Which Laws Apply to Broker-Dealers? Federal Laws? State Laws? Both? General Principles Leading to an Answer

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel explains the law of preemption as it pertains to broker-dealers and their investor clients. She predicts, among other things, that either the clients will demand that broker-dealers adhere to a fiduciary duty, or else that states will impose that duty on them.

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West v. Charter Communications, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2442

Opinion Date: March 2, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Communications Law, Energy, Oil & Gas Law, Internet Law, Real Estate & Property Law, Zoning, Planning & Land Use

In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation. The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.”

Nelson Auto Center, Inc. v. Multimedia Holdings Corp.

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3254

Opinion Date: March 5, 2020

Judge: James B. Loken

Areas of Law: Communications Law

Nelson Auto filed suit against KARE 11, alleging that the news provider published false and defamatory statements regarding a criminal complaint filed by the State of Minnesota in Otter Tail County District Court charging Gerald Worner, Nelson Auto's former Fleet Manager, with five counts of theft by swindle. The Eighth Circuit affirmed the district court's grant of KARE 11's motion to dismiss, holding that the district court did not err by concluding that Nelson Auto is a public figure as a matter of Minnesota law. The court agreed with the district court that, given the absence of facts from which actual malice might reasonably be inferred, the allegations show nothing more than oversight on KARE 11's part, which does not constitute actual malice.

Birmingham Broadcasting

Court: Supreme Court of Alabama

Docket: 1180343

Opinion Date: February 28, 2020

Judge: Stewart

Areas of Law: Communications Law, Personal Injury

In 1992, Leslie Hill pleaded guilty to five misdemeanor counts of distributing obscene material for renting adult videos at a video-rental store he owned. In November 2013, Hill was arrested in Homewood on a misdemeanor charge of harassing communications. Pursuant to that arrest, the Sheriff's Department determined that, based on Hill's 1992 convictions, he was required to register as a sex offender under the Sex Offender Registration and Community Notification Act ("SORNA"). Hill refused to do so on the ground that the 1992 convictions did not qualify as sex offenses under SORNA. The Sheriff's Department collaborated with WVTM-TV on a weekly televised news segment entitled "To Catch a Predator;" the Department would “select somebody that we were either having trouble finding or somebody that had refused to come register or whatever the case may be. . . .And we would type up a script for the Sheriff to read, and then we would take it over to his office and he would read it basically in front of one of the TV cameras in his office to run on TV." Hill was featured on the December 6, 2013, segment of "To Catch a Predator." After the December 6 broadcast, Hill, through his attorney, contacted the district attorney’s office expressing his opinion that his 1992 convictions did not constitute a sex offense under SORNA. A deputy district attorney agreed and requested that the warrants be recalled. On December 10, 2013, both warrants issued against Hill were recalled. Neither Hill nor his attorney contacted WVTM after the December 6 broadcast to inform it that the warrants against Hill had been recalled. On a December 13 airing of the program, a news anchor stated the warrants against Hill had been recalled. Nevertheless, Hill sued Sheriff Hale, a deputy and lieutenant, and WVTM, alleging state-law claims of defamation, false light, negligent training and supervision, and the tort of outrage against all defendants. In appeal no. 1180343, Birmingham Broadcasting (WVTM-TV) appealed a $250,000 judgment entered on a defamation verdict against it. In appeal no. 1180370, Hill appealed the dismissal of all the claims Hill asserted against three members of the Jefferson County Sheriff's Department ("the Sheriff's Department") on the basis of state immunity. After review, the Alabama Supreme Court reversed judgment in appeal no. 1180343 and rendered judgment in favor of WVTM, and affirmed judgment in appeal no. 1180370.

Clark County Office of the Coroner v. Las Vegas Review-Journal

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 5

Opinion Date: February 27, 2020

Judge: Ron D. Parraguirre

Areas of Law: Communications Law

The Supreme Court vacated the district court's award of attorney fees and costs to the Las Vegas Review-Journal (LVRJ), which had petitioned the district court to compel production of unreacted juvenile autopsy reports under the Nevada Public Records Act (NPRA) after the Clark County Coroner's Office refused, holding that a governmental entity is not immune from an attorney fees award to which a prevailing records requester is entitled under Nev. Rev. Stat. 239.011. The Coroner's Office argued that it may refuse to disclose a juvenile autopsy report once it has provided the report to a Child Death Review (CDR) team and that juvenile autopsy reports may include sensitive information that may be properly redacted as privileged. The Coroner's Office further argued that action 239.012 immunizes a governmental entity from an award of attorney fees when that entity withholds public records in good faith. The Supreme Court held (1) Nev. Rev. Stat. 423B.407(6)'s applies strictly to the CDR team as a whole; (2) the district court erred when it ordered the production of unreacted juvenile autopsy reports; and (3) the award of attorney fees must be vacated because it cannot yet be determined whether LVRJ is a prevailing party in its underlying NPRA action.