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Sunday, September 30, 2012
Judge Scheindlin’s Collection Case and Florida E-Discovery Amendments
One of the attributes that makes for a great e-discovery lawyer is the ability to wade through the digital mire that separates preservation from collection. The ESI Report’s Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack joins e-discovery expert David Kearney, Director of Technology Services at Cohen & Grigsby, to discuss Judge Shira Scheindlin’s recent opinion in the case, National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al. On the Bits & Bytes Legal Analysis segment, Kroll Ontrack Legal Correspondent, Elliot Westman analyzes recent e-discovery amendments to the Florida Civil Procedure Rules.
The Surefire Way to End Online Piracy: End Copyright
Dr. Dean Baker, co-director of the Center for Economic and Policy Research in Washington, D.C., discusses his recent article in the Huffington Post, "The Surefire Way to End Online Piracy: End Copyright." Read more about Dr. Baker at http://bit.ly/c6VVJo.
How Pro Bono can be a market strategy for Solos and Law Students
Solos and Law Students-have you considered Pro Bono as an investment? It can expand your client base and knowledge, open doors for employment and networking, and enrich your standing in the community. New Solo host, Attorney Kyle R. Guelcher, a solo practitioner and the most recent Chair of the Young Lawyers Division of the Massachusetts Bar Association discusses with Attorney Luz Herrera, Assistant Professor of Law at the Thomas Jefferson School of Law in San Diego, California how she used Pro Bono to build her practice and strengthen her community.
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Robbery, With A Happy Finish?
For those of you not familiar with a "happy finish," have you not heard of Google? But back to today's story, which takes us to an Australian Subway. As reported in the Northern Territory News:
A female robber surprised staff at a fast food restaurant with a strip, before fleeing with more than $500 in cash.Before some of you get too excited, the term "strip" is used a little liberally.
Staff at the Subway restaurant in the Darwin suburb of Berrimah discovered a whole new meaning for "one with the lot" during the brazen daylight robbery at the weekend.
Police said a woman - believed to be between 25 and 30 years of age with dark hair - walked into the Subway on Sunday at 11.15am, demanding money and "waving a knife".
Police said the woman then removed her top, exposing a black bikini top, before running to a waiting getaway car.Now that's an exit.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/YLzq9y2BFus/post_496.html
True Grit: BigLaw Struggles to Find the Right E-Discovery Formula
Management of e-discovery is a challenge for large firms, whose clients present complex litigation with literally millions of electronically stored documents. In today’s competitive environment, firms have been exploring everything from e-discovery practice groups to vendor alliances, in order to attract clients. On Law Technology Now, host and Law Technology News’ editor-in-chief, Monica Bay joins John Rosenthal, partner at Winston & Strawn, and Paul Weiner, national e-discovery counsel and shareholder at Littler Mendelson, to discuss Law Technology News’ February issue cover story, True Grit: Scrapping for E-discovery Business, Law firms Push New Creative Options.
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Dewey Ex-Partners Throw the Bankruptcy Bonus Book at Canellas
Dewey & LeBoeuf LLP could be on track to make legal history if ex-partners get their way in a fight over a proposed $165,000 bonus for finance chief Frank Canellas.
Obesity can be a disability, at least in Montana
Obesity can be a disability, at least in Montana.
Full decision: BNSF Railway v. Feit (Montana 07/06/2012)
Feit got a ruling from the Montana Department of Labor that BNSF Railway discriminated against him by refusing to hire him because BNSF regarded him as being disabled due to his obesity.
BNSF then went to federal court to get a review of whether it violated the Montana Human Rights Act (MHRA) by refusing to hire Feit because of his obesity.
The federal court then asked the Supreme Court of Montana to decide how to rule, asking this question: Is obesity that is not the symptom of a physiological condition a "physical or mental impairment" as it is used in Montana Code Annotated section 49-2-101(19)(a)?
The Montana Supreme Court answered with a qualified yes. The court answered: Obesity that is not the symptom of a physiological disorder or condition may constitute a "physical or mental impairment" within the meaning of Montana Code Annotated section 49-2-101(19)(a) if the individual's weight is outside the "normal range" and affects "one or more body systems" as defined in 29 CFR 1630.2(h)(1)(2011).
The federal court laid out these facts:
1. BNSF offered Eric Feit a conditional offer of employment as a conductor trainee. The employment was conditioned upon successful completion of a physical examination, drug screening, background investigation, proof of employment eligibility, and BNSF’s Medical History Questionnaire.2. On February 6, 2008, BNSF informed Feit he was not qualified for his “safety sensitive” position because of the “significant health and safety risks associated with extreme obesity.”
3. BNSF told Feit he would not be considered for the job unless he either lost 10% of his body weight, or successfully completed additional physical examinations at his own expense. Regardless of the test results, BNSF did not guarantee Feit a job.
4. With the exception of a sleep study test, Feit successfully completed the additional physical exams BNSF requested. The sleep test cost at least $1,800, and Feit could not afford the test.
5. Because BNSF informed Feit that it would not consider him for the conductor trainee position unless he completed the sleep study, Feit set out to lose 10% of his weight.
6. A genuine dispute exists regarding whether BNSF received documentation of Feit’s weight loss.
The Montana Supreme Court noted that the EEOC Interpretive Guidance distinguished between conditions that were impairments and conditions that were simply physical characteristics, which suggested that a person with normal weight required a physical condition to qualify as an impairment. The court referred to the ADAAA which instructed courts that they were interpreting the statute too restrictively and expressed its specific intent that determination of disability not demand extensive analysis (122 Stat. at 3553-54).
