How do you interpret a phrase in a contract when it has an adjective followed by a series of nouns separated by an “or”?

This question was the task placed in front of me during a recent research session.  The customer wanted to know, as an example, if you have large auto, vehicle or truck, does the word large also modify the word “truck?”  I had to recall those days in high school when Sister Helen was reciting to us the formalities of grammar and the English language.  You know what I mean, when an “or” is considered a disjunctive and the word “and” is a conjunctive.  While I was uncertain what type of response I would get in case law, I figured an expansive search area could not hurt. So we embarked on searching all state and federal cases (ALLCASES) on Westlaw. 

Trying to get a broad result, I started with a search of constru! /p adj! modif! alter /s noun /p contract agreement.  While that search provided 73 results, it needed some refinement.  This time I used a search of CONSTRU! /P ADJECTIVE MODIF! ALTER /S SERIES SEVERAL COUPLE TWO THREE SEQUENCE /S NOUN /P CONTRACT AGREEMENT.  This search proved to be the winner, including language like this:

“widely accepted that an adjective at the beginning of a conjunctive phrase applies equally to each object within the phrase. In other words, the first adjective in a series of nouns or phrases modifies each noun or phrase in the following series unless another adjective appears.” 187 Fed.Appx. 681, citing 189 S.W.3d 87, 92

The customer was happy and now you use it the next time you are faced with this daunting research question.

I recently returned from the annual Expo of the International Association of Amusement Parks and Attractions (IAAPA) held in Orlando. One of the important issues discussed in several class seminars was the new Americans with Disabilities Act Accessibility Guidelines (ADAAG).  While the amusement industry strives to put smiles on people’s faces and to appeal to the broadest spectrum of the population as possible, safety of all guests is a prominent concern to the industry.  Operators are constantly striving to have a good working knowledge of the A.D.A. requirements and how they impact operations.  Such knowledge becomes extremely complex when you look at the wide variety of goods and services offered at an amusement facility or traveling show.  The facility or show not only provides amusement rides, but it also provides water attractions, go-karts, miniature golf, indoor theaters, restaurants, games, shopping, camping facilities and restrooms.  Each of these areas has its own nuances and requirements under the ADAAGs.

On September 15th of this year, the Civil Rights Division of the Department of Justice promulgated a final rule amending its ADA Title III regulation, which covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities.  The final rule can be found on Westlaw at 75 FR 56164. For earlier versions of the rule, you can use the Regulation Identification Number (RIN), 1190-AA46, as your search term in the FR database.  (A very common research question is, ‘I have the notice of proposed rule making, has the agency adopted the final rule?’ Most agencies, but not all, use RINs.  If you’ve got one, run it as your search term to find related proposed, amended and final rules.)

The final rule adopts the 2004 ADAAG and makes them operable six (6) months after publication or on March 15, 2011; while the 2010 Standards (ADAAG) will become enforceable eighteen (18) months after publication or March 15, 2012.  With the promulgation of 2010 Standards, amusement operators will be looking at ways to better accommodate hearing-impaired and sight-impaired guests.  Keep your eyes open for future discussions on this topic.

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I follow the legal happenings of the amusement industry as part of another blog I write. I find it useful to set up a Westclip as a way of monitoring recent opinions issued in the amusement industry area.  Based on the number of type of results I received over the past 9 years, I have tweaked my Westclip on several occasions to add new concepts to my search.

