Friday, April 30, 2010

Judge Says No to Obama Subpoena

Chicago Sun-Times
Ruling comes after ex-gov's aide Lon Monk pleads guilty to bribery charge

 Lon Monk
 
A federal judge in Chicago has denied a request from lawyers for ousted former Illinois Gov. Rod Blagojevich to subpoena President Obama to testify in Blagojevich's upcoming corruption trial.

"The testimony of the president is not material to this case," U.S. District Judge James Zagel said today in issuing the ruling.

Zagel said he might be willing to reconsider the issue during the course of the trial — which is set to begin June 3 — if Blagojevich's lawyers submit more evidence that they need Obama's testimony.

The ruling came on the sameday that Blagojevich's onetime chief of staff and running buddy Lon Monk pleaded guilty today for a second time to crimes tied to the Blagojevich administration.

Monk, 51, admitted to conspiring to solicit a bribe from a horse-racing businessman for a campaign contribution in exchange for getting a bill signed.

Monk is cooperating with investigators and pleaded guilty again after prosecutors filed new charges, crafted to deal with a possible future ruling from the U.S. Supreme Court that experts say could strike down the federal "honest services" fraud statute.

Monk has agreed to serve 24 months in prison.

Thursday, April 29, 2010

An Inspector Pleads Guilty -- We are ALL Vulnerable

nbc New York

 
 
A building inspector who admits he did very little inspecting has brought to light a situation that should alarm all New Yorkers.

The responsibility for inspecting New York buildings for lead and asbestos violations is divided among several city agencies. And, when something is found to be amiss, they don’t tell each other about it!

Saverio Todaro, a man licensed to assess asbestos and lead risks in building and construction sites throughout the city, admitted in federal court that, although he reported that he found no danger in more than 200 buildings, he had not performed even one test! This scandalous admission goes to the heart of what’s wrong with the bureaucracy’s approach to building safety.

According to The New York Times, Todaro’s fraud goes back at least a decade during which he submitted clean asbestos and lead test results for more than 200 buildings -- without doing a lick of inspecting. It raises the question of whether other inspectors have failed in their responsibilities too.

Did he conspire with others to cook the books on his inspections? Are there other phony inspections filed with city agencies?

Dick Dadey of Citizens Union told me the story is “frightening.” He pointed out that Todaro’s inspection license was suspended in 2004 by the city’s environmental agency for improper building surveys and poor record keeping. But other agencies involved in safeguarding the public were not notified.. The others are: the Department of Housing Preservation and Development, the Department of Buildings and the Health and Mental Hygiene Department.

Said Dadey: “This man had trouble in 2004. What’s shocking is that this information was not shared. Had it been known by other agencies, this might not have happened.”

Daniel J. Castleman, the former chief assistant to the previous Manhattan District Attorney, Robert Morgenthau, called the situation a “disaster.”

He put it to me this way: “Why should four agencies have the responsibility? That is too diffuse. In such a situation, things are bound to happen because nobody has sole responsibility.”

Castleman noted that there were 500 licensed asbestos inspectors and 1,500 asbestos inspectors in the city. There are only 14 inspectors, he said, who work directly for the city. Thus, the inspection of buildings is carried out mainly by private inspectors.

Castleman deplores the fact that “there’s no audit function for private inspectors.” In his 30-year career as chief assistant in the Manhattan DA’s office, Castleman brought racketeering and fraud charges against New York concrete contractors hired to test the strength of concrete at some of the biggest construction projects.

“Obviously,” he said, “there will always be those who take a shortcut to make money, whether it’s in the inspection of lead or asbestos, concrete construction or steel.’

Asbestos exposure has been related to lung cancer and other ailments. Young children are especially susceptible to lead poisoning, which can affect brain functions.

The revelations about the way building and site inspections are carried out is a horror show. In a city with a 64 billion dollar budget, one is bound to wonder what other irregularities are there.

And you and I -- and 8 million New Yorkers are the potential victims. The Bloomberg administration and the Charter Commission need to reform government so inspectors are monitored properly.

It seems so simple. Yet, in decade after decade, greed and corruption have been tolerated in some of the most critical areas of government.

This is an area cries out for reform.

Wednesday, April 28, 2010

Lawn Mower Class-Action Suit Alleges Widespread Fraud

The Washington Post

 
If you bought a lawn mower in the past 16 years, there's a very good chance that a flimsy little postcard recently fell through your mail slot. And what an interesting little postcard it is, alleging as it does widespread fraud by the lawn mower industrial complex.