The DISSENT noted that the definition of a "physical and mental impairment" included "any physiological disorder, or condition" that affects a major system of the human body (29 CFR 1630.2(h)(1)), and argued that the plain meaning required a physiological condition be present before an impairment existed.
Source: http://www.lawmemo.com/blog/2012/07/obesity_can_be.html
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L.A. County Sheriff Slammed In Report Alleging Abuse
County Sheriff Lee Baca faces what may be the toughest fight of his 14-year political career. A scathing report issued Friday includes accusations of misconduct in his jails, such as deputies beating inmates, cover-ups and a persistent culture of violence.
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Source: http://www.npr.org/2012/09/29/161997959/l-a-sheriff-rebuked-for-alleged-inmate-abuse?ft=1&f=1070
Saturday, September 29, 2012
No, You Don't Love Your Cat As Much As This Woman.
No way you love your cat as much as this woman. Or maybe you just love your husband more than she does. As reported by www.khou.com (Houston, Texas):
Deputies said [Audrey Deen] Miller [42] and her husband were arguing at their home in the 6700 block of Seaton Valley Drive around 7:30 a.m. when he threatened to shoot her cat with a pellet gun.Big, big mistake.
Miller, an animal lover with several cats and dogs, pulled out a .40-caliber semiautomatic handgun and shot her husband in the stomach.Hmm. She brought a real gun to a pellet gun fight. Guess who won?
“The husband was trying to do something to the cat and the wife was just trying to protect her cat,” said Assistant Chief Mark Herman, Precinct 4."Just trying to protect her cat"? By possibly killing her husband?
Miller was arrested at the scene [and charged with aggravated assault with a deadly weapon] and her husband was transported to Ben Taub Hospital in stable condition. He returned home from the hospital later Tuesday afternoon, clad in a hospital gown and without keys to get inside.In case you're wondering about the cat (in addition to what life in that house is going to be like!):
The cat was not harmed.Here's the source, including Ms. Miller's mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/P4sAXdCrggE/post_503.html
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Finders, Keepers: How Vendor Websites Can Turn Visitors into Buyers
Ask any CIO about trying to find information on legal technology products or services and you’ll get an earful. The bottom line is vendors need to build sites with user needs in mind, and not just data a vendor is trying to glean. On Law Technology Now, host and Law Technology News magazine editor-in-chief, Monica Bay joins Steve Fletcher, CIO of Parker Poe, and Chris Romano, CIO of Ward and Smith to discuss their pet peeves and wish lists.
Erlinder charges WMCL with discrimination based on disability
Erlinder
Professor Peter Erlinder has filed a charge of discrimination with the EEOC against William Mitchell College of Law.
A copy of the charge was mailed anonymously to Minnesota Lawyer, with no note or cover letter.
Erlinder claimed discrimination based on disability and retaliation because he has post-traumatic stress disorder. His PTSD stems from his imprisonment in Rwanda in 2010 and subsequent death threats from Rwanda’s President Kagame. He is undergoing treatment and has medication.
He alleged that William Mitchell has been a hostile work environment since he returned from Rwanda.
He stated that he suffered a PTSD episode on Jan. 3, 2012 and that on Jan. 12 Dean Eric Janus ordered him off the campus. On Jan. 13 he was escorted off the campus by an armed guard, he said.
Janus told Minnesota Lawyer that the school takes its obligations under the ADA “very very seriously and “vigorously denies the allegations of hostile work environment or retaliation.” He said he could not further discuss personnel or employee’s medical matters, but that the school has conducted its own investigation.
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Tony Coelho: Fighting for the Disabled
On Ringler Radio, host Larry Cohen welcomes colleague Cindy Chanley, and returning guest, Tony Coelho, the past chair and member of the board of the American Association of People with Disabilities (AAPD) and the interim President and CEO of the Epilepsy Foundation, to share his personal journey and his ongoing fight for people living with disabilities. Tony shares his thoughts on health care, how structured settlements have benefited a person with disabilities, in addition to the AAPD’s mission for 2012 and his work with the Epilepsy Foundation.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/04/tony-coelho-fighting-for-the-disabled/
Milwaukee PD Suspect Dies, Feds May Investigate
The U.S. Attorney in Milwaukee says he's considering looking into a possible pattern of civil rights abuses by the Milwaukee Police Department. A video shows an African-American man in police custody pleading for help, and police scolding him. The man later died.
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Source: http://www.npr.org/2012/09/26/161793620/milwaukee-pd-suspect-dies-feds-may-investigate?ft=1&f=1070
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New Report Slams L.A. County Sheriff's Department
A new report outlines abuses in the nation's largest jail system. The report contains tough criticism of Los Angeles County Sheriff Lee Baca, who oversees the jails. It accuses him of mismanagement and ignoring years of abuse.
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Source: http://www.npr.org/2012/09/28/161974486/new-report-slams-l-a-county-sheriffs-department?ft=1&f=1070
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
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Second Circuit Affirms Dismissal of Securities Class Action Against CBS Due to Plaintiffs' Failure to Plead Scienter and Reliance
In City of Omaha v. CBS Corp., No. 11-2575, 2012 U.S. App. LEXIS 9535 (2d Cir. May 10, 2012), the United States Court of Appeals for the Second Circuit reaffirmed its decision in Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011) [see our prior blog article here], which held that statements regarding goodwill and loan loss reserves were “opinions” that could only be actionable under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder, if defendants did not genuinely believe the statements to be true at the time they were made. Separately, the Court also held that plaintiffs’ complaint did not sufficiently allege reliance upon a fraudulently inflated price where the alleged “red flags” purportedly indicating the need for earlier review of CBS’ goodwill were matters of public knowledge and thus were already incorporated into the price of the stock. This decision is notable for its recognition that the presumption that publicly available information, if material, necessarily affects the price of an efficiently traded stock, which typically is used by plaintiffs to support securities fraud complaints, can also be used by defendants to defeat securities fraud complaints.
