Wake Forest Law Review
7Oct

Fourth Circuit Clarifies Definition of “Debt Collectors,” Affirms Dismissal of Truth in Lending Act Claims

Categories: 4th Cir. Blog Civil Cases
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By Mike Stephens

This afternoon, October 7, 2016, the Fourth Circuit issued a published opinion in the civil case McCray v. Federal Home Loan Mortgage Corp. The Fourth Circuit affirmed the district court’s decision to dismiss the Plaintiff’s Truth in Lending Act (“TILA”) claims regarding notice. However, the Fourth Circuit reversed and remanded the district court’s decision that two of the defendants, the White Firm and the “Substitute Trustees,” were not “debt collectors” under the Fair Debt Collection Practices Act (“FDCPA”).

Facts and Procedural History

In October 2005, Renee McCray took out a loan to refinance her house. The loan documents were sold to the Federal Home Loan Mortgage Corporation (“Freddie Mac”). Wells Fargo was retained to service the loan. After several years of payments, McCray disputed a billing statement in June 2011 and sent Wells Fargo several requests for information regarding the costs contained within the statement. Wells Fargo either failed to respond or did not respond adequately to McCray’s requests. Eventually, McCray stopped making payments after April 2012 and the loan went into default. Wells Fargo employed the White Firm to initiate the foreclosure.

The White Firm sent McCray a letter dated September 28, 2012, notifying McCray that the firm had been retained to begin the foreclosure proceedings on her home. The letter ended by stating, “This is an attempt to collect a debt. This is a communication from a debt collector. Any information obtained will be used for that purpose.” The White Firm also sent McCray another letter notifying her that the loan was “154 days past due” and that $4,282.91 was needed to cure the default. Members of the White Firm were placed as trustees on the deed of trust and filed a foreclosure action in February 2013, which is still pending. McCray filed suit in 2013, alleging violations of FDCPA and TILA. The district court dismissed four of McCray’s claims and granted summary judgment on the fifth. McCray raised three issues on appeal.

Defendants Were Debt Collectors Subject to the FDCPA’s Regulation

McCray first alleged that the the district court erred in concluding the White Firm and the Substitute Trustees were not “debt collectors” as defined within the FDCPA. McCray argued that the facts contained within the complaint regarding the firm’s letter were sufficient to show that the White Firm “regularly collect[ed] or attempt[ed] to collect debts” that were owed to another, consistent with the definition in 15 U.S.C. § 1692a(6). The White Firm responded that their actions did not qualify them as debt collectors as they never actually sought collection of money because, as the district court concluded, there was no “express demand for payment or specific information about [McCray’s] debt.” The White Firm also argued that their foreclosure action was “incidental to [their] fiduciary obligation,” placing them within an exception in § 1692a(6)(F)(i).

The Fourth Circuit reversed and remanded the district court’s dismissal, holding that McCray’s complaint sufficiently alleged that the White Firm were debt collectors and that their actions in initiating the foreclosure constituted debt collection activity for the purposes of the FDCPA. The Court rejected the White Firm’s argument for two reasons. First, the Court held that the FDCPA did not require an “express demand for payment.” Instead, activities “taken in connection with the collection of a debt or in an attempt to collect a debt” are actionable under the FDCPA. Second, the Court held that foreclosure is not merely “incidental,” but instead “central to the trustee’s fiduciary obligation under the deed of trust.” Thus, because McCray’s complaint alleged facts showing the White Firm was retained to collect the loan in default, and because the firm’s letter concluded that it was “an attempt to collect debt,” their actions fell within debt collection activity that is regulated by the FDCPA.

The District Court Properly Dismissed McCray’s TILA Claim

McCray also alleged that the district court wrongfully dismissed her TILA claim against Freddie Mac. McCray argued that Freddie Mac failed to give her notice of its purchase of the loan in violation of § 1641(g). This provision was added by Congress in 2009, which provides that:

not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer.

The district court found that McCray’s complaint failed to allege that Freddie Mac acquired the loan after Congress amended TILA to require notice. Additionally the district court found that McCray received notice of her claim in October 2011 because Wells Fargo sent her a letter notifying her that Freddie Mac was the “investor” on the loan. Because McCray filed suit in 2013 after receiving notice of the TILA claim in October 2011, the district court held, in the alternative, that her claim was barred by TILA’s one-year limitations period.

The Court affirmed the district court’s initial conclusion because McCray did not challenge the district court’s dismissal for failure to allege that her loan was sold after Congress amended TILA in 2009.  The Court affirmed the district court’s alternative holding as well. McCray did challenge the district court’s alternative conclusion, alleging hat the district court erred by not allowing her the opportunity to amend her complaint.  McCray pointed out that the October 2011 letter was not included in her complaint and instead was contained within the defendants’ motion to dismiss. Yet, McCray submitted an affidavit in her response where she stated she received a letter in December 2011 which repeated that “[t]he investor/noteholder for this loan is [Freddie Mac].” The Court found McCray’s claim was barred by the statute of limitations because McCray conceded notice that Freddie Mac was the owner of the loan in December 2011.

Wells Fargo Did Not Hold Legal Title

Lastly, McCray argued the district court wrongfully dismissed her claim that Wells Fargo violated § 1641(g) when it failed to give her notice that it had been assigned the deed of trust. The district court concluded that § 1641(g) was not applicable because Wells Fargo only received a “beneficial interest” to service the loan and “not legal title.” McCray claimed that a line in the deed of trust granted Wells Fargo an ownership interest and that failure to notify her of this interest was in violated of TILA.

The Fourth Circuit affirmed the district court, holding that the Wells Fargo did not obtain an ownership interest because the note was not sold to Wells Fargo. The Court found that simply because the note “can be sold” does not mean “the note was in fact sold to Wells Fargo.” The Court also highlighted that this claim contradicted McCray’s previous claim that Freddie Mac owned the note and failed to provide timely notice of ownership.

Disposition

The Court ultimately reversed and remanded McCray’s FDCPA claim that the White Firm and the Substitute Trustees were acting as “debt collectors.” The Court was careful to note that this reversal was not to indicate whether or not the defendants actually violated the FDCPA. The Court affirmed the district court’s dismissal of McCray’s TILA claims.

Judge Johnston Concurring in Part and Dissenting in Part

Judge Johnston, District Judge for the Southern District of West Virginia, sitting by designation, only dissented on the portion of the decision to affirm dismissal of McCray’s TILA claim against Wells Fargo for failing to provide notice of its interest in the loan. Judge Johnston noted that McCray’s complaint was filed pro se, and as such, should have been construed liberally. Because of this, the complaint could be read to infer that McCray could not identify the actual owner of the mortgage loan. In essence, the TILA claim regarding notice was nothing more than a pro se litigant attempting to “cast a wide net” by alleging both Wells Fargo and Freddie Mac failed to provide her notice of which entity owned the loan. Judge Johnston found the majority opinion’s reading of a pro se complaint to be “unduly strict” at the pleading stage when discovery would surely reveal whether Wells Fargo did receive an ownership interest.

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21Mar

Fourth Circuit Reverses Lower Court’s Sua Sponte Consideration of Diversity Jurisdiction

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courtroom

By Daniel Stratton

Today, March 21, 2016, the Fourth Circuit issued a published opinion in the civil case Jane Doe #1 v. Matt Blair, vacating the district court’s decision. The Fourth Circuit held that the lower court incorrectly determined that there was no federal diversity jurisdiction because the defendant corporation failed to allege its principal place of business. The Fourth Circuit overturned the decision because it was a procedural determination rather than a jurisdictional one.

The Case Bounces Between State and Federal Courts

On March 27, 2014, Ben and Kelly Houdersheldt filed a complaint in West Virginia state court as the next friends and guardians of Jane Doe #1, against Matt Blair and Res-Care, Inc. On July 14 of that same year, Res-Care removed the case to federal court, claiming subject matter jurisdiction based on diversity. Res-Care alleged that Jane Doe #1 was a resident of West Virginia and that Blair was a resident of Virginia. The company alleged that it was incorporated in Kentucky, but did not allege the state in which it had its principal place of business. The Houdersheldts, acting as next friends and guardians of Jane Doe #2, amended the complaint to include the second plaintiff. Jane Doe #2 and the Houdersheldts were residents of West Virginia.

