Friday, January 31, 2014

UN rights experts commend India high court for death penalty ruling

[JURIST] UN rights experts on Thursday welcomed [press release] the January 21 decision of the Supreme Court of India [official website] commuting [order, PDF] the death sentences of 13 individuals following a finding that their petitions for mercy were unreasonably delayed. The court also commuted the death sentences [JURIST report] of two other individuals on the ground of mental illness. In addition, the court requires all death row prisoners receive regular medical checkups, including mental health status. The new death...


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UN rights expert: attacks against journalists in Egypt need to be investigated

[JURIST] The UN High Commissioner for Human Rights [official website] spokesperson Rupert Colville on Friday voiced extreme concern [press release] about the increasing amount of violent attacks on members of the media in Egypt. Many attacks came on Saturday when journalists were attempting to report stories on the third anniversary of the Egyptian revolution [JURIST backgrounder]. Some of these journalists suffered injuries from live fire from both opponents of the government and police. On Wednesday the Egyptian Prosecutor-General charged [JURIST...


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Reduce, Reuse, Recycle: Effectively Managing E-discovery Portfolios

As big data keeps getting bigger, and discovery costs keep getting higher, it’s important for the litigation team to keep the big picture in sight. With complicated cases, multi-matter management can hone efforts and avoid duplicate tasks and interviews. In this edition of The ESI Report Kroll Ontrack’s Director of Thought Leadership Michele Lange discusses effective project management of e-discovery cases with John Addington.

Senior E-Discovery Analyst of Dell, John Addington focuses on multi-matter management in all phases of large, complex e-discovery projects from collection through production. He is a certified e-discovery specialist and frequently lectures nationwide. His goal is to refine companies’ e-discovery processes to streamline for both efficiency and cost reduction.


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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.


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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.



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Project Aims To Attract, Train Public Defenders

Atlanta-based nonprofit Gideon's Promise has launched a new program called the Law School Partnership Project, aimed at making it easier for Southern public defenders to hire talented new law graduates.


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NLRB "recess" appointments were unconstitutional; Board lacked a quorum

Noel Canning v. NLRB (DC Cir 01/25/2013)

The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.

On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.

At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.

Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."

Lots of chatter from all over:

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Reduce, Reuse, Recycle: Effectively Managing E-discovery Portfolios

As big data keeps getting bigger, and discovery costs keep getting higher, it’s important for the litigation team to keep the big picture in sight. With complicated cases, multi-matter management can hone efforts and avoid duplicate tasks and interviews. In this edition of The ESI Report Kroll Ontrack’s Director of Thought Leadership Michele Lange discusses effective project management of e-discovery cases with John Addington.

Senior E-Discovery Analyst of Dell, John Addington focuses on multi-matter management in all phases of large, complex e-discovery projects from collection through production. He is a certified e-discovery specialist and frequently lectures nationwide. His goal is to refine companies’ e-discovery processes to streamline for both efficiency and cost reduction.


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Thursday, January 30, 2014

The Legal Turbulence Facing Amazon’s Drones

News of Amazon’s plans to use delivery drones surprised many, but the fact is that a number of companies are developing drones for commercial uses. However, before any of these commercial drones can take flight, they need to clear a series of legal hurdles, from winning FAA approval to sorting out liability and privacy issues. In this edition of Lawyer2Lawyer, host Bob Ambrogi invites industry lawyer Ben Gielow and Above the Law editor Elie Mystal to discuss the legal issues facing commercial drones and how they are likely to play out.

Ben Gielow is the government relations manager and general counsel for the advocacy sector of the Association of Unmanned Vehicle Systems International. He has been featured in interviews covering the concept of commercial drones since the beginning regarding what legislation and other requirements are necessary for us to see commercial drones in our airways.

Elie Mystal is the editor of Above the Law. A graduate of Harvard Law School, he left his life as a litigator to pursue a career as an online provocateur. He has written editorials for The New York Daily News, The New York Times, and appeared on MSNBC and Fox News.

Special thanks to our sponsor, Clio.


