Adjunct Law Prof Blog

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013*only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, onlythe new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf .

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site atwww.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

Files on Conflicts of Interest

Tyler, Texas attorney and State Bar of Texas President Buck Files has written an informative essay on conflicts of interest which appears in the April 2013 Voice for the Defense (page 15).  The essay uses the federal case U.S. v. Lopesierra-Gutierrez, No. 07-3137 (D.C. Cir. March 1, 2013) as a starting point to highlight how important it is to be mindful of conflicts when representing defendants in criminal cases - and by extension, any client in any case.  Some conflicts are waivable and some are not and knowing the difference between the to might save the practicing attorney a trip before a grievance committee a time or two.

Craig Estlinbaum

No Race To the Courthouse in Utah Adoptions

In many situations, the first to file a lawsuit in a controversy obtains procedural and sometimes substantive advantages over later filers.  The Utah Supreme Court held last week, however, that winning the race to the courthouse carries no special advantage in adoption cases.  The case is S.C. vs. Utah, No. 20120016 (Utah May 7, 2013).

In this child protection case, following termination, the foster parents filed first for adoption of the five-year old child at issue and later, a grandmother filed for adoption.  The trial court consolidated the cases then announced that the grandmother's petition would be considered only if the court denied the foster parents' petition.  The trial court then considered and granted the foster parents' petition and dismissed the grandmother's petition.  Grandmother appealed.

The Utah Supreme Court reversed the trial court, holding that the best interest of the child remained the paramount issue when competing adoption petitions were filed.  Considering the petitions in the order of filing, the Court held, created the potential for decision on grounds unrelated to the best interests.  The Court instructed that a trial court considering competing adoption petitions must hear evidence and consider each petition on the merits without giving priority to the first to file.  The best interest of the child therefore, and not filing priority, controls the final determination following the Court's unanimous decision.

In this case, the court resolved a split on the subject in Utah's intermediate courts.  One more note of interest - this case was certified under Utah law for direct appeal to the Utah Supreme Court, so there was no intermediate court opinion.

Craig Estlinbaum

Reviewing Radin's Boilerplate

ContractsProf Blog (A Member of the Law Professor Blogs Network) has been hosting a series of short reviews of Margaret Radin's new book Boilerplate: The Fine Print, Vanishing Rights and Rule of Law.  Contributions so far have been by Ethan Leib (Fordham), David Horton (UC Davis), Andrew Gold (DePaul), Theresa Amato (Citizen Works), and Peter Alces (William & Mary).  It looks like there may be more to come. 

Hat Tip:  Kim Krawiec at The Faculty Lounge

Craig Estlinbaum

New In Print: The Law Review Review

The Georgetown Journal of Gender and the Law''s Wintere 2013 issue includes their Winter Issue of Gender and Sexuality Law with articles by Seletha R. Butler (Georgia Tech College of Business), Julie Goldscheid (CUNY Law) and Jody M. Prescott (Vermont).  There is also what appears to be a potentially interesting student note titled, "Islamic Marriage Contracts as Simple Contracts Governed by Islamic Law: A Roadmap for U.S. Courts," by Emily C. Sharp.  This strikes me as a particularly timely topic and I look forward to reading the note.  One further aside on this journal - The GJGL charges for online content - content that in many instances is available free on SSRN.  I wonder how this model works for the journal.

The Harvard Civil Rights-Civil Liberties Law Review's Winter 2013 issue includes several interesting articles inc luding one near and dear to me as a state trial judge with criminal jurisdiction - "Beyond 'Life and Liberty:' The Evolving Right to Counsel," by John D. King (Washington & Lee). The key lines from the Abstract read: "This Article argues that current Sixth Amendment jurisprudence on the right to counsel has not adequately adapted to the changed realities within which misdemeanor prosecutions take place today. Because of the dramatic changes in the cultural meaning and real-life consequences of low-level convictions, there is no longer a useful or constitutionally significant line between those cases resulting in actual imprisonment and those cases not resulting in imprisonment."  Because I believe the combined effect of Padilla, Frye and Lafler will be greater judicial involvement in plea bargaining processes (but not plea bargain negotiations), contributions such as King's are valuable to gaining understanding into this "evolving" area. 

