It’s Just a Matter of Time Before Congress Regulates Fantasy Football

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We are only 3 weeks into the 2015-2016 NFL season, but there are already strong signs that Congress is turning its regulatory eye toward Fantasy Football. New Jersey Congressman Frank Pallone Jr. made headlines recently when he called for a congressional hearing to consider passing laws regulating Fantasy Football. Many dismissed the Representative’s request as misguided, suggesting that Congress should focus on more important things . . . like the economy or ISIS. This isn’t the first time Congress has been criticized for unnecessary meddling in professional sports (think Arlen Specter’s suggestion that Congress investigate the New England Patriots for cheating in the Super Bowl). But whether you agree with Congressman Pallone or not, he has a good point. The Fantasy Football industry has transformed from small groups of friends getting together for some friendly, low-stakes fun (i.e. old school “fantasy football leagues” with low buy-ins), into a multibillion dollar nationwide industry that boasts of million dollar pay-outs. With this sort of money on the table (and potential opportunities for fraud and corruption), it is not a question of if Congress closes the regulatory loop on Fantasy Football, but when and how?

Gambling is a highly regulated industry. This dates back to the early days of commercial gambling, when organized crime groups (i.e. mobsters) were running casinos. Historically, gambling has tended to attract crime and corruption. In fact, for decades in the 1970s and 1980s, federal prosecutors focused their attention on identifying and dismantling organized crime syndicates operating in the casino/gambling industry. Incidentally a lot of great movies were based on these prosecutions. From the government’s perspective though, strict laws regulating gambling are necessary to keep organized crime out.

Nevada is the only state in the United States where betting on sports is legal. But as internet use became more widespread in the 1990s and 2000s, gamblers across the country began placing bets online, effectively sidestepping the law prohibiting it. Partly in response to this problem, Congress passed the Internet Gambling Enforcement Act of 2006. The Internet Gambling Enforcement Act put in place stricter laws regulating online gambling. But it also contained one small, but crucial provision that allowed Fantasy Football to explode into the national, multibillion dollar market it is today.

The Internet Gambling Enforcement Act carved out an important exception for Fantasy Football. Congress decided that Fantasy Football was not gambling and therefore not subject to the law, allegedly because it considered Fantasy Football a game of skill, not of chance. The distinction between skill and chance is a dubious one, as any honest Fantasy Football player who has lost their first round pick to injury (or drafted LaDainian Tomlinson or Shaun Alexander after their respective record breaking seasons) will concede. Seemingly small, the carve out given to Fantasy Football effectively allowed these leagues to operate with impunity, free from the strictures of otherwise applicable gambling laws. It also sowed the seed for the explosive growth of large scale, for-profit, commercial Fantasy Football businesses.

Today, Fantasy Football is a huge industry dominated by a few large players. As Congressman Pallone noticed, larger organizations such as Fan Duel and Draft Kings are advertising their business heavily and promising pay-outs of up to one million dollars. Although Fan Duel and Draft Kings may attract more participants and increase their short-term revenues with such advertisements, they are also drawing unwanted attention and priming the pump for new laws and regulations.

When The Internet Gambling Enforcement Act was passed in 2006, Fantasy Football wasn’t a big industry. It wasn’t really an industry at all. It was a social pass-time that groups of friends engaged in for friendly competition and bragging rights. Sure, there was usually a monetary prize that went to the winner, but it normally wasn’t enough to cover dinner at a fancy restaurant.

Today, participants in for-profit Fantasy Football leagues are receiving pay-outs of up to a million dollars. That’s serious money for both the player and for Uncle Sam. There is no way Congress could have foreseen Fantasy Football becoming such large commercial enterprise when it passed the Internet Gambling Enforcement Act in 2006. But now that it has become such a big business, Fantasy Football is starting to get the government’s attention.

It is probably a fair guess that the large Fantasy Football businesses have lawyers and lobbyist on staff to try to keep Congress at bay. That is their right and a smart business move. And it may work in the short term. But the more these companies advertise their services and the huge payouts to winners, the more tenuous their regulatory loophole will become. And make no mistake, it is tenuous. It will take just one scandal, one headline, one accounting irregularity for the regulatory hammer to come down. One whiff of corruption, one suggestion that organized crime is operating in the industry and Congress will surely act swiftly with heavy handed regulations. This isn’t a criticism of the Fantasy Football industry, it is just a reality.

