20 gauge Guns, guns, guns

People up with which Blawgletter grew adored guns. They loved to look at them, handle them, clean them, buy them, hunt with them, display them, target-shoot with them, sight them, sell them, talk about them, load them, unload them, compare them, oil them, swap them, put scopes on them, make ammo for them, and nickname them.

They also treated firearms with respect. They tended to anyway. People looked down on the few who didn't hold in awe the power to kill and maim of rifles, shotguns, and pistols. You called those folks trashy — or, in our love-the-sinner but hate-the-sin world view — called those folks' disdain for the safety of others trashy.

(We've had a love-jones with guns ourselves, by the way. Just above here you can see our first firearm — a 20-gauge Harrington & Richardson single-shot, with which we bagged a Fair Number of fowl, including dove, duck, and quail, and dusted many more skeet. Boy Scouts gave us safety training, in part courtesy of the National Rifle Association. And one of our all-time favorite books, Shooter's Bible, provided many hours of browsing enjoyment.)

Dodge Ram DuallyCars, cars, cars

The people we grew up with felt something close to the same way about cars and truck — from big ones to little ones, fast ones to grandmaws, rag-tops to pickups, and on and on. But the great majority, while seeing nothing wrong with car- and truck-love, had the same dislike for reckless conduct on the road. Trashy conduct.

Threat to safety?

Vendors know how to appeal to the impulses that cause the mouth to water and send the pulse racing at the sight of a Bushmaster ACR as well as a Class 5 Ram 550 Crew Cab with dually tires. A great many of the buyers have no need for such extreme products. Yet, in a country that has become 80.7 percent urban, Ford and Chevy pickups sell more than any other vehicles, with Rams not far behind.

(You can see a mild example of a faux-farmer truck in the photo above.)

But does coveting the military style of a high-caliber, semi-automatic rifle or drooling over the sleek, low-to-the-ground profile of a Corvette pose a threat to the safety of anyone other than the coveters and droolers?

No. Because those things in themselves do not amount to misuse. A bit trashy, perhaps. Unseemly, maybe. Gauche, sure. But not the kind of thing that by its nature tends to hurt others.

Gun Debate

The NYT today (Sunday) features an op-ed item and a Q&A about gun laws. The former says people think we already have more gun control than we really do. It cites a new survey and argues:

The notion that all we need is better enforcement of our current federal laws has been a core argument of the gun lobby for years in its fight against sensible restrictions on guns in our communities. But that argument is a straw man. It masks the fact that many Americans don’t really know what gun laws are on the books and falsely construes that to mean they don’t want common-sense gun laws passed — when they clearly do. What Americans strongly believe, and what is at the core of the president’s reform agenda, is that with rights come responsibilities.

The second piece, the Q&A, has a business column-writer, Joe Nocera, talking with Dan Baum, the author of a new (but pre-Sandy Hook) book, Gun Guys: A Road Trip. Baum regards gun guys as key to making people safer in a populace that already bristles with 300 million firearms. And he says we need to enlist their help, partly by calling on them to — and perhaps by passing laws that will make them — take responsibility for gun misuse:

You need gun owners — the “gun guys” as I call them. They are the custodians of the guns. I also think, though, that gun guys need to take their responsibility as gun owners seriously. A lot of gun owners are perfectly fine, for instance, with universal background checks. I know I am. They are fine with it so long as it doesn’t lead to a database and de facto registration.

Gun guys need to lock ’em up; gun guys need to take our responsibility to us much more seriously.

For his part, Nocera seems to think most people shouldn't have guns at all. And his newspaper has little good to say about the NRA and other strong advocates of what they call second-amendment rights.

MADDness

The public's confusion about existing gun laws and the common sense of gun guys seem to present an opportunity for progress in enhancing gun safety. And we think the chance turns on the question of when does trashy (unsafe) conduct with guns become misuse of guns (and abuse of gun rights)?

Recent history furnishes an analogue. In 1980, a California mother who lost her daughter to a drunk driver started what has become Mothers Against Drunk Driving. MADD now has a budget north of $45 million. And it has done a teriffic job of getting states and Congress to enact tougher laws against one of the worst misuses you can think of for motor vehicles — operating them while under the influence of alcohol or drugs.

In our home, the great State of Texas, where MADD now has its headquarters, drivers could tool around while swigging a longneck all the way until Sept. 2001. The Lone Star State only two years before had switched from .10 as the legal limit for blood alcohol content to .08. We changed the rules because in 1998 Congress passed the Transportation Equity Act, which included what it called "Alcohol Programs". The feds made us do it, with the money stick.

