California's Prohibition Against E-mail Inquiries Not Preempted

In Powers v. Pottery Barn, decided on September 22, 2009, a California Court of Appeal held that California's Song-Beverly Credit Card Act ("Song-Beverly") was not pre-empted by the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM.") Song-Beverly prevents businesses and others who accept credit card payments from requesting, requiring, or obtaining written personal identification information, such as the cardholder's address and telephone number. CAN-SPAM subjects the sender of any unsolicited commercial email message to liability unless the email provides an opt-out mechanism from future emails, an accurate subject line, an accurate identification of the sender, a physical address of the sender, and a warning if the email contains adult material. The Court held that CAN-SPAM did not pre-empt Song Beverly because Song-Beverly does not expressly regulate internet activity, let alone commercial emails, and the CAN-SPAM pre-emption clause expressly excludes state laws that are not specific to email.
The bottom line is that Song-Beverly's prohibitions respecting credit card transactions remain fully enforceable in California.

Attorney-Client Privilege

The Supreme Court has two cases on its docket pertaining to the attorney-client privilege, which protects communications between client and attorney. In Mohawk v. Carpenter, the Court will decide whether a trial court ruling that the privilege has been waived can be immediately appealed. Those who favor immediate appeals argue that absent an interim appeal, the disclosure of the arguably privileged information will occur and the damage will be done. Those opposing immediate appeals are concerned about the volume of interim appeals that could ensue and their impact on expeditious resolution of cases.

Under the Bankruptcy Abuse Prevention and Consumer Protection Act, attorneys and other professionals designated as "debt relief agencies" may not advise clients to incur additional debt if they are about to file for bankruptcy protection. In Milavetz v. United States, the Court will determine whether this restriction can be upheld as to attorneys advising clients.

Federal Age Discrimination Claims

In August, I discussed a US Supreme Court decision which held that age discrimination claims are subject to more stringent standards of proof than other employment discrimination claims. This past week, Democratic Senators Pat Leahy and Tom Harkin, and Democratic representative George Miller, have proposed legislation that would put age discrimination claims on the same footing as other employment discrimination claims.