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Meyer, Suozzi, English & Klein P.C.

SUIT CLAIMS DISCRIMINATION BY JETBLUE
A Pakistani-born airline pilot has charged in court papers that he had his wings clipped by JetBlue Airways Corp., which he charged rescinded a recent job offer because of his name and background.

The suit was filed in State Supreme Court in Manhattan earlier this week by Faisal Baig, 40, who said he was offered a job by the Forest Hills-based carrier flying the airline's A-320 Airbus jets. But, Baig said yesterday, a day before he was to report for training in mid-March, he received a call from a JetBlue employee saying the airline had rescinded the offer. Baig said he asked for an explanation and was told JetBlue considered him ""a security risk.""

""I asked if it's my name or my religion,"" said Baig, who had been a pilot for Independence Air for nearly six years, beginning in 2000, before applying to JetBlue in January. ""The woman on the phone said she didn't want to go into it, but basically she said yes.""

""I was shocked,"" said Baig, who was not born in this country but came here with his family when he was 7 years old and is a U.S. citizen. ""I was devastated. I don't know how to describe it to you. Her words more or less told me I wasn't an American.""

Jenny Dervin, a JetBlue spokeswoman, confirmed that the airline had been advised the lawsuit was filed but said the company does not comment on pending litigation.

""We're going to choose to respond to these allegations in the proper legal process,"" Dervin said.

On its Web site, JetBlue says it is ""focused on hiring Crewmembers [employees] based on the quality of their experience, skills, work record, education, training, motivation, attitude and character, without regard for their identification, or perceived identification, with any group or classification of people.""

Baig, who was raised in Yonkers and lives in Raleigh, N.C., learned to fly at a private flying school in Brownsville, Texas. He worked to put himself through flight school before applying for a job at Atlantic Coast Airlines, which later became Independence Air. After filing for bankruptcy, Independence ceased operations this past January.

Baig's attorney, Derek Smith of Manhattan, said he did not know whether JetBlue's action was the result of a mistake by an employee. But, he said, ""Corporations are composed of hundreds, sometimes thousands, of individuals. Any particular act by anyone in the company can be a discriminatory one, at which point the company becomes responsible.""

Hanan Kolko, a labor lawyer at Meyer, Suozzi, English & Klein's Manhattan office, said discrimination suits based on ethnic background have become more numerous since the Sept. 11, 2001, terror attacks.

""I think that employer concerns about security have been raised since 9/11, and general suspicion of Muslims and Middle Easterners has increased,"" Kolko said.

Baig said he found it ironic that even though he was considered a security risk by JetBlue, the airline sent him a detailed package of technical material about the Airbus.

""They sent me all the material so I can study the Airbus,"" he said.

08-10-2006

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Saul Ewing, LLP

Bieber Comments About the Vacation Time of a Lawyer
Meredith A. Bieber, an Associate in the Real Estate Department of the Firm's Philadelphia office, was quoted in this ""Young Lawyers"" supplement of The Legal Intelligencer.

In this issue, Ms. Bieber spoke about what it is like to take a vacation as a modern day young attorney.

""You have to make sure someone's running the shop,"" Ms. Bieber said. ""Vacation time is self-regulated. You know when your transactions are winding down.

08-10-2006

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Manatt, Phelps & Phillips, LLP

Proposition 90: Myth and Reality
An initiative measure that had loosely been referred to as the “Anderson Initiative” after the individual who proposed it has qualified for the November 2006 statewide ballot as Proposition 90. There is a lot of verbiage circulating about Prop. 90, some accurate, some not. The purpose of this newsletter is to clarify the actual issues that will be presented.

Proposition 90, if enacted, will amend Article I, § 19 of the California Constitution – the part dealing with eminent domain and takings. It will make substantial changes in the definition of takings, codify some rules that have already been adopted in judicial decisions, and restrict the ability of some government agencies to continue acting as they have.

The prime target of Prop. 90 is the U.S. Supreme Court’s decision a year ago in Kelo v. City of New London, 125 S. Ct. 2655 (2005), the decision upholding condemnation of middle class homes in Connecticut for redevelopment even though the homes themselves were neither blighted nor otherwise offensive. Unless you have been vacationing on Mars, you are aware of the firestorm of protest against that decision that subsequently swept the country.