On January 20, 2015, the district court sua sponte remanded the case back to state court, asserting that diversity subject matter jurisdiction had not been established. The court asserted that because neither party had asserted where Res-Care had its principal place of business, the court did not have jurisdiction based on diversity. Defendant Blair filed a motion to amend under Federal Rule of Civil Procedure 59(e) and for reconsideration under Federal Rule of Civil Procedure 60. Res-Care joined the motion. In the motion, the defendants argued that no party had challenged the diversity jurisdiction and that the parties had determined that Res-Care’s principal place of business was Louisville, Kentucky. The plaintiffs did not oppose Blair and Res-Care’s motion, but the district court denied it. Res-Care and Blair appealed.

Procedural or Jurisdictional: The Threshold Question for Reviewing Removal Orders

Federal circuit courts are restricted in reviewing district court orders remanding removed cases to state court. Under 28 U.S.C. § 1447(d), remand orders are generally “not reviewable on appeal or otherwise.” Supreme Court precedent, however, limits 28 U.S.C. § 1447(d) to cases where (1) a district court lacks subject matter jurisdiction, or (2) there is a defect in removal (other than a lack of subject matter jurisdiction) that was raised by a motion filed by a party within thirty days after the notice of removal was filed.

Under this system, a court can remand a case sua sponte for lack of subject matter jurisdiction at any time. Such an order is not reviewable by a federal appellate court. However, if the remand is based on another defect, a motion must be timely filed. If no motion is filed, 28 U.S.C. § 1447(d) does not bar a court’s review. Essentially, whether an appellate court has jurisdiction to review a district court’s remand order turns on whether the order was jurisdictional or procedural in nature.

How Have Other Circuits Tackled This Question?

In deciding how to resolve this case, the Fourth Circuit took notice of how other circuits have dealt with the the precise issue of “whether a failure to establish a party’s citizenship at the time of removal is a procedural or jurisdictional defect.” Three other circuits – the Fifth, Seventh, and Eleventh Circuits – had previously determined that this type of failure was “procedural, rather than jurisdictional.” Those circuits determined that a procedural defect was any defect that did not go to the question of whether the case could have been brought in federal court in the first place.

The Fourth Circuit, in the 2008 case Ellenberg v. Spartan Motors Chassis, reached a similar decision in regards to the amount in controversy component of diversity jurisdiction. In that case, the complaint did not state a dollar amount for damages claimed. The notice of removal to federal court there stated that the amount in controversy exceeded $75,000. Once the case was in federal court, the district court sua sponte considered whether the case should be remanded to state court. There, the district court found that the defendants’ allegations of diversity jurisdiction failed because they had failed to establish that the amount in controversy exceeded the required jurisdictional amount. Soon after, the defendants filed a motion with facts supporting their allegations regarding the amount in controversy, which the district court denied. On appeal, the Fourth Circuit determined that it was not barred from reviewing the lower court’s decision because the remand order was based on a procedural insufficiency rather than on finding a lack of subject matter jurisdiction.

The Fourth Circuit Applies Ellenberg; Adopts Approach of the Other Circuits

Turning to the present case, the Fourth Circuit noted that the district court had proceeded in a manner similar to the district court in Ellenberg. Like that court, the court in the current case had “recited the well-established principles of subject matter jurisdiction” then determined that diversity jurisdiction had not been established. Then, after Blair attempted to correct this failure with his Rule 59(e) motion, the court here denied that motion, much as the court in Ellenberg.

The Fourth Circuit was not persuaded that in the present case the lower court had explicitly concluded that there was no subject matter jurisdiction, because such an order required an examination of the underlying substantive reasoning. This, the Fourth Circuit reasoned, was enough to show that the district court had not based its decision on a lack of subject matter jurisdiction, but instead on the procedural insufficiency of the removal notice. As a result, the court explained that the only way the this procedural deficiency could be raised would be by a party filing a timely motion, which did not occur here. Thus the Fourth Circuit adopted the approach used by the Fifth, Seventh, and Eleventh Circuits.

The Fourth Circuit Remands the Case Back to Federal District Court

Because the district court improperly remanded this case sua sponte, the Fourth Circuit reversed the lower court’s decision and remanded the case back for further proceedings. The Fourth Circuit also granted a motion made by Res-Case to amend its removal notice to correct its earlier deficiency.

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13Mar

Fourth Circuit Holds That Arbitrators Have Opportunity to Resolve Liability and Damage Disputes Before Moving to Federal Court

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mining

By Daniel Stratton

On March 8, 2016, the  Fourth Circuit issued a published opinion in the civil case Peabody Holding Company, LLC v. United Mine Workers of America, vacating the district court’s decision. The Fourth Circuit held that under the complete arbitration rule, an arbitrator handling a labor dispute between Peabody Holding and United Mine Workers of America should have been allowed to finish resolving both the liability and remedial phases of the dispute before the matter was moved to federal court.

United Mine Workers and Peabody Coal Company Enter into Job Opportunity Agreement

In 2007, the United Mine Workers of America and Peabody Coal company entered into a Memorandum of Understanding Regarding  Job Opportunities (“Jobs MOU”). Peabody Coal signed the agreement on behalf of itself and its parent company, Peabody Holding. The purpose of the Jobs MOU was to require non-unionized companies within the Peabody corporation to give preference to coal miners who either worked for or were laid off by Peabody Coal with regards to hiring treatment. The Jobs MOU included an arbitration clause that required all disputes involving the MOU to be submitted to an arbitrator, whose decisions would be final and binding.

That same year, Peabody Energy Corp., the ultimate corporate parent of Peabody Holding,  Peabody Coal, and another company, Black Beauty Coal Company, began a process to spinoff part of its mining operation into a new entity known as Patriot Coal Corporation. Peabody Coal was spun off into Patriot. All of the Peabody subsidiaries that became part of Patriot had been signatories to the Jobs MOU. The only subsidiary that had been a signer to the Jobs MOU that was not spun off into Patriot was Black Beauty. At the completion of the spinoff, Peabody Coal had no corporate relationship with Peabody Holding or Black Beauty.

In 2008, Black Beauty hired United Minerals Company to assist with mining operations on Black Beauty’s property. Both United Minerals Company and Black Beauty were non-unionized. Shortly after United Minerals Company began working with Black Beauty, the United Mine Workers of America sent a letter to Peabody Energy and Peabody Holding explaining that Peabody Holding and Black beauty were still bound by the Jobs MOU. Peabody disagreed, arguing that after Peabody Coal had been spun off, the rest of the Peabody corporate family no longer had any obligation under the Jobs MOU.

Peabody initially argued that this dispute with United Mine Workers was not arbitrable, an argument that the Fourth Circuit rejected in 2012. After being sent back to arbitration, the union and Peabody agreed to bifurcate the dispute into separate liability and remedy phases. The arbitrator ruled that the Jobs MOU remained in effect despite the fact that Peabody Coal had no corporate relationship with Peabody Holding. The arbitrator declined to rule on whether or not Black Beauty was actually exempt from the Jobs MOU, deferring its decision on that question until the remedy stage.

Peabody and United Mine Workers Take Their Dispute to the Courts

Peabody sought to vacate the arbitrator’s decision, filing an declaratory judgment action in the U.S. District Court for the Eastern District of Virginia. At the same time, the United Mine Workers filed a counterclaim to enforce the decision by the arbitrator.  Under Section 301 of the Labor Management Relations Act (“LMRA”), some courts viewed their jurisdiction as being limited to “review of final arbitration awards,” while others believed that Section 301 provided “sweeping jurisdiction.” The district court ultimately declined to weigh in on that debate, instead noting that because the liability portion of the arbitration was finished, it was final and therefore reviewable. The district court found in favor of the union, holding that the arbitrator was right to find the Jobs MOU still valid. Peabody and its subsidiaries appealed the district court’s decision. After the parties briefed the appeal, the Fourth Circuit asked for additional briefing on whether the arbitrator’s decision was even properly before the circuit, because the arbitration was not yet complete.