The new edition of Syracuse Law Review (Vol. 63, No. 2) includes Symposium: The Age of Social Media and It's Impact on the Law.  The symposium includes an article on judicial use of social media by Helia Garrido Hull (Barry).  I have not found the article online yet, however the title suggests Professor Hull reaches a different conclusion than I did in my essay on a similar subject published last year in the St. Mary's Journal of Legal Malpractice & Ethics.   I hope to obtain Professor Hull's article soon and my a comment further on it here.

Volume 55, No. 1, Arizona Law Review includes a collection of articles under the title "Financial Reform During the Great Recession: Dodd-Frank, Executive Compensation and the Card Act."   The issue includes articles by Lisa M. Fairfax (George Washington), Kimberly D. Krawiec (Duke), MIra Ganor (Texas) and Andrea Freeman (Hawai'i).

St. Mary's Law Review's newest issue includes "Secured Transactions History: Protecting Holmes' Notes Through the Conditional Sales Acts," by George Lee Flint, Jr. (St. Mary's).  Scholar: St. Mary's Law Review on Race and Social Justice's newest issue includes articles by Donna McKneelen (Cooley) and Chauntelle Ann Tibbals, Ph.D.

Craig Estlinbaum

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday or a Sunday where such day is kept as a holy day by any party to the case

May judicial or quasi-judicial proceeding be conducted on a Sunday?

This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.

Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”

In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”

Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.

The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*

On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.

* In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23122.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

Union Release Time In The Public Sector

A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.

I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.

Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

Dittfurth: Restitution in Texas

David Dittfurth's (St. Mary's) article "Restitution in Texas: Civil Liability for Unjust Enrichment" appears in the latest South Texas Law Review (Winter 2012).  On first read, I am impressed with this article, which is comprehensive and makes a valuable contribution to this often confusing and misunderstood area of law.  We cover restitution, unjust enrichment, quantum meruit and quasi-contract and other related causes of action in our Damages class and I look forward to mining this article for a better understanding myself.  As a bonus, Dittfurth includes "recent statements by the courts of forty-nine states and the District of Columbia that describe the elements of unjust enrichment" in those jurisdictions.

Craig Estlinbaum

Please Support Kidney Donation By Supporting Linda's Home Team

Linda February 2013

As many of you know, on June 29, 2011, my  then 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts t 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here.  You should click on join team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here. 

Thank you,

Mitch Rubinstein

Supreme Judicial Court Decision Interprets Enforceability of Online Terms and Conditions

A recent decision by the Massachusetts Supreme Judicial court holds that a forum selection and limitation of liability clause is not enforceable under Massachusetts law in a browsewrap agreement.  This is an interesting opinion because it touches on a number contract law issues and estate law issues (not covered in this post) as applied to cyberspace.

The case involves the interpretation of Yahoo!'s Terms of Service (TOS) relating to its free email service. The case was brought by the administrators of the estate of a Yahoo email user to get court approval for access to the account and the content of the emails. Because the Yahoo! TOS had a forum selection clause requiring that all disputes be brought in California, the Court had the opportunity to interpret the enforceability under Massachusetts law of such clauses in online agreements. After noting that the SJC has not previously considered the enforceability of forum selection and limitation of liability clauses in online agreements, it looked to the case law on such issues in traditional paper contracts. In those cases, courts have enforced such provisions as long as they have been reasonably communicated and accepted and if, considering all the circumstances, it is reasonable to enforce the provision at issue. The burden on the first prong fall on the issuer of the TOS. On the second prong (that the TOS themselves were reasonable), in the forum selection case, the burden falls on the plaintiffs, and no such burden applies in case of a limitations provision.

Applying this standard to online agreements, the Court held that Yahoo! did not meet their burden of showing the TOS were reasonably communicated and accepted. Yahoo!'s affidavit that users were "given an opportunity to review" the TOS and Privacy Policy prior to registering" was not sufficient by itself. The Court could not infer from that affidavit that the TOS were actually displayed on the user's screen. If the user was asked to follow a link to the TOS -- which is a pretty typical user experience --- Yahoo!'s affidavit would have to have provided the specific instructions relating to the link, how prominently displayed was the link, and any other information bearing on the reasonableness of this communication.

