Resurrecting (and Modernizing) the
Research Treasure Hunt
Materials Gathered for the
2014 Biennial LWI Conference
Nancy Vettorello
University of Michigan Law School
vettorel@umich.edu
Notes
 Some of these problems were less successful than others, and I’ve made notes where
I think the question was less than ideal. The answers provided here are pretty basic,
and were supplemented by short discussions in class about the resources used.
Thus, the answers do not include a complete discussion of how to use the resource or
where to find it – just a quick summary/recap. I found this more valuable than
providing an answer that ended up looking a lot like a research guide. The students
preferred the debriefing, asking questions, and sharing their techniques.
 I posted these answers in a site that only my students can access, so if you decide to
use your own versions of these problems, it would be great if you could do the same.
 If you would like an electronic version of these problems & answers, please email me
at vettorel@umich.edu and I’ll send the document. I’m also making them available
through the LWI conference website.
Select Readings on Email Communication Provided to Students
Stephen V. Armstrong & Timothy P. Terrell. Thinking Like a Lawyer, Third Edition
(Practising Law Institute 2008). See Chapter 14.
Coughlin, Rockland and Patrick. A Lawyer Writes: A Practical Guide to Legal Analysis
(Carolina Academic Press 2008). See Chapter 17.
Kristin J. Hazelwood, E-Mails to Clients: Avoiding Missteps, November 2012 Bench & Bar
30-31 (2012).
Wayne Scheiss, Email Like a Lawyer, September 2010 Michigan Bar Journal 48-51 (2010).
Tracy Turner, Email Etiquette in the Business World, 18(1) Perspectives: Teaching Legal
Research and Writing 18 (Fall 2009).
Research Problem #1 - Contracts
Welcome to The Firm. I have every confidence that you’ll be more successful than your
predecessor who, despite what you may have heard, departed under circumstances that
weren’t all that suspicious. Not really. Anyway, I have some research I need you to do.
A while back a client of ours, Derek Sinacori, inherited a small parcel of farm land near
Midland, Michigan. He didn’t plan to use it, but he also didn’t want to sell it, so he leased it
to Jocelyn Freeman, who used it to grow organic fruits and vegetables for her restaurant.
Derek and Jocelyn agreed to a lease price of $1350 per month, for a two year period, and
executed a “napkin” agreement (literally, they wrote out the terms on a napkin at Jocelyn’s
restaurant and signed it). The lease payments were sent direct deposit to a college fund for
Derek’s oldest child. The first month, Jocelyn sent a check for $1450, the amount to which
she had thought they agreed. She continued doing so for the next 18 months. However,
when she came across the napkin contract last week, she called Derek demanding the
return of the $1800.
I want you to figure out whether Derek is likely to have to pay. Focus only on Michigan law,
and assume that no statutory provisions apply.
I need the answers by Tuesday, November 26 at midnight. Email me what you find (as well
as a brief explanation of how you found it). Use the subject line “Research Problem #1.”
Best,
Partner
Blackheart, Sharkscream, Dixon & The Devil, LLP
N.B.: This problem tied-in with the students’ Contracts class and the material (mistake)
they were covering at the time.
If I use it again, I’ll eliminate the reference to a napkin. I included that only to show how
Jocelyn might have forgotten the correct rental terms, but the students spent a lot of time
trying to figure out what the napkin meant, while my intention was to have them research
the unilateral mistake. The result was that this problem took the students more than the
60-90 minutes for which I had planned.
Research Problem #1: Answer
Possible Answer/Method
For the Napkin portion (which you might have looked into):
1. In Westlaw I went to "state materials" then "Michigan" then "Michigan Civil
Jurisprudence" then "Contracts."
2. I searched around in the Michigan Civil Jurisprudence until I found 5A Mich. Civ. Jur.
Contracts § 7 (Instruments of Contract; Writing).
3. From browsing the cases in that treatise, I hit on the Michigan Supreme Court case
Forge v. Smith, 458 Mich. 198 (1998), which then led me to Mich. Comp. Laws Ann. §
566.108 "Michigan Statute of Frauds; contract for interest in lands other than one year
lease; sales at auction."
4. I looked in the "Notes of Decision" for the statute. From there, I got a whole score of
cases which, while never addressing napkin agreements specifically, made it clear that
an informal contract like the napkin agreement is probably going to be upheld.
For the Overpayment portion (which you had to look into):
1. Same thing, I went to "State materials" then "Michigan" then "Michigan civil
jurisprudence" then "contracts."
2. I searched in the treatise for "mistake."
3. I found § 256 entitled "Money Paid on Transaction Based on Fraud or Mistake."
4. I patted myself on the back, feeling proud, certain my research was near an end. “What
will I do with all this free time,” I wondered. “Take up racquetball, maybe? What is
racquetball? Is it the same as squash? Can’t be…”
5. BUT WAIT! Apparently this section of the Michigan Civil Jurisprudence hasn't been
updated (despite what Westlaw says) since 1896, and the two cases it provided were
alright, but over 100 years old and not widely cited. I shepardized them into a dead end.
6. So...back to square one.
7. I decided to do some searching. I went to Westlaw’s advanced search function and
looked for docs containing all of "contract," "overpay," and "mistake."
8. I narrowed those results to Michigan state cases only.
9. I frowned, unhappy with the results I got.
10. I changed my search to cases containing all of "contract" "mistake" and "overpa!" [using
the ! meant that westlaw would look for every word starting with "overpa" such as
"overpaid," "overpayment," "overpays," etc. .... big time saver vs. searching for word
variations].
11. I narrowed the results to Michigan state courts.
12. The top result was a Michigan Supreme Court case called Gen. Motors Corp. v. Enter.
Heat & Power Co., 350 Mich. 176 (1957). That case had the line "The payer's failure to
exercise ordinary care to avoid mistakes will not defeat his right to recover money paid
under mistake of facts, in absence of change of condition upon part of payee." Solid. It
didn't seem likely to me that there was much of a detrimental reliance on the
overpayment in the facts provided, but I would have flagged it in a response anyway
(many of you did).
13. From scanning the case, I noticed that the court affirmed the lower court's award of
"$9,465 plus interest," which I figured likely took care of any question of whether
interest could be awarded. [don't worry, almost no one looked into the "interest" issue].
14. Because the case is kind of old, I looked at the “citing references” and found a few more
good ones (there were plenty, personally, I like Wilson v. Newman, 463 Mich. 435
(2000)).
15. From looking at the secondary sources that cited to the Gen Motors case, I noticed that
the treatise "Michigan Pleading and Practice" cited it in "§ 42:156. Recovery of amounts
paid."
