Interested in making your firm more profitable? This video is for you.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/LA-hViXx0Yw/
Monday, June 30, 2014
LawBiz® Legal Pad On the Road!: Old Files
Pop Quiz! When do you get rid of client documents? A) As soon as the case is over B) 2 years after case is closed C) Never. Watch this week’s clip to hear Ed’s answer…
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/D-wTwE4yQew/
LawBiz® Legal Pad: Retainers- Do They Do Any Good For You?
Ed examines the complexities of retainers and discusses their use within the legal profession.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uUcsklaftuY/
UN sets up human rights inquiry for Eritrea
[JURIST] The UN Human Rights Council [official website] on Friday adopted a resolution [press release] establishing a commission of inquiry to investigate alleged human rights abuses in Eritrea. The council also condemned the human rights violations, including enforced disappearances, torture and restrictions on freedom of speech and religion. Arbitrary imprisonment is also a problem, with military commanders reportedly imprisoning groups of people for no reason and without trial. The commission of inquiry will last one year, and then it will...
Source: http://jurist.org/paperchase/2014/06/un-sets-up-human-rights-inquiry-for-eritrea.php
commercial law common law company law conservator copyright lawyer
Panel Presentation Pointers for Legal Professionals
Tom and Dennis do a lot of speaking, often as part of a panel. Most presentations these days take the form of a panel or other multi-speaker format. Presenting with others is quite different from presenting alone. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss the advantages and disadvantages of panel presentations, how to prepare for and avoid common pitfalls and practical tips for novice and veteran presenters.
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Sunday, June 29, 2014
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 ...
Source: http://valawyersweekly.com/2014/01/02/privacy-fence-violates-injunction/
Sidley Austin Looks to Riverbed to Build a Broader Network
Sidley Austin had a legacy network connecting its 17 offices in the U.S., Asia and Europe, resulting in slow data transfers and limiting the firm's ability to centralize IT resources. To create better connectivity between offices, the firm upgraded its network with Riverbed appliances.
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
criminal lawyers cyber law defense attorney defense lawyer discrimination lawyers
Does A Consumer’s Exercise of a Rescission Right Mean that the Loan Is Automatically Rescinded? Perhaps Not, According to One Federal Court, If the Consumer Does Not Also File a Lawsuit for Rescission
In Baker v. Bank of America, N.A., No. 5:13-CV-92-F, 2014 U.S. Dist. LEXIS 9578 (E.D.N.C. Jan. 27, 2014), the United States District Court for the Eastern District of North Carolina held that even if a consumer timely exercises his or her right to rescind a loan transaction under the Truth in Lending Act (TILA), 15 U.S.C. § 1601, et. seq. — i.e., during the three-day statutory “cooling-off” period — that exercise does not automatically cause the loan to be rescinded. Rather, the court held, if a consumer’s notice of rescission is met with silence by the lender, the consumer must also file a lawsuit in order to complete the rescission before the statute of limitations expires (in this case, the statute of limitations was determined to be four years). The Baker case provides a thorough interpretation of the effect of the statutory three-day “cooling-off” period, for which, it was noted in the decision, case law is “exceedingly sparse.”
In Baker, the consumer entered into a refinancing transaction knowing that the terms were less favorable than the consumer had been quoted. Two days after closing the loan, the consumer mailed a signed rescission notice to the lender. The lender did not respond to the notice and funded the consumer loan. The lender allegedly refused to rescind the transaction despite multiple requests from the consumer. The consumer, unable to refinance on more favorable terms, eventually became delinquent on the loan and foreclosing procedures were initiated. Personal bankruptcy proceedings resulted in a discharge of the personal obligations under the loan but the foreclosure proceedings continued on the basis of the lender’s security interest in the property.
This case arose when the consumer responded to the continued foreclosure proceedings by filing an action for rescission pursuant to the TILA, nearly six years after the original notice of rescission had been sent to the lender. The defendants moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The consumer argued that the rescission automatically voided the security interest pursuant to Section 1635(b) of the TILA, which provides that “when an obligor exercises his right to rescind . . . he is not liable for any finance or other charge and any security interest given by the obligor . . . becomes void upon such a rescission” (emphasis added). The consumer argued that this sentence provided for an automatic right of rescission that voided the transaction so long as the consumer sent notice of rescission within the three day statutory period.
The court disagreed. Instead, the Court distinguished between the “exercise” of the right of rescission and “full rescission.” The exercise of the right to rescind is accomplished by the giving of notice, whereas the full rescission is defined by a “full unwinding of the transaction and a return to the status quo.” Because the security interest becomes void only upon rescission, the lender maintained a security interest that could be foreclosed upon until such time as the transaction was fully rescinded.
In reaching its conclusion, the Court declined to follow unpublished decisions from the United States Court of Appeals for the Ninth Circuit (which includes California) and the United States District Court for the Eastern District of Pennsylvania (within the Third Circuit), which had previously held that the notification made pursuant to the TILA automatically voided a security interest. Rather, the Baker court held, where, as here, a lender fails to respond to a consumer’s exercise of his or her right to rescission within the three day statutory period, the consumer “must file a lawsuit to complete the rescission process in cases where the lender fails to respond to the notice or otherwise fails to recognize the borrower’s rescission rights.”
It is worth noting here that the Supreme Court granted certiorari on April 28, 2014 to a case which hinges on the question of whether or not the TILA right of rescission for the lender’s failure to furnish required disclosures must be invoked by filing a lawsuit or whether such rescission is automatic upon notice made within the three-year statutory period. See Jesinoski v. Countrywide Home Loans, Inc., 729 F.3d 1092 (8th Cir. 2013) (per curiam), cert. granted, No. 13-684 (U.S. Apr. 24, 2014).
