Source: http://valawyersweekly.com/2014/01/02/court-enters-owners-draft-order/
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Monday, March 31, 2014
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 ...
ADA applies to bar applications also
The Department of Justice has accused more than one bar association of violating the Americans With Disabilities Act.Louisiana and Vermont licensure systems inquired as to the mental health of applicants. Apparently, some of the same questions of which the complaint by DOJ is registered are asked in a standard national Conference of Bar Examiners questionnaire.
The Bar is not qualified to conduct a mental health diagnosis or treatment, according to the DOJ. Past behavior ... conduct ... can be reviewed, but not one's state of mind or status.
I wonder how this analysis will resonate with those who complain that one's competency to act as an attorney can be judged by one's age. Shouldn't conduct be the standard? Aren't you presumed innocent (i.e., competent) until proven otherwise? That would be ageism ... a status I think that is also protected by law.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/FBayFVmaX64/
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Apple And Samsung Face Off In Court Again Over Patents
Each company claims the other one has swiped its patents. This time Apple is going after patents in the Android operating system that run Samsung's Galaxy S3.
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Payout Resolves Objections to $1.6B Toyota Settlement
Some of the most vocal objectors to the $1.6 billion settlement with Toyota Motor Corp. have agreed to drop their challenge in exchange for $1.5 million to research electronics systems used in cars.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637032014&rss=rss_nlj
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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).
Source: http://www.lawmemo.com/blog/2012/11/affirmative_act.html
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A Painful Arrest – For The Arresting Officer
There are lots of ways to resist arrest. This one in particular, every male officer would likely agree, should carry an enhanced sentence. As reported by The Chicago Tribune:
“Something’s wrong with her,” said Cook County Judge Adam Bourgeois Jr., who initially ordered the 20-year-old held on $50,000 bail. After a short recess, Bourgeois decided to instead release Ashleigh Heather Edwards on an individual recognizance bond with electronic monitoring.
You’re curious, right? What did she do?
Edwards, of Berwyn, assaulted [an] officer on a parked train outside the Galewood station on Chicago’s Northwest Side at about 3:40 p.m. Friday, according to an arrest report. The officer tried to remove Edwards after crew members said she entered the train’s “engine compartment” without permission.
Edwards yelled and ran to the other side of the train, police allege, before the officer caught her and attempted to place her under arrest. At that point, police and prosecutors said, Edwards grabbed the officer’s penis and squeezed it to inflict pain, while also kicking and punching and trying to pull away.
Ouch, ouch, ouch! But that wasn’t the end of it.
The officer used pepper spray to restrain her, the arrest report said. But while exiting the train in the 2000 block of North Narragansett Avenue and walking toward the police cruiser, prosecutors said Edwards again grabbed and squeezed the officer’s genitals.
The Juice is inclined to agree with the Judge’s assessment that “Something’s wrong with her.” And in case you think it wasn’t that big of a deal for the officer …
The Metra policeman was taken by ambulance to West Suburban Hospital in Oak Park, where he was treated and released, according to court documents.
As for Ms. Edwards:
[She] will return to court Friday. She faces a felony charge of aggravated battery to a peace officer, along with misdemeanor counts of resisting a police officer and criminal trespass to state land. No booking photo was immediately available.
Here’s the source, including her mug shot.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/C9QY9GyK_G8/asdf-14.html
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Sound The Retreat (Update)
Remember when the word "wilding" was introduced into the general lexicon so that we would have a word to capture the "super-predator" gangs of youths who were intent on destroying society? It came out of the Central Park Five case, and produced a huge shift in our approach to juvenile prosecution and punishment.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
© 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.
"Justice," people cried. They demanded justice. Don't let these super-predator kids destroy our world with wilding.
Except it didn't happen. The kids never beat and raped a woman in Central Park, and were coerced into false confessions. Of course, we didn't learn that until much later, after the wilding scare had done its damage to our laws, procedures and psyches, to save us from the super-predators and give us justice.
The New York Times has a post-Zimmerman-verdict editorial today that threatens to do the same. It's titled "Trayvon Martin's Legacy," a blatant appeal to emotion. Invoking the name of a dead child has proven one of the most utilitarian methods of manipulation available, and the Times unabashedly uses it to further its point.