With an industry this big and growing, it really isn’t “if” but “when” Congress gets involved.

How Using Facebook Can Get You Arrested (Illegally)

Internet

One of the many unexpected consequences of mainstream social media use has been a substantial uptick in civil lawsuits.  This primarily includes a growing number of lawsuits for defamation and libel.

Obviously, social media provides us with a remarkable (and limitless) forum to publicize our thoughts, feelings and opinions on any subject, at any time.  Occasionally, social media users write negative comments or reviews about other people or businesses.  If these comments qualify as defamatory, unwitting Facebook users can find themselves staring down a credible lawsuit for libel.

Although social media users have been subject to an increasing number of civil lawsuits, it is still relatively rare for users to get arrested or criminally charged for what they post.  But that is exactly what happened to Wisconsin man who took to Facebook to criticize a local Wisconsin police department for engaging in what he believed to be racial profiling.

By way of background, in the summer of 2012, police officers from the Village of Arena in Wisconsin were searching neighborhoods for several African-Americans teens suspected of robbery.  Apparently, a local resident came upon the suspects and detained them at gun-point until the police arrived to make an arrest.

After the arrests were made, a Village of Arena police officer posted a “thank you” to local residents on the police department’s Facebook page.  The “thank you” was directed to local residents for their “assistance” in apprehending the suspects.  A number of Village of Arena residents were not happy with the arrests or how the police department conducted searches.  For instance, one Facebook user posted the following reply to the Officer’s “thank you”:

You’re so very welcome. Thanks for searching my house and accusing me of harboring so called dangerous fugitives, that I don’t even know….wasting time searching peoples houses when the ‘fugitives’ were no where near there…and since when is it ok for a resident to point a gun at a couple if KID’S heads? If that was anyone else’s kids pretty sure it would be a big deal. Oh wait though, they were black so It’s ok. Thanks to everyone that made our town look like nothing but a racist, prejudice place to live..I’m embarrassed to say I’m part of that kind of community. If I were black I’d run too.

Thomas Smith also posted a reply to the Officer’s “thank you.”  His reply was not exactly subtle.  It was essentially a profanity laced screed that accused the Village of Arena police department of being racist.

The Officer who posted the “thank you” reportedly read Smith’s posts and deleted it. A few days later, Smith received a phone call from the Village of Arena police department asking if he had in fact written the commented posted on the police department’s Facebook page.  He confirmed that he did and that he “meant it” and “didn’t regret it.”

The Officer who posted the “thank you” reportedly requested that Smith be arrested for, among other things, disorderly conduct and unlawful use of computerized communications systems.

As I have discussed previously, if the First Amendment serves any purpose, it is to protect a person’s right to criticize (however in-artfully) the government. (see https://legalviewpoints.wordpress.com/2015/09/16/writing-obscenities-on-a-speeding-ticket-is-protected-speech-under-the-first-amendment/).  But remarkably, Smith was arrested, charged and convicted of both counts.  He raised the First Amendment as a defense in his criminal trial.  However, the prosecutors argued and the trial judge agreed that his comments were “fighting words.”  The “fighting words” doctrine is a dubious and seldom used exception to the First Amendment right of free speech.

Smith appealed his conviction and it was overturned on appeal.  The Appellate Court correctly determined that Smith’s criticism of the Village of Arena police department fell well within the protections afforded by the First Amendment.

After the charges against Smith were dismissed, he filed a civil rights lawsuit against the Officer who directed his arrest and the Village of Arena.  That lawsuit recently settled.  You can read the complaint here:

http://cdn.arstechnica.net/wp-content/uploads/2015/09/smithsmithsuit.pdf.

Although the Appellate Court eventually vacated Smith’s arrest, it is remarkable that he was arrested to begin with.  It is even more remarkable that he was convicted.  Remarkable, but maybe not surprising.  Although social media is an incredible new forum for expression, its mainstream use is relatively new in the scheme of things.  Hopefully as more of these cases work their way through the criminal justice system the judiciary will create enough precedent to firmly establish a citizen’s right to criticize the government via social media.