The Baker court also disagreed with the consumer that lawsuits seeking rescission pursuant to the TILA have an unlimited limitations period. The court held that such a limitations period would cloud title to property to such an extent that Congress could not have intended that the right of rescission have an unlimited limitations period. However, the court did not wade too deeply into the debate regarding which statute of limitations was appropriate. Here, the right of rescission — that is, the right to sue for rescission — arose at the very latest when the lender failed to respond to the notice of rescission within the twenty day statutory period. The suit in Baker was filed nearly six years later and therefore must have been untimely. Although the court discussed the conflicting decisions of a number of other courts that placed the statute of limitations at the one-year and three-year mark, the court in Baker ultimately concluded that the relevant statute of limitation is “at most four years” and continues its analysis no further.
Given the uncertainties in the statute of limitations noted by the court, which identified decisions concluding the statute of limitations in these cases is as short as one-year, three-years or “at most four years,” the fate of individual rescission claims will remain varied. In addition, a consumer may be required to assert a claim for rescission in order to effect the full rescission desired, but a lender that fails to take “any action necessary or appropriate to reflect the termination of any security interest” within twenty days after receiving notice of rescission remains liable for civil penalties. Although such civil penalties are subject to a one-year statute of limitations, the TILA does provide for attorney’s fees in cases where the lender violates the TILA by failing to respond to a timely notice of rescission. Thus a lender would still be wise to consider the risks and costs of litigation, civil penalties and attorney’s fees before ignoring a notice for rescission.
LawBiz® Legal Pad: Selling Your Practice
Will you be one of the 400,000 lawyers retiring in the next 10 years? Ed discusses what to do when it’s time to move on.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/-MWLcvfob-M/
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The Federal Laws that Affect Workers Compensation Claims
When a workers' compensation claim is made, there are many elements of federal law that get triggered. Among those elements are the Civil Rights Act of 1964, Family and Medical Leave Act, and Americans with Disabilities Act. As an employer, navigating these intersecting laws can be a challenging task while running a business. On this episode of Workers Comp Matters, host Alan Pierce interviews Melissa Fleischer from the HR Learning Center LLC. Together they discuss multiple federal components affecting workers' compensation claim rights and duties. In addition they talk about when workers can be terminated, healthcare commitments under COBRA, and unpaid leave. Tune in to learn more about different paperwork requirements under the different federal laws plus much much more.
Melissa Fleischer, Esq. is the President and Founder of HR Learning Center LLC with 20 years of law practice experience specializing in employment discrimination litigation. Her HR consulting firm specializes in providing workplace solutions and training to employers on a wide range of legal and human resource management issues. She was previously associated with Epstein Becker and Green in NYC and served as a chapter editor for the Family and Medical Leave Act Treatise, published by the Bureau of National Affairs. Ms. Fleischer is also an adjunct faculty member with the Professional Development Center at SUNY/Westchester Community College in Valhalla, New York and a member of the Society for Human Resource Management (SHRM).
Special thanks to our sponsor, PInow.
Melissa Fleischer, Esq. is the President and Founder of HR Learning Center LLC with 20 years of law practice experience specializing in employment discrimination litigation. Her HR consulting firm specializes in providing workplace solutions and training to employers on a wide range of legal and human resource management issues. She was previously associated with Epstein Becker and Green in NYC and served as a chapter editor for the Family and Medical Leave Act Treatise, published by the Bureau of National Affairs. Ms. Fleischer is also an adjunct faculty member with the Professional Development Center at SUNY/Westchester Community College in Valhalla, New York and a member of the Society for Human Resource Management (SHRM).
Special thanks to our sponsor, PInow.
LawBiz® Legal Pad: Pre-owned Car
Interested in making your firm more profitable? This video is for you.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/LA-hViXx0Yw/
Bryan Garner on the Latest Edition of Black’s Law Dictionary
Due out this week is the 10th edition of Black's Law Dictionary. With 16,000 new definitions, 900 new maxims, and terms dated back to their first English usage, Black's Law Dictionary 10th Edition is touted to be the most comprehensive and relevant collection of legal terminology to date. But what goes into making this legal reference and how does it stay relevant in today's world? On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams interview Black's Law Dictionary's editor-in-chief Professor Bryan A. Garner. Together they discuss the army of 300 professionals and scholars who deciphered true meanings from historic documents, ancient language, and modern usage. Tune in to hear Garner describe what goes into updating Black's and why he believes attorneys will continue to use it for generations to come.
Bryan A. Garner is a U.S. lawyer, lexicographer, and teacher who has written several books about English usage and style, including Garner's Modern American Usage and Elements of Legal Style. He has served as editor-in-chief of Black's Law Dictionary since 1995, and coauthored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges, and Reading Law: The Interpretation of Legal Texts. Professor Garner is a prolific lecturer, having taught more than 2,500 writing workshops since the 1991 founding of his company, LawProse, Inc., and he is a distinguished Research Professor of Law at Southern Methodist University Dedman School of Law.
Bryan A. Garner is a U.S. lawyer, lexicographer, and teacher who has written several books about English usage and style, including Garner's Modern American Usage and Elements of Legal Style. He has served as editor-in-chief of Black's Law Dictionary since 1995, and coauthored two books with Justice Antonin Scalia: Making Your Case: The Art of Persuading Judges, and Reading Law: The Interpretation of Legal Texts. Professor Garner is a prolific lecturer, having taught more than 2,500 writing workshops since the 1991 founding of his company, LawProse, Inc., and he is a distinguished Research Professor of Law at Southern Methodist University Dedman School of Law.
