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When is a Person an Employee of Another?
Legal Business |
2011/07/18 09:36
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.
Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another |
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Lawyer defends Nevada truck firm in Amtrak crash
Class Action |
2011/07/11 00:53
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A lawyer for the Nevada trucking company whose tractor-trailer slammed into an Amtrak train, killing six people, defended the company’s safety record Thursday and said it was not at fault in two previous accidents cited in state safety records.
John Davis Trucking Co. has been cooperating with local, state and federal investigators and is as anxious as anyone to learn why the driver who died in the June 24 crash ignored flashing lights and crossing gates before skidding the length of a football field into the side of the train, Steven Jaffe of Las Vegas said.
But he said four negligence lawsuits filed against the Battle Mountain company — combined with the ongoing investigation by the National Transportation Safety Board — has kept the brothers who own the family-run business from sharing information that would help shed more light on the tragedy.
“There’s a lot more than meets the eye,” Jaffe told The Associated Press. “I think when it all comes down to it, the public is going to see a very different John Davis Trucking than was originally put out there.
“I believe the evidence will show their conduct was defensible in all of this,” he said. “I have a great deal of trust in the legal system, and if some day we go in front of a jury, I’m confident it will give us the chance to say that we did everything right.”
Federal records reviewed by the AP show the state Department of Public Safety cited the company for 16 vehicle maintenance violations over the past two years and noted it had been involved in two crashes during that period, including one in February 2010 that injured a person in Washoe County.
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Arizona court vacates $75 million cash-only bond
Court Watch |
2011/07/11 00:13
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An Arizona appeals court has vacated what was perhaps one of the highest bail amounts on record in U.S. history that had been set for a father accused of sexually abusing his children.
The brief order issued last week sends the case back to Yavapai County Superior Court Judge Tina Ainley to reset the $75 million cash-only bond for the longtime Sedona resident. She has scheduled a Monday status conference.
The defendant's attorney, Bruce Griffen, sought relief from the appellate court after he tried unsuccessfully to have the case assigned to another trial court judge.
Griffen accused Ainley of abusing her discretion, and exhibiting bias and prejudice.
Prosecutors say those accusations were not proven. They contend the defendant has significant family ties in Brazil and is a flight risk.
The appellate court said Ainley cannot set a bail amount greater than what is necessary to ensure the defendant appears at trial, and can set other release conditions. The court is expected to elaborate on its decision but had not done so as of Friday.
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Google Wi-Fi snooping lawsuits can proceed
Class Action |
2011/07/10 00:52
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A federal judge has refused Google's plea to dismiss several class-action lawsuits accusing the Internet search giant of illegally collecting online information from unencrypted wireless networks while working on its "Street View" map feature.
Google has acknowledged that its fleet of specialized "Street View" vehicles inadvertently gathered about 600 gigabytes of Wi-Fi data in more than 30 countries while photographing neighborhoods.
The Mountain View, Calif.-based company apologized and maintains it never used the data. It also argues it did nothing illegal because the Wi-Fi data was publicly available like radio transmissions.
