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Monday, June 30, 2014
Suspect in Benghazi Attacks Pleads Not Guilty in D.C.
A suspect in the September 2012 attack on the U.S. consulate in Benghazi, Libya, pleaded not guilty Saturday in Washington federal district court, where he is charged with conspiracy to provide support and resources to terrorists.
Federal judge upholds Colorado gun control laws
[JURIST] A judge for the US District Court for the District of Colorado [official website] on Thursday upheld [opinion, PDF] two Colorado statutes that expanded mandatory background checks and banned high capacity magazines. CRS § 18-12-302 and CRS § 18-12-112 [texts, PDF] were challenged by a group of individuals and entities who claimed that the laws violated the Second Amendment [text] to the US constitution. Chief Judge Marcia Krieger found that the two laws did not violate the Second Amendment...
Source: http://jurist.org/paperchase/2014/06/federal-judge-upholds-colorado-gun-control-laws.php
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The Big Cases: How the Supreme Court Ruled
The Supreme Court ended the 2013-2014 court term with two big rulings -- one on whether companies can opt out of covering certain types of contraceptives under the Obama health-care law, and the other on public-sector union dues. Here is a rundown of the court's biggest rulings.
Source: http://blogs.wsj.com/law/2014/06/30/the-big-cases-how-the-supreme-court-ruled/?mod=smallbusiness
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The Power of a Structured Settlement: A Personal Story
Today on Ringler Radio, host, Larry Cohen and his co-host, Jim Early, talk with Congressman Jim Langevin, a Democrat, representing constituents from the 2nd District in Rhode Island since 2001. Congressman Langevin talks about his own personal experience with a structured settlement years ago that helped him and public policy for structured settlements today. Hear one of the best cases for the long-term security of a structured settlement instead of a lump sum settlement.
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UN rights experts urge Israel not to legalize force feeding of prisoners
[JURIST] UN Special Rapporteurs on torture and the right to health, Juan Mendez and Anand Grover, on Wednesday urged [press release] the Knesset [official website], the Israeli Parliament, to withdraw proposed amendments to the Prisons Act which would allow the forced feeding and medical treatment of inmates currently participating in a hunger strike. A large number of Palestinian prisoners have been on hunger strike since April to protest mistreatment and the fact many of the prisoners have been detained without...
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Tactics of Federal Defenders Under Scrutiny Again
Federal defenders, who have already faced criticism from the Pennsylvania Supreme Court and a federal judge over their tactics, are now being asked to explain themselves to the U.S. Supreme Court.
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NLRB's recent significant decisions
The NLRB this week made public a number of significant decisions, most reached in the final days of the term of Member Brian Hayes, which ended on December 16. The Board continues with three members, Chairman Mark Gaston Pearce and Members Richard F. Griffin, Jr. and Sharon Block.
The decisions touch on a variety of issues including social media postings, charter school jurisdiction, backpay awards, the chargeability of certain union lobbying expenses, and an employer’s responsibility to continue dues collection after the expiration of a contract.
Hispanics United of Buffalo
The Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.
Alan Ritchey, Inc.
In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.
Latino Express
In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.
Chicago Mathematics & Science Academy
Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.
United Nurses & Allied Professionals (Kent Hospital)
The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.
WKYC-TV, Gannet Co.
Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.
Source: http://www.lawmemo.com/blog/2012/12/nlrbs_recent_si.html
Does SCOTUS want to end public employee unions?
“In the end, it may not happen, but the demise of public employee unionism was at least on the table for lively discussion in a Supreme Court argument Tuesday morning. The case of Harris v. Quinn would only spell doom for government workers’ collective action, it appeared, if Justice Antonin Scalia could be persuaded to join in doing it in; there just might be enough other votes.” Thats the report from SCOTUSblog on the argument this morning in a case that was supposed to be about home-care workers but has morphed into a dialogue about labor unions. “[T]he atmospherics of Tuesday’s argument suggested strongly that this case has very large potential. The mood of the Court’s more liberal members was one of obvious trepidation, and that of its more conservative members — except for Justice Scalia — was of apparent eagerness to reach anew the core constitutionality of compulsory union support among public workers,” blogger Lyle Denniston continued.
Source: http://minnlawyer.com/minnlawyerblog/2014/01/21/does-scotus-want-to-end-public-employee-unions/
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Appeals Court: KBR Can Keep Docs Secret From Whistleblower
Kellogg Brown & Root Services Inc. doesn't have to disclose certain documents to a whistleblower, a federal appeals court ruled on Friday in a dispute that raised concern among companies about the confidentiality of communication with in-house lawyers.
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OPINION: Chemerinsky: God, Birth Control and Corporate America
Can a corporation claim to have religious beliefs and, if so, does it violate those beliefs to force the business to include contraceptive coverage in the health insurance it provides its employees? The U.S. Supreme Court has just granted review in two cases on the issue.
Source: http://www.nationallawjournal.com/id=1202631180111?rss=rss_nlj
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Sunday, June 29, 2014
Are you a lawyer or a manager?