The Limits and Scope of the Complete Arbitration Rule

Under Section 301 of LMRA, federal district courts have jurisdiction over suits involving contract violations between employers and unions. The Supreme Court has long held that Section 301 can be used to seek enforcement of an arbitration award made under a collective bargaining agreement’s arbitration clause. As a threshold matter however, a court must determine that the award is final and binding. Many courts have held this to mean that an arbitrator must have ruled on both liability and remedies before the decision can be reviewable.

Some judicial decision viewed the complete arbitration rule as a restriction on federal jurisdiction. Other decisions had focused on Section 301’s broad language, and have viewed the complete arbitration rule to be “only a prudential limitation on judicial involvement” in an arbitrated labor dispute.

The Fourth Circuit Finds that the Arbitration Decision was sent to the Courts Too Soon

The Fourth Circuit noted that several courts which view the complete arbitration rule in jurisdictional terms still concede that there are exceptions to the rule in extreme cases. Based on this, the Fourth Circuit noted that this necessarily meant that the complete arbitration rule only constituted a prudential limitation. The Court also noted many policy rationales for the complete arbitration rule were the same as those used for strictly jurisdictional relatives. Like the rules that require a district court to enter a final judgment or order before an appellate court can review the case, the complete arbitration rule promotes the same goals of preventing “piecemeal litigation and repeated appeals.” Applying the complete arbitration rule also helps prevent a party from using courts to delay the arbitration, the Fourth Circuit noted.

In terms of actually applying the complete arbitration rule, the Fourth Circuit noted that the application was straightforward. Generally, when an arbitrator decides liability and “reserves jurisdiction to decide remedial questions” later, a federal court should wait to review until all questions have been resolved.  The Court was unpersuaded by Peabody’s arguments that the liability phase was final and thus reviewable. The Fourth Circuit noted that such a division was sensible and common. Just because the parties decided to split their dispute did not change the fact that they agreed to submit the entire dispute to the arbitrator.

The Fourth Circuit also quickly dismissed Peabody’s arguments that reviewing the liability portion now would promote efficiency. Such efficiency arguments could potentially be applied to virtually any case, the court noted, before explaining that by waiting until after the remedy portion was resolved the court was actually promoting efficiency. This was because the parties could still reach a settlement at some point, making a review of the liability portion moot. The Fourth Circuit concluded by explaining that arbitration is a matter of contract, and as such the parties should be able to design an arbitral process that best suits the needs of the parties.

The Fourth Circuit Remands the Case Back to the Arbitrator

The Fourth Circuit ultimately held that the arbitrator’s decision had been prematurely sent to the courts, and remanded the case back to the district court to remand the case back to the arbitrator to continue the arbitration.

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8Feb

Oil and Gas Lease Not Divisible into Separate Segments for Production and Storage, Fourth Circuit Says

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Oil Pumps

By Daniel Stratton

Today, the Fourth Circuit issued a published opinion in the civil case K & D Holdings, LLC v. Equitrans, L.P. In K & D Holdings, the court held that an oil and gas lease granted to defendants, Equitrans and EQT, by plaintiff, K & D Holdings, was not divisible into separate components. In reaching that conclusion, the court reversed and remanded the case to the district court with instructions to enter judgment in favor of Equitrans and EQT.

The Terms of the Original Lease

In December 1989, Henry Wallace and Sylvia Wallace signed a lease granting Equitrans the oil and gas rights to an area of land covering 180 acres in Tyler County, West Virginia. Currently, K & D is the successor in interest to the Wallaces. Additionally, Equitrans L.P., the successor-in-interest to Equitrans Corp., subleased the rights to produce and store gas on the land to EQT Corp. Essentially, the terms of the lease now govern a relationship between K & D and EQT.

The terms of the lease grant EQT the right to use the land to explore and produce oil and gas, store gas, and protect stored gas. The lease’s initial term ran for five years and would continue on for as long as a portion of the land was used for “exploration or production of gas or oil, or as gas or oil is found in paying quantities thereon or stored thereunder, or as long as said land is used for the storage of gas or the protection of gas storage on lands in the general vicinity.” After taking control of the land, EQT never engaged in exploration, production, or gas storage, but has engaged in gas storage protection.  Equitrans owns the nearby Shirley Storage Field, a natural gas storage facility. The Federal Energy Regulatory Commission established a buffer zone of 2000 feet around the storage area for protection of the storage facility. The leased land falls within that buffer zone.

Due to EQT and Equitrans not using the leased land for gas or oil production, K & D sought to end the arrangement and enter into a more lucrative contract with another company. On September 20, 2013, K & D filed a lawsuit in state court against EQT, arguing that it was entitled to a rebuttable presumption under West Virginia state law that EQT had abandoned the land after not producing or selling gas or oil from the property for more than twenty-four months. EQT removed to the United States District Court for the Northern District of West Virginia. EQT and K & D filed cross motions for summary judgment.

On September 30, 2014, the court denied both cross motions. Acting sua sponte, the district court found as a matter of law that the lease was divisible. The court argued that because the lease had two primary purposes, (1) exploration and production and (2) storage and protection, the lease could be divided into two separate leases. The lease for exploration and production of oil and gas had expired in the district court’s view, because the initial five-year term had elapsed without EQT exploring for or producing oil or gas. The court held however, that the second lease, for storage and protection, was still in force because EQT had used the land for that purpose.

On January 21, 2015, the district court issued its final order, stating that K & D was entitled to drill exploration and production wells in areas that were not within the buffer zone of the Shirley Storage Field. EQT appealed.

West Virginia is for Lessors

Because this case was heard under diversity jurisdiction, West Virginia state law applies. Under West Virginia law, contract law principles apply equally to the interpretation of leases. The primary criterion for determining if a contract is severable is whether such an intention was reflected by the parties in the terms of the contract itself, the subject matter of the contract, and the circumstances giving rise the question.  A contract is not severable when it has material provisions and considerations that are interdependent and common to each other. Additionally, under West Virginia state law, there is a presumption against divisibility unless the contract explicitly states that it is divisible or the parties intent of divisibility is clearly manifested. As a general matter, West Virginia law regarding oil and gas leases are liberally construed in favor of the lessor, but only when there is ambiguity as to the lease terms.

A Lease Divisible Cannot Stand

On appeal, EQT made two arguments. First, it argued that the district court erred as a matter of law in holding the lease divisible. Second, EQT contended that the district court was wrong in determining that the exploration portion of the lease had terminated after its initial five-year term. Reviewing the district court’s findings of fact for clear error and its conclusions of law de novo, the Fourth Circuit agreed with both of EQT’s arguments.

Starting with its first argument, EQT pointed to the language of the lease itself. The lease’s use of the word “or” between each act required of EQT in order to continue the lease indicated that the acts were alternatives, and that only one would be required to keep the entire lease in effect. Applying West Virginia’s test for determining if a contract is severable, the Fourth Circuit concluded that the lease was intended to be entire and not divisible.  The Fourth Circuit applied the plain, ordinary meaning of the word “or,” holding that in this case it was a disjunctive and could not be considered to have the same meaning as the word “and.”

K & D argued that because EQT paid different rents depending on what activities it was engaging in, the lease was divisible. The court found this argument to not be persuasive, noting that the activities EQT could engage in under the lease were interrelated. Additionally, because the Fourth Circuit found no ambiguity in the lease, it did not need to liberally interpret in favor of the lessor.