In City of Omaha, plaintiffs alleged that CBS Corp. (“CBS”) and various members of CBS’ management made statements about CBS’s goodwill and its general financial condition that were knowingly or recklessly false. Specifically, plaintiffs alleged that, prior to an announcement by CBS in October 2008 that it was to perform an interim impairment test on its existing goodwill (and that, as a result, it expected to incur a non-cash impairment charge of approximately $14 billion), defendants knew about facts that indicated such a test was necessary at an earlier date. The United States District Court for the Southern District of New York dismissed the amended complaint, holding that plaintiffs “failed to cite a point, factually or temporally, when the defendants’ actions added up to something more than an exercise of real-time accounting judgment.” City of Omaha v. CBS Corp., No. 08 Civ. 10816, 2011 U.S. Dist. LEXIS 57647, at *12 (S.D.N.Y. May 24, 2011).
The Second Circuit affirmed. The Court relied upon its earlier decision in Fait, in which the Second Circuit held that estimates of goodwill and loan loss reserves are inherently subjective and thus constitute “opinions,” such that statements in this context could only be false or misleading if defendants did not genuinely believe them to be true at the time they were made. The Court concluded that because plaintiffs’ amended complaint was “devoid even of conclusory allegations that defendants did not believe in their statements of opinion regarding CBS’s goodwill at the time they were made,” plaintiffs’ fraud claims were properly dismissed.
The Court then turned to the element of reliance. It is well settled that to state a claim under Section 10(b) and Rule 10b-5, plaintiffs must plead reliance upon defendants’ allegedly false or misleading statements. Under Basic Inc. v. Levinson, 485 U.S. 224 (1988), plaintiffs’ reliance is presumed if, inter alia, the defendant issuer’s stock is traded in an efficient market because it is assumed that a stock price incorporates all publicly available material information. The presumption of reliance is rebuttable, however, upon any showing that the causal link between the alleged misrepresentation and the price is broken.
Here, the Second Circuit held that such causal link was severed where indications of CBS’s financial well-being were matters of public knowledge. The Court observed that plaintiffs claimed to have relied upon several indicia as to why CBS should have been aware that impairment testing of its intangible assets was required in early 2008: the widening gap between CBS’s book value and the company’s market capitalization, the declines in advertising revenues, and the expectations of analysts regarding the media business. The Court noted that these so-called “red flags,” as well as CBS’ last impairment test in 2007 prior to the appearance of these red flags, were all matters of public knowledge. Thus, “CBS’s market price would at all pertinent times have reflected the need for, if any, or the culpable failure to undertake, if any, interim impairment testing.” The Court reasoned that because market makers were aware of the alleged “red flags,” the market price would have accounted for such and would not have been affected by the alleged misrepresentations. Under such circumstances, there is no basis for finding that a fraud had been transmitted through the market price. Thus, the Court held the complaint failed to allege that CBS stock was fraudulently inflated and, consequently, failed to allege reliance upon such fraud.
Commentators have long recognized that issues of causation, reliance, materiality and price impact in securities fraud actions are interrelated. This decision moves the law closer to applying a more consistent approach to the issues. The United States Supreme Court’s decisions in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011) [see blog article here], and Erica P. John Fund, Inc. v. Halliburton Co., 131 S. Ct. 2179 (2011) [see blog article here], previewed several of these issues, but a more comprehensive analysis still awaits Supreme Court consideration.
For further information, please contact John Stigi at (310) 228-3717 or Valentina Shenderovich at (212) 634-3019.
Friday, September 28, 2012
California employers must "provide" meal breaks, but need not "ensure" employees take them
Here it is: Brinker v. Superior Court (California 04/12/2012):
Employee Hohnbaum brought a class action claiming violations of California Labor Code Sections 226.7 and 512, and California Industrial Welfare Commission Wage Order No. 5. The trial court granted a motion for class certification. The Court of Appeal reversed, concluding that the trial court erred in granting class certification without first considering the elements of Hohnbaum's claims. The California Supreme Court held that trial courts usually are not required as a matter of law to resolve such threshold disputes over the elements of a claim, but went ahead and resolved some of them anyhow.
(1) Meal breaks.
The most significant issue deals with the employer's duty to provide meal breaks. The court said,
"We conclude an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done." "The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so." "The employer is not obligated to police meal breaks and ensure no work thereafter is performed."
(2) Meal break timing.
The court concluded that,
"absent waiver, section 512 requires a first meal period no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work," and that "Wage Order No. 5 does not impose additional timing requirements."
(3) Rest breaks.
Wage Order No. 5 is interpreted as meaning that "an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on." The court rejected the idea that employees are entitled to a rest period before any meal period.
(4) Class certification.
The court remanded the certification of the meal break subclass, upheld certification of a rest break subclass, and rejected certification of an off-the-clock subclass.
Source: http://www.lawmemo.com/blog/2012/04/california_empl.html
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Gone Clio with Attorney Beate Weiss-Krull
Listen as Clio co-founder and CEO Jack Newton talks with special guest, Beate Weiss-Krull, a general practitioner based in Portland, Oregon. You’ll hear Jack and Beate talk about how #cloudcomputing helps her manage her US and German cases, her switch from PC to Mac, ScanSnap and other #paperless productivity tips.
