The #MeToo Movement and Arbitration Clauses

By Ayesha N. Khan, Guest Contributor[i]

Unless you have been living under a rock, you know that the #MeToo movement has seized the cultural zeitgeist. Thousands of women have come forward to tell their stories and many powerful people have lost their positions on the heels of serious accusations. The entertainment industry, the political sphere, corporate boardrooms, and the judiciary have all been affected.

One corporation that has felt the heat is the ridesharing company Uber. After employee Susan Fowler sparked an uproar with allegations of sexual harassment and gender discrimination, an internal investigation led to more than 200 employee complaints and 20 terminations. Fowler will presumably sue Uber, but it remains to be seen whether she will join forces with others in doing so because, like many employers, Uber requires employees to sign a contract that commits them to resolving disputes through private, individual arbitration.

In a trio of consolidated cases – Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP v. Morris, No. 16-300; and NLRB v. Murphy Oil USA, Inc., No. 16-307 – the U.S. Supreme Court is poised to address whether provisions like the one in Fowler’s employment contract will be given effect. The decision may have a greater impact on businesses and their employees than any other decision this term. Read More…

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Strong Cert Candidate in the Supreme Court, May Counsel Delay in Pending Juvenile “Equivalent to Life” Sentences in States like Maryland.

By Michael Wein

The United States Supreme Court has before it, a case out of the Supreme Court of Missouri, Bostic v. Dunbar, that may affect similar pending cases in state and federal courts.  This includes the case in the Maryland Court of Appeals of Matthew McCullough v. Maryland, which had oral arguments in February.  Read More…

April 2018 Maryland Certiorari Grants

The Maryland Court of Appeals granted five writs of certiorari today:

Rodney Lee Agnew v. State of Maryland – Case No. 9, September Term, 2018
(Unreported CSA Opinion by Graeff, J.)

Issues – Criminal Law –Was a recorded communication on a cell phone between Petitioner and an unidentified speaker intercepted in violation of the Md. Wiretap Statute and erroneously admitted at trial when there was no enumerated exception for its admissibility?
Read More…

Free to leave? Maryland courts should rethink how they determine whether a car’s occupants are seized under the Fourth Amendment

By Sam Cowin and Eleanor Erney
Guest Contributors[1]

Suppose you’re sitting in a parked car, waiting for a friend on the street outside her house, when a uniformed police officer suddenly parks behind you, approaches your car on foot, and starts to question you. If you’re like us, your heart would be in your stomach before the police officer even reached your car, and you certainly wouldn’t think that driving away from the scene in the middle of the questioning was an option. The empirical evidence suggests we are not alone: In a 2009 survey, for example, most people (regardless of gender, age, or race) responded that they would not feel free to leave if they were approached and questioned by a police officer on the street.[2] Tellingly, a number of survey respondents who knew they had a right to leave a police encounter nevertheless reported that they would not feel free to exercise that right.[3]

Yet in determining whether the police seized a person in her parked car (therefore entitling that person to Fourth Amendment protection), the Maryland courts continue to operate in a fictional world in which people ordinarily feel free to drive away when a uniformed police officer unexpectedly approaches and questions them. Read More…

Adnan Syed entitled to new trial, Court of Special Appeals affirms. What’s next?

By Steve Klepper (Twitter: @MDAppeal)[*]

The Court of Special Appeals of Maryland has issued its decision in Adnan Syed v. State of Maryland. The opinion, affirming that Syed is entitled to a new trial, is available here.

So what’s next? Read More…

Judicial Impartiality Can Be Difficult to Maintain

By Karen Federman Henry

Many litigators have experienced those situations where a judge becomes interested in the case and asks a witness a follow-up question.  It goes with the territory, right?  So what about when a judge reopens your case instead of outright dismissing it?  The Court of Special Appeals has an answer—the judge needs to be cautious when doing so or risk crossing the line of impartiality.  See Payton v. State, CSA No. 2115, Sept. Term, 2016 (February 1, 2018).

Read More…

March 2018 Maryland Certiorari Grants

Yesterday, the Court of Appeals granted six writs of certiorari – all for the September 2018 Term – including Frederick and Carroll Counties’ separate challenges to state regulation of stormwater runoff collection, the impact of technical difficulties in a correctional officer’s termination hearing, and whether a medical prescription is inadmissible hearsay when offered as a defense to the possession of controlled dangerous substances offense. Read More…

It’s OK; the trial judge knew what defense counsel meant – Watts v. State

By J. Bradford McCullough

A Maryland appellate court will ordinarily entertain a challenge concerning a jury instruction only if counsel objected promptly after the trial judge instructed the jury, clearly stating the grounds for the objection. Requiring counsel to make a prompt and clear objection gives the trial judge an opportunity to consider the objection and make any changes he or she deems necessary. But what happens when trial counsel makes an imprecise objection, which is followed by a quick discussion that indicates that the trial judge understands the objection and the point trial counsel is trying to make? That was the situation facing the Court of Appeals in Watts v. State, No. 17, Sept. Term 2017 (February 20, 2018). Read More…

Fourth Circuit resolves nuts-and-bolts questions of removal jurisdiction

By Steve Klepper (Twitter: @MDAppeal)

Practice in the Fourth Circuit means that you often rely on persuasive authority on questions where, in other Circuits, you might expect to find on-point precedent. By local rule, the Fourth Circuit only issues reported opinions in cases where it hears oral argument. It hears oral argument at one of the lowest rates in the country. And, even when it does hear argument, it might still issue unreported opinions in cases that outsiders might think worthy of publication.

I was pleasantly surprised, therefore, to see the Fourth Circuit issue the first precedential appellate opinion in the country on an issue that I frequently encounter.[*] Read More…

Supreme Court Circuit Split Watch – Fourth Circuit’s Decision in Kumar v. Sudan, on Proper Service of Foreign States in the U.S.

By Michael Wein

 

The Fourth Circuit Court of Appeals three weeks ago issued a reported opinion in Kumar et al. v. Sudan, addressing how and where a foreign country may be served under 28 U.S.C. § 1608(a)(3), which allows, in pertinent part, service by mail “requiring a signed receipt[] to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state.” This case traces to the U.S.S. Cole bombing in 2000, when 17 Navy sailors lost their lives in a terrorism act against the servicemen and women docked in Yemen.   While al Qaeda claimed responsibility as the source of the bombing, Sudan’s material support for the terrorist organization, was a focus of civil suits holding the country responsible in the tragedy.   As Sudan similarly did in the face of civil suits filed in the District Court for the District of Columbia, (tracing to the 1998 Embassy Bombings in Tanzania and Kenya also by al Qaeda), Sudan felt that the proper response was apparently to not respond at all.[i] Read More…