Thus, the first thing that Prop. 90 would accomplish is to radically change the urban redevelopment process, even though California law would not have permitted a Kelo-type condemnation. In general, however, the process in California has consisted of municipal redevelopment agencies declaring certain municipal areas to be blighted and then acquiring the property in those areas for transfer to private developers for redevelopment in accord with the redevelopment agency’s plan. Proposition 90 would end that process. A new constitutional provision would provide that “[p]roperty taken by eminent domain shall be owned and occupied by the condemnor . . . .” Plainly, redevelopment agencies do not operate by owning and occupying the land they acquire. If eminent domain is limited in this fashion, then redevelopment will need to employ other forms of land assembly in the private market.

That concept is furthered in a definitional section that is directly aimed at the Kelo decision. In Kelo, the Supreme Court held that the 5th Amendment’s concept of “public use” had actually morphed over time into “public purpose.” Thus, the Court found “public use” in the condemnation of homes that produced little tax revenue so they could be replaced by a private developer with more economically desirable uses. But the Court also noted that this was purely an interpretation of federal constitutional law and each state is free (if it desires) to adopt its own – more stringent – provisions to protect the rights of private property owners. Proposition 90 accepts that invitation, saying directly: “‘Public use’ shall have a distinct and more narrow meaning than the term ‘public purpose;’ its limiting effect prohibits takings expected to result in transfers to non-governmental owners on economic development or tax revenue enhancement grounds, or for any other actual uses that are not public in fact, even though these uses may serve otherwise legitimate public purposes.”

A companion provision makes clear that Prop. 90 does not prohibit the use of eminent domain to “abate nuisances such as blight,” however, it will further complicate such condemnations. As noted above, current practice is for the redevelopment agency to determine that a specified area is blighted, a determination that allows condemnation of all property in the area, regardless of whether each piece is itself blighted. That, in fact, was the holding of the U.S. Supreme Court’s first urban renewal decision more than half a century ago in Berman v. Parker, 348 U.S. 26 (1954). There, the High Court dismissed a challenge to an urban renewal project in Washington, D.C., brought by the owner of an individual structure in the redevelopment area that was not itself blighted. Proposition 90, however, will require as a matter of California constitutional law that condemnation for blight is “limited to abatement of specific conditions on specific parcels.” In other words, no more area-wide declarations – only parcel-by-parcel.

Moreover, in recognition of the fact that some projects in which property has been acquired by eminent domain either fail to come to fruition or turn out to be duds, Prop. 90 provides that if condemned property ceases to be used for the purpose for which it was acquired, then the former owner (or beneficiary or heir) has the right to reacquire the property.

Obviously, the intent of the measure is not to prevent government agencies from making any use of eminent domain, but to severely restrict it. Plainly, government will remain able to condemn for traditional public uses like schools, jails, city halls, streets, and the like. But taking property from one private individual merely to transfer it to another private party that might make a use more desired by local government will be banned.

If a property owner seeks to challenge an eminent domain action on the ground that the “public use” concept has been violated, then a jury will make that determination. That is a significant change in the law, as such determinations today are made by the judge.

The measure also places some compensation rules in the constitution. A number of the Kelo amici curiae had commented on some of the economic unfairness to property owners under the current system, even though no compensation issue was involved in the case. Some of these measures are new, others simply place in the constitution rules that have been applied by courts for generations, some of which also appear in the Eminent Domain Law.

For example, Prop. 90 defines fair market value as the highest price the property would bring on the open market. That is already the law. (Code Civ. Proc. § 1263.320.) Another provision defines just compensation as “that sum of money necessary to place the property owner in the same position monetarily, without any governmental offsets, as if the property had not been taken.” That is existing law. (E.g., United States v. Miller, 317 U.S. 369 [1943]; see also Govt. Code § 7267.2.) A slight augmentation provided by Prop. 90 is that property taken for “proprietary” governmental projects should be valued according to that governmental use. Existing law provides that such valuation is proper if the use is one to which the owner might (perhaps in association with neighboring owners) have put the property. (E.g., City of Los Angeles v. Decker, 18 Cal. 3d 860 [1977] [extensive rental car parking lots at LAX]; single residential lot at issue in the case.)