When the Law Makes No Sense

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Not all laws are good laws.  Not all laws are fair.  Not all good laws are applied fairly.  But normally there is at least some logic behind laws drafted and adopted by state legislatures and enforced by competent, adult prosecutors sworn to uphold the Constitution.  I say “normally” because on rare occasions you may hear a story of a ridiculous law struck down as unconstitutional or a rogue prosecutor missapplying an otherwise valid law.  But then there is the case of Cormega Copening, a sixteen year old North Carolina teen who was charged with multiple felony counts for sexually exploiting a minor.  Copening, you see, was caught with naked pictures of a minor on his cell phone.  Here is the thing though, the naked pictures were of HIMSELF.

I had to read the Copening case multiple times before I ultimately satisfied myself it was not an elaborate internet hoax.  Unfortunately it is true and it is unequivocally outrageous.

Last year the Cumberland County Sheriffs Office in North Carolina was investigating a claim of statutory rape.  As part of the investigation, students at Douglas Byrd High School in Fayetteville had their cell phones searched.  Copening was one such students and the police found naked pictures of himself on the phone.

In what feels like an episode of the Twighlight Zone or a bad remake of the Matrix, Copening was actually charged with a felony for exploiting a minor . . . the minor being himself.  Under North Carolina law it is illegal to take naked photographs of a minor child for purposes of sexual exploitation.  That part of the law is completely rational.  Under the law, a 16-year-old is considered a minor, which is also rational.  However, a 16-year -old who is accused of sexually exploiting a minor can be charged as an adult . . . and this is where things flew off the track for Cormega.

Because Cormega was only 16 years old when the pictures of himself were taken, he was considered a minor capable of being sexually exploited. But as the 16-year-old who took the photos he was also technically old enough to be charged as an adult for sexually exploiting a minor.  “Okay,” you may be thinking to yourself, “but no rational person or government would even think about charging a 16-year-old as an adult for exploiting himself as a minor.”  Right?  Right?  But that is exactly what happened to Cormega.

He was arrested and charged with a felony for sexually exploiting a minor, the minor being himself.  Earlier this month Cormega pled guilty to a lesser charge. Even so, you have to question how something like this could ever happen in a rational world.  How can a teenager exploit himself for having naked pictures of himself on his cell phone?  How is that any different than looking at himself in the mirror?  The answer is that it doesn’t make any sense whatsoever completely illogical and frankly embarrassing. Dont believe me?  You can read more about it here:

http://www.theguardian.com/us-news/2015/sep/20/teen-prosecuted-naked-images-himself-phone-selfies

Pennsylvania Supreme Court Suspends Attorney General Kathleen Kane’s Law License Via Emergency Order

City Hall

In a surprising move (shocking really), the Pennsylvania Supreme Court entered a one page Order today temporarily suspending Attorney General Kathleen Kane’s law license.  Although the Order temporarily suspended Kane’s license to practice law, it specifically stated that it “should not be construed as removing [Kane] from elected office.”   The full Order can be found online here: http://www.pacourts.us/assets/opinions/Supreme/out/2202DD3%20-%201023669815398023.pdf?cb=1

Kane was indicated earlier this summer and is currently facing criminal charges in Montgomery County for allegedly leaking secrete grand jury material.  The Montgomery County District Attorney has alleged that Kane illegally leaked grand jury material in order to embarrass a fellow prosecutor she viewed as a political opponent. Kane has vehemently denied any wrongdoing.

Today’s surprising Order was entered in response to an action initiated by the Pennsylvania Attorney Disciplinary Board to suspend Kane’s law license.  In August, the Disciplinary Board filed a Complaint seeking to suspend Kane’s law license because of her “egregious conduct” in leaking the grand jury information.  The Disciplinary Board also claimed that because Kane is currently a criminal defendant, there “is a concurrent conflict of interest for Kane to continue practicing law while being prosecuted for violating the very law she is was vested with the power to enforce.”

Kane has maintained that the Disciplinary Board’s efforts to suspend her law license violates her constitutional right to due process.  In other words, Kane believes a jury of her peers must convict her of leaking grand jury material before her license can be suspended.