Recently, my Westclip informed me of the case of Pickaway County Skilled Gaming, L.L.C. v. Cordray 2010 WL 3972575 (Ohio 2010), in which the Ohio Supreme Court reviewed Ohio Statutes R.C. 2915.02(A)(2) and R.C. 2915.01 (AAA)(1) when an operator of a members-only amusement game arcade that handed out cash prizes to players challenged the $10 prize limit for each play on its machines, arguing that the limit was not rationally related to determining whether amusement machines are based on skill or on chance which violated the Equal Protection Clause of the United States and Ohio constitutions.  R.C. 2915.02(A)(2) states that no person shall “[e]stablish, promote, or operate or knowingly engage in conduct that facilitates * * * any scheme of chance.” R.C. 2915.01(C) defines “scheme of chance”; the subsection specifically states that a “scheme of chance” does not include a skill-based amusement machine. These types of machines range from games (e.g., Skee-ball and Whack-a-Mole) commonly found at fair and amusement-park midways and in family fun centers to more sophisticated skill-based games found in the members-only arcade that was involved in this case.

In response to a documented “increase in the number of illegal gambling machines around the State of Ohio,” Ohio Governor Ted Strickland issued Executive Order 2007-28S on August 22, 2007.  Through this Executive Order, Governor Strickland declared an emergency justifying suspension of the normal rulemaking process and authorized the attorney general to immediately adopt former Ohio Adm.Code 109:4-3-31. Executive Order 2007-28S at ¶ 9-10.  Shortly thereafter, the Ohio Attorney General closed Pickaway County Skilled Gaming (“Pickaway”) in violation of the new rule and Pickaway challenged the rule and requested an injunction.  While the challenge was pending, the Ohio House of Representatives passed Sub.H.B. No. 177, which, among other provisions, amended R.C. 2915.01(AAA). The bill incorporated into the statute much of the language defining “skill-based amusement machines” that had been set forth in Ohio Adm.Code 109:4-3-31, including the ten-dollar prize-value limit.  Now the Ohio Attorney General defends the statute saying that the limit is rationally related to two legitimate government interests: (1) establishing economic regulations governing the operation of skill-based amusement machines and (2) protecting against criminal acts and enterprises as a prophylactic measure against illegal gambling.

The Ohio Supreme Court agreed with the Attorney General.  According to the Court, “[t]he rational-basis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational.” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9, citing Buchman v. Wayne Trace Local School Dist. Bd. of Edn. (1995), 73 Ohio St.3d 260, 267, 652 N.E.2d 952.  The Court agreed that R.C. 2915.01 does help protect two valid government interests and “[u]nder the rational-basis standard, a state has no obligation to produce evidence to sustain the rationality of a statutory classification.” Columbia Gas Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91, citing Am. Assn. of Univ. Professors, Cent. State Univ. Chapter, 87 Ohio St.3d at 58, 60, 717 N.E.2d 286. “[S]tatutes are presumed to be constitutional and * * * courts have a duty to liberally construe statutes in order to save them from constitutional infirmities.” Eppley, 122 Ohio St.3d 56, 2009-Ohio-1970, 908 N.E.2d 401, ¶ 12, citing Desenco, Inc. v. Akron (1999), 84 Ohio St.3d 535, 538, 706 N.E.2d 323.

So how does one cope to have games within the statutory limits but offer big prizes?  As Pickaway stated in the case, because the dollar limit is based on each play, and R.C. 2915.01(AAA)(1) does not limit the number of times an individual can play a skill-based amusement machine, players can amass endless vouchers and redeem them for valuable prizes.

In a recent order United States Magistrate Judge James L. Cott (Southern District of New York), denied Gucci’s application for a protective order against the disclosure of the privileged communications of Gucci’s Vice-President, Director of Legal and Real Estate Jonathan Moss, on attorney-client grounds.  See entry 125 at 1:09CV04373.  The Court recognized that for the duration of his employment with Gucci, Jonathan Moss was an inactive member of the California State Bar.

