Colorado Business Litigation Lawyer Blog

Irrespective of your opinion about whether we should be at war in two countries or whether these wars are just, the brave men and women who have voluntarily put themselves in harm’s way nevertheless deserve our heartfelt thanks for their sacrifices and bravery.

These men and women unselfishly uprooted themselves from their homes, families and friends to volunteer in the military, not knowing whether they would be sent to Iraq or Afghanistan as front-line troops. And we should not forget those who serve as support personnel-- who ensure that those in the battle zones are properly supplied with intelligence information, weapons, food, clothing, medical care and treatment and other vital support.

This resilient country of ours has survived major world wars and many other military actions that became known as “conflicts” or “police actions” or similar euphemisms. Those who died or were wounded and possibly disfigured, who lost their eyesight or hearing, or who returned home with severe mental trauma from the horrors of battle, were no less brave simply because they were not involved in what we call “war.”

During this holiday season, therefore, let us all take time to remember these courageous troops and the sacrifices they and their families have made and are making. For as the author José Narosky said, “In war, there are no unwounded soldiers.”

A person who had worked for 26 years for the Community Hospital Association in Boulder, Colorado, was fired and denied unemployment compensation after admittedly taking remnants of toilet paper rolls that she believed to be trash, found on the floor and on a shelf above the toilet paper holders. The employee had been asked by a friend to collect the remnants so they could be sent to GI’s in Iraq, who needed small rolls that would fit in a pocket for use on missions. The employer said they had a zero policy on theft and fired the employee.

The employee applied for unemployment benefits. The employer, who had no written policy on theft, said that the coreless toilet paper rolls were purchased so they could be used almost to the end. The hearing officer found that the claimant had believed that the remnants she had taken were trash, but that the remnants nevertheless belonged to the employer, and taking them without the employer’s authorization constituted theft and disqualified the employee from benefits. The Industrial Claim Appeals Office upheld the hearing officer’s decision.

On appeal to the Colorado Court of Appeals, the court reviewed numerous Colorado and other states’ decisions on similar issues and decided after extensive analysis that the case must bee remanded to the hearing officer for a finding of whether or not the employee acted “intentionally” and “knowingly” (legal words of art) without a belief that the remnants she took were trash.

Frankly, I am astounded that the state would expend the time and money on a case like this, especially given the end use of the toilet paper (no pun intended). If further developments in the Industrial Claim Appeals Office are publicly reported, I will write further on the final decision.

In my last post, Does an Employee have a Right to Privacy in Non-Business Text Messages Sent or Received on Leased City Pagers? Part I, I introduced a US District court case concerning non-business related text messages sent and received on leased city pagers and whether or not these private messages could be read by supervisory city employees. In this post I would like to discuss the outcome of the district case and give you an update on the pending court of appeals case.

The district court held that Arch Wireless did not violate the SCA and that it had the right to release the message transcripts to the city. It further held that the plaintiffs had an expectation of privacy in their private communications, but that because of the Lieutenant’s informal policy on not auditing messages if the user paid for overcharges for texting, it was a jury question as to whether the Lieutenant’s audit of the transcripts was with the intent of determining the efficacy of the 25,000 character limit, or with the intent of investigating misconduct, since some of the messages were sexual in nature and also could be considered a waste of the city’s time. If the Lieutenant’s intent was the former, then the “search” was reasonable, but if the intent was the latter, the search was unreasonable as a matter of law. The jury agreed that the intent was to determine efficacy of the character limit, thus absolving all of the defendant’s of any liability.

On appeal, the court of appeals held that the employees did have an expectation of privacy concerning their private text messages; that Arch Wireless had no authority to turn over the transcripts to the city, and that the search of plaintiffs’ messages constituted a violation of the 4th Amendment to the U.S. Constitution and California privacy rights. The court therefore reversed and remanded to the U.S. District Court for a determination of plaintiffs’ claims against Arch Wireless and the city defendants.

On December 9, 2009, the U.S. Supreme Court granted certiorari (agreed to hear an appeal) of the case. I will continue to follow the case and report the final decision.

The U.S. Supreme Court decided on December 9, 2009 to review a decision of the 9th Circuit Court of Appeals that held that employees of a city police department have an expectation of privacy concerning non-business text messages sent and received on leased city pagers; that a wireless service provider had no authority to turn over to the city transcripts of the messages; and whether or not it was a violation of the 4th Amendment and California privacy laws for certain supervisory city employees to read the private messages..