Today’s Supreme Court Order temporarily suspending Kane’s license is extremely surprising.  Even more so considering the Supreme Court went out of its way to make it clear that the Order was not meant to remove her from office. The upshot here is bizarre – Pennsylvania’s current Attorney General, its “lawyer in chief,” cannot practice law.  The ramifications of this Order on Kane’s ability to fully run the Attorney General’s Office are unclear, but it is safe to assume that this will not be the last word from the Supreme Court.

Updates to follow.

Kids, Clocks and the Constitution

Justice

Social media has been buzzing about Ahmed Mohamed, the 14 year-old Texas boy who was yanked from class, questioned by police and ultimately suspended from school for building a clock that school officials mistook for a bomb.  The discussion sparked by Ahmed’s detention has primarily focused on whether he was the victim of racial profiling. Many questioning if his name and ethnicity had anything to do with his hand made “clock” being mistaken for a “bomb.”  However, with reports now surfacing that Ahmed was questioned by school officials and local police and even asked to write a statement without his parents present and without an attorney, this case raises some valid legal and philosophical questions as to the rights of minors suspected of committing a crime.

Earlier this week, Ahmed Mohamed, by all accounts a studious nine-grader at MacArthur High School in Texas was removed from school and questioned by police for bringing a home-made clock to school. Ahmed is a budding engineer who wants to attend MIT someday.  He built the clock as an experiment. Rightfully proud of his work and ingenuity, he brought it to school and showed it to his teacher because he thought she would be impressed.  That’s when things started to unravel.  A second teacher discovered the clock when it made a beeping noise during class. Despite telling the teacher it was just a clock, the teacher and school officials were concerned it might in fact be a bomb.  The local police were called and Ahmed was placed in handcuffs and taken in for questioning.

The photo of Ahmed in handcuffs has been all over social media. It’s a powerful photograph.  Not just because of the confused and scared look on Ahmed’s face, but also because he is wearing a NASA t-shirt.  A NASA t-shirt . . .   This kid really likes science.  How do you not give the benefit of the doubt to a kid wearing a NASA t-shirt?

Anyway, the fact that Ahmed was placed in hand-cuffs and questioned by police because he built a clock is troubling in its own right.  From reports, there was no evidence whatsoever that would suggest that his clock was a bomb.  Ahmed never suggested it was anything other than a clock.  But from a legal perspective, what is even more troubling is that Ahmed was reportedly questioned by police and school officials and asked to write a statement without being allowed to speak with his parents and without an attorney.

It is a bedrock principle of Constitutional law that citizens have a right to speak with an attorney before being questioned by police.  The rights of children are no less than those of adults.  Although criminal suspects can invoke or waive their right to speak with any attorney, we should all seriously consider the competency of children to do the same.

It is not clear if Ahmed asked to speak with an attorney, however it has been reported that asked to speak with his parents and that request was denied.  It is true that the Constitution does not guarantee a criminal suspect the right to have his or her parents present during questioning by police. But we are not talking about a competent adult here, we are talking about a scared child in handcuffs who wants his parents.

At this point there are not enough facts to offer a credible opinion on the technical legality of Ahmed’s detention.  But the story that is emerging is troubling, from both a philosophical and legal perspective.  The thought of school officials and police questioning a young teenager without a parent present and without a lawyer raises interesting Constitutional questions.  But it also raises moral and philosophical issues that we need to consider closely.  As a nation, we have always balanced the rights of the accused against the safety and interests of society.  Protecting the rights of an accused is a fundamental moral value we have collectively adopted as a nation.  Our criminal justice system, though far from perfect, is guided by this fundamental value.

But should our values be different when the accused is a child? Should we be more zealous when dealing with the rights and interests of children?  Should we also consider the rights and interests of the parents?  Children, by and large, lack the same sophistication and competence as adults. They are more vulnerable.  That vulnerability is highlighted in serious cases such as Ahmed’s, where there is the potential that a child could face serious criminal or even terrorism charges.

