Tuesday, December 31, 2013

Software Patents

Software patents will come before the Supreme Court this term.   Generally, abstract mathematics cannot be patented.  Yet the USTPO has issued many many software patents over the last several decades.  Many of these patents cover simple functions and often overlap with other the claims made by other patents.  Many of these patents are owned by non-practicing entities, also known as patent trolls by many, which make and sell nothing.  These entities do, however, produce lawsuits against companies and person that are active in the marketplace.  Major technology companies also race to accumulate these patents as both a defensive measure against lawsuits and as a sword to attack their competition.



Friday, November 29, 2013

Senate Judicial Confirmations

With the Senate ending filibusters against federal district court and court of appeals nominees, another rule remains unchanged.  The Senators of the home state of the judicial nominee can block a nomination under the blue slip rule.  This New York Times article describes the practice.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Saturday, August 31, 2013

Interesting Law Review Article Author

The story in the link below is about an atypical law review article author to put it mildly.  


The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Wednesday, July 31, 2013

Baseball - Biogenesis

Today at 4 PM baseball's non-waiver trading deadline passed with no decision on suspensions for the players implicated in dealings with Biogenesis.  Biogenesis allegedly supplied the players with performance enhancing drugs that are banned.  The uncertainty led to at least one trade in the last few days in case the suspensions go through.  Generally players can appeal suspensions and continue playing and suspensions are set depending on the number of previous violations, but in this instance Major League Baseball (MLB) pursued suspensions under a separate part of the collective bargaining agreement.  That part of the agreement allows MLB to suspend players for more than the usual set number of games.  This gave MLB leverage to seek plea bargains with the players where the players would accept shorter suspension in exchange for not appealing the suspension.

MLB sued Biogenesis for intentional tortious interference with its player's contracts by providing them substances banned under those contracts.  Office of the Commissioner of Baseball v. Biogenesis of America LLC, Case No. 2013-10479-CA-20, in the Eleventh Judicial Circuit Court of Florida.  MLB claims lost profits and damage to its relationship with its fanbase(goodwill) as damages.  A Miami judge recently denied a motion to dismiss the case meaning that discovery, including depositions, will begin shortly.  Biogenesis had argued that the complaint was too vague in that it did not state which contract was interfered with.  MLB countered that attachments to the complaint made specific allegations in that regard.  Attorneys for third parties MLB subpoenaed argued that the state court lacked jurisdiction as the case involved a collective bargaining agreement that is regulated by federal law.  The prospect of MLB obtaining more information from the discovery process makes striking a deal now more attractive to the players involved. 

Tortious interference with a contract by helping a party to the contract do something they promised  not to do is an interesting argument as most of these cases involve interference with something that the party promised to do rather than something that he promised not to do.





The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Sunday, June 30, 2013

Confidential Informants

An article in the New York Times discussed a strange case in New York where the authorities concocted a story to avoid disclosing the identity of a confidential informant. Naturally that did not go over we'll with the judge. Confidential informants are often used though if they remain anonymous their hearsay testimony can only be admitted for limited purposes such as showing how the investigation began. There is legal standard to test their reliability in suppression motions, but if the existence of the confidential informant is hidden by a concocted story the system does not work.

 The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Thursday, May 30, 2013

Habeas Corpus and Guantanamo

Your Guantánamo Moment from Yale Law School on Vimeo.
P. Sabin Willett discusses his moment of revelation as an attorney, and those moments that will come for the next generation of lawyers Oct. 24, 2011, at Yale Law School.

This video is an interesting discussion by a lawyer who represented some of the Uyghur detainees on habeas corpus and detainee treatment act appeals. I think anyone who has done at least some defense work can relate to his experience in many respects. 

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Friday, April 26, 2013

Domestic Drones/UAVs

Florida has adopted a new law that limits the ability of the state to use drones for surveillance. 
http://www.cnn.com/2013/04/25/us/florida-drone-law/index.html.  The law requires judicial approval before state and local law enforcement may use surveillance drones.  The law makes exceptions for instances where there is "imminent danger to life or serious damage to property" or where there is "credible intelligence" which indicates "a high risk of terrorist attack."  Currently few law enforcement agencies in Florida  have drones.   The CNN article states that Miami and Orange County each have two.

In terms of the Fourth Amendment it is important to note that states may adopt more privacy protections, by statute or by constitutional provision, than are guaranteed under the U.S. Constitution.  Florida has done so by statute in this instance. 

At the federal level the U.S. Supreme Court has decided cases involving surveillance by manned aircraft.  California v. Ciraolo, 476 U.S. 207 (1986).  In that case the police were not required to obtain a warrant before flying over and observing with the naked eye the backyard of the defendant.  Using other equipment beyond human eyesight during the overflight to observe the property would entail a different analysis than Ciraolo.  Also the Supreme Court has recently placed an extra emphasis on property rights in the Fourth Amendment context.  United States v. Jones, 565 U.S. ___; 132 S.Ct. 945; 181 L.Ed.2d 911(2012).  The common law property maxim of cuius est solum eius est usque ad coelum et ad inferos implied that a land owner owned all the land beneath and above his property.    This legal maxim is now limited to the area above or below the ground that the landowner can occupy or use in connection with the land so overflights are not prohibited in this regard unless they are too low to the ground.  United States v. Causby, 328 U.S. 256; 66 S.Ct. 1062; 90 L.Ed. 1206 (1946).  So there might be a property rights based Fourth Amendment argument against drones flying too close to the ground without a warrant.