16. ** From glancing at that source, I realized that if I'd looked in Michigan Pleading and
Practice after Michigan Civil Jurisprudence earlier, I would have been done a while ago.
It was clearly updated as recently as 2012, and pretty much addressed exactly what I
wanted.
17. I said “huh,” and decided that the next time I search for something under Michigan
Law, I'd look in Michigan Pleading and Practice.
Research Problem # 2 - Civil Procedure
Welcome to The Firm. We’re all excited to have you on the Blackheart, Sharkscream, Dixon
& The Devil, LLP team. The Devil, in particular, has been singing your praises since the
interview. Ready to get started?
We’re currently repping GloboChem, Inc. in a dispute before the Eastern District Court of
Michigan. The case involves several claims by former GloboChem employees brought under
the Fair Labor Standards Act (FLSA), over which the district court exercised federal
question jurisdiction, as well as some related state-law ‘breach of contract’ claims, over
which the district court exercised supplemental jurisdiction. We’ve managed to get the
court to dismiss all the FLSA claims, but the judge is asking for additional briefing on
whether to dismiss the state-law claims. We’d like to get those state-law claims removed to
state court. I know that under 28 U.S.C. § 1367(c)(3), the court can decline to exercise
supplemental jurisdiction if the “court has dismissed all claims over which it had original
jurisdiction.” But:
1) What is the likelihood that it will?
a. See if you can find me some good Supreme Court language suggesting that it
should dismiss the state-law claims.
2) What factors will the court consider in determining whether to retain jurisdiction
over the state-law claims?
a. Again, I want language from the Supreme Court.
3) If the district court does retain jurisdiction, and we appeal that decision, what’s the
standard of review?
4) Finally, can you find me a case in which the 6th Circuit Court of Appeals overturned
a district court’s decision to retain jurisdiction?
I need the answers by Tuesday, November 26 at midnight. Email me what you find (as well
as a brief explanation of how you found it). Use the subject line “Research Problem #2.”
Best,
Partner
Blackheart, Sharkscream, Dixon & The Devil, LLP
N.B.: This problem tied-in with the students’ Civil Procedure class and the material
(supplemental jurisdiction) they were covering at the time the problem was assigned.
Research Problem #2: Answer
The following describes one possible way of finding answers to the supplemental
jurisdiction question. It is by no means the only way.
If the topic is unfamiliar, consult secondary material (the topic is almost always unfamiliar
for your first few years of practice). For this particular problem, 1 Fed. Proc., L. Ed. § 1:42
or 32A Am Jur 2d Federal Courts § 617 were on point. If you started there, you were ahead
of the game.
For Question 1 (likelihood that federal court will decline to exercise supplementary
jurisdiction)
1)
2)
3)
4)
5)
Scanning the secondary materials, I see that courts have discussed when it is proper
to decline to exercise supplementary jurisdiction.
By referring to the cases cited in the footnotes contained in these summaries, I found
case law that is on point.
By in turn referring to these cases, I see that they all cite to certain Supreme Court
cases. Because the Supreme Court is the court that has final say on federal statutes,
it would be best to find language from it on when supplementary jurisdiction is
properly declined.
The oldest of these Supreme Court cases is United Mine Workers of Am. v. Gibbs,
383 U.S. 715 (1966).
Thanks to the linking feature found in both Lexis and West, by clicking on the
pincite to Gibbs I am taken directly to the relevant language in Gibbs, which reads
as follows: “[R]ecognition of a federal court's wide latitude to decide ancillary
questions of state law does not imply that it must tolerate a litigant's effort to
impose upon it what is in effect only a state law case. Once it appears that a state
claim constitutes the real body of a case, to which the federal claim is only an
appendage, the state claim may fairly be dismissed.”
For Question 2 (what factors will the court consider in determining whether to retain
jurisdiction over the state-law claims)
1)
2)
3)
4)
5)
Scanning the secondary materials, I see that courts have discussed what factors to
consider when determining whether to retain jurisdiction over state law claims.
By referring to the (primarily lower court) cases cited in the footnotes contained in
these summaries, I can then find case law that is on point.
By in turn referring to these cases, I see that they all cite to certain Supreme Court
cases. Because the Supreme Court is the court that has final say on federal statutes,
it would be best to find language from it on what factors to consider in determining
whether to retain jurisdiction over the state-law claims.
By referring to these cases, I see that the Supreme Court cases that is the source of
the ultimate relevant language (other than the statute itself) is City of Chicago v.
Int'l Coll. of Surgeons, 522 U.S. 156 (1997). Tip offs from opinions that a case is
important included language like the following: “(quoting City of Chicago v. Int'l
Coll. of Surgeons, 522 U.S. 156, 173, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997))”
Thanks to the linking feature found in both Lexis and West, by clicking on the
pincite to Int’l Coll. I am taken directly to the relevant language in Int’l Coll., which
reads as follows: “The supplemental jurisdiction statute codifies these principles.
After establishing that supplemental jurisdiction encompasses ‘other claims’ in the
same case or controversy as a claim within the district courts' original jurisdiction, §
1367(a), the statute confirms the discretionary nature of supplemental jurisdiction
by enumerating the circumstances in which district courts can refuse its exercise: ‘(c)
The district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if— ‘(1) the claim raises a novel or complex issue of State law,
‘(2) the claim substantially predominates over the claim or claims over which the
district court has original jurisdiction, ‘(3) the district court has dismissed all claims
over which it has original jurisdiction, or ‘(4) in exceptional circumstances, there are
other compelling reasons for declining jurisdiction.’ 28 U.S.C. § 1367(c) Depending
on a host of factors, then—including the circumstances of the particular case, the
nature of the state law claims, the character of the governing state law, and the
relationship between the state and federal claims—district courts may decline to
exercise jurisdiction over supplemental state law claims. The statute thereby reflects
the understanding that, when deciding whether to exercise supplemental
jurisdiction, ‘a federal court should consider and weigh in each case, and at every
stage of the litigation, the values of judicial economy, convenience, fairness, and
comity.’”
For Question 3 (standard of review on appeal of district court’s decision to If the district
court does retain jurisdiction, and we appeal that decision, what’s the standard of review)
1)
2)
3)
4)
In the course of researching the two questions above, it becomes clear that the
exercise of supplemental jurisdiction is discretionary. This is confirmed by the
secondary sources.
Looking into the lower court cases that are cited for the proposition that exercise of
supplementary jurisdiction is discretionary (whether this proposition was made in a
court opinion or in the secondary source), it appears that they all refer to certain
Supreme Court cases.
Looking into these Supreme Court cases, one case that provides language that
specifically pertains to the standard of review on appeal for a decision to retain
jurisdiction is Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009). Again,
because it is the Supreme Court, it is best to rely on its language if possible when
making your argument.