Denying a child the right to speak with his parents before subjecting him to questioning seems philosophically at odds with the moral values of our criminal justice system.  It seems philosophically at odds with our inherent interests as parents.  This issue does not seem to be a big discussion point with respect to Ahmed’s detention, but it should be.

Writing Obscenities on a Speeding Ticket is Protected Speech Under the First Amendment

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The First Amendment to the United States Constitution does not protect all speech. But, in what is good news for Connecticut man, it does protect a citizen’s right to scrawl “F@*! YOUR SH!TTY TOWN BITCHES” on a citation in protest of a speeding ticket. Yesterday, New York Federal Judge Cathy Seibel ruled that the District Attorney for the town of Liberty in upstate New York violated William Barboza’s civil rights after the District Attorney ordered Barboza arrested and prosecuted for using obscenities in protesting a traffic ticket.

On May 4, 2012, William Barboza was driving through the town of Liberty in upstate New York. He was pulled over and given a ticket for speeding. Barboza was clearly unhappy about the ticket. Although he decided to pay the fine, on the payment form he submitted with his check Barboza wrote “F@*! YOUR SH!TTY TOWN BITCHES” (except his version was uncensored). Barboza also crossed out the word “Liberty” from the phrase “Liberty Town Courthouse” and hand wrote “Tyranny” in its place.

The authorities in Liberty were not too pleased with Mr. Barboza. His payment was rejected and he was ordered to appear in court. When Mr. Barboza appeared before a local Liberty judge he was lectured on the use of his foul language and eventually arrested and charged with “aggravated harassment.” As it turns out, Liberty’s District Attorney Robert Zangla ordered Barboza’s arrest.

About a year after his arrest, the criminal charges against Barboza were dropped. The judge dismissing the case against Barboza wrote that “No citation is necessary for this Court to determine that the language under the circumstances here, offensive as it is, is protected.

Barboza was not content to let matters stand and he filed a civil lawsuit in federal court against both the town of Liberty and Robert Zangla for violating his Constitutional rights under the color of state law.

Yesterday, Judge Seibel of the Southern District of New York ruled that Zangla is liable for damages for impinging upon Barboza’s “clearly protected rights” under the First Amendment. Judge Seibel rejected the notion that Barboza’s “speech” violated New York’s aggravated harassment law, determining that his choice of words, though “crude and offensive,” did not convey any imminent threat of harm. As for the town of Liberty, it would have to stand trial on Mr. Barboza’s claim that it failed to train its police officers on rights afforded by the First Amendment.

As noted by Judge Seibel, Mr. Barboza’s choice of words was clearly meant to be offensive and insulting. That said, if the First Amendment provides any protection at all, it must protect a citizen’s right to protest and criticize the actions of his government. Otherwise, what is the point? Insulting a town in response to a speeding ticket may be immature, but it is a form of protest and just the sort of speech the First Amendment was intended to protect.

Facebook, Instagram and Twitter Score a Big Win in California Court

I think it is fair to say that social media has become nearly ubiquitous in the United States and most other developed countries.  Although the number of people using social media is now in the hundreds of millions, most users don’t realize that, regardless of their “settings,” what they post online is not private and can and often is used against them in litigation.  Even otherwise innocent posts, such as status updates or photographs can be accessed by lawyers once a lawsuit is filed.

I have written about this subject many times and have tracked the legal development of social media discovery over the years.  You can read some of these articles here:

http://www.jetlaw.org/2013/09/16/guest-post-facebook-discovery-moving-away-from-the-%E2%80%9Cthreshold-rule%E2%80%9D/

https://lawyerist.com/42829/private-facebook-pages-may-be-discoverable/

http://www.hg.org/article.asp?id=26030

http://cprlaw.com/judge-wettick-weighs-in-on-the-discoverability-of-private-facebook-content/

Although it is true that in civil lawsuits (think personal injury or medical malpractice cases), an injured person can be forced to turn otherwise private social media posts over to the defense, defendants are not permitted to serve subpoenas directly on the social media providers.  In other words, if you file a lawsuit against a doctor alleging medical malpractice, a court may force you to turn over your social media content, but a defendant can’t force to the social media provider to turn it over.  The reason civil litigants can’t force social media providers to turn over a user’s private information in a civil suit is because a federal law called the “Stored Communication Act” (SCA) prohibits it.