In a recent case, the lawyer was successful in growing his practice. So much so that he engaged 30 staff; they met with clients and even provided legal advice in loan modification matters. The net result is that the attorney did not provide adequate supervision for his staff and allowed them to five legal advice. This was the unlawful practice of law. The attorney was guilty of violating the Rules of Professional Conduct and was suspended for two years. Punishment could have been more, but the lawyer made financial restitution to aggrieved clients and agreed to community service during his suspension.
Moral to the story: Grow your practice with appropriate supervision of unlicensed staff and technological support. Don’t allow unlicensed staff to provide legal advice. Coaching helps both with growing your practice and with operating your practice efficiently and within professional guidelines.
The larger one’s firm gets, the more management issues arise. Running a law practice is equivalent to running a professional service business and management principles are as important as being legally competent.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/l7QnExQ0VsM/
Revenge Porn: Criminal Legislation vs. Rights and Freedoms
Six states have passed laws to address revenge porn, but critics say those laws may infringe upon First Amendment rights and subject people to needless criminal prosecution. Critics of anti-revenge porn laws believe the laws as drafted are overly broad, fail to exempt acceptable behavior, and create a chilling effect on otherwise legal expression. On this follow up episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams interview Lee Rowland from the ACLU and Marc Randazza from the Randazza Legal Group. Together we discuss the potentially harmful components of non-consensual porn legislation and consider alternative avenues of redress for victims. Professor Mary Anne Franks of the Cyber Civil Rights Initiative, a proponent of criminalizing revenge porn, joins us for the second half to debate criticisms of these laws. Tune in for a spirited debate about free speech, over-criminalization, and the proper way to address the troubling issue of revenge porn.
For part one of this two-part series, please listen to Revenge Porn: Societal Costs and Legislative Solutions.
Lee Rowland is a Staff Attorney with the ACLU's Speech, Privacy, and Technology Project. Prior to joining the ACLU, she was a voting rights counsel with the Brennan Center for Justice, where she successfully represented the League of Women Voters of Florida and others in constitutional challenges to Florida's 2011 election law. Rowland previously ran the Reno office of the ACLU of Nevada, where she regularly argued before the Ninth Circuit Court of Appeals and the Nevada Supreme Court.
Marc Randazza is a First Amendment lawyer for the Randazza Legal Group located in Las Vegas, Nevada. A graduate of Georgetown University Law Center, he found his passion for the First Amendment while attending the University of Massachusetts at Amherst Journalism Program. Randazza has law offices in five states and represents both adult entertainment companies and private individuals. He is a regular contributor to news sources such as CNN and Fox News, and is a frequent commentator on legal issues to the international media.
Professor Mary Anne Franks is the Vice President of Cyber Civil Rights Initiative and an Associate Professor of Law at the University of Miami School of Law. She holds a Juris Doctor degree from Harvard Law School and prior to her teaching career, obtained both her Masters and Ph.D. in Modern Languages and Literature as a Rhodes Scholar at Oxford University. As part of her continuing efforts with the Cyber Civil Rights Initiative, she works with state legislatures to draft legislation against non-consensual pornography.
Special thanks to our sponsor, Clio.
For part one of this two-part series, please listen to Revenge Porn: Societal Costs and Legislative Solutions.
Lee Rowland is a Staff Attorney with the ACLU's Speech, Privacy, and Technology Project. Prior to joining the ACLU, she was a voting rights counsel with the Brennan Center for Justice, where she successfully represented the League of Women Voters of Florida and others in constitutional challenges to Florida's 2011 election law. Rowland previously ran the Reno office of the ACLU of Nevada, where she regularly argued before the Ninth Circuit Court of Appeals and the Nevada Supreme Court.
Marc Randazza is a First Amendment lawyer for the Randazza Legal Group located in Las Vegas, Nevada. A graduate of Georgetown University Law Center, he found his passion for the First Amendment while attending the University of Massachusetts at Amherst Journalism Program. Randazza has law offices in five states and represents both adult entertainment companies and private individuals. He is a regular contributor to news sources such as CNN and Fox News, and is a frequent commentator on legal issues to the international media.
Professor Mary Anne Franks is the Vice President of Cyber Civil Rights Initiative and an Associate Professor of Law at the University of Miami School of Law. She holds a Juris Doctor degree from Harvard Law School and prior to her teaching career, obtained both her Masters and Ph.D. in Modern Languages and Literature as a Rhodes Scholar at Oxford University. As part of her continuing efforts with the Cyber Civil Rights Initiative, she works with state legislatures to draft legislation against non-consensual pornography.
Special thanks to our sponsor, Clio.
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It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
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Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
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Contractor Can’t Sue City on Bid
In this suit arising out of a city procurement bid process, won by a third party, plaintiff’s complaint identifies plaintiff and defendant as a joint venture but the attached bid proposal describes them as “two primary subcontractors,” and the Richmond Circuit Court grants the city’s demurrer but overrules the demurrer on plaintiff’s breach of contract ...