It worked. Between 1998 and 2008, fatal car accidents that involved at least one driver with a blood alcohol content of .08 or more fell (to 1,146 from 1,223) in Texas despite a 15+ percent growth in population. The rate has held steady, hovering at 1,200 per year, while we continue to grow. That is a sad statistic, but at least it marks progress.

MAGMA?

The focus on misuse has, more than anything else, made MADD a success. What normal person would support misuse? Would the NRA?

Which raises the question of whether a like organization that centers on misuse of guns would do as well.

We suspect so. Call it MAGMA — Mothers Against Gun Misuse, in America.

The key, we think, consists in how we answer the question of what counts as misuse, versus the low-brow trashiness that repels many city and other non-gun people. The approach has to stress misuse — not ownership, not shooting in gun ranges, and not normal features of the gun itself. Misuse. MIS. USE.

Possibilities include:

  • handling a gun while under the influence of drugs or alcohol;
  • letting someone else handle a gun while under such influence;
  • allowing a mentally ill person handle, or have access to, a gun;
  • failing to keep a gun in a secure place;
  • selling a gun to a stranger;
  • having inadequate training to use a particular kind of gun or to use it in a particular way;
  • owning way more guns than you could possibly need; 
  • failing to register your purchase or sale of a gun; and
  • buying a bunch of guns in a short period of time.

Polls suggest that many people, nation-wide, support passage of laws that would discourage these sorts of gun uses/misuses. See here, here, and here.

Enacting new laws will not of course do the whole job. MAGMA would have to keep the pressure up to give the laws teeth and to enforce them with vigor.

What do you think?

DoggiePeople love dogs. At least some people do. Others adore cats. A few cherish both. Yet others go ga-ga over more exotic beasts. And they hate to see them suffer and grieve when they die.

The Supreme Court of Texas today shared the pain of critter-lovers across the Lone Star State, even citing a movie that broke many a young Texan's heart — Old Yeller. But the Court-as-empath didn't translate into a ruling that the tragic loss of a pet entitles the owner to damages for the mental hurt that results. Strickland v. Medlen, No. 12-0047 (Tex. Apr. 5, 2012).

Chief Justice Wallace and Justice Johnson declined to join in part II-C, which dealt with what the legislature might do, and the Chief Justice also shunned footnote 58, which listed types of potentially recoverable damages, of Justice Willett's opinion for an otherwise unanimous Court.

The Court also issued a bundle of other opinions, which you can access here.

 In a review of Business and Commercial Litigation in Federal Courts (3d ed. 2012), U.S. Magistrate Judge Randolph F. Treece writes about a chapter that Blawgletter co-authored:

Two chapters I hope readers would not overlook are "Techniques for Expediting and Streamlining Litigation" and "Litigation Technology". The former chapter is replete with commonsensical practical approaches to litigation.
Reflecting upon the complex litigation that has come before me, I have observed litigators twist themselves into knots with superfluous litigation machinations and strategies, and extravagant, unnecessary and, of course, expensive litigation approaches. These litigators and litigants forget or ignore the cardinal aspiration of litigation within the federal system: litigants should ―secure the just, speedy, and inexpensive determination of every action and proceeding. With well-considered, clear, concise, and cogent advice, these authors drive this very point home.59 Constrained by space and time, I cannot mine for you all of the abundant and invaluable nuggets of experience set forth in this chapter, but here is one to consider. Something that I constantly urge battling litigators when hearing obstreperous disagreements over sweeping discovery demands is succinctly and aphoristically stated by these two authors: when ―reduc[ing] expense without sacrificing . . . success, less discovery is better than more because excess discovery is often counterproductive, primarily because most complex cases generally involve only several hundred documents rather than thousands or millions. But, when it comes to disclosing documents, caution urges more production than parsimoniousness and recalcitrance.61 On another note, it is grueling for federal judges to convince parties to eschew deposing the world of witnesses on every detail or minutiae. Our authors plainly tell us that ―[y]ou don’t need to look under every stone. You just need to know where the boulders are. Or, that there is ―no such thing as a bad witness—only one who has been ill-prepared. What advice could be more simply stated, yet be incredibly indispensable, than this? This chapter should be a required text for any law school’s practical skills courses, because, right now, our law graduates, as many law firms exclaim, are devoid of such litigation insights and thus unprepared for the world of litigation.

 Randolph F. Treece, "Book Review: Business and Commercial Litigation in Federal Courts, Third Edition", 76 Alb. L. Rev. 253, 259-60 (2013) (without footnotes).

Today the Supreme Court, by 5-4, reversed a ruling that upheld certification of an antitrust case against Comcast as a class action. The majority disagreed with the district court and court of appeals on whether the plaintiffs' damages model showed class-wide losses from Comcast's efforts to thwart "overbuilder" competition in the Philadelphia area.