Although the SCA categorically prohibits civil litigants from subpoenaing private posts from social media providers, there are exceptions in criminal cases.  Criminal defendants have due process rights and a Constitutional right to cross exam witnesses who testify against them.  Constitutional rights are fundamental and trump all other federal laws, including the SCA.  With these rights in mind, when Congress passed the SCA, it created limited exceptions that allow prosecutors and potentially defendants to force social media providers such as Facebook and Instagram to turn over private user information.

In a recent San Francisco criminal case, the intersection between the SCA and a criminal defendant’s right to subpoena Facebook, Instagram and Twitter was squarely in the cross-hairs of the California Court of Appeals.  The Court of Appeals issued a very interesting ruling concluding that criminal defendants do not have a Constitutional right to subpoena Facebook, Instagram and Twitter for private user records before trial, but they may be able to do so during trial.

Here is the thumb-nail factual setup:  prosecutors in San Francisco charged Derrick Hunter for the gang-related murder of Jaquan Rice in connection with a drive-by shooting on June 24, 2013.  The prosecution alleged that Hunter and his younger brother (an unnamed minor) shot and killed Rice because Rice had posted messages and videos on Facebook and Instagram threatening Hunter’s younger brother.  Hunter and his minor brother were members of a gang called “Big Block,” while Rice was a member of a rival gang called “West Mob.”  Another defendant, Lee Sullivan was also alleged to be involved in the shooting and witnesses reported that a woman was driving the car involved in the drive-by.

Minutes after the shooting Renesha Lee was spoted driving the drive-by car.  She told the police that she had let the Hunter brothers and Sullivan borrow her car and they took her home just before the shooting.  Lee is Sullivan’s former girlfriend and agreed to be a witness for prosecution.

Prior to trial, Sullivan subpoenaed both Facebook, Instagram and Twitter seeking all public and private content from both Lee and Rice’s account.  Hunter subpoenaed Twitter seeking all of Lee’s public and private content.  Both defendant’s argued that, irrespective of the SCA, they had a Constitutional right to this information in order to prepare a proper cross-examination.

Sullivan argued that Lee’s private postings would show that she was jealous of his relationship with another woman and thus was motivated to testify against him out of revenge.

Hunter argued that Rice’s private postings were relevant to show that Rice was violent and threatened Hunter’s younger brother.

The trial court granted the defendants’ request to subpoena Facebook, Twitter and Instagram, concluding that the defendants had a Constitutional right to the material before trial so that they could adequately cross exam witnesses. Facebook, Twitter and Instagram appealed to the Appellate Court.

The Appellate Court disagreed with the trial court.  It noted that there is no Constitutional right to pretrial discovery.  So, according to the Appellate Court, criminal defendants do not have a Constitutional right to subpoena private user content from Facebook, Twitter, Instagram or any other social media provider before trial.  However, the Court was careful to leave the door open for criminal defendants to subpoena social media providers under certain circumstances at trial.

The Court reasoned that at the time of trial a judge would have a better understanding of the issues in the case and could better balance a defendant’s Constitutional right to cross-examination against the SCA’s goal of keeping private online material private.  According to the Appellate Court, at trial the judge would be better able to balance these competing interests because he or she would have had the opportunity to hear testimony and consider evidence.

The Appellate Court’s decision is interesting.  On the one hand it shows a keen interest in protecting social media users and providers from unlimited and unsupervised subpoenas from criminal defendants.  On the other hand, it seems impractical and potentially unfair to require a criminal defendant to wait until trial begins to get potentially relevant social media material. Criminal defendants’ risk losing their fundamental right to liberty, shouldn’t their attorneys be given time to prepare the best defense possible?

Regardless, the opinion is another big step in the ever evolving use of social media in litigation.

Governor Wolf’s Executive Powers Under the Microscope

The Pennsylvania Supreme Court is currently hearing arguments on issues that will ultimately define the scope of Governor Tom Wolf’s powers as the State’s Chief Executive. This morning the Supreme Court is hearing arguments on Governor Wolf’s executive “moratorium” on the execution of death row prisoners in Pennsylvania. Since taking office, Governor Wolf has suspended the execution of prisoners until a legislative panel completes an ongoing study on the use of capital punishment in Pennsylvania. Most view this “temporary moratorium” as the first step in eliminating capital punishment altogether in Pennsylvania.