Source: http://legaltalknetwork.com/podcasts/gone-clio/2012/01/gone-clio-with-beate-weiss-krull/
The iPad Practice
Do you use an iPad in your legal practice? On The Un-Billable Hour, host Attorney Rodney Dowell, chats with Tom Mighell, the author of three books about the use of iPads, iPad in One Hour For Lawyers, iPad Apps in One Hour For Lawyers, and soon to be released, iPad in One Hour for Litigators, about the explosive growth of the use of iPads in the legal profession, and Tom’s favorite productivity and entertainment apps for the legal iPad.
Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/08/the-ipad-practice/
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Three judicial finalists named in 7th District
Three finalists have been named by the Commission on Judicial Selection for one vacancy in the Seventh Judicial District. They are Michael D. Fritz, Johnathan R. Judd, and Michelle Winkis Lawson. The vacancy was created upon the appointment of Judge Michael Kirk to the Court of Appeals.
Fritz serves as the Becker County Attorney where he is responsible for criminal and child protection matters. He previously served as the Assistant Becker County Attorney and was a partner with Hummel, Sinclair, Evans, Hunt, Heisler and Fritz, P.A. where he practiced in estate planning, municipal and employment matters.
Judd maintains Judd Law Office, PLLC which represents clients in criminal, family and civil matters. The office also provides public defender services with the State Board of Public Defense and holds a contract with Clay County to represent indigent parents in CHIPS cases. He previously worked as an associate attorney with Aaland Law Office, served as an Assistant Public Defender with the Seventh Judicial District Public Defender’s Office.
Lawson serves as the Chief Assistant Clay County Attorney for the Civil Division, and has served as the Interim Clay County Attorney. Prior to this, she worked as a facilitator for the University of Mary and was an associate attorney with the Vogel Law Firm.
Minnesota’s Seventh Judicial District consists of Becker, Benton, Clay, Douglas, Mille Lacs, Morrison, Otter Tail, Stearns, Todd and Wadena Counties.
An announcement of the appointment will be made following an interview process over the next few weeks.
Source: http://minnlawyer.com/minnlawyerblog/2012/09/14/three-judicial-finalists-named-in-7th-district/
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The Return of Black Lung and the Law
A recent investigation found the rate of miners diagnosed with Black Lung Disease is surging after nearly three decades of decline. Some blame lenient regulations, lax enforcement, even manipulation of air samples from mines. Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams, get the reasons behind this shocking increase and a breakdown of Black Lung litigation from Chris Hamby, the author of the Center for Public Integrity report, and Attorney Stephen Sanders, the director of Appalachian Citizens’ Law Center.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/the-return-of-black-lung-and-the-law/
Defense Attorneys Turning to Social Media
Lead counsel for accused murderer George Zimmerman calls social media an unavoidable component of high profile cases. So, should blogging, posting and tweeting become standard practices in defense strategies? Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, debate the pros and cons, as well as the legal and ethical issues of social media with Dr. Amy Singer, founder of Trial Consultants Inc., and Attorney Scott Greenfield, Of Counsel at Hull McGuire, PC.
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Thursday, September 27, 2012
Just A Three Year Vacation
In 2009, Sarasota Police Officer Chris Childers got caught. A video in the jail "sallyport" told the story of how his handling of then 21-year-old Juan Perez, drunk, was less than fitting. The Herald-Tribune described the video at the time:
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The tape shows Officer Christopher Childers pull a squad car into the jail's sallyport area with Juan G. Perez, 21, with his hands handcuffed behind him in the back seat about 8 p.m. on June 26. Childers remains in the front seat as Perez shimmies out the squad car's open back window and falls face-first onto the pavement, the video shows. The officer walks around the car and stands by Perez.
Minutes later, as Perez is trying to stand up, Childers apparently kicks him in the chest, then kicks him again. Perez falls back to the ground and Childers stands with his foot on Perez for five minutes. While Childers stands with his foot on the inmate's torso, two other law enforcement officers walk over to see what is going on and then go about their business.
Childers and another officer later pull Perez up and take him into the jail. He is brought back to the squad car, staggering but on his feet. Perez was driven to the hospital, where police said his blood-alcohol content tested at almost three times the legal limit.
This conduct got Childers fired from the police force. The usual reaction to gratuitous abuse by cops didn't happen here. No whitewash. No hiding behind "we're investigating" until the ill-winds blow past. No vague explanations to justify the unjustifiable. No bull.
Childers, a nine-year veteran officer and former U.S. Army Ranger, was fired after investigators concluded he violated five department policies.
In those 9 years, Childers had managed to accumulate five excessive force complaints. Since "none stuck," they don't constitute a basis to conclude he had a propensity to use excessive force, but it's included here for the same reason cops inform the newspapers about the criminal arrest record of every citizen they shoot without cause, to leave an unpleasant taste.
What followed was a show of chaos at the Sarasota Police Department, with the Chief, Peter Abbott, getting canned after being accused of trying to improperly influence Perez when he sent a detective by to offer him a quick $400 to shut down. Perez later received $40,000 in settlement. Then there was the Civil Service Board fiasco, where the board violated the sunshine law by discussing the case privately, resulting in a big money damage award of $90,000.
The case finally went before a new Board, the final arbiter of police termination. They shrugged. No big deal, and concluded that Childers should be reinstated with back pay for the three years that elapsed.
Civil Service Board members, including former City Commissioner Ken Shelin, said they were particularly swayed by the testimony of an SPD sergeant who saw what happened and said he did not think it was egregious.
“This was really not a strong force that was used,” Shelin said, as the board deliberated. “The man was drunk as a skunk and he was going to topple over easily. And apparently, that’s all he did. It was an easy push with his foot, and the man fell over.
“I know it looks bad on the tape, and that’s one of the problems with the video of this, and the public’s perception of the video.”
Every picture tells a story, don't it? This picture tells a story of why municipalities don't rid themselves of bad cops. It costs too much, and they don't fare well anyway.