The Court also held that Yahoo! failed in showing that the TOS were accepted. Past cases have enforced such provisions only in click-wrap agreements (where "terms of the agreement were displayed, at least in part, on the user's computer screen and the user was required to signify his or her assent by clicking 'I accept.'"), but not in browsewrap agreements (where "website terms and conditions of use are posted on the website typically as a hyperlink at the bottom of the screen."). On that basis, the Court refused to extend the enforceability to browsewrap agreements and held that the record did not show "the terms of any agreement were reasonably communicated or that they were accepted."

The Court also held that the TOS would not be enforceable against the estate adminstrators because they were not third party beneficiaries of this contract.  The Court looked to precedent from other jurisdictions on this issue, where courts have held nonsignatory third parties could be bound where the nonparty is "sufficiently closely related to a signatory that it is foreseeable that the nonsignatory will be bound."

Finally, the Court also found the forum selection clause itself to be unreasonably broad. The clause provided: "You and Yahoo agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California." The Court held that as written this provision would require a suit of any nature to be brought in California, even if it had nothing to do with the email account or the online terms.  It reasoned that this provision should not be enforced "articularly since it was contained in a consumer contract drafted unilaterally."

 

Dimitry Herman

Adjunct Law Professor of Corporate Mergers and Acquisitions

New England School of Law

 

 

 

Linda's Home Team

Linda February 2013

As many of you know, on June 29, 2011, my  then 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts at 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here.  You should click on join team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here. 

Thank you,

Mitch Rubinstein

Fifth Circuit: Pharmacy Purchase Logs are Nontestimonial Business Records

In a divided opinion, the Fifth Circuit Court of Appeals held in United States v. Townes, No. 11-50948 (5th Cir. April 30, 2013), that a pharmacy's pseudoephedrine purchase logs were nontestimonial business records that could be admitted in a criminal prosecution without a live witness.  Pseudoephedrine is a nasal and sinus decongestant drug often sold behind the counter that, in addition to its lawful uses, can also be used to manufacture meth.

The government charged the defendant in the case with conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine.  The trial court admitted the pseudoephedrine purchase logs from the various pharmacies where the defendant purchased the drugs as business records under Rule 803(6).  The prosecution offered the records through the investiging law enforcement agent via certifying affidavits.

The applicable state law requires pharmacies to maintain records related to pseudoephedrine purchases for law enforcement purposes.  Defendant argued that for this reason, the records were not business records - records kept for a business purpose.  The majority rejected the argument, observing that the business record hearsay exception requires the records be kept in the ordinary course of business.  The majority added, "It is not uncommon for a business to perform certain tasks that it would not otherwise undertake in order to fulfill governmental regulations. This does not mean those records are not kept in the ordinary course of business."  Slip Op. at 5.

Defendant also argued that admitting the logs via business record affidavit violated his Confrontation Clause rights.  The majority rejected this argument also.  Citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, (2009), the Court determined that the pharmacy logs were not prepared specifically to prove a material fact at trial, but for legitimate business record-keeping purposes.

The dissenting judge would hold the pharmacy logs were not business records because the records were kept solely for law enforcement purposes and for no other legitimate business reason.  The dissent would further hold for this reason that admission by business record affidavit violated the defendant's Confrontation Clause rights.

This is an important opinion and one worth reading to study the lines separating business records, which do not raise Confrontation Clause concerns, from testimonial records, such as drug lab reports, which are testimonial for Sixth Amendment purposes.

Craig Estlinbaum

Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits

Denying a packaging firm's petition for review, the U.S. Supreme Court recently denied cert to a case which held that retirees of a Michigan plant are vested with lifetime, employer-paid health care insurance for themselves and their spouses ( Menasha Corp. v. Moore, U.S., No. 12-942, cert. denied 3/25/13 ).

Menasha Corp., sought review of a U.S. Court of Appeals for the Sixth Circuit decision that outside evidence clarifying collective bargaining agreements signed in 1994 and 1997 indicated Menasha and the union intended to provide retirees and their spouses with vested, lifetime health care benefits (660 F.3d 444, 193 LRRM 3249 (6th Cir. 2012).

