Lagniappe in the Big Easy

Posted on October 22, 2012 07:36 by T. Sky Woodward

My favorite New Orleans word is lagniappe (lon-yop).  Broadly defined, a lagniappe is a something given or obtained gratuitously or by way of good measure.  In other words, a little something extra.  Every trip I have taken to New Orleans – and there have been more than I can count – has included a lagniappe experience.  Finding a new favorite artist on Magazine Street. Enjoying the brightly painted homes during a walk through the Faubourg Marigny.  Sailing Lake Pontchartrain with my 9-year-old son as the boat’s captain (thank you, Bruce Cranner!). My next trip to New Orleans starts tomorrow morning, when I arrive there as Chair of the 2012 DRI Annual Meeting.  Even though I know the blockbuster and CLE programs like the back of my hand, I know there will be something extra to take away from each presentation that will enhance how I represent my clients.  No doubt, the pounds that I’ll take home from tasty food and beverages at the receptions and party at the Superdome will be a little something extra.  The best lagniappe of all, though, will be the rich conversations that I will have with old friends and longstanding clients, and the refreshing conversations that will happen with people I will want to get to know.  If you are attending the meeting in New Orleans this week, I look forward to seeing you there.  If you are still trying to squeeze a few days of the meeting and the Big Easy into your schedule, I encourage you to come on down and register on-site.  Seeing you there will be yet another lagniappe to treasure.

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The Third Circuit Court of Appeals held on October 22nd that the recurring question of whether cell phones pose health hazards must be sorted out by the Federal Communications Commission and not through product liability suits.  Congress has designed a regulatory scheme that gives the FCC exclusive power to regulate all aspects of the cell phone industry, including a remedy sought by a prospective consumer class that would have required distribution of headsets to cell phone owners. Farina v. Nokia. 

The ruling is a major victory for cell phone manufacturers and service providers, and holds that consumers cannot be allowed to sue over possible biological hazards allegedly caused by cell phone radio emissions because such suits would interfere with the FCC's exclusive power to regulate the industry.  The 3rd Circuit's ruling upholds a September 2008 decision by U.S. District Judge John R. Padova that said the suit was pre-empted because its allegations "unquestionably trample upon the FCC's authority to determine the maximum standard for RF emissions."

The suit named 19 defendants, including all of the major cell phone manufacturers and providers, as well as two trade associations: Nokia Inc.; Ericsson Wireless Communications Inc.; Motorola Inc.; Sprint PCS; Audiovox Communications Corp.; Nextel Communications; Panasonic Corp.; Philips Electronics North America Corp.; Qualcomm Inc.; Sanyo North America; Sony Electronics Inc.; AT&T Wireless Services Inc.; Verizon Wireless; Southwestern Bell Mobile Systems Inc.; Cellular One; VoiceStream Wireless; LG Electronics Mobilecomm Inc.; Cellular Telecommunication Industry Association; and Telecommunications Industry Association.

U.S. Circuit Judge Anthony J. Scirica found that allowing a suit over the alleged hazards of the radio frequency, or RF, emissions of cell phones would effectively "permit juries to second-guess the FCC's balance of its competing objectives."  The FCC, Scirica said, "is in a better position to monitor and assess the science behind RF radiation than juries in individual cases." The opinion was joined by 3rd Circuit Judge Thomas L. Ambro and visiting 9th Circuit Senior Judge Arthur Alarcon.

Plaintiffs lawyers argued that their claims should be permitted because they weren't seeking any changes to RF emission standards. Instead, they said, the proposed class of Pennsylvania consumers was demanding only that manufacturers and sellers be ordered to provide a headset with every phone as a safety device.  Plaintiffs argued that the expert evidence showed that RF emissions cause biological hazards only when a cell phone is in close proximity to human tissue, and that headsets could eliminate much of that alleged hazard.

But the 3rd Circuit concluded that the case must still be pre-empted.  "Although [plaintiff Francis J.] Farina attempts to characterize his suit as setting a headset requirement, this misapprehends the effect a finding of liability would have in this kind of suit," Scirica wrote.  When a jury reaches a verdict, Scirica said, its decision "is not to prescribe a specific prospective remedy." Instead, Scirica said, the verdict would say only whether cell phones are safe or unsafe, and it would be left to the manufacturers and sellers to decide how to ensure safety in the cell phones sold in the future.  "Whether they complied by reducing RF emissions or by bundling headsets with phones — or by some other means — would be irrelevant for the purposes of the new state-law standard," Scirica found.  Scirica found that the complicated task of regulating radio emissions must be left to the FCC — and not to juries.  "Regulatory assessments and rulemaking call upon a myriad of empirical and scientific data and medical and scientific opinion, especially in a case, such as RF radiation, where the science remains inconclusive," Scirica wrote.


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Anyone attending last week's Sharing Success Seminar will understand that the title to this blog is not as boring as it seems. Take-Away #1: Be mindful of the "Wonderful/Detrimental Continuum" in communicating. Specifically, we learned on Thursday morning that our brains are hard-wired to listen to all of the elements of a list, provided the speaker enumerates the list in advance. This is particularly important for women lawyers, whether in the courtroom or the boardroom. The presentation on communication also encouraged the audience to 1) draw conclusions up front, 2) stop verbal multitasking, 3) stop repeating (repeatitis), 4) avoid expressing self-doubt, 5) be selective in using self-deprecating humor; what may be endearing in casual conversation is damaging in meetings and presentations, and 6) use active, singular voice.

Take-Away #2: Go dancing. Happiness seems to be an elusive concept, according to the seminar's first speaker on Thursday. And particularly for women lawyers. "Weird" principles of achieving happiness were identified, though: 1) align key life domains with temporal sweetspots (i.e., you may not be in the "good mom" sweet spot when you are rushing the kids out the door to meet the 7:30 a.m. bus and you are headed into rush hour traffic yourself, but you may be in the "good mom" sweet spot at 7:30 p.m. if you enjoy cooking dinner and this time is relaxing with your kids); 2) work on projects you love and eliminate depleting projects and people from your life; 3) lower expectations because "expectations-reality=happiness"; 4) create a reward system for tasks/projects completed; 5) carve out clear areas of incompetency (e.g., family finances, taking out the garbage, grocery shopping, planning vacations); 6) cultivate sticky memories (the vacation pictures remind you of a wonderful, relaxing respite, despite the reality of car sickness, getting lost, sunburns); and 7) improve your sense of humor. And if acquiring a sense of humor is daunting, go dancing.

T. Sky Woodward
Womble Carlyle Sandridge & Rice
swoodward@wcsr.com

 

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