executives, do we sanction the use of tax revenue to facilitate the move? I would hope not, but under the holding of the majority opinion, I see no grounds for challenging such an expenditure provided that, as a result of such a grant, the company promises to create new jobs, and an increased tax base is projected.

Thus, it seems that while the individual citizens are not permitted to dictate how their tax dollars are spent, the inverse effect of the government’s ability to control individual liberties by loaning taxpayers the very dollars they have paid is unquestionable.  As a result, taxpayers such as Belmont Abbey College and other Roman Catholic tax payers, like the rest of us, will have to shelf their constitutional freedoms, at least in part, in favor of what this year’s government deems to be the greater good regardless of their religious beliefs or any other constitutional concerns they may have.  


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Categories: Governmental Liability

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Government Contractor Defense

Posted on March 31, 2009 05:45 by Mike G Jones

I'm just back from argument on a government contractor defense matter involving a military trainer aircraft. Central to the debate was the level of detail to which the "reasonably precise specifications" of the Boyle test must reach. If taken too far, it seems requiring the government to review and approve everything down to the last rivet, bearing and bracket will put the GCD out of reach in too many cases, and thus raise the cost of government contracts, chill bidding or cause contractors to invite the government to micro-manage more than either party would otherwise want.

The cases make clear that only the "design feature in question" need be the subject of the "reasonably precise specifications," but that the "specific defect alleged" need not have been reached. Otherwise, the cases are largely specific to their own facts and not entirely helpful.

The court also questioned the distinction between performance and design specifications in the Boyle test context. That's also not a distinction discussed much in the GCD cases.

I'm interested in our membership's experience with these issues and any links to related resources.

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Categories: Governmental Liability

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Lilly Ledbetter Act

Posted on March 9, 2009 08:21 by Mark A. Fahleson

On January 29, President Obama signed the "Lilly Ledbetter Fair Pay Act" into law. The bill purports to remedy issues raised in the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber, 550 U.S. 618 (2007) with respect to window of recovery for claims of discriminatory pay practices.

The impact of this legislation on the prevention and defense of workplace law claims is significant. Some contend that it has effectively blown the cap off of any statute of limitations with respect to challenging pay claims under the panoply of federal employment laws. Only time will tell what the real impact will be, but this is the first of what is expected to be a long line of employee- and plaintiff's counsel-friendly legislation coming out of the new legislation.

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