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Legal Perspective on Seattle Products and Companies.

Seattle Light Rail: Public Nuisance or Cure to Climate Change? Brought to you by

If you take a tour through Seattle, you are bound to encounter colorful signs posted in neighborhoods opposing development of the Seattle light rail.  Opponents suggest that the light rail would lead to a degradation of neighborhood quality.  They may be right.  A public nuisance is defined generally as an unreasonable interference in another’s right to use and enjoy property.  A public nuisance (one affecting a large group of residents) creates liability for the City of Seattle. 

For the past 10 years, Attorney General Rob McKenna has as evolved into an active opponent of the light rail. 

However, the Light Rail promises to bring Seattle up to speed with the rest of the nation in terms of mass transportation, reduce green house gases, dependence on oil, and create tax credits.  (Currently, many of these tax credits are being funneled into renewable energy sources such as solar and wind power). 

Reduction of green house gases (GHG’s) may even be a state imperative. 

Eco Law Group has brought us up to speed.  In a more novel approach to the climate change issue, various groups have commenced lawsuits seeking to use the common law of public nuisance to compel companies to reduce their GHG emissions. After several initial failures, plaintiffs convinced two different federal courts of appeal to allow their GHG-based public nuisance claims to proceed in the face of arguments that the cases raised nonjusticiable political questions and must therefore be dismissed. In State of Connecticut v. American Electric Power Co., 582 F.3d 309 (2d Cir. 2009), the plaintiffs—a group consisting of several states and the City of New York—alleged that GHG emissions from power plants owned by the defendant companies pose a threat to the general public and therefore constitute a public nuisance. The suit sought to hold the defendants jointly and severally liable for contributing to a public nuisance and requested an injunction requiring each of the defendants to abate the nuisance by instituting a declining emission cap. The district court granted defendants’ motion to dismiss the case, concluding that the complaint raised nonjusticiable political questions that were beyond the limits of the court’s jurisdiction. The Court of Appeals for the Second Circuit reversed and remanded the case back to the district court after finding that the facts did not differ significantly from other complex public nuisance cases decided in the past and that judicial resolution would not contradict prior decisions made by the other branches of government.

A few months later, the more conservative Court of Appeals for the Fifth Circuit reached a similar conclusion in Comer v. Murphy Oil USA, 585 F.3d 855 (2009), reh’g en banc granted, 598 F.3d 208 (5th Cir. 2010). The plaintiffs in that case filed a class action against a group of energy, fossil fuel, and chemical companies alleging that GHG emissions from their facilities contributed to global warming which, in turn, caused a rise in sea levels that contributed to the damage to their property caused by Hurricane Katrina. As an initial matter, the court concluded that plaintiffs’ claims easily satisfied Mississippi’s liberal standing requirements. The court went on to find that the public nuisance, trespass and negligence claims raised by plaintiffs did not present any specific question that was exclusively committed by law to the legislative or executive branch. According to the court,

There is no federal constitutional or statutory provision making such a commitment, and the defendants do not point to any provision that has that effect. The most that the defendants legitimately could argue is that in the future Congress may enact laws, or federal agencies may adopt regulations, so as to comprehensively govern greenhouse gas emissions and that such laws or regulations might preempt certain aspects of state common law tort claims.

Id. at 870. In so holding, the court effectively authorized climate change-related nuisance and trespass claims against major GHG emitters by private property owners seeking damages. Assuming the decision is not reversed, the success of the plaintiffs’ case will likely depend on whether they can establish a sufficient causal link between defendants’ actions (emitting greenhouse gases) and plaintiffs’ harm (property damage from Hurricane Katrina).

A California district court faced with similar allegations that defendants’ GHG emissions gave rise to a cause of action for public nuisance reached a different result in a pair of recent cases. In the first case, the State of California sued several leading automakers in federal court, alleging that carbon dioxide emissions from vehicles manufactured by the defendants created a public nuisance in violation of federal common law and the California Civil Code relating to public nuisance. The court in California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007) dismissed the case after concluding that it raised a nonjusticiable political question.

 Although the light rail does not promise to ultimately change the current hot weather we are having, it does have a positive effect on reduction of GHGs and correlative effect on neighborhood conditions.


Getting to Know Your Seattle Products Liabilty Statute

Do you know if your company is considered a “manufacturer” under the Washington Products Liability Act?  Or to what extent you are liable for product defects or defective design?  Here’s a rough and dirty primer to our complex statute.

In general, the Act covers injuries to people or property resulting from products that are not reasonably safe.  The Act defines a “product” as virtually everything new.  “New” is a term of art and is meant to exclude those occasional re-sellers or used car guys.  The product must also be of value and capable of delivery in e-commerce, so MTV virtual currency or Facebook Gifts are out.

Then, the act divides the world into “manufacturers” and “non-manufacturers.”  Manufacturers are defined as anyone who takes part in the assembly process in any manner exceeding “minor” assembly.  However, if you hold out manufacturing under your own label (think: Safeway Select), provide plans/specs to a manufacturer, or are what’s called an integrated company (Nike Town), you are considered a manufacturer notwithstanding no or minor assembly.  Also, if there is no solvent manufacturer within Washington’s reach, you may be liable as a manufacturer.

