Thursday, July 31, 2014

Model Rules for the Modern Lawyer: Leveraging Technology to follow ABA Guidelines

As the rate of new technology increases, it becomes more difficult for lawyers to keep up with industry standards for protecting client data confidentiality. In addition to the rigors of day-to-day practice, attorneys are expected to be familiar with terms such as SSL 256, SaS 70, and SSAE 16. On this episode of the Un-Billable Hour, host Chris T. Anderson interviews The Droid Lawyer blogger, Jeffrey Taylor. Together they discuss the importance of attorneys staying current through workshops, blogs, conferences, and state bar associations. In addition, tune in to learn more about the security issues associated with cloud-based vs. server-based practice management software solutions.
Jeffrey Taylor is the author of The Droid Lawyer blog. The blog discusses Android mobile operating system for lawyers. The Droid Lawyer is one of the ABA Journal's Top 100 law blogs, and one of Biztech Magazine's Top 50 Must Read IT Blogs. Jeff is an attorney in Oklahoma City, Oklahoma.

Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2014/05/model-rules-modern-lawyer-leveraging-technology-follow-aba-guidelines

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Supreme Court allows execution of Arizona prisoner

[JURIST] The US Supreme Court [official website] vacated [opinion, PDF] a decision by the US Court of Appeals for the Ninth Circuit [official website], granting a conditional preliminary injunction in the execution of an Arizona death row inmate. The Ninth Circuit stayed the inmate's execution on Sunday, refusing to allow the execution to move forward [JURIST report] until prison officials revealed the details of the secret two-drug combination to be used for the lethal injection. In its three-sentence opinion, the...

Source: http://jurist.org/paperchase/2014/07/supreme-court-allows-execution-of-arizona-prisoner-to-go-forward.php

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Federal appeals courts issue conflicting rulings over subsidies for healthcare exchanges

[JURIST] Two federal appeals courts in the US issued conflicting rulings within hours of one another on Tuesday, as the federal court system continues to grapple with the legal ramifications of the Patient Protection and Affordable Care Act (PPACA) [tex, PDF]. The most recent legal debate with the PPACA surrounds the issue of whether subsidies [WP report] may be awarded by the federal government in states that elect not to set up their own health insurance exchange. In the first...

Source: http://jurist.org/paperchase/2014/07/federal-appeals-courts-grapple-with-subsidies-for-healthcare-exchanges.php

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Mid-year union dues increase: Hudson notice required, opt-in not opt-out

The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)

This is a remarkable decision for two reasons.

First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.

Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.

The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.

The US Supreme Court held (7-2) that

"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.

Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."

Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.

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Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html

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The Best of Legal Tech for Solos and Small Firms 2014

There are a multitude of technology options to help run small firms and solo practices, but deciding on which ones can be a daunting endeavor. Mac vs. PC, practice management systems, and encryption of client data are among numerous issues attorneys must resolve. On this episode of The Digital Edge, hosts Sharon Nelson and Jim Calloway interview John Simek from Sensei Enterprises. Together, they discuss modern innovations that make running firms easier and keep client data safe. Tune in to learn more about meta data, benefits of paperless, and John's favorite software tools.
John Simek is the vice president of Sensei Enterprises, a digital forensics, information technology and information security firm located in Fairfax, Virginia. He is a co-author of The 2014 Solo and Small Firm Legal Technology Guide: Critical Decisions Made Simple, published by the American Bar Association along with many other books on technology, security and electronic evidence. John is a testifying expert and holds many technical certifications. He's also a co-host on another Legal Talk Network podcast, the Digital Detectives.

Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/05/best-legal-tech-solos-small-firms-2014

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Fourth Circuit Affirms Dismissal of Securities Fraud Complaint Where Inference of Scienter Was Not Sufficiently Strong

In Yates v. Municipal Mortgage & Equity, LLC, No. 12-2496 (4th Cir. Mar. 7, 2014), the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78(b), against defendant Municipal Mortgage & Equity (“MuniMae”) and its individual officer and director defendants.  The Court held that plaintiffs failed to plead facts sufficient to give rise to a strong inference of defendants’ scienter under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4, et seq.  The Court declined to accept that the inference of scienter offered by plaintiffs — supported by statements from confidential witnesses, presence of red flags, allegations of insider trading and general business incentives — was at least as compelling as the opposing inference of mere negligence that could be drawn from the amended complaint.  Yates is one of the few reported decisions from the Fourth Circuit applying the PSRLA, and it solidly reaffirms the PSLRA’s requirement that a plaintiff plead more than just allegations based upon conjecture and happenstance to satisfy heightened pleading requirements.