Having decided that the lease was not divisible, the court then turned to the question of whether EQT had continuing rights under the lease. The terms of the lease dealing with renewal stated that the lease would continue beyond the initial five-year term if “(1) the lessee explores for or produces gas or oil; (2) ‘gas or oil is found in paying quantities thereon or stored thereunder’; or (3) the ‘land is used for the storage of gas or the protection of gas storage on lands in the general vicinity.” Again noting the use of the disjunctive “or,” the court found that because it was undisputed that part of the land was being used for protection, EQT continued to hold all rights under the original lease.

The Fourth Circuit Hold the Lease is Not Divisible and Valid; Reverses and Remands 

Having determined that the lease was not divisible and that EQT still held all rights under the original lease, the Fourth Circuit reversed and remanded the lower court’s decision, instructing that court to enter judgement in favor of EQT and Equitrans.

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3Feb

Fourth Circuit Affirms Summary Judgment in Case of Pesticide Application to Peanuts

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peanuts

By Malorie Letcavage

On December 2, 2015, the Fourth Circuit issued its published opinion in Severn Peanut Co., Inc. v. Industrial Fumigant Co. In this case, appellant Severn Peanut Co. (“Severn”) asked the Fourth Circuit to overturn the lower court’s grant of summary judgment for appellee, Industrial Fumigant Co. (“IFC”) on both the breach of contract and the negligence claim. The Fourth Circuit ultimately affirmed the grant of summary judgment because the consequential damages provision in the contract overcame the breach of contract claim and North Carolina law does not allow a plaintiff to pursue a tort claim under the guise of a contract claim.

Background

Severn entered into an agreement with IFC to apply a pesticide, phosphine, to its peanut storage dome. The parties signed a Pesticide Application Agreement (“PAA”) which detailed that Severn would pay IFC $8,604 for the pesticide services. The contract specified that the sum excluded IFC assuming any risk of “incidental or consequential damages” to Severn’s “property, product, equipment, downtime, or loss of business.” It also stipulated that the pesticide would be applied according to the instructions on its label.

The label on the phosphine requires the user to avoid the pesticide tablets from piling up because this could lead to fire or an explosion. Despite this warning, IFC dumped 49,000 tablets of the pesticide into the peanut dome through a single hatch. The pile up of the tablets caused a fire and an explosion. Severn’s insurer paid to cover Severn’s loss of peanuts, business income, and the damage to the peanut dome. Severn filed against IFC for breach of contract and negligence. The District Court granted partial summary judgment for IFC on the breach of contract claim because it found that the consequential damages clause in the PAA excluded a claim for breach of contract. It also found Severn to be contributorily negligent, and thus granted summary judgment in favor of IFC on the negligence claim.

Breach of Contract Claim

The Court examined the consequential damages limitations in North Carolina. It found that this doctrine allows parties the freedom to contract. It strongly stressed that it would not overhaul a valid enforceable contract that both parties agreed to and signed. It held that the consequential damages doctrine may only be limited if the clause is unconscionable. The Court found that overall the doctrine is a widely used tool for completing business.

In application to Severn’s case, the Court held that the language of the PAA established a valid consequential damages clause, and the items damaged fell within this language. It also found that the clause was not unconscionable. A clause is unconscionable when no reasonable person would view the contract’s result without feeling injustice. However, this clause was conscionable because it was between two experienced business parties who contracted specifically to include the provision; it was a fair result according to the contract.

The Court also rejected Severn’s argument that the clause was a violation of public policy. The Court refused to find consequential damage clauses against public policy without a clear indication from the North Carolina courts, of which there was none. It held that North Carolina law provides other criminal and civil penalties for the misapplication of the pesticide, so there was no reason to hold private liability as the only means of enforcement. Thus, the Court affirmed summary judgment on the breach of contract claim because the contract was an agreement between two sophisticated commercial entities who should be held to the terms of the contract they signed.

Negligence Claim and Economic Loss Doctrine

While the Court agreed with Severn’s argument that the ruling of contributory negligence ignored material facts, it still affirmed the grant of summary judgment for IFC because of the economic loss doctrine. The Court found that the negligence claims would not survive the assent to the consequential damages limitation. The economic loss doctrine “prohibits recovery for purely economic loss in tort when contract…. operates to allocate the risk.” The doctrine encourages parties to allocate the risk of loss themselves, as they are in the best position to do so.

In this case, Severn wanted to claim a remedy in tort for IFC’s breach of duty to apply the pesticide according to the label, which is the same source as their breach of contract claim. Yet since Severn bargained to limit consequential damages caused by breach of contract they cannot be allowed to try to undo that bargain using tort law. Additionally, the Court found that the storage dome and peanuts were not outside of the contract, and were not exempt from the economic loss doctrine.

Summary Judgment Affirmed

Thus, the Fourth Circuit affirmed the lower court’s grant of summary judgment for IFC on both the breach of contract and the negligence claim.

 

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2Feb

Fourth Circuit Declares Arbitration Agreement Unenforceable in Payday Loan Case

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gavel

By George Kennedy

Today, in the civil case of Hayes v. Delbert Services Corporation, the Fourth Circuit reversed the order of the district court compelling arbitration under the Federal Arbitration Act. The Fourth Circuit held that the arbitration agreement at issue was unenforceable as a matter of law, and accordingly reversed the district court order and remanded for further proceedings.

The Origin of the Dispute: Payday Loans Issued by Western Sky

The plaintiff, James Hayes, received a payday loan from Western Sky Financial, LLC, a lender owned and operated by the Cheyenne River Sioux Tribal Nation. Under the terms of the loan, Hayes received a loan of $2525 at an annual rate of 139.12% over four years, meaning that Hayes was set to pay over $14,000 for a loan of just $2525.  The exorbitant rates charged by Western Sky were not the issue of this case. Western Sky’s lending practices violated a number of federal and state laws. Eventually, extended litigation and prosecution caused Western Sky to stop issuing loans in 2013.

The issue in this case, however, concerned Western Sky’s use of collection agencies. Notwithstanding the end of Western Sky’s lending business, the corporation continued to pursue unpaid loan balances through the use of these agencies. One of these agencies was Delbert Services Corporation, the defendant. Delbert’s actions as a debt collector raised issues of their own, and Hayes filed several claims against Delbert in federal district court, prompting the litigation of this case.

The District Court Compels Arbitration

Hayes filed a putative class action with a number of similarly situated plaintiffs in the Eastern District of Virginia. In the class action, Hayes sought to obtain relief from Delbert’s allegedly unlawful collection practices. Hayes alleged that Delbert violated both the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act in the carrying out of its debt collection practice. Delbert countered that Hayes was precluded from suing in federal court because of a binding arbitration clause and forum selection clause in the loan agreement Hayes had previously signed with Western Sky. In response, Hayes argued that the  forum selection and arbitration provisions in the loan agreement were unenforceable.

The district court agreed with Hayes that the loan agreement’s forum selection clause was unenforceable, but ultimately sided with Delbert in ruling that it would enforce the arbitration clause. Accordingly, Hayes appealed the order compelling arbitration.

Fourth Circuit Holds that The Arbitration Agreement Is Unenforceable as a Matter of Law

The Fourth Circuit disagreed with the district court’s ruling, and held that the arbitration agreement was legally unenforceable.   In its analysis, the Fourth Circuit focused on two key provisions of the loan agreement. The first provision stated that “[t]his Loan Agreement is subject solely to the exclusive laws and jurisdiction of the Cheyenne River Sioux Tribe.” The second provision stated “no United States state or federal law applies to this Agreement.” The Fourth Circuit held that these two provisions were extremely problematic. As the court explained, these provisions allow the “disavowal of state and federal law,” and the substitution of the law of the Cheyenne River Sioux Tribe in its place.

The Fourth Circuit adamantly maintained that arbitration agreements may never be used to totally circumvent federal and state law. While the court acknowledged that the Federal Arbitration Act gives parties fairly wide discretion to structure arbitration in the way they wish, the court explained that this discretion does not allow parties to dodge federal and state law completely. Doing so, the Fourth Circuit argued, would endanger the federally protected civil rights of individuals privy to arbitration awards. The Fourth Circuit held that this issue of the arbitration agreement circumventing state and federal law was so problematic and so central to the “essence” of the contract that the arbitration agreement as a whole was unenforceable.