The relevant language from Carlsbad Tech. states: “[T]he [district] court's exercise of
its discretion under § 1367(c) is not a jurisdictional matter. Thus, the court's
determination may be reviewed for abuse of discretion, but may not be raised at any
time as a jurisdictional defect.”
For Question 4 (6th Circuit Court of Appeals case that overturned a district court’s decision
to retain jurisdiction)
1)
2)
Began with Gibbs because it is the foundational case for this area of law.
From Gibbs, Keycite (when using West) to 6th Circuit cases that cited to Gibbs's
Headnote #13. This is done in the following way:
a.
Click “citing references” at the top of the page.
b.
Click “cases” on the left side of the page.
c.
Under the “jurisdiction” drop-down menu, select “6th Circuit Ct. App.”
d.
Under “Headnote topics,” click the “specify” button next to the grouping
labeled “federal courts.”
e.
f.
3)
Scrolling down to #13, I see that this Headnote contains the language from
Gibbs that was used to answer question 1 with. Because this language
talks about when a court may properly dismiss state law claims, 6th
Circuit cases that cite to this Headnote would be on point.
Click “apply filters”
A list is now populated of 6th Circuit cases that cite to Gibbs’s Headnote #13.
Musson Theatrical, Inc. v. Federal Exp. Corp. is the first case on that list. Looking to
the columns next to it, it is clear that the standard in Gibbs is discussed to West’s
highest level of depth. This merits clicking into the case and reading the summary at
the top of the case. From this summary, it is clear that the case is on point, and
therefore the task posed by this question has been completed.
Research Problem # 3 – Prison Regulations
Earlier today we got a call from a woman hiring us to represent her son, Pete Innocent, in
an IIED suit he’s bringing against the New York Department of Corrections’ prison guards
for making fun of his name. I need to meet with him to discuss the claim but, unfortunately,
his mother couldn’t give me any details about him beyond that he’s an inmate in a New
York prison; the two are estranged.
So, I need you to find out:
1)
2)
3)
4)
5)
6)
7)
8)
Where Pete is incarcerated (including the address).
The prison’s phone number.
Pete’s prisoner ID number.
The crime for which he’s currently incarcerated.
His earliest release date.
If there are restrictions on what days/times I can visit.
How much notice I need to give the prison to set up an attorney visit.
Whether I’m allowed to leave my business card with him.
I need the answers by Saturday, January 18 at midnight. Email me what you find (as well
as a brief explanation of how you found it). Use the subject line “Research Problem #3.”
Thanks,
Very Important Partner
Blackheart, Sharkscream, Dixon & The Devil, LLP
Research Problem # 3 - Answer
1)
2)
3)
4)
5)
6)
7)
8)
Prison Location
Green Haven Correctional Facility
594 New York 216, Stormville, NY 12582
Prison’s phone number
(845) 221-2711
Prisoner ID number
11A5195
Crime
2nd degree Murder
Earliest release date
11/26/2029
Visitation Restrictions
Attorneys can visit during normal visitation hours Monday through Friday, and may
be able to obtain special permission to visit on the weekends.
Less clear is when those visitation hours are. If you looked online you probably
found the hours listed as weekdays 7:30am-2:30pm or 7:30am-3:00pm depending on
what site/blog you looked on. If you called the prison, your answer varied based on
which guard you spoke with. Some guards said that visitors had to arrive before
11:30am, others said they only needed to be processed by 1:30pm. Still others said
that visitors could arrive as late as 2:30pm.
Notice?
24 hours preferred.
Business card?
Yes, although you might not be able to hand it to him directly.
Your search should have started with an inmate search on
http://nysdoccslookup.doccs.ny.gov/. I found this by googling some variation of “New York
prisoner search.” From there, you could find Mr. Innocent’s conviction information, as well
his place of incarceration.
Googling the prison name got you the prison address and phone number. Attorney
Visitation guidelines could be found under the tab “Directives” on the NY Dept. of
Corrections site (“Directive 4404”). Possible visitations hours could be found via a google
search on several blogs. The rules regarding business cards were contained in a document
called “Entrance to a Correctional Facility, Visitation, and Disciplinary Rules (Part 200,
Part 201, section 253.7, 254.7 and 1704.7 of 7NYCRR) under “Rules and Regulations” on
the site.
The shortcut (and best strategy) here, as several of you figured out, was just to call the
prison and ask. Although, as seen above, even that didn’t necessarily give you a clear
answer on all the questions (including those as basic as visitation hours).
N.B.: We didn’t realize that students were going to call the prison, but were very pleased
that they did. Fortunately, none used the name of the prisoner, who is necessarily a real
person. Next time we’ll make a note that the prisoner’s name should be kept confidential in
any communications that the students might make. This problem came directly from our
Innocence Clinic, where one of my former students was asked to gather this information
about a different prisoner.
Research Problem # 4 – Trademarks
I got a call yesterday from the inventor/actor, Jonathan Taylor Thomas Edison (“JTTE”),
retaining our firm to look into the practicability of registering one of his latest inventions
with the US Patent and Trademark Office. JTTE has “invented” a gigantic novelty alarm
clock; it has a hammer for its hour hand and a screwdriver for its minute hand. He wants to
market the clock as “Tool Time.”
Let me know how many word marks you find with the exact phrase “Tool Time” somewhere
in the name. Next, send me the Serial Numbers of any “Tool Time” marks you find that
seem similar to JTTE’s invention (clocks, watches, etc.) and, if any of those similar marks
are “live” (as in still active), I need to know who the mark’s owner is (if need be, we can try
to buy the mark from them).
I need the answers by Saturday, January 18 at midnight. Email me what you find (as well
as a brief explanation of how you found it). Use the subject line “Research Problem #4.”
Thanks,
Very Important Partner
Blackheart, Sharkscream, Dixon & The Devil, LLP
Research Problem # 4 - Answer
To find the United States Patent & Trademark Office (USPTO) trademark database, you
can Google search for some version of “U.S. Trademarks database.” While there are free
and paid search sites, the official government site is both free and the most reliable.1 On the
main page of the USPTO site, click on or highlight the “trademark” heading on the top left
of the page, select “trademark search,” and then “Basic Word Mark Search.” Note that the
site has a “how to.” Use it to save time and frustration!
Note that you can also search for patents by clicking on “search patents” at the top of the
page, and running a “quick search” (or an “advanced search” if you have several days to
kill). The patent search engine is extremely sensitive, however, so it’s difficult to find a
patent based solely on a description of the invention unless you speak engineering. It’s
generally best to come into a patent search knowing some additional details (e.g. the
inventor’s name, the attorney, etc.). Onto the questions!