They had a video. This wasn't a matter of a citizen's complaint, which any rookie lawyer could argue is just animus or sour grapes, since police officers are sworn to uphold the law and respect the rights of citizens, which conclusively proves they would never harm anyone needlessly. "Why would they?" is the standard argument, and it's proven its vitality for decades.
They had a video, but it didn't have sound. Could that spell the difference?
The video did not capture sound, so it is difficult to say whether the officer felt threatened by Perez, or whether Perez was attempting to escape, said Maria "Maki" Haberfeld, a professor at John Jay.
However, when the other officers walk over to Childers as he stands with his foot on the inmate, it is clear the officers are in no danger, Haberfeld said.
"There was no need to keep him on the ground," she said. "It's not justified."
But Civil Service Board member, and former City Commissioner, Ken Shelin spelled it out. Perez was "drunk as a skunk." Screw him. He "was going to toppled over easily." No harm, no foul. But most importantly, "it looks bad on tape, and that’s one of the problems with the video of this, and the public’s perception of the video," which means that it wasn't bad. No doubt you can follow the logic too.
Childers, having had three years to ponder how to explain his conduct caught on tape, offered his exonerating explanation.
Childers — who argues the word ‘kick’ does not accurately describe what he did to gain control of Perez — says he was not trying to hurt him or use any more force than necessary to keep him subdued.
He had left the window of the patrol car open, he said, so that Perez could get some fresh air as he coped with the effects of the pepper spray.
Childers said he used his foot on Perez because he was trying to keep from being spit on.
“I didn’t want to get in a close proximity to him where if he wants to spit, it would get in my face,” Childers said. “That’s why I used my feet, and my legs.”
Nothing to see here. Move along. Police Officer Childers is back from his three year vacation.
© 2012 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/2012/09/25/just-a-three-year-vacation.aspx?ref=rss
Inside the Gerry Spence Trial Lawyers College
Structured settlement brokers have the pleasure of working side by side trial attorneys to help structure the best settlements for the injured and the less fortunate and many of these lawyers credit their success to special training that they received at the Gerry Spence Trial Lawyers College. On Ringler Radio, host Larry Cohen welcomes colleague and co‑host, Bill Wright from the Atlanta office of Ringler Associates and guest Attorney Joseph A. Fried, of Fried Rogers Goldberg, to talk about his experience and how he applies what he has learned to his law practice.
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"I'm Not The Best Criminal"
That may be an understatement. Sure, if you're in jail, maybe it's not a big deal to steal from another inmate. But what about stealing a computer from the jail? Yup. Per the Kalamazoo Gazette:
Kalamazoo County Circuit Judge Gary Giguere Jr. sentenced [Western Michigan University student William K.] Bradley on Monday, telling the Kalamazoo resident his jailhouse theft was "the dumbest crime I've heard today" and "may be in the top half-dozen in my career."
Bradley, who has racked up six felonies and four misdemeanors by the age of 25, agreed with the judge, saying, "I'm not the best criminal."This had to hurt ...
Bradley asked for home arrest, but Giguere instead ordered him back to jail for six months.Not a good sophomore year for Mr. Bradley.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/j03DK1dzrdw/post_494.html
Inside the Trayvon Martin Tragedy
The shooting death of 17 year old Trayvon Martin in Florida has sparked outrage across the country. On February 26, 2012, Trayvon died from a single gunshot to the chest. Police say neighborhood watch captain, George Zimmerman, fired that shot. Zimmerman is using Florida’s "Stand Your Ground" Law to justify the killing. Lawyer2Lawyer co-hosts and attorneys, Craig Williams and Bob Ambrogi, welcome Professor Michelle Jacobs, from the University of Florida's Levin College of Law and Professor Kenneth Novak, Ph.D., Chair of the Department of Criminal Justice at the University of Missouri - Kansas City, to explore the legal issues surrounding the "Stand Your Ground" law, neighborhood watches, and the possibility of racial profiling.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/inside-the-trayvon-martin-tragedy/
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Evaluating and Negotiating Workers’ Compensation Claims
Closing a workers’ compensation claim involves a two-step process: evaluation and negotiation. On Ringler Radio, host Larry Cohen joins colleague, Teddy Snyder, Esq. and Attorney Sylvia Lopez from Bakersfield, California, to talk about closing workers’ compensation claims. They explore the risks and advantages to a claimant and employer in closing a workers’ compensation claim, the importance of rated age and how a structured settlement can give injured workers the best of both worlds.
Arlington’s Betty Thompson dies at age 88
Arlington family lawyer Betty A. Thompson died Monday at the age of 88.
McLean lawyer Joseph A. Condo, another leading divorce lawyer, confirmed Thompson’s death Tuesday. His announcement of the death on his Facebook page brought accolades from other Northern Virginia lawyers.
Ms. Thompson was recognized by the General Assembly in 2010 for more than 60 years of service to her community and the legal profession. Colleagues describe her as a trailblazer and advocate for the family law bar.
Ms. Thompson was the first woman in the U.S. to be invited to join the International Academy of Trial lawyers in 1983. At that point, she already had been practicing for 30 years.
Her skills and dedication were recognized by the Southern Trial Lawyers Association, the Virginia Trial Lawyers Association and the Arlington County Bar Foundation. She held leadership roles with the Virginia State Bar, the Arlington County Bar Association, the Virginia Bar Association, the Northern Virginia Trial Lawyers Association, and the International Academy of Matrimonial Lawyers. She was a member of the Virginia Family Law Coalition.
“To call her a giant in the profession doesn’t even come close,” said Condo on his Facebook page. “She was a loyal and devoted friend to many, and a mentor to countless others, who stood on her shoulders in elevating respect and recognition for the family law bar.”