But the point of the editorial is just plain wrong:
The jury reached its verdict after having been asked to consider Mr. Zimmerman’s actions in light of Florida’s now-notorious Stand Your Ground statute. Under that law, versions of which are on the books in two dozen states, a person may use deadly force if he or she “reasonably believes” it is necessary to prevent death or great bodily harm — a low bar that the prosecutors in this case fought in vain to overcome.It's been explained, calmly and rationally, over and over. It's impossible to believe that the editorial board of the Times, a smart bunch of folks, didn't hear it or grasp it. If so, then what's written here can only be attributed to disingenuousness and a deliberate effort to deceive.These laws sound intuitive: who would argue that you may not protect yourself against great harm? But of course, the concept of “reasonable belief” is transformed into something deadly dangerous when firearms are involved. And when the Stand Your Ground laws intersect with lax concealed-carry laws, it works essentially to self-deputize anyone with a Kel-Tec 9 millimeter and a grudge.
Stand Your Ground laws apply to one aspect of the larger concept of self-defense, and only one: they eliminate the requirement that a person retreat if he can safely do so. To be clear, I believe that Stand Your Ground laws are fundamentally wrong. The balance is a human life, on the one hand, and some machismo principle that a person should not have to endure the humiliation of retreat on the other.
The argument is that they have a right to stand their ground and fight rather than be forced to run away in the face of an attack, even if they can safely do so. Life is not so cheap that it should be taken to protect ego. Many disagree with me, and they're allowed. This isn't a legal judgment, but a moral balance. I come out in favor of life, and have no plans to change.
But that's not how the Times plays the game in its editorial. While blaming Stand Your Ground, they are attacking the basic concept of self-defense having absolutely nothing to do with Stand Your Ground. It's not merely intuitive, which is used to suggest the inherent fight or flight instinct in human beings, but characterized by the Times as some unnatural shift imposed by law to empower "self-deputized" gun nuts with "a grudge."
This is an artfully crafted diversion from the law that existed long before anybody came up with the cool phrase, Stand Your Ground. We always had the right to defend our lives when threatened with death or serious physical injury. If we could safely retreat, then that was the best option and we were required to do so. If not, then we defended our lives.
The underlying gripe is twofold, neither of which have anything to do with Stand Your Ground. The first is playing the race card. Like most people, I can't let go of the assumption that race influenced perceptions here, even though I have no basis for the assumption. But there is no law, nor can there be, that requires us to behave one way when the interaction is black and white versus white and black, or people of the same race. Does the Times suggest we start writing two sets of laws, maybe more, to accommodate the races of participants?
The second is the gun card, as reflected in the "Kel-Tec 9 millimeter" language. New York, not being at all gun-friendly, is easily shaken by words that make guns sound particularly vicious and high tech. And again, I'm no personal fan of guns, having no interest in strapping one on. But a great many other people are fans, and the Second Amendment protects their right to be fans. It's irrelevant whether that's my favorite amendment, just as it's irrelevant whether cops like the Fourth.
The same Constitution we invoke to protect the rights we favor protects some things that we don't. Either we honor the Constitution or not, and that includes all the parts, even the ones that aren't as dear to us as others.
A guy is cornered, there is no escape. The other guy is big. Huge. Strong. And is about to bash his head in. The cornered guy has a gun (give it whatever nasty gun-type name you want). Should the law prohibit him from using it to save his life? But that's not the facts in Zimmerman, you say. True, but laws don't exist for every conceivable set of facts and circumstances people can come up with, and the law of self-defense applies to this scenario the same as it did in Zimmerman. Would it make you feel better to have the cornered guy die because the law prohibited him from using his gun to save his life?
While the New York Times editorial may fairly argue for racial tolerance and the evils of guns, Second Amendment be damned, what it cannot do is lie to people by claiming that Trayvon Martin would not be dead but for Stand Your Ground laws, and then call for the evisceration of our basic, age-old right to self-defense. The alternative to self-defense when one cannot safely retreat is to die.
While it's painfully hard to know whether a person's fear of harm was "reasonable," especially when there is only one side to the confrontation who is alive to tell the story, it's a necessary evil in distinguishing whether force can be lawfully used. The choice was made hundreds of years before anyone ever heard of Trayvon Martin or George Zimmerman, and it's been the right choice for all those years since.
As much as many feel that it played out poorly here, it was always understood that some variations in fact on the same theme would touch our sensibilities differently than others. But the flaw was never with the law. The flaw is that we're human and subject to feelings that may defy reason, and not every application of sound and neutral law will make us feel good about what happened. It's what we must suffer in a society of laws. And the New York Times should know this and be ashamed of itself for engaging in this deception.