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Tuesday, March 12, 2013

Retired Supreme Court Justices

The article below is about the role that retired justices of the Supreme Court continue to play in the legal system after their retirement.  Many go on to sit on panels in the various United States Circuit Courts of Appeals deciding cases.


The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Wednesday, February 20, 2013

California Mixed Motive Defense

The California Supreme Court has added a mixed motive defense to employment discrimination actions.  Even where a jury finds unlawful discrimination was a substantial motivating factor in the termination of an employee no damages, back pay, or reinstatement may be awarded where the employer is able to prove it would have terminated the employee anyway.  The case, Harris v. City of Santa Monica, centered around a pregnant city employee who was fired by the city.  The Plaintiff claimed she was fired because she was pregnant and the city countered that it was for safety and tardiness reasons. 

The opinion did rule that injunctive or declaratory relief and reasonable attorney's fees and costs would still be available to a Plaintiff where the mixed motive defense is successfully invoked by the defense.  Under the appropriate circumstances an employer might also be liable for discrimination as unlawful harassment under a different provision within the California Fair Employment and Housing Act even where the mixed motive defense precludes damages for employment discrimination.


The Opinion can be accessed here: http://www.courts.ca.gov/opinions/documents/S181004A.PDF

The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Saturday, February 9, 2013

Knights of Malta

This week marks the 900th anniversary of the Papal Bull Piae Postulatio Voluntatis that gave the Knights of Malta their sovereign status.  That Papal Bull was issued on February 15, 1113 by Pope Paschal II.  They were originally known as the Order of St. John of Jerusalem and began operations in 1099.   The order started by running infirmaries in Jerusalem during the Crusades for poor pilgrims.  Later it adopted a military function.  Officially known as the Sovereign Military Order of Malta it has been without land to govern since Napoleon pushed them out of Malta in 1798. 

It still retains its sovereign status.  The order engages in charitable work and has 13,500 members, 80,000 volunteers, and 25,000 doctors, nurses, and paramedics.  The members are not priests, and traditionally came from European nobility.  There are about 60 members who take vows of poverty, chastity, and obedience and live as monks.   It still runs a hospital in Bethlehem as well.  It is an observer at the United Nations and prints stamps, license plates, mints coins, issues passports, and has diplomatic relations with over 100 nations, and maintain their own courts and legal code.









The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Wednesday, February 6, 2013

Recess Appointments

On February 8, 2012 the National Labor Relations Board found Noel Canning, a division of the Noel Corporation, in violation of the National Labor Relations Act (NLRA) for "refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760."  Noel Canning v. NLRB, Docket No. 12-1115, slip op 3 (D.C. Cir. Jan. 25, 2013).  Noel Canning is a Pepsi-Cola bottler and distributor.  This action would constitute an unfair labor practice under sections 8(a)(1) and 5 of the NLRA.  Id. at slip op 4.  The NLRB requires a quorum to issue orders.  The NLRB was meant to be a five member board with three members required to constitute a quorum.  Three members of the board were not validly appointed by the President as they were recess appointments made while the Senate was not actually in recess.  Recess appointments are permitted in Article II, Section 2, clause 3 of the United States Constitution.  Orders issued by the agency in the absense of a quorum are void from their inception.  Id. at slip op 4. 

The D.C. Circuit rejected Noel Canning's statutory objections to the NLRB order.  It ruled that the board's order was supported by substantial evidence.  Id. Slip Op at 9.  Noel Canning and the Union had agreed on all points of the contract except for wages and pensions by the final negotiating session.  Id. at Slip Op 5.  The parties, according to Union notes, agreed to present two alternative proposals on these issues to the membership.  Both proposals included wage and pension increases, but they were allocated in different manners.  Id.  The parties agreed to be bound by the Union vote.  Id.  The next day Noel Canning emailed the proposals to the Union membership, but the union proposal was altered, without Union consent, to cap the amount of the pay increase that could be applied to the pension fund.  Noel Canning asserted that the agreement the previous day was not binding since it was not in writing.  Id. at Slip Op 6.  The Union membership ratified the Union proposal without the alteration allocating the entire pay increase to the pension fund, but Noel Canning considered this to be merely a  non-binding counter-offer and rejected it.  Id.  Noel Canning refused to execute a written agreement with the Union ratified terms.  Id

The Union filed a charge with the NLRB for an unfair labor practice based on the company's refusal to execute the agreement.  Id.  An administrative law judge (ALJ) conducted a two day hearing and found the parities reached consensus on the Union's proposal meaning that the Noel Canning's refusal to execute the agreement was an unfair labor practice.  Id.  The NLRB affirmed the ALJ's decision with three members present.  Id. at Slip Op 13.