Source: http://valawyersweekly.com/2014/01/02/contractor-cant-sue-city-on-bid/
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Dayton’s contract with Lillehaug for shutdown work violated statute
Justice David Lillehaug
When he first signed on to serve as legal counsel to Gov. Mark Dayton during the 2011 shutdown, David Lillehaug agreed to do so pro bono.
That arrangement changed, however, as the shutdown wore on. Lillehaug and his former law firm Fredrikson & Byron billed for their time. [LiIllehaug was appointed to the Minnesota Supreme Court last March.] Ultimately Fredrikson charged $77,000 for the work.
There is nothing wrong with hiring an outside lawyer, but the Minnesota Office of Legislative Auditor said that when Dayton’s office decided to pay Lillehaug, it violated state statute and policy. The OLA recently published its audit of the Governor’s Office.
The report said that when Dayton’s office hired the firm it did not draft a professional contract and instead used an engagement letter. The letter did not specify an end date for the legal work and did not set a cap on the attorney fees. The Governor’s did not free up funds to pay for the services either.
The report recommended the Governor’s office develop procedures to execute contracts that comply with state statute.
Medical Marijuana at Work: The Side Effects for Workers’ Compensation
With recreational and medical use of marijuana now approved in some states, concerns of workplace use are being raised. The impacts of this trend range from employee right to treatment and increased employer liability to OSHA regulations and ADA holdings. On this episode of Workers Comp Matters, host Alan Pierce discusses these issues along with medical studies, toxicology reports, and the intoxication defense with experts Jim Andrews and Albert Randall.
Jim Andrews has served as an executive in the pharmacy industry for the past 30 years. Currently, he is the Executive Vice President of Pharmacy Services for Healthcare Solutions and a frequent presenter on industry topics. He is also a renowned writer and thought leader in pharmacy journals.
Albert Randall is a principal at Franklin and Prokopik where his practice concentrates in employer defense for labor and employment, workers' compensation, tort liability, administrative and regulatory matters, and general civil litigation. He is also a member of the National Defense Lawyers Network and counsel to Maryland Motor Truck Association.
Jim Andrews has served as an executive in the pharmacy industry for the past 30 years. Currently, he is the Executive Vice President of Pharmacy Services for Healthcare Solutions and a frequent presenter on industry topics. He is also a renowned writer and thought leader in pharmacy journals.
Albert Randall is a principal at Franklin and Prokopik where his practice concentrates in employer defense for labor and employment, workers' compensation, tort liability, administrative and regulatory matters, and general civil litigation. He is also a member of the National Defense Lawyers Network and counsel to Maryland Motor Truck Association.
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60 Years After Brown v. Board of Education, Equal Educational Access Remains Elusive
May 17th, 2014 marked the 60th Anniversary of Brown v. Board of Education, the landmark Supreme Court Decision that held state laws establishing separate public schools for black and white students as unconstitutional because they violate the Equal Protection Clause of the 14th Amendment. Today, some six decades later, many parents and teachers are still worried that America's children are not receiving equal access to education envisioned in that case. On this episode of Lawyer 2 Lawyer, hosts Bob Ambrogi and J. Craig Williams shed light on this issue with guests Christian D'Andrea from the MacIver Institute and Kyle Serrette from The Center for Popular Democracy. Together they discuss private schools, charter schools, and homeschooling vs. the community school model. Tune in to learn more about funding concerns, oversight issues, and the proper role of teachers unions in the school choice debate.
Christian D'Andrea is an Education Policy Analyst with the John K. MacIver Institute for Public Policy in Madison, WI. He earned his Master's of Public Policy degree at Vanderbilt University and has previously worked for the Friedman Foundation for Educational Choice as a State Policy Director and Policy Analyst. He is the author of several studies that examine the fiscal and personal impacts of educational reform, and his work has been featured everywhere from the Huffington Post to EducationNext.
Kyle Serrette is the Director of Education Justice Campaigns at The Center for Popular Democracy and works with their partner organizations to strengthen their public education coalitions, develop strategy to help close the opportunity gaps, and coordinates national and regional campaigns that work to bolster our public education system. Prior to joining The Center for Popular Democracy, Kyle spent over 10 years working on corporate campaigns with groups such as Service Employees International Union, Change to Win, and the American Federation of State, County and Municipal Employees. He was awarded the 2010 Joe Hill Organizing Achievement Award by the LA Fed and the Los Angeles Orange County Organize Committee.
Special thanks to our sponsor, Clio.
Christian D'Andrea is an Education Policy Analyst with the John K. MacIver Institute for Public Policy in Madison, WI. He earned his Master's of Public Policy degree at Vanderbilt University and has previously worked for the Friedman Foundation for Educational Choice as a State Policy Director and Policy Analyst. He is the author of several studies that examine the fiscal and personal impacts of educational reform, and his work has been featured everywhere from the Huffington Post to EducationNext.