Dry Times: How to Deal with the Impact of California’s Drought on Critical Commercial Agreements
On January 17, 2014, California Governor Jerry Brown declared a “State of Emergency” in California due to the severity of drought conditions across the State. Since then, the California drought continues to be severe and unprecedented in recent years, and is taking a pervasive toll on California residents, businesses, farm land, foliage and wildlife. Despite recent rainfall, local water districts and the State have called for voluntary, and in some locales, mandatory reduction in consumption of water. After considering the severe human toll, anyone doing business with an entity located in California (or other western states experiencing similar drought conditions) that requires water for any business purpose, particularly farmers in Northern and Central California where there are fewer alternative sources of water, must be concerned about inventory and the impact of the drought on its supply chain. Can my California contract counterparty fulfill its obligations to produce sufficient quantities of produce, dairy products, steel, flowers, honey, etc., to meet my contract needs? Waiting for a delivery that never arrives, is delayed or arrives in lower quantity or, worse yet, quality, is not a viable option. The key is to be prepared to find an alternative supplier so that production goals can be timely met. Successful navigation of these issues requires careful contract drafting and contemplation in advance of new agreements, and critical analysis of existing contracts. This article highlights the pertinent legal mechanisms at work and options for your business.
Section 2-609 of the Uniform Commercial Code (the “UCC”) follows the longstanding common law derived principle of allowing the concerned recipient of supplies to demand adequate assurance of its supplier’s ability to perform. The law adopted in most states provides that “when reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.” For purposes of Section 2-609, “reasonableness” will be “determined according to commercial standards” between merchants. A failure by the recipient of a justified demand for adequate assurance to provide such assurances within a reasonable time, not to exceed thirty days, will be treated as a repudiation of the contract.
The key for those seeking assurances of performance is to describe with as much specificity as possible the reasonable grounds for “insecurity.” In the case of the drought, one does not have to look far to find news articles describing the historic drought in significant detail and showing the hardest hit regions. The form of the demand need not be a formal lawyers’ letter, but can be a friendly request to a good, long term vendor asking for assurances that product of the quality and quantity the recipient has come to expect will continue to be delivered within the time expected. Setting a reasonable time frame for a response to the demand is also important and will depend upon the imminence of the need for or expected receipt of goods.
The form and clarity of the response will be key and is often heavily litigated. Anything short of a prompt promise by a supplier to meet delivery and production obligations is a red flag and may be grounds for termination of an existing contract to purchase goods from that supplier; however, an unjustified early termination of contract rights is a breach, so a party considering terminating a supplier under an agreed contract should consider the risks of termination, particularly where the supplier is attempting to retain the right to supply. Further, before demanding adequate assurance, the recipient may wish to investigate an alternative supply chain in case the response is insufficient and goods need to be reordered from another source.
Significantly, a supplier in dire financial straits that ends up in bankruptcy may still be the recipient of a demand for adequate assurance of its ability to perform. Indeed, asking a debtor in bankruptcy for adequate assurance of its ability to perform its contractual obligations is a prudent business approach, though the ability of the non-debtor contract party to terminate is limited (proceeding by motion before the bankruptcy court to terminate is often the appropriate option if adequate assurance is not received or if a debtor confirms that it cannot perform).
Where a contract calls not just for supplies but for services, contract parties should look beyond the UCC to the Restatement (Second) of Contracts (“Restatement”). Section 251 of the Restatement provides in part that “where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach,” then the “obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.” In the Restatement, as in the UCC, failure to provide such assurance within a reasonable time is treated as a repudiation of the contract.
From the other perspective, a supplier who fears that it will be unable to meet the terms of its contract to supply goods in sufficient quantity, quality, or price, particularly where the costs of producing have markedly increased due to the impact of the drought, may attempt to invoke a claim of force majeure. Many contracts have a force majeure provision that excuses performance (or non-performance) upon the occurrence of events such as (i) acts of God (e.g., severe droughts and storms) and (ii) man-made events (e.g., wars or certain acts of governments). Employee strikes may also be viewed as a basis for a finding of force majeure in some contracts.
For the purposes of California law, the California Supreme Court gave the definitive definition of a force majeure in Pacific Vegetable Oil Corp. v. C. S. T., Ltd., 29 Cal. 2d 228 (1946). The Court explained that “‘Force majeure,’ or the Latin expression ‘vis major,’ is not necessarily limited to the equivalent of an act of God. The test is whether under the particular circumstances there was such an insuperable interference occurring without the party’s intervention as could not have been prevented by the exercise of prudence, diligence and care.” Id. at 238.
Additionally, acts of God can be involved in related “impossibility” scenarios. For example, in Squillante v. California Lands, Inc., 5 Cal. App. 2d 89 (1935), the California Court of Appeal excused a grower from having to deliver a full quantity of grapes under an excuse of impossibility due to drought conditions. There, the contract stipulated a certain quality and variety of grape. The drought made it impossible for that grower to grow grapes of the sufficient quality and variety, and therefore the court held that the grower could not be compelled to perform impossibilities and that it could not be held liable in damages for its failure to comply with the contract because the failure resulted from no fault of its own. (The court also stressed the importance of the “grower” not being a “dealer” of grapes, in that they suggest that a dealer may not have been so excused.) While this case dates from 1935, it is apparently still good law.
The scenarios above do not address the situation where a supplier is not necessarily prevented from supplying, but the cost of supplying increases so significantly higher than anticipated, that performance under the contract becomes commercially “impracticable.” While related to the concepts of force majeure and impossibility, impracticability is a distinct problem. Section 2-615 of the UCC provides that, absent a supplier assuming a greater obligation, “delay in delivery or non-delivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.”
