Credit: Reuters/Yuriko Nakao

Northern District court judge, William Alsup explains Wells Fargo’s high-to-low check posting – a practice the bank expected would generate $40 million in revenue:

Assume that a customer has $100 in his account and uses his debit card to buy ten small items totaling $99 followed by one large item for $100, all of which are presented to the bank for payment on the same business day. Using a low-to-high posting order, there would be only be one overdraft – the one triggered by the $100 purchase. Using high-to-low resequencing, however, there would be ten overdrafts-because the largest $100 item would be posted first and thus would use up the balance as quickly as possible.

The court found the only motives behind the challenged practices were gouging and profiteering and ordered Wells Fargo to cease its practice of posting in high-to-low order for all debit-card transactions for all class members.

Wells Fargo says it will appeal.

See the opinion on Westlaw: Gutierrez v. Wells Fargo Bank, N.A., 2010 WL 3155934

On Westlaw Next: Gutierrez v. Wells Fargo Bank, N.A., 2010 WL 3155934

See news articles about the decision:

SEARCH: “Wells Fargo” & overdraft & da(aft 8/9/2010) DATABASE: ALLNEWSPLUS

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“I’m looking for a particular phrase and my search returned a lot of cases, but they’re only mentioning the term in passing instead of discussing it.  What can I do?”

I’m getting this question a lot and I have two solutions that usually solve the problem.

First I use term frequency to make sure the case is mentioning your term more than once.  Under the Search Westlaw button is a link for Term Frequency in many databases.  Clicking on term frequency gives you the option to require your terms and decide how often they must appear in the document.  By forcing your terms to appear multiple times you’re more likely to get cases discussing them in detail.

The other option is to require your term in the headnotes of the case.  This too means you’re likely to get cases that discuss your terms more thoroughly.  For example, if you’re searching for breach of contract, enter HE(breach! /2 contract).  Then, add additional terms;  HE(breach! /2 contract) & “unclean hands” will search for any case with breach of contract in the headnotes and unclean hands anywhere in the case.

*Editors note available in the comments //

Media giant Viacom brought suit against YouTube claiming that “tens of thousands of videos on YouTube, resulting in hundreds of millions of views, were taken unlawfully from Viacom’s copyrighted works without authorization” and that YouTube “had actual knowledge and [was] aware of facts or circumstances from which infringing activity was apparent, but failed to do anything about it.” Viacom Intern. Inc. v. YouTube, Inc., 2010 WL 2532404, 3 (S.D.N.Y. 2010).

The court explored the legislative history of the Digital Millennium Copyright Act (DMCA) and found for YouTube.

To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.

Id. at 8.

See the case on Westlaw: 2010 WL 2532404

On WestlawNext: 2010 WL 2532404

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Earlier I mentioned a case pending before the U.S. Supreme Court regarding the right to privacy in employer-provided communication devices. 

Short version: a police officer was using his government-provided pager to send racy text messages to his wife. The police department busted him for it.

The Supreme Court issued their opinion last Thursday, holding that the employee’s Fourth Amendment rights were not violated and the employer’s reading of the employee’s text messages was reasonable, reversing the Ninth Circuit.

View the opinion on Westlaw:  2010 WL 2400087 On WestlawNext:  2010 WL 2400087 If you’re looking for a giggle, take a look at the oral argument transcript and enjoy the Justices’ difficulty in grasping text-messaging technology.  

My personal favorite is a Chief Justice Roberts quote.  “Maybe—maybe everybody knows this, but what is the difference between the pager and the e-mail?”

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There is a case pending in front of the United Supreme Court that might revolutionize your Blackberry usage in years to come.  We all know that our employers can read emails sent using the company account and monitor computer usage, but what about the company-provided Blackberry and the text messages you send your friends, family, or significant other? Can your employer read those?