The court claims that an essential element of the attorney-client privilege is that an attorney participates in the communication.  The court reasoned that an attorney is one who is “admitted to the bar of a state or federal court.”  In re Rivastigmine Patent Litigat., 237 F.R.D. 428.  Cott cites Wright and Miller’s Federal Practice and Procedure sec. 5480 : “[I]nactive or retired membership that does not permit the member to practice law will not suffice.”  The Order stated that “Moss did not possess the type of bar membership that authorized him to engage in the practice  of law.  California explicitly limits the practice of law to active members.”  Cal. Bus. & Prof. Code Sec. 6125.  Since Moss had no bar membership authorizing him to practice law in any jurisdiction, Gucci’s communications would not satisfy any standard of the attorney-client privilege.

The court’s order continues to look at the federal common law that a client can avail itself of the privilege if the client can demonstrate that it reasonably believes the person (Moss) was authorized to practice law.  In this case, however, Gucci cannot make this claim.  Once Gucci promoted Moss to a legal position, it was obligated to conduct some due diligence to confirm Moss’s professional status as an attorney.  Minimal due diligence includes that Gucci confirm Moss was licensed in some jurisdiction, that the license authorized him to practice law, and that he was not suspended from practicing or faced disciplinary sanctions.

This Memorandum and Order appears to place a burden on corporations, and potentially outside counsel, to check in-house counsel’s bar status before discussing privileged corporate information with that counsel and most certainly before placing any documents involving that counsel on a privilege log in front of opposing counsel.  Corporations can easily confirme in-house attorney licensure by using the appropriate Individual State  ATTYLICENSE-XX  database on Westlaw.

Retail giant Abercrombie & Fitch has found itself a recipient of a second lawsuit filed against it by the E.E.O.C. within the past 12 months for refusing to hire a Muslim job applicant because she wore a hijab (religious head scarf).  The most recent case is entitled U.S. Equal Employment Opportunity Commission v. Abercrombie & Fitch, Co. et. al.   The case was filed in the U.S. District Court for the Northern District of California on September 2nd, Case number 5:10-CV-03911, and assigned to Judge Howard Lloyd.  According to the E.E.O.C. press release (2010 WLNR 17415315), in March 2008, an 18-year-old female applied for a job stocking merchandise at the “Abercrombie Kids” store at the Great Mall in Milpitas, Calif. In accordance with her religious beliefs, she wore a colorful headscarf to her interview. According to the EEOC, the Abercrombie & Fitch manager asked if she was Muslim and required to wear a head scarf, then marked “not Abercrombie look” on the young woman’s interview form. The EEOC’s suit alleges that Abercrombie & Fitch refused to accommodate the applicant’s religious beliefs by granting an exception to its “Look Policy,” an internal dress code that includes a prohibition against head coverings.

The first case, EEOC v. Abercrombie & Fitch d.b.a. Abercrombie Kids (Case No. 4:09cv602 in the U.S. District Court for the Northern District of Oklahoma) was filed by the St. Louis District Office of the E.E.O.C. in September 2009. Both cases are premised on Title VII of the Civil Rights Act of 1964 that prohibits discrimination based on religion (42 U.S.C.A. § 2000e-2) , and requires employers to accommodate the sincerely held religious beliefs or practices of employees, unless doing so would impose an undue hardship on the business.

The EEOC press release notes that, “This is not the first wake-up call for Abercrombie & Fitch. In 2005, the company agreed to a six-year consent decree and paid $40 million to a class of African Americans, Asian Americans, Latinos, and women. Why? They were sued by EEOC and private litigants for refusing to recruit, hire, promote, and retain minorities because they did not fit Abercrombie’s ‘All-American look.’

This latest case was filed just days after another Muslim woman from California received national attention for filing a complaint with the U.S. Equal Employment Opportunity Commission against the Walt Disney Company’s Grand Californian Hotel & Spa for not responding to her request to wear a hijab at work.

The EEOC press releases can be found in the EEOCDOCS database.  Try

Query: hijab

Results: 3

EEOC decisions are in FLB-EEOC.