Reversed and Remanded

Accordingly, the Fourth Circuit reversed the order of the district court compelling arbitration, and remanded the case for further proceedings.

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21Jan

Fourth Circuit Upholds Refunds and Attorneys Fees Against Water Utility

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By Malorie Letcavage

On December 1, 2015, the Fourth Circuit issued its published opinion in the case of Tommy Davis Construction, Inc. v. Cape Fear Public Utility Authority. The defendant, Cape Fear Public Utility, appealed the district court’s findings and award of attorneys fees in favor of plaintiff, Tommy Davis Construction. Defendant raised four issues on appeal, but the Fourth Circuit affirmed the district court’s judgment in favor of plaintiff and the award of attorneys fees.

Davis Objects to Paying Invalid Impact Fees

Davis Construction (“Davis”) was developing a subdivision named Becker Woods, and arranged to have Aqua NC provide water and sewer services. Aqua NC was the only utility in that part of the county to offer those services, although Water and Sewer District (“WSD”), Cape Fear Public Utility’s predecessor, provided those services in other parts of the county. A County employee told Davis Construction it was necessary to pay WSD impact fees before it could get building permits from the County. WSD did not offer services where Becker Woods was located, and Davis had already paid Aqua NC those fees since it would be the utility providing the services. Despite objecting profusely, Davis paid in order to get the building permits.

About a year later WSD became Cape Fear Public Utility Authority (“Cape Fear”). Davis then applied for more permits for other lots in Becker Woods and was only required to pay the impact fees to Aqua NC for providing the services, and not to WSD.

Davis filed a suit in order to recover the fees it had paid to the county. The District Court found that Cape Fear’s collection of impact fees was “an ultra vires act beyond their statutory authority.” The district court rejected Cape Fear’s defenses of the claims being time-barred or the application of the doctrine of laches. The court awarded Davis a refund of the impact fees and attorney’s fees.

Statute of Limitations Bars the Federal Claims, but not the State Claims

The Court found that Davis’ federal due process claim was time barred by the statute of limitations. It held that the claim was really a §1983 claim, although this was not explicitly stated. The statute of limitations for §1983 claims are borrowed from the statute of limitations in a personal injury action in that state. In North Carolina, this is a three year period that began to run when Davis paid the impact fees. Since Davis then brought the claim five years later, the federal claim is time barred.

However, the Court found that the state law claims were timely filed. It compared the present case to Point South Properties, LLC v. Cape Fear Public Utility Authority (“Point South”). That case had extremely similar facts where impact fees were forced to be paid twice to a utility that was not providing the service. That court found that the applicable statute of limitations was ten years, derived from the catch all in NC. Gen. Stat. 1-56. The Court held this ten year period was also the appropriate statute of limitations, and the state claims were timely.

The Court also rejected Cape Fear’s claim that even if the claims were timely, they were barred by the equitable doctrine of laches. The Court once again referenced Point South and came to the same conclusion as that case; laches did not apply because it is not available in an action at law. Laches also did not apply because Cape Fear did not establish that they were prejudiced by the delay in time.

Cape Fear’s Collection of Fees was Ultra Vires

The Court upheld the district court’s finding that the collection of fees was ultra vires. Cape Fear argued that since they intended to expand their services to that part of the county, the fees could have been considered in furtherance of “services to be furnished.” But the Court held that Cape Fear had only vague plans for forty years and had taken no concrete steps to expanding service to that area. The services to be furnished must take effect in a reasonable time after construction and even ten years after Davis received its permits, Cape Fear still had not taken steps to provide service. Cape Fear’s generalized goal to expand service was not sufficient, and the Court upheld the lower court’s finding of summary judgment in favor of Davis.

Court Upholds Award of Attorney’s Fees

Cape Fear alleged that attorney’s fees were inappropriate because they were not a city or a county as required under the relevant statute. However, the district court found that the County acted outside of its legal authority by requiring Davis to pay the impact fees in order to receive its permits, and that it collected those fees on behalf of WSD. Thus, the Court found that the lower court had the authority to award attorneys fees.

Judgment Affirmed

The Court affirmed the lower court’s grant of summary judgment for Davis and the award of attorneys fees.

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17Nov

Fourth Circuit Vacates Maryland District Court’s Decision, Compels Arbitration in Franchise Dispute

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By Anthony Biraglia

In the civil case of Chorley Enterprises v. Dickey’s Barbecue Restaurants, Inc., the Fourth Circuit vacated a Maryland district court’s decision to hold a jury trial on a purportedly ambiguous contract provision, rather than compel arbitration, in a franchise dispute between two sets of plaintiffs and Dickey’s Barbecue Restaurants (“Dickey’s”). The Court determined that it could resolve the purported ambiguity in the contract provision as a matter of law, and found that the “clear and unambiguous language” of the provisions mandated that Dickey’s common law claims be arbitrated, while the plaintiff’s Maryland Franchise Law claims go forward in Maryland district court. In a published opinion released on August 5, 2015, the Court stated that the Federal Arbitration Act (“FAA”) requires this result despite the inefficiency of piecemeal litigation in multiple forums.

Arbitration or Litigation? Pre-Trial Maneuvering

Both sets of plaintiffs (collectively “Franchisees”) were franchisees operating Dickey’s restaurants in Maryland. The first set of plaintiffs, Matthew Chorley, Carla Chorley, and Chorley Enterprises (collectively “Chorleys”), were involved in a dispute with Dickey’s over the franchise’s management. Dickey’s brought arbitration proceedings, alleging common law breach of contract claims for the franchise and development agreements between Dickey’s and the Chorleys. In turn, the Chorleys brought suit in federal court seeking to enjoin arbitration and declare the arbitration provision unenforceable. The Chorley’s also claimed that Dickey’s fraudulently misrepresented start-up and operating costs in violation of the Maryland Franchise Regulation and Disclosure Law (“Maryland Franchise Law”). Dickey’s filed a similar set of claims against the second set of plaintiffs, Justin Trouard and Jessica Shelton (collectively “Trouard and Shelton”). Trouard and Shelton responded in the same fashion as the Chorleys by filing suit in Maryland district court. Dickey’s filed motions to compel arbitration in both matters. The district court consolidated these two cases to decide the pre-trial motions because the provisions in question were virtually identical.

The Franchisees agreed to similar contracts with Dickey’s that included several forum selection provisions, two of which were at issue here. The first was an arbitration provision (“the Arbitration Clause”) in which the parties agreed to arbitrate all claims arising out of the agreement at the American Arbitration Association nearest to Dickey’s headquarters in Texas. The second was a state specific provision (“the Maryland Clause”) that created an exception to arbitration provision with regard to claims under the Maryland Franchise Law. The agreement provided that the Franchisees could file such claims in any competent court in Maryland. In the district court, both the Franchisees and Dickey’s presented an all-or-nothing argument. The Franchisees argued that the Maryland Clause fundamentally conflicted with the Arbitration Clause such that the Arbitration Clause was void, whereas Dickey’s argued that the Maryland Clause merely preserved the right to bring a Maryland Franchise Law claim in either arbitration or in court.

The district court found both the Franchisees’ and Dickey’s arguments to be plausible. Thus, it ordered a jury trial to determine which, if any, issues the parties agreed to arbitrate. The parties filed interlocutory appeals challenging the denial of their motions.

The FAA Requires Arbitration of Claims that Parties Agree to Arbitrate

Section 2 of the FAA provides that arbitration clauses may only be invalidated on “such grounds as exist at law or in equity for the revocation of any contract.” Courts will compel arbitration under § 4 of the FAA if (i) the parties have entered into valid agreement to arbitrate and (ii) the dispute in question falls within the scope of the agreement. If a federal court finds both of these elements, it must enforce the agreement as written. To make these findings, the Court applied Maryland contract law, which required it to look at the intent of the parties to determine whether the agreement was valid with respect to the Arbitration Clause.

