D.C. Circuit (11.11.04)
Three interesting opinions yesterday.

In United Servs. Auto. Ass'n v. NLRB, No. 03-1371 and 04-1001, the court upheld the NLRB order to reinstate an employee fired after distributing fliers protesting lay-offs. Loretta Williams distributed the fliers after work. When USAA management questioned her about the fliers, Williams—afraid of retaliation—said she did not distribute them. Six days later the company fired her for lying during the interrogation.

The court affirmed the NLRB’s decision that the interrogation was illegal because the company’s only purpose was to identify who had engaged in the protected concerted activity. In addition, USAA’s policy prohibiting distribution of non-company material in the work area during work hours was overly broad. Last, the court affirmed the NLRB’s order to reinstate Williams.

In Moore v. Hartman, No. 03-5241, the court affirmed denial of summary judgment for postal inspectors arguing they had qualified immunity. Plaintiff Moore was CEO in the 1980s of a company that made optical scanners meant to obviate the switch to the ZIP+4 system. He was unsuccessfully prosecuted for fraud, and Moore believes the postal inspectors prodded prosecutors to indict in retaliation for Moore’s lobbying efforts against the ZIP+4 system. The Court of Appeals affirmed the district court’s decision that the postal inspectors do not have sovereign immunity from retaliatory prosecution claims and remanded the case.

In DBI Architects, P.C. v. Am. Express Travel-Related Servs. Co., No. 03-7132, the court held that by paying off an American Express card with fraudulent charges by one of its employees, DBI led American Express to believe the charges were authorized and thus DBI could not recover all of the fraudulent charges under the Truth in Lending Act.

DBI’s accounting manager (also named Moore!) added herself as a cardholder on DBI’s American Express account without DBI’s knowledge or approval. Moore charged over $130,000 in clothing, travel, jewelry, and other personal expenses. As accounting manager, Moore was also in charge of paying the corporate credit card invoices, so her fraud went undetected for 10 months. When DBI found out, American Express refused to refund the charges, arguing that Moore was an authorized user and thus outside the provisions in the Truth in Lending Act. The court of appeals agreed. By identifying apparent authority as a limit on the cardholder's protection, Congress recognized that a cardholder has certain obligations to prevent fraudulent use of its card. DBI's troubles stemmed from its failure to separate the approval and payment functions within its cash disbursement process.