Kyle Serrette is the Director of Education Justice Campaigns at The Center for Popular Democracy and works with their partner organizations to strengthen their public education coalitions, develop strategy to help close the opportunity gaps, and coordinates national and regional campaigns that work to bolster our public education system. Prior to joining The Center for Popular Democracy, Kyle spent over 10 years working on corporate campaigns with groups such as Service Employees International Union, Change to Win, and the American Federation of State, County and Municipal Employees. He was awarded the 2010 Joe Hill Organizing Achievement Award by the LA Fed and the Los Angeles Orange County Organize Committee.
Special thanks to our sponsor, Clio.
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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.nationallawjournal.com/id=1202631276654?rss=rss_nlj
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Perils of Law Firms Possessing Massive Amounts of Unreviewed Client Data
Some experts believe that, in addition to being prohibitively expensive for law firms to manage, maintaining immense amounts of client data increases the probability that it will be exposed to the public through a security breach or hack. That is why many like-minded firms are outsourcing data management to companies that specialize in it. On this episode of Digital Detectives, hosts Sharon Nelson and John Simek interview Ralph C. Losey from Jackson Lewis P.C. Together, they discuss how to manage large amounts of data, when to outsource, and what to do with unprocessed information. Tune in to learn more about dark data, how to select outside vendors, and hosting costs vs. storage costs.
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.
Saturday, June 28, 2014
Busted For Going On Facebook?
Yes, this man was busted for going on Facebook, as he should have been. As reported by North Country Now (Potsdam, New York):
A Norwood man was arrested for allegedly contacting a female via Facebook who had an order of protection against him, according to St. Lawrence County sheriff’s deputies.
Matthew J. Allen, 27, was charged with second-degree criminal contempt, officers said.
He was arraigned in Norfolk Town Court and released on his own recognizance, deputies said.
Time to move on, jack. Let the lady be. Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/LNqbH7yVzFY/adfs-3.html
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Plaintiff Can Access Police Investigation Records
In a plaintiff’s suit involving a charge that he failed to make a right-hand turn signal, the Richmond Circuit Court will resolve a discovery dispute by allowing plaintiff discovery of an internal affairs investigation through documents provided by defendant for in camera review. Defendants invoke a provision of the Freedom of Information Act, Va. Code ...
Source: http://valawyersweekly.com/2014/01/02/plaintiff-can-access-police-investigation-records/
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Boy Plays With Fire, Will Have To Pay The Consequences, And I Do Mean “Pay”
I think it’s fair to say that virtually every kid on earth is told not to play with fire. Many kids ignore it, and manage to escape unscathed. Such was not the case for an 11-year-old boy in Sweden. He was 9 on that fateful day. Per The Local (Sweden):
An 11-year-old boy has been ordered to pay 1.9 million kronor (US $276,000) in damages after causing smoke and water damage to a Stockholm home, the Aftonbladet newspaper writes.
The boy, who was nine at the time, was visiting another family in the suburb in southern Stockholm when he got hold of a cigarette lighter and proceeded to set light to some paper in a wardrobe with devastating consequences.
The insurance company agreed to meet the costs incurred by the family for the damages to their home – 1.9 million kronor – and then proceeded to sue the boy in court.
Well that should make for some really good public relations …
The court has now ruled that the boy is responsible for his actions – the debt can not be claimed from the other members of his family.
“According to Swedish law children can be liable for damages to the same extent as adults,” said Mårten Schultz, an expert in liability law, told the newspaper. “The debt is the child’s, it is the boy that has to pay up,” he confirmed.
Are they going to garnish his allowance? Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/dCZhT4NaLWc/adf-13.html
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The Power of a Structured Settlement: A Personal Story
Today on Ringler Radio, host, Larry Cohen and his co-host, Jim Early, talk with Congressman Jim Langevin, a Democrat, representing constituents from the 2nd District in Rhode Island since 2001. Congressman Langevin talks about his own personal experience with a structured settlement years ago that helped him and public policy for structured settlements today. Hear one of the best cases for the long-term security of a structured settlement instead of a lump sum settlement.
Justices: Abortion Clinic Buffer Zone Violates First Amendment
Citing the First Amendment, the U.S. Supreme Court unanimously strikes down Massachusetts' 35-foot buffer zone around abortion clinics.
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Eric Turkewitz on Legal Blogging
Eric Turkewitz, of The Turkewitz Law Firm and author of the New York Personal Injury Law Blog, offers dos and don'ts for first-time legal bloggers.
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Contractor Can’t Sue City on Bid
In this suit arising out of a city procurement bid process, won by a third party, plaintiff’s complaint identifies plaintiff and defendant as a joint venture but the attached bid proposal describes them as “two primary subcontractors,” and the Richmond Circuit Court grants the city’s demurrer but overrules the demurrer on plaintiff’s breach of contract ...
Source: http://valawyersweekly.com/2014/01/02/contractor-cant-sue-city-on-bid/
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Staying Motivated While Starting A Solo Law Practice
Starting a solo law practice can be invigorating, frightening, and exciting at first. But after the adrenaline and excitement of starting a solo practice fades, how do lawyers stay motivated? Unlike working in a large firm, an attorney's personal life and solo practice become interconnected, causing unique and often unexpected challenges. Many lawyers experience inner turmoil that requires a different resolution than a well thought-out business plan or financial planning.