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California Court of Appeal Holds That Challenges to Corporate Elections Under Corporations Code Section 709 May be Predicated Upon Breach of Fiduciary Duty and Conflict of Interest Allegations

In Morrical v. Rogers, No. A137011, 2013 Cal. App. LEXIS 811 (Cal. App. Oct. 10, 2013), the California Court of Appeal, First District, held that the summary procedures set forth in California Corporations Code § 709 may be used to contest corporate elections predicated upon complex and substantive allegations of corporate or directorial misconduct, such as conflicts of interest and breaches of fiduciary duty.  The Court rejected defendants’ argument that the California Legislature intended to limit Section 709 proceedings to challenges predicated upon technical or procedural irregularities in the corporate election process.  This decision reinforces the broad authority of California state courts to adjudicate even complex matters in summary proceedings in order to determine the validity of corporate elections.

Section 709 of the California Corporations Code permits shareholders, or any person who claims to have been denied the right to vote, to challenge the validity of corporate elections by California corporations or elections by foreign corporations that are held in California.  The Section 709 proceeding here was one of many legal actions springing from a series of longstanding disputes between plaintiff and her brothers (the “Brothers”) over the management of a group of family-owned corporations.  In it, plaintiff challenged an election that restructured the board of directors and effectively gave control of the corporation to an outside management company.  Plaintiff argued that the vote, which was passed by the Brothers over her objection, was invalid because the Brothers’ financial transactions with the management company gave them a material financial interest that should have disqualified them from voting.  The resulting election was invalid under California Corporations Code § 310, she claimed.

Plaintiff sued individually and derivatively on behalf of two of the family corporations.  She named as defendants the management company Altamont Management and the new Altamont directors appointed during the election (collectively, “Altamont”).  Plaintiff did not sue either of the Brothers.  Altamont moved for judgment on the pleadings because the Brothers had not been joined, but the California Superior Court for San Mateo County denied the motion.

Eight weeks later, the Superior Court held a seven-day bench trial.  At the parties’ request, the judge deferred her ruling so the parties could talk settlement.  When those efforts were unsuccessful, the judge issued an oral ruling in favor of plaintiff.  The court held that plaintiff had carried her burden of proving that the voting directors had a financial interest and that Altamont had failed to show that the election was just and reasonable to the company.  In the resulting judgment, the trial court declared the election and appointment of the Altamont directors invalid, set aside numerous acts taken by the Altamont directors in connection with the election and prohibited the Altamont directors from acting as directors and in related roles.  The trial court stayed enforcement of the judgment while Altamont appealed.

The Court of Appeal affirmed the trial court’s use of a Section 709 summary proceeding to adjudicate the alleged breach of fiduciary duties and conflict of interest.  In a detailed analysis, the Court concluded that the plain language of Section 709, the context of the statutory scheme, the legislative history and the relevant case law did not limit Section 709 to challenging corporate elections based upon technical or procedural irregularities, as Altamont had argued.  In fact, the Court noted, courts have repeatedly used Section 709 or predecessor statutes to decide similarly complex issues affecting the validity of an election, such as alleged manipulation of stock records, financial transactions underlying stock issuance, the validity of a voting trust agreement and the legality of an underlying contract.

The Court also rejected Altamont’s argument that summary determination of such complex allegations violates a defendant’s procedural due process rights under the California Constitution.  Specifically, Altamont argued that Section 709 proceedings deprive defendants of sufficient time to find and present witnesses because the statute requires a hearing within five days after the complaint is filed.  The Court disagreed.  The “hearing” required by the statute was not necessarily a full trial on the merits.  Moreover, a savings clause in the statute adequately protected defendants’ due process rights by allowing them to move for a later hearing for good cause.  The Court also denied Altamont’s discovery-based constitutional claims.  The summary nature of Section 709 proceedings did not imply a corresponding restriction on discovery, and Altamont was not unfairly denied discovery in the trial court.  The Court, however, noted that its rejection of Altamont’s due process claims did not preclude the possibility that summary proceedings involving complex issues might result in due process violations in other cases, particularly if a party is deprived of adequate discovery and preparation time.

