Source: http://jurist.org/paperchase/2014/02/egypt-court-convicts-alleged-terrorist-group.php
Friday, February 28, 2014
Egypt court convicts members of alleged terrorist group
[JURIST] Egypt's Cairo Criminal Court convicted 26 people on Wednesday charged with forming a terrorist group with the intent to attack the Suez Canal [official website]. The group was charged with planning attacks on ships in the Suez Canal as well as security buildings, foreign tourists, Christians and police. Most of the defendants received [AP report] death sentences and tried in absentia, but it is likely they will receive a retrial when arrested. One of the present defendants was younger...
Arizona Gov. Brewer Vetoes Controversial Bill
The legislation would have allowed business owners to refuse service to gays and others if the customers offended their religious beliefs.
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NLRB "recess" appointments were unconstitutional; Board lacked a quorum
Noel Canning v. NLRB (DC Cir 01/25/2013)
The DC Circuit this morning held that the President's attempt to make "recess" appointments of three NLRB Members was invalid under the constitution.
On February 8, 2012 the Board issued its decision finding that the employer violated the NLRA by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760. At that time the Board purportedly had five members. Two of these had been confirmed by the Senate. Three of these were appointed on January 4, 2012, purportedly pursuant to the constitution's recess clause.
At the time of the President’s purported recess appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The DC Circuit held that "recess" appointments must occur during an "intersession" recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President.
Because the appointments were invalid, the Board lacked a quorum (three Members) and its order was "void."
Lots of chatter from all over:
- New York Times
- Wall Street Journal
- Workplace Prof Blog
- New York Labor and Employment Law Report
- Faculty Lounge
- Jottings by an Employer's Lawyer
- SCOTUSblog
- Employment Law Watch
Source: http://www.lawmemo.com/blog/2013/01/nlrb_recess_app_1.html
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Plaintiffs Seek to Consolidate Target Data Breach Suits
Attorneys who filed class actions against Target Corp. over its security breach last month have moved to coordinate the swelling tide of litigation, estimated at nearly 50 lawsuits.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637342683&rss=rss_nlj
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Project Aims To Attract, Train Public Defenders
Atlanta-based nonprofit Gideon's Promise has launched a new program called the Law School Partnership Project, aimed at making it easier for Southern public defenders to hire talented new law graduates.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631276654&rss=rss_nlj
EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706
Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).
The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.
The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.
The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.
Source: http://www.lawmemo.com/blog/2012/11/eeoc_can_use_te.html
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FCPA Compliance — A Case for Integrated Technology Solutions
This podcast focuses on how technology can help companies strengthen their FCPA compliance programs and make them more effective and defensible. Learn the importance of a technology solution that is configurable to address a company's specific business needs that include: regulatory intelligence, policy management, monitoring and ongoing auditing of controls, and investigation of incidents and allegations.
Source: http://traffic.libsyn.com/techexperts/FCPA_Compliance_A_Case_for_Integrated_Technology_Solutions.mp3
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Court Enters Owners’ Draft Order
A Richmond Circuit Court will enter a dismissed agreed order submitted by defendant owners, in this dispute over whether a money judgment order should be entered or a dismissed agreed order due to the payment of the amount the court has said is due from defendants to plaintiff. The matter of the American Institute of ...
Source: http://valawyersweekly.com/2014/01/02/court-enters-owners-draft-order/
China court accepts suit against Japanese firms for WWII forced labor
[JURIST] Beijing's No. 1 Intermediate People's Court on Thursday accepted a lawsuit filed by 37 plaintiffs seeking compensation from two Japanese companies, Mitsubishi Materials and Nippon Coke and Engineering [corporate websites], for forced labor during World War II [LOC backgrounder]. The suit alleges that the plaintiffs and their relatives were taken [BBC report] to Japan where they were forced to work in coal mines during the War. According to the BBC, the top Japanese government spokesman Yoshihide Suga [official profile]...
