Friday, June 27, 2014

Petters claw back could go worldwide

The trustee in the Tom Petters bankruptcy case has asked the judge for permission to extend his claw back efforts outside the borders of the United States.

Doug Kelley said Petters’ $3.65 billion Ponzi scheme extends to a total of 26 jurisdictions. A hearing on his request in scheduled in U.S. Bankruptcy Court later this month. Kelley said that residents of Australia, Ireland, Switzerland, the Netherlands and Malta will be targeted and there are hundreds of millions of dollars at play. The list of countries could expand, he said.

The money ended up outside the U.S. because foreign investors invested in feeder funds that in turn invested in larger hedge funds that invested with Petters, Kelley said in an interview with the Star Tribune.

“We’ll get records of the master fund and then records of the feeder funds and then we’ll know where to go,” Kelley said. “We basically reverse the process.”

The bankruptcy team has hired lawyers outside the U.S. to identify potential targets.

The bankruptcy has been underway for five years. Kelley has retrieved more than $400 million to be returned to creditors and investors who lost money. Petters is serving a 50-year prison sentence.

 

Source: http://minnlawyer.com/minnlawyerblog/2014/04/04/petters-claw-back-could-go-worldwide/

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Montana judge strikes down immigration law

[JURIST] A Montana judge has struck down [opinion, PDF] most of a voter approved immigration law that requires government officials to check the immigration status of anyone applying for state services. The law was approved [text, PDF] by voters [JURIST report] in November 2012 by an overwhelming majority [AP report] of 74 percent. Judge Jeffrey Sherlock ruled Friday that the law, except for one section, is preempted by federal law. Sherlock wrote:In sum, the Court finds that the enactment is,...

Source: http://jurist.org/paperchase/2014/06/montana-judge-strikes-down-immigration-law.php

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Supreme Court rules abortion clinic buffer zone violates First Amendment

[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Thursday that a Massachusetts law creating a 35-foot protester-free buffer zone around the entrance or driveway of an abortion clinic is unconstitutional. In McCullen v. Coakley [SCOTUSblog backgrounder] the court considered the questions of whether the buffer zone, created by the Reproductive Health Care Facilities Act [text], violated the First Amendment [text] to the US Constitution, which guarantees the freedom of speech and the freedom to protest. Chief Justice John...

Source: http://jurist.org/paperchase/2014/06/supreme-court-rules-abortion-clinic-buffer-zones-violate-first-amendment.php

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Perils of Law Firms Possessing Massive Amounts of Unreviewed Client Data

Some experts believe that, in addition to being prohibitively expensive for law firms to manage, maintaining immense amounts of client data increases the probability that it will be exposed to the public through a security breach or hack. That is why many like-minded firms are outsourcing data management to companies that specialize in it. On this episode of Digital Detectives, hosts Sharon Nelson and John Simek interview Ralph C. Losey from Jackson Lewis P.C. Together, they discuss how to manage large amounts of data, when to outsource, and what to do with unprocessed information. Tune in to learn more about dark data, how to select outside vendors, and hosting costs vs. storage costs.
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.

Source: http://legaltalknetwork.com/podcasts/digital-detectives/2014/04/perils-law-firms-possessing-massive-amounts-unreviewed-client-data

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Thursday, June 26, 2014

Townhome Neighbors Can’t Challenge Access 

Plaintiff townhome owners do not have standing to challenge defendant developer’s use of a 50-foot easement that runs between a church and the townhome community for access and a connection to a proposed development with seven new homes; the Fairfax Circuit Court says plaintiffs have not shown they would suffer any particularized harm from installation ...

Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/

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Conviction Tossed; Juror Couldn't Look at Child Porn Evidence

A federal appeals court threw out a 14-year prison sentence and ordered a new trial in a child pornography case because a judge didn't remove a juror who couldn't vow to give the defendant a fair trial.