The Court, though, nevertheless reversed and remanded the case because plaintiff had not joined the Brothers, whose interests could be impaired by the result of the lawsuit.

The Morrical decision highlights the broad-based powers California state trial courts have to decide even complex allegations in Section 709 proceedings, when those allegations relate to validity of corporate elections.  The decision is significant also for foreign corporations as well as California corporations, as Section 709 expressly applies to foreign corporations “if the election was held or the appointment was made in this state.”  Cal. Corp. Code § 709(a).

For further information, please contact John Stigi at (310) 228-3717 or Andrea Feathers at (213) 617-4150.


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Dayton’s contract with Lillehaug for shutdown work violated statute

Justice David Lillehaug

Justice David Lillehaug

When he first signed on to serve as legal counsel to Gov. Mark Dayton during the 2011 shutdown, David Lillehaug agreed to do so pro bono.

That arrangement changed, however, as the shutdown wore on. Lillehaug and his former law firm Fredrikson & Byron billed for their time. [LiIllehaug was appointed to the Minnesota Supreme Court last March.] Ultimately Fredrikson charged $77,000 for the work.

There is nothing wrong with hiring an outside lawyer, but the Minnesota Office of Legislative Auditor said that when Dayton’s office decided to pay Lillehaug, it violated state statute and policy. The OLA recently published its audit of the Governor’s Office.

The report said that when Dayton’s office hired the firm it did not draft a professional contract and instead used an engagement letter. The letter did not specify an end date for the legal work and did not set a cap on the attorney fees. The Governor’s did not free up funds to pay for the services either.

The report recommended the Governor’s office develop procedures to execute contracts that comply with state statute.



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Rachel Vitti: Duval superintendent's wife making her own mark on educational and human rights issues (Florida Times-Union)

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Court Enters Owners’ Draft Order 

A Richmond Circuit Court will enter a dismissed agreed order submitted by defendant owners, in this dispute over whether a money judgment order should be entered or a dismissed agreed order due to the payment of the amount the court has said is due from defendants to plaintiff. The matter of the American Institute of ...


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Protip: Don't Screw With Old Folks

A squad of 18 deputies in Cook County were very aggressive in trying to collect money from deadbeat dads, using whatever methods they needed to bring these culprits to justice.  When they put a gun to 77-year-old Merien Macon's head, however, they messed with the wrong person. From the Chicago Tribune:

When the unit arrived at the Macons' home, two weeks before Merien's arrest, officers had two outstanding warrants for couple's son, Derrick Macon, then 50, including one for child support. Officers insisted they be allowed into the home, William Macon said.

Because the officers did not have a search warrant, William Macon refused, he said.

William Macon, 83 years old, wasn't to be easily pushed. You gotta love tough old birds. And before anyone gets all bent out of shape about his "derelict" deadbeat son, it turns out that while the team knew all about the outstanding warrants for child support, they somehow missed the order holding that he wasn't the father of the child. But let's not have facts impair a good story.

When the deputies saw Merien drive up to the back of the home, they approached with guns drawn — one pointed at her head as she sat in the car — and pressed her about her son's whereabouts, according to the lawsuit.

"I was really surprised when they walked up with their guns," Merien Macon, a retired clerical worker, said last week. "I was scared. I was shocked. I was surprised."

Macon, who had dropped off her son earlier, told them she didn't know where he was and she did not want to answer questions, [Macon's lawyer, Elizabeth] Kaveny said.

And so the deputies, duly chastised by their overly violent conduct frightening a nice old woman, apologized profusely and left her in peace outraged by her refusal to do as they commanded, decided to teach an old woman a lesson.

At that point, Merien Macon became upset and told the officers she would not speak to them. The officers handcuffed, frisked and arrested Merien Macon on a charge of obstruction of justice.

The officers then took her to a nearby parking lot, where they gave her a phone and told her to call her son and find out where he was.

Merien's husband, William, a retired electrician, called that "a hostage situation," attempting to trade off his wife for his son. The sheriff's office claimed that was not at all the case, and they were just being thoughtful.

The sheriff's office denied attempting to pressure Macon to call her son and said she was moved to the parking lot because her husband had become upset and neighbors were starting to gather.