On this episode of New Solo, Adriana Linares interviews consultant Susan Cartier Liebel about how to stay motivated throughout the process of starting a solo law practice. Liebel encourages lawyers to make concrete life goals and envision where they might be 5, 10, and 15 years in the future, both professionally and personally. She recommends integrating personal interests and lifestyle with professional practice, resulting in a support system and a trusting client base. According to Liebel, there are three emotional inhibitors when opening a solo practice: the fear of a malpractice suit, the fear of being alone, and the lack of mentors. By focusing on the endgame, a lawyer can create an internal support system that supplements external support.
Susan Cartier Liebel is a coaching consultant for solos and small firms who start their own law practice right out of law school. She has been an adjunct professor for Quinnipiac University School of Law, teaching law students how to start and grow their own law practices. She has since taken on consulting full-time. Her entity, Solo Practice University, now teaches hundreds of attorneys how to become solo practitioners. She is additionally a frequent speaker to law schools, bar associations, and professional organizations around the country.
Special thanks to our sponsor, Solo Practice University, a community dedicated to helping lawyers build their very own solo law practice. Check it out at solopracticeuniversity.com.
On this episode of New Solo, Adriana Linares interviews consultant Susan Cartier Liebel about how to stay motivated throughout the process of starting a solo law practice. Liebel encourages lawyers to make concrete life goals and envision where they might be 5, 10, and 15 years in the future, both professionally and personally. She recommends integrating personal interests and lifestyle with professional practice, resulting in a support system and a trusting client base. According to Liebel, there are three emotional inhibitors when opening a solo practice: the fear of a malpractice suit, the fear of being alone, and the lack of mentors. By focusing on the endgame, a lawyer can create an internal support system that supplements external support.
Susan Cartier Liebel is a coaching consultant for solos and small firms who start their own law practice right out of law school. She has been an adjunct professor for Quinnipiac University School of Law, teaching law students how to start and grow their own law practices. She has since taken on consulting full-time. Her entity, Solo Practice University, now teaches hundreds of attorneys how to become solo practitioners. She is additionally a frequent speaker to law schools, bar associations, and professional organizations around the country.
Special thanks to our sponsor, Solo Practice University, a community dedicated to helping lawyers build their very own solo law practice. Check it out at solopracticeuniversity.com.
Source: http://legaltalknetwork.com/podcasts/new-solo/2014/06/staying-motivated-starting-solo-law-practice
Lawyer suspended for five years
Owatonna attorney Jeremy Thomas Kramer has been suspended for five years, following an investigation into allegations of misconduct.
Kramer has admitted that he misappropriated client funds and interest due under the IOLTA program, failed to reconcile his client trust account, allowed a non-lawyer to be a signatory on a client trust account and failed to cooperate with the Office of Lawyers Professional Responsibility in an investigation into the allegations. Kramer will be suspended for a minimum of five years, after which time he can petition for resinstatement.
The Supreme Court order noted that family matters causing Kramer stress during the period in which he committed misconduct were taken into account as mitigating factors.
Attorney Frances S. Li received a public reprimand this week from the Minnesota Supreme Court for committing misconduct. Li has admitted that she failed to supervise a suspended attorney she employed. The suspended attorney was allowed to handle client funds and engage in the practice of law.
Source: http://minnlawyer.com/minnlawyerblog/2014/01/17/lawyer-suspended-for-five-years/
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Jordan court acquits radical cleric of terrorism charges
[JURIST] A three-man civilian panel in the Jordanian State Security Court [Jordan government website] on Thursday declared radical preacher Abu Qatada [BBC profile; JURIST news archive] not guilty of terrorism offences relating to an alleged plot [Al Jazeera report] in 1998 on the American school in Amman. The court ruled there was insufficient evidence to find Qatada guilty of terrorism charges for the 1998 plot, but he will remain imprisoned [Reuters report] in Jordan for his alleged role in an...
Source: http://jurist.org/paperchase/2014/06/jordan-court-finds-radical-preacher-not-guilty-of-terrorism.php
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Friday, June 27, 2014
Legaltronix: A Rating System in the Legal Services Profession
In the structured settlement industry, relationships are very important. We interact with mediators, judges, experts, arbitrators and more, on a daily basis. So, it is extremely helpful to have some background on those experts before we walk into negotiations. On this Ringler Radio podcast, host Larry Cohen welcomes John B. Willcox, Co-founder of Legaltronix, a comprehensive rating system with detailed information on parties involved in litigation. Listen and learn about the benefits of this collaborative tool.
Source: http://traffic.libsyn.com/ringler/RR_011414_LegalTronix.mp3
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Federal Court Rules Against Utah's Ban On Gay Marriage
A federal appeals court in Denver struck down Utah's ban on gay marriage. It's the first appeals court decision in the nation to date, and paves the way for a U.S. Supreme Court decision on the issue.