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Thursday, February 27, 2014
From Oscar Parties to 'Inter Partes'
We range widely in this look at the state of intellectual property law, beginning with the legal complications attorneys need to consider when negotiating endorsement deals with the stars. We also investigate the renewed respect being paid to the "indefiniteness" defense against business-method patents. Finally, "inter partes" review — an attempt to streamline patent disputes — may in some cases make the process more difficult.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202642058806&rss=rss_nlj
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Tis the Season: Tech Toys for the Holidays 2013
In this edition of The Digital Edge, Sharon Nelson, Esq. and Jim Calloway present their annual Tech Toys for the Holidays episode. Your hosts each present the top electronics on their wish lists and shopping lists for the gift-giving season. Tune in for inspiration and an update on the newest, coolest gadgets like smartphone spy lenses, doorbells connected via wifi, portable chargers powered by hydrogen and oxygen, and more.
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Living in Multiple Tech Worlds: Windows, Mac, and Android
The rise of cloud computing has made it easier for lawyers to live in multiple tech worlds, whether it's Windows, Mac, iOS, or Android. This phenomenon is becoming a trend that affects many people and is changing how we think about, talk about, and use technology. On this episode of the Kennedy-Mighell Report, hosts Dennis Kennedy and Tom Mighell discuss living in multiple tech worlds simultaneously, how this changes our experience of technology, and practical ways to prepare and adjust to this growing trend.
Ugandan Gay Activist: President Will Have No Problem Putting Me In Jail
Uganda's president signed a law imposing harsh penalties for homosexuality. Host Michel Martin gets reaction to the law from Ugandan gay activist Frank Mugisha.
EEOC can use Teamsters-style pattern-or-practice theory under Title VII § 706
Serrano sued in a class action claiming sex discrimination and the EEOC intervened. The trial court ruled for the employer on a number of issues; the 6th Circuit reversed. Serrano and EEOC v. Cintas Corp (6th Cir 11/09/2012).
The main issue was whether EEOC could pursue a pattern-or-practice style claim pursuant to § 706 of Title VII.
The employer argued that under § 706 the EEOC is limited to proving its allegations of discrimination pursuant to the McDonnell Douglas Corp v. Green, 411 US 792 (1973), burden-shifting framework, and cannot use the pattern-or-practice framework announced by the Supreme Court in Teamsters v. United States, 431 US 324 (1977). The court rejected that argument. Even though the Teamsters case arose under § 707, the theory of that case can be used under § 706.
The trial court erred in holding that the employer was entitled to judgment on the pleadings in light of the EEOC's failure to plead its intent to rely on the Teamsters framework. Although the EEOC's complaint "is not a model of good lawyering," a plaintiff need not indicate at the pleading stage which circumstantial evidentiary framework it plans to use.
Source: http://www.lawmemo.com/blog/2012/11/eeoc_can_use_te.html
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Broadcasters to Scotus: Aereo Threatens ‘Very Existence of Broadcast Television’
Television broadcasters warned in a new Supreme Court filing that the continued operation of online video service Aereo Inc. "threatens the very existence of broadcast television we know it.”
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Delaware Supreme Court Holds That a Minority Stockholder Has No Common Law Right to a Conflict-Free Board Decision Regarding the Repurchase of Shares
In Blaustein v. Lord Baltimore Capital Corp., No. 272, 2013, 2014 Del. LEXIS 30 (Del. Jan. 21, 2014), the Delaware Supreme Court held that a closely-held corporation’s directors owe no fiduciary duty to decide, free from conflicts of interest, whether a corporation will repurchase a minority stockholder’s shares in the corporation. Additionally, the Supreme Court held that the implied covenant of good faith and fair dealing contained in a shareholders agreement did not give a minority stockholder the right to a good faith, conflict-free negotiation over the repurchase of her stock. If a minority stockholder wishes to have the right to put his or her stock to the corporation at a fair price to be set through negotiations with independent and disinterested decision makers at the corporation, the stockholder must contract for that right expressly in advance.
Plaintiff was a minority shareholder of the defendant, Lord Baltimore Capital Corporation (“Lord Baltimore”), a closely held Delaware corporation. Plaintiff wished to sell her shares back to Lord Baltimore. Lord Baltimore’s Shareholders’ Agreement stated that the company “may” repurchase a minority shareholder’s stock provided that the repurchase is either approved (i) by a majority of all the directors of the company or (ii) in writing by shareholders who own 70% or more of all shares issued and outstanding.