They didn't want to upset old William by forcing him to watch her cuffed, frisked and with guns pointed at his wife's head. A very sensitive gesture in law enforcement, likely to win a medal at some point.

The Macons sued for what was done to Merien.

Merien Macon was charged with felony obstruction of justice, leading her to file a lawsuit against Sheriff Tom Dart and the officers involved. A Cook County jury recently sided with her, awarding Macon $327,500 and agreeing with her husband that what happened that afternoon went too far.

Frankly, that's a very healthy award, give that most plaintiffs in her situation could hope for a fraction of that at best. But then, picture a jury hearing the testimony in this case, looking at the 77-year-old woman and her loving 83-year-old husband, and pondering the cuffs on her wrists, the hands on her body, the gun at her head, all over a mistaken child support warrant. It doesn't get more sympathetic than this.

"I've seen this type of thing over and over and over," William Macon said. "But when it happens to you it becomes more personal."

Truth. Unless you happen to be knowledgeable about your rights, have the guts to assert them with a gun pointed at your head and, purely by happenstance, a couple of cool codgers, chances aren't good you would end up with a verdict of this magnitude. This makes it an exceptionally good reason to both applaud the Macons, and to care a whole lot about when things like this happen "over and over and over." Because next time it could be you, and it will, without question, become "more personal."

H/T Spencer Neal

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Mark Woods: Degree issue is no fish story (Florida Times-Union)

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Concern Raised Over Opt-Out Terms of NFL Concussion Settlement

The NFL’s $764 million concussion settlement with retired players may appear to be within inches from the goal line, but the family of the late NFL star Junior Seau is putting up resistance, emerging as one of the most vocal critics of the proposed settlement.


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Wednesday, January 29, 2014

How to be a Good Legal Negotiator

Ringler Radio, host Larry Cohen along with colleague, Bill Wright, and special guest Professor Seth Freeman, J.D., a highly-rated professor of negotiation and conflict management at NYU’s Stern School of Business and at Columbia University, discuss negotiation tactics, in particular the art of skilled legal negotiating, along with observations and advice to attorneys when it comes to preparation.


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Fla. Pot Amendment Puts Cloud Over Anti-Seizure Marijuana Debate

Backers of a non-euphoric strain of cannabis that helps reduce seizures in children aren't giving up on a legislative fix, but the politics of pot could make their uphill battle even steeper.


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Privacy Fence Violates Injunction 

A defendant who erected a privacy fence along a concrete alleyway, with a gate, has violated a court injunction against unreasonable interference with plaintiff’s easement in the concrete alleyway, and the Richmond Circuit Court orders the privacy fence removed The Supreme Court of Virginia in Hartsock v. Powell, 199 Va. 320 (1957), has said that ...


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States Consider Firing Squad as Alternative to Lethal Injection

As death penalty states struggle to obtain drugs suitable for lethal injections, more old-fashioned methods of executing prisoners are getting another look.


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NLRB's recent significant decisions

The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.

The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.

Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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Officer Safety and Second Hand Smoke

Via John Wesley Hall at Fourth Amendment, a decision out of the 10th Circuit that puts an end to the pressing question of whether second hand smoke presents a sufficient justification to circumvent the 4th Amendment and enter a home without a warrant.  Lest you think this is too ridiculous to be worthy of consideration, bear in mind this is on appeal, the district court having denied suppression.

In United States v. Mongold, Special Agent Ashley Stephens (who apparently is male) of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) was investigating Claudia Moore, whom she knew to be a felon from prior dealings, for drug dealing. After conducting observations, she, together with three other agents, went to Moore's apartment to conduct a "knock and talk," since she lacked probable cause to get a warrant.

Aside: For those unaware, a "knock and talk" is a means of circumventing the warrant requirement by relying on submission to the shield, lies, fear and the possibility that the agents might either see or cause something to happen to give rise to an exception to the warrant requirement that would allow them to enter a home. And yes, it's been held to be perfectly lawful since anyone, cop or Fuller Brush salesman, can knock on your door and say "hi." Or scream "police", as the case may be.
According to the testimony, Stephens heard "scurrying and shuffling" inside the apartment upon her knocking on the door, "which immediately caused us concern." A male voice asked who it was, and after he responded "police," there were "loud movements" and a "short delay" before Mongold opened the door. That's when the bad stuff happened.