Proposition 90 also defines “damage” in the constitutional sense as including regulatory actions that result in substantial economic loss. Such actions are defined by illustration as including down-zoning, elimination of access and limitations on the use of air space. This has been a contentious area of the law. In a broad sense, this breaks no ground. The U.S. Supreme Court’s most influential case, Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), held that regulatory action could be a taking that requires compensation depending on the analysis of a variety of factors, including the economic impact on the property owner and the effect on the property owner’s distinct, investment-backed expectations for use of the land. Since then, courts have decided such cases on the basis of fact-intensive investigations. Each side has won and lost significant cases. The California Constitution has contained a provision requiring compensation when government action damages private property as well as when such action takes property, thus providing broader liability than the federal Constitution. Proposition 90 merely amplifies the definition of the kind of “damage” that is covered.

Thus, if adopted, Prop. 90 will make substantial changes in California takings law. It will neither eliminate the ability of government to condemn property for public projects nor prevent government from severely regulating property when it is determined to be in the public interest. It will restrict the former and may make the latter more expensive by asking society as a whole to shoulder the cost of regulatory restrictions deemed necessary for the common good.

08-10-2006

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Frost, Brown & Todd, L.L.C.

Russia Adopts Privacy Protection Legislation
On July 27, 2006, President Putin signed two information security laws that had been rushed though the Duma (Russian Parliament) in the final days of its most recent legislative session. While the Constitution of the Russian Federation recognizes rights of privacy, data protection and communications, these laws go further to adopt a "need to know" freedom of information act. They establish a right to privacy and a limited right of access to government information.

08-10-2006

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Dorsey & Whitney, L.L.P.

Washington Supreme Court Substantially Limits "Disability" Definition Under WLAD
One of the most vexing issues for Washington employers has been the state’s broad definition of a “disability” for purposes of state law. This definition historically included “any medically recognized abnormality” – a standard so broad as to encompass conditions far beyond those covered under the federal Americans with Disabilities Act. In a fractured decision issued just yesterday, the Washington Supreme Court aligned the state law definition of disability with that under the ADA. The practical result of this change will be to clarify who is – and who is not – entitled to the broad rights afforded under state law.

In McClarty v. Totem Electric, the employee Kenneth McClarty was an apprentice electrician working on projects that included, among other things, using a jackhammer and digging ditches. He complained to his supervisor of pain in his hands, and asked for a break from digging work. He ultimately received documentation that he had contracted carpel tunnel syndrome. When this request was denied and he was laid off three months after his employment began, McClarty sued Totem Electric, claiming among other things disability discrimination under the Washington Law Against Discrimination (WLAD).

The Washington Supreme Court reviewed the lower court’s summary judgment dismissing McClarty’s claim that he was “disabled” under state law. The issue stemmed from a regulation issued by the Washington State Human Rights Commission, which provided a definition in WAC 162-22-020 of the word “disability” as “the presence of any sensory, mental, or physical disability.” WAC 162-22-020 similarly states, “[a] condition is a 'sensory, mental, or physical disability' if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question ... or [was]discriminated against.” The Washington Supreme Court had long noted that this definition is circular because it requires a factual finding that the employee was discriminated against “because of the condition in order to determine whether the condition is a [disability].” See, Doe v. Boeing Co., 846 P.2d 531 (1993). The Court had struggled also with the challenge that “WAC 162-22-020 ... conflicts with much of our antidiscrimination jurisprudence because the regulation would require a disability discrimination plaintiff to prove that he has been discriminated against because of his condition to prove that he is ‘disabled’ in the first place.” In McClarty, the Court also noted that these definitions contravened the purpose of the WLAD.