Lord Baltimore’s directors offered to repurchase plaintiff’s shares at a 52% discount from the net asset value of her shares. In response, plaintiff made several offers to sell her shares at a smaller discount. After considering these offers, the board rejected them and reoffered to purchase her shares at the 52% discount. Plaintiff believed her offers were rejected because a majority of the board had a conflict of interest. Specifically, she believed a majority of the seven directors refused to repurchase her shares at a higher price because it would jeopardize their personal tax benefits.
Plaintiff sued Lord Baltimore in the Delaware Court of Chancery. Plaintiff later filed a motion to amend her complaint to add two new claims: one for breach of fiduciary duty and one for breach of the implied covenant of good faith and fair dealing. In plaintiff’s new fiduciary duty claim, she alleged that the directors breached their fiduciary duty to consider and negotiate repurchasing her shares without any conflicts of interest. In plaintiff’s new implied covenant claim, she alleged that the directors violated her implied right in the Shareholders’ Agreement to a good-faith negotiation of her repurchase proposals. The Chancery Court denied plaintiff’s request to amend her complaint because it found the claims were futile. Blaustein v. Lord Baltimore Capital Corp., No. 6685-VCN, 2013 Del. Ch. LEXIS 108 (Del. Ch. Apr. 30, 2013).
On appeal, the Supreme Court first addressed whether, under common law, Lord Baltimore’s directors owed a fiduciary duty to consider and negotiate, free of any conflicts, a repurchase of plaintiff’s shares. The Court explained that under common law the directors of a closely held corporation have no general fiduciary duty to repurchase the stock of a minority stockholder. If minority stockholders want that right, they must contract for it. The Court then reasoned that if the board had no duty to repurchase plaintiff’s shares at all, then plaintiff had no right to a non-conflicted board decision on whether to repurchase her shares. Thus, the Supreme Court held, plaintiff’s motion to amend was properly denied because the fiduciary duty claim would have been futile under common law.
The Court also addressed whether the Shareholders’ Agreement created a fiduciary duty to consider and negotiate, free from conflicts of interest, a repurchase of plaintiff’s shares. The Shareholders’ Agreement gave Lord Baltimore the option to repurchase a minority stockholder’s stock and the ability to designate the price. The Shareholders’ Agreement did not require that Lord Baltimore negotiate the repurchase of a stockholder’s shares. It followed that because the directors had no duty to repurchase plaintiff’s shares, the directors also had no affirmative duty to negotiate, free from conflicts, plaintiff’s repurchase price. Therefore, the Supreme Court held, plaintiff’s request to add a breach of fiduciary duty claim was properly denied.
Next, the Supreme Court addressed whether the Court of Chancery erred when it rejected plaintiff’s new claim for breach of the implied covenant of good faith and fair dealing. Plaintiff argued that the Shareholders’ Agreement contained an implied contractual right to a good faith negotiation of her redemption proposals. The Court disagreed. The Supreme Court held that the implied covenant of good faith and fair dealing should be used to enforce “what the parties would have agreed to themselves had they considered the issue originally.” The covenant should not be used, the Court held, effectively to renegotiate the contract. Here, the parties decided that Lord Baltimore would repurchase minority stockholders’ shares at its own discretion. Also, the Shareholders’ Agreement said nothing about a minority stockholder’s right to a conflict-free negotiation. Therefore, adding an implied right to a good faith negotiation would be tantamount to rewriting the Shareholders’ Agreement. For this reason, the Court held plaintiff’s request to add a claim for breach of the implied covenant of good faith and fair dealing was properly denied.
Blaustein clarifies that a minority stockholder in a closely held corporation should address any concerns relating to the liquidity of his or her shares expressly through contract.
The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
© 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.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
© 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/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
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LawBiz® Legal Pad: Suing the Client
Should attorneys take legal action against clients who haven't paid? This week, Ed weighs in on the pros and cons of suing clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/BydiUSHJWZA/
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Wednesday, February 26, 2014
You Won’t Believe The Damage This Man Caused In His Attempt To Get Off Work Early
We all have days that we just want to end, even The Juice. But we all, er, most of us, that is, power through those days. Not this gent. The damage? You won’t believe it. As reported by The Union Leader:
A former civilian painter who pleaded guilty Thursday to setting two fires aboard the USS Miami could serve about 20 years in prison and have to pay some of the $500 million in damages and injuries. [The victims in the case include the Navy as well as seven firefighters and sailors who were injured during the first fire, which took 12 hours to extinguish.]
