A comma and a question mark

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A First Circuit decision interpreting Maine’s overtime law, 26 M.S.A. § 664, issued last week, has been much in the news, given the prominence in the opinion of grammatical rules, in particular, regarding commas. O’Connor v. Oakhurst Dairy, No. 16-1901. See e.g., Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times, March 16, 2017. Once again, we have a slightly different take.

To set the stage: The plaintiffs were delivery drivers, represented by David Webbert and Johnson, Webbert and Young.  The employer was represented by David Schenberg, the co-chair of the Appellate practice group at Ogletree, Deakins.  The panel consisted of Judge Barron, who wrote the decision, joined by Judges Lipez and Lynch.

The relevant statutory text was an exemption to the overtime law that says it does not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing,

Did they have to kill the cat?

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Time for a tour around the Law Court to see what our SJC has been up to recently, opinion-wise.

Two decisions came out yesterday of note:

1. Scamman v. Shaw’s Supermarkets, 2017 ME 41

This was on a certified question from the District Court of Maine pursuant to 4 M.R.S. § 57, asking whether Maine’s anti-age discrimination statute, 5 M.R.S. § 4572(1)(A), applies a “reasonable factor other than age” test in disparate impact cases, or “business necessity” test.

It’s easier for an employer to meet the “reasonable factor” test, which is used in the federal counterpart ADEA.  Basically, if all the old folks are earning more, and the company is in a money crunch, then the company can get rid of the oldsters more easily under that test.  In contrast, the federal statute uses the “business necessity” test for Title VII, harder for the company to prove.  Johnson, Webbert & Young argued for the employee,

The Master issues his report.

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As many as aware, PA’s Ralph Lancaster, with the trusty aid of Joshua Dunlap, recently completed a special master process for the Supreme Court in a dispute between Florida and Georgia.  The docket sheet and links, including to the final report, is found here. http://www.pierceatwood.com/floridavgeorgia142original

In a nutshell, Florida said Georgia was taking too much water from a river basin located across Georgia, Alabama and Florida.  The report notes that Florida has suffered harm from decreased flows in the river, but recommends that the Court deny Florida’s request for relief because the Army Corps of Engineering isn’t a party to the original jurisdiction proceeding, so the Court can’t order any change in Corps’ operations.  Without the ability to bind the Corp, the Court can’t give Florida the relief it wants.

Here’s a link to a recent summary article on the recommendation.



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From time to time we have discussed some judge’s growing inclination to roam around the internet to investigate factual issues on their own. Judge Posner, in particular, thinks it’s fine to act as his own investigator in deciding matters on appeal.

The following are links to some recent articles on this movement to keep you up to date.


https://www.kentlaw.iit.edu/Documents/Academic Programs/7CR/v11-1/martin.pdf


The first article in particular, from the Northwestern Law Review (Go Wildcats!) undertakes a scholarly consideration of taking judicial notice in the internet age.

The bottom line: this is going to happen, so should the rule of evidence be adjusted to recognize it, and if so, how?

The best amici brief ever.

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The link below is to an amici brief in pending case before the Supreme Court in which the Patent and Trademark Office rejected trademarking the name of the rock band under a provision of the Lanham Act prohibiting registration of marks that contain “disparaging” language.  The brief is by the Cato Institute, joined by various others including the satirist, P.J. O’Rourke. 

Warning:  the brief is littered with potty mouth words, which is one it its points.  It is also hilarious, while communicating its serious legal point. 

Just like the credits and post-credits can be the most amusing parts of a movie, do not skip the Appendix description of the amici.


Hot off the press – the proposed changes to the Maine Rules of Appellate Procedure

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As we’ve mentioned, the Advisory Committee has worked with Justice Alexander on potential changes to the rules.  The results are now out and ready for public comment –  Notice; Proposed Amendments.

The deadline is short – February 16 – so please move quickly.