Question #1: How many results for a word mark search of the exact phrase “Tool Time”?
I got a range of answers for this question. How many “hits” you got depended largely on
how narrowly you ran the search. If you just typed “Tool Time” into the search bar, you got
61 hits. If, under the “Results Must Contain” field, you narrowed results to “The Exact
Phrase” or just put the search term in quotes, you got 32 hits. If you further narrowed the
results to only the singular forms of the words, you got 28 hits. Doing the search differently
yielded different numbers, so searcher beware.
The number of hits you get off a word mark search can give you a quick indication of the
commonness or uniqueness of a name you want to register. And, tailoring the results as
appropriate can save you a lot of time reading product descriptions and give you better
results.
Question #2: What are the serial numbers of name marks of products similar to the novelty
alarm clock?
Gotta click through the results Here are the answers I liked. Some are more like JTTE’s
Tool Time clock than others: 78472529 78476301
74692854 74391513 76084481
75802856 74692854
Question #3: If any of the similar marks are still active, who is/are the owner/s?
The only similar live mark was 78472529. The registrant of the mark is Field & Stream
Licenses Company, but the current owner (or last listed owner) of the mark is CBL
BRANDING, LLC. You could figure it out based on the details page alone, but if you click
on the tab marked “TSDR” in the upper left of the screen, you can actually see the
ownership history (as well as a wealth of other information, including designs, filings, etc.).
E.g., Tradmarkia advertises free trademark searches, and did provide results when I used it. But can you
gauge the accuracy of the site?
1
One you can trust is Google Patent, https://support.google.com/faqs/answer/2539193?hl=en. Recent graduates
working in patent firms report using Google Patents regularly and preferring it over the USPTO database.
Research Problem # 5 – Administrative Rulemaking
We’ve just been hired by the corporation Bananaburton, far and away the largest (and most
ominous) banana-oil based energy company in Hawaii. Bananaburton has it on good
authority that the Department of Agriculture’s Animal and Plant Health Inspection Service
(or, hilariously, APHIS) is considering creating a regulation to remove certain restrictions
on the importation of bananas from the Philippines into Hawaii. As Bananaburton doesn’t
have any banana operations in the Philippines, it is, to say the least, displeased to learn of
this potential threat to its bananopoly.
Subsequently, Bananaburton wants us to do whatever we can to stop this new agency rule
from going into effect. As you know from having taken Legislation/Regulation (or,
alternatively, from having quickly scanned the section titled “The Rulemaking Process” on
this Wikipedia entry - http://en.wikipedia.org/wiki/Rulemaking), when a government
agency wants to create a new rule (or, as appropriate here, change an old rule) it is often
required to submit that proposed rule for public comment.
That’s where we come in. We’re going to draft and submit a comment criticizing this
proposed banana-importation deregulation. Best-case scenario, we might be able to
convince APHIS to abandon or significantly restructure the rule in Bananaburton’s favor.
Worst-case scenario, since agencies must address all of the public’s “vital comments,” if we
can come up with enough substantive objections, and APHIS fails to answer them all, we
might be able to appeal the rule in court. So, here’s what I need:
1)
2)
3)
4)
5)
If there is such a proposed rule, give me a brief overview of what it would do. What
restrictions, if any, would remain on the commercial import of Philippian bananas
into Hawaii?
What is the citation of the proposed rule?
What effect would the regulation have on the importation of Philippian bananas into
the continental United States?
When’s the deadline for us to submit a comment?
Is there a way for us to submit our comment electronically?
Research Problem #5 - Answer
Here, you could find the proposed regulation by searching the Federal Register,
https://www.federalregister.gov , or through the Federal eRulemaking Portal
“Regulations.gov,” http://www.regulations.gov . A quick search for “banana Philippines” on
either site brought the regulation right up. So, the specific answers here were:
1)
If there is such a proposed rule, give me a brief overview of what it would do.
There is a proposed rule. It would amend code provision 7 CFR 319.56-58 to allow the
importation of bananas from the Philippines into Hawaii, provided certain other health
guidelines are met.
There are several restrictions that would remain on the commercial import of Philippian
bananas into Hawaii. They include: monitoring of fruit flies to establish low-prevalence
places of production, harvesting only of hard green bananas, covering bananas with
pesticide bags during the harvesting season, and ensuring inspection for quarantine pests
by the national plant protection organization of the Philippines. The bananas would also
have to be accompanied by a phytosanitary certificate with a declaration stating that they
were grown, packed, inspected.
2)
What is the citation of the proposed rule? 79 FR 4410 (also fine to cite as 79 FR
4410-4414, which are the inclusive page numbers). If you wanted to get all Bluebook
about it, you’d go to R. 14.2 and cite as:
Importation of Fresh Bananas from the Philippines into Hawaii and U.S.
Territories, 79 Fed. Reg. 4410 (Jan. 28, 2014) (to be codified at 7 C.F.R. pt. 319).
3)
What effect would the regulation have on the importation of Philippian bananas into
the continental United States? No effect. Bananas may already be imported from
the Philippines into the continental United States under the "systems approach"
described in § 319.56-58.
4)
When’s the deadline for us to submit a comment?
March 31, 2014 (better hurry).
5)
Is there a way for us to submit our comment electronically?
You can submit electronically at
http://www.regulations.gov/#!documentDetail;D=APHIS-2013-0045-0001.
Unfortunately, no one took me up on submitting a comment on Regulations.gov. If
these new lax banana laws end up crashing the economy, I hope you know it’ll be
your collective fault.
Research Problem #6 – Legislative History
We’ve just been retained by Jai Alai International (JAI), a company that develops and runs
Jai alai arenas around the world -- don’t worry, I’d never heard of the sport either…
http://en.wikipedia.org/wiki/Jai_alai . JAI is considering starting Jai alai operations in
Florida, but has a few concerns it wants us to address first. Most importantly, JAI believes
that unless Jai alai spectators are permitted to gamble on the sport, it would be too difficult
to generate enough US interest in the game to make the venture viable.
My initial reaction was that they were out of luck: I know that under the Professional and
Amateur Sports Protection Act of 1992 (PASSP), sports gambling is illegal in the United
States except in Nevada, more or less. However, when I double-checked the statute’s text, I
was shocked to find that § 3704 contains an express exemption for Jai alai (the only other
sport expressly exempted is “parimutuel animal racing,” aka horse racing).
Here’s the thing: I have absolutely no idea why Congress exempted Jai alai from the sports
gambling prohibition, and, until I do, I’m not comfortable giving our client the green light to
start Jai alai gambling operations. So, I need you to check the Congressional Record
surrounding PASPA’s passage to see if you can figure out the legislators’ intent.