“She was trailblazer in our community. Her loss leaves a huge hole,” posted Del. Scott A. Surovell of Mount Vernon, another family lawyer.
“I always learned from her in cases we had, and she was always the most civil opposing counsel I’ve dealt with,” wrote David M. Levy on the Condo Facebook page. “And her sense of style was only exceeded by her enjoyment of life; she could cut a rug on the dance floor! She will be sorely missed,” Levy said.
Source: http://valawyersweekly.com/vlwblog/2012/09/25/arlingtons-betty-thompson-dies-at-age-88/
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Minnesota makes history in admitting foreign law grad
For the first time in state history, the Minnesota Supreme Court has admitted to practice a graduate from a foreign law school without requiring her to pass the state's bar examination.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202572803789&rss=rss_nlj
Cost-Effective Law Practice Management
As law firms slowly climb out of this recession, have their legal practice management skills changed? Lawyer2Lawyer co-host and attorney J. Craig Williams welcomes Rudy Bazelmans, Regional Director of Expense Reduction Analysts and Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, to explain the current state of the legal industry, new law practice management skills, what attorneys have done to cut costs and how to keep costs down in the future.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/cost-effective-law-practice-management/
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Wednesday, September 26, 2012
California Federal District Court Holds That Section 1312(a) of the California Corporations Code Provides the Exclusive Remedy For Minority Shareholders Seeking to Challenge a Proposed Merger
In Dixon v. Cost Plus, Inc., No. 12-2721, 2012 U.S. Dist. LEXIS 90854 (N.D. Cal. Jun. 27, 2012), the United States District Court for the Northern District of California held that Section 1312(a) of the California Corporations Code precluded plaintiff-minority shareholder’s breach of fiduciary duty claim to the extent that the claim relied upon arguments that a proposed merger price was unfair, or that the process employed by the board of directors was inadequate. Nonetheless, the court noted a “recognized exception” to this bar for challenges based upon “the question of an insufficient vote to authorize a merger or consolidation.” In so holding, the court upheld a “unique” California statute which limits the availability of relief for allegations that directors breached their fiduciary obligations in agreeing to merger terms and in the process engaged in self-dealing and other breaches of duty, while also noting an exception to the general bar.
This case centers around a putative class action filed by a minority shareholder of Cost Plus Inc. (“Cost Plus”) in connection with the proposed sale of Cost Plus to Bed Bath & Beyond, Inc. (“BBBY”) (“Merger”). The defendants were Cost Plus, members of the Cost Plus’ board of directors and the Merger Sub and the Parent of BBBY. Plaintiff filed a motion for preliminary injunction to enjoin the tender offer in connection with the Merger. Among other claims, plaintiff argued that the Cost Plus directors breached their fiduciary duty to obtain the best price reasonably available for shareholders in the merger process. Defendants opposed plaintiff’s motion for preliminary injunction, arguing that plaintiff is barred by Section 1312(a) from seeking injunctive relief based upon the “unfair price” and “unfair process” arguments. Specifically, defendants argued that Section 1312(a) provides that an appraisal proceeding is the exclusive remedy for challenges to mergers.
The district court held that California’s “unique” Section 1312(a) limits the availability of relief for allegations of breach of fiduciary duty in mergers. Section 1312(a) provides:
No shareholder of a corporation who has a right under this chapter to demand payment of cash for the shares held by the shareholder shall have any right at law or in equity to attack the validity of the reorganization or short-form merger, or to have the reorganization or short-form merger set aside or rescinded, except in an action to test whether the number of shares required to authorize or approve the reorganization have been legally voted in favor thereof.
The court held that the California Supreme Court had already concluded that Section 1312(a) “acts as a bar” to shareholder suits challenging a merger where the “plaintiff was aware of all the facts leading to his cause of action for alleged misconduct in connection with the terms of the merger prior to the time the merger was consummated but deliberately opted to sue for damages instead of seeking appraisal.” Steinberg v. Amplica, Inc., 42 Cal. 3d 1198, 1214 (1986). Thus, the district court held that plaintiff was barred by Section 1312(a) from seeking monetary damages for breaches of fiduciary duty and fraud in the course of a merger.
Plaintiff also alleged that Cost Plus and the individual defendants violated Section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”), 15 U.S.C. § 78j(b), and the Williams Act (Sections 14(d)(4) and 14(e) of the 1934 Act, 15 U.S.C. § 78n(d)(4) and (e)), by omitting material facts from the Schedule 14D-9 Solicitation/Recommendation Statement Cost Plus filed with the Securities & Exchange Commission in connection with the Merger. The District Court held although Section 1312(a) generally bars attempts to enjoin proposed mergers by minority shareholders, there is a “recognized exception” to this bar for challenges based upon “the question of an insufficient vote to authorize a merger or consolidation.” Thus, challenges related to sufficient disclosures made during the course of a proxy vote may be exempted from the remedial bar of Section 1312(a). Nonetheless, the district court did not make a final determination regarding whether plaintiff’s disclosure claim was barred by Section 1312(a) because, even if it were not barred, plaintiff failed to show in her preliminary injunction motion that she was likely to succeed on the merits of her disclosure claim.
This decision recognized and reiterated California’s unique statute which greatly limits a minority shareholder’s remedy in seeking to challenge a proposed merger of a California corporation.
For further information, please contact John Stigi at (310) 228-3717 or Taraneh Fard at (213) 617-5492.
'Fast And Furious' Operation Blasted On Capitol Hill
On Wednesday a government watchdog issued a report finding widespread failures with the government's "Fast and Furious" gun trafficking operation. On Thursday, the watchdog at the Justice Department, Inspector General Michael Horowitz, told a House panel that federal agents and prosecutors failed to protect public safety — and their bosses didn't pay enough attention.
