"So, I Have This Friend..."

John Osborn IV, KLJ Staff Editor^[1]

*The following is for informational purposes only and is not to be construed as legal advice.*

I used to work with a certain individual who had a “friend” who always seemed to be getting into some kind of legal trouble.  Knowing that I was in law school, this individual would often try to squeeze any legal advice out of me if he could, although he was generally unsuccessful.  However, on the rare occasion I did acquiesce (only after throwing out all of the appropriate caveats of “I’m not a lawyer,” and the like) I would try to tell this individual (so he could inform his “friend”) what the state of the law was as I understood it.Although many of the matters were criminal in nature, he did present one civil issue that I thought was interesting.  Apparently, my co-worker’s “friend” had recently purchased two luxury watches from a professional jeweler for around $10,000—we will call them “Folexes.”  The jeweler, whom had appraised the watches himself, had provided the friend with documentation stating that the two watches were genuine Folexes and were a “steal” at that price.” Little did the friend know the truth behind these words, as, unfortunately, due to a combination of the friend’s big mouth and a tendency to hang around unsavory characters, his two new Folex watches were stolen within a week.However, a few weeks after the theft, the friend received a phone call from the police that the watches had resurfaced at a local pawnshop.  Normally the friend would have been ecstatic, however, when he went to retrieve the watches, the pawnshop informed him that the Folexes were not genuine Folexes, and that any “professional” jeweler would clearly have known these were fake.  The watches, based on their melt value, were worth at best $1,000 for both.The question my co-worker had (on behalf of his “friend”) then was “can my friend sue the jeweler who sold him the watches?”  Of course, the immediate answer is “yes” because you can sue just about any one over anything.  However, the deeper issue would be (assuming the jeweler is not willing to accept a return for the watches) what do you sue for and what can you recover in a situation like this?My co-worker’s “friend” has several avenues to choose from as far as recovery goes.  He might consider suing under a basic theory of fraud or breach of warranty.  With fraud, the friend would argue that the jeweler made a fraudulent misrepresentation, ^[2] while with breach of warranty, the friend would argue that the jeweler made an affirmation of fact upon which he relied in making the purchase. ^[3]  Under a theory of fraud, the friend could recover “compensatory damages (likely expectations damages), plus all reasonable investigation and litigation expenses including attorneys’ fees where appropriate.”^[4] However, under a warranty theory, the friend will likely be limited to expectation damages, or the difference between the watches as promised or represented ($10,000), and the actual value ($1,000), equaling an award of $9000.^[5]Although the friend should not have any problems establishing common law fraud or breach of warranty, another vehicle of recovery available to him is the Kentucky Consumer Protection Act (KCPA).^[6]   When suing for a violation of the KCPA, a plaintiff need only prove that the seller engaged in “unfair, false, misleading or deceptive acts or practices in the conduct of any trade or commerce.”^[7] Moreover, under the KCPA, in addition to actual damages, the plaintiff may be able to recover punitive damages^[8] and even attorney’s fees.^[9]In short, my co-worker’s “friend” could probably sue the jeweler under several different theories, but the KCPA offers the easiest road to recovery and the best chance for him to be fairly compensated for the ordeal.  Hopefully, this experience will teach my co-worker’s “friend” to be more careful when making expensive purchases; however, I harbor doubts that he will do so . . .

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^[1]  J.D. expected 2016.

^[2] See Waldridge v. Homeservices of Ky., Inc. 384 S.W.3d 165, 171 (Ky. Ct. App. 2011).

^[3] U.C.C. § 2-313 (West, current through 2014 annual meetings of the National Conference of Commissioner on Uniform State Laws and American Law Institute).

^[4] Gibson v. Ky. Farm Bureau Mut. Ins. Co., 328 S.W.3d 195, 205 (Ky. Ct. App. 2010).

^[5] See Ky. Rev. Stat. Ann. § 355.2-714(2) (West, current through the end of the 2015 regular session).

^[6] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).

^[7] Ky. Rev. Stat. Ann. § 367.170 (West, current through the end of the 2015 regular session).

^[8] See Ky. Rev. Stat. Ann. § 367.220(1) (West, current through the end of the 2015 regular session).

^[9] See Alexander v. S & M Motors, Inc., 28 S.W.3d 303, 305 (Ky. 2000); see also Ky. Rev. Stat. Ann. § 367.220(3) (West, current through the end of the 2015 regular session).