Update: In an interview on Anderson Cooper 360, one of the jurors spoke:
COOPER: Because of the only, the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Well, because of the heat of the moment and the stand your ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
This mention of stand your ground gave rise to an apology from Eugene Volokh, who had also written about this Times editorial subsequent to this post.
It thus appears that at least one of the jurors did “consider Mr. Zimmerman’s actions in light of the ... Stand Your Ground provision in Florida’s self-defense law,” and on that the Times editorial was right, and I was wrong to criticize it; my apologies to the editorialists, and to our readers.
While there is no issue that stand your ground had no legal bearing on the case, Eugene apologized for arguing that the aspect of the editorial suggesting that the jury somehow relied on it in reaching its verdict. My view is that these were empty words to the juror, having been uttered too many time in the media before trial, and she offered them in the interview either without any grasp of what they meant or inadvertently.
It was a loose phrase, not a reflection that an unrelated legal concept, mentioned in passing as part of pattern jury instructions, and never argued to the jury, played a role. Loose language shouldn't be taken too seriously and serve as a basis for assuming scholar-like attention to something that scholars universally agree had no place in the case.
While it was gracious of Eugene to apologize, it was both unnecessary and, perhaps, a mistake to feed misguided understandings about a law which is being blamed for a role it never played.
© 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/2013/07/15/sound-the-retreat.aspx?ref=rss
Not Your Average Battery
When you hear the word “battery” you think of 2 things: “Hey, do you have a AAA battery?” Or you think of someone getting the ass kicked. The Juice is quite confident that you would not think of something like this. Per The Northwest Florida Daily News:
A man was charged with battery after he poured water on a woman during an argument, an arrest report indicates.
Yes, water.
The man, who is 39 and lives in Niceville, admitted to Niceville Police officers he poured water on the woman during their spat and told officers to take him to jail.
As you wish.
The charge was a misdemeanor. His plea date is April 22.
Sounds like a candidate for the litter patrol, and maybe some anger management counseling.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/LKNiYCW4yiE/asdf-15.html
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High Court Leaves New York's Online Sales Tax Law in Place
Dec. 2 was an extraordinary day for Amazon.com: Cyber Monday sales reached new heights, its fanciful plan to use drones to make deliveries was creating buzz -- and then the U.S. Supreme Court spoiled it all by turning down Amazon's challenge to online sales taxes.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631211450&rss=rss_nlj
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Sunday, March 30, 2014
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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From The Birth Of The iPhone To An Era Of Lawsuits
On the eve of the next trial in the continuing patent war between Apple and Samsung, one of the iPhone's original designers is speaking out publicly for the first time.
Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
Senate Committee Advances Four Judicial Nominations
The Senate Judiciary Committee approved four nominations today, including a unanimous voice vote on Boies, Schiller & Flexner partner Tanya Chutkan to serve on the U.S. District Court for the District of Columbia.
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Md. Lawmakers Raise Threat of Eminent Domain Against ‘House of Cards’
Maryland lawmakers are proposing to use the power of eminent domain to seize the property of the production company behind the Netflix streaming drama "House of Cards" unless the series keeps filming in the state.
LawBiz® Legal Pad: Rule 1.17
Ed discusses Rule 1.17 and how it pertains to succession planning.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uC3D-ERog7c/
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Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
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Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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United States Supreme Court Resolves Circuit Split and Narrows Scope of SLUSA
In Chadbourne & Parke LLP v. Troice, Nos. 12-79, 12-86 and 12-88, 2014 U.S. LEXIS 1644 (U.S. Feb. 26, 2014), the Supreme Court of the United States resolved a split in the circuits regarding whether alleged misrepresentations were made “in connection with the purchase or sale of a covered security” for purposes of the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), 15 U.S.C. § 78bb(f)(1)(A). The Court held that a “misrepresentation or omission of a material fact” is made “in connection with the purchase or sale of a covered security” only if the misrepresentation is “material” to the plaintiff’s decision to buy or sell that covered security. This decision narrows the scope of removal and preclusion of state law securities fraud class actions by the federal courts under SLUSA.