During the putative class period (May 3, 2004 to January 29, 2008) MuniMae was involved in organizing investment partnerships to pool low-income housing tax credits (“LIHTCs”) and sell them to investors.  Prior to 2003, MuniMae treated its LIHTC investment partnerships as off balance sheet entities.  In 2003, the Financial Accounting Standards Board adopted Interpretation No. 46R (“FASB 46R”), requiring that a company that is the primary beneficiary of “Variable Interest Entities” consolidate the entities assets and liabilities onto its financial statements.  MuniMae began asserting compliance with FASB 46R in the first quarter of 2004.  However, at that time MuniMae internally concluded that FASB 46R did not require it to consolidate for financial statement purposes all of tis LIHTC investment partnerships.  MuniMae continued to assert compliance with FASB 46R through 2006.  In September 2006, MuniMae announced it would be restating certain financial statements and through a series of later disclosures finally announced that the restatement would deal with FASB 46R accounting errors.  As a result of the piecemeal disclosures, MuniMae’s share price dropped precipitously.  The following day, MuniMae disclosed the full extent of the restatement’s scope and MuniMae’s stock experienced an additional decline.  Eventually, in April 2008, MuniMae disclosed that it had spent over $54 million on the restatement.

Plaintiffs filed a class action complaint alleging that defendants made false representations that MuniMae was complying with FASB 46R and concealed the expected cost of the restatement in violation of Section 10(b).  The United States District Court for the District of Maryland held that the amended complaint did not sufficiently allege a claim under Section 10(b) because it did not meet the PSLRA’s heightened pleading standard for scienter allegations.  Plaintiffs appealed.

The Court of Appeals affirmed.  First, the Fourth Circuit held that the confidential witness testimony supplied by plaintiffs did not support a “strong inference of wrongful intent.”  The testimony did suggest that defendants knew earlier than disclosed that MuniMae was not in compliance with 46R and that the required restatement would be a difficult and costly undertaking.  It also indicated that the issue was difficult and complex and had thrown MuniMae into “confusion and chaos” — which the Court held supported the opposing inference that the defendants were merely negligent.  In fact, the Court explained, defendants’ subsequent disclosures negated an inference of fraudulent intent because, although the disclosures were not “as timely or as fulsome” as plaintiffs would have liked, they gave rise to a compelling inference that the MuniMae defendants were attempting to keep the investing public informed.

Second, the Court held that while there were several “red flags” concerning MuniMae’s core operations — the need in and of itself for several restatements, frequent accounting meetings, the firing of outside auditors, and rapid CFO overturn — they did not in and of themselves give rise to a strong inference of scienter.  Not only was the FASB 46R accounting error not especially obvious, but the other warning signs easily lent themselves to benign interpretations as a result of MiniMae’s obvious attempts to get a handle on its creeping accounting problems.

Third, the Court of Appeals followed the decisions of several other Circuits in holding insufficient plaintiffs’ allegation that the individual defendants “must have acted intentionally or recklessly” merely because they were senior executives and the LIHTC investment partnerships represented a core business of MuniMae.

Fourth, in addressing plaintiffs’ allegations concerning insider trading, the Court held that while the overall value of MuniMae shares sold during the class period was higher than in previous years and thus consistent with an inference that the insiders who traded had a motive to commit fraud, the inference that the trades were innocent was stronger.  There were no allegations that the insiders timed their sales to take advantage of any particular disclosure.  Nor was the level of any insiders’ divestiture particularly alarming.  Moreover, the Court noted, the fact that several of the individual defendants traded under non-discretionary Rule 10b5-1 plans further weakened any inference of fraudulent purpose.

Finally, the Court held that plaintiffs other allegations of motive were similarly lacking as the alleged motivations amounted to nothing more than “financial motivations common to every company.”

Thus, in Yates, the Fourth Circuit reaffirmed the heightened standard of pleading a plaintiff must meet to satisfy the PSLRA.  Specifically, the Court emphasized that the allegations of scienter under Section 10(b) cannot be read in a vaccum.  They must be holistically analyzed in comparison with the disclosures actually made by defendants.  General business motivations, insider trading and the core nature of the problems alleged by plaintiffs cannot turn a company’s repeated attempts to inform investors of the ongoing and ever-evolving nature of a problem into intentional rather than merely negligent conduct.

Source: http://www.corporatesecuritieslawblog.com/2014/04/fourth-circuit-affirms-dismissal-of-securities-fraud-complaint-where-inference-of-scienter-was-not-sufficiently-strong/

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Roberta Gelb on Technology Training

Roberta Gelb, president of Chelsea Office Systems, talks about how trends such as cloud computing and bring your own device (BYOD) have law firms realizing the importance of training in the adoption of new technologies.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202597117056&rss=newswire

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Federal appeals courts split on health care subsidies

[JURIST] Two separate federal appeals court reached opposite conclusions Tuesday on subsidies for individuals who sign up for health insurance through the federal government's marketplace. The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] that such subsidies are only available through state-run exchanges, currently operating in only 14 states and the District of Columbia. That ruling reversed a lower court decision [JURIST report] from January. In contrast, the US Court of Appeals for...