The death penalty case revolves around death row inmate Terrance Williams who was convicted of beating a Philadelphia man to death with a tire iron over 30 years ago. Williams had unsuccessfully sought a pardon and to have his death penalty sentence overturned or commuted. Since taking office in January, Governor Wolf has granted Williams 3 reprieves, indefinitely postponing Williams’ scheduled execution.

Governor Wolf has taken the position that all executions in Pennsylvania should be suspended until the State’s legislature completes a study on the use of capital punishment. The Governor’s Office argues that as the State’s Chief Executive, Governor Wolf has “unconditional power” to grant reprieves to death row inmates and state courts have no jurisdiction to review or challenge his exercise of executive power.

Philadelphia’s District Attorney Seth Williams has challenged Governor Wolf’s actions as “flagrantly unconstitutional” and outside the scope of the Governor’s authority.

Considering Governor Wolf’s criticism of the continued use of the death penalty, the Supreme Court’s decision in Williams will likely have a significant impact on the ongoing viability of capital punishment in Pennsylvania. It will also help define the scope and breath of the Governor’s powers as chief executive. Proponents and opponents of the death penalty are watching this case closely.

In addition to the “death penalty moratorium,” the Pennsylvania Supreme Court is also hearing arguments on Governor Wolf’s authority to remove Erik Arneson from his position as Executive Director of the Office of Open Records. The Arneson case is interesting, but more nuanced than the death penalty moratorium case. Arneson centers on former Governor Corbett’s last minute appointment of Erik Arneson to the position of Executive Director of the Office of Open Records. The Office of Open Records is a new, quasi judicial state agency that is tasked with making preliminary decisions as to whether government records should be turned over to the public under the State’s “Right to Know Law.” This potentially means the Office of Open Records will decide whether the public is entitled to otherwise private records from the Governor’s Office.

On January 13, 2015, in his last week as Governor, Tom Corbett appointed Erik Arneson as Executive Director of the Office of Open Records. By statute, the Executive Director will serve a 6 year term. On January 20, 2015, Tom Wolf officially became the new Governor of Pennsylvania and one of his first acts as Governor was to fire Arneson.

Arneson appealed the decision to the State’s Commonwealth Court. On June 10, 2015, an en banc panel of the Commonwealth Court found Governor Wolf acted outside his authority in firing Arneson without cause. The Commonwealth Court ordered Arneson to be reinstated and awarded him back pay. Governor Wolf’s office appealed the decision to the Supreme Court, which is hearing arguments this morning.

The primary issue before the Supreme Court is whether the State legislature intended the Executive Director position of the Office of Open Records to be “independent” of the Governor’s Office. In other words, when the legislature created the Office of Open Records, did it intend to immunize the Executive Director from political influence, including the influence of the Governor. If it intended the office to be “independent,” then Governor Wolf would not be permitted to fire Arneson except for cause. If the legislature did not intend the Office of Open Records to be independent, then Arneson serves at the pleasure of the Governor and the Governor has unfettered authority to remove him for any reasons or no reason at all.

Governor Wolf contends that nothing on the legislation creating the Office of Open Records indicates that the office was meant to be “independent” and there are no limitations on his ability to appoint and replace the Executive Director “at will.”

Arneson obviously disagrees, arguing that by granting the Executive Director a 6 year term, which exceeds the term of the Governor by 2 years, the State legislature intended the Executive Director to operate free from political pressure or threats of removal from the Governor’s Office. Arneson also argues that the Office of Open Records is responsible for making decisions as to whether government records, including records from the Governor’s Office should be made public under the State’s Right to Know Laws. Given that authority, Arneson contends that the legislature clearly intended the office to be “independent.”

As with the death row moratorium, the Supreme Court’s decision in Arneson will help shape the limits of the Governor’s authority. It will also resolve contentious political wrangling between the outgoing Governor and Governor Wolf. Regardless, hearing both arguments at the same time means that in short order the Supreme Court will be making unprecedented decisions that influence the shape and operation of our State’s government.