Email me what you find with the subject line “Research Problem #6,” and, so I know for
future reference, include the briefest description of how you found out each piece of
information.
Thanks,
Archduke
Blackheart, Sharkscream, Dixon & The Devil, LLP
Research Problem #6 - Answer
So, wow, great work everyone who submitted! Mediocre work, at best, everyone who didn’t!
All the answers I received hit the mark (and, if you were close, you got full points).
Basically, Congress felt Jai alai and horse racing, unlike more traditional American
‘wholesome’ sports, were played primarily for the purpose of gambling and, thus, didn’t
invoke the sort of “honest and competitive spirit” interests PASPA was designed to protect.
Congress also might have had an implicit concern that if Jai alai and horse racing weren’t
exempted, interest in the sports might decline to the point where they would no longer
exist.
To find that answer you had to look into the legislative history of the Act, namely, the
Congressional Record. Here, the relevant text was a statement by Senator DeConcini,
located in a debate transcript from October 7, 1992.
So, how to find that answer…there’s no one right method and I was delighted to find you all
used a wide variety of techniques. Here are a few of the better ways:
1.
The Library of Congress’ ‘Thomas’ search engine.
a.
b.
2.
Located at:
http://thomas.loc.gov/home/LegislativeData.php?&n=Record&c=111
There were plenty of ways to use this search engine to find the answer. The
easiest was probably to run a search for “PASPA,” “Jai alai,” or some
variation thereof after narrowing the search to the 102nd Congress (the
Congress that sat in 1992).
Proquest Congressional
Some people who asked a law librarian wound up here. You can access Proquest
Congressional by going to the UM Law Library website, clicking on “All EResources” on the far right bar, and then selecting “Proquest Congressional.” There,
if you searched for Jai Alai and restricted the results to the years 1991-1992 and
congressional record, you’d find the answer pretty quickly.
3.
HeinOnline
Similar to ProQuest Congressional. This, too, is available via the UM Law Library
website. You can click on HeinOnline on the far right section, then select “U.S.
Congressional Documents” then “Congressional Record” then “Search this Title” and
you're in business.
4.
Westlaw & Lexis.
These turned out to be the hardest way to find the answer and for future searches, I
suggest you stick to the three above. (Note that the Research Tips handout would
have directed you to the above sites – don’t forget about it!)
Research Problem # 7 – SEC Regulations
We’ve just been retained by a nutritional-supplement manufacturer named Herbalife Ltd.
(stock ticker HLF). Herbalife sort of stepped in it: they’ve been accused of engaging in
fraudulent business practices. Well, to be more specific, the entirety of their corporate
model has been called a massive pyramid scheme. A few weeks ago, the FTC announced it
had opened an investigation into Herbalife’s business -http://dealbook.nytimes.com/2014/03/12/herbalife-discloses-f-t-cinquiry/?_php=true&_type=blogs&_php=true&_type=blogs&_r=1
Wisely, they’ve dumped their old counsel and hired us.
It’s not clear yet whether Herbalife knew of the FTC’s investigation during the last fiscal
year. If they did, they probably should have disclosed that information to investors in their
last 10-K -- http://en.wikipedia.org/wiki/Form_10-K . Or, at the very least, they should have
included it in a subsequent 8-K Report -- http://en.wikipedia.org/wiki/Form_8-K . As you
know, under the Securities Act, publicly traded companies need to disclose material
information (like an FTC investigation) to shareholders.
So, here’s what I want you to do. Jump onto the SEC’s filing database, find Herbalife’s last
filed 10-K, and quickly see if they disclosed anything about the FTC’s current investigation.
If not, look to see if they made the disclosure in a subsequent 8-K.
I’d also like to know when the last 10-K was filed, what Herbalife reported its net income as
for the 2013 fiscal year, who its independent auditor is, and in what jurisdiction it is
incorporated.
Email answers me with the subject line “Research Answers #7,” and, so I know for future
reference, include the briefest description of how you found out each piece of information.
Thanks,
Prime Minister
Blackheart, Sharkscream, Dixon, & The Devil, LLP
Research Problem #7 – Answer
This problem required you to search the SEC’s filing database, “EDGAR.” EDGAR is a
poorly designed, often confusing online system that is nonetheless extraordinarily useful for
corporate legal research. Not only does it contain a nearly endless supply of information
about any public company’s financial, management, or legal history, it is also a handy tool
for finding template language for a wide variety of corporate documents you might need to
draft. And, with thousands of filings uploaded to the database every day, there are an awful
lot of templates to choose from.
You could have also used Bloomberg for this research, but while searching for “Herbalife”
did provide lots of company information, I found it slightly tougher to find the 10-K this
way. For example, from the page summarizing the company data, I hit “filings,” and
received 905 results. From there, you needed to use the content filters to get to the 10-K.
Not a big deal, but EDGAR is a bit more direct. Both sources show the exact same
document with the same ability to jump to different pieces of the document.
You can find the EDGAR site pretty easily by poking around on the SEC main page or just
through googling. It’s at http://www.sec.gov/index.htm. Next, I clicked on “company filings
search.” There, you can do search by “Company Name” or a “Fast Search” by using the
ticker symbol. I searched for the ticker symbol “HLF.” If you searched by company name,
you got plenty of results, so you needed to narrow to Herbalife Ltd. Next, you just needed to
scroll down and click on the most recently filed 10-K report.
Herbalife did not disclose the SEC’s investigation into their corporate model in the 10-K,
although there was mention of similar past actions. Within the 10-K, “Legal proceedings”
was the most obvious place to look. There, the 10-K referred the reader to Note 7 of the
Contingencies section, in Item 15 of the 10-K. Looking there revealed that the company
was from time to time subject to various product liability claims. Nothing there about an
investigation.
Rather, the pertinent information was found under “Risk Factors.” Looking there revealed
several pieces of information:
Herbalife disclosed that it is “at risk” of private party challenges to the legality of its
network marketing program, citing a recent case, Webster v. Omnitrition Int’l, Inc., 79 F.3d
776 (9th Cir. 1996), in which the company was charged with operating an illegal pyramid
scheme. But, Herbalife further stated "we believe that our network marketing program
satisfies federal and other applicable statutes and case law.” P. 20. It did not mention being
under a current FTC investigation.
Herbalife also disclosed that it has been named as a defendant in a purported class action
lawsuit filed April 8, 2013 in the U.S. District Court for the Central District of California
(Bostick v. Herbalife Int’l of America, Inc., et al) challenging the legality of its network
marketing program under various state and federal laws. Again, it did not explicitly
mention being under an FTC investigation. Note that this was buried at the end of the
paragraph that focused mainly on a challenge brought in Belguim courts, a challenge that
mostly worked out in Herbalife’s favor. Great way to bury a negative fact among more
positive ones.