Punishment for former Tax Court Judge George Perez stands
The Minnesota Supreme Court agreed with the Board on Judicial Standards. Former Tax Court Judge George Perez should be censured and his case should be forwarded to the Wisconsin Office of Lawyer Registration.
The Supreme Court also said it would supervise any future application Perez submits to the Minnesota Bar.
In November 2012, the BJS filed a disciplinary petition against Perez alleging that he failed to issue his opinions in a timely manner, falsified court records to show he had no cases pending, refused to accept new cases and demonstrated a “pattern of delay” in issuing decisions
Chief Justice Lorie Gildea appointed a three member panel to hear the case. That body ruled the BJS proved two of the claims by “clear and convincing evidence”, but did not prove two others.
Among other findings, the panel concluded Perez made “a substantial number of false certifications over an extended period of time.”
For punishment, the panel recommended a nine month suspension, a prohibition on serving out the rest of the term and for Perez to submit monthly status reports on his pending cases. The BJS pushed to have Perez removed from office, effectively ending his judicial career.
None of that mattered however because Perez was up for reappointment. In the waning days Gov. Mark Dayton recommended he not be confirmed. The Minnesota Senate vote was unanimous and Perez’s tenure as a Tax Court judge ended.
But Perez appealed the panel’s decision arguing it was moot because he was no longer a Tax Court Judge and secondly, he argued the BJS did not prove its case. He also claims the damage has been done. He also argues that any discipline should be mitigated because since January 2012, the time when he engaged with the BJS’ investigation, all of his decisions were decided within the three month deadline.
“Judge Perez argues we should not discipline him. He contends his removal from office… and the news media coverage of the panel’s findings constitute sufficient discipline for his misconduct.”
The Supreme Court disagreed with Perez and affirmed the discipline handed down by the panel. Doing so, “protects the integrity of the judicial system and should help restore the public’s confidence.”
Justice David Lillehaug took no part in the decision.
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Supreme Court Rules On Obama Appointments, Abortion Protests
The court ruled on cases involving some of President Obama's recess appointments and a Massachusetts law that created a buffer zone to keep protesters a certain distance away from abortion clinics.
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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.nationallawjournal.com/id=1202636876934?rss=rss_nlj
Special Needs Trusts or Pooled Special Needs Trusts
A special needs trust is designed to financially support a disabled individual, providing many benefits to the individual with long-term financial stability. Join Ringler Radio host, Larry Cohen and co-host, Mike Zea, as they join Will Lindahl, MBA, CLPF, National Enrollment Director for CPT Special Needs Trusts, to discuss the process of setting up a special needs trust, when an individual should consider setting one up the cost and the difference between an individual special needs trust and a pooled special needs trust.
Source: http://traffic.libsyn.com/ringler/RR_021814_CPT.mp3
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New Law School Courses Take on Robots, Videogames and Piketty-mania
Law Blog surveys some of the more unconventional course offerings making their debut at law schools this fall.
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Thursday, June 26, 2014
Looking Suspicious Isn’t A Crime, But …
Obviously there’s no law against looking suspicious. There is, however, a law against stealing cars. Per The Belleville News-Democrat (Illinois):
O’Fallon police have arrested three suspects in relation to a string of car burglaries.
Caught in the act? Not exactly.
According to police, officers got a call in the early morning hours Friday about three suspicious men walking in the 200 block of Chamberlain’s Crossing.
At least one of the suspects was seen looking into a car, prompting a resident to call the police department.
Uh-huh. So how’d they get caught?
Several officers responded to the area; when they found the men, they had possessions from at least two vehicles that had been burglarized.
Charged were filed against Demontee D. Townshend, 22, and Troy J. Moreno, 18, both of O’Fallon.
Townshend was charged with two counts of burglary, Class 2 felonies, and a Class A misdemeanor count of unlawful use of a weapon. Moreno was charged with one Class 2 felony count of burglary.
Both men are in custody at the St. Clair County Jail on $40,000 bail each.
Police said the third suspect, who was not named, has not been charged pending further investigation.
You were carrying around the fruits of your crimes? While you were apparently scouting out another vehicle? Doh! Those are some convictions on a silver platter. Here’s the source.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/8_4OPTzpZFo/asf-8.html
Supreme Court: Police Can’t Search Smartphones Without Warrant
Police generally must obtain a warrant before searching mobile devices after arresting someone, the Supreme Court ruled Wednesday.
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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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Entropy: It's Not What It Used To Be*
In thermodynamics, entropy is the measure of how things go from order to disorder. Its application is far broader, however, applying to life in general. For those of us, like me, who strive to maintain order, it is the enemy.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
My ability to do what I do, to function, depends on my maintaining order. In a world of chaos, it's a constant battle. No man is an island, and so almost every function relies to some greater or lesser extent on interactions with others. In order to prepare an affidavit, a person must take or return my phone call, do so in time for me to get their words on paper in both an accurate and comprehensible manner, make sure I've captured their thoughts properly, get it executed and file and serve the document. If the person decides that he would rather go to the beach than speak with me, but will get back to me later, the entire scheme can fall apart. A call back on Monday at 11 doesn't help when the papers are due Monday at 9.
