Source: http://news.feedzilla.com/en_us/stories/law/video/389355021?client_source=feed&format=rss
Tuesday, August 5, 2014
European Court rules in favor of former Russia oil Company
[JURIST] The European Court for Human Rights (ECHR) [official website] on Thursday ruled [judgement, PDF] that Russia must pay € 1.87 billion (USD $2.51 billion) to the former owners of the now defunct Russian oil company Yukos to compensate for unfair tax proceedings. The ECHR ruling comes three years after the court first found that Russia violated the company's rights [JURIST report] by forcing it into liquidation. While the penalty is the largest payout ever awarded by the ECHR [Wall...
Source: http://jurist.org/paperchase/2014/08/european-court-rules-in-favor-of-former-russia-oil-company.php
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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:
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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
© 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/2013/07/13/protip-dont-screw-with-old-folks.aspx?ref=rss
New Bill Aims To Hold Colleges Accountable For Campus Sex Crimes
Under new bipartisan legislation, colleges and universities could face strong new penalties for mishandling cases of sexual assault on campus. Critics question whether they can be implemented.
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OPINION: A Calculation of Fido's Value Must Include Warm, Fuzzy Factor
Awarding traditional property damages in cases of injured or killed pets falls short.
Source: http://www.nationallawjournal.com/id=1202631180028?rss=rss_nlj
Twitter: A Sleeping Discovery Giant?
Attorney Daniel Cummins and staff reporter Ben Present discuss the emerging issue of social media law. In this installment, the two discuss the differences between Facebook and Twitter, and whether Twitter posts can be discoverable.
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Nurse Has Sovereign Immunity
An Orange County Circuit Court grants a special plea of sovereign immunity to a defendant who provided nursing services at a county nonprofit nursing facility. In the requests for admission, plaintiff admitted Dogwood Village was a nonprofit nursing facility owned by Orange County and overseen by the Health Center Commission of Orange County, and that ...
Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/
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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Monday, August 4, 2014
This Week on Legal Talk Network (7/7/2014)
Hello. This is Laurence Colletti for This Week on Legal Talk Network. Monday, Digital Detectives hosts Sharon Nelson and John Simek asks special guest Bob Ambrogi about a new survey that suggests that 77% of lawyers at not trustworthy with client data. Here's a preview.
On Wednesday, The Legal Toolkit's Heidi Alexander takes to the road for a Special Report and interviews Clio's Jack Newton at the recent MASS LOMAP conference about his views on cloud technology and customer centricity.
Thursday, we spotlight Heidi again at MASS LOMAP as she speaks to Jim Schonrock from Findlaw about the concept of a "silver bullet" in marketing.
And on Friday, we finish the week with Lawyer 2 Lawyer - our hosts Bob Ambrogi, J Craig Williams and guests discussing the recent Hobby Lobby Supreme Court ruling and how it will effect free speech, women's reproductive rights and the Affordable Care Act. So tune in. It's all right here . . . This Week on Legal Talk Network.
On Wednesday, The Legal Toolkit's Heidi Alexander takes to the road for a Special Report and interviews Clio's Jack Newton at the recent MASS LOMAP conference about his views on cloud technology and customer centricity.
Thursday, we spotlight Heidi again at MASS LOMAP as she speaks to Jim Schonrock from Findlaw about the concept of a "silver bullet" in marketing.
And on Friday, we finish the week with Lawyer 2 Lawyer - our hosts Bob Ambrogi, J Craig Williams and guests discussing the recent Hobby Lobby Supreme Court ruling and how it will effect free speech, women's reproductive rights and the Affordable Care Act. So tune in. It's all right here . . . This Week on Legal Talk Network.
Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_7-7_Audio_Only.mp3
This Week on Legal Talk Network (8/4/14)
Hello. This is Laurence Colletti for This Week on Legal Talk Network.On Monday, host Michele Lange interviews Kroll Ontrack case managers Joe Edlund and Matt Samet about the benefits they offer legal professionals dealing with the often complex process of e-discovery on THE ESI REPORT.On Wednesday, hosts Dennis Kennedy and Tom Mighell discuss the idea of turning legal services into products or "productization," examples of this approach using technology and their tips to explore some of the possibilities on The Kennedy-Mighell Report.And on Friday, Lawyer 2 Lawyer hosts Bob Ambrogi and Craig Williams talk to Sabrina Fenderick from NORMAL and Carla Lowe from Citizens Against Legalizing Marijuana (CALM) about the possible child abuse charges facing pregnant mothers who use marijuana products in states where it's legal but still against federal law.Here's a preview.So tune in. It's all right here . . . This Week on Legal Talk Network.