Justice Scalia wrote the majority opinion, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Alito joined.

Blawgletter understands that Justices Ginsburg and Breyer took the unusual, if not extraordinary, steps of writing a joint dissent and reading it this morning from the bench. Justices Sotomayor and Kagan joined in the dissenting opinion.

The dissent urged that the Court should have dismissed the writ as improvidently granted and, failing that, should have affirmed the Third Circuit.

Class cousnel respectfully disagree with the majority's ruling. We look forward to satisfying the Court's narrow methodological concerns on remand to the trial court and to trying the case on the merits as soon as practicable.

I had the honor of arguing the case for the class in November. You hate to lose, but it was a terrific experience.

If you’ve watched a new movie online without paying for it, you likely committed a bad copyright law thingy. You probably infringed.

Naughty, naughty.

How exactly the Internets enable you thus to Reap where you have not Sown, film-wise, may baffle you. It did us. Thanks to the Ninth Circuit, we wonder no more. Or at least less.

The court probes the online underbelly’s innards in Columbia Pictures Industries, Inc. v. Fung, No. 10-55946 (9th Cir. Mar. 21, 2013) (http://cdn.ca9.uscourts.gov/datastore/opinions/2013/03/21/10-55946.pdf). The panel explains how “peer to peer” (P2P) networks enable users to view movies (and other material) gratis. A P2P network responds to a user’s request by prompting servers that contain pieces of a movie to send the pieces to the user’s computer. The torrent of distinct pieces reassembles fast enough that the requesting user can watch the movie without a lot of jitters. That’s the plan, at least.

The defendant in Columbia Pictures, Fung, welcomed his sites’ subscribers to use his P2P programming to grab and view popular movies without paying for them. He earned money not by charging for subscriptions but from ad revenue, which accrued when subscribers clicked on ads.

The Ninth Circuit held that Fung violated the Copyright Act by inducing his subscribers to infringe the copyrights of movie owners. It also ruled that none of the “safe harbors” in the Digital Millennium Copyright Act saved him. The court thus affirmed entry of a permanent injunction against Fung but sent the case back to the district court with instructions to make the injunction clearer.

Lord Coke
Things go better with Coke.

Last October, as Blawgletter prepared to argue a case to the U.S. Supreme Court the following week, we noted that on the day before "we heard a . . . justice mention 'Coke on Littleton, 1628' — and instantly knew what he meant." We went on:

The case before the Court on Monday involved the reach of the "first-sale" doctrine under U.S. copyright law. Does it let Amazon, say, buy in Singapore excess stocks of Harry Potter books that J. K. Rowling's publisher printed in, for instance, Shanghai and import them into the U.S. without fear of a copyright infringement claim by Ms. Rowling? Or does first-sale apply only to goods that the copyright owner made in the U.S.?

Justice Breyer cited Lord Coke's treatise for the notion, as he said, "if a man be possessed of a chattel and give or sell his whole interest upon a condition, that condition is no good." Supap Kirstaeng v. John Wiley & Sons, Inc., No. 11-687, Tr. at 49:10-12  (U.S. Oct. 29, 2012).  By which His Honor seemed to imply that he thinks the first-sale doctrine in the Copyright Act of 1976 allows you to purchase overseas and import into the U.S. any goods no matter where the copyright owner made or caused the making of the goods.

The 2007 case prompting the recollection involved an antitrust claim that for almost a century the Supreme Court treated as a per se violation of section 1 of the Sherman Act. In that case, Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), the Court overruled its decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). The opinion cited the ancient treatise by way of explaining that Dr. Miles stood more on "'formalistic' legal doctrine" than on sound economic theory. Leegin, 551 U.S. at 888.

Lord Coke won in Dr. Miles and lost in Leegin. Will he stage a come-back by forming the crux of the decision in the first-sale doctrine case?

Today the Court decided the case. Justice Breyer wrote the 6-3 majority opinion, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan joined. And, yes, he quoted Lord Coke in support of the Court's ruling that the first-sale doctrine does absolve works "lawfully made" overseas of copyright liability in the U.S. Kirtsaeng v. John Wiley & Sons, Inc., No. 11-687, slip op. 17 (U.S. Mar. 19, 2013) (quoting 1 E. Coke, Institutes of the Laws of England § 360, p. 223 (1628)).

Interestingly, as if to exorcise Coke's defeat in Leegin, Justice Breyer quoted from the Leegin majority opinion, to which he dissented. Id. 18.

The author of the Leegin ruling, by the way, joined the dissent in Kirtsaeng. Just sayin.

Did we fight a war in Iraq?