When I explain how their conduct affected my ability to do my job, the response is one of two things: "Oh, I didn't realize," or "you should have told me that before." Of course, I can't tell you anything if you don't take or return my call. "Oh."
It's a fragile set up at best. Some people are reliable in a way that allows other to count on them, to plan ahead and not find themselves in a quagmire from which they can't emerge. These are people who make other people's lives go smoothly. They tend to be somewhere along the anal compulsive spectrum, which sounds pretty nasty but is actually a really good thing for organized people, especially lawyers.
Others are chaos personified, off in the thousand directions without any thought whatsoever to the consequences for themselves or those who rely on them. Their alternative to order is their tolerance of disorder. It's not that they don't eventually come to realize what they failed to accomplish because of their chaotic approach to responsibility, but that they can live with themselves that way.
God, grant me the serenity to accept the things I cannot change,Then again, it has nothing to do with God. It has to do with us. We make choices. If you're inclined to believe in a deity, then know that the deity imbued you with the power to make wise or foolish choices, and left it to you to decide which.
The courage to change the things I can,
And wisdom to know the difference.
You can choose a ready guide in some celestial voice.When I'm asked how I manage to get as much done in a day as I do, the answer is order. I organize. I plan ahead. I try to anticipate the chaos I will confront in the course of trying to get things done so that I can accommodate it as much as possible, and will give myself enough room so that someone else's choice of disorder won't completely undermine what I need to accomplish.
If you choose not to decide, you still have made a choice.
You can choose from phantom fears and kindness that can kill;
I will choose a path that's clear-
I will choose Free Will.
The other day, a massive failure to accomplish a task upon which I relied was explained to me as the result of unforeseen circumstances. It wasn't quite true. Getting hit by a truck is an unforeseen circumstances. Making overly optimistic promises which you chose not to keep when time or interest gets tight is not an unforeseen circumstances. It's life.
There is a difference between explanations and excuses. When something doesn't go as intended, which happens despite best efforts and planning, there is either an explanation or it was just a screw-up. If the former, then there is a reason. If there is no reason, then it's a screw-up. Yes, screw-ups happen. No, they don't have to. Are they your fault? Yes. That's why we call them screw-ups.
Excuses are a different animal. Excuses are explanations that shift the fault onto the party who caused the problem. Most are imperfect, in that fault is born by more than one party, often all parties, who either failed to do what they should have, or said they would, as well as parties who failed to anticipate or accommodate the chaos wrought by others involved. See how that works? We knew that other people screw-up, and so we assume the responsibility of inserting that potential in our equation of order. When we organize our world, we do so in anticipation of entropy.
It's all a choice. Frankly, the failure to realize this, to conduct oneself as an island of order in a world tending toward chaos, to both live an ordered life and recognize that others don't or won't, is a choice. If you want to do what you can to do better, be more responsible, keep your promises to others despite reliance on those who infuse their chaos into your world, you can. But you must make the choice.
It's hard to fight entropy, but those who do keep the world running.
* The title is brazenly stolen from Buzzfeed's 21 Jokes Only Nerds Will Understand.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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Evernote and the Organized Lawyer
Many people, including lawyers, are using an organizational tool called Evernote and are singing its praises. They are enthusiastic about its capacity to capture all types of information in many formats, to organize information into useful notebooks, and to enable access to that information across multiple platforms. In a time when almost everything is done online, Evernote is a user-friendly web service that can help lawyers stay organized, freeing up time for marketing and taking on new clients.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell talk about their own use of Evernote and how Evernote might work well for you in a legal practice. They examine photo recognition, scanning business cards and connecting to LinkedIn, collecting and organizing information for case research, and many more ways in which Evernote can make an attorney's life more efficient. They also discuss downsides to using the tool; there are ethical dilemmas that incur when retaining sensitive client information in a cloud-based tool.
Kennedy and Mighell also briefly reflect on how printing physical copies has changed and how lawyers will think of hard copies in the future. Stay tuned for Parting Shots, that one tip, website, or observation that you can use the second this podcast ends.
Special thanks to our sponsor, ServeNow.
In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell talk about their own use of Evernote and how Evernote might work well for you in a legal practice. They examine photo recognition, scanning business cards and connecting to LinkedIn, collecting and organizing information for case research, and many more ways in which Evernote can make an attorney's life more efficient. They also discuss downsides to using the tool; there are ethical dilemmas that incur when retaining sensitive client information in a cloud-based tool.
Kennedy and Mighell also briefly reflect on how printing physical copies has changed and how lawyers will think of hard copies in the future. Stay tuned for Parting Shots, that one tip, website, or observation that you can use the second this podcast ends.
Special thanks to our sponsor, ServeNow.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2014/06/evernote-organized-lawyer
Study: Patent Awards Not as High as They Might Seem
Despite the headline-grabbing awards in patent infringement cases, recoveries actually have been fairly few and far between and, for the most part, not that big, according to a first-of-its-kind study released on Wednesday.
