McTexLaw Email Alert

The McTexLaw Email Alert for June, 2004

The Three C’s of this Email Alert are computers, condemnation and cycling. What do they all have in common? Nothing except examples of recent cases that are intriguing. Except that the cycling story is a bit, ah, transparent. Read on for more details.

New on The McTexLaw Business Owner’s Resource Center:

Cybersquatting Texas Style

Have you ever done a Google search on your business’s name, only to find that the first website reference is to a website set up by a disgruntled customer to punish your business? Or worse yet, a competitor? They could be stealing your web traffic, as in leads generation, moolah, “show me the money.” They could be running your potential customers off. Do you have rights? Can you stop it? Well the answer is a resoundingly firm “it depends.” This article looks at a cybersquatting case and distinguishes between legitimate “alternate” sites you can’t do anything about, and those that you can eliminate. Click the headline and read this article so you’ll know the difference between times when you can get mad, and when you can get even. TMI, Inc., v. Joseph M. Maxwell, Case No. 03-20243; 03-20291, 5^th Circuit U.S. Court of Appeals, decided April 21, 2004.

New on The McTexLaw Commercial Real Estate Resource Center:

Public Taking: Quarries, Nuisances, and One Mean City

Vulcan Materials Company faced off with the City of Tehuacana in beautiful Limestone County, Texas, over its rights to mine limestone. It seems the residents of Tehuacana had no problem with this idea until it went from theory to practice. Of course, by then, Vulcan had sunk a lot of money into the project, so walking away just wasn’t an option. They faced off in federal district court. Could Vulcan mine, or not? If not, could Vulcan require Tehuacana to pay them for “taking” their mining rights? And what difference does it make to you? It makes a difference because sometimes a city’s zoning laws and ordinances constitute a “taking” of your land, for which you are entitled to just compensation. Click the headline to read who came out on top in this particular battle. Vulcan Materials Co. v. City of Tehuacana, Case No. 02-51182, 5^th Circuit U.S. Court of Appeals, decided May 21, 2004.

Whole Foods, Whole View

Whole Foods supermarket. That trendy, somewhat hippie garden of organic and all that’s “good for you.” They have a store in Santa Fe, New Mexico. One day, a male customer visited the store wearing white, see–through cycling shorts–without underwear. Apparently it was the “whole view” at Whole Foods.

Now, my wife and I are avid cyclists, and we wear cycling shorts. You would too if you climbed on a seat like those on our bikes. Let me assure you all of our shorts are black. Why? Because black cycling shorts are not see-through. The lighter the color, the more “at risk” you are. Trust me. We ride rallies every year with thousands of cyclists, including the Hotter ‘N Hell in Wichita Falls, Texas, the last Saturday of August. And the idea of wearing any sort of underwear with cycling shorts is scarier than not wearing underwear. The manufacturers know this and usually compensate for it. But I digress.

Four female employees of Whole Foods immediately complained to the Whole Foods store manager. The manager did nothing to remove the cyclist from the store. Surprised? Here’s the kicker: these employees sued Whole Foods because of it. Did I mention they were all fired before they sued?

They claimed the store provided negligent supervision by allowing the cyclist to remain, and that the store fostered an environment of discrimination and sexual harassment by allowing customers to walk around in too-thin clothing. This, they alleged, caused them emotional distress. And one of the employees claimed she suffered post-traumatic stress syndrome for having to deal with the see–through cyclist without the managers’s help.

Unfortunately, the judge actually let this case get to a jury. It took 8 days to try, which had to cost Whole Foods many tens of thousands of Whole Dollars. And after all the hullabaloo, the jury didn’t buy the gals’ arguments. Their case was more transparent than the shorts.

Bottom line, no pun intended? Employers do not have a duty to evaluate customers’ fashion statements and cover the eyes of adult employees who may object. And that’s the “truth is stranger than fiction” for this month.

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