Blawgletter’s raising the question may cause you to wonder whether we ate lead paint chips as a child. But the Fourth Circuit just treated the issue as a legitimate one. Why can’t we?

The controversy arose in a qui tam (False Claims Act) case against Halliburton and its KBR subs for contract work in the land of Mesopotamia. An ex-employee alleged that Halliburton, et al., defrauded the U.S. government by claiming to have worked a Great Many Hours on purifying water when in fact it purified nary a drop during the Time in Question. The district court held the lawsuit untimely under the six-year limitations period in the FCA.

But the relator urged that the Wartime Suspension of Limitations Act had suspended limitations while wartime persisted. The district court said ix-nay on the uspension-say, ruling that the WSLA did not apply to claims by private relators and instead aided only the government in cases it brings.

The Fourth Circuit reversed on that ground. The panel held that the WSLA does benefit private relators AND that the relator in the case before it had filed “[w]hen the United States [wa]s at war” in Iraq. The lack of a formal declaration didn’t matter, although Halliburton, et al., begged to differ on that point. United States ex rel. Carter v. Halliburton Co., No. 12-1011 (4th Cir. Mar. 18, 2013) (http://www.ca4.uscourts.gov/Opinions/Published/121011.P.pdf).

One suspects the outcome might have differed if the “war” in question was the “War on Terror”.

[Note: Blawgletter’s firm has represented KBR.]

Wilson Sporting Goods put the number of Jack L. Frolow's tennis racket patent on 14 models of its tennis rackets. It also paid Frolow royalties on 299 racket models. Yet the district court granted Wilson summary judgment on the theory that Frolow hadn't put forward any evidence that the rackets infringed his patent.

The Federal Circuit reversed. It held that Frolow's evidence raised an issue of fact on the infringement question. Wilson's marking and payment of royalties provided circumstantial proof of infringement, the panel ruled, although perhaps not enough by itself to defeat summary judgment. But the court declined to treat Wilson's conduct as a species of estoppel. Frolow v. Wilson Sporting Goods Co., No. 12-1185 (Fed. Cir. Mar. 15, 2013)

Circuit Judge Newman concurred, urging that on remand Wilson should have to negate infringement by the 14 racket models.

Standing nearby when what our banker friends call a liquidity event takes place can result in an influx of wealth. Who doesn't want that.

The opposite feeling takes hold for what we'll refer to as liability events. These usually involve the disappearance of money that belongs to Other People. Bankers like to distance themselves in those instances.

Sometimes they succeed. 

Witness Levitt v. J.P. Morgan Securities, Inc., No. 10-4596-cv (2d Cir. Mar. 15, 2013). In that case, the Second Circuit panel threw out a class action that accused a "clearing broker" of securities fraud in connection with a scheme by an investment banker, Sterling Foster, to scam investors in five initial public offerings. Sterling Foster had cut a deal with insiders of the IPO firms to release them from standard "lock-up" agreements shortly after their IPOs hit the market so that SF could buy their shares for below-market prices and sell them right away for a huge profit.

 J.P. Morgan's predecessor, Bear Stearns, served as the clearing broker for SF. But it expressly disclaimed any duties towards SF's customers. And, even though Bear seems to have Gotten the Idea that SF was up to no good, its keeping its distance led the court to rule it had no obligation to disclose the fraud and that therefore the class of SF customers couldn't invoke a presumption of reliance on SF's misrepresentations and nondisclosures. The district court thus erred in certifying the case as a class action, the panel decided.

Oil and gas cases seem to supply more than their share of fights about the meaning of contract terms. Why? We suspect it has something to do with money.

Take Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., No. 11-30038 (5th Cir. Mar. 12, 2013). In that case, two of three lessees of acreage that lies offshore Louisiana, Total and Statoil, refused to pay overriding royalties to Kerr-McGee and others. The third lessee, Chevron, did pay. Why the difference? Total and Statoil asserted that a sentence in the assignments of the overriding royalty interests entitled them to suspend payment of overrides until the lease produced 87.5 million barrels of "oil equivalent". The sentence provided:

The overriding royalty interest assigned herein shall be calculated and paid in the same manner and subject to the same terms and conditions as the landowner's royalty under the Lease.

Total and Statoil claimed that, because a federal statute entitled them to "suspend" payment of royalties that they otherwise owed to the United States as lessor until the lease reached the 87.5 million barrel threshhold, neither did they have to pay the overrides during the suspension.

Think again, the Fifth Circuit held. The panel ruled that what it called the "calculate and pay" language did not clearly and explicitly entitle the lessees to piggyback their overriding royalty obligations on the statutory suspension. The case thus went back to the district court for more work.