Casey James Fury, 24, who worked at Portsmouth Naval Shipyard for two years, faces two counts of arson after he confessed to setting a four-alarm fire aboard the $900 million Los Angeles Class submarine May 23 and a smaller fire in the dry dock at the Kittery facility June 12.
Why? [Just pretend that you don't already know.]
Investigators determined Fury, who worked as a painter and sandblaster, started the two fires because he was anxious and wanted to leave work.
Fury, who has been in custody at Cumberland County Jail since his arrest July 22, and his attorney, David Beneman, signed the agreement to plead guilty Tuesday with Thomas Delahanty, U.S. attorney for the District of Maine, and Assistant U.S. Attorneys Darcie McElwee and James Chapman.
Delahanty said Fury entered his plea in federal court Thursday.
So what’s the deal?
As part of the agreement, Fury could be imprisoned no less than 188 months – just over 15.6 years – and no more than 235 months – about 19.6 years, according to court records.
“The judge accepted it pending on a presentencing investigation,” Delahanty said, adding he anticipates the report to be finished in the next three months.
Here’s what Mr. Fury could have faced (or could be facing if the deal is ultimately rejected by the Judge):
Per federal statute, the first arson charge could keep Fury in prison for the rest of his life, and the second count has a maximum penalty of 25 years.
Here’s the source, including a photograph of Mr. Fury.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/C7lUS08HMOs/gf.html
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Automation or Control: Why Attorneys Must Choose
In a world of automatic updates and remote storage, are attorneys still controlling their practices? Are we forgetting valuable information as our machines take over? In this episode of the Kennedy-Mighell Report, hosts Dennis Kennedy and Tom Mighell discuss the pros and cons of trading control for increased productivity.
The Globalization of Legal Technology
As business becomes more global, legal technology begins to adapt to support a worldwide lifestyle. Lawyers now have the opportunity to position themselves in front of an international audience and expand their reach. In this edition of Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss whether global considerations are morphing legal technology, apps to facilitate an international law firm, and how lawyers might benefit from adopting a global perspective on legal tech. The second half of the show will compare the Samsung Galaxy S4 and new iPhone 5s.
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What Would Atticus Have Done?
Hearing that the mob was going to storm the jail and lynch Tom Robinson, the fictional Atticus Finch stood at the doorway to block their entrance. Among criminal defense lawyers, Atticus Finch is revered as a paragon of honor. Not all lawyers saw it that way.
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
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In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman's article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.
Monroe H. Freedman, ""Atticus Finch, Esq., R.I.P.,"" 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, ""Finch: The Lawyer Mythologized,"" 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
Huh?In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:
The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.This conforms with my assumption as well. I find it impossible to believe that Zimmerman's perception of Martin as being "a punk" wasn't colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist. Maybe not white hooded, cross-burning racism, but racist nonetheless.
Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.Being fully willing to accept that race factored into Zimmerman's perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
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Source: http://blog.simplejustice.us/2013/07/16/what-would-atticus-have-done.aspx?ref=rss
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NLRB: Firing for Facebook posting was legal
Let the NLRB's press release tell the story:
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.
The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.
In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.
The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.
The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.
As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.
However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.
Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.
The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.
Source: http://www.lawmemo.com/blog/2012/10/nlrb_firing_for.html
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Holder urges Congress to pass new data breach legislation
[JURIST] US Attorney General Eric Holder [official website] announced [video; press release] Monday that he is urging Congress to create a "strong national standard" requiring businesses to immediately notify consumers and law enforcement agencies when significant consumer data breaches occur. This announcement comes in the wake of two massive data breaches at major retailers Target and Neiman Marcus late last year. Accusations [NPR report] that the companies reported their breaches with undue delay raised questions about how quickly businesses should...
Source: http://jurist.org/paperchase/2014/02/attorney-general-eric-holder-announced.php
Roberta Gelb on Technology Training
Roberta Gelb, president of Chelsea Office Systems, talks about how trends such as cloud computing and bring your own device (BYOD) have law firms realizing the importance of training in the adoption of new technologies.