This is a huge issue under ERISA and under collective bargaining agreements and I expect the Supremes will visit it one day. Law review commentary on this important topic would be welcome.

Mitchell H. Rubinstein

Texas: February 2013 Bar Results Are In

The bar exam results are in for the February 2013, exam and congratulations are in order to Texas's newest attorneys.  The overall pass rate for this exam was 74.18%, with the breakdown among Texas law schools (for first time takers) and other test-taker categories being as follows:

• Baylor                    95.56%
• Texas Tech                95.45%
• Out of State Licensees    90.32%
• Houston                   89.66%
• Texas Wesleyan            88.68%
• Texas                     86.36%
• South Texas               85.22%
• St. Mary's                75.00%
• Overall Pass Rate         74.18%
  
• S.M.U.                    73.08%
• Thurgood Marshall         66.67%
• Out of state law schools  65.78%
• All Repeat Test Takers    63.58%
  
• Other categories          55.56%     

Craig Estlinbaum

King; Enforcing Effective Assistance after Martinez

Professor Nancy J. King (Vanderbilt) has posted her essay, "Enforcing Effective Assistance after Martinez" on SSRN.   Here is the abstract:

This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.

This Essay is forthcoming in the Yale Law Journal.

Craig Estlinbaum

NLRB Petitions Supreme Court to Review Ruling on Recess Appointments

As expected, the NLRB filed  petition asking the U.S. Supreme Court to review a recent DC Circuit decision which held unconstitutional President Obama's January 2012 recess appointments to the board (NLRB v. Noel Canning Div. of Noel Corp.,  petition filed 4/25/13).

The petition asserts that the decision of the District of Columbia Circuit (705 F.3d 490 (D.C. Cir. 2013), "would dramatically curtail the scope of the President's authority under the Recess Appointments Clause" of the U.S. Constitution if the appeals court ruling is allowed to stand.

Mitchell H. Rubinstein

2013 NYU Annual Conference on Labor June 6-7

By far, one of the best labor conferences in the country-and I have been to many conferences-is the annual NYU Labor Conference. Details and registration material can be found by clicking  Download LABOR CENTER -- 2013 NYU ANNUAL CONFERENCE ON LABOR It is run by Professor Sam Estreicher who is one of the most well known scholars in the country. 

For the last several years this conference has been co-sponsored by St. John's Law School and the Cornell ILR School. It goes without saying that the topics are interesting-this year the focus is on the FLSA-and CLE credit is awarded.

So why is this conference different?? It is different because most substantive topic discussions involve academics and practicing lawyers. And it is not just any practing labor lawyer or any labor professor. This conference regularly attracks the most established lawyers and professors. Just take a glance at who is speaking this year. I save the material handed out because it is so useful. 

So, if you have some time, you may want to consider attending this conference. 

Note, although it is held over 2 days, you can choose to attend only one day. You also cannot beat the cocktail receiption. 

Mitchell H. Rubinstein

 

New In Print: Law Review Reviews

Fordham Law Review's April 2013, issue includes a symposium on the goals of antitrust.  Barak Orbach (Arizona) contributed the Forward.  The April 2013, California Law Review includes "Property's Constitution," by James Y. Stern (Virginia) and From Independence to Politics in Financial Regulation," by Stavros Gadinis (Berkeley).  The current issue of the Columbia Journal of Gender & Law includes a Symposium Honoring the Advocacy, Scholarship and Jurisprudence of Justice Ruth Bader Ginsburg.  

The March 2013, Columbia Law Review includes "In Defense of Big Waiver," by David J. Barron (Harvard) and Todd D. Rakoff, (Harvard) and "Technological Innovation, International Competition and the Challenges of International Income Taxation," by Michael J. Graetz (Columbia) and Rachael Doud (Yale '12).  The Winter 2013, Houston Law Review includes articles by Alexia Brunet Marks (Colorado), Stacey A Tovino (UNLV) and Fredrick E. Vars (Alabama).

Legal history buffs may want to check out the Fall/Winter 2013 Rutgers Law Journal, which includes Symposium: The Constitution and the Sectional Conflict.  The current issue of the Saint Louis Law Review includes the symposium, "Invisible Constitutions:  Culture, Religion and Memory."