After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house.

Once inside, they saw ammunition. Knowing that Moore was a prior felon, possession of ammunition was a crime, and it went downhill from there. Mongold, Moore and her two adult children subsequently consented to a search of the place, which found drugs and guns. 

The defendant moved to suppress before the district court, based on the initial warrantless entry. The government's argument below was that the smell of marijuana, combined with the "prison tats" on Mongold's arm, suggesting that he too was a felon, created a justifiable fear of officer safety, which allowed for Stephens to enter for a protective sweep. The court below also held the entry justified under exigent circumstances to preserve evidence.

The Circuit wasn't as impressed.  While the court acknowledged that the smell of marijuana is accepted as a basis to believe there is pot inside, it merely gives rise to a belief that it's basic possession of marijuana.

Based on the foregoing, if marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime.

But that wasn't the only argument.  There remained their deep concern for the safety from the smell (yes, I'm being facetious calling it "second hand smoke," because it's unclear whether the smell is smoke or fresh pot, and the opinion really has nothing to do with the second-hand smoke aspect in any event).

At the suppression hearing, Agent Stephens argued that he feared for his and the other officers' safety because the home's owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his "prison tattoos."

Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had "reasonable grounds to believe that there [was] immediate need to protect their lives or others." Before entering the home, the officers had not seen a weapon or any other indication of heightened danger.

Even the use of cool active verbs ("scurrying"), curious descriptors ("loud movements") and expressions of deep concern reflecting both the terrible, life-and-death dangers of conducting a "knock and talk" to circumvent the Constitution, didn't sway the court.  Instead, the court reached the conclusion of remarkably wisdom:

They could most easily have protected the officers' safety by leaving Ms. Moore's home, not by entering it.

An idea so radical, so outlandish, that it never occurred to either the agents or the prosecutors: walk away. While this might make for good fodder to be chiseled into the lintels over courthouses everywhere, the bad news is that the opinion, while persuasive, is not precedential:

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value.

This, of course, means that the next time a second-hand smoke case arises, the district judge may not be willing to adopt such a radical concept as expecting the agents to walk away rather than conduct a warrantless search of a home after smelling marijuana or seeing prison tats, because they're very scary to agents.

And don't discount the possibility that if the odor was of burning pot, the agents would be authorized to break down the door to protect themselves from the second hand smoke. Truth is, this opinion doesn't preclude such a holding at all. It could still happen.





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Obama Touts Voting Rights Bill, Patent Reform

In his State of the Union speech Tuesday night, President Barack Obama urged Congress to take up patent reform and to restore the Voting Rights Act in the wake of a U.S. Supreme Court ruling that he said "weakened" the anti-discrimination law.


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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.


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Tuesday, January 28, 2014

Dorsey partner jumps to Cozen O’Connor

Christopher Bellini, the former chair of Dorsey & Whitney’s Private Equity group, has joined the Minneapolis office of Cozen O’Connor.

Cozen opened its Minneapolis office in June 2013 by hiring eight attorneys from the Minneapolis office of Hinshaw & Culbertson. The firm’s office is in the 33 South 6th Street building in downtown Minneapolis.

Bellini was a partner in Dorsey’s Corporate Group, and a member of the Capital Markets, Mergers and Acquisitions and Venture Capital and Emerging Companies practice groups.

Bellini focuses his practice on mergers and acquisitions of publicly and privately held companies and private equity acquisitions and divestitures.

He also assists clients with transactions involving SEC-registered public offerings and private placements, and he works closely with private equity funds and start-up companies with transactions of private equity and venture capital.

He earned an LL.M. from New York University School of Law, where he was graduate editor of the NYU Journal of International Law and Politics, and his J.D. from the University of Minnesota Law School. He also received his B.A. cum laude in economics from the University of Minnesota.