A successful defense of impracticability also requires that seller “notify the buyer seasonably that there will be delay or non-delivery,” and, in the case of reduced or limited capacity to perform, that the seller then allocate production and deliveries among his customers in a “fair and reasonable” manner.
In the Official Comments to UCC Section 2-615, the American Law Institute explained that generally, “increased cost alone does not excuse performance unless the rise in cost is due to some unforeseen contingency which alters the essential nature of the performance. Neither is a rise or a collapse in the market in itself a justification, for that is exactly the type of business risk which business contracts made at fixed prices are intended to cover. But a severe shortage of raw materials or of supplies due to a contingency such as war, embargo, local crop failure, unforeseen shutdown of major sources of supply or the like, which either causes a marked increase in cost or altogether prevents the seller from securing supplies necessary to his performance, is within the contemplation of this section” (emphasis added).
Whether a defense of impracticability rests on the increased cost resulting from shortages of water or other inputs affected by the drought, or from a governmental regulation or order limiting access to water, impracticability clearly represents an intractable problem absent clear contract drafting and advice. Contract drafters have several tools at their disposal to more clearly delineate the parties’ risk allocation. For example, properly constructed force majeure clauses should address the risk of supervening events expressly in the agreement. Additionally, “hell or high water” provisions make it clear the parties’ intend to implacably bind themselves despite any contingencies.
When problems raising impossibility, force majeure, or impracticability issues arise, the key will be managing expectations. If buyers suspect there are delays or other issues on the horizon, they should not hesitate to seek adequate assurances of performance from their suppliers. Likewise, if there are substantial additional costs or problems in maintaining the quality or quantity or the timing of supply, suppliers should notify their buyers as soon as practicable to adequately manage the relationship in the near term and maintain the relationship as the drought subsides and production gets back on track.
Think ahead when drafting important supply contracts. Read your contracts closely when a problem arises and reach out to counterparties early to address potential problems before they arise or worsen.
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Saturday, June 28, 2014
UN rights chief condemns juvenile execution in Iran
[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday condemned [press release] Iran's use of the death penalty for juvenile offenders and called on authorities to halt the announced execution of Razieh Ebrahimi. Ebrahimi, who was legally married to her then-28-year-old husband when she was 14, was sentenced to death [Guardian report] after killing her abusive husband when she was 17. "Regardless of the circumstances of the crime, the execution of juvenile offenders is clearly prohibited...
Source: http://jurist.org/paperchase/2014/06/un-rights-chief-condemns-juvenile-execution-in-iran.php
Special Report: Judicial Transparency
Financial disclosure reports for 257 federal appellate judges reveal a trove of details about their outside earnings.
Source: http://www.nationallawjournal.com/id=1202654964129?rss=rss_nlj
personal injury attorneys personal injury lawyer personal injury lawyers power attorney power of attorney
The Power of a Structured Settlement: A Personal Story
Today on Ringler Radio, host, Larry Cohen and his co-host, Jim Early, talk with Congressman Jim Langevin, a Democrat, representing constituents from the 2nd District in Rhode Island since 2001. Congressman Langevin talks about his own personal experience with a structured settlement years ago that helped him and public policy for structured settlements today. Hear one of the best cases for the long-term security of a structured settlement instead of a lump sum settlement.
Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Source: http://www.nationallawjournal.com/id=1202634055202?rss=rss_nlj
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Lawyers and Depression
Depression within the legal community is a very real issue. According to the American Psychiatric Association, lawyers as a group are 3.6 times more likely to suffer from depression than the average person. On Ringler Radio, host Larry Cohen welcomes colleague Cindy Chanley, and special guest, Professor Brian Clarke, Assistant Professor at the Charlotte School of Law. Brian shares his own personal struggle with depression, talks about recognizing the signs of depression, getting help, and how the legal community is coming together to help their own.
Source: http://ringlerradio.com/?p=13808
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.
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LawBiz® Legal Pad: Retainers- Do They Do Any Good For You?
Ed examines the complexities of retainers and discusses their use within the legal profession.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uUcsklaftuY/
You Won’t Believe This “In To Jail” Smuggling Case
If you have ever doubted the highly addictive nature of crack, this body cavity smuggling story will disabuse of that notion. As reported by The Gainesville Sun:
A Gainesville woman is facing multiple drug charges after being arrested initially for possession of marijuana and drug paraphernalia and then, authorities say, trying to smuggle into the jail two crack pipes — one still loaded with crack — in a most uncomfortable fashion.
Let’s take it from the top.
Cynthia M. Scholes, 41, of 328 SW 34th St., Apt. 29, was a passenger in a car stopped just before midnight Wednesday in the 100 block of Williston Road for speeding, police reported.
Okay, a routine speeding stop …
After the driver consented to a search of the vehicle, police reported finding a cigar wrapper containing about 3 grams of marijuana in the passenger seat where Scholes was sitting. A further search of her purse revealed a crack pipe, police said.
So, not so routine after all.
As she was being taken to jail, Scholes was asked three times, police said, whether she had additional drugs in her possession, which she denied.
Define “possession.”
But as Scholes passed through an X-ray machine during booking, possible contraband was detected concealed within her vagina, according to the arrest report.
Yikes. Time to draw straws for the actual search.
A follow-up search by a female deputy uncovered two crack pipes, one containing about 0.01 grams of crack cocaine. Police later said the pipes were found in the general area of Scholes’ groin.
In addition to the earlier misdemeanor charges of possession of marijuana and drug paraphernalia, Scholes then was charged with felony counts of cocaine possession and smuggling contraband into the jail.
Click here for the source, including a mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/R5TwoZDB6mA/adsf-3.html
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Friday, June 27, 2014
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.)