I also looked at the recent 8-Ks to see if there was more there. The March 12th 8-K
included the following under Item 8.01, “Other Events”:
On March 12, 2014, Herbalife Ltd. issued a press release announcing that it had
received a Civil Investigative Demand from the Federal Trade Commission. A copy
of the press release is attached hereto as Exhibit 99.1 and is incorporated by
reference herein.
The press release itself did not contain detailed information. Here is the relevant part:
LOS ANGELES – March 12, 2014 – Herbalife (NYSE: HLF) announced it received
today a Civil Investigative Demand (CID) from the Federal Trade Commission
(FTC). In response, Herbalife issued the following statement:
Herbalife welcomes the inquiry given the tremendous amount of
misinformation in the marketplace, and will cooperate fully with the FTC.
We are confident that Herbalife is in compliance with all applicable laws and
regulations. Herbalife is a financially strong and successful company, having
created meaningful value for shareholders, significant opportunities for
distributors and positively impacted the lives and health of its consumers for
over 34 years.
Herbalife does not intend to make any additional comments regarding this matter
unless and until there are material developments.
Herbalife did not specify that it was its pyramid scheme/marketing structure that was
under investigation. A very lukewarm disclosure to say the least.
As for the remaining questions, found within the 10-K:
Herbalife is incorporated in the Cayman Islands; Herbalife's last 10-K was filed on
February 18, 2014; net annual income for the 2013 fiscal year: $527,525,000; independent
auditor: PricewaterhouseCoopers LLP.
N.B.: This was the most popular problem, with ½ of the class undergoing this research.
Research Problem # 8 – International Law
Earlier today, I got an irate call from one of our esteemed senior partners, Mermania
“Mimi” Blackheart. As you may have read, the International Olympic Committee is
considering rescinding boxer Ivan Drago’s silver medal based on information that he bet
against himself in the championship bout. Mr. Drago is, understandably, perturbed (and,
when perturbed, is frightening). He retained our services, and Ms. Blackheart was
traveling to Russia to meet with him.
Unfortunately, shortly after landing in Moscow, she learned that one of her suitcases had
been lost and, infuriated, attacked an airline employee. The lost suitcase, apparently,
contained Ms. Blackheart’s favorite legal pad, which she insists had a value of at least
$3,000. Turns out that a Chinese airline lost her luggage (she took the Chinese airline to
Beijing, where she transferred for her flight to Russia). Worse, because Ms. Blackheart was
temporarily detained by Russian authorities, she hasn’t had time to prepare for the
meeting. So here’s what I need from you:
1. First, see if the Olympic committee has promulgated any rules related to athlete
betting.
2. Next, figure out if there are any international laws related to lost airline luggage.
a.
What are they?
b.
Will Ms. Blackheart be able to obtain compensation for the full value of her
luggage? (She does not trust the airline to provide the proper information –
she wants to insure that she is not being robbed by the airline.)
Email me what you find with the subject line “Research Answers #8,” and, so I know for
future reference, include the briefest description of how you found out each piece of
information.
Thanks,
Shogun
Blackheart, Sharkscream, Dixon, & The Devil, LLP
Research Problem # 8 – Answer
Betting Rules
I started with the International Olympic Committee (IOC) website at
http://www.olympic.org/ioc. I poked around and found that the IOC is composed of several
Commissions, one of which is the Ethics Commission, which has adopted a Code of Ethics
(Code), the latest version being 2013. From there, I found the following:
Article A.5: All forms of participation in, or support for betting related to the Olympic
Games, and all forms of promotion of betting related to the Olympic Games are
prohibited.
Article A.6: Also, in the context of betting, participants in the Olympic Games must not,
by any manner whatsoever, infringe the principle of fair play, show unsporting conduct,
or attempt to influence the course or result of a competition, or any part thereof, in a
manner contrary to sporting ethics.
The use of the passive voice in A.5 really threw me, but Article A.1, 1.1 of the Implementing
Provision of the IOC Code of Ethics makes clear that the Code applies to all “participants,”
and defines participants as including the athletes.
Ms. Blackheart might also need the following, from 1.2 of the Implementing Provision:
Bet” means a wager of money or any other form of financial
speculation;
“Betting” means making, accepting, or laying a Bet and shall include,
without limitation, activities commonly referred to as sports betting such as fixed and
running odds, totalisator / toto games, live betting, betting exchange, spread betting and
other games offered by betting operators;
Additionally, there are Rules of Application of the Code. Article 3.1(1) of the Rules of
Application states that the prohibition against betting includes “Betting with another
Person on the result, progress, outcome, conduct or any other aspect of such an event or
Competition.”
Compensation for Lost Luggage
The relevant treaties regarding the luggage, which were readily found with a Google
search, were the Montreal Convention for the Unification of Certain Rules for International
Carriage by Air (Montreal Convention), adopted in 1999, and its predecessor, the Warsaw
Convention of 1929. While it is fine to use Google to find the treaties, you want to make
sure that you are looking at a reliable version of the treaty in question.
For a treaty in which the U.S. is a signator, you have several options. For a free and
reliable option, check “Treaties in Force,” which provides reliable texts of all treaties in
which the U.S. is a signator. It is found on the U.S. Dept. of State website,
http://www.state.gov/s/l/treaty/tif/index.htm. Westlaw also provides relevant text. Choose
“Administrative Decisions and Guidelines”; then “Federal Administrative Decisions and
Guidance”; then “Department of State.”
If the U.S. is not a signator, try the U.N. Treaty Collection, https://treaties.un.org/. Duke
Law School has a reliable guide on searching treatises, and it lists other reliable sources for
treaty text. It is found here: http://law.duke.edu/ilrt/treaties_1.htm.
China is a signator to the Montreal Convention. I found this information by going to the
official depositor of the Montreal Convention, the ICAO (International Civil Aviation
Organization), http://www.icao.int/Secretariat/Legal/Pages/TreatyCollection.aspx.
Article 22 of the Montreal Convention - Limits of Liability in Relation to Delay, Baggage
and Cargo – applies. That provides that “the liability of the carrier in the case of
destruction, loss, damage or delay is limited to 1000 Special Drawing Rights (SDR) for each
passenger” unless the passenger declared ahead of time that the luggage was worth more,
(assuming that did not happen here, but let’s advise Ms. Blackheart to do that for the
future).
However, note that the 1000 was increased in 2009, to 1,131. This increase was tough to
find, and you may not have thought to look for it, so no problem if you did not. Determining
if a treaty has been updated is notoriously difficult, and I suggest you consult a research
guide or librarian to do so. The best way to do so in through a paper index, typically not
online. But here, since the U.S. has also a signator to the agreement, there were two
relatively easy online options to see if there have been updates (often called protocols).