“In just a few short months, Cozen O’Connor has made its mark in Minneapolis, and we are excited that Chris will be part of our team, as we continue to deepen our bench,” said the office managing partner Thomas G. Wallrich in a press release announcing the hire. “Minneapolis is a strong business hub, and our continued growth will allow us to better serve clients in the Midwest and across the country.”





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Mark Woods: Money can’t buy off a $2,000 mirror (Florida Times-Union)

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ICJ rules on maritime border dispute between Peru and Chile

[JURIST] The International Court of Justice (ICJ) [official website], the UN's highest court, issued a ruling [opinion, PDF] establishing a new maritime boundary between Peru and Chile [BBC backgrounders] on Monday. The ICJ granted [press release, PDF] Peru some parts of the Pacific Ocean formerly controlled by Chile but left Chile prosperous coastal fishing grounds. The decision ends disputes over the 14,670 square miles of abundant fishing waterways. Peru had wanted the maritime board to extend perpendicularly from where the...


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The Butcher, The Baker and FISA

The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace.  But it will happen nonetheless.

Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some.  While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.

To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001.  In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right.  The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.

This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends. 

Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?

And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing.  It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall.  I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.

Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle."  Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. 

This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.

There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist.  Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.

That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it.  Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself.  Ronald Reagan, for all his faults, was elected on the platform that government was the problem.  Baker disagrees.

I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports.

More importantly, I lived it.  And I never want to live through that particular Groundhog Day again.  That’s why I’m here.

The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed.  There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome.  What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law.  Baker plays the same cards.

Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event.  Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us.  That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see. 

Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11.  There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.

But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.

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Can’t Stand The Thought Of Living Without Your Purebred Miniature Vietnamese Potbellied Pig?

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You’ve never been a dog or cat person. No, you have always been drawn to purebred miniature Vietnamese potbellied pigs. But folks in so many places just don’t understand. Well, in Atlantic Beach, Florida, you’ll fit right in. Check out this portion of the municipal code on animals:

Sec. 4-7. Keeping or maintaining certain animals in the city.

(a) It shall be unlawful for any person to keep or maintain horses, mules, cows, cattle, chickens, poultry, or goats in the city, except for in special events, as approved by the city manager.

(b) It shall be unlawful for any person to keep a hog or hogs upon any property or premises located within the limits of the city, with the sole exception of a bona fide, purebred miniature Vietnamese potbellied pig which is kept for the sole purpose of providing human companionship and which is in compliance with all other applicable provisions of this Code. Miniature Vietnamese potbellied pigs may be kept as household pets under the following conditions …

Welcome! (You can find the rest of this code section – and there is a lot – here.  Click on “Chapter 4 – Animals” then “Article 1″ then Sec. 4-7. )


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LawBiz® Legal Pad: Client Relations

What can law firms do to interact with their clients more effectively? In today's clip, Ed will share a few ideas, such as developing a checklist of questions and creating surveys that will address this issue.


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LawBiz® Legal Pad: Senior Olympics

A few weeks ago, Ed competed in the cycling events at the Senior Olympics. Today, Ed reflects on how that experience relates to his professional life and the Business of Law.


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California Court of Appeal Clarifies Rights of Dissenting Minority Shareholders Under California Corporation Code § 1312(b)

In Busse v. United Panam Fin. Corp., No. G046805, 2014 Cal. App. LEXIS 11 (Cal. App. Jan. 8, 2014), the California Court of Appeal, Fourth Appellate District, held that when parties to a buyout are under common control, dissenting minority shareholders have the right to set aside or rescind an invalid corporate buyout under Section 1312(b) of the California Corporations Code.  The Court also held that dissenting minority shareholders may not seek monetary damages under Section 1312(b).  This decision clarifies that Section 1312(b) acts as a limited exception to Section 1312(a) of the California Corporations Code by providing dissenting shareholders not only with the general remedy of appraisal, but also with the right to stop or rescind a buyout if the transaction is invalid.  Furthermore, Busse emphasizes that dissenting shareholders may not seek damages arising out of a buyout, even in common control situations.