Plaintiffs were private investors who brought state law class claims against defendant firms and individuals in Louisiana and Texas state courts, alleging that defendants had assisted Stanford International Bank (the “Bank”) and Alan Stanford (“Stanford”) in perpetrating a fraud on the plaintiffs. Stanford had run a multibillion dollar Ponzi scheme through which he and his affiliates sold to plaintiffs Bank certificates of deposit (“CDs”). The CDs were debt assets that promised a fixed rate of return. Plaintiffs expected Stanford to use the money it received to buy assets and invest in publicly traded securities. Instead, Stanford used the money to repay old debts, live a lavish lifestyle and finance speculative real estate ventures.
Defendants removed the state law class actions to federal court and sought dismissal under SLUSA. SLUSA generally authorizes the removal to federal court and dismissal of state law class actions that allege misrepresentations or misleading omissions in connection with the purchase or sale of “covered securities.” SLUSA adopts the definition of “covered security” in the Section 18 of the Securities Act of 1933, 15 U.S.C. § 77r, as one that is “listed, or authorized for listing, on [various national stock exchanges]” or one that is “issued by an investment company that is registered . . . under the Investment Company Act of 1940.”
The United States District Court for the Northern District of Texas granted defendants’ motion to dismiss, concluding that plaintiffs’ claims were precluded under SLUSA. The district court acknowledged that the CDs were not “covered securities” under SLUSA because the CDs were not “traded nationally [or] listed on a regulated national exchange.” However, the district court noted that each complaint alleged that the fraud included misrepresentations that the Bank held significant holdings in covered securities, which made the CDs more secure. The district court thus held that this provided the necessary “connection” between plaintiffs’ state law fraud claims and “transactions in covered securities,” and that the claims were therefore precluded by SLUSA.
As previously reported here, the United States Court of Appeals for the Fifth Circuit reversed. The Fifth Circuit agreed with the district court’s determination that the complaints described misrepresentations about covered securities. The Fifth Circuit held, however, that the “heart” of the allegedly fraudulent scheme centered on representations that the uncovered CDs were safe and secure. The Fifth Circuit held the falsehoods concerning the covered securities were too “tangentially related” to the “crux” of the fraud to be sufficiently “in connection with” the purchase or sale of a covered security for purposes of SLUSA.
The Supreme Court affirmed. The Court first noted that SLUSA focuses on transactions in covered securities, not uncovered securities. The Court also observed that the pertinent phrase of SLUSA, “material fact in connection with the purchase or sale,” suggests a connection between the misrepresentation or omission and a purchase or sale that “matters.” The Court determined that a connection “matters” where the misrepresentation makes a “significant difference to a person’s decision to purchase or sell a covered security,” but not an uncovered security. Plaintiffs’ complaints alleged misrepresentations regarding the Bank’s ownership of covered securities, but did not allege misrepresentations in connection with the “purchase or sale of a covered security” by plaintiffs. Thus, the complaints did not provide the necessary “connection” between the materiality of the misstatements and the “purchase or sale of a covered security.”
The Court also noted that its interpretation of the “in connection with” language in SLUSA should not significantly impair the SEC’s enforcement powers for violations of Section 10(b) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), because the definition of “security” under the Exchange Act is broader than that of “covered security” under SLUSA.
The Court’s decision in Chadbourne would appear to limit SLUSA to cases where plaintiffs allegedly purchased, sold or held (see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71 (2006); see blog article here) “covered securities.” Class actions where plaintiffs allegedly purchased, sold or held uncovered securities, even if covered securities are lurking in the background, may proceed in state court.
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Saturday, March 29, 2014
Comparing Law School Rankings? Read The Fine Print
When a school hires its own students, it can bump up its ranking. One school employs 20 percent of its most recent graduates — and jumped nine spots in the rankings this year.
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ABA committee backs pro bono requirement for students
The nonprofit organization Equal Justice Works, which offers opportunities for attorneys to represent underserved clients, recently launched Law Students for Pro Bono. In fewer than two weeks, more than 600 students and lawyers had signed a petition asking the ABA to create an aspirational goal for law schools to promote students’ participation in 50 hours of pro bono service before they are admitted to the bar. So the ABA Standing Committee for Pro Bono and Public Service signed on, and supported the 50-hour requirement to the Council of the Section of Legal Education and Admissions to the Bar.
“The student response to the Law Students for Pro Bono campaign has been incredible,” said David Stern, executive director of Equal Justice Works, said in a press release. “Students from across the country have come together to ensure that schools are imparting upon future lawyers the values that are core to the legal profession.”