Source: http://jurist.org/paperchase/2014/07/federal-appeals-courts-split-on-health-care-subsidies.php

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Wednesday, July 30, 2014

Second Circuit Offers More 'Clarity' in False Advertising Case

A district court's award of treble damages and legal fees against a dietary supplement maker that falsely advertised the chemical composition of its product was upheld Tuesday by the U.S. Court of Appeals for the Second Circuit.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202665146600&rss=newswire

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Gaza officials accuse Israel of war crimes at ICC

[JURIST] Top Palestinian officials on Friday filed a complaint to the International Criminal Court (ICC) [official website], accusing Israel of war crimes in Gaza. Palestinian Justice Minister Saleem Al-Saqqa and Gaza court public prosecutor Ismail Jabr started legal proceedings over the 18 days of fighting between Hamas and Israel that has killed over 800 Palestinians and 35 Israelis. The complaint [AP report] accuses Israel of war crimes, including apartheid, attacks against civilians, excessive loss of human life and colonization. The...

Source: http://jurist.org/paperchase/2014/07/gaza-officials-accuse-israel-of-war-crimes-at-icc.php

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Fighting Video with Video

Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.

“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”

Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.

So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?

Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.

“They say a picture is worth a thousand words,” Kelly said.

What Elliott records with his camera can be used for evidence.

“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.

Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.

But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.

When they take the oath and strap on the Sam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.

Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not?  Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered? 

A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.

And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?

“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.

Officials believe that the cameras will be helpful in protecting themselves and the community.

“I think there will be a time when everyone carries one,” said Kelly.

There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it.  We're still a ways off from figuring out how video will best serve  "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.

But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse.  Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed. 

Why isn't the public required to do so if that's what you demand of cops?  Because you are cops, whose function is to protect and serve at the behest of the public.  This is the life you chose and the obligation that goes with it.











© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss

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Tools and Techniques for Personal Knowledge Management and Curation

Do you often do fresh searches on the same topics even though you've previously found good information? "Curation" is the word used to describe the process of collecting, organizing, and using good information you've found when you need it. Some people also think of this approach as personal knowledge management. This means having an archive of reasonably up-to-date and interesting information from various sources that can be accessed and used for a legal article, podcast, blog post, or social media presence. Knowledge management is a form of information organization that has caught on widely in larger law firms, but has not had as much traction with lawyers in smaller practices or solos. These small-practice lawyers can use tools like Evernote to create a platform for their own personal knowledge management.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss curation and personal knowledge management including tools and techniques, ways to improve success, common difficulties, and their own personal experiences. They describe the three important aspects involved in sustaining a successful knowledge management system: collecting the information in one place, organizing it for later access, and using the collected information for legal clients or marketing when it might apply. While Kennedy and Mighell prefer Evernote as an organizational tool, there are many other options including Excel Spreadsheets, bookmarks, Instapaper, Pocket, Readability, or using PDF files. Their suggestions for curation and long-term knowledge management involve finding the right tool, designing systems around personal habits, and mentally focusing on long-term success.
In the second part of the podcast, Kennedy and Mighell review the announcements made at the 2014 Google I/O conference including smart watches, Android TV, a "kill switch" for smartphones and many others. They also comment on a couple of hot topic items that were avoided in the conference's keynote speech. As always, stay tuned for Parting Shots, that one tip, website, or observation that you can use the second the podcast ends.
Special thanks to our sponsor, ServeNow.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/07/tools-techniques-personal-knowledge-management-curation

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Professors Protest Curbs on Drones; D.C. Handgun Ban Ruled Unconstitutional

The AM Roundup: Law Blog rounds up the morning's news.

Source: http://blogs.wsj.com/law/2014/07/28/professors-protest-curbs-on-drones-d-c-handgun-ban-ruled-unconstitutional/?mod=WSJBlog

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Mark Woods: New Year's resolution: Be like Mr. Bob (Florida Times-Union)

Share With Friends: Share on FacebookTweet ThisPost to Google-BuzzSend on GmailPost to Linked-InSubscribe to This Feed | Rss To Twitter | Law - Video Stories, RSS and RSS Feed via Feedzilla.

Source: http://news.feedzilla.com/en_us/stories/law/video/389355017?client_source=feed&format=rss

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Appeals Court Rules in Favor of Mississippi’s Lone Abortion Clinic

A federal appeals court on Tuesday declared declared unconstitutional a two-year-old Mississippi law that opponents claimed would effectively shut down the state's only abortion clinic.

Source: http://blogs.wsj.com/law/2014/07/29/appeals-court-rules-in-favor-of-mississippis-lone-abortion-clinic/?mod=WSJBlog

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Who Represents Corporate America

Our annual survey of the law firms that work for the nation's largest companies takes a global focus.