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District Court Cites Recent “Evolution” of Rule 23 Standards to Deny Class Certification Motion in Securities Action Based Upon Allegedly Misleading Registration Statement
In In re Kosmos Energy Ltd. Securities Litigation, No. 3:12-CV-373-B, 2014 U.S. Dist. LEXIS 36365 (N.D. Tex. Mar. 19, 2014), the United States District Court for the Northern District of Texas (Boyle, J.) denied lead plaintiff’s class certification motion in a consolidated action alleging claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (“1933 Act”), 15 U.S.C. §§ 77k, 77l(a)(2), 77o. The 1933 Act regulates registration and offering statements by holding issuers and other offering participants strictly liable for material misstatements and omissions. Reliance is not an element of the claim. Plaintiff’s class certification motion rested on the notion that 1933 Act claims presumptively deserve class treatment. The district court, however, rejected the continued vitality of this notion in light of the recent “evolution of the case authority on class certification” requiring “a more skeptical view with a more exacting review process.” The district court’s decision recognizes that, as with other substantive areas of law, this “evolution” applies in securities law cases. Hence, historically “pro-plaintiff” approaches to class certification in securities cases (including cases based on 1933 Act claims) must yield to the newly evolved class certification standards.
Defendant Kosmos Energy Ltd. issued a registration statement in connection with its IPO that allegedly misstated the performance of an offshore oil field. Plaintiff, a pension plan, which purchased stock in the IPO, brought 1933 act claims against Kosmos, the underwriting banks, and others. It also sought to certify a class of persons who purchased Kosmos stock “pursuant to or traceable to the IPO,” alleging a class period from May 10, 2011, the IPO date, to January 10, 2012, the date of the first lawsuit.
Defendants argued plaintiff failed to show it could adequately represent the putative class and that common questions of law and fact predominated over questions affecting only individual class members. Before addressing these grounds, the district court reviewed recent U.S. Supreme Court class-action developments. In its view, class certification has “evol[ved]” from a “presumptively pro-plaintiff” approach, allowing certification “based solely on the pleadings or on a modicum of evidentiary support,” to an entirely evidentiary-driven inquiry. It identified the U.S. Supreme Court’s opinion last year in Comcast v. Behrend, 133 S. Ct. 1426 (2013), as “the culmination of this movement.”
Turning to the question of adequacy, the district court agreed that some precedents had “presumptively favored finding class representatives adequate.” It, declared, however, that the U.S. Supreme Court’s decisions in Comcast and Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), “leave[] no doubt that plaintiffs can no longer rely upon the lax adequacy standards employed at times in the past. Instead plaintiffs seeking certification must produce actual, credible evidence that the proposed class representatives are informed, able individuals, who are themselves — not the lawyers –– actually directing the litigation.” Plaintiff did not do this. The district court blamed this failure on plaintiff’s misguided view that the new, stricter approach to class certification did not apply to its 1933 Act claims: “Ultimately, the Plan’s fatal mistake was that it apparently presumed its task here is lessened because of the securities law provisions under which this case is filed.”
The district court next addressed predominance. Plaintiff invoked precedents showing district courts favorably disposed to certifying classes in securities cases, arguing that Comcast’s evidence-based approach to Rule 23 was limited to antitrust and other non-securities cases. The court disagreed. “While it is true that courts have, at times, noted that cases brought pursuant to §§ 11 and 12 of the 1933 Act are ‘especially amenable’ to class certification and resolution, ‘it does not follow’ from such isolated statements ‘that a court should relax its certification analysis, or presume a requirement for certification is met, merely because a plaintiff’s claims fall within [the same] substantive categor[y].’”
The district court noted that plaintiff proffered no evidence showing common-question predominance. In contrast, defendants introduced evidence suggesting the availability of a limited, 1933 Act affirmative defense — investor knowledge of the alleged untruth or omission at the time of purchase — that, if adjudicated, would cause issues to predominate over common questions. Specifically, via an expert’s report, defendants introduced an event study showing 14 instances of negative, new information regarding the oil field’s performance entering the market after the IPO date but before the close of the class period, suggesting varying degrees of investor knowledge across the class period. The court noted that the need for individualized affirmative defense inquiries ordinarily cannot defeat class certification where evidence otherwise shows predominance. Here, however, plaintiff had presented “zero-evidence.” The district court denied plaintiff’s class certification motion.
Kosmos makes an emphatic point regarding the application of recent Supreme Court class action decisions to securities cases generally. It specifically identifies Comcast as foreclosing “presumptive” approaches to Rule 23 in securities cases. In other words, it recognizes that any approach that relieves the plaintiff of the Rule 23 evidentiary burden it would otherwise bear stands at odds with Comcast. This observation is particularly cogent as the Supreme Court will soon decide in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317 [see blog article here], whether to overrule or modify Basic Inc. v. Levinson, 485 U.S. 224 (1988), which adopted the fraud-on-the-market presumption of reliance to permit class actions in cases brought under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b).
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