Source: http://traffic.libsyn.com/sr/This_Week.mp4
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Delaware Court of Chancery Underscores Heightened Pleading Standard Necessary to Support a Claim for Breach of Fiduciary Duty In Connection With a Merger
In Houseman v. Sagerman, C.A. No. 8898-VCG, 2014 WL 1478511 (Del. Ch. Apr. 16, 2014), the Delaware Court of Chancery (Glasscock, V.C.) granted, in part, a motion to dismiss filed by certain directors and the financial advisor of Universata, Inc. (“Universata” or the “Company”) arising out of the Company’s merger with HealthPort Technologies, LLC (“HealthPort”). The Court’s analysis serves as a reminder that a stockholder plaintiff must plead an “extreme set of facts” to support a claim for breach of fiduciary duty against a corporation’s directors arising out of allegations that the directors breached their duty of loyalty as a result of the process used to approve a strategic transaction. Although the allegations suggested that Universata’s board of directors (the “Board”) did not conduct a “perfect” process, plaintiffs did not plead facts sufficient to show that the Board “utterly failed to undertake any action to obtain the best price for stockholders.” As a result, the Court dismissed plaintiffs’ claim for breach of fiduciary duty.
Universata was a Delaware corporation focused on providing services with respect to medical records for hospitals and clinics. In 2006, plaintiffs sold a previous business known as Med-Legal, Inc. to Universata and obtained shares in the Company and put rights to those shares whereby a director of the Company, Thomas Whittington, committed to repurchase plaintiffs’ shares pursuant to the put rights.
In 2010, HealthPort approached Universata regarding a potential acquisition. In response to HealthPort’s indication of interest, the Board consulted with its legal advisors and with KeyBanc Capital Markets, Inc. (“KeyBanc”), which it hired as its financial advisor. Due to expense, the Board limited KeyBanc’s engagement to assisting in diligence and identifying additional parties with an interest in acquiring the Company. Notably, the Board did not request that KeyBanc prepare a fairness opinion on the proposed transaction.
In May 2011, the Board approved an Agreement and Plan of Merger between Universata and HealthPort. As a result of the merger, the stockholders of Universata would receive $1.02 per share. In addition the stockholders of Universata would receive stock in a new corporation known as “TechCo” created to hold a patent previously held by Universata. At the meeting approving the merger, KeyBanc advisors informally gave the opinion that the merger price was within the range of reasonableness. Because the directors who approved the merger collectively held a majority ownership interest in the Company, the Board did not solicit a stockholder vote to approve the transaction. Nevertheless, at the same time as the Board approved the merger, it amended a previous equity incentive plan to treat all outstanding stock options like outstanding shares upon a change in control. In addition, the Board voted to vest all outstanding “in the money” warrants for the purchase of shares in the Company.
Plaintiffs, who were a director of the Company and his wife, approved the letter of intent with HealthPort, but did not vote or execute a consent in favor of the merger. Two years after the merger closed, plaintiffs filed a verified complaint against certain directors of Universata and against KeyBanc asserting causes of action for (i) breach of fiduciary duty against the director defendants; (ii) an accounting against director Whittington; (iii) quasi-appraisal against Universata and the director defendants; (iv) aiding and abetting a breach of fiduciary duty against KeyBanc; and (v) for failing to obtain consideration for alleged “litigation assets.” Defendants moved to dismiss.
The Chancery Court denied defendants’ motion to dismiss the accounting claim. With respect to the other claims, the Court granted, in part, and denied, in part, defendants’ motion to dismiss.
Plaintiffs’ breach of fiduciary duty claim was premised on the allegation that the director defendants acted in bad faith by “knowingly and completely fail[ing] to undertake their responsibilities” to maximize shareholder value. Nevertheless, the Court noted that the directors satisfied their duty of loyalty by acting on the advice of legal counsel and hiring KeyBanc as their financial advisor. Moreover, the directors were entitled to decide that the expense of obtaining a fairness opinion outweighed its benefits. The allegations in the complaint showed that Board considered bids from several interested parties, negotiated with HealthPort regarding the deal terms, and ultimately obtained from HealthPort “everything that [the Board] felt [it] could get.” Plaintiffs failed to allege any facts to show that the directors had a motive to act in “bad faith.” To the contrary, the Court observed, the directors had a personal financial interest in obtaining the best deal possible, in alignment with the company’s public stockholders. Accordingly, the Court granted defendants’ motion to dismiss plaintiffs’ cause of action for breach of fiduciary duty.