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LawBiz® Legal Pad: What If You Lost Your Largest Client
Ed advises how to prevent the loss of your largest client from being devastating.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/u4aOtURT4dU/
Consumer Financial Agency Testing Its 'Aggressive Ability to Investigate'
Settlement with Discover Financial Services aside, the hot topic among lawyers who closely follow the Consumer Financial Protection Bureau is a little-noticed petition by mortgage lender PHH, which has filed the first-ever challenge to a CFPB civil investigative demand, calling the agency's request for information "overly broad and unduly burdensome."
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Hot Coffee and our Civil Justice System
An elderly woman, Stella Liebeck, buys coffee at a McDonald’s drive-thru, spills it on her lap, sues and wins. This case caused quite the controversy, but also contributed to some dramatic changes in the law. On Ringler Radio, host Larry Cohen and co-host, Nolan Robinson, chat with Susan Saladoff, the producer and director of the documentary, Hot Coffee. Susan gives us the real story behind this notorious coffee case, talks tort reform, frivolous lawsuits and caps on damages and shares some other examples of how individuals are not getting a fair shake in this current civil justice system.
Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/09/hot-coffee-and-our-civil-justice-system/
Federal judge rejects challenge to Colorado ballot identification process
[JURIST] A judge for the US District Court for the District of Colorado [official website] on Friday dismissed a lawsuit [complaint, PDF] filed by an elections transparency group aiming to prevent Colorado counties from using election ballots that have identifying numbers or bar codes printed on them. The Citizen Center [advocacy website] filed the lawsuit in February seeking an injunction and declaratory judgment requiring Colorado Secretary of State Scott Gessler [official website] and the counties of Boulder, Jefferson, Larimer, Mesa,...
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Cost-Effective Law Practice Management
As law firms slowly climb out of this recession, have their legal practice management skills changed? Lawyer2Lawyer co-host and attorney J. Craig Williams welcomes Rudy Bazelmans, Regional Director of Expense Reduction Analysts and Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, to explain the current state of the legal industry, new law practice management skills, what attorneys have done to cut costs and how to keep costs down in the future.
Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/03/cost-effective-law-practice-management/
Evaluating and Negotiating Workers’ Compensation Claims
Closing a workers’ compensation claim involves a two-step process: evaluation and negotiation. On Ringler Radio, host Larry Cohen joins colleague, Teddy Snyder, Esq. and Attorney Sylvia Lopez from Bakersfield, California, to talk about closing workers’ compensation claims. They explore the risks and advantages to a claimant and employer in closing a workers’ compensation claim, the importance of rated age and how a structured settlement can give injured workers the best of both worlds.
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Tuesday, September 25, 2012
Todd Stabelfeldt: Spinal Cord Injury Advocate, Entrepreneur, Inspiration
On this very special Ringler Radio, host Larry Cohen welcomes colleague, Tony Robinson and their guest, Todd Stabelfeldt, a spinal cord injury victim and an advocate for those who have suffered the same injury, to share his inspirational story. Larry, Tony and Todd discuss everything from spinal cord injuries and caregivers, to technology, to helping and educating others through The Todd Stabelfeldt Foundation.
LawBiz® Legal Pad: What Changes The Way You Practice Law?
Ed speaks about positive and negative changes that affect the way lawyers practice law.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/R7vbIJC23Y4/
Global E-Discovery & Da Silva Moore Technology Assisted Review Case Overview
The era of globalization is colliding with the complexity of litigation, investigations, regulation, arbitration, and compliance in the digital age. In international matters, when the data protection and privacy laws of one country clash with the discovery laws of another country, what recourse is available? On The ESI Report, host Michele Lange, Attorney and Director of Thought Leadership at Kroll Ontrack welcomes special guest, Jim Daley, partner at Daley & Fey LLP, to examine the implications of international e-discovery and take a glimpse at the hot-off-the-presses December 2011 publication, "The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection." In addition, on the Bits & Bytes Legal Analysis segment, Kroll Ontrack Legal Correspondent, Elliot Westman analyzes the landmark February 24th 2012 Da Silva Moore v. Publicis Group opinion.
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Maximize Your Technology Investment
All too often, law departments underestimate the powerful impact that training can have on a software implementation project. In fact, as a key driver of user adoption, training can be the difference between a project’s ultimate success or failure. In this edition of Tech Experts, join Kevin Gaudet, Director of Instruction and Training Development at Datacert, as he guides you through best practices for planning and executing an effective training and knowledge transfer strategy that will drive user adoption of your new system and help maximize your return-on-investment.
Source: http://legaltalknetwork.com/podcasts/tech-experts/2012/08/maximize-your-technology-investment/
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Mansfield, Tanick & Cohen closing
Marshall Tanick
The Mansfield, Tanick & Cohen law firm is closing following the departure of several partners.
Marshall Tanick, the co-founder of the firm, said that a group of shareholders, associates and support staff will join the Hellmuth & Johnson firm in Edina effective Oct. 1.
Tanick said the decision to close the office was based partly based on economics.
“This is the product of a long discussion,” he said. “There have been some structural changes in our firm. A few partners have retired or moved on recently and this gives us the opportunity to strengthen our practice by adding some new elements. Both firms view this as a positive.”
David Hellmuth, the managing partner at Hellmuth & Johnson, was not available for comment.
Tanick said the two firms were complimentary and the lawyers joining the Hellmuth firm would continue to practice in their areas of expertise.
“From their standpoint we have some areas that would enhance what they offer, and this provides us with an opportunity to expand the services we offer our clients,” he said.