While companies such as Briggs & Stratton, Toro, Honda and Tecumseh deny the charges, they have nevertheless agreed to a settlement that has them collectively forking over $65 million. If you decide to join the class-action lawsuit, your share could be up to $35 for a walk-behind lawn mower and up to $75 for a riding mower.

I got a postcard, and it left me scratching my head, so I called up the relevant documents and spoke to some of the people involved. It sure beat mowing the lawn.

The case began in 2003, when a character I like to call Deep Cut walked into a Minnetonka, Minn., law firm and said he was privy to some interesting information. Deep Cut worked for a company that made lawn mower motors, and he said the engines' horsepower ratings were bogus.

We are a nation obsessed with horsepower, not just in our vehicles but in our tools. It is the currency of the lawn mower, more important than cut width, height adjustment, mulching ability, even -- in the case of riding mowers -- cup holders. If you've ever shopped for a lawn mower, you've stood in Sears wondering whether to get the 5 horsepower walk-behind or splurge on the 6.

Deep Cut said there was no difference.

"You're in there paying to get the same product for more money," said Vincent Esades, the lead plaintiff's attorney in the class-action lawsuit. "Four-and-a-half horsepower, 5, 5 1/2 , 6.75 -- they're all the exact same engine. The price would go up with each one of those fictitious stickers."

Vincent's law firm joined forces with others across the country and went to work. One lawn mower company, MTD Products, quickly agreed to settle. "They don't make the engines, but they make the lawn mowers and sell to Home Depot and Lowe's," Vincent said. "They came to us and said 'There' s a great problem in this industry. . . . We think this industry needs to be cleaned up.' "

According to a settlement agreement MTD signed in 2006, the company agreed to provide the plaintiffs with "documents, witnesses and other information." Said Vincent: "If you can't break into the inner circle, you'd never know."

Big Mow had been breached.

The final approval hearing is set for June 22 and the legal odyssey is almost at an end. Some 23 million postcards were mailed out, the recipients culled from the customer records of retailers and manufacturers. If every single one of those consumers signs on to the suit, the $65 million won't go very far. About 340,000 claims have been made, Vincent said. The lawn mower companies have also agreed to extend warranties for a year and change the way they test and report horsepower.

For their efforts, Vincent and the other lawyers are asking the judge for a third of the $65 million, plus an additional $14 million. That's about $36 million.

"The irony is, I had to get a lawn mower," Vincent said. He bought the one with the lowest horsepower.

Bank error in your favor


Vienna's Amy Roland figures that for about half an hour Tuesday morning, she was one of the richest women in America.

She'd gone to the TD Bank on Maple Avenue and deposited a check for $425. When she got home and checked her balance online, she saw a nine-digit number. The teller had apparently punched in Amy's account number in the deposit field, not $425. Amy immediately called her husband, Lacey, to tell him she had roughly $39,900,000 in her checking account.

"I thought, 'Oh my gosh,' " said Amy, a translator for the deaf for Arlington public schools. "Then I started thinking, 'Is someone laundering money through my account?' "

Would you have immediately packed your bags, bought two tickets to Buenos Aires and written a check for your own hacienda? Amy didn't. She went back to the bank and straightened things out with the manager. "I really love TD Bank, and I don't want to give them a bad name," she said.

Lacey is in construction sales and also is a singer-songwriter. He agreed this was good material for a song, then riffed some possible titles: "Our Ship Came In, but Not Close Enough to the Dock." "Easy Come, Easy Go." "Riches to Rags."

Tuesday, April 27, 2010

Freelancers Fight to be Paid

The Wall Street Journal
As more people turn to freelance and independent consulting work, they're taking on an unexpected role: bill collector.


Christopher Santini has spent months trying to collect 
$35,000 he says he is owed for freelance work.
 
 
For New York business consultant Christopher Santini, the pursuit for payment from one client has practically become a second job. Last May, a small business he consulted for went through a merger, and the new company fell behind on payments to him. Now, Mr. Santini, who's been a freelance consultant since 2008, says he is owed about $35,000, which would have accounted for almost 40% of his annual income last year.

"I started to get the standard run around," says Mr. Santini. "The secretary would tell me the person I needed to speak to was out. Finally [they] started to ignore me and not return emails or calls."

Mr. Santini says he has spent 80 hours calling and emailing company officials. He discussed the case with a lawyer, but decided not to bring it to court. Instead, he is still working to get the client to pay up on his own.