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Pomerantz Law Firm Has Filed a Class Action Against Biomimetic Therapeutics
Class Action |
2011/07/07 10:00
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Pomerantz Haudek Grossman & Gross LLP has filed a class action lawsuit against BioMimetic Therapeutics, Inc. ("BMTI" or the "Company") and certain of its officers. The class action in the United States District Court, Middle District of Tennessee is on behalf of a class consisting of all persons or entities who purchased BMTI securities from October 14, 2009 through May 11, 2011, inclusive (the "Class Period"). The Complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder. BMTI's product, Augment(TM) Bone Graft ("Augment"), is a fully synthetic, off-the-shelf bone growth factor product for the treatment of bone defects and injuries. The Company's primary focus is obtaining market approval for Augment, and preparing for the anticipated commercial launch of Augment in the United States, the European Union and Australia. Throughout the Class Period, Defendants conditioned investors to believe that FDA approval of Augment would be forthcoming through a host of materially false and misleading statements regarding the status of Augment's ongoing clinical studies, and the safety and efficacy of the Company's product. Specifically, Defendants made false and/or misleading statements and/or failed to disclose material facts regarding: (a) the Company's business, operations, management, future business prospects and the intrinsic value of BMTI's common stock; (b) the safety and efficacy of Augment and its prospects for FDA approval; and (c) the woeful inadequacies of Augment's clinical trials. As a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On May 10, 2011, the FDA published briefing documents on Augment that were critical of Augment's clinical trial, stating the "FDA still has clinical concerns with the safety and overall risk/benefit of the device at this time, primarily due to the unanswered question of safety in regards to the potential for cancer formation versus an unproven benefit in the current standard for care." On this news, BMTI's stock price plummeted approximately $4.73 or over 35% and closed at $8.66 on unusually heavy volume. On May 13, 2011, BMTI disclosed that the FDA Panel voted by a narrow margin of 10-8 in favor of Augment's efficacy, making it highly unlikely that the device will receive FDA approval without requiring additional trials, substantially delaying the launch of the product. As a result of the news regarding the narrow Panel vote, BMTI shares declined nearly 12% or $1.095 and closed at $8.105. If you are a shareholder who purchased BMTI securities during the Class Period, you have until September 6, 2011 to ask the Court to appoint you as lead plaintiff for the class. A copy of the complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Rachelle R. Boyle at rrboyle@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, x350. Those who inquire by e-mail are encouraged to include their mailing address and telephone number. The Pomerantz Firm, with offices in New York, Chicago and Washington, D.C., is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 70 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com. 
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Lawyer sentenced in insider trading scheme in NYC
Breaking Legal News |
2011/07/07 09:58
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A New Jersey lawyer was sentenced Thursday to 2 1/2 years in prison for his role in a hedge fund insider trading scheme as the judge said it was important to send a message of deterrence to Wall Street and to lawyers nationwide.
Arthur Cutillo teamed with another lawyer at a prominent Manhattan law firm to provide tips about mergers and acquisitions of public companies to friends trading stocks professionally.
Cutillo must report to prison in September. U.S. District Judge Richard Sullivan also ordered the 34-year-old Newark, N.J., resident to forfeit $378,608, which represents a portion of the roughly $7 million that authorities estimate was illegally made by traders as a result of inside information from a variety of sources in the case.
Cutillo, who apologized before he was sentenced, was among those arrested in 2009 when U.S. Attorney Preet Bharara unveiled what he said was the biggest hedge fund insider trading case in history.
After the sentence was announced, Bharara said: "With today's sentence, he now joins a growing group of privileged professionals who are paying a high price for insider trading."
Cutillo admitted providing tips to a former college friend in 2007 and 2008 about secrets he learned at the international firm Ropes & Gray. In return, he received $32,500 in cash, part of $100,000 paid to Cutillo and another Ropes & Gray lawyer in return for stock tips.
The prosecution also resulted in the conviction of Raj Rajaratnam, a one-time billionaire who the government said made tens of millions of dollars through inside information provided by longtime friends carrying secrets about public companies.
Sullivan cited Cutillo's challenging family circumstances, including two children with special needs, as reasons that he did not boost the sentence beyond the minimum recommended in a plea deal with prosecutors.
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Borrowers sue over apparent loan mod mishaps
Breaking Legal News |
2011/07/05 09:27
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It seemed Maria Campusano's financial problems were behind her when the mortgage on her Victorian home in a Massachusetts mill town was chopped by hundreds of dollars a month.
She soon learned that her troubles had just begun.
Weeks after making her first payment under the new rate, the school district staffer began receiving past-due notices, documents showing wildly inaccurate loan balances and letters threatening foreclosure. She now fears she'll lose her home.
"How can they take away what I have worked so hard for?" Campusano said.
Campusano is one of two named plaintiffs in a proposed class-action lawsuit alleging breach of contract by Bank of America NA and subsidiary BAC Home Loans Servicing LP.
The suit, which was filed in Los Angeles federal court because BAC is located in nearby Calabasas, is among a growing number of legal complaints accusing banks of disregarding what should be binding agreements to reduce the monthly mortgage payments of troubled borrowers.
The suits involve permanent modifications through the U.S. Treasury-administered Home Affordable Modification Program, which offers incentives to loan servicers who extend modifications, as well as so-called proprietary modifications, which banks offer independently of the government guidelines.
They represent a new wave of complaints against banks that have already weathered years of criticism for their reluctance to modify loans and for foreclosing on borrowers after offering them trial modifications.
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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