Monthly Archives: October 2013

A Mess for Hess: Why the Oil and Gas Giant may lose more than 300 gas leases in the Utica Shale Region

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

Oil and gas giant Hess Corporation may have a sticky situation on its hands following a federal court decision from September 24, 2013.  The Southern District of Ohio ruled that two gas leases held by the energy giant lapsed after Hess failed to drill on the property.[1]   Now as many as 300 similar leases held by Hess could be affected in the same manner.[2] Although multiple issues were presented for summary judgment in the case, the main dispute involved the “delay rental” provisions of the leases. Because the court correctly construed the “delay rental” provisions in a way that did not needlessly restrict the alienability of these leases and others like them, landowners in western Ohio will be able to take advantage of the area’s burgeoning natural gas industry.

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The New Batson Challenge: Extending the Protections of Batson v. Kentucky to Gays and Lesbians

Author: Ryan Goellner, Associate Member, University of Cincinnati Law Review

A contract dispute between two manufacturers of an AIDS drug has presented the opportunity for federal courts to protect gays and lesbians from being struck from juries because of their sexual orientation. Last month a panel for the Ninth Circuit Court of Appeals heard oral arguments in a lawsuit by SmithKline Beecham Corporation against Abbott Laboratories[1] and will soon decide whether to expand the protections of the Supreme Court decision in Batson v. Kentucky[2] to include gay and lesbian venire persons. Extending Batson in this way would advance federal jurisprudence following the Supreme Court’s decision in United States v. Windsor,[3] and also would presage another crucial Supreme Court battle over constitutional protections for gays and lesbians in the United States.

The present controversy began when SmithKline sued Abbott, alleging violations of the Sherman Antitrust Act, deceptive trade practices, and monopolization over Abbott’s manufacture of an important antiretroviral drug, Norvir.[4] However, the most controversial issue in this case arose before the trial even began, when Abbott’s attorney used a peremptory challenge to strike a gay man from the jury pool after the man spoke about his partner.[5] Following a brief trial, the jury rendered a verdict for SmithKline for nearly $3.5 million. Abbott appealed from the judgment. In response, SmithKline instituted a cross-appeal against Abbott, requesting a new trial because the district court judge allowed Abbott’s attorney to strike the gay juror over SmithKline’s challenge to the strike under Batson.[6]

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Here We Go Again: Another Secret Government Program Chips Away at the Fourth Amendment

Author: Cameron Downer, Associate Member, University of Cincinnati Law Review

Thanks to Edward Snowden, Americans learned that the National Security Administration was storing call records from the major phone networks to help fight the war on terrorism. Just three months after the NSA information was leaked, Americans learned of yet another government program after a PowerPoint about the program was leaked. This program, entitled “Hemisphere,” focuses on recording and searching domestic conversations between American citizens in order to help fight the war on drugs.

The Hemisphere database is even more extensive than the one used by the NSA and is yet another example of how the government is chipping away at the rights guaranteed by the Fourth Amendment.

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Liability for Texting a Driver?

Author: Chris Tieke, Contributing Member, University of Cincinnati Law Review

Kubert v. Best: New Jersey creates a new duty for a person sending a text to the driver of a vehicle.

Many states already make it illegal to text message while driving.[1]  However, in August a New Jersey court of appeals took an additional, drastic step to curb the dangers of texting and driving.   In the case of Kubert v. Best, the court held that “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the text sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”[2]  Although the intent of the court to address the prevalent danger of texting and driving is laudable, the decision is far from clear regarding the burden of proof a plaintiff carries going forward.  Additionally, the standard established by the court is difficult, if not impossible, to prove.  Despite the confusion in this decision, it would not be surprising to see courts in other states create liability for those who text a person whom they know is driving a motor vehicle.

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Beyond Usque ad Coelum et ad Iferos: Determining land ownership in West Virginia following Faith United Methodist v. Morgan

Author: Bradley Dunkle, Associate Member, University of Cincinnati Law Review

In June, the Supreme Court of Appeals of West Virginia decided Faith United Methodist Church v. Morgan, ruling that the word “surface,” when used in a land conveyance involving a “split estate,” is not presumed ambiguous, and does have a definite and certain meaning.  This ruling ended 90 years of conflicting methods for West Virginia courts evaluating “surface only” transfers by directly overruling Ramage v. South Penn Oil Co. and leaving the Williams v. South Penn Oil Co. standard as the sole method for interpretation.[1]  The holding in Faith United Methodist provides a definition of “surface” for judges, but does not adequately resolve the issue of determining the intent of the conveyance.

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Nassar’s Silver Lining

Author: Sandra F. Sperino, Professor of Law, University of Cincinnati College of Law

In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar.[1]  The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.  This holding means that plaintiffs must establish a lower “motivating factor” standard for discrimination claims and the higher “but for” standard for retaliation claims.  In this regard, Nassar complicates an already tangled legal landscape.

Nassar offers a silver lining for those seeking a less complex employment discrimination jurisprudence. Two sentences hidden within the opinion resolve a central problem in employment discrimination law.[2]  Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.  This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions.  Nassar represents a significant shift in how courts should perceive discrimination cases.

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