Source: http://minnlawyer.com/minnlawyerblog/2014/02/03/aba-backs-pro-bono-requirement-for-students/
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Dorsey partner jumps to Cozen O’Connor
Christopher Bellini, the former chair of Dorsey & Whitney’s Private Equity group, has joined the Minneapolis office of Cozen O’Connor.
Cozen opened its Minneapolis office in June 2013 by hiring eight attorneys from the Minneapolis office of Hinshaw & Culbertson. The firm’s office is in the 33 South 6th Street building in downtown Minneapolis.
Bellini was a partner in Dorsey’s Corporate Group, and a member of the Capital Markets, Mergers and Acquisitions and Venture Capital and Emerging Companies practice groups.
Bellini focuses his practice on mergers and acquisitions of publicly and privately held companies and private equity acquisitions and divestitures.
He also assists clients with transactions involving SEC-registered public offerings and private placements, and he works closely with private equity funds and start-up companies with transactions of private equity and venture capital.
He earned an LL.M. from New York University School of Law, where he was graduate editor of the NYU Journal of International Law and Politics, and his J.D. from the University of Minnesota Law School. He also received his B.A. cum laude in economics from the University of Minnesota.
“In just a few short months, Cozen O’Connor has made its mark in Minneapolis, and we are excited that Chris will be part of our team, as we continue to deepen our bench,” said the office managing partner Thomas G. Wallrich in a press release announcing the hire. “Minneapolis is a strong business hub, and our continued growth will allow us to better serve clients in the Midwest and across the country.”
Source: http://minnlawyer.com/minnlawyerblog/2014/01/14/dorsey-partner-jumps-to-cozen-oconnor/
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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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SMU's Next Law Dean Has Administrative Background
Southern Methodist University has named Wake Forest University Vice Provost Jennifer Collins as the next dean of its Dedman School of Law. Collins, who has also taught law at Wake Forest since 2003, will assume the SMU deanship in July.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634048159&rss=rss_nlj
Court Grills SEC Over Costly Conflict Minerals Rule
One of the most controversial — and costly — rules in U.S. Securities and Exchange Commission history is under scrutiny by a panel of federal appellate judges, who questioned whether the requirement that publicly traded companies disclose the use of certain minerals from the war-torn Democratic Republic of the Congo violates the First Amendment.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636876934&rss=rss_nlj
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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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Tenth Circuit Looks Past “General Partnership” Labels in Agreements to Determine Whether Certain Investments Constitute “Securities”
In SEC v. Shields, No. 12-1438, 2014 U.S. App. LEXIS 3369 (10th Cir. Feb. 24, 2014), the United States Court of Appeals for the Tenth Circuit reversed the district court’s order granting defendants’ motion to dismiss, holding that the complaint alleged sufficient facts to (1) raise a plausible claim that the interests at issue involved are securities, and (2) rebut the presumption that an investment labeled as a “general partnership” is a “security.” The Tenth Circuit’s holding reaffirms that although an investment may be labeled as a “general partnership” interest, courts must look beyond the labels to determine whether the investment constitutes a “security.”
The Securities & Exchange Commission (“SEC”) filed a civil enforcement action against Jeffory Shields a/k/a Jeffrey D. Shields, Geodynamics, Inc. (“Geodynamics”), four joint ventures and others, alleging violations of Sections 5(a) and 17(a) of the Securities Act of 1933, 15 U.S.C. §§ 77e(a), 77e(c), 77q(a); Sections 10(b) and 16(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), 78o(a); and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. The SEC alleged that Shields, managing partner of Geodynamics, offered and sold over $5 million of interests in oil and gas exploration and drilling joint ventures to sixty investors across 28 states. The money collected was used to fund GeoDynamics. Shields allegedly marketed the oil and gas drilling ventures to individuals with little experience in the oil and gas exploration business by making cold calls to thousands of people and promising annual returns of between 256% and 548%. The SEC alleged that Shields denied investors access to information, lied to investors to keep them misinformed and comingled funds.
Shields provided potential investors with offering documents which stated explicitly that the investors had the rights of general partners, and that the joint venture interests were not securities. In addition, the documents provided the investors with the power to remove the managing venturer, GeoDynamics, the right to terminate the partnership, and the right to inspect records. However, unlike GeoDynamics, the investors did not have the power to bind the joint ventures by executing contracts, spending funds, or interpreting contracts. Additionally, the investors were required to sign drilling and completion contracts, thereby locking themselves into contracts with GeoDynamics, who unilaterally set the contract price.