The case was initially filed in the U.S. District Court for the Central District of California by some members of the Ontario, California Police Department and one employee’s wife against Arch Wireless Operating Co., Inc. (Arch Wireless), a wireless service provider, the city, the chief of police and an internal affairs officer under the Stored Communications Act (SCA) and as a §1983 Fourth Amendment illegal search and seizure.

Arch Wireless contracted with the city to provide wireless text-messaging service. Of the alphanumeric pagers furnished to the city, some were distributed to police sergeants Quon and Trujillo. The city had no official policy concerning the use of the pagers, but a police lieutenant had an informal policy providing that anyone who went over the allotted number of text messages would have to pay for the overage, in which event no audit would be made of the messages sent and received.. The informal policy also provided that text messages were considered the same as e-mail messages and fell under the provisions of the city official policy on e-mails. That policy, known as the “Computer Usage, Internet and E-mail Policy,” applied to all employees and provided, among other things, that access to the internet and e-mails was for official business only and that such communications would periodically be reviewed by the city, and that employees using these resources would have no expectation of privacy or confidentiality.

At some point the chief of police ordered that the messages, including sergeant Quon’s, would be retrieved from Arch Wireless and would be audited to determine how many message were business-related and how many were private. After obtaining the messages, the city gave them to the police department. The chief, the lieutenant and Quon’s supervisor all read the transcripts of the messages.

In my next post, Part II, I will discuss the district court outcome of this case and the current status of the court of appeals case.

At this time of year, we are all deluged with mail and telephone solicitations from all types of charities. We receive dozens of calendars, note pads, greeting cards, address stickers and other various and sundry “free gifts,” with the expectation that we will not accept the “free gift” without feeling in our hearts that we are at least morally bound to donate something to cover the cost of the gift and a little extra. The problem is that by receiving so many solicitations we may tend to become desensitized to the plight of those individuals and families who are so desperately in need of assistance, not just during the holidays, but 365 days a year.

Before I make a contribution to any charity, I first check the IRS website to determine whether or not the charitable organization is approved by the I.R.S. as a tax-exempt charity. After all, especially in this economy, tax deductibility may be one of the motivating factors for making a contribution. I also want to know what percentage of my donation goes to the paid fundraiser and what remaining percentage goes to charitable purpose. . The website www.charitynavigator.org will give you this information for a number of states, including Colorado. In addition, the American Institute of Philanthropy has a grading system of top-rated charities that spend 75% or more of their budgets on programs and $25 or less to raise $100 in public support. The organization has certain other relevant and important guidelines. This information is available at www.charitywatch.org.

The principals of some businesses, including ours, regularly make charitable contributions to the charity of choice of each of the other principals, in lieu of exchanging gifts at Christmas. In addition, each principal makes contributions to his or her own charity of choice. This tradition seems to work well and helps our firm fulfill what we consider as our civic and social obligation to give where it helps the most.

A Florida jury on November 19 awarded Cindy Naugle, a former smoker with emphysema, $56 million in compensatory damages and $244 million in punitive damages for its negligence in causing Ms. Naugle’s disease.

The case was formerly a part of a class action. A trial was held on the class action, but a 2006 decision by the Florida Supreme Court decertified the class, allowing each member of the class to file his or her own lawsuit. In those individual cases the court held that the finding of liability by the jury in the class action would also establish liability in the individual cases. Each plaintiff, however, still had to prove that the addiction to smoking caused the disease. Defense attorneys claim that it was the smoker’s voluntary decision to smoke that caused the disease. They further claim that it is unfair to allow the jury’s finding of liability in the class action trial to be used by the individual plaintiffs.

In February, a jury ordered Philip Morris to pay $8million in damages. In August, R.J. Reynolds lost a $30 million verdict. The attorney for Cindy Naugle put on evidence to show the actual worth of Philip Morris far exceeded the amount claimed by it. He attributes the large verdict to the fact that, while Phillip Morris claimed it was worth $1.7 billion, Ms. Naugle’s attorney proved that in the first three quarters of 2009, Philip Morris paid $3.1 billion in dividends to Altria, its parent company,

It is expected that the Naugle verdict will be appealed, a process that will probably take years.

It is unknown how many Colorado residents, if any, have suits pending against a tobacco company.