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FMG Law Blog Line

The Supreme Court Sets Groundwater Pollution in its Sights

Posted on: February 20th, 2019

By: Ze’eva Kushner

Yesterday, the United States Supreme Court decided to hear an appeal from the Ninth Circuit’s decision in Hawai’i Wildlife Fund et al. v. County of Maui, 886 F.3d 737 (9th Cir. 2018). The Supreme Court will be hearing this case in the Fall to resolve a circuit split regarding whether discharging pollution that travels underground before emerging into an ocean, river or other major waterway requires a permit under the Clean Water Act.

Congress passed the Clean Water Act in 1972. The goal of the Clean Water Act is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the primary provisions of the statute makes it unlawful for anyone to discharge a pollutant, meaning adding pollution, to the waters of the United States, including the territorial seas. 33 U.S.C. §§ 1362(12), (7).

The provisions of the Clean Water Act have been interpreted by a number of courts over the years, with the coverage of groundwater pollution being a thorny issue for some time. In February 2018, the Ninth Circuit held that Maui County had to comply with the permitting requirement of the Clean Water Act in order to continue to dispose treated water through underground wells after it was shown that the treated water made its way into the Pacific Ocean through fissures in the ocean floor.

The Fourth Circuit made a similar finding a few months later in a case involving a gasoline pipeline spill in South Carolina when it determined that the Clean Water Act covered claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater.

However, in September 2018, the Sixth Circuit changed direction when it ruled on two cases involving the pollutants released by coal ash ponds, holding that the Clean Water Act cannot be used to regulate pollution that travels through groundwater before reaching navigable waters such as a river or ocean.

Thus, it is up to the Supreme Court to resolve the debate regarding how direct of a connection there must be between a source of pollution and the waters that get polluted. Whether a pollutant that goes underground before making its way into a major waterway is subject to the Clean Water Act will have a major impact on industries across the country.

If you have any questions or would like more information, please contact Ze’eva Kushner at [email protected]

Latest FINRA Rules to Regulate Expungement Actions

Posted on: February 19th, 2019

By: Margot Parker

FINRA recently announced its approval of enhanced training and guidance for arbitrators hearing expungement requests, an issue under increasing scrutiny as over 90% of such actions are currently granted. The proposal is now under review by the SEC and represents a step toward making it more difficult for brokers to have customer complaints expunged from their public records. The proposed rules also include a ban on compensated non-attorney representatives (NARs) from representing clients in FINRA arbitrations, as part of another step to strengthen the arbitration process.

While a ban on NARs has been widely supported, critics of the expungement process believe more should be done to take the burden away from customers to fight expungement actions. FINRA states that it shares these concerns. To reduce the high volume of expungements in the past, it codified a rule stating: “expungement is an extraordinary remedy that should be recommended only under appropriate circumstances.” With these recent steps, we may continue to see changes in the regulation of FINRA expungement actions in the near future.

If you have any questions or would like more information, please contact Margot Parker at (310) 937-2066 or [email protected].

Cal. Attorney Sanctioned $50,000 for Reckless and Malicious Conduct at Deposition

Posted on: February 18th, 2019

By: Jenny Jin

A California Court of Appeal upheld a $50,000 sanction against an attorney based on conduct at a deposition.

On February 4, 2019, the Court of Appeal issued its opinion in the case Anna Anka v. Louis Yeager. This case involved a child custody dispute between Paul Anka’s ex-wife, Anna Anka, and her first husband, Louis Yeager. As part of this dispute, the trial court had ordered that a confidential child custody and evaluation report be performed. Mrs. Anka was then subsequently involved in a second child custody dispute with her second husband/now ex-husband, Paul Anka.

Mrs. Anka was represented by the same attorney in both custody disputes. Mrs. Anka’s attorney took Mr. Yeager’s deposition as part of Mrs. Anka’s second custody dispute. During the deposition, Mrs. Anka’s attorney asked Mr. Yeager a series of questions to attempt to elicit confidential information regarding the contents of the evaluation and report from the first child custody dispute. Mr. Yeager testified that he could not recall the information. However, the trial court still sanctioned Mrs. Anka and her attorney $50,000 jointly and severally for her attorney’s reckless and malicious line of questioning that was orchestrated to elicit confidential child custody information.

The Court of Appeal affirmed the $50,000 sanctions against the attorney, but reversed the sanctions award as to Mrs. Anka. The Court found that the disclosure of confidential information was due solely to the attorney’s reckless and malicious conduct during the deposition. The Court opined that “besides being an advocate to advance the interest of the client, the attorney is also an officer of the court” and further that “counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands.” The Court held that the attorney’s conduct in eliciting confidential information during the deposition was not only reckless, but was intentional and willful.

The takeaway from this case is that in both California and across all states, there are real ethical limitations to zealous representation during depositions. Attorneys must remember to balance their duty to zealously represent their client’s interests with their duty as officers of the court to conduct themselves with integrity, courtesy, and professionalism.

If you have any questions or would like more information, please contact Jenny Jin at (415) 352-6451 or [email protected].

Phony Fakes Fall (Allegedly)

Posted on: February 15th, 2019

By: Kevin Stone

The fictional Mike Moffitt famously called Jerry Seinfeld a phony. The reasons remain unknown. A non-fictional New Jersey man, however, appears to be a bona fide phony. Surveillance video of a company breakroom appears to capture the man throwing ice on the floor and then gently laying down next to it. He then filed an insurance claim for the ambulance ride and hospital treatment that followed the “fall.” Unlike the fall, the filing of the claim may actually harm him, as he was arrested for filing a false claim.

This incident is a great reminder to maintain surveillance cameras where appropriate. Cases often come down to the credibility of the plaintiff. But cameras don’t lie.

If you have any questions or would like more information, please contact Kevin Stone at (770) 303-8643 or [email protected].

Serving That Whiskey Might Be Risky – Liability Of Social Hosts In DUI Accidents

Posted on: February 15th, 2019

By: Stacey Bavafa

Under California Civil Code Section 1714, social hosts and other third parties may be held to be partially liable in the event of a drunk driving accident depending on the circumstances that led up to the accident. Under Sec. 1714, everyone is responsible for the result of his or her willful acts, but also for injuries sustained by another by a want of ordinary care or skill in the management of his or her property or person.

California courts have held that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather that the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person. Vesley v. Sager (1971) 6 Cal.3d 153; Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313; and Coulter v. Superior Court (1978) 21 Cal.3d 144.

Therefore, social hosts who provide alcoholic beverages to a person may not be held legally accountable for damages suffered by the intoxicated person, or for damages the intoxicated person inflicts on another person resulting from the consumption of alcoholic beverages. In other words, if John Doe had 5 glasses of whiskey at a bar and ends up swerving in and out of his lane due to his inebriated state, and hits another vehicle causing injury to a third person, the bar who provided John Doe the 5 glasses of whiskey will not be required to pay for damages sustained by the third party.

There are however, two exceptions to the rule outlined above:

If an adult, including a parent or guardian, who knowingly serves alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, the adult may be held liable for actions the minor takes as a result of the consumption of alcohol.

Further, if a business sells alcohol to an obviously intoxicated minor, in such that a reasonable person would be able to tell the minor was intoxicated, the business may face liability for harm arising out of the minor’s actions.

In the case of the underaged drinker, both the underaged drinker and the person who was harmed by the actions of the underaged drinker can file a civil claim against the social host or business to obtain recovery of his or her medical bills, property damage, pain and suffering, loss of income, and legal fees.

If you have any questions or would like more information, please contact Stacey Bavafa at (213) 615-7026 or [email protected].