Charles Carnell fancied himself a television star after he appeared on a Discovery Channel program that featured an attraction called Terminal Velocity located at a place called Extreme World in the heart of the Wisconsin Dells, WI tourism area.  Terminal Velocity is a thrill attraction known as a suspended catch air device (SCAD for short) in which the customer or “diver” ascends about 150 feet in the air either by stairs or a special elevator system.  The diver is fitted into the CFF “Controlled Free Fall” system that guarantees a secure free fall position for a comfortable landing. The operator (a “dive master”) assists the diver into a proper position and releases the cable that suspends the diver.  The diver then drops in an unattached controlled freefall for about 100 feet before being caught in a suspended net attached to airtubes and break suspensions for a soft landing so that the diver feels no impact at all.  A secondary safety system is in place in the form of an inflated air bag onto which the net is lowered.  The air is then released from the bag allowing the diver to return back to the ground.  Carnell was the dive master for Terminal Velocity during the taping of the television program.

 This same television program so captured the imagination of a young Florida girl, Teagan Marti, that she begged her parents to allow her to try a dive from Terminal Velocity the next time they visited relatives in the Chicago area.  Soon the big day came.  According to news reports, on July 30, 2010, Teagan got the opportunity to try the attraction and hoped on the elevator platform with 2 men along with their dive master, Charles Carnell.  The platform began the ascent but slowed down, presumably to let the air bag fill up.  The elevator stopped again about 100 feet in the air and Carnell assumed he was ready for the dives.  From his vantage point, he could see the net and the air bag below and was to wait for a signal to be given by the ground operator who ensures the net is raised properly and that the air bag is inflated.  Carnell then “blanked out” and placed Teagan in the dive position and released her cable.  Unfortunately, the ground operator never provided the signal and the net and air bag both remained on the ground.  With a thud, Teagan landed on the ground below.  She was alive and subsequently taken to a hospital with serious medical conditions include swelling of the brain, several fractures of the cervical and lumbar segments of her spine, multiple fractures of her pelvis and lacerations to her liver, spleen, intestines and duodenum.

 On August 17, the County Attorney for Sauk County filed a criminal complaint against Charles Carnell charging him with first degree reckless injury in violation of 940.23(a)(1) and 939.50(d).  I found it interesting that the charge is called first-degree reckless injury, yet the statute itself only refers to the class of felony but not to the degrees of reckless injury.  The case file number is 2010CF000201 and the case’s progress can be followed using Westlaw Dockets database identifier of DOCK-WI-STCTS to see if the court thinks the attraction operator is a criminal.

For related  cases and an overview of the substantive law, see section 12 of 16 COA 2d 1, Causes of Action Against Operator of Amusement Park for Inury on Ride. Section 12 is dedicated to criminal liability. //

The Reference Attorneys are still receiving a number of calls about the ECO-Gift Card Act, Public Law 111-209, the Amendment to the Credit Card Accountability Responsibility and Disclosure Act of 2009 (“CCARD”).  This new Public Law strikes out Section 403 in Title IV of CCARD, found in Public Law 111-24, and replaces it with new language.  Procedurally, this Act works differently than what most attorneys who do legislative research are accustomed.

Unlike a number of laws that passed by Congress amending existing statutes, this Act amends the Public Law itself – not the codified statute.  The only statutory reference you will see about the ECO-Gift Card Act will be in the KeyCite History for 15 U.S.C.A. 1693L-1.  

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Did you know that there was actually a Committee of Five who were responsible for drafting the United States Declaration of Independence?  While most people know about Thomas Jefferson’s role, the other members of the Committee were John Adams, Benjamin Franklin, Robert Livingston of New York and Roger Sherman of Connecticut.

On Friday, July 2, 2010, the Library of Congress announced that it used a modern version of a type of hyperspectral imaging technology that compiles a series of images to highlight layers of a document to review the original Declaration of Independence.  Why?  Because historical scholars have long been interested in a smudge that appears on a draft version of the  Declaration of Independence.  So methodical and careful was Jefferson is writing this draft of the Declaration, he wanted to make sure his earlier drafted word was not decipherable to readers when he wrote over it.