Source: http://www.lawmemo.com/blog/2012/06/pharma_sales_re.html
EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
letter of attorney litigation attorney local attorney local lawyer local solicitors
Payout Resolves Objections to $1.6B Toyota Settlement
Some of the most vocal objectors to the $1.6 billion settlement with Toyota Motor Corp. have agreed to drop their challenge in exchange for $1.5 million to research electronics systems used in cars.
Source: http://www.nationallawjournal.com/id=1202637032014?rss=rss_nlj
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
lawyer directory lawyer fees lawyer firm lawyer malpractice attorneys lawyer office
LawBiz® Legal Pad: Selling Your Practice
Will you be one of the 400,000 lawyers retiring in the next 10 years? Ed discusses what to do when it’s time to move on.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/-MWLcvfob-M/
Greece v. Galloway: Prayer in Government Assemblies
On May 5th 2014, the Supreme Court decided Greece v. Galloway, a landmark case about the right of prayer in government assemblies. Both sides of the argument invoked the First Amendment to make their case, but who is right and why? On this episode of Lawyer 2 Lawyer, host Bob Ambrogi brings this issue to the forefront with opposing counsels Douglas Laycock, for the respondents, and David Cortman, for the petitioner. Together, they discuss the relative merits of their cases, the endorsement test, and the coercion test. Tune in to hear more about the future of legislative prayer and your First Amendment rights.
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.
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New Law School Courses Take on Robots, Videogames and Piketty-mania
Law Blog surveys some of the more unconventional course offerings making their debut at law schools this fall.
Sidley Austin Looks to Riverbed to Build a Broader Network
Sidley Austin had a legacy network connecting its 17 offices in the U.S., Asia and Europe, resulting in slow data transfers and limiting the firm's ability to centralize IT resources. To create better connectivity between offices, the firm upgraded its network with Riverbed appliances.
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
Thursday, June 26, 2014
End of Lifed
As some of you know (and I know you know because you write me angry emails and exasperated twits), Simple Justice hasn't worked well for months now. It takes forever for the posts to load, assuming they load at all. After trying to find out from my host, GoDaddy, why this is happening, I was eventually told that they had given up on the blogging program I use, stopped doing anything to maintain its efficacy a year ago, and were preparing to "End of Life" their involvement in blogging.
Mind you, this didn't stop GoDaddy from taking my money to use their program, but I digress.
Over the past couple of months, I have been involved in an effort to move SJ to a new platform over at WordPress with a new host. It had a few hitches along the way. My initial efforts involved some of the turnkey opportunities for blawgers, one of which involved spending huge sums of money because their business model is based on dopey law firms who buy into the "every lawyer needs a blawg or will die" vision of the future.
Since this isn't a marketing tool or money maker for me, there was no way I was going to throw thousands of dollars into this hole. My basic premise is that I write and people get to read, if they want, for free. While I am happy to provide the content for my own purposes, if not yours, I am not happy to pay through the nose to amuse readers.
Another wanted me as part of their stable of law blogs, which wouldn't have been so awful except that they quickly reneged on the deal offered when they saw the volume of traffic here. Reneging isn't something I can live with.
Lacking the mad computer skillz to make this happen on my own, a few people who had significant computer skills and enjoyed SJ offered to lend a hand and make a move happen. One gave me a lead on the big issues, but was too high on the pay grade to do the dirty work. Another was happy to make the nuts and bolts of a change happen.
After being well on the way, he suffered some personal problems and, well, disappeared on me. As in, went dark. I grew far more concerned about his welfare than I was about moving this blog. Some things are real, like a good person's well-being, and to this moment, I have no clue whether he is dead or alive. I hope he gets in touch with me soon. I'm still deeply concerned.
It wasn't easy stuff. GoDaddy's system was proprietary, and didn't play nice with anyone else's system. While GoDaddy had developed an export feature to move content to WordPress, they found out that it wasn't particularly "robust," and that my rather extensive content crashed the system. It could handle about 100 blog posts. I had well over 5000. Nobody at GoDaddy anticipated someone as prolific as me.
But when their general counsel explained that I probably wasn't a great choice of people to piss off, they put some developers on the task of creating a means of moving my content. It took a couple of weeks, but they eventually managed to pull it off. It was a decidedly less than perfect solution, as they were able to include my posts and the comments, but they couldn't manage to get the contents to thread (or nest, if you prefer) at WordPress. Bear this in mind later, so no one bitches at me about the comments. It just couldn't be done.
Many people have suggested their hosts, web designers, programs, whatever, to fix the disaster of using GoDaddy. While I appreciated the concern, it wasn't really helpful after the first few thousand suggestions. Most of my griping had to do with prodding GoDaddy to keep SJ working, at least minimally, until a move could be completed. This wasn't a bleg for suggestions, but deliberate effort to poke GoDaddy by a wee bit of public shaming for their inability to do what they took money to do.
Finally, I was hooked up with a guy who, for a fee, would do what was needed to finish the move. We were on the same page, and although it irks me that I have to pay someone to do the work, I wasn't ready to let SJ die and didn't want to see the content created over the past seven plus years disappear when SJ went dark. But my new guy developed some personal issues that pulled his attention away from making the move happen, I began to think I was a curse to computer people (or maybe computer people were a curse to me?).
It appears that we're are all getting on the same page now, and provided an alien invasion, healthcare crisis or zombie Armageddon doesn't happen in the next couple of days, I anticipate that SJ will move to its new home.
It's not yet clear to me how easily I will accommodate to WordPress. I know, tons of you have told me how easy it is, but I'm an old dog and new tricks come hard. Heck, it took me a few hours to figure out how to use the "intuitive" wheel of an iPod. Yes, I can be that clueless.