The Court also dismissed the cause of action for aiding and abetting breach of fiduciary duty against KeyBanc. It found that there were no allegations that KeyBanc actively concealed information from the Board. In addition, KeyBanc did not aid or abet the Board’s alleged breach of fiduciary duty as a result of providing “limited services.” Boiled to its essence, plaintiffs were arguing that “an investment bank must provide all or none of the financial services it offers in valuing and marketing a company.” The Court disagreed and recognized that “Revlon makes clear that there is no single way to sell a company — no single financial service is required.” Accordingly, the Court dismissed plaintiffs’ aiding and abetting a breach of fiduciary duty claim.
The decision in Houseman confirms that stockholders face a high pleading burden when challenging a disinterested board’s decision to approve a strategic transaction. Although the Court recognized that the Board’s process was “less than optimal,” plaintiffs’ allegations could state a claim only for a violation of the fiduciary duty of care. The board’s decision to proceed with the transaction despite several procedural deficiencies did not amount to an “extreme set of facts” sufficient to support a claim for breach of the duty of loyalty.
Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 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.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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Webinar Presentation Pointers for Legal Professionals
During their many years of public speaking, one of the biggest challenges Tom and Dennis have encountered is the webinar format. There are a lot of moving parts and some unique challenges. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss how webinars differ from in-person presentations, how to prepare for and avoid common pitfalls when presenting on webinars, and practical tips for novice and veteran presenters.
Dubious in the First Degree
While many folks from the heartland despise the New York Times for its purported coddling of criminals, its contents don't always bear out this sensibility. It's done it again by publishing Lawrence Downes' homage to ignorance in its editorial notebook.
Payback is a bitch, and to the extent Downes' screed offers anything, it's the insight to what motivates this tyranny of the majority against the 600 Long Island Railroad retirees on disability who had the misfortune of following the LIRR's advice and going to Dr. Peter Ajemian. Long Islanders hate the LIRR. They hate the price of tickets. They hate having to stand on their daily commute despite the absurdly expensive cost of the ride. They hate the uncaring conductors enforcing rules that presume their passengers to be criminals seeking to get free rides. The LIRR has done much to cause this hatred, and only a fool would deny it's well deserved.
This is payback time. Finally, the media and the government have given us an easy target of this hatred, this simmering anger, and the rest of us, the commuters, the business people who paid the hated Commuter Tax, have an excuse to unleash our venom.
For a working schlub who commutes from the suburbs, the Long Island Rail Road disability scandal of 2008 was powerful evidence that the game of life is rigged.
Hundreds of railroad employees — engineers to white-collar managers — would retire in fine health as early as 50, then become instantly and lucratively disabled. If they took their phantom neck and back pain to the right doctor and to an obscure federal railroad board that almost never said no to a disability claim, the checks would start to flow. The daily grind turned into daily golf.
Hundreds? Name them, Downes. After years of investigation, the government has prosecuted a grand total of 33 defendants, of which 25 have pleaded guilty. Does this amount to hundreds on disability playing "daily golf" using the New York Times version of math?
The scheme cost taxpayers more than a quarter of a billion federal dollars from 2000 to 2008. It also gouged the L.I.R.R., which had to pay for all those early retirees’ pensions and for overtime and training new employees. What was most shocking about this gravy train was how many L.I.R.R. employees were on it. Every year from 2000 to 2008, between 93 percent and 97 percent of employees over 50 who retired with 20 years of service got disability payments. Experts had to wonder what other workplace, besides the gulag, crippled so many of its workers.
Experts knew exactly what happened, even if pundits were confounded. Older employees cost the LIRR a lot of money. They were paid at a much higher rate than new employees, and to reduce costs, the LIRR sought to persuade older workers to move on so they could be replaced with far less expensive employees. Nothing hard to grasp here, Downes. It's just money.