Jefferson, it seems, initially referred to the people in the thirteen British colonies as “subjects.”   After some thought, the word “citizen” was carefully crafted by Jefferson who sought to match the lines and curves of the underlying smudged letters with the new letters he wrote on top of them. It took research scientist Fenella France weeks to pull out each letter until the full word became apparent. “It’s quite amazing how he morphed ‘subjects’ into ‘citizens,’ ” she said. “We did the reverse morphing back to ‘subjects.’ “

You can find a copy of the Declaration of Independence on Westlaw in the USCA database with the search ci(“declaration of independence”).

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On August 19, 2009, UBS announced the formal signing of a settlement agreement with the IRS of the United states regarding the John Doe summons issued on 21 July 2008. The summons has been the subject of a civil action in the United States District Court of the Southern District of Florida. According to document 8/20/09 Briefing.com Stock Information 02:00:27,

the principal terms of this settlement agreement and the related agreement entered into at the same time by the governments of Switzerland and the United States are described: The agreement does not call for any payment by UBS. Moreover, it resolves all issues relating to the alleged breaches of UBS’s Qualified Intermediary Agreement with the IRS as set forth in the Notice of Default dated 15 May 2008. As part of the settlement, the parties will promptly file a stipulation with the court to dismiss the enforcement action relating to the John Doe summons. In accordance with the separate agreement between the United States and Switzerland, the IRS will submit a request for administrative assistance pursuant to the existing US-Switzerland Double Taxation Treaty to the Swiss Federal Tax Administration (SFTA). This request will seek information relating to certain accounts of US persons maintained at UBS in Switzerland. It is expected that approximately 4,450 accounts will be provided to the SFTA in response to this treaty request.

The tax treaty referenced can be retrieved from the USTREATIES database with the search, CTR(SWITZERLAND) & TE(TAX /3 FRAUD!)

Today June 8th, the lower house of Switzerland, the National Council, voted against the deal, 104 against to 76 in favor, after the Council’s demanded amendments were refused. Sixteen lawmakers abstained. The Council did vote to send the measure to a referendum if necessary. The Council of State, the upper house, last week voted in favor of the deal and against a referendum. The two houses will begin Wednesday to try to reconcile their differences. They have until June 18 to reach agreement before the end of the parliamentary session. The deadline for UBS to hand over client data in the action is August 2010.

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Considerable interest has been shown lately for the American Recovery and Reinvestment Act.  If you did not know the Public Law number (U.S.-P.L. 111-5), you can find the Act using the USCA Popular Name Table on Westlaw.  The database is USCA-POP and the search is ti(“AMERICAN RECOVERY AND REINVESTMENT ACT”).  The list of initial sections of the law that appears is only those sections newly enacted by that Public Law. As is stated at the bottom of the list, for all sections affected by the particular Public Law,” see Pub.L. [Sec. Number] in the USCA-TABLES database and the enacting credit set out below.”

What happens if the section of Public Law 111-5 does not appear on these lists?  You can run a search in the USCA database with the important terms of the section to see if those terms appear anywhere in the United States Code.  What happens when some of the sections of this Public Law are not codified in the United States Code?

“Though the appearance of a provision in the current edition of the United States Code is “prima facie” evidence that the provision has the force of law, 1 U.S.C. § 204(a), it is the Statutes at Large that provides the “legal evidence of laws,” § 112, and despite its omission from the Code section …. remains on the books if the Statutes at Large so dictates. FN3 Cf. United States v. Welden, 377 U.S. 95, 98, n. 4, 84 S.Ct. 1082, 1085, n. 4, 12 L.Ed.2d 152 (1964); Stephan v. United States, 319 U.S. 423, 426, 63 S.Ct. 1135, 1135-1136, 87 L.Ed. 1490 (1943) ( per curiam ).”