I anticipate that there will a day or two, maybe more, when nothing will appear at SJ. It's not that I've quit or gone fishing. I'm not dead yet. It's just that there will be down time while all this happens, while the internet figures out that I've moved to a new home and redirects you to the right address.
There will be problems in the future as well. Images will be missing. Links will be broken. Formatting will get all screwed up do to differences in coding between GoDaddy and WordPress. It will be annoying to you. Me too, probably more so. But short of going back over the more than 5000 posts and cleaning up the mess by hand, there isn't much I can do to prevent the problems. I am not inclined to spend my time that way. Sorry, but we will all have to suck it up.
I hope this makes things a little clearer for readers, and I apologize for the problems, delays and frustration caused by GoDaddy's sucking. I've been working on it for months now, and I hope we've come to the end of the nightmare. In any event, it's better than being End of Lifed by GoDaddy.
© 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.
Mind you, this didn't stop GoDaddy from taking my money to use their program, but I digress.
Over the past couple of months, I have been involved in an effort to move SJ to a new platform over at WordPress with a new host. It had a few hitches along the way. My initial efforts involved some of the turnkey opportunities for blawgers, one of which involved spending huge sums of money because their business model is based on dopey law firms who buy into the "every lawyer needs a blawg or will die" vision of the future.
Since this isn't a marketing tool or money maker for me, there was no way I was going to throw thousands of dollars into this hole. My basic premise is that I write and people get to read, if they want, for free. While I am happy to provide the content for my own purposes, if not yours, I am not happy to pay through the nose to amuse readers.
Another wanted me as part of their stable of law blogs, which wouldn't have been so awful except that they quickly reneged on the deal offered when they saw the volume of traffic here. Reneging isn't something I can live with.
Lacking the mad computer skillz to make this happen on my own, a few people who had significant computer skills and enjoyed SJ offered to lend a hand and make a move happen. One gave me a lead on the big issues, but was too high on the pay grade to do the dirty work. Another was happy to make the nuts and bolts of a change happen.
After being well on the way, he suffered some personal problems and, well, disappeared on me. As in, went dark. I grew far more concerned about his welfare than I was about moving this blog. Some things are real, like a good person's well-being, and to this moment, I have no clue whether he is dead or alive. I hope he gets in touch with me soon. I'm still deeply concerned.
It wasn't easy stuff. GoDaddy's system was proprietary, and didn't play nice with anyone else's system. While GoDaddy had developed an export feature to move content to WordPress, they found out that it wasn't particularly "robust," and that my rather extensive content crashed the system. It could handle about 100 blog posts. I had well over 5000. Nobody at GoDaddy anticipated someone as prolific as me.
But when their general counsel explained that I probably wasn't a great choice of people to piss off, they put some developers on the task of creating a means of moving my content. It took a couple of weeks, but they eventually managed to pull it off. It was a decidedly less than perfect solution, as they were able to include my posts and the comments, but they couldn't manage to get the contents to thread (or nest, if you prefer) at WordPress. Bear this in mind later, so no one bitches at me about the comments. It just couldn't be done.
Many people have suggested their hosts, web designers, programs, whatever, to fix the disaster of using GoDaddy. While I appreciated the concern, it wasn't really helpful after the first few thousand suggestions. Most of my griping had to do with prodding GoDaddy to keep SJ working, at least minimally, until a move could be completed. This wasn't a bleg for suggestions, but deliberate effort to poke GoDaddy by a wee bit of public shaming for their inability to do what they took money to do.
Finally, I was hooked up with a guy who, for a fee, would do what was needed to finish the move. We were on the same page, and although it irks me that I have to pay someone to do the work, I wasn't ready to let SJ die and didn't want to see the content created over the past seven plus years disappear when SJ went dark. But my new guy developed some personal issues that pulled his attention away from making the move happen, I began to think I was a curse to computer people (or maybe computer people were a curse to me?).
It appears that we're are all getting on the same page now, and provided an alien invasion, healthcare crisis or zombie Armageddon doesn't happen in the next couple of days, I anticipate that SJ will move to its new home.
It's not yet clear to me how easily I will accommodate to WordPress. I know, tons of you have told me how easy it is, but I'm an old dog and new tricks come hard. Heck, it took me a few hours to figure out how to use the "intuitive" wheel of an iPod. Yes, I can be that clueless.
I anticipate that there will a day or two, maybe more, when nothing will appear at SJ. It's not that I've quit or gone fishing. I'm not dead yet. It's just that there will be down time while all this happens, while the internet figures out that I've moved to a new home and redirects you to the right address.
There will be problems in the future as well. Images will be missing. Links will be broken. Formatting will get all screwed up do to differences in coding between GoDaddy and WordPress. It will be annoying to you. Me too, probably more so. But short of going back over the more than 5000 posts and cleaning up the mess by hand, there isn't much I can do to prevent the problems. I am not inclined to spend my time that way. Sorry, but we will all have to suck it up.
I hope this makes things a little clearer for readers, and I apologize for the problems, delays and frustration caused by GoDaddy's sucking. I've been working on it for months now, and I hope we've come to the end of the nightmare. In any event, it's better than being End of Lifed by GoDaddy.
© 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/2013/07/10/end-of-lifed.aspx?ref=rss
Supreme Court rules against Obama on recess appointments
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Thursday in NLRB v. Noel Canning [SCOTUSblog backgrounder] that US President Barack Obama overstepped his authority when he appointed [JURIST report] three members to the National Labor Relations Board (NLRB) [official website] in January 2012. In an opinion by Justice Stephen Breyer, the court held that while the president does have authority to make appointments during a recess of the Senate, these particular appointments were unconstitutional because the Senate's recess...