A Brief History of Religious Freedom Restoration Acts

Kevin Nathaniel Troy Fowler, KLJ Staff Editor

In the last few weeks the state of Indiana has taken a pointed drubbing over state Senate Bill 101.¹ The Bill was comparable to other federal and state law(s) aimed at exempting actors, ranging from humans to business entities, from compliance with laws that hamper the free exercise of religion. Such laws, colloquially known as Religious Freedom Restoration Acts (RFRA(s)), generally place a burden on the government to show that the religion-burdening law serves a compelling interest, and that the law is narrowly tailored towards achieving that interest. Opponents of the law include several prominent industry leaders such as Apple Inc. CEO Tim Cook² and construction machinery enthusiast Miley Cyrus.³ Such challengers have come down hard against Indiana’s RFRA, contending that it provides bigots with a legal means of discriminating on the basis of sexual orientation under the guise of religious freedom. On the other hand its supporters, including Indiana Governor Mike Pence, have defensively retorted that the Indiana law has been grossly misconstrued and is based on a much less invidious purpose.  Neither side, however, has adequately addressed or explained the precedent and case law that gave rise to the Federal RFRA, nor in turn the plethora of State RFRAs that followed.Ground Zero of RFRAs is a case called Sherbert v. Verner.⁴ In 1963, the Highest Court in the Land considered Adell Sherbert’s claim that her exercise of religion had been violated. Sherbert was a textile-mill operator, and also a member of the Seventh-day Adventist Church. After several years on the job, her employer implemented a new policy which required Sherbert to come in on Saturdays. As this violated her religion, Sherbert refused to come to work on one particular Saturday, and was subsequently fired. After a meaningful job search which led to the realization that the task of obtaining another means to live by would be no scoop of ice cream, Sherbert filed for unemployment benefits which were denied because she had failed to accept “suitable work when offered”.⁵ In finding that the denial of unemployment benefits had violated Sherbert’s exercise of religion, the Court enunciated what is now the heart of all RFRA legislation: a law burdening the free exercise of religion must serve a compelling government interest, and the law must be narrowly tailored to achieving that interest.⁶For nearly two decades this was the standard for religiously burdensome laws, with the Supreme Court reaffirming Sherbert in a 1972 case called Wisconsin v. Yoder.⁷ That came to an abrupt end in 1990, when the Supreme Court decided Employment Division v. Smith.⁸ In Smith, two Native Americans had been fired for participating in a religious ritual that involved the use of peyote, an illegal drug. Similar to Sherbert, the two people sought unemployment benefits, and similarly, they were denied (essentially because they had lost their jobs for committing a crime). In changing course from the precedent established in Sherbert and reaffirmed by Yoder, the Supreme Court found that the denial of unemployment benefits in this case did not warrant strict scrutiny, and that "neutral law(s) of general applicability"⁹ not directly targeting the exercise of religion cannot be circumvented by claiming a religious exception.As a result, in 1993, Congress passed the Religious Freedom and Restoration Act, explicitly reestablishing the Sherbert and Yoder standard.¹⁰ In City of Boerne v. Flores,¹¹ the Court held the Federal RFRA was inapplicable to the states, which has prompted at least 31 states to enact or adopt their own RFRA requirement.¹² Knowing this contextual background of RFRA legislation is important to understanding its future developments, such as Indiana’s RFRA, as well as the discourse that may engulf it.

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¹ Editorial, Gov. Pence, Fix 'Religious Freedom' Law Now, Indianapolis Star, Mar. 31, 2015, at A1.

² Tim Cook: Apple Will Oppose Bills like Indiana’s ‘Religious Freedom’ Law, NBC News, (Mar. 29, 2015), http://www.nbcnews.com/news/us-news/tim-cook-apple-will-oppose-states-bills-indianas-religious-freedom-n332316.

³ See Daniel Kreps, Miley Cyrus Promises ‘New Rights Movement’ After Controversial Indiana Law, Rolling Stone (April 1, 2015), http://www.rollingstone.com/culture/news/miley-cyrus-promises-new-rights-movement-after-controversial-indiana-law-20150401; See also  Miley Cyrus, Wrecking Ball (RCA Records 2013).

⁴ 374 U.S. 398 (1963).

⁵ Id.

⁶ See id.

⁷ 406 U.S. 205 (1973).

⁸ 494 U.S. 872 (1990).

⁹ Id.

¹⁰ 42 U.S.C. § 2000bb.

¹¹ 521 U.S. 507 (1997).

¹² Juliet Eilperin, 31 States Have Heightened Religious Freedom Protections, The Washington Post (Mar. 1, 2014), http://www.washingtonpost.com/blogs/the-fix/wp/2014/03/01/where-in-the-u-s-are-there-heightened-protections-for-religious-freedom/.