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Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
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Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 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/fighting-video-with-video.aspx?ref=rss
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Morgan Stanley in Advanced Talks to Settle SEC’s Mortgage-Bond Probe
Morgan Stanley is in advanced talks to settle a top securities regulator's allegations that the bank misled investors in mortgage bonds that collapsed during the financial crisis, a person familiar with the matter said.
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Tuesday, February 25, 2014
The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
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Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
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Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
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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Watching The Movie Was Probably Punishment Enough
Whether to prosecute or not is a judgment call. In this case, let it go! You will not believe what this woman is being prosecuted for. As reported by foxcarolina.com:
A Pickens woman has been arrested and charged after deputies said she failed to return a Jennifer Lopez movie she rented in 2005.
Kayla Michelle Finley, 27, has been charged with failure to return a rented video cassette, according to the Pickens County Sheriff’s Office.
According to warrants Finely rented Monster-In-Law from Dalton Video, which is no longer in business, in 2005 and the tape was not returned within 72 hours.
Finley was sent letters to return the video several times but never responded, according to the warrant. It also said a certified warrant was sent to the woman on Sept. 12, 2005.
Finley denied ever getting those warnings, and said she would fight the charges.
It’ll be the trial of the century! You’ll find the source, and a photo of Ms. Finley, here.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/h3fzae8XwRY/asd-8.html
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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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Haiti court allows trial of former dictator for crimes against humanity
[JURIST] A Haitian appellate court ruled on Thursday that former Haitian dictator Jean-Claude Duvalier [CBC backgrounder; JURIST news archive] can be charged under international law with crimes against humanity committed during his rule. Haitian authorities reopened a criminal case against Duvalier three years ago after he returned to the country from a 25-year exile in France. The charges against Duvalier include murder and torture of political opponents and corruption. However, the case has been stalled for almost a year while...
Rachel Vitti: School superintendent's wife making her own mark on educational and human rights issues (Florida Times-Union)
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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Supreme Court Watch: Employment law cases
We will be watching three pending cases at the US Supreme Court as the Court's session opens today:
Kloeckner v. Solis
Oral argument on October 2.
The Merit Systems Protection Board (MSPB) hears appeals by federal employees regarding certain adverse actions, such as dismissals. If the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."
Question Presented: If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?
Vance v. Ball State Univ
Oral argument on November 26.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) held that under Title VII, an employer is vicariously liable for workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.
Question Presented: Whether the Faragher and Ellerth “supervisor” liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.
Genesis HealthCare v. Symczyk
Oral argument December 3.
Symczk sued under the Fair Labor Standards Act (FLSA) on behalf of herself and all others similarly situated. This was a section 216(b) collective action. The defendants extended an offer of judgment under Fed. R. Civ. P. 68 in full satisfaction of her alleged damages, fees, and costs - prior to her moving for conditional certification and prior to other potential plaintiffs opting in.
Question Presented: Whether a case becomes moot, and thus beyond the judicial power of Article III, when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff's claims.
Source: http://www.lawmemo.com/blog/2012/10/supreme_court_w_11.html
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Offer Rates for Summer Associates Go Up, But Law Firms Remain Cautious
The job offer rate for law students who worked as summer associates in 2013 is nearly as high as it was before the financial crisis, although law firms remain cautious on entry-level hiring.
Delaware Supreme Court Holds That a Minority Stockholder Has No Common Law Right to a Conflict-Free Board Decision Regarding the Repurchase of Shares
In Blaustein v. Lord Baltimore Capital Corp., No. 272, 2013, 2014 Del. LEXIS 30 (Del. Jan. 21, 2014), the Delaware Supreme Court held that a closely-held corporation’s directors owe no fiduciary duty to decide, free from conflicts of interest, whether a corporation will repurchase a minority stockholder’s shares in the corporation. Additionally, the Supreme Court held that the implied covenant of good faith and fair dealing contained in a shareholders agreement did not give a minority stockholder the right to a good faith, conflict-free negotiation over the repurchase of her stock. If a minority stockholder wishes to have the right to put his or her stock to the corporation at a fair price to be set through negotiations with independent and disinterested decision makers at the corporation, the stockholder must contract for that right expressly in advance.