Source: http://jurist.org/paperchase/2014/06/supreme-court-rules-against-obama-on-recess-appointments.php
attorney directory attorney fees attorney finder attorney law attorney lawyer
Former Madoff accountant pleads guilty to aiding in scheme
[JURIST] A former accountant for Bernard Madoff [JURIST news archive] pleaded guilty [press release] Tuesday to charges connected to Madoff's multibillion dollar Ponzi scheme. Paul Konigsberg, a 78-year-old former senior tax partner at Konigsberg Wolf & Co and the last defendant in the Madoff prosecutions, pleaded guilty to one count of conspiracy and two counts of falsifying records of a broker-dealer. He did not work directly for Madoff's firm and maintained for some time that he had no idea that...
Source: http://jurist.org/paperchase/2014/06/former-madoff-accountant-pleads-guilty-for-aiding-in-scheme.php
ICC prosecutor finds no grounds to investigate North Korea war crime allegations
[JURIST] Fatou Bensouda [official profile], Prosecutor of the International Criminal Court (ICC) [official website] announced [press release] Tuesday that a preliminary investigation [report, PDF] into North Korean attacks on South Korea did not satisfy the Rome Statute [text] requirements necessary to initiate a full ICC investigation. The preliminary investigation was launched [press release, PDF] in 2010 in the wake of two North Korean attacks on the South: the sinking of a South Korean warship, the Cheonan [BBC report], on March...
corporate lawyer criminal attorney criminal defence lawyer criminal defense criminal defense attorney
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.
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
Patent Law — Best Practices as Seen From the Bench
Three U.S. district judges and a U.S. magistrate participated in a roundtable discussion in Dallas, "Patent Law: Best Practices As Seen From The Bench."
personal injury attorneys personal injury lawyer personal injury lawyers power attorney power of attorney
EEOC briefs on line
This is pretty cool.
EEOC briefs are now on line. [Here]
They cover briefs filed in the US Circuit Courts of Appeals in which the EEOC was a party, plus amicus briefs filed in the US Circuit Courts of Appeals, District Courts, and state courts.
And there is a user-friendly search function.
Briefs filed in the US Supreme Court are not in this collection, and can be found through the US Solicitor General's collection [here].
Source: http://www.lawmemo.com/blog/2012/06/eeoc_briefs_on.html
Odds Improve for New Law Graduates, but Hiring Levels Remain Soft
It's a lot easier to get an entry-level job at a major law firm than it was during the recession, but law-school graduates still face plenty of competition.
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Wednesday, June 25, 2014
Facial Recognition Technology: Security vs. Privacy Concerns
Imagine a computer thousands of miles away recognizing you in a camera at an intersection. Furthermore, consider being tracked and monitored from your home to your place of work every day. Facial recognition technology makes this type of identification possible and it is being rapidly developed for country defense and law enforcement purposes. On this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews Ed Tivol from EWA, Government Systems, Inc. and Jennifer Lynch from Electronic Frontier Foundation. Together, they discuss the paradox of security vs. privacy when it comes to biometric modes of identification. In addition, they deliberate on how this data is being collected, who is collecting it, and for what purpose. Tune in to hear about your evolving First and Fourth Amendment Rights in the face of national security, crime prevention, and the private sector.
Jennifer Lynch is a Senior Staff Attorney with the Electronic Frontier Foundation and works on open government, transparency, and privacy issues as part of EFF's Transparency Project. She is a writer and frequent speaker on government surveillance programs, domestic drones, intelligence community misconduct, and biometrics. Lynch has testified about facial recognition before Senate Subcommittees and prior to joining EFF, she was the Clinical Teaching Fellow with the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley School of Law.
Ed Tivol is the Vice President of the Intelligence and Operations Division for EWA, Government Systems, Inc. a defense contractor actively developing facial recognition technology for the Federal Government. He is a 1964 graduate of The Citadel and served in the Army's Military Intelligence branch for 24 years. Tivol completed two tours in Vietnam and retired with the rank of Colonel in 1990. In the same year, he began his work with EWA and has been there ever since. Ed holds master's degrees from University of Maryland and the Army War College. Today Mr. Tivol and his wife raise racehorses and Angus cattle outside of Bowling Green, Kentucky.
Special thanks to our sponsor, Clio.
Jennifer Lynch is a Senior Staff Attorney with the Electronic Frontier Foundation and works on open government, transparency, and privacy issues as part of EFF's Transparency Project. She is a writer and frequent speaker on government surveillance programs, domestic drones, intelligence community misconduct, and biometrics. Lynch has testified about facial recognition before Senate Subcommittees and prior to joining EFF, she was the Clinical Teaching Fellow with the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley School of Law.
Ed Tivol is the Vice President of the Intelligence and Operations Division for EWA, Government Systems, Inc. a defense contractor actively developing facial recognition technology for the Federal Government. He is a 1964 graduate of The Citadel and served in the Army's Military Intelligence branch for 24 years. Tivol completed two tours in Vietnam and retired with the rank of Colonel in 1990. In the same year, he began his work with EWA and has been there ever since. Ed holds master's degrees from University of Maryland and the Army War College. Today Mr. Tivol and his wife raise racehorses and Angus cattle outside of Bowling Green, Kentucky.
Special thanks to our sponsor, Clio.
New Approaches To Discipline Strive To Keep Kids Out Of Jail
Teen courts and restorative justice are focused on cutting off the "school-to-prison pipeline."
dui lawyer dumb laws dwi lawyer electronic power of attorney employment attorney
Plaintiffs Seek to Consolidate Target Data Breach Suits
Attorneys who filed class actions against Target Corp. over its security breach last month have moved to coordinate the swelling tide of litigation, estimated at nearly 50 lawsuits.