Source: http://www.nationallawjournal.com/id=1202625300999?rss=rss_nlj

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Tuesday, July 29, 2014

Jared Correia Interviews Legal Marketing Expert Joyce Brafford at the Mass LOMAP Conference

Jared Correia, co-host of The Legal Toolkit on Legal Talk Network, interviews Joyce Brafford about marketing for lawyers at Mass LOMAP's 4th Annual Super Marketing Conference. She recommends that lawyers choose one social media platform, maintain consistent engagement, and be sincere, especially in solo and small firms with more personal clients. Brafford is a Practice Management Advisor with the North Carolina Bar Association, making sure lawyers have access to the technology that can help them run their firms efficiently and professionally.

Source: http://legaltalknetwork.com/podcasts/special-reports/2014/07/jared-correia-interviews-legal-marketing-expert-joyce-brafford-mass-lomap-conference

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When Did Companies Become People? Excavating The Legal Evolution

The Supreme Court has been granting more rights to corporations, including some regarded as those solely for individuals. But Nina Totenberg finds the company-to-person shift has a long history.

» E-Mail This

Source: http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution?ft=1&f=1070

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Smith & Wesson Pays $2 Million to Resolve SEC Foreign Bribery Probe

Smith & Wesson Holding Corp. agreed to pay $2 million to resolve a Securities and Exchange Commission investigation into allegations of foreign bribery at the gun-maker.

Source: http://blogs.wsj.com/law/2014/07/28/smith-wesson-pays-2-million-to-resolve-sec-foreign-bribery-probe/?mod=WSJBlog

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Supreme Court allows execution of Arizona prisoner

[JURIST] The US Supreme Court [official website] vacated [opinion, PDF] a decision by the US Court of Appeals for the Ninth Circuit [official website], granting a conditional preliminary injunction in the execution of an Arizona death row inmate. The Ninth Circuit stayed the inmate's execution on Sunday, refusing to allow the execution to move forward [JURIST report] until prison officials revealed the details of the secret two-drug combination to be used for the lethal injection. In its three-sentence opinion, the...

Source: http://jurist.org/paperchase/2014/07/supreme-court-allows-execution-of-arizona-prisoner-to-go-forward.php

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European Court exposes illegal detention facilities linked to CIA's extraordinary rendition program in Poland

[JURIST] The European Court of Human Rights [official website] handed down two rulings [judgments, PDF] finding the Polish government in violation of European human rights laws based on the establishment of prison center used for illegal detainment and torture of terrorist suspects. Amnesty International (AI) [official website] on Thursday reported [AI report] that the secret prison was established by the Polish Government in an effort to contribute to the US Central Intelligence Agency's (CIA) [official website] extraordinary rendition program [JURIST...

Source: http://jurist.org/paperchase/2014/07/european-court-exposes-illegal-detention-facilities-in-poland.php

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Starting Your Own Law Firm: Conversation with Jay Foonberg

Starting a law firm from scratch can be a daunting endeavor. With a down economy, limited budget, and not enough clients, solos can have a tough time breaking into the market. In her debut as the new host of New Solo, Adriana Linares interviews Jay Foonberg, the most influential author on the subject of starting your own law firm. Together they discuss where to find clients, how to get paid, and recommended practice areas. Tune in to learn how attorneys stay relevant with new technology, why it's important to train assistants, and how to sustain a long happy marriage.
Jay Foonberg is the author of How To Start and Build a Law Practice (5th edition) and was a practicing attorney in Beverly Hills for over 40 years. He served in the ABA House of Delegates, is on the Advisory Council for the ABA Commission on Evaluation of the Rules of Professional Conduct, and was a founder of the ABA Law Practice Management Section. In addition to being an author of three other important books (all available from the ABA), Foonberg is a much sought after speaker on topics such as client relations, malpractice prevention, and client development in every one of the 50 states and as far afield as Europe, South America, and Asia. He has received the prestigious Harrison Tweed Award and lifetime achievement awards from 4 American Bar Association entities.

Source: http://legaltalknetwork.com/podcasts/new-solo/2014/05/starting-law-firm-conversation-jay-foonberg

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Tools and Techniques for Personal Knowledge Management and Curation