First, I checked the U.S. Department of Transportation website and searched “Montreal
Convention” on the site. I got an immediate hit, and discovered that in 2009, an inflation
adjustment was applied to various sections of the Montreal Convention:
http://www.dot.gov/individuals/air-consumer/inflation-adjustments-montreal-conventionliability-limits.
I also checked the Federal Register. Since the Register includes Presidential proclamations
and notices by administrative agencies (treaties are executive department documents that
are then ratified by the Senate), and found the same information there:
https://www.federalregister.gov/articles/2009/11/16/E9-27386/inflation-adjustments-toliability-limits-governed-by-the-montreal-convention-effective-december-30.
Back to the calculation of what Ms. Blackheart can receive: Article 23 of the Montreal
Convention covers the conversion of “Special Drawing Rights,” a term defined by the
International Monetary Fund (IMF), to U.S. currency. Kudos to those who made the
conversion. Using the revised 1313 SDR, I got $1,741.74 the day I used the site, but as it
changes daily, your amount was likely different (especially if you used the original 1000
SDR!).
N.B.: I probably would not use a treaty problem again, unless I find a problem that
requires that the students find a relatively recent treaty. The intricacies of finding an
update to the treaty were more complicated than I intended this problem to be, and no one
found it, because they did not know to look for it, let alone how. On the other hand, the
students who did do this research really enjoyed it, and were introduced to the complexity
of treaty research. We had a solid in-class discussion following this assignment.
Research Problem # 9 – Legal Ethics
It is not often that legal ethics questions come up here at Blackheart, Sharkscream, Dixon
& The Devil, LLP. I can only assume that’s because of our honesty. We’ve got a puzzler
now, though, and I need you to look into it.
One of our (now former) clients, Granger Thunkers, recently retained us to represent her in
a dispute with the clothing store Forever 21 for leading her to believe, falsely it seems, that
their clothing could indefinitely halt the ageing process. Because Ms. Thunkers has little to
no assets of her own, her mother, the wealthy baroness Basley Thunkers, covered the cost
of our considerable retainer fee. Unfortunately, and much to our surprise, it quickly became
clear that Granger had some unrealistic expectations about her case. For one thing, she was
insistent that we “bring capital murder charges” against the store and, despite our repeated
explanations that “murder charges” require both a murder and a prosecutor, she grew
frustrated at our reluctance. Ultimately, we were forced to withdraw.
But here’s the problem: Normally, upon withdrawal from representation, we return any
unused portion of our retainer fee. Here, though, it isn’t clear to me to whom that fee should
be returned. Granger Thunkers insists we give it to her, while her mother, Basley
Thunkers, argues that since she paid us the fee, she’s entitled to the return of the unused
portion. I don’t really care who we give it to; I’d just like to be done with the whole mess.
We need to get some authority to cover ourselves on this. Find me any applicable provisions
of the Model Rules of Professional Conduct, as well as any applicable ethics decisions and
rules in Maryland, California, and Washington (as it’s unclear at this point which state’s
ethics laws will apply).
Email me what you find with the subject line “Research Answers #9,” and, so I know for
future reference, include the briefest description of how you found out each piece of
information.
Best,
Space King
Blackheart, Sharkscream, Dixon, & The Devil, LLP
Research Problem #9 – Answer
The Model Rules of Professional Conduct (Rules) are easy enough to find:
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of
_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html.
Rule 1.16(d) provides that the money must be returned, but does not directly address the
problem of a third party payor:
Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as . . . refunding any
advance payment of fee or expense that has not been earned or incurred.
Several of you also noted that Rule 1.8(f) does not permit an attorney to accept
compensation from a person other than a client, except under certain circumstances. I’m
assuming we followed those rules in accepting Basley’s money to represent Granger, but it
is always a smart idea to bring this to the attention of the assigning attorney.
Finding the Rules by Researching Ethical Opinions
To figure out how the equivalent Rule plays out in the various states, I did a quick Google
search for “researching ethical opinions.” One of the first hits was to the Georgetown Law
guide, available at:
http://www.law.georgetown.edu/library/research/guides/legal_ethics.cfm.
That guide provides a direct link to a Bloomberg library entitled, “Lawyers' Manual on
Professional Conduct: State Ethics Opinions.” I started there because I figured that once I
found the relevant opinions, I could “back into” the applicable rules. I found quick
summaries of the California and Maryland opinions there.
California Formal Ethics Opinion 2013-187 provided:
Where a third-party pays the attorney’s fees for a client and there are funds
remaining after the representation is concluded, the attorney must return the
balance to the payor, rather than to the client, unless the agreements with the
client and the payor specify otherwise.
Maryland Ethics Opinion 01-06 (2000) provided:
A lawyer whose retainer has been paid by his client's mother may not, when the
client and the mother have a falling-out and the mother purports to fire the lawyer,
comply with the mother's demand for a refund of the retainer fee. The lawyer
having made clear to the mother that the client is the son, who is an adult, rather
than the mother, and no representations having been made to the mother that she
would retain any control over the case or the money, only the client himself can
terminate the lawyer's services. Rule 1.8(f).
The Bloomberg site did not have anything interesting for Washington.
Westlaw has a similarly useful file called, “Legal & Judicial Ethics & Disciplinary
Opinions,” which is divided by State. I also found nothing of interest for Washington
there, but did find the full California opinion there.
Searching by the Rule to Find the Opinion
So for Washington, I tried a different approach – finding the relevant rule first, and
then any applicable opinions.
On Westlaw, I found the Washington Rules of Professional Conduct, and looked at the
Notes of Decisions for several of the applicable rules. I found this reference under Rule
1.16, Declining or Terminating Representation:
Attorney's failure to refund unreasonable, unearned fees to client, and failure to
account to client and client's mother for the upfront payment made to represent
client at probation review hearing violated disciplinary rule requiring that an
attorney shall communicate in writing the basis or rate of his or her fee, and rule
requiring that an attorney shall take steps to protect a client's interests upon
termination of representation. In re Disciplinary Proceeding Against DeRuiz, 152
Wash. 2d 558, 575, 99 P.3d 881, 890 (2004).
Reading the case, it appears that the money should be refunded to the mom, who paid
for her son’s legal representation.
Finding the Rules and Opinions Using The State Bar Association Websites
The California Bar Website provides both the relevant rules,
http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules.aspx, and
select opinions: http://ethics.calbar.ca.gov/Ethics/Opinions.aspx, including the one
above. The full text of that opinion cited to the Maryland opinion as well, so you get
two for the money there.