Source: http://www.nationallawjournal.com/id=1202637051379?rss=rss_nlj

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Senate Republicans Laud Recess Appointments Decision

Senate Republicans lauded the U.S. Supreme Court decision Thursday that invalidated President Barack Obama's recess appointments to the National Labor Relations Board.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/nlj/legaltimes/PubArticleLT.jsp?id=1202660974162&rss=newswire

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This Week on Legal Talk Network (6/23/2014)

Hello. This is Laurence Colletti for This Week on Legal Talk Network. Monday, hosts Sharon Nelson and Jim Calloway from The Digital Edge speak with expert Paul Unger about the best use of Powerpoint in the courtroom. Wednesday, we join New Solo host Adriana Linares for a lively conversation with her guest Susan Liebel Cartier from Solo Practice University. And on Friday, we finish the week with Paralegal Mentor Vicki Voisin guiding us through an in depth discussion with distinguished Attorney Lin Wood - his experiences representing clients Richard Jewel and John and Patsy Ramsey and the challenges they faced in the court of public opinion. 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_on_LTN_Pilot_6-23.mp3

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Affirmative action ban in state constitution violates US constitution (8-7)

Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting."

The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause.

Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)

(Plaintiffs limited their challenge to racial discrimination in public education.)

The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the "lengthy, expensive, and arduous process" of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university's admissions policy has four options - lobby the admissions committee, petition the leadership of the university, seek to influence the school's governing board, or initiate a statewide campaign to alter the state's constitution.

"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change."

Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that "have no application here," and one said that the majority relied on "an extreme extension" of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).

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

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Federal courts warn of email scam

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

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

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

 

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

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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.

Source: http://www.law.com/jsp/law/sign_me_in.jsp?article=http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202594676587&rss=newswire

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Are you still practicing law?

In years gone by, many people attended law school because a legal education enhanced their skills. In today’s world, entry into law school  is first evaluated based on ROI, return on investment. And, in some instances, the comparison is coming up short. After the Great Recession, getting a job after law school was not guaranteed. Law school graduates, in addition to being uncertain about their job market, faced extraordinary debt burden.

A 2012 survey indicates that at least 24% of law school graduates are not practicing law. Rather, they were finding their way into nonprofit and education sectors and the federal government. This compares with9% in a similar 2003  survey. One factor pushing this statistic is the need to reduce or pay some of that student debt.

And when considering whether lawyers are satisfied in their chosen career, measured against whether they would go to law school again if given the opportunity, almost 2 out of seven said “no.” This latter statistic seems to be consistent with similar statistics of earlier years. In the 1970s, in response to a survey that I commissioned with the State Bar of California, almost 1/3 of the respondents indicated they were not satisfied with the practice. But they didn’t have the huge amount of debt that today’s graduates are carrying.  I suspect that what keeps people enrolling in law school is another statistic:  those graduates with the highest grade point averages have median pay levels that exceed $121,500, more than those who achieve the lowest grades. This is a significant difference, and the reason for the continued attraction of law schools.

Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/XBIYiT9hnPg/

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Wednesday, June 25, 2014

Boehner Plans to Sue Obama Over Executive Orders

House Speaker John Boehner said he plans to sue President Barack Obama over his use of executive actions.

Source: http://blogs.wsj.com/law/2014/06/25/boehner-plans-to-sue-obama-over-executive-orders/?mod=WSJBlog

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Greece v. Galloway: Prayer in Government Assemblies

On May 5th 2014, the Supreme Court decided Greece v. Galloway, a landmark case about the right of prayer in government assemblies. Both sides of the argument invoked the First Amendment to make their case, but who is right and why? On this episode of Lawyer 2 Lawyer, host Bob Ambrogi brings this issue to the forefront with opposing counsels Douglas Laycock, for the respondents, and David Cortman, for the petitioner. Together, they discuss the relative merits of their cases, the endorsement test, and the coercion test. Tune in to hear more about the future of legislative prayer and your First Amendment rights.
Professor Douglas Laycock is a Robert E. Scott Distinguished Professor of Law Professor of Religious Studies at University of Virginia School of Law and one of the nation's leading authorities on the law of religious liberty. In addition to teaching for over 30 years, Professor Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. Professor Laycock is an accomplished author on the subject at hand and the 2nd Vice President of the American Law Institute. Especially pertinent to today's episode, Professor Laycock argued for Susan Galloway and Linda Stephens, the respondents, in the Supreme Court.
David Cortman serves as senior counsel and vice-president of Religious Liberty with Alliance Defending Freedom at its Atlanta Regional Service Center in Georgia. He also heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the country. Among his many media appearances, Mr. Cortman has been on CNN, MSNBC, and Fox News. Especially pertinent to today's episode, he served as counsel for the Town of Greece, the petitioner, in the Supreme Court.
Special thanks to our sponsor, Clio.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2014/05/greece-v-galloway-prayer-government-assemblies