For the first time, the Washington Supreme Court directly challenged this regulation, rejecting it in favor of “the definition of disability set forth in the federal ADA.” As a result, the Court stated “a plaintiff bringing suit under the WLAD establishes that he has a disability if he has (1) a physical or mental impairment that substantially limits one or more of his major life activities, (2) a record of such an impairment, or (3) is regarded as having such an impairment.” The Court did not dismiss McClarty’s claim outright, but instead remanded the case to the trial court to apply this definition to McClarty's disparate treatment disability discrimination claim.

This case has significant impact on Washington employers. First, it changes and arguably limits the definition of “disability.” Employers can now consider issues of accommodation and discrimination under the same standard as under Federal law. Second, the Court emphasized the importance of the Federal court interpretations of the ADA in determining issues under WLAD’s disability discrimination laws. As a result, the body of case law developed under the ADA can now be more closely analyzed for Washington law issues, allowing greater certainty in decision-making. Employers should still be cautioned, however, to consider and follow state laws. The WLAD still has provisions and protections that exceed the Federal standard, such as the requirement to accommodate post-termination in some situations. Similarly, other state laws (notably California) impose restrictions greater than those under the ADA.

08-10-2006

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Reed Smith

Congress Passes Significant Revisions To ERISA Fiduciary Rules
Late in the day on Aug. 3, 2006, Congress passed H.R. 4, the Pension Protection Act of 2006 (the "Act"). While the principal impetus for the legislation was reform of the defined benefit plan funding rules, the Act also contains substantial revisions to the fiduciary responsibility provisions of Title I of ERISA.

08-10-2006

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Reed Smith

Cycling Doping Scandal Highlights Sponsorship Dangers
Sponsorship of a winning athlete or team offers an advertiser the advantages of high-level exposure and association with achievement. But as the sponsors of world-class cycling know, placing your name on a winning jersey can carry big risks.

When word spread that Tour de France champion Floyd Landis had failed a doping test, he joined a pantheon of cyclists who have been suspended for alleged violations, forcing sponsors to rethink sponsoring cycling or to become more involved in policing the sport.

The sponsor for Landis’ team, Swiss hearing aid maker Phonak, has struggled to eliminate doping from its team for years, and announced it is ending its sponsorship at the end of the season, citing doping issues.

The team had fired a number of riders who tested positive for doping in 2004, including American Tyler Hamilton, winner of the time-trial gold medal at the 2004 Olympics in Athens. In 2005, Phonak’s owner dismissed the team’s general manager, sports director and doctor.

Landis has denied that the high testosterone levels detected in his test were because of doping and claims they are naturally occurring. The team’s new sponsor, ishares, a subsidiary of Barclays Bank, has stated it will wait to comment until further medical tests are performed.

Landis rode to victory after three of cycling’s favorites—Jan Ullrich, Ivan Basso and Francisco Mancebo— were eliminated from competing in the Tour de France in an earlier doping scandal linked to a Spanish doctor and that affected more than 50 riders.

T-Mobile (a subsidiary of Deutsche Telekom AG), which sponsored Ullrich’s team, and Computer Sciences Corporation, the sponsor of Basso’s team, both stated they intended to continue to sponsor cycling. However, both also announced stringent new antidoping policies.

T-Mobile fired Ullrich, another of its star riders, and its manager. The company announced it would draw up a new policy to deal with doping, which may include creating a “blacklist” of riders and managers who have been implicated in doping scandals before, as well as a “white list” of participants with sterling reputations.

Computer Sciences Corp. instilled a “zero-tolerance” policy.

Liberty Seguros, the Spanish unit of U.S. insurer Liberty Mutual Group Inc., withdrew its sponsorship of a Spanish cycling team after its director became ensnared in the Spanish investigations.

In addition to the companies that recently pulled their sponsorships, many large companies are believed to be avoiding sponsorship of cycling altogether because of ubiquitous doping issues.

Why This Matters: Companies considering sports sponsorship should understand that sponsorship means more than writing a check—it means becoming involved with the sport/event to ensure that the company’s name and reputation are protected. Always ensure that you (as the sponsoring company) have the right to get out of the contract if the celebrity or athlete falls into disrepute.

08-10-2006

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