Do you often do fresh searches on the same topics even though you've previously found good information? "Curation" is the word used to describe the process of collecting, organizing, and using good information you've found when you need it. Some people also think of this approach as personal knowledge management. This means having an archive of reasonably up-to-date and interesting information from various sources that can be accessed and used for a legal article, podcast, blog post, or social media presence. Knowledge management is a form of information organization that has caught on widely in larger law firms, but has not had as much traction with lawyers in smaller practices or solos. These small-practice lawyers can use tools like Evernote to create a platform for their own personal knowledge management.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss curation and personal knowledge management including tools and techniques, ways to improve success, common difficulties, and their own personal experiences. They describe the three important aspects involved in sustaining a successful knowledge management system: collecting the information in one place, organizing it for later access, and using the collected information for legal clients or marketing when it might apply. While Kennedy and Mighell prefer Evernote as an organizational tool, there are many other options including Excel Spreadsheets, bookmarks, Instapaper, Pocket, Readability, or using PDF files. Their suggestions for curation and long-term knowledge management involve finding the right tool, designing systems around personal habits, and mentally focusing on long-term success.
In the second part of the podcast, Kennedy and Mighell review the announcements made at the 2014 Google I/O conference including smart watches, Android TV, a "kill switch" for smartphones and many others. They also comment on a couple of hot topic items that were avoided in the conference's keynote speech. As always, stay tuned for Parting Shots, that one tip, website, or observation that you can use the second the podcast ends.
Special thanks to our sponsor, ServeNow.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/07/tools-techniques-personal-knowledge-management-curation

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European Court exposes illegal detention facilities linked to CIA's extraordinary rendition program in Poland

[JURIST] The European Court of Human Rights [official website] handed down two rulings [judgments, PDF] finding the Polish government in violation of European human rights laws based on the establishment of prison center used for illegal detainment and torture of terrorist suspects. Amnesty International (AI) [official website] on Thursday reported [AI report] that the secret prison was established by the Polish Government in an effort to contribute to the US Central Intelligence Agency's (CIA) [official website] extraordinary rendition program [JURIST...

Source: http://jurist.org/paperchase/2014/07/european-court-exposes-illegal-detention-facilities-in-poland.php

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Monday, July 28, 2014

Police Officers Are Immune from Taser Suit, Appeals Court Rules

Missouri police who fatally stunned a mentally ill man with a Taser can't be sued over his death, a federal appeals court ruled, in the latest case to test the legal boundaries of the weapon's use.

Source: http://blogs.wsj.com/law/2014/07/28/police-officers-are-immune-from-taser-suit-appeals-court-rules/?mod=smallbusiness/

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Washington's sexual orientation discrimination amendment is not retroactive

The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.

The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.

Loeffelholz v. Univ of Washington (Washington 09/13/2012)

Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.

The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.

Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.

The court's findings:

(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.

(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.

(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.

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Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html

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Staying Motivated While Starting A Solo Law Practice

Starting a solo law practice can be invigorating, frightening, and exciting at first. But after the adrenaline and excitement of starting a solo practice fades, how do lawyers stay motivated? Unlike working in a large firm, an attorney's personal life and solo practice become interconnected, causing unique and often unexpected challenges. Many lawyers experience inner turmoil that requires a different resolution than a well thought-out business plan or financial planning.
On this episode of New Solo, Adriana Linares interviews consultant Susan Cartier Liebel about how to stay motivated throughout the process of starting a solo law practice. Liebel encourages lawyers to make concrete life goals and envision where they might be 5, 10, and 15 years in the future, both professionally and personally. She recommends integrating personal interests and lifestyle with professional practice, resulting in a support system and a trusting client base. According to Liebel, there are three emotional inhibitors when opening a solo practice: the fear of a malpractice suit, the fear of being alone, and the lack of mentors. By focusing on the endgame, a lawyer can create an internal support system that supplements external support.
Susan Cartier Liebel is a coaching consultant for solos and small firms who start their own law practice right out of law school. She has been an adjunct professor for Quinnipiac University School of Law, teaching law students how to start and grow their own law practices. She has since taken on consulting full-time. Her entity, Solo Practice University, now teaches hundreds of attorneys how to become solo practitioners. She is additionally a frequent speaker to law schools, bar associations, and professional organizations around the country.
Special thanks to our sponsor, Solo Practice University, a community dedicated to helping lawyers build their very own solo law practice. Check it out at solopracticeuniversity.com.

Source: http://legaltalknetwork.com/podcasts/new-solo/2014/06/staying-motivated-starting-solo-law-practice

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Second Circuit Applies Morrison v. National Australia Bank to Allow Certain Extraterritorial Application of RICO

In European Community v. RJR Nabisco, Inc., Case No. 11-CV-2475 (2d Cir. Apr. 23, 2014), the United States Court of Appeals for the Second Circuit held that the Racketeer Influenced and Corrupt Organizations (“RICO”) statute, 18 U.S.C. § 1961, et seq., could apply to conduct outside the territory of the United States.  In doing so, the Second Circuit addressed the United States Supreme Court’s ruling in Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) [blog article here], which held that United States statutes are presumed not apply to extraterritorial conduct, unless Congress has clearly indicated its intent that the statute have extraterritorial application.  Applying Morrison, the Second Circuit determined that RICO could apply to extraterritorial conduct, because a number of the statutes listed as predicate acts for RICO liability clearly apply extraterritorially.  The Second Circuit ultimately concluded “that RICO applies extraterritorially if, and only if, liability or guilt could attach to extraterritorial conduct under the relevant RICO predicate.”  Thus, even after the Supreme Court’s ruling in Morrison, RICO liability can still attach to foreign conduct where the underlying predicate statute applies to extraterritorial conduct.