Interestingly, the Maryland Rules are not available on the Maryland State Bar website.
The site instead provides a link to Lexis (with free limited use for the purpose of viewing
the rules), while the Maryland Court website refers the reader to Westlaw. I used Westlaw,
and to get to the Rules, followed this sequence: Maryland; Maryland Court Rules; Title 16.
Courts, Judges, and Attorneys; Chapter 800. Miscellaneous; Rule 16-812. The Maryland
Lawyers' Rules of Professional Conduct. Maryland Ethics opinions are on the Maryland
State Bar website, but access is limited to members only.
The Washington Bar Association has its Rules online. It also allows you to search its
Advisory Opinions, where I found another answer. Advisory Opinion 1575, from 1994,
provides the following:
You ask whether a non-client who has paid a retainer to a lawyer for the benefit of
a client, may obtain a refund of the unused portion of that retainer.
The Committee was of the opinion that the non-client, under the circumstances is
entitled to a refund because the money belongs to the non-client. RPC 1.14 requires
an attorney to promptly notify a client of the receipt of funds (RPC 1.14(b)(1)) and
"promptly pay or deliver to the client as requested by a client the funds . . . In the
possession of the lawyer, which the client is entitled to receive." There is nothing in
the facts presented which indicates that the payor was gifting the funds directly to
the client. Rather, third party/payor was helping to pay the lawyer for services
rendered. Because the funds are trust funds, and the ownership of those funds are
the property of the payor until the funds are earned by the lawyer, the lawyer is
under an obligation pursuant to RPC 1.14 to return them to the payor.
Using Secondary Sources to Find the Rules and Opinions
Some students found the answer through Bloomberg through a secondary source. In
Bloomberg, choose “Legal Analysis and News,” and then “BNA Law Reports” from there.
There is a BNA report entitled “Courts, Litigation and Ethics,” and conducting a search for
“third party payor” brought you to an article discussing both the California and Maryland
cases.
N.B: This was a bit of a clunker in the sense that the students rightfully questioned why it
was unclear which state’s ethical provisions applied. If we use it again, we’ll make clear
that one state’s ethical provisions apply, but ask the students to investigate others in case
the issue comes up again in our offices in other states. But it was a winner in the sense
that the students used several different techniques to find the relevant information, and
enjoyed discussing and debating the various options.
Research Problem #10 – Criminal Statute/Sentencing Guidelines
We have agreed to do some pro bono work for the Detroit Public Library. Unknown to
many, the library has a small, special collection of occult books. It seems that some teens
have discovered this collection, and recently, a few books have gone missing, including a
300 year-old copy of a mysterious book called The Necronomicon, with a value that was
reportedly as high as $8,000. The library is confident that the texts walked off during
regular library hours.
The library wants to keep its collection readily available to its patrons, but it also wants
them to understand the implications of stealing its valuable books. So, here’s what I need
from you: See if you can figure out what a prosecutor could charge the thieves with, and
how serious the sentence might be. Be sure to consider both the applicable statutory law,
as well as any applicable sentencing guidelines, and just for fun, let’s see if we can shoehorn this into any federal offenses.
Email me what you find with the subject line “Research Answers #10,” and, so I know for
future reference, include the briefest description of how you found out each piece of
information.
Bowser
Blackheart, Sharkscream, Dixon, & The Devil, LLP
Research Problem #10 – Answer
Federal Law
It wasn’t clear to me how the theft of a book from a library would be a federal crime, so I
“backed into” the statutory research by doing a quick search of federal case law using the
following search: theft rare book. That brought me to a limited number of cases, including
U.S. v. McCarty, 628 F.3d 284 (6th Cir. 2010). There, a man was convicted and sentenced
for stealing two rare books from a library, under 18 U.S.C. § 668(b), theft of an object of
cultural heritage. Although that section applies to thefts from museums, the court seemed
to readily apply it to the theft from the library.2 “An object of cultural heritage” is defined
by 18 U.S.C. § 668(a)(2), which provides:
2) “object of cultural heritage” means an object that is-(A) over 100 years old and worth in excess of $5,000; or
(B) worth at least $100,000.
So this section could apply to thefts from the library, but only for the oldest and most
valuable books.
Assuming 18 U.S.C § 668 applies, the sentence would be up to ten years. The provision also
refers to “fines,” but does not further define that term. McCarty also references sentencing
enhancements available through the sentencing guidelines, created by the U.S. Sentencing
Commission. The sentencing guidelines are available on WL and on the Commission’s
website:
http://www.ussc.gov/Guidelines/2013_Guidelines/Manual_PDF/Chapter_2_A-C.pdf.
Guideline 2B1.5, on pages 58-59, covers the theft of “Cultural Heritage Resources,”
including the above-defined “objects of cultural heritage.”
So the Necronomicon would be covered under this guideline, which provides several
additional level increases because the theft included an object of cultural heritage.3 This
does not change the “up to ten years,” as the guidelines must be “consistent with all
pertinent provisions of any Federal statute.” 28 U.S.C. § 994(a). Still, we should let the
library know of this provision, and let them know that they can safely post that the theft of
their rare and valuable books can be punished under federal law by a sentence of up to 10
years plus a fine.
18 U.S.C. § 668(a)(1) defines a museum as an organization that is in the U.S., “is established for an
essentially educational or aesthetic purpose,” has a professional staff, and “owns, utilizes, and cares
for tangible objects that are exhibited to the public on a regular schedule.”
2
I’m assuming that 18 U.S.C. § 2315 does not apply as there is no mention of the kids crossing the
state lines with the stolen book.
3
Michigan Law
The Michigan Penal Code has a specific provision related to “larceny from libraries.” § 75.364, which provides that larceny from libraries is a misdemeanor. Who knew. No
sentencing information is included.
I also took a look at the Michigan Sentencing Guidelines, available on Westlaw, and at the
Manual, available at http://courts.mi.gov/education/mji/publications/documents/sgmanual.pdf. Section777.46 provides that a 10 point enhancement is available for the theft
of objects that have “significant historical, social, or sentimental value,” which should
include rare books. However, the manual makes clear that the sentencing guidelines apply
to felonies, so the library would be out of luck there.
Some of you discussed provisions under Michigan’s “breaking and entering” chapter, but
given that the materials walked off during the day, no breaking and entering was involved.
In short, the library should be advised that they can post that thieves could be prosecuted
under federal law, and that the penalties could include a sentence of up to ten years plus a
fine.
N.B. This one was disappointing in that the sentencing guidelines did not really come into
play, and cannot be applied without a specific violator in mind. But the students did get a
sense of the fact that they existed, where to find them, and roughly what they looked like.
Those interested in this area of the law appreciated the problem, but I’ll be redoing this
one.