Defendants moved to dismiss the SEC’s complaint. Defendants asserted that the investments at issue were general partnership interests, as stated in and evidenced by the agreements, not securities. Because they were not securities, defendants argued, the SEC failed to state a claim upon which relief could be granted. The United States District Court for the District of Colorado granted defendants’ motion to dismiss. The district court reasoned that the SEC’s allegations were “insufficient to state a plausible claim that the joint venture interests at issue” were securities. The SEC appealed.
The Tenth Circuit reversed. The Court acknowledged that an investment contract, which is a type of security, exists where there is “(1) an investment, (2) in a common enterprise, (3) a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” The Court focused solely on the third requirement. The third requirement is satisfied, the Court explained, when the efforts of individuals other than the investor significantly affect the “success or failure of the enterprise.” Additionally, the Court acknowledged that while there is a general presumption that a general partnership is not a security, this presumption is rebuttable. The Court looked to Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which provided examples of situations when a general partnership can be a security, such as when the agreement leaves little power in the partner’s hands, when the partner lacks experience and knowledge that he or she is incapable of exercising his or her partnership powers, or where the partner is so dependent on a unique entrepreneurial or managerial ability that he or she cannot replace the manager or exercise his or her partnership powers.
Based upon these principles, the Tenth Circuit held that the allegations in the complaint raised a plausible claim that the interests involved were securities. Specifically, the SEC raised issues of fact regarding whether the investors were relying upon the efforts of GeoDynamics and Shields to “significantly affect the outcome of the ventures.” Additionally, the Court held that the SEC alleged sufficient facts to “rebut the presumption that the purported general partnerships here [were] not securities.” The Court reasoned that the complaint satisfied the factors in Williamson to rebut the presumption, as the SEC alleged facts to show that the investors had limited power to control or manage the investment — even if they removed GeoDynamics as the manager, they were still locked into contracts with GeoDynamics. These contracts were the key ways in which the investors would make profits. Thus, the investors were required to rely on GeoDynamics for the success of their joint venture.
Also, the SEC alleged that the investors had little or no experience in the oil and gas drilling business, which meant that they relied upon Shields to provide them with the necessary information. The Court held that this raised a factual issue as to whether their voting rights, which were provided in the agreements, were illusory or a sham. Additionally, the SEC alleged that Shields marketed GeoDynamics as having a unique expertise in the oil and gas industry, so much so that he was able to offer annual profits of 256% and 548%. The Court held that the investors’ lack of experience in the industry combined with the GeoDynamics’ expertise, forced the investors to completely rely upon GeoDynamics, thereby raising an issue of fact as to whether the investors had any other alternative than to continue with GeoDynamics. Thus, the investors lacked the control or management abilities of general partners.
The Court in Shields held that the disctric court erred because it “focused only on the form of the [joint venture agreements] . . . without considering the economic realities of the transactions and the investors’ lack of access to information needed in order to actually use the powers reserved to them under the [agreements].” Although an agreement may expressly state that the parties involved are general partners and that the interests are not securities, such interests may still be considered securities and subject to federal securities regulations if the agreement is found to be an investment contract or the facts show that the presumption that a general partnership is not a security is rebutted. As confirmed by Shields, parties may be subject to federal securities regulations even if they explicitly state in their agreements that the interests involved are general partnerships and not securities.
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Indiana governor signs bill allowing guns on school property into law
[JURIST] Indiana Governor Mike Pence [official website] signed into law HB 1048 [legislative materials] on Wednesday, allowing adults to carry a concealed weapon locked in vehicles on school property. The current law in Indiana makes it a felony for any gun permit holder to have a firearm in their car while they are on school property. A spokesperson for the governor said the aim of the bill [Indy Star report] is to allow parents to keep locked guns in their...
Source: http://jurist.org/paperchase/2014/03/indiana-governor-signs-guns-rights-bill-into-law.php
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Friday, March 28, 2014
I Spoke Too Soon
My expectations that SJ would be moving to new digs at WordPress yesterday were brutally dashed. My initial reaction was to say "screw it, this isn't worth the hassle anymore," but I spoke with a few friends who persuaded me not to give up the effort.