In this case, the European Community and 26 of its member states (collectively the “European Community”) brought an action against RJR Nabisco, Inc. and a number of its corporate affiliates (collectively, “RJR”) alleging that “RJR directed, managed, and controlled a global money-laundering scheme with organized crime groups in violation of the RICO statute, laundered money through New York-based financial institutions and repatriated the profits of the scheme to the United States, and committed various common law torts in violation of New York state law.  The complaint alleged a number of predicate racketeering acts, as required by the RICO statue, including violations of the Travel Act, 18 U.S.C. § 1952, and violations of the statutes criminalizing mail fraud, wire fraud, money laundering and providing material support to foreign terrorist organizations.  The complaint also alleged claims under New York state law for fraud, public nuisance, unjust enrichment, negligence, negligent misrepresentation, conversion and money had and received.  RJR filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing primarily that RICO could not apply to extraterritorial conduct in the wake of Morrison.

In considering RJR’s motion to dismiss, the United States District Court for the Eastern District of New York determined that the racketeering enterprise alleged in the complaint was a foreign enterprise “which consisted largely of a loose association of Colombian and Russian drug-dealing organizations and European money brokers whose activity was directed outside the United States.”  The district court held that the complaint failed to state a viable RICO cause of action, because the “focus” of the RICO statute is the racketeering enterprise, and, absent a domestic enterprise, Morrison’s presumption that United States statutes do not apply extraterritorially would preclude such extraterritorial application.

The Second Circuit disagreed, holding that “Congress manifested an unmistakable intent that certain of the federal statutes adopted as predicates for RICO liability apply to extraterritorial conduct.”  The Second Circuit held further that when a predicate act underlying a RICO claim applies extraterritorially, then any claim based upon that act would also.  In support of this holding, the Second Circuit cited RICO predicate statutes that only apply to extraterritorial conduct, such as 18 U.S.C. § 2332, which criminalizes killing and attempting to kill United States nationals outside of the United States.  The Second Circuit found that these predicate statutes exhibited Congress’s intent that, in certain circumstances, RICO should apply extraterritorially.  The Second Circuit then determined that the European Community’s claims that alleged predicate acts of money laundering and providing material support for terrorism could apply extraterritorially in light of the clear indications from Congress that those statutes were designed to criminalize foreign conduct.

The Second Circuit reached a different conclusion with respect to the RICO claims based upon predicate acts of mail fraud, wire fraud and violations of the Travel Act.  The Court held that these claims did not apply extraterritorially because Congress did not exhibit the intent to make those statutes apply extraterritorially.  The Second Circuit, however, allowed those claims to proceed, because it held that the complaint alleged “that RJR essentially orchestrated a global money laundering scheme from the United States by sending employees and communications abroad.”  The Court held that this allegation, and other similar allegations, established a domestic enterprise and that the alleged scheme was directed at the United States in a way that had significant domestic ramifications.  Ultimately, those allegations provided a sufficient domestic nexus for the claims to proceed past the pleading stage.  The Second Circuit, however, made clear that, at trial and on summary judgment, the European Community would be required to provide proof of the domestic nature of those predicate statutory violations.

Whereas the Supreme Court’s decision in Morrison dealt specifically with the Securities Exchange Act of 1934, the Second Circuit’s application of Morrison to RICO claims in this case suggests that Morrison may have significant implications beyond the securities laws.  Future decisions likely will rely upon the Court’s approach here of carefully heeding the underlying principals articulated in Morrison, and requiring a showing of clear Congressional intent before any federal statute will be applied to extraterritorial conduct.

Source: http://www.corporatesecuritieslawblog.com/2014/05/second-circuit-applies-morrison-v-national-australia-bank-to-allow-certain-extraterritorial-application-of-rico/

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License Loss Keeps Habeas Claim Alive 

A petitioner may pursue her habeas claim after completion of a jail sentence; an Augusta County Circuit Court says petitioner’s claim is not moot because she ultimately seeks reinstatement of her nursing license. It is reasonable to suggest that prior to the Supreme Court of Virginia’s decision in E.C. v. Va. Dep’t of Juvenile Justice, ...

Source: http://valawyersweekly.com/2014/01/02/license-loss-keeps-habeas-claim-alive/

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Arizona Execution Raises More Doubts About Lethal Injection

The prolonged execution of a condemned Arizona man is almost certain to heighten the debate over whether lethal injections can be relied upon to fulfill their intended purpose: to kill without cruelty.

Source: http://blogs.wsj.com/law/2014/07/24/arizona-execution-raises-more-doubts-about-lethal-injection/?mod=WSJBlog

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Sound The Retreat (Update)

Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society?  It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment. 

"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding. 

Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions.  Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.

The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.

These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.

It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.

Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.

The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.

But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."

This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.

The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card.  Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?

The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.

The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.

A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?

While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die. 

While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.

As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened.  It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.

Update:  In an interview on Anderson Cooper 360, one of the jurors spoke:

COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?

JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.

This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.

It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.

While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.

It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case. 

While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.



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Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss

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Attorney William Butler suspended

Minneapolis attorney William Butler has been suspended from practicing law in the federal appellate court of the 8th Circuit and the federal court for Minnesota.

Last summer, Chief Judge Michael Davis asked retired Judge James Rosenbaum to investigate Butler’s fitness to appear before this court and to make a disciplinary recommendation. Butler has been hit with more than $300,000 in sanctions by the federal judges in Minnesota.

He defends people whose homes have been foreclosed on. He routinely argues that that mortgage companies do not have clear title to the original notes, therefore the foreclosure is illegal. That argument has been repeatedly rejected in court.

In an order, the court said he uses delay tactics and shops for judges by dismissing lawsuits and them immediately refiling them. In one instance he shuffled the plaintiffs and refiled the same suit with a different lead plaintiff. The court estimated he has filed more than 30 frivolous lawsuits and to date has not paid any of what he owes.

The Appeals Court said he will remain suspended until he pays the sanctions to the Minnesota federal court or the court finds he has “substantially complied with his obligations to it.” Davis said he will not lift his suspension until the Appeals Court reinstates Butler.

 

Source: http://minnlawyer.com/minnlawyerblog/2014/01/16/attorney-william-butler-suspended/

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Sunday, July 27, 2014

6 Key Numbers Every Attorney Should Know

Many lawyers are hesitant to regularly look at their finances. In addition to the regular workload and marketing, maintaining a budget seems overwhelming and is often undervalued in time management. After all, when managing a business, there are so many different factors that can affect cash flow and finances: personnel issues, economy changes, client payment plans, marketing and advertising, clerical errors, and many others. Although it may seem difficult to organize and prioritize the finances of a law firm, there are six key categories that break down the budget so that it can easily be managed.
In this episode of The Un-Billable Hour, host Christopher Anderson interviews financial analyst Brooke Lively about the six key numbers every attorney should know. Three are involved with the money that exists or has already been spent: cash position, budget, and accounts receivable. Lively emphasizes the importance of knowing how much the firm has, how much it is owed, and what is being spent. She recommends that an attorney then take these numbers and analyze them to provide cash projections, budget variance, and income variance. Any noticeable changes can lead to modifications to save the company unnecessary losses. By simply paying attention to these six numbers each month, the success of a lawyer's practice could greatly increase.
Brooke Lively currently serves as a CFO to over twenty small and solo law firms around the country through her organization, Cathedral Capital. She focuses on fundamental analysis, firm modeling, and valuation backed by strong quantitative skills. She holds an MBA with a double concentration in Investments and Corporate Finance and has been awarded the Chartered Financial Analyst certification.

Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2014/07/6-key-numbers-every-attorney-know

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Federal courts warn of email scam

The federal judiciary has learned of an email scam, in which emails purporting to come from federal and state courts are infecting recipients with computer viruses, it announced on its website

According to the Security Operations Center of the Administrative Office of the U.S. Courts, the emails are instructing recipients to report to a hearing on a specified day and time. The emails also instruct recipients to review an attached document for detailed case information. When the attachments or links in the email are opened, a malicious program is launched that infects the recipient’s computer. Several state courts have reported similar schemes, and also are warning the public about potential viruses.

The court’s website states that unless you are actively involved in a case in federal court and have consented to receive court notifications electronically, you generally will not be served with court documents electronically.

 

Source: http://minnlawyer.com/minnlawyerblog/2014/01/20/federal-courts-warn-of-email-scam/

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Novartis Loses Home-State Advantage on Drugs Claim

A federal appeals court has dealt a blow to Novartis? attempt to apply the sharp limits on punitive damages claims of its home state New Jersey to litigation over its cancer drugs Aredia and Zometa.

Source: http://www.nationallawjournal.com/id=1202637622472?rss=rss_nlj

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Pharma sales reps are FLSA exempt as outside salesmen (5-4)

This morning the US Supreme Court decided - on a 5-4 vote - that pharmaceutical sales representatives are "outside salesmen" and therefore exempt from overtime under the Fair Labor Standards Act. The Court also unanimously held that the Department of Labor's recently-announced contrary interpretation was entitled to exactly zero deference.

Christopher v. SmithKline Beacham (US Supreme Ct 06/18/2012)

Christopher, a pharmaceutical sales representative, sued the employer for violation of the Fair Labor Standards Act (FLSA) alleging failure to pay overtime. The trial court granted the employer's motion for summary judgment and denied Christopher's motion to amend the judgment based on the trial court's failure to consider an amicus brief filed by the Secretary of the Department of Labor (DOL). The 9th Circuit affirmed. The US Supreme Court affirmed (5-4).