So the LIRR held seminars for the older workers about how they could retire on disability, and steered workers to facilitators who would help them navigate their way through the Railroad Retirement Board's disability system. These workers were sent to physicians who knew what was needed and could help them obtain a disability annuity.
Of course (and nobody seems to get this part of it), the RRB would have these retirees examined by their own physicians, who would review not only the narrative reports of docs like Ajemian, but the treatment notes, x-rays and MRI's as well. Suggesting that one doc like Ajemian could single-handedly defraud the federal the government is absurd, unless you eliminate the nasty facts and ignore the parts that don't conform to the narrative of payback.
It's not that this doesn't give rise to issues. A railroad disability isn't like a disability that applies to desk jockeys. It's an occupation disability, where it's given because of the inability to do railroad work, meaning those guys who fix the broken switches in the middle of the night in a snowstorm so you can hate them during your morning commute.
Do you really want the guy popping Vicodin because of his herniated disks responsible for the lives of a thousand people? The potential for harm is so great that railroad workers have been singled out for random drug testing, approved by the Supreme Court in 1989 in Skinner v. Railway Labor Executives’ Assn even thought suspicionless testing would be unconstitutional if applied to, say, New York Times pundits.
Even putting aside these and myriad other "details" wholly ignored by the media, there remains a flagrant flaw:
The Railroad Retirement Board has only now decided to cut off payments to about 600 of the dubiously disabled, months after the doctor who signed off on their diagnoses, Peter Ajemian, pleaded guilty to fraud in federal court.
Meet the new criteria for terminating rights by the federal government, dubiousness. Forget "beyond a reasonable doubt," "preponderance of the evidence" or "probable cause." Heck, not even reasonable suspicion. Dubiousness. And why does the New York Times endorse the new standard of "dubiousness" for deprivation?
Disenchanted riders are counting on the feds and the L.I.R.R. to get the money back, and send the belated message that the schemers will be punished.
It's not about proof of wrongdoing. There is no proof of wrongdoing. The only "proof" is that guys with missing limbs and multiple surgeries went to Peter Ajemian (plus the unmentioned RRB doctors, but let's not muddle up anger with facts). As long as people are angry, we don't need no stinkin' evidence.
Lest someone get the misimpression that it's just the Times feeding into the anger and ignorance that pervades the media attention, Newsday offered an editorial as well:
Now the LIRR wants to revoke their pensions as well. Workers who are truly disabled can reapply for disability benefits -- a hassle, probably, but a crucial step to whittle out those who committed fraud.
Because it would be far too hard to expect the government of the United States of America to figure out first whether someone did wrong before convicting them of dubiousness in the first degree and denying them due process? The difference here is that expectations of thoughtfulness by Newsday are inherently lower than that of the Times. Tell the families who use the disability annuity for food that they just need to suffer the hassle of the next year without it to make the government's job easier.
As far as I can tell, I may be the only voice speaking out for the LIRR disabled, which is itself curious given that I commuted for 25 years on the railroad and hate the LIRR as much as the next guy. But my hatred of the railroad doesn't obscure the facts, my rage doesn't make me desire payback from innocent targets.
For those of you who rail about constitutional violations when it comes to the police, what's being done here isn't materially different. These 600 have been painted with the Ajemian brush, though none have been found guilty of any fraud nor afforded a fair opportunity to challenge the taint imputed to them for committing the crime of dubiousness.
But then, you aren't getting a disability annuity, so why should you care if the government wrongfully beats the crap out of some other guys, as long as you get to go about your life unimpeded. And besides, everybody hates the LIRR, so it's just too hard to muster any sympathy. Too hard for Newsday. Too hard for Downes. Too hard for the New York Times. Thinking is too damn hard. Let's just burn them all at the stake and call it a day.
© 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/2013/07/08/dubious-in-the-first-degree.aspx?ref=rss
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AM Roundup: Judge Orders Microsoft to Surrender Overseas Data; Justice Ginsburg Hits Back
The AM Roundup: Law Blog rounds up the morning's news.
Is Your Out-of-State LLC “Doing Business” in California?
Individuals and entities, including those from outside California, who invest in or do business through an out-of-state limited liability company (“LLC”) may be surprised to find out that they have filing obligations and tax liabilities in California as a result of California’s far-reaching rules and interpretations related to when an LLC is treated as “doing business” in California.