Plaintiffs were minority shareholders of United Panam Financial Corporation (“Panam”), a publicly traded company that made subprime loans on used cars.  Defendant Guillermo Bron (“Bron”) owned 38% of Panam’s stock and generally had power over the corporation’s affairs.  Bron allegedly developed a buyout scheme in which he and his partner would acquire Panam’s stock at a bargain price.  In furtherance of this plan, Bron allegedly had Panam’s directors set up an independent committee that valued the stock far below book value.  Later, Panam’s shareholders approved the buyout by Bron’s group, and the transaction was completed sometime after February 24, 2011.

Plaintiffs filed a class action for breach of fiduciary duty and sought either to rescind the buyout or to receive rescissory damages under Section 1312 of the California Corporations Code.  Section 1312 governs the rights of minority shareholders who dissent from corporate buyouts or mergers.  Section 1312(a) limits the rights of dissenting minority shareholders exclusively to an independent appraisal of their shares’ value.  Consequently, under Section 1312(a), dissenting shareholders do not have a right at law or in equity to attack the validity of a buyout or merger.  Section 1312(b), however, provides that, if the parties to a merger or buyout are under common control:

[Section 1312(a)] does not apply to any shareholder . . . who has not demanded payment of cash for that shareholder’s shares pursuant to [chapter 13]; but if the shareholder institutes any action to attack the validity of the reorganization or short-form merger or to have the reorganization or short-form merger set aside or rescinded, the shareholder shall not thereafter have any right to demand payment of cash for the shareholder’s shares pursuant to [chapter 13].

The primary question presented in Busse was whether Section 1312(b) provided dissenting minority shareholders with the right to sue for rescissory damages (i.e., monetary damages).

The trial court sustained Bron’s demurrer, reasoning that (1) plaintiffs’ complaint did not sufficiently allege Bron’s common control and Section 1312(b) was therefore inapplicable and (2) rescissory damages are not available under Section 1312(b).  Plaintiffs appealed.

The Court of Appeal reversed the trial court’s decision that plaintiffs failed to allege sufficient facts showing Bron held common control.  Common control — which occurs if one party is directly or indirectly controlled by, or under common control with, another party to a transaction — must exist for Section 1312(b) to apply.  The Court of Appeal determined Bron held at least indirect control over Panam because Bron possessed 38% of the voting power of Panam’s shareholders, Bron was chairman of the board of directors, and Bron acknowledged he possessed substantial influence over the company’s affairs.  Thus, the Court of Appeal concluded that plaintiffs sufficiently alleged facts showing Bron held common control.

Next, the Court of Appeal addressed whether under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind the buyout or, in the alternative, to receive “rescissory damages.”  The Court affirmed the trial court’s judgment that under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind or set aside the buyout.  Furthermore, the court affirmed that under Section 1312(b) Panam’s dissenting shareholders were barred from seeking rescissory damages.

The Court of Appeal began its discussion of shareholders’ rights under Section 1312(b) with a review of the legislative and judicial history of Section 1312.  The history of Section 1312 made clear that courts and the legislature intended to limit dissenting shareholders’ remedies to an appraisal of their shares.  With this limitation in mind, the legislature recognized the potential for abuse in transactions where parties to a buyout are under common control.  Indeed, in these transactions the controlling party is, in effect, dealing with itself.  To protect minority shareholders from abuse in common control situations, the Court of Appeal determined Section 1312(b) provides a dissenting minority shareholder not only with an appraisal remedy, but also with the remedy of setting aside or rescinding a buyout.  However, the Court found this was the only additional remedy available to shareholders, and the courts and legislature never intended to provide minority shareholders with the right to seek monetary damages under Section 1312(b).

Thus, while the Court of Appeal affirmed the trial court’s judgment that plaintiffs were precluded from seeking “rescissory damages,” it reversed the trial court’s judgment that plaintiffs did not allege sufficient facts to demonstrate Bron’s common control and found that Section 1312(b) applied.  Consequently, the Court of Appeal remanded for the resolution of whether the minority shareholders of Panam may rescind Bron’s buyout under Section 1312(b).