The Fourth Circuit found that the Franchisees and Dickey’s intended to arbitrate Dickey’s common law claims. The claims arose out of the relationship between the parties, and thus were within the scope of the Arbitration Clause. Because the Court found the intent to arbitrate, which was evidence of a valid agreement, and the claims were within the scope of the agreement, the Court compelled arbitration on Dickey’s common law claims. In doing so, the Court rejected the Franchisees’ claim that an adverse arbitration decision would be prejudicial to their Maryland Franchise Law claims, as well as a claim that the Maryland Clause trumped the entire Arbitration Clause. Supreme Court precedent instructed that the FAA requires piecemeal litigation in cases where some claims were subject to arbitration and some were not.

On the other hand, the Court agreed with the Franchisees that the Maryland clause trumped as it pertains to Maryland Franchise Law claims. The agreement provided that the Franchisees could bring Maryland Franchise Law claims in Maryland courts notwithstanding the Arbitration Clause. The Court determined that the plain language of the agreement provided that Maryland Franchise Law claims should go forward in the Maryland district court.

Dickey’s also argued that the FAA preempted the Maryland Clause. The Court rejected this argument on the basis that the FAA preemption upon which Dickey’s relied applied to state law that prevented arbitration of certain claims rather than contractual provisions.

Vacated and Remanded

Because the FAA requires claims that can be arbitrated to be arbitrated even if there are other related claims that may not be arbitrated, the Court vacated the district court’s decision to order a jury trial to resolve an ambiguous contract provision and decided the dispute as a matter of law. The Court remanded to the district court the issue of whether the stay the proceedings in that court pending arbitration.

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29Oct

Fourth Circuit Upholds Summary Judgment on Time Barred Claims with Insufficient Facts

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By Malorie Letcavage

On July 7, 2015, the Fourth Circuit issued its published opinion in the civil case Poindexter v. Mercedes-Benz Credit Corp. Ms. Virginia Poindexter appealed the district court grant of Mercedes-Benz Credit Corporation’s (“MBCC”) motion for summary judgment. That court held that all of Poindexter’s claims were time barred and she failed to demonstrate facts that would support all the elements of her claims. The Fourth Circuit agrred and affirmed the district court’s grant of summary judgment because her claims violated the statute of limitations and she did not point to facts that would sufficiently support the elements of her claims.

Lien on House to Help with Car Payments

In April 2001 Poindexter purchased an Audi from HBL Inc., who then assigned her repayment contract to MBCC. Poindexter then voluntarily participated in the Home Owner’s Choice Program, which allowed her to put a lien on her home by a deed of trust for her outstanding car payments. This structure made the interest she paid on the loan tax deductible. Poindexter signed a Servicing Disclosure Statement acknowledging the mortgage loan was covered by Real Estate Settlement Procedures Act (“RESPA”). Poindexter executed the deed of trust, which had a covenant that MBCC would release the lien when all payments were satisfied.

In 2004 Poindexter traded in her Audi to HBL for a Mercedes-Benz sedan, so she was released from further payments on the Audi. However, MBCC did not record a certificate of satisfaction that would release the deed of trust. Thus, when Poindexter went to refinance her mortgage, she found there was still a lien on her home. She wrote to MBCC and demanded it record a certificate of satisfaction, but MBCC did not do so in a timely fashion. Only after Poindexter filed a complaint did MBCC record a certificate of satisfaction. Poindexter alleged six causes of action:(1) breach of contract; (2) slander of title; (3) violation of RESPA; (4) violation of the Virginia Consumer Protection Act (“VCPA”); (5) violation of Virginia Code § 55- 66.3; and (6) declaratory judgment.

Summary Judgment Appropriate for Breach of Contract Claim

The statute of limitation begins to toll when the debt is satisfied. Since the debt was satisfied in 2004 when the car was traded and Poindexter did not file until 2013, her claim was time barred. Poindexter still argued that the court was equitably estopped from pleading the statute of limitations bars her claim. However, the Court found that Poindexter had not satisfied the elements of equitable estoppel because she did not establish facts that showed she did not have a “convenient and available means” of obtaining information about status of the lien on her home. There was also no evidence on the record whether there was a genuine issue of material fact as to whether MBCC tried to conceal anything or falsely misrepresent anything.

Poindexter also claimed that her previous dealings with MBCC made her believe MBCC had filed a certificate of satisfaction. However, she only cited that she traded in her Audi to support this claim. MBCC made no further statements about certificate of satisfaction. MBCC’s March letter was found to only have an accurate statement about the release of a security interest in her first vehicle and did not contain any security information about her Audi.

Also, Poindexter argued that the district court prematurely granted summary judgment because it did not rule on her motion for discovery. But Poindexter did not show how the information she requested would have created a genuine issue of material fact sufficient to overcome summary judgment. The Fourth Circuit found no error in the grant of summary judgment on the breach of contract claim.

Summary Judgment Appropriate for Slander of Title Claim

The Court found that MBCC did not publish false words with malice that disparaged Poindexter’s title to her property. There was no evidence in the record that showed MBCC had acted with malice or reckless disregard and Poindexter only pointed to the fact that MBCC didn’t file a certificate of satisfaction. However, the Court found this to just be an administrative oversight and showed nothing more than negligence. Therefore, Poindexter did not establish the elements for slander of title. The Court also found it was untimely because it was outside of the five year statute of limitations.

Summary Judgment Appropriate for RESPA Claim

A provision of RESPA states that a response to any “qualified written request” was necessary upon receipt. However, the Court did not find that Poindexter had sent a qualified written request that requested “information relating to the servicing of the loan.” First, her oral communications did not qualify as written requests. Second, the letter from Poindexter’s attorney to MBCC did not have a statement of the reasons or sufficient detail related to the servicing of the loan. That letter only referenced the details of another vehicle, which was not the Audi, for which the deed of trust was recorded so it did not properly identify the “account of the borrower” as RESPA requires.

The Court also found that Poindexter’s correspondence did not relate to the servicing of her loan. The Court followed the reasoning of Medrano v. Flagstar Bank, and held that Poindexter’s request related to the terms of the loan and mortgage and an obligation that arose after the loan was satisfied. Therefore, it did not relate to the receipt of making of loan payments and did not satisfy the elements of a RESPA claim.

Summary Judgment Appropriate for VCPA claim

The VCPA protects against deception or fraud in consumer actions but does not apply to mortgage lenders. The Court held that MBCC was a mortgage lender because after HBL transferred the vehicle loan to MBCC, Poindexter agreed to modify the car payment agreement and place a lien on her house. Thus, the vehicle loan was converted into a mortgage loan.

The Court further reasoned that both parties had a clear intent that the payment arrangement be a mortgage loan. Also, Poindexter reaped the benefits in tax deductions from it being classified as a mortgage loan so she could not avoid its consequences from such a classification.

Summary Judgment Appropriate for Va. Code § 55-66.3 Claim

This section states the requirements for the filing of a certificate of satisfaction as ninety days after the debt was paid and the consequences if the certificate is not filed. However, Poindexter’s claim was time barred. Her cause of action accrued on the ninety-first day after her obligations were satisfied in 2004. Since she did not enter a complaint until 2013, her claim was outside of the two-year time limit.

Summary Judgment Affirmed

The Fourth Circuit affirmed the district court’s granting of summary judgment for MBCC on each count. The Court held that these claims were either outside of the applicable statute of limitations or that Poindexter had failed to establish all the elements of her claims.