The law:
Under California law, all LLCs are required to annually file a California tax return and pay at least an $800 California franchise tax if they:
- Engage in any transaction in California for the purpose of financial gain or profit.
- Are incorporated or organized in California.
- Have qualified or registered to do business in California.
- Are “doing business” in California, whether or not they incorporated, organized, qualified or registered under California law.
The Franchise Tax Board (“FTB”) takes the position that an LLC organized in a jurisdiction outside California is nevertheless “doing business” in California if:
- It is a member of an LLC that does business in California.
- It is a general partner in a partnership that does business in California.
- Any of the LLC’s members, managers, or other agents conducts business in California on behalf of the LLC.
In addition, an out-of-state LLC is “doing business” in California if:
- The LLC is commercially domiciled in California (i.e., California is the place where realistic control of the LLC’s functions is centered).
- Sales, including sales by the LLC’s agents and independent contractors, in California exceed the lesser of $500,000 or 25% of the LLC’s total sales.
- Real or tangible property of the LLC in California exceeds the lesser of $50,000 or 25% of the LLC’s total real and tangible property.
- The amount paid in California by the LLC for compensation exceeds the lesser of $50,000 or 25% of the total compensation paid by the LLC.
For purposes of these calculations, the sales, property and payroll of the LLC include the LLC’s pro‑rata or distributive share of any pass‑through entities (i.e., partnerships, LLCs and S‑corporations).
Some examples that may surprise you:
- A Nevada LLC acquires a passive minority membership interest in a Delaware LLC that owns and operates several California shopping centers. The Nevada LLC may be treated as “doing business” in California simply by reason of its ownership of a membership interest in the Delaware operating LLC, resulting in the Nevada LLC’s own California tax filing obligations.
- A Montana LLC owns an apartment building in Montana that is managed by an on-site (Montana) property manager. One of the three LLC managing members is a California resident. The Montana LLC may be treated as “doing business” in California simply by reason of the existence of a California managing member.
Penalties:
The State can impose a penalty of $2,000 per taxable year if an out-of-state LLC is doing business in California and fails to file a tax return and pay the taxes and fees due. The penalty is due only if the FTB sends a written demand that a return be filed and the LLC does not file the return within 60 days.
Also, any contract made by an out-of-state LLC in California that is neither qualified to do business nor has a corporate account number from the FTB is voidable by any other party to that contract for the period during which the out-of-state LLC fails to file a tax return required by the FTB.
Note that the FTB’s determination of when an out-of-state LLC must file tax returns is in contrast with the California Corporations Code. Under the California Corporations Code, any entity that “actively engages in any transaction in California for the purpose of financial gain or profit” must register with the California Secretary of State. But for this purpose, an out-of-state corporation is not considered to be transacting business in California merely because it is a member or a manager of a domestic or out-of-state LLC or a limited partner of a domestic or out-of-state limited partnership. Moreover, the new California Revised Uniform Limited Liability Company Act, effective as of January 1, 2014, provides that an out-of-state LLC “may” register in California and does not impose penalties for failing to do so.
Non-residents of California are also not necessarily off the hook for California taxes arising from ownership of an LLC. Such non-residents may owe taxes on pass-through income sourced from an LLC’s California activities despite their non-resident status.
BOTTOM LINE: Your out-of-state LLC may have nexus and filing obligations in California and taxes may be owed for such LLC’s activities in California!
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Sunday, August 3, 2014
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."
Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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Inside Washington: Our Annual Report on D.C. Law Offices
Despite Congressional gridlock on a number of critical national issues, legal work that grows from government relations and federal regulation continues to spell opportunity for lobbyists and lawyers.
Source: http://www.nationallawjournal.com/id=1202664409483?rss=rss_nlj
Gaza officials accuse Israel of war crimes at ICC
[JURIST] Top Palestinian officials on Friday filed a complaint to the International Criminal Court (ICC) [official website], accusing Israel of war crimes in Gaza. Palestinian Justice Minister Saleem Al-Saqqa and Gaza court public prosecutor Ismail Jabr started legal proceedings over the 18 days of fighting between Hamas and Israel that has killed over 800 Palestinians and 35 Israelis. The complaint [AP report] accuses Israel of war crimes, including apartheid, attacks against civilians, excessive loss of human life and colonization. The...