Source: http://www.nationallawjournal.com/id=1202637342683?rss=rss_nlj
Townhome Neighbors Can’t Challenge Access
Plaintiff townhome owners do not have standing to challenge defendant developer’s use of a 50-foot easement that runs between a church and the townhome community for access and a connection to a proposed development with seven new homes; the Fairfax Circuit Court says plaintiffs have not shown they would suffer any particularized harm from installation ...
Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/
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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.
Source: http://www.lawmemo.com/blog/2012/11/eeoc_can_use_te.html
Magic Words, Magic Rights
Knowing my love of police "magic words," a reader pointed me to a thread on the subreddit Bad Cop No Donut on whether there is anything to be done when a police officer claims he "smells pot" in a car.
© 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.
Or does the 4th Amendment REALLY vanish with those magic words?
I've been stopped and the cop claimed he smelled pot, when, at the time, I hadn't touched the stuff in years. I told him I'd consent to a search if he apologized for wasting both of our time when he didn't find anything. He searched, didn't find anything, and I was on my way without an apology and a "verbal warning" to fix my tail light
Do you ask for another officer's opinion?
Do you tell the officer "bullshit"?
I'm just trying to help some people know what to do in this situation.
Initially, it helps for have a basic understanding of the law as it currently exists. When a cop says he "smells pot," he is invoking the automobile exception to the warrant requirement, which is based on exigent circumstances. Since a person can drive away, and thereby evade arrest and seizure of evidence of a crime in a car, the Supreme Court crafted the exception fin Carroll v. United States, a 1925 opinion about bootleggers getting away from the revenuers, which has done more harm to the 4th Amendment than perhaps any other case.
Since smell can't be captured and bottled for later presentation to a judge, the only "proof" of what an officer smelled is the officer's testimony. If he says so, it becomes real, and that's why they are magic words. Other than proving impossibility or incredibility, there is essentially nothing that can be done to challenge what the cop says he smelled. More importantly, even if a subsequent search turns up no pot, that doesn't mean he didn't smell what he smelled. The officer will testify about his training and experience in smelling pot, and yet he can be mistaken. The law doesn't require the cop to be right.
But the discussion thread about the magic words is where a grave misunderstanding about the system becomes clear. The problem derives from the absence of any marijuana in the car. The cop says he smelled it. This gives rise to probable cause to search and the automobile exception allows the cop to do so without a warrant. A search follows, and it can be as intrusive as the cop chooses to make it. By intrusive, it can include dismantling your brand new Maserati into a million pieces on the side of the road and, when it's over, leaving it there.
So the cop smells pot, searches and comes up empty. No apology. No help putting your Maserati back together. He drives away without so much as a tip o' the hat. This is where people don't seem to understand how constitutional rights work.
There are no elves in the backroom enforcing your constitutional rights. Had the police officer found something in the car to justify an arrest, the question of the constitutionality of the search could be hashed out in court in a suppression motion and hearing. Bear in mind that the cop may have claimed to smell marijuana, but that doesn't mean pot is what was found. Maybe other drugs. Maybe an illegal gun. Maybe a dead body. The smell of pot claim serves to except the search from the warrant requirement, and whatever comes of the search is the basis for the subsequent arrest.
But the cop finds nothing. Nada. Zip. You are clean and, surrounded by the pieces of your brand new Maserati, free to go. What then?
This is where people get confused. That's it? Don't the cops have to, you know, do something?
No red light goes off in the backroom of the constitutional elves. Actually, there is no such backroom. There's nothing. As the cop drives away, that's the end of the encounter, unless the person chooses to take action to contest the violation of his constitutional rights, such as a §1983 claim.
The problem there, of course, is that the cop, invoking the magic words that he "smelled pot," will very likely prevail despite the fact that he found nothing. You won't make it past summary judgment. More significantly, no lawyer will take the case on contingency, meaning that you will have to pay to play, and it will prove to be an expensive longshot to even make the effort to enforce your constitutional rights.
Consider the plight of people stopped in the street in New York City under the stop & frisk program, where the most generous view is that the police take action against 12% of the people stopped. They've performed millions of stops, and a tiny fraction have resulted in people going before a judge, where they can contest what happened. The others, the millions of people stopped and searched where nothing was found, just walk away, having been violated, humiliated and treated like pond scum.
The Constitution is not a self-effectuating document. It requires someone to act upon it to challenge police conduct. Otherwise, they are words without meaning, easily thwarted by police invoking the myriad exceptions the courts have provided. And here's an even worse secret: they don't even have to use magic words unless they ultimately find something, arrest a person and want to use it as evidence in court.
They get this. Most people don't. Most people harbor a naïve belief that, despite everything they know about how the police function, there is still some thread of honesty woven through their conduct that somehow makes them behave in accordance with the Constitution.
There are some excellent videos and writings about how to best conduct oneself to properly invoke constitutional rights and to create countervailing evidence to support one's invocation. The pervasiveness of video is a huge factor in showing that police have manufactured claims and false allegations, and these go a long way in keeping police clean where in the past they could make up anything they want to and there would be no way to challenge them.
But these rights we love so dearly don't happen on their own. Someone has to make them happen. We make them happen. And if we don't, then we're left on the side of the road with our Maserati in pieces cursing. The cops have magic words, but constitutional rights aren't magic. They only happen if we make them.
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Source: http://blog.simplejustice.us/2013/07/08/magic-words-magic-rights.aspx?ref=rss
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