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Cybersecurity: Breaching The Boardroom

When the President of the United States calls something “one of the gravest national security dangers that the United States faces,” it seems worthwhile to pay attention. The President’s statement, on February 12, 2014, was not referring to the dangers of war or terrorism, but to the threat of cyber attacks on the nation’s critical infrastructure and U.S. companies. Over the past couple of years, cybersecurity has become an important corporate governance issue, as recent cyber attacks, increased federal oversight, potential legal liability and economic risks have made paying attention certainly worthwhile.

This article was originally published in The Metropolitan Corporate Counsel. To read the full article, please click here.

Source: http://www.corporatesecuritieslawblog.com/2014/04/cybersecurity-breaching-the-boardroom/

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Supreme Court to rule in Amtrack regulatory dispute

[JURIST] The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in three cases for next term. In Department of Transportation v. Association of American Railroads [docket; cert. petition, PDF] the court will determine whether §207 of the Passenger Rail Investment and Improvement Act (PRIIA) [text] "effects an unconstitutional delegation of legislative power to a private entity." Section 207(a) of the PRIIA requires that the Federal Railroad Administration (FRA) [official website] and Amtrak [corporate website] "jointly ......

Source: http://jurist.org/paperchase/2014/06/supreme-court-to-rule-in-amtrack-regulatory-dispute.php

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The Power of a Structured Settlement: A Personal Story

Today on Ringler Radio, host, Larry Cohen and his co-host, Jim Early, talk with Congressman Jim Langevin, a Democrat, representing constituents from the 2nd District in Rhode Island since 2001. Congressman Langevin talks about his own personal experience with a structured settlement years ago that helped him and public policy for structured settlements today. Hear one of the best cases for the long-term security of a structured settlement instead of a lump sum settlement.

Source: http://ringlerradio.com/podcasts/ringler-radio/2014/03/the-power-of-a-structured-settlement-a-personal-story/

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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.

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.

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.

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.

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."

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?

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.






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Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss

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The Ethical Implications of NSA Surveillance for Lawyers

Some technology experts believe it's not a matter of if law firm communications can be hacked, but when. With continuing reports of the NSA and foreign entities monitoring the privileged attorney-client communications of US law firms, lawyers may be required to take additional measures to protect client information. On this edition of Digital Detectives, hosts Sharon Nelson and John Simek discuss the growing dangers and evolving duties for clients and attorneys with cyber security expert David Ries from Clark Hill Thorp Reed. Among the many changes to legal practice are alterations to the Model Rules of Professional Conduct, increased contractual expectations from clients, and a growing need to encrypt portable devices. Tune in to learn more about these developing areas of attorney responsibility.
David Ries is a member in the Pittsburgh office of Clark Hill Thorp Reed, LLP where he practices in the areas of environmental, commercial, and technology law and litigation. He regularly deals with privacy and security issues in his practice and frequently writes and speaks on them for legal, professional, and academic groups.
Special thanks to our sponsor, Digital WarRoom.

Source: http://legaltalknetwork.com/podcasts/digital-detectives/2014/03/ethical-implications-nsa-surveillance-lawyers

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The Benefits of Tech Automation: Why Attorneys Should Opt In

On any given day, we do a large number of repetitive tasks on our computers, tablets and smartphones. We also type the same email messages over and over, insert the same language into legal documents and open the same web pages on a regular basis. By automating some of these repetitive actions, we can become more productive and obtain peace of mind. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss simple ways to benefit from automating repetitive actions, available tools to use, and how to get started in simplifying your life in small and helpful ways.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/02/benefits-tech-automation-attorneys-opt

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