Source: http://jurist.org/paperchase/2014/07/gaza-officials-accuse-israel-of-war-crimes-at-icc.php
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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/
This Week on Legal Talk Network (7/14/14)
Hello. This is Laurence Colletti for This Week on Legal Talk Network. On Monday, Sharon Nelson and Jim Calloway from the Digital Edge talk to expert Tom Spahn about the ethics involved when a law firm breaks up or a lawyer wants to leave. Here's a preview- On Wednesday, The Legal Toolkit's Jared Correa continues our Special Report series from the MASS LOMAP 4th Annual Super-Marketing Conference and interviews Joyce Brafford from NCBA on how to manage social media to improve client relationships. Thursday, Heidi Alexander returns to the conference to speak to Kelli Proia from Lawducate about the how to run and market your law firm like a regular business. And on Friday, we finish the week with The Kennedy-Mighell Report - our hosts Dennis Kennedy and Tom Mighell discussing the new 3rd edition of Tom's book "iPad in One Hour for Lawyers" - what's happening with the iPad now and what to expect in the future. So tune in. It's all right here . . . This Week on Legal Talk Network.
Source: http://traffic.libsyn.com/sr/This_Week_on_LTN_7-14_Audio_Only.mp3
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Uganda high court voids anti-homosexuality law
[JURIST] Uganda's Constitutional Court [official website] on Friday ruled that Uganda's anti-homosexuality law was passed without the requisite quorum, effectively voiding the law. The law [text, PDF] was challenged [JURIST report] by right activists in March. The ruling [Reuters report] may still be appealed. The law punished homosexual acts with imprisonment for "aggravated homosexuality" and banned the "promotion of homosexuality." Ugandan government spokesperson Ofwono Opondo said that donors should reinstate any aid [BBC report] that had been cut in response...
Source: http://jurist.org/paperchase/2014/08/uganda-high-court-voids-anti-homosexuality-law.php
License Loss Keeps Habeas Claim Alive
A petitioner may pursue her habeas claim after completion of a jail sentence; an Augusta County Circuit Court says petitioner’s claim is not moot because she ultimately seeks reinstatement of her nursing license. It is reasonable to suggest that prior to the Supreme Court of Virginia’s decision in E.C. v. Va. Dep’t of Juvenile Justice, ...
Source: http://valawyersweekly.com/2014/01/02/license-loss-keeps-habeas-claim-alive/
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Saturday, August 2, 2014
Enlisting Smartphones In The Campaign For Campus Safety
Developers hope technology can help stop sexual assaults on campus — or at least provide students with easier access to resources.
Inside Washington: Our Annual Report on D.C. Law Offices
Despite Congressional gridlock on a number of critical national issues, legal work that grows from government relations and federal regulation continues to spell opportunity for lobbyists and lawyers.
Source: http://www.nationallawjournal.com/id=1202664409483?rss=rss_nlj
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Fourth Circuit Affirms Dismissal of Securities Fraud Complaint Where Inference of Scienter Was Not Sufficiently Strong
In Yates v. Municipal Mortgage & Equity, LLC, No. 12-2496 (4th Cir. Mar. 7, 2014), the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a securities fraud claim under Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78(b), against defendant Municipal Mortgage & Equity (“MuniMae”) and its individual officer and director defendants. The Court held that plaintiffs failed to plead facts sufficient to give rise to a strong inference of defendants’ scienter under the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4, et seq. The Court declined to accept that the inference of scienter offered by plaintiffs — supported by statements from confidential witnesses, presence of red flags, allegations of insider trading and general business incentives — was at least as compelling as the opposing inference of mere negligence that could be drawn from the amended complaint. Yates is one of the few reported decisions from the Fourth Circuit applying the PSRLA, and it solidly reaffirms the PSLRA’s requirement that a plaintiff plead more than just allegations based upon conjecture and happenstance to satisfy heightened pleading requirements.