Check back for updates.

Uber’s “Class” Problems

Over the past few years, a substantial number commuters have come to rely on Uber as an important mode of urban transportation.  Many commuters prefer Uber over traditional taxi cabs and are willing to pay a premium for the service. There is no question that Uber provides distinct advantages over traditional cabs, albeit at a higher cost.  One primary advantage is Uber’s mobile application platform that makes it breeze to coordinate and pay for a ride.  A credible argument can also be made that Uber cars are, generally speaking, better maintained and more comfortable than traditional cabs.

Uber’s business model has been described different ways by different people.  In essence, however, Uber is simply a market maker.  It’s mobile application connects customers looking for rides for a predetermined fare to drivers willing to provide rides for the same predetermined fare.  The application uses the GPS function on mobile devices to coordinate the pickup and drop off location. Uber gets a percentage of the ultimate fare with the remainder paid to the driver. As with most elegant solutions, brilliance lies in simplicity.

But Uber’s business model is facing some serious legal trouble.  From Uber’s perspective, it does not employ the drivers who utilize its software program.  Rather, according to Uber, the drivers are independent contractors who simply utilize its software for a fee.  This approach has a number of advantages.  One significant benefit is that by classifying drivers as independent contractors Uber is able to avoid some state and federal labor laws.  The social propriety of Uber’s business model has often been questioned, but it is now facing legal challenges by drivers who believe they should be considered “employees” under California law.

A class action lawsuit captioned O’Conner v. Uber Technologies, Inc. is currently pending in the Norther District of California. The class representatives are bringing claims on behalf of a class of California drivers alleging, among other things, that Uber has wrongfully classified them as “independent contractors” rather than “employees.”  According to the class representatives, Uber drivers in California are really “employees” under California law and, as such, are entitled to certain benefits including a “tips” paid by fare paying customers.

Uber’s defense of the class action suit took a serious blow this week when Northern District of California Judge Edward Chen granted class certification for certain claims made by the representatives. (You can read the full opinion here https://s3.amazonaws.com/pacer-documents/N.D.%20Cal.%2013-cv-03826%20dckt%20000341_000%20filed%202015-09-01.pdf).  Importantly, Judge Chen certified the class for purposes of (1) determining whether, under California law, Uber drivers were improperly classified as “independent contractors” and (2) determining whether the drivers were entitled to receive the “tips” charged to fare paying customers.

Analyzing the issue of class certification under Rule 23, Judge Chen noted that the “cardinal” issue was whether the drivers’ working relationships with Uber were “sufficiently similar so that a jury can resolve the Plaintiff’s legal claims at once.”  In other words, could a jury, considering a uniform set of facts, reach a conclusion that all of the drivers were either “employees” or “independent contractors.”   If a jury could make that determination based on a uniform set of facts the suit could be properly certified as a “class action.”  Otherwise each driver would have to bring an individual suit.  It is increasing rare for class actions to be certified, but Judge Chen concluded that this case fit the mold and granted certification.

Judge Chen began his analysis by observing that there was no real dispute under Rule 23 as to the ascertainability or numerosity of the the putative class of California drivers.  Indeed, the class would include over 160,000 members and could be easily identified from Uber’s business records.  As is normally the case with a proposed class action, the rubber meets the road with respect to issues commonality and typicality. But Judge Chen did not have trouble in concluding that the putative class met these requirements as well.  He noted that for purposes of commonality, “the lawsuit must call upon the court or jury to decide at least one factual or legal question that will generate a common answer ‘apt to drive the litigation.'”  Here, that question was whether the drivers were miss-classified as “independent contractors” under California law.

Judge Chen concluded that the central question as to whether drivers were “contractors” or “employees” not only would “drive the litigation” but that it “could in fact be outcome determinative.”

The upshot of Judge Chen’s decision is that Uber is now facing serious financial exposure to a class action lawsuit that could fundamentally change the way it does business.  Of course, it is up to the jury to decide whether or not the class members are “employees” or “independent contractors,” but jury trials are extremely risky and it seems unlikely that Uber would take such a big gamble.  Stay tuned.