A California police officer used his department-supplied alpha-numeric pager to send racy text messages to his wife.  The police department eventually got hold of the text messages and, upon determining “someone was wasting…City time not doing work when they should be,” the police officer was terminated.  Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892, 898 (9th Cir. 2008).

In my view, the most interesting part of the case is whether the employee had a reasonable expectation of privacy in his text messages.  The United States Court of Appeals for the Ninth Circuit found that he did.  The case was appealed to the United States Supreme Court and a decision is imminent.

To receive an email when the case is decided, run the following search on Westlaw.com:

Search: ti(Quon) Database: SCT

When your results load, click on “Add Search to WestClip” at the top of the screen, just under the Edit Search box.   In the screen that comes up, you can name your clip and edit the delivery settings on the left side of the screen.

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I received a couple of calls from employment attorneys looking for a recent sex discrimination case in the Eighth Circuit.  In January the United States Court of Appeals for the Eighth Circuit issued an opinion reversing and remanding an Iowa district court’s grant of summary judgment in  a sex discrimination and retaliation case.  The employer, a hotel chain, terminated its front desk employee for not being pretty enough or possessing a “Midwestern girl look.”  The court found that the employer “enforced a de facto requirement that a female employee conform to gender stereotypes in order to work.”  Lewis v. Heartland Inns of America, 591 F.3d 1033, 1037 (8th Cir. 2010).  The court went on to say, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”  Id. at 1042, citing Price Waterhouse, 490 U.S.  228, 251 (1989).

Read the entire opinion on Westlaw here: Lewis v. Heartland Inns of America, L.L.C.

On WestlawNext:  Lewis v. Heartland Inns of America, L.L.C.

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In March, the United State Court of Appeals for the Federal Circuit issued their en banc decision in Ariad Pharmaceuticals, Inc. v. Eli Lilly and Company.  598 F.3d 1336.  The central issue was whether patents must contain a written description separate from an enablement requirement, and if so, the scope and purpose of that requirement.  We continue to receive requests for the twenty-five amicus briefs.

 To view the briefs in this case:

On Westlaw, search the database CTAF-BRIEF for TI(“ARIAD PHARMACEUTICALS” & “ELI LILLY”).

On WestlawNext, pull up the citation, access the FILINGS tab, and select briefs from the menu on the left side of the screen.

Background: The court engaged in some discussion of the grammar and structure of 25 U.S.C. § 112 and a thorough review of precedent to reach the decision that yes, indeed, the statute contains a separate written description requirement.  “Specifically, the description must clearly allow person of ordinary skill in the art of to recognize that the inventor invented what is claimed.”  Ariad Pharmaceuticals, 598 F.3d at 1351 (internal quotations omitted).  The level of detail necessary to satisfy this requirement will vary “depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology.” 

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I’ve received some calls lately on locating enacted versions of Uniform Laws.  Most often these requests relate to locating different state versions of the Uniform Commercial Code.  Uniform Laws or Model Acts are drafted by the National Conference of Commissioners on Uniform Laws and then enacted or adopted by individual states either as-written or with some alterations.  The most common requests are regarding the Uniform Commercial Code, but there are Uniform or Model laws for a host of topics, including the Uniform Arbitration Act, the Uniform Marriage and Divorce Act, and the Model Penal Code.

Often attorneys want to find which states have adopted a Uniform Act and where in their statutes they can find it.  There is any easy way to do this that doesn’t involve searching each state’s statutes individually.  First, go to the database Uniform Laws Annotated (ULA).  Then click on the table of contents link in the upper right corner.  This takes you to a page with a long list of uniform or model laws.  Scroll through until you find the one you’re looking for and then click the plus sign just to the left of the title.

The first entry on this list is a Refs & Annos entry:

Click to Enlarge

The link provides you with a table of jurisdictions where the model law or code has been adopted and the location of the code within that particular state’s statutes:

Click to Enlarge

If there are multiple versions of a model law, make sure you check the Refs & Annos for each version, as some states may have enacted an older version but have not updated to the newer one.