During the putative class period (May 3, 2004 to January 29, 2008) MuniMae was involved in organizing investment partnerships to pool low-income housing tax credits (“LIHTCs”) and sell them to investors. Prior to 2003, MuniMae treated its LIHTC investment partnerships as off balance sheet entities. In 2003, the Financial Accounting Standards Board adopted Interpretation No. 46R (“FASB 46R”), requiring that a company that is the primary beneficiary of “Variable Interest Entities” consolidate the entities assets and liabilities onto its financial statements. MuniMae began asserting compliance with FASB 46R in the first quarter of 2004. However, at that time MuniMae internally concluded that FASB 46R did not require it to consolidate for financial statement purposes all of tis LIHTC investment partnerships. MuniMae continued to assert compliance with FASB 46R through 2006. In September 2006, MuniMae announced it would be restating certain financial statements and through a series of later disclosures finally announced that the restatement would deal with FASB 46R accounting errors. As a result of the piecemeal disclosures, MuniMae’s share price dropped precipitously. The following day, MuniMae disclosed the full extent of the restatement’s scope and MuniMae’s stock experienced an additional decline. Eventually, in April 2008, MuniMae disclosed that it had spent over $54 million on the restatement.
Plaintiffs filed a class action complaint alleging that defendants made false representations that MuniMae was complying with FASB 46R and concealed the expected cost of the restatement in violation of Section 10(b). The United States District Court for the District of Maryland held that the amended complaint did not sufficiently allege a claim under Section 10(b) because it did not meet the PSLRA’s heightened pleading standard for scienter allegations. Plaintiffs appealed.
The Court of Appeals affirmed. First, the Fourth Circuit held that the confidential witness testimony supplied by plaintiffs did not support a “strong inference of wrongful intent.” The testimony did suggest that defendants knew earlier than disclosed that MuniMae was not in compliance with 46R and that the required restatement would be a difficult and costly undertaking. It also indicated that the issue was difficult and complex and had thrown MuniMae into “confusion and chaos” — which the Court held supported the opposing inference that the defendants were merely negligent. In fact, the Court explained, defendants’ subsequent disclosures negated an inference of fraudulent intent because, although the disclosures were not “as timely or as fulsome” as plaintiffs would have liked, they gave rise to a compelling inference that the MuniMae defendants were attempting to keep the investing public informed.
Second, the Court held that while there were several “red flags” concerning MuniMae’s core operations — the need in and of itself for several restatements, frequent accounting meetings, the firing of outside auditors, and rapid CFO overturn — they did not in and of themselves give rise to a strong inference of scienter. Not only was the FASB 46R accounting error not especially obvious, but the other warning signs easily lent themselves to benign interpretations as a result of MiniMae’s obvious attempts to get a handle on its creeping accounting problems.
Third, the Court of Appeals followed the decisions of several other Circuits in holding insufficient plaintiffs’ allegation that the individual defendants “must have acted intentionally or recklessly” merely because they were senior executives and the LIHTC investment partnerships represented a core business of MuniMae.
Fourth, in addressing plaintiffs’ allegations concerning insider trading, the Court held that while the overall value of MuniMae shares sold during the class period was higher than in previous years and thus consistent with an inference that the insiders who traded had a motive to commit fraud, the inference that the trades were innocent was stronger. There were no allegations that the insiders timed their sales to take advantage of any particular disclosure. Nor was the level of any insiders’ divestiture particularly alarming. Moreover, the Court noted, the fact that several of the individual defendants traded under non-discretionary Rule 10b5-1 plans further weakened any inference of fraudulent purpose.
Finally, the Court held that plaintiffs other allegations of motive were similarly lacking as the alleged motivations amounted to nothing more than “financial motivations common to every company.”
Thus, in Yates, the Fourth Circuit reaffirmed the heightened standard of pleading a plaintiff must meet to satisfy the PSLRA. Specifically, the Court emphasized that the allegations of scienter under Section 10(b) cannot be read in a vaccum. They must be holistically analyzed in comparison with the disclosures actually made by defendants. General business motivations, insider trading and the core nature of the problems alleged by plaintiffs cannot turn a company’s repeated attempts to inform investors of the ongoing and ever-evolving nature of a problem into intentional rather than merely negligent conduct.
Litigation Surrounding General Motors Ignition Switch Problem
General Motors (GM) faces litigation stemming from an ignition switch problem in some recalled vehicles and now, families of the deceased or injured are seeking justice. On this Ringler Radio podcast, host Larry Cohen and co-host Mike Casey from Ringler Associates talk with Attorney Adam J. Levitt, director at Grant and Eisenhofer P.A. about the GM litigation, the National Highway Traffic Safety Administration's role and ultimately what this ignition problem means for the car giant.