Busse clarifies what remedies are available to dissenting minority shareholders under Section 1312(b).  Shareholders have the general right to an appraisal of their shares’ value.  Additionally, Section 1312(b) gives dissenting shareholders the right to rescind or set aside a merger or buyout.  This additional remedy helps protect minority shareholders in common control situations, which are particularly susceptible to fraud and abuse.  However, minority shareholders are still barred from seeking monetary damages or, as stated in Busse, rescissory damages under Section 1312(b).


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Monday, January 27, 2014

Ukraine protesters seize Ministry of Justice building

[JURIST] Anti-government protesters on Sunday seized and occupied the Ukrainian Ministry of Justice building in Kiev and did not disperse until a government minister threatened to initiate a state of emergency Monday morning. The Ukrainian civic group Spilna Sprava, translated as "Common Cause," has reportedly claimed responsibility [RT report] for the Ministry of Justice raid and earlier raids at the Ministry of Agriculture and Ministry of Energy buildings. The formerly peaceful protests have become increasingly violent with reports of detained...


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Judge Tells Hospital To Take Pregnant Woman Off Life Support

A North Texas judge has ordered a Fort Worth hospital to remove life support from a woman who is 22 weeks pregnant. Her family says Marlise Munoz is brain-dead; the hospital has cited a state law requiring her to be kept alive.

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Eric Turkewitz on Legal Blogging

Eric Turkewitz, of The Turkewitz Law Firm and author of the New York Personal Injury Law Blog, offers dos and don'ts for first-time legal bloggers.


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Supreme Court Watch: Employment law cases

We will be watching three pending cases at the US Supreme Court as the Court's session opens today:

Kloeckner v. Solis
Oral argument on October 2.

The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."

Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

Vance v. Ball State Univ
Oral argument on November 26.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.

Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Genesis HealthCare v. Symczyk
Oral argument December 3.

Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.

Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.

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Hospital In Texas Removes Life Support From Brain-Dead Woman

Marlise Munoz, who was 14 weeks pregnant when she suffered a pulmonary embolism, was the subject of a weeks-long court battle.

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Virginia AG refuses to defend same-sex marriage ban

[JURIST] Virginia Attorney Genera lMark Herring [official profile] announced [press release] Thursday that his office will no longer defend legal challenges to the commonwealth's ban on same-sex marriage. Herring explained his position saying, "After thorough legal review, I have now concluded that Virginia's ban on marriage same sex couples violates the Fourteenth Amendment [text] of the US Constitution on two grounds: marriage is a fundamental right being denied to some Virginians, and the ban unlawfully discriminates on the basis of...


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Charley Zimmer failed at retirement -- and for that Episcopal can be thankful (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 News, RSS and RSS Feed via Feedzilla.


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An Alleged 'Goodfella' Gets Indicted, Decades Later

More than 30 years after the crime, authorities in New York have charged an alleged mobster in connection with the Lufthansa heist at JFK Airport. At the time, it was the biggest robbery in US history. It's still one of the most famous, thanks to the film, Goodfellas.

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Sunday, January 26, 2014

Can You Burgle Yourself?


The Juice is a personal injury lawyer, not a criminal lawyer. Nevertheless, it’s obvious that you can’t steal your own stuff. But you can fake a burglary. The question is, why would you? As reported by The New Hampshire Union Leader:

Police said they responded to the 11 Cranberry Lane home of Theresa Cantella, 25, on Jan. 15 and found her lying at the bottom of a flight of stairs. She said she suffered injuries after interrupting a burglary and was assaulted by an intruder.

Police said in a release that a subsequent investigation did not match evidence at the scene with Cantella’s original statement.


During a follow up interview at the Brookline police station, “Cantella confessed she fabricated the story, caused injury to herself and staged the scene at her residence to make it appear as if she walked in on a burglary in progress,” the release said.

Okay. Why would you do that?

She did not give a reason why she fabricated the story, police said.  She was charged with making a false report and is scheduled to appear Feb. 4 in Milford Circuit Court.

What? You’re leaving us hangin’? Here’s the source, with Ms. Cantella’s mug shot.


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