The Texas Tech Law Review's Fall 2012 issue includes the Sixth Annual Criminal Law Symposium: Sixth Amendment, including panel articles on confrontation, the right to counsel at trial, and the right to counsel before trial.  As of this writing, this edition is not available online at the law review's website.

The March 2013, Cornell Law Review includes "Accepting the Limits of Tax Law and Economics," by Alex Raskolnikov (Columbia), "The Regulator Effect in Financial Regulation," by Jonathan R. Macey (Yale) and "The Social Production of National Security," by Aziz Z. Huq (Chicago).

Some other recently released symposium issues of note are UC Davis Law Review and "The Daubert Hearing: From All the Critical Perspectives;" The University of Chicago Law Review and "Immigration Law and Institutional Design;" Washington University Global Studies Law Review and "Global Nuclear Energy Law and Regulation;" and Georgetown Journal of Law & Public Policy and "Hyper Partisanship and the Law."

The April 2013, Duke Law Journal includes "Delegating Up: State Conformity With the Federal Tax Base," by Ruth Mason (Connecticut) and the lecture, "Exit, Voice and Disloyalty," by Heather K. Gerken (Yale).  The current Oregon Law Review (Vol. 91, No. 4) includes a symposium on issues relating to marijuana legalization and the war on drugs.

Craig Estlinbaum

 

Recent Massachusetts Supreme Judicial Court Decision Interprets a Landlord’s Indemnification Rights under a Commercial Lease

A recent decision by the Massachusetts SJC provides a short master class on indemnification provisions in a commercial lease. (For those interested, a link to the oral argument can also be found here.)  While I do not focus on real estate in my practice or teaching, a lease is a contract like any other, so it seemed worthwhile to review this decision. 

 

The case involved a long term commercial lease in downtown Boston.  The lease started in 2006, and two years later (2008 was not exactly a great real estate market) the tenant suspended its business operations and stopped paying rent, causing the landlord to declare a default, terminate the lease and seek to re-let the premises.  The landlord ultimately filled the space almost two years later, albeit at a lower overall rent, but for a new lease term that went beyond the term of the terminated lease.  The landlord then sought to recover its lost rent for this period (including the period following the original lease term) from the original tenant (and its guarantor). 

 

The lease contained a general indemnification clause requiring the tenant to indemnify the landlord against “all loss of rent and other payments which Landlord may incur by reason of such termination during the remainder of the term."  The lease did not grant the landlord a liquidated damages remedy or any other remedy apart from indemnification.

 

In a colorful opinion, citing Oliver Wendell-Holmes (citing Lord Coke), the Court ruled that Massachusetts law does not permit the landlord, absent an express lease provision, to recover lost rent for time periods outside of the original lease term.  Distinguishing this case from a 1905 decision cited by a lower court in this proceeding, the SJC held that a landlord cannot recover for post-termination damages under an indemnification clause in a lease until the end of the period specified in the lease, when the amount of indemnification is uncertain, unless the indemnification clause specifically provides that damages may be recovered earlier.  The Court sympathized with landlord’s argument that being required to wait until the end of the lease term to enforce an indemnity could be prejudicial in various ways, including that the tenant may be long gone by that point and any adjudged amount may prove uncollectible.  However, the Court refused to adopt an exception to this common law rule, reasoning that landlords are in the best position to assess this type of risk and therefore should be required to state so in their leases.  The Court stated that “a landlord left without an adequate remedy following breach … has only itself to blame for entering into a lease that fails to provide such a remedy.” 

 

The Court also rejected the landlord’s argument that it was entitled to recover "benefit of the bargain" damages in the event of termination of the lease following a breach.  The Court followed the long-standing common law that once a landlord terminates a lease, the tenant is no longer obligated to pay the rent, and, unless the lease provides otherwise, the landlord is not entitled to post-termination damages.

 

This case emphasizes the importance of carefully drafted remedy provisions in any commercial documents.  Parties should not place their faith on courts to help them recover damages for which they did not negotiate, and would be well-advised to review their lease forms in light of this decision.

 

Dimitry Herman

Adjunct Law Professor of Corporate Mergers and Acquisitions

New England School of Law