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Nurse Has Sovereign Immunity
An Orange County Circuit Court grants a special plea of sovereign immunity to a defendant who provided nursing services at a county nonprofit nursing facility. In the requests for admission, plaintiff admitted Dogwood Village was a nonprofit nursing facility owned by Orange County and overseen by the Health Center Commission of Orange County, and that ...
Source: http://valawyersweekly.com/2014/01/02/nurse-has-sovereign-immunity/
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
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Star Witness Steps Up To The Stand In McDonnell's Corruption Trial
The corruption trial of former Virginia Gov. Bob McDonnell continues to unfold, as the prosecution's feature witness, Star Scientific's Jonnie Williams, testified against McDonnell and his wife.
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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Friday, August 1, 2014
Heidi Alexander Interviews Lawducate Founder Kelli Proia at Mass LOMAP Conference
Heidi Alexander, co-host of The Legal Toolkit, interviews Kelli Proia, founder of the legal business training organization Lawducate, during Mass LOMAP's 4th Annual Super Marketing Conference. She explains how a law firm is like any business, and recommends lawyers put effort into marketing and outsource necessary areas like creating a website. Lawducate, one of the co-sponsoring organizations at Mass LOMAP, teaches fundamental business marketing and sales techniques to lawyers.
Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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New York City Police Unions Barred from Intervening in Stop-and-Frisk Lawsuit
A U.S. District Judge on Wednesday denied motions by the city's five police unions to be treated as defendants in the landmark stop-and-frisk lawsuit.
All Zimmerman or All Trayvon Martin
Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin. Aside from John Steele's having raised the question of the ethics of overcharging, there hasn't been a whole lot to write about.
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 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.
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 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/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
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All Door Are Definitely Not Alike
Door are similar in that they all lead somewhere. On a plane, though, where they lead is kind of important – the bathroom, or, as reported at theindependent.ie …
Tomasz Mucha (26) had never been on a plane before and drank vodka and beer to steady his nerves before attempting to open the back door of the Ryanair aircraft.
Yeah, unless you’re on the ground, that door is not your average door. But fortunately …
Dublin District Court heard he did not manage to get the door open due to the air pressure.
Whew. Still, the Judge must have thrown the book at this gent.
Judge James Faughnan fined him €200 after the accused said he realised how serious the situation could have been.
And that was after “Mucha … pleaded guilty to being intoxicated on an aircraft and using threatening, abusive or insulting behaviour.” Had that happened in the United States, do you think the guy would have been hit with only a 200 euro fine ($270 US)? You’ll find the source, and more, by clicking here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/UFH_Fayr47I/asfd-8.html
Litigation Surrounding General Motors Ignition Switch Problem
General Motors (GM) faces litigation stemming from an ignition switch problem in some recalled vehicles and now, families of the deceased or injured are seeking justice. On this Ringler Radio podcast, host Larry Cohen and co-host Mike Casey from Ringler Associates talk with Attorney Adam J. Levitt, director at Grant and Eisenhofer P.A. about the GM litigation, the National Highway Traffic Safety Administration's role and ultimately what this ignition problem means for the car giant.
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Easy DWI Bust Top Ten – Easily
This guy could not have made it any easier for the police to bust him for driving while intoxicated. As reported by The Hunterdon County Democrat (New Jersey):
The incident happened on Friday, July 18, just before midnight on Route 31 north near Echo Lane. Patrolman John Tiger saw a 2013 Ford Mustang stopped on the northbound shoulder with its hazard lights activated. Upon approaching the car, Tiger saw Rafael Genao, 35, of Washington sleeping in the driver’s seat while the engine was running, police said.
Genao’s right hand was on the gear shifter, the car was in neutral, and the emergency brake was on. When the officer woke Genao, Genao de-activated the emergency brake and the car rolled backward, hitting Tiger’s patrol vehicle, police said. After several attempts, Tiger was able to get Genao to park his vehicle, turn it off and hand over the keys, police said.
Um. Er. Uh. Well … sorry? Fuhgeddaboutit.
Tiger detected the odor of an alcoholic beverage on Genao’s breath, determined that he was intoxicated and arrested him. At headquarters, Genao refused to provide samples of his breath for chemical testing to determine the content of alcohol in his blood, police said.
So …
Tiger charged him with driving while intoxicated, refusal to submit to a breath test and careless driving. His vehicle was towed from the scene and he was released to the custody of a responsible adult.
You’ll find the source here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/EZAolo8wOhM/dfa-2.html
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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