It appears that my plans, having already gone through at least three iterations, need to be redrawn. While I remain disinclined to spend a substantial amount of money to make this happen as a matter of principle, the amount of work needed to accomplish this task has proven to be far harder, more involved and less interesting than previously thought. At the moment, I have neither a solution nor a plan being carried out for an imminent move. Without one, SJ will vanish one day when GoDaddy pulls the plug.
Hopefully, I will figure out a way to accomplish the move before that. In the meantime, I'll resume what I do here and if it ends up vanishing one day for lack of a viable plan, so be it. It's the best I can do for the time being and under the circumstances. Sorry that things haven't worked out better thus far, but I'm still working on 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.
It appears that my plans, having already gone through at least three iterations, need to be redrawn. While I remain disinclined to spend a substantial amount of money to make this happen as a matter of principle, the amount of work needed to accomplish this task has proven to be far harder, more involved and less interesting than previously thought. At the moment, I have neither a solution nor a plan being carried out for an imminent move. Without one, SJ will vanish one day when GoDaddy pulls the plug.
Hopefully, I will figure out a way to accomplish the move before that. In the meantime, I'll resume what I do here and if it ends up vanishing one day for lack of a viable plan, so be it. It's the best I can do for the time being and under the circumstances. Sorry that things haven't worked out better thus far, but I'm still working on 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/2013/07/12/i-spoke-too-soon.aspx?ref=rss
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Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202634055202&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
LawBiz® Legal Pad: Rule 1.17
Ed discusses Rule 1.17 and how it pertains to succession planning.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/uC3D-ERog7c/
High Court Considers Definition Of Domestic Violence In Gun Case
Even without proof of physical force, people convicted of minor domestic violence offenses can be barred from possessing a gun, the justices ruled Wednesday.
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Corruption Probes Target Mayor and Two State Lawmakers in Three States
It's been quite the eventful day for law-enforcement authorities on the corruption front.
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Supreme Court allows Lanham Act claim in copyright infringement case
[JURIST] The US Supreme Court [official website] on Tuesday issued a unanimous ruling in Lexmark v. Static Control Components holding [opinion, PDF] that Static did not lack standing to assert a Lanham Act claim in defense of a copyright infringement action brought by Lexmark. The case revolved around the use of certain microchips allowing refurbished printing cartridges to be used in Lexmark printers. Lexmark [official website] developed a chip only allowing cartridges refurbished and sold by the company to be...
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Lender Can’t Collect Deficiency for Repo
Plaintiff finance company has not carried its burden of proof and the Richmond Circuit Court denies its claim for a money deficiency following repossession of a motor vehicle on a conditional sales contract. Defendant denies liability on the ground that she did not sign the agreement. Plaintiff’s evidence did not establish that anyone observed defendant ...
Source: http://valawyersweekly.com/2014/01/02/lender-cant-collect-deficiency-for-repo/
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LawBiz® Legal Pad On the Road!: Cellphones
Do you ever talk on the phone while you drive? In today's clip, Ed warns law firms that they could be exposed to legal liability if one of their attorneys causes an accident while using his or her phone behind the wheel.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/9IFUqbRw9Wc/
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2014 Compliance Checklist for Investment Advisers
For those of you still easing into 2014, we thought that now would be a good time to help you plot out your regulatory and internal compliance schedules for the upcoming calendar year.
Annual Regulatory Filings
- Form ADV—All registered investment advisers (“RIAs”) and exempt reporting advisers (“ERAs”) must file an annual amendment to Form ADV with the SEC and/or state securities authorities within 90 days of the end of their fiscal year (which is March 31 for a December 31st fiscal year). Otherwise Form ADV amendments are only required in the event of material changes to the RIA’s business (please consult your compliance counsel to determine materiality of any changes).
- Form PF—Most RIAs must file an updated Form PF with the SEC annually within 120 days of fiscal year end. Note that advisers to large hedge and liquidity funds must file on a quarterly basis within 60 days and 15 days, respectively, of quarter end.
- SEC Form D—Form D filings for funds with ongoing offerings need to be amended on an annual basis, on or before the anniversary of the initial SEC Form D filing (common for hedge funds and increasingly common for private equity funds – at least upon the first anniversary).
- We note that Form D has changed slightly due to the Dodd-Frank Act Reg D “bad actor” prohibitions that were finally adopted by the SEC in July 2013, in particular due to a new “bad actor” certification required under Rule 506(d) of Reg D.