On appeal Noel Canning also claimed that Washington law should have been applied before the NLRB, but they did not preserve this objection when they objected to the ALJ's decision before the NLRB so the argument was not preserved.  Id. at Slip Op 9.  The D.C. Circuit also ruled that it had jurisdiction to consider the constitutional recess appointments issue under the NLRB even though it was not raised as an issue before the NLRB, because the question is an extraordinary circumstance going to the power of the board to act and the separation of powers.  Id. at Slip Op 11. 

On February 8, 2012, the date of the decision, the NLRB had five members.  Two members had been confirmed by the Senate on June 22, 2010.  Id. at Slip Op 13.  The other three recess appointments by the President on January 4, 2012.  Id. at Slip Op 14.  One filled a seat vacated the previous day by expiration of another recess appointment.  Another filled a seat that had been vacant since August 27, 2010 and the third filled a seat that had been vacant since August 27, 2011.  Id

On January 4, 2012 the Senate had been operating in pro forma sesssions under a unanimous consent agreement every three business days from December 20, 2011 to January 23, 2012 without conducting any business with the exception of December 23 when it passed an extension to the payroll tax holiday and January 3 when it opened the new congressional session.  Id.

Members of the NLRB are officers of the United States and thus are subject to the Appointments Clause of the Constitution which requires the advice and consent of the Senate.  Id. at Slip Op 15.  The recess appointments were not made with the advice and consent of the Senate.  The President may fill vacanies that happen during the Recess of the Senate, but these appointments expire at the end of the next congressional session.  Noel Canning argued that the appointments were not made while the Senate was in recess and that the vacancies did not arise while the Senate was in recess.  Id. at Slip Op 16.

The court distinguished between Senate recesses and "the Recess."  The recess was the period between sessions of congress as opposed to times within  a session when congress might recess.  Each congress has two sessions.  The court noted that the early interpretation of the recess appointments clause in the period immediately after it was ratified tilted towards the recess between congressional sessions.  The court wrote that no president attempted to make an intrasession recess appoint for the first 80 years after the ratification.  Id. at Slip Op 20.  There were only three total prior to 1947.  Id.  The original purpose of the recess appointment was to act as a stopgap when the Senate was unable to provide advice and consent.  The intersession recess was often 6 to 9 months early in American history.  Id. at Slip Op 22.  The court noted that the framers distinguished the recess from adjournments or recesses or even breaks for lunch.   The three day period of the adjournments clause applied to adjournments not recesses.  Id. at Slip Op 24.  The Office of Legal Counsel apparently argued that the president should have the discretion to determine when the Senate was unavailable to perform its advice and consent function.  The court rejected this as that would unbalance the separation of powers.  Id.  The Eleventh Circuit had ruled that the recess includes intrasession recesses, but the D.C. Circuit was not convinced as the Eleventh Circuit opinion did not account for the fact that the Senate must be unavailable to perform its advice and consent function.  Id. at Slip Op 26.  The opinion also goes on to hold that the vacancy filled must happen during the recess.  Id. at Slip Op 30-32.  The court reasoned that the president should not be able to bypass the advice and consent of the Senate by simply waiting for the recess to fill the position by recess appointment as that was not the intent of the clause.  Id. at Slip Op 32.  The government argued that this approach would imperil the functioning of government or national security.  The court pointed out that for other multimember boards congress allowed members to serve after their term had expired until a successor was confirmed.  Id. Slip Op at 38-39.  Congress did not do so for the NLRB.  Id.

As applied to the facts the vacancies in August 2010 and August 2011 occured during intrasession recesses and not during the recess.  The vacancy in January 2012 happened at the end of the congressional session and the 112th Congress did not recess between sessions that year.  Id. at Slip Op 40-44.

The D.C. Circuit opinion concluded that recess appointments by the President can only be made during recesses between sessions of congress (there is one session per calandar year) and only for vacancies arising during that recess.   Judge Griffith concurred, but would have not addressed the issue about when the vacancy happen as it was not necessary.  The case was already decided on the other grounds at that point.  Id.  at 47.


The Law Office of Kurt T. Koehler, 308 1/2 S. State Street Ann Arbor, Michigan (MI) 48198 (Washtenaw County); Copyright 2012 by Kurt Koehler

Wednesday, January 16, 2013

The Takings Clause and Permits

The United States Supreme Court heard oral arguments today in Koontz v. St. Johns River Water Managment District.  A landowner in central Florida sought a permit to develop his property.  The Water Managment district required him to set aside 11 out of his 14.9 acres for conservation and pay for improvements on state owned land several miles away from his property that would have cost between $10,000 and $150,000.  The landowner refused and was denied a permit to develop his property.  He sued claiming that the refusal to issue a permit constituted a taking without just compensation under the 5th Amendment.


Transcript of Oral Arguments: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1447.pdf

Friday, January 4, 2013

House Speaker Rules

Although nothing unexpected occurred today in the election for Speaker of the House of Representatives, I did learn that apparently you don't have to be a member of the house to be elected Speaker.  It has never happened before and is very unlikely in the future, but the rules do not preclude it.