Not everyone from the Mansfield, Tanick & Cohen is joining Hellmuth & Johnson, however. Tanick said one partner is joining Minneapolis law firm Siegel Bril firm and named partner Seymour Mansfield is not moving to the Edina firm.
The Mansfield firm has office space in downtown Minneapolis. Tanick said that will be “addressed and taken care of in the coming days.”
“I’ve been in a principal in my own firm since 1976,” Tanick said. “I don’t view this as bittersweet. I view this as a progressive step forward and a transition we needed to make to be more effective.”
Source: http://minnlawyer.com/minnlawyerblog/2012/09/14/mansfield-tanick-cohen-closing/
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'Bernie Madoff Of The Midwest' To Plead Guilty
Russ Wasendorf Sr., the founder of an Iowa brokerage firm, is expected to plead guilty to embezzlement charges Monday. Wasendorf, of Peregrine Financial Group, has signed a plea agreement with federal prosecutors admitting to bilking 24,000 investors out of at least $100 million.
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Source: http://www.npr.org/2012/09/17/161253859/bernie-madoff-of-the-midwest-to-plead-guilty?ft=1&f=1070
Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance
Bernie Jones, Associate Professor of Law at Suffolk University Law School, discusses her new book, "Women Who Opt Out: The Debate over Working Mothers and Work-Family Balance." To learn more about Professor Jones' book, visit http://bit.ly/H6Fd2W.
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Monday, September 24, 2012
Three judicial finalists named in 7th District
Three finalists have been named by the Commission on Judicial Selection for one vacancy in the Seventh Judicial District. They are Michael D. Fritz, Johnathan R. Judd, and Michelle Winkis Lawson. The vacancy was created upon the appointment of Judge Michael Kirk to the Court of Appeals.
Fritz serves as the Becker County Attorney where he is responsible for criminal and child protection matters. He previously served as the Assistant Becker County Attorney and was a partner with Hummel, Sinclair, Evans, Hunt, Heisler and Fritz, P.A. where he practiced in estate planning, municipal and employment matters.
Judd maintains Judd Law Office, PLLC which represents clients in criminal, family and civil matters. The office also provides public defender services with the State Board of Public Defense and holds a contract with Clay County to represent indigent parents in CHIPS cases. He previously worked as an associate attorney with Aaland Law Office, served as an Assistant Public Defender with the Seventh Judicial District Public Defender’s Office.
Lawson serves as the Chief Assistant Clay County Attorney for the Civil Division, and has served as the Interim Clay County Attorney. Prior to this, she worked as a facilitator for the University of Mary and was an associate attorney with the Vogel Law Firm.
Minnesota’s Seventh Judicial District consists of Becker, Benton, Clay, Douglas, Mille Lacs, Morrison, Otter Tail, Stearns, Todd and Wadena Counties.
An announcement of the appointment will be made following an interview process over the next few weeks.
Source: http://minnlawyer.com/minnlawyerblog/2012/09/14/three-judicial-finalists-named-in-7th-district/
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Libya orders militias to come under government control or disband
[JURIST] The Libyan army ordered all militias to either come under the control of the national government or disband within 48 hours on Saturday. The announcement comes after intense anti-militia protests that included between 30,000 and 40,000 demonstrators [Libya Herald report] in Benghazi killed at least eleven people over the weekend. All militias have been ordered to leave all military bases and compounds [Guardian report] which are then to be secured by the Libyan army. Agreements have been reached with...
Tattoo parlor protected by First Amendment
Citizens of the commonwealth’s capitol city may recall how they swelled with pride to learn last year that Richmond residents are among the most-tattooed folks in the country.
A survey reported by MSNBC said Richmond, at number three the “most surprising” entry in a top-10 tattoos list of cities, averages about 14.5 tattoo shops per 100,000 people.
In the latest update in our continuing coverage of tattoo-related litigation, we report that the Arizona Supreme Court has ruled that tattoo artists enjoy First Amendment protection in plying their trade. The ruling comes in a zoning dispute between the city of Mesa and a couple who wanted to open a tattoo parlor.
When the city denied a permit, tattoo artists Ryan and Laetitia Coleman sued under § 1983, alleging a violation of their First Amendment rights. A state trial court dismissed the case, saying the permit denial was “reasonable and rational” land use regulation.
The Arizona Supreme Court said a “tattoo involves expressive elements beyond those present in ‘a pen-and-ink’ drawing, inasmuch as a tattoo reflects not only the work of the tattoo artist but also the self-expression of the person displaying the tattoo’s relatively permanent image.”
Tattooing may be subject to reasonable time, place, and manner regulations, but the Colemans had stated a First Amendment claim based on denial of their application, the high court said in Coleman v. City of Mesa.
Source: http://valawyersweekly.com/vlwblog/2012/09/19/tattoo-parlor-protected-by-first-amendment/
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Swiss Railway Says Apple Copied Clock Design for iOS 6 App
One month after Apple took Samsung to court for infringing its designs, Apple is now accused of appropriating the look of the Swiss Federal Railway's iconic clock for use in the iPad's default clock app in the newly launched iOS 6 operating system. The railway said it has contacted Apple and hopes to reach a licensing agreement with the company.
Brainless Blunders in E-Discovery Searches
Are you guilty of making big mistakes when it comes to e-discovery searches? On Digital Detectives, co-hosts Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc., and John W. Simek, Vice President of Sensei Enterprises, welcome guest Attorney Craig Ball, one of the country’s leading computer forensics technologists, to share his insights on brainless blunders in e-discovery searches. Craig also talks about recall and precision as mortal enemies, data volume rather than data quality and tips on looking at data as data rather than as documents.
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