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30Sep

No Double Recovery: Fourth Circuit Rejects Employee’s Claim for Additional Compensation

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By Malorie Letcavage

On June 1, 2015, the Fourth Circuit released its published opinion in the civil case Huntington Ingalls Industries, Inc. v. Eason. The appellant, Huntington Ingalls Industries, Inc. (HI), appealed the Administrative Law Judge’s decision to grant further compensation for temporary partial disability to appellee, Ricky Eason, under the Longshore and Harbor Worker’s Compensation Act (LHWCA). The Court held that since Eason was already receiving compensation for a scheduled permanent partial disability injury, to allow him to recover additional compensation because of an injury flare up would be impermissible double recovery under the act. Also, the Court held that HI and Eason had misinterpreted Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs (PEPCO). The Fourth Circuit remanded the case to the Benefits Review Board to give an order dismissing Eason’s claim for temporary partial disability compensation.

Eason Received Compensation for His Knee Injury

Ricky Eason was injured while working as a pipe fitter at Newport News Shipping and Dry Dock Company, which was later acquired by Huntingdon Ingalls Industries, Inc. Eason was diagnosed with a torn meniscus and had to undergo surgery. Eason was completely out of work from October 2, 2008 through June 18, 2009 and received temporary total disability benefits for this time. After returning to work full-time, Eason was given a 14% lower extremity permanent impairment rating, meaning he had reached maximum medical improvement. This meant that normal healing was no longer likely to occur, and this status determined his permanent partial disability compensation.

For the seven months after the 14% rating diagnosis, Eason received his scheduled injury permanent partial disability compensation in addition to his regular weekly salary. Scheduled compensation covers specified body part injuries and pays compensation for a fixed number of weeks at two-thirds of the employee’s average weekly wage.

Eason then went back to his doctor complaining of pain in both his knees. The doctor put Eason on light duty restrictions, and continued to recommend the restriction on two subsequent visits after Eason complained of knee pain. However, Eason continued to work full-time without any light duty restrictions. Eason then brought a claim for temporary total disability or temporary partial disability under the LHWCA. This act is a federal workers’ compensation system for employees injured, disabled, or killed in the course of covered maritime employment.

Journey Between Administrative Law Judges and Benefits Review Board

The first hearing was held before Administrative Law Judge Richard Malamphy. Judge Malamphy found that the evidence did not support Eason’s claim for temporary total disability, and his disability compensation was restricted to the amount required by the schedule. Judge Malamphy also held that Eason was not entitled to additional compensation for any temporary partial loss of wage-earning capacity for the same knee injury.

On appeal, the Benefits Review Board (BRB) vacated Judge Malamphy’s decision. It instead held that the permanent partial disability benefits did not determine whether a claimant could recover for permanent total, temporary total, or temporary partial disability. The BRB remanded the case to determine if Eason’s light duty work restrictions prevented him from his usual work. If so, it would be temporary total disability and he could recover additional compensation.

On remand, Judge Sarno found that Eason could not complete his usual work during the time his doctor ordered him to light duty restrictions. Judge Sarno found that Eason was temporarily partially disabled and entitled to compensation of $845.82 per week.

HI then appealed Judge Sarno’s decision to the BRB. The BRB affirmed Judge Sarno’s findings that Eason could not do his usual work in the time period in question. It also affirmed the award of compensation. HI filed its petition for review to the Fourth Circuit.

Double Recovery Is Not Allowed

The Court had to decide if Eason, who was already receiving benefits from a scheduled permanent partial disability, could receive additional compensation when his injury flared up and became a temporary partial disability.

In Eason’s case, he was already receiving benefits from a scheduled permanent partial disability. When that changed to a temporary partial disability because his injury flared up, there was no additional loss of wage-earning capacity. Scheduled compensation takes into account all lost wages under LHWCA, so Eason could not recover for the flare up because his injury was already being accounted for and compensated. To allow Eason to recover for the injury flare up would be “impermissible double recovery” because the scheduled compensation was calculated to cover any additional flare ups.

The Fourth Circuit held that the only way to receive additional compensation after a permanent partial disability was if the circumstances warranted a reclassification of that disability to a permanent total or temporary total. However, Eason’s injury did not qualify for reclassification to a permanent total or temporary total disability. His knee injury was permanent and partial and had been classified as such ever since his diagnosis.

The Court held that Eason’s argument for compensation under LHWCA for additional temporary partial disability was unpersuasive. Such a recovery would be double recovery for the same injury. Additionally, the purpose of scheduled compensation is to provide quick compensation for certain injuries and cover employer’s liability. To allow Eason to recover again would defeat the intent of scheduled compensation. The court also rejected HI’s interpretation of LHWCA-that Eason was barred from receiving temporary total disability compensation because he was receiving scheduled disability compensation. The court found this interpretation was inconsistent with prior case law, and it undermined the purpose of the act.

Lastly, the Court found that PEPCO was not determinative for either party. In PEPCO, the court held that LHWCA did not allow employees to choose between compensation of actual loss of wage earning or the compensation associated with permanent partial disability from a scheduled injury. The court in PEPCO noted that some cases of under or overcompensating were an inevitable part of the system.The Fourth Circuit distinguished PEPCO explaining that a scheduled injury does not preclude an award of total disability, nor does it permit double recovery.

Case Remanded to Benefits Review Board

The Court granted the petition for review and remanded the case to the BRB to enter an order dismissing Eason’s claim for temporary partial disability under LHWCA.

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29Sep

Claim Alleging Unconstitutional Redistricting for Wake County School Board Elections was Improperly Dismissed

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By Elizabeth DeFrance

On May 27, 2015, the Fourth Circuit issued a published opinion in the civil case Wright v. North Carolina. The Court considered whether the District Court for the Eastern District of North Carolina erred in ruling Senate President Pro Tem Philip Berger and General Assembly Speaker Thom Tillis could not be properly enjoined to a suit claiming the redrawing of Wake County Board of Education electoral districts violated the “one person, one vote” guarantees of the Fourteenth Amendment and the North Carolina Constitution. The Court also considered whether the district court erred in granting the defendants’ Federal Rules of Civil Procedure 12(b)(6) motion to dismiss when the plaintiffs’ complaint alleged “facts sounding in arbitrariness” without explicitly stating the element.

After Elections Resulted in a Democratic Majority on the Board of Education, the Republican-led General Assembly Passed a Bill to Redraw Electoral Districts

The Wake County Board of Education redrew electoral districts after the 2010 census, as required by the General Assembly. The resulting districts were geographically compact and had a maximum population deviation of 1.66%. The first election under the new plan resulted in a Democratic majority on the Board of Education. In spite of objections from the majority of the School Board, the Republican-led General Assembly passed Session Law 2013-110 (“Session Law”), redrawing the electoral districts. The changes resulted in seven less geographically compact districts and two “super districts.” One super district is an outer ring of rural areas and the other a central urban area. The maximum population deviation between the super districts is 9.8%. The Session Law also prohibits the Board of Education from making any changes to its election procedures until 2021.

Calla Wright along with twelve other individual Wake County citizens and two citizen associations brought a claim against the State of North Carolina and the Wake County Board of Elections alleging the redistricting violates the Fourteenth Amendment of the United States Constitution and the Equal Protection Clause of the North Carolina Constitution because the votes of Plaintiffs living in overpopulated districts weigh less than the votes of people living in underpopulated districts.

Defendants filed a 12(b)(6) motion to dismiss. Plaintiffs moved to amend to substitute Governor Pat McCrory, Senate President Pro Tem Philip Berger, and General Assembly Speaker Thom Tillis for the State of North Carolina. The district court granted Defendants’ motion to dismiss and denied Plaintiffs’ motion to amend.

State Officials May be Enjoined for the Use of State Power in Violation of the Constitution Only if they Have a Connection with Enforcement of the Act

The Court noted that although the Eleventh Amendment provides some immunity for state officials from private suits brought in federal court, an official may properly be enjoined if he has “some connection with the enforcement of an unconstitutional act.” The North Carolina Constitution does not provide the General Assembly with power to enforce laws, and both Berger and Tillis are members of the General Assembly. Thus, because neither Proposed Defendant has authority to enforce the redistricting plan, the Court held that they could not be properly enjoined and Plaintiffs’ motion to amend was properly denied. The Plaintiffs, in their reply brief to the Court, had conceded that McCrory was not a proper defendant.