The notice asks in particular about three of the (relatively) bigger substantive changes.  There is nothing drastic here.  The second one noted is an Appendix change to only including the mandatory materials, with addenda to the briefs to attach the optional parts.  This approach takes care of the awkward timing issues we have now with identifying what goes into the Appendix before the briefs are done.

There is also now a proposed equivalent to a federal Rule 28(j) letter for noting authority after briefing – sort of.  The proposed state counterpart only allows for filing such letters before argument, and requires a motion to cite authority after that.  If you think

A rare sentencing victory

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We don’t often delve into the criminal law decisions, particularly sentencing, but I wanted to shout out to ex-Pierce Atwood-iste Tina Schneider, who landed a victory in U.S. v. Cotto-Negrón, No. 14-1670.

Basically, the trial judge, (Judge Fusté) gave a two level enhancement when he didn’t give the same enhancement to the other defendants in the exact same situation.  The Court skirted the broader issue whether or when that’s allowed as a general matter, by ruling that here it was not here because the ground the trial judge articulated for the deviation was not supported in the record.  (The two level enhancement was for inflicting bodily injury on the victim.  The other defendants didn’t get the enhancement, and the record was the same as to each defendants’ conduct.  The trial judge made statements indicating that he thought that the record was not the same as to each defendant.)

So first, congratulations Tina.

So here we have

Still here

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We took a sabbatical for a bit while I shoveled work off my desk, but with 2017 here already, let’s get back in the saddle by making some general observations about 2016.


Law Court caseload statistics have been posted for 2012 through 2016.  On the civil front, overall, total filings show 477 in 2012, 420 in 2013, 431 in 2014, 443 in 2015 and 478 in 2016.  So a dip, and then back to the 2012 level.  The distribution of types of appeals, however, has changed, with fewer general civil appeals, far fewer worker’s comp appeals, and more family and child protective appeals.  The child protection appeals in particular soared from 38 in 2012 to 89 in 2016.  One of my favorites, 80Bs and 80Cs, have kept steady numbers – 25-29 over the five year period.  Probate has almost doubled, from 15 in 2012 to 27 in 2016.  People are apparently crankier about their speeding tickets, too – 1 traffic infraction

San Antonio Download, Pt. 3

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Time for our report on the remainder of the AAAL conference. In the last sessions, we heard from a panel of the current and two preceding Chief Justices of Texas, a panel on how the Texas court engages in rulemaking, and, finally, a panel of two veteran 5th Circuit judges.

The panel of Chiefs

Chief Justices Phillips, Jefferson and Hecht spoke. We should all be happy we do not elect our judges (except probate), given the politicking that can goes on. The Texas Supreme Court also has an interesting history given the Texaco v. Pennzoil suit and a 60 Minutes “Justice for Sale” episode that makes for interesting listening (among other things, 6 incumbent Justices resigned thereafter). Thankfully, there are not a lot of lessons to apply here in Maine. Basically, CJ Phillips was a leader in tidying after the deluge, followed by CJ Jefferson (the first African-American CJ in Texas), followed by CJ Hecht.

They all remarked

San Antonio Download, Pt. 2 – appellate ethics & recent appointee observations

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Continuing my summary of the last AAAL meeting, as appellate nerds know, Texas is the one appellate jurisdiction that has a separate and additional set of ethical rules applicable to appellate bar practice.  The folks who instigated this development gave an interesting talk on how this happened.

First, here’s a link to those Texas’ appellate rules of ethics, promulgated by the Texas Supreme Court and Texas Court of Criminal Appeals (the latter being the highest Court in Texas for criminal appeals) in 1999.  (Standards for Appellate Conduct, The Supreme Court of Texas)

As you peruse, you’ll note there is nothing radical or unsurprising.  To sum up:  “Play nice.”  The rule about manipulating margins is now obsolete, because those courts, like most now, use a word count.

Note that these rules apply to the appellate judges, too, not just the bar.

Basically, the reason the rules came about was because some of