Plaintiff was a minority shareholder of the defendant, Lord Baltimore Capital Corporation (“Lord Baltimore”), a closely held Delaware corporation. Plaintiff wished to sell her shares back to Lord Baltimore. Lord Baltimore’s Shareholders’ Agreement stated that the company “may” repurchase a minority shareholder’s stock provided that the repurchase is either approved (i) by a majority of all the directors of the company or (ii) in writing by shareholders who own 70% or more of all shares issued and outstanding.
Lord Baltimore’s directors offered to repurchase plaintiff’s shares at a 52% discount from the net asset value of her shares. In response, plaintiff made several offers to sell her shares at a smaller discount. After considering these offers, the board rejected them and reoffered to purchase her shares at the 52% discount. Plaintiff believed her offers were rejected because a majority of the board had a conflict of interest. Specifically, she believed a majority of the seven directors refused to repurchase her shares at a higher price because it would jeopardize their personal tax benefits.
Plaintiff sued Lord Baltimore in the Delaware Court of Chancery. Plaintiff later filed a motion to amend her complaint to add two new claims: one for breach of fiduciary duty and one for breach of the implied covenant of good faith and fair dealing. In plaintiff’s new fiduciary duty claim, she alleged that the directors breached their fiduciary duty to consider and negotiate repurchasing her shares without any conflicts of interest. In plaintiff’s new implied covenant claim, she alleged that the directors violated her implied right in the Shareholders’ Agreement to a good-faith negotiation of her repurchase proposals. The Chancery Court denied plaintiff’s request to amend her complaint because it found the claims were futile. Blaustein v. Lord Baltimore Capital Corp., No. 6685-VCN, 2013 Del. Ch. LEXIS 108 (Del. Ch. Apr. 30, 2013).
On appeal, the Supreme Court first addressed whether, under common law, Lord Baltimore’s directors owed a fiduciary duty to consider and negotiate, free of any conflicts, a repurchase of plaintiff’s shares. The Court explained that under common law the directors of a closely held corporation have no general fiduciary duty to repurchase the stock of a minority stockholder. If minority stockholders want that right, they must contract for it. The Court then reasoned that if the board had no duty to repurchase plaintiff’s shares at all, then plaintiff had no right to a non-conflicted board decision on whether to repurchase her shares. Thus, the Supreme Court held, plaintiff’s motion to amend was properly denied because the fiduciary duty claim would have been futile under common law.
The Court also addressed whether the Shareholders’ Agreement created a fiduciary duty to consider and negotiate, free from conflicts of interest, a repurchase of plaintiff’s shares. The Shareholders’ Agreement gave Lord Baltimore the option to repurchase a minority stockholder’s stock and the ability to designate the price. The Shareholders’ Agreement did not require that Lord Baltimore negotiate the repurchase of a stockholder’s shares. It followed that because the directors had no duty to repurchase plaintiff’s shares, the directors also had no affirmative duty to negotiate, free from conflicts, plaintiff’s repurchase price. Therefore, the Supreme Court held, plaintiff’s request to add a breach of fiduciary duty claim was properly denied.
Next, the Supreme Court addressed whether the Court of Chancery erred when it rejected plaintiff’s new claim for breach of the implied covenant of good faith and fair dealing. Plaintiff argued that the Shareholders’ Agreement contained an implied contractual right to a good faith negotiation of her redemption proposals. The Court disagreed. The Supreme Court held that the implied covenant of good faith and fair dealing should be used to enforce “what the parties would have agreed to themselves had they considered the issue originally.” The covenant should not be used, the Court held, effectively to renegotiate the contract. Here, the parties decided that Lord Baltimore would repurchase minority stockholders’ shares at its own discretion. Also, the Shareholders’ Agreement said nothing about a minority stockholder’s right to a conflict-free negotiation. Therefore, adding an implied right to a good faith negotiation would be tantamount to rewriting the Shareholders’ Agreement. For this reason, the Court held plaintiff’s request to add a claim for breach of the implied covenant of good faith and fair dealing was properly denied.
Blaustein clarifies that a minority stockholder in a closely held corporation should address any concerns relating to the liquidity of his or her shares expressly through contract.
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