To Survive Summary Judgment Where the Population Deviation is Below 10%, a Plaintiff Must Produce Evidence that the Apportionment was Arbitrary or Discriminatory

On the issue of whether summary judgment was properly granted for the defendants, the Court looked to the “one person, one vote” principle inherent in the Equal Protection Clause. When constructing districts, governments must “make an honest and good faith effort” to make the population in each as close to equal as is practicable. When a plaintiff brings a claim related to a redistricting plan with a population deviation below 10%, he has the burden to provide additional evidence showing the redistricting process had a “taint of arbitrariness or discrimination.”

Plaintiffs’ Factual Allegations “Sounding in Arbitrariness” Were Sufficient to Provide Defendants Fair Notice of Their Claims

The Court noted that Plaintiffs’ complaint alleged the redistricting discriminated between urban and rule voters because the rural districts were “unjustifiably underpopulated” and the urban districts were “overpopulated without justification.” The Plaintiffs also pointed out that the Board of Education was opposed to the Session Law, and that no African-American or Democratic members of the General Assembly voted for it. The Court reasoned that this suggested the law was “neither racially or otherwise neutral.”

The Court reasoned that although Plaintiffs did not expressly plead that the Session Law was arbitrary or discriminatory, their factual allegations sounded in arbitrariness and provided defendants fair notice of their claims.

The Court also rejected the district court’s justification for dismissal based on its view that plaintiffs had a political gerrymandering claim rather than a “one person, one vote” claim. The Court concluded that Plaintiffs clearly pled an equal protection claim.

Plaintiffs’ Federal Constitution and North Carolina Constitution Equal Protection Claims Were Improperly Dismissed

The Court held that because Plaintiffs’ complaint clearly pled facts supporting arbitrariness and discrimination, their Federal Constitution equal protection claim was improperly dismissed under 12(b)(6). For the same reasons, Plaintiffs’ North Carolina equal protection claim was also improperly dismissed. Additionally, because the Proposed Defendants did not have authority to enforce the Session Law, they could not be enjoined and Plaintiffs’ request to amend was properly denied. Accordingly, the case was affirmed in part, reversed in part, and remanded.

Circuit Judge Diana Gribbon Motz dissented. She reasoned that the Plaintiffs’ pleadings did not overcome the presumption of constitutionality for a redistricting plan with a maximum population deviation under 10% because the complaint did not use the words “arbitrariness” or “invidious discrimination” and failed to allege facts supporting such claims.

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24Sep

Fourth Circuit Holds that Reference to the NAACP as the “National Association for the Abortion of Colored People” Does Not Infringe Upon or Dilute Trademarks Held by the NAACP

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By George Kennedy

On May 19, 2015, the Fourth Circuit issued a published opinion in the civil case of Radiance Foundation v. NAACP. The court held that an online article describing the NAACP as the “National Association for the Abortion of Colored People” did not infringe upon or dilute trademarks held by the NAACP (the National Association for the Advancement of Colored People). In so holding, the Fourth Circuit vacated the decision of the district court and remanded the case for further proceedings.

Publication of the Article

In January 2013 the Radiance Foundation published an article entitled “NAACP: National Association for the Abortion of Colored People.” Appearing on the Radiance Foundation’s website, and several others, the article harshly criticized the NAACP’s position on abortion. The organizations that featured the article were non-profit, anti-abortion organizations which allowed site users to make donations.

Upon learning of the article’s publication, the NAACP sent Radiance a cease-and-desist letter on January 28, 2013. Radiance then brought a declaratory action seeking that the court find that Radiance had not infringed upon or diluted any of NAACP’s trademarks and that Radiance’s use of the marks was protected under the First Amendment.

The District Court Found for the NAACP

In a bench trial, the district court found for the NAACP and denied declaratory relief to Radiance. It held that Radiance had infringed upon the NAACP’s trademarks because it had used the marks in connection with goods and services and that the description of the NAACP as the “National Association for the Abortion of Colored People” was likely to create confusion among consumers. Furthermore, the district court held that the use of NAACP’s trademark created a likelihood of dilution of the trademarks owned by the NAACP by associating the NAACP and its marks with a pro-abortion position. Lastly, the district court held that Radiance’s use of the NAACP’s trademarks did not fall under any of the allowed exceptions of trademark dilution as set forth in the Lanham Act.

As a result, the district court issued a permanent injunction to Radiance, barring the organization from using the words “‘National Association for the Abortion of Colored People’ in a way that creates a likelihood of confusion or dilution.

The Fourth Circuit Vacated the Decision

In vacating the district court’s decision, the Fourth Circuit held that the district court erred in granting injunctive relief to the NAACP for two reasons. First, the Fourth Circuit held that the district court erred in finding that the NAACP had an actionable trademark infringement claim. Second, the Fourth Circuit held that the district court erred in finding that Radiance diluted the NAACP’s trademarks.

Radiance’s Article Did not Infringe Upon NAACP’s Trademarks

Trademark infringement is governed by the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a). As the Fourth Circuit explained, these statutes exist to protect consumers from being confused by improperly used trademarks. However, trademark protection is limited by the Constitutional right to free speech, and as the Fourth Circuit noted, trademark laws may not “impinge the rights of critics and commentators.” For this reason, an actionable claim for trademark infringement requires more than just showing that a party other than the trademark holder used the trademark. Additionally, the trademark infringer must be shown to have used the trademark “in connection with” goods or services in a manner that is “likely to cause confusion.”

The Fourth Circuit held that Radiance did not use the NAACP’s trademarks “in connection” with goods or services, nor did they use the trademarks in a manner “likely to cause confusion.” While Radiance’s article did appear on websites which allowed users to make monetary donations, the Fourth Circuit held that there was not a clear enough connection with transactional activity for Radiance’s use of the NAACP’s trademarks to be considered “in connection” with goods or services. The Fourth Circuit reasoned it was not enough that the article merely appeared on a website in which monetary donations could be made. Instead, there needed to be a clear connection between the article itself and transactional activity for the “in connection” with goods and services requirement to be met.

Similarly, the Fourth Circuit also held that Radiance’s use of the NAACP’s trademarks was not likely to cause confusion. In its reasoning, the Fourth Circuit focused on the idea that trademark laws are not intended to protect the trademark holder from those who misunderstand its political views, and that it was unlikely that any readers of the article would have been confused about an affiliation between Radiance Foundation and the NAACP. As the Fourth Circuit argued, the article authored by Radiance was a scathing critique of the NAACP; it would not follow that the NAACP would author such an article.

Radiance’s Article Did Not Dilute the NAACP’s Trademarks

Lastly, the Fourth Circuit held that NAACP did not have an actionable dilution claim against Radiance. The law of dilution, 15 U.S.C. § 1125(c)(3), protects the integrity of the trademark by protecting the trademark’s reputation. While the Fourth Circuit conceded that the NAACP had established a prima facie case for dilution against Radiance, the Fourth Circuit held that Radiance’s use of the NAACP’s trademark was permissible under the “fair use” exception and the “non-commercial use” exception. The fair use exception allows a trademark to be used by someone other than the trademark holder to comment or criticize the trademark holder or its services. The Fourth Circuit held that Radiance used the trademark “NAACP” in conjunction with the “National Association for the Abortion of Colored People” as a way to criticize the NAACP and the policies for which it stands. Additionally, the Fourth Circuit held that the non-commercial use exception was satisfied because Radiance’s purpose in writing the article was not commercial gain, but to strongly criticize the policies and political positions of the NAACP. Therefore, the Fourth Circuit held that there existed no basis for either a trademark infringement claim or trademark dilution claim against Radiance. Accordingly, the Fourth Circuit held that the district court erred in granting injunctive relief to NAACP on the basis of trademark infringement and trademark dilution.

The Fourth Circuit Vacated and Remanded for Further Proceedings

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