- Also, keep alert for SEC action on further proposed changes to the Form D, which could have a major impact on Form D filings (and potentially how attractive an option Reg D is).
- Schedule 13G/D and Section 16 Filings—Advisers who exercise investment discretion over funds that are beneficial owners of 5% or more of a registered voting equity security must report these positions on Schedule 13G or Schedule 13D. Please note that Schedule 13G filings must be updated annually within 45 days of the end of the year (by February 14, 2014). Advisers should also review any necessary Section 16 filings.
- Form 13F—Advisers must file a Form 13F if it exercises investment discretion with respect to $100 million or more in certain identified 13F securities within 45 days after the end of the year in which the adviser reaches the $100 million filing threshold. Thereafter, advisers must make 13F filings within 45 days after end of calendar quarter. The list of 13F securities may be found here.
- Form 13H—Advisers who meet the SEC’s “large trader” thresholds (in general, trades (i) 2 million shares or $20 million FMV daily or (ii) 20 million shares or $200 million FMV monthly) are required to file an initial Form 13H with the SEC within 10 days of crossing the threshold. Large traders also need to amend Form 13H annually within 45 days of the end of the year and make quarterly update filings to the extent that information changes.
- US Tax & Treasury Department
- FATCA—Foreign Account Tax Compliance Act (“FATCA”) requires certain financial institutions (including advisers to pooled investment funds) to identify and disclose direct and indirect US investors and withhold U.S. income tax on nonresident aliens and foreign corporations or be subject to a 30% US withholding tax. Advisers should review their compliance with FATCA.
- Form SLT—Private fund sponsors that have portfolio investments in foreign issuers or have issued interests in their funds to foreign residents may be required to report these transactions on the Treasury International Capital system on a monthly basis.
- CFTC & NFA
- Advisers relying on the exemption from registration with the CFTC pursuant to Rule 4.13(a)(3), the “de minimis exemption,” must reaffirm their claim of exemption each year annually by March 1 (within 60 days of the end of the calendar year).
- Registered CPOs and CTAs must prepare and file annual filings with the National Futures Association. Registered CPOs must also prepare and file their fourth quarter report for each commodity pool (Form CPO-PQR), and CTAs must file a quarterly Form CTA-PR within 45 days of the end of the quarter.
Annual Audits and Recordkeeping
- Custody Rule Annual Audit—Most RIAs comply with certain custody procedures by having an independent public accountant registered with the Public Company Accounting Oversight Board prepare audited financial statements in accordance with GAAP and sending such audited financial statements to the investors within 120 days after the fund’s fiscal year end.
- The SEC staff have made clear in numerous settings that they are dedicating heightened attention in upcoming exams to compliance with the custody rules of RIAs of private funds. So particular vigilance to the (none-too-simple) strictures of Rule 206(4)-2 is recommended. This link is to the SEC’s recent release regarding examination priorities.
- Annual Privacy Policy Notice—Advisers should provide its individual investors with a copy of its privacy policy.
- Pay-to-Play and Lobbyist Rules—Review state and local lobbyist rules to ensure that lobbyist reporting is current for internal investor relations professionals who may meet the definition of placement agents.
Internal Compliance Matters
- Annual Compliance Review—RIAs must conduct an annual review of their compliance policies and procedures. (Rule 206(4)-7 of the Investment Advisers Act of 1940)
- Annual Training—RIAs should consider instituting annual RIA compliance training for employees. (Although not technically required by the rules under the Investment Advisers Act of 1940, the SEC encourages investment advisers to conduct training for employees.)
- New Issue Status—Advisers need to confirm or reconfirm on an annual basis the eligibility of investors that participate in initial public offerings or new issues pursuant to both FINRA Rules 5130 and 5131.
- ERISA Status—Advisers should consider annually confirming the ERISA percentage of their funds. For funds that rely on VCOC and REOC exemptions, they will have testing periods that are proscribed by the date of their initial investment.
- HSR Thresholds—Review HSR thresholds to monitor HSR filing requirements.
For further information regarding the foregoing, please contact either Thomas Devaney at (212) 634-3042 or Jung Yeon Son at (650) 815-2676.
Source: http://www.corporatesecuritieslawblog.com/2014/02/2014-compliance-checklist-for-investment-advisers/
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