There are three kids of liability involved.  First, if your product involves an unreasonably safe product defect which injurers a person or property, you are strictly liable.  Second, you may be liable under breach of warranty theories, or failing to provide adequate instruction materials.  Third, you may be liable under the negligence theory for defective designs.  The key here is whether there is a reasonable alternative design — i.e., no barbed wire around your pacifier.

If you get into trouble here are your defenses:  First, if you are in compliance with a government contract, you’re good.  Second, products on the shelf longer the 12 years are out.  Third, there is a 3 year Statute of Limitations on claims.  Finally, all the general negligence defenses such as assumption of risk are available.  So, if Timmy injures himself on your basketball hoop, it may help to remind him that he’s not Shaq. 

That’s it!  Go forth and make products!

Unpaid Internships: Is your Intern Considered an Employee?

Often, companies can save money and provide valuable resources to the community by initiating an intership program.  Generally, the idea is the intern gets marketable experience and the company gets some cheap labor.  As a previous intern, I learned the ropes the hard way.  No pay, but long hours and lots of paper cuts.  I remember staying up until midnight reviewing trademarks for a domain reseller.  Taught me so much about the law.  Since the beginning of the recessions, slave labor is on the rise rise.  However, the workman’s intership seems to be a thing of the past:  

Convinced that many unpaid internships violate minimum wage laws, officials in Oregon, California and other states have begun investigations and fined employers. Last year, M. Patricia Smith, then New York’s labor commissioner, ordered investigations into several firms’ internships. Now, as the federal Labor Department’s top law enforcement official, she and the wage and hour division are stepping up enforcement nationwide.  


Crap.  No more internships?  Well, not exactly.  There are new federal guidelines to keep in mind as your are hiring an unpaid intern.  The gist here is a six factor test to determine if that kid doing all your filing is merely a trainee or a bona fide employee who deserves wages and various other coddling. Read more…

Sweepstakes Law Primer

If you’re like us at Consumer SEA, then you purchased a countdown clock last year, anticipating the beginning of the McDonald’s Monopoly game.  Getting free stuff, like cars and boats is cool.  Having the chance win those cool things while eating a burger is also cool.  Sweepstakes also promote business and generate good advertisement.  However, if you’re thinking of starting a sweepstakes, you should be careful you’re not considered a lottery under federal law. 

The U.S. has strict laws barring private lotteries. A lottery is a promotion that has three elements:

  1. Prizes
  2. Winners Chosen by Chance
  3. Consideration Read more…

Greener Vineyards: Washington Wine gets on the Eco-Bandwagon

What kind of wine would you like to drink?  One that involves “an ecological production management system that promotes and enhances biodiversity, biological cycles and soil biological activity[,]” or Boone’s Farm?  Yes, organic wines have taken center stage lately as the green trend runs strong.  Although organic vinters have yet to provide a “jug” format for their wine, they have managed to succeed despite a typical 5% extra-overhead due to the certification process. 

If you want your wine to be “Organic” you have two choices.  You could adapt to green practices on your vineyard or buy grapes from vineyards that have adapted such practices.  Either way, you will have to jump through a few certification hoops. 

Organic products in the United States are regulated by the USDA.  Products labeled as “organic” must be certified according to standards for ingredients and production set by the National Organic Standards Board (NOSB) and administered by the National Organic Program (NOP) within the USDA. Organic foods and beverages are produced without using the following: most conventional pesticides, fertilizers made with synthetic ingredients or sewage sludge, bioengineering or ionizing radiation.  The term “organic wine” can be used only when 100 percent of the grapes are certified organic and where no sulfites are added. Read more…

Amazon’s Insistence on Low Prices May Hurt Sales

Last year, I had a conversation with a lawyer for Amazon.  He was all smiles.  The biggest problem he had (outside of warehouse workers falling asleep on the job) was dealing with an advertisement that pictured the Kindle in a Ziploc bag while a woman was reading in her bathtub.  I think he said something along the lines of, “we’re really promoting some shocking reading!”  Yeah, and also some interesting lawsuits.

Now, the shock is coming from publishers.  The Seattle Times  reports:

 Publishers have complained that it is an attempt to get consumers used to unsustainably low prices.

Read more…

Auto Financing Laws give Consumers NADA

You’ve probably heard some of the consumer woes recently regarding auto financing.  If you haven’t, here’s a good example:

Bob and Mary, recently married, decided to purchase a new vehilce.  Bob serves in the military.  They found a great car, but don’t have enough cash in the bank or assets in trade in to meet the sticker price.  Like most consumers, Bob and Mary decide to finance the purchase of the new car.  They trade in their current car to offset some of the price and take the remaining out in a loan payable in fully amortized monthly installments, with an APR of about 3.9%. 

If they default, the dealer has all of the cards.  Further, the dealer is under no fiduciary obligation to Bob and Mary.  Accordingly, when he says “you’re approved!” and you really are not, there is no specific relief to the consumer.  Instead he can ask you to make payments to him personally.  If you do not, then you default, and remember who has all the cards in that scenario… that’s right, the dealer.  Read more…