The job of a pharmaceutical sales representative is to try to persuade physicians to write prescriptions for products in appropriate cases. For over 70 years DOL acquiesced in an interpretation that they were "outside salesmen" who are exempt from FLSA overtime requirements. In amicus briefs filed in Circuit courts DOL took the position that a "sale" requires a "consummated transaction." In Supreme Court briefing DOL's position was that there is no "sale" unless the employee "actually transfers title."

The Court said that the DOL's new interpretation is entitled to no deference at all because it would impose massive liability for conduct that occurred before the interpretation was announced, there had been no enforcement actions suggesting the industry was acting unlawfully, DOL gave no opportunity for public comment, and the interpretation is "flatly inconsistent" with the FLSA.

The FLSA definition of "sale" includes consignments, which do not involve a transfer of title. Although DOL regulations say that sales include the transfer of title, that does not mean a sale must include a transfer of title. The regulations also use the phrase "other disposition" which - in this unique regulatory environment - includes the work of pharmaceutical sales representatives. The representatives also bear all the exterior indicia of salesmen (average salaries exceeding $70,000, work that is difficult to standardize to a particular time frame, etc.)

The DISSENT reasoned that sales of drugs are made by pharmacists, not pharmaceutical sales representatives. The pharmaceutical sales representative neither make sales nor promote "their own sales." (The dissent agreed that the DOL's current views expressed in briefs are not entitled to any weight.)

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Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html

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THE PRACTICE: Retaliation Suits Put Firms Up Against the 'Ropes'

A second critical maxim of employment law litigation is illustrated by the Ropes & Gray lawsuit: Do not speak ill of the departed.

Source: http://www.nationallawjournal.com/id=1202631180267?rss=rss_nlj

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Attorney William Butler suspended

Minneapolis attorney William Butler has been suspended from practicing law in the federal appellate court of the 8th Circuit and the federal court for Minnesota.

Last summer, Chief Judge Michael Davis asked retired Judge James Rosenbaum to investigate Butler’s fitness to appear before this court and to make a disciplinary recommendation. Butler has been hit with more than $300,000 in sanctions by the federal judges in Minnesota.

He defends people whose homes have been foreclosed on. He routinely argues that that mortgage companies do not have clear title to the original notes, therefore the foreclosure is illegal. That argument has been repeatedly rejected in court.

In an order, the court said he uses delay tactics and shops for judges by dismissing lawsuits and them immediately refiling them. In one instance he shuffled the plaintiffs and refiled the same suit with a different lead plaintiff. The court estimated he has filed more than 30 frivolous lawsuits and to date has not paid any of what he owes.

The Appeals Court said he will remain suspended until he pays the sanctions to the Minnesota federal court or the court finds he has “substantially complied with his obligations to it.” Davis said he will not lift his suspension until the Appeals Court reinstates Butler.

 

Source: http://minnlawyer.com/minnlawyerblog/2014/01/16/attorney-william-butler-suspended/

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LawBiz® Legal Pad: Why Do Clients Leave Their Law Firm?

Ed notes that poor client service is responsible for 63% of clients leaving their law firm.

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/0Tk3G4qRRmc/

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CMS Medicare Set-Aside Review and Approval Process

The Medicare Set-Aside Review Process dates all the way back way back to 1980, when The Medicare Secondary Payer Act was enacted. Fast forward to 2014, where the Insurance industry is still waiting for promised improvements. Ringler Radio host, Larry Cohen along with colleague, Tom Blackwell, Vice President and Program Director of Ringler Medicare Solutions, Inc. (RMS), take a look at CMS Medicare Set-Aside Review, the approval process and whether it is still relevant.

Source: http://traffic.libsyn.com/ringler/RR_051514_CMS-MSA.mp3

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Saturday, July 26, 2014

Hookah Copyright Claim Goes Up in Smoke

Although available in various designs and colors, the shape of a hookah's water container is not copyrightable, according to a federal appeals court.

Source: http://www.nationallawjournal.com/id=1202637627585?rss=rss_nlj

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LawBiz® Legal Pad: Ethical Considerations in Collecting Your Fee

Ed discusses managing a client’s fee expectations.

 

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/SRAhfeThnVI/

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EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706

Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).

The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.

The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.

The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.

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Source: http://www.lawmemo.com/blog/2012/11/eeoc_can_use_te.html

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Obesity can be a disability, at least in Montana

Obesity can be a disability, at least in Montana.

Full decision: BNSF Railway v. Feit (Montana 07/06/2012)

Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.

BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.

The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?

The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).

The federal court laid out these facts:

1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.

2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”

3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.

4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.

5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.

6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.

The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).

The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.

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Source: http://www.lawmemo.com/blog/2012/07/obesity_can_be.html

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