When you're hiring another attorney, don't think about how much bringing him or her on will COST. Instead, think about what revenues he or she will bring in. Take a look at this week's clips for more...
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/3U1vL9bXxXc/
Source: http://valawyersweekly.com/2014/01/02/court-enters-owners-draft-order/
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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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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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Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637032014&rss=rss_nlj
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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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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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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.
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.
Source: http://blog.simplejustice.us/2013/07/15/sound-the-retreat.aspx?ref=rss
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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Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631211450&rss=rss_nlj
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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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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.
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
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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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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.
Source: http://blog.simplejustice.us/2013/07/14/entropy-its-not-what-it-used-to-be.aspx?ref=rss
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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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