About 40% of freelancers had trouble getting paid in 2009, according to a survey released in mid-April by the New York-based Freelancers Union, a 135,000-member organization for independent contractors across the country in fields such as media, technology, and advertising. It was the first year the group asked the question on its member survey. And more than three out of four freelancers said they've had trouble getting paid over the course of their careers over the course of their career, according to organization.

The problem could become more acute as independent contractors emerge as a more central piece of the work force. The financial crisis and the resulting high unemployment thrust many professionals into the ranks of freelance workers, which may continue to grow despite signs of an economic recovery.

Littler Mendelson, a San Francisco-based employment law firm with 49 offices nationwide, predicts that in 2010 half of previously eliminated positions filled will be filled by contingent workers—such as independent contractors, freelancers, and temp workers—accounting for as much as 25% of the work force nationwide— based on client interviews and a survey conducted by a staffing analysis firm.

Since independent contractors aren't covered by most federal employment laws, they don't enjoy the same legal protections on wages as permanent employees, says a spokesman for the Department of Labor. If a permanent employee doesn't get paid, federal or state labor departments can fine companies and even prosecute company executives. But independent contractors often have to turn to the court system, in most cases small claims, if they go unpaid.

To some, small-claims court can be more trouble than it's worth, says Sara Horowitz, executive director of the Freelancers Union. Depending on the state, it will cost about $50 to file a claim and it can take months for a case to be heard. Even if a freelancer wins, small-claims judgments must be collected by the plaintiff.

Even before going to court, freelancers can spend significant time building their case. In January, Medford, Mass., artist Charles Leo sued a California-based coffee shop and kiosk manufacturer for $1,150, the agreed-upon fee of architectural renderings of a coffee shop he was never paid for. Mr. Leo says he spent more than 60 hours creating the renderings—and 40 hours trying to collect payment, gathering evidence and spending time in small-claims court. The judge ruled in Mr. Leo's favor and ordered the company to pay the fee, but didn't grant the $850 or so in punitive damages Mr. Leo requested for his time spent on the case. (The maximum judgment for small claims in Massachusetts is $2,000.)

"It was a piddling amount compared to the time I had to spend pursuing it," he says.

How can a freelancer avoid problems? Before accepting a job, freelancers can search consumer complaint Web sites like RipoffReport.com and industry discussion boards to make sure the company they're contracting with doesn't have a history of late payments, says Kate Lister, a former small-business consultant, and co-author of "Undress for Success: The Naked Truth About Making Money at Home."

Make sure to have the terms of payment and penalties for being late built into a written contract. Should a firm run into financial trouble, company officials typically give priority to the contractors who have spelled out fee-based consequences for a late payment, says Michelle Goodman, author of "My So-Called Freelance Life."

After a payment deadline has passed, immediately try to connect with the person responsible for payment by phone. If they don't respond, send a revised invoice with the agreed-upon fees or interest charges added on.

Where contractors go wrong is when they don't act fast at the first sign of a late payment. Freelancers "don't want to look like a jerk, but that's silly. This isn't getting a prom date. It's business," Ms. Goodman says.

Filing a complaint in small-claims court should be a last resort. As a last step before heading to small-claims court, send a simple letter with the amount, how long it's overdue and your intention to take it to court, Ms. Lister says, and copy your employment lawyer, a company board member and any relevant regulatory agencies. A complaint about a broadcast company, for example, could be copied to the Federal Communications Commission, which considers how a broadcaster treats its local community when granting certain permits, Ms. Lister says.

"You have to find those pressure points that will make someone really pay attention to your letter," she says.

If you get a judgment in your favor and the company doesn't send a check, you'll probably have to pay other fees to file liens, garnish the company's earnings, or hire a police officer to seize cash from the business, depending on the state. Keep in mind, if a company hasn't paid because it's under bankruptcy-court protection or doesn't have the money, you likely won't be able to collect.

For its part, the Freelancers Union launched an advertising and lobbying campaign urging employers to make good on unpaid freelance wages in early April. Ms. Horowitz says her organization is working on potential legislation to pass on to state lawmakers in New York to give free-lancers more legal recourse and create penalties for companies that don't pay.

As for Mr. Santini, he's now working out a payment plan with the firm's chief executive. "I don't know how many times I've been told 'The check is in the mail' or 'Your invoice went to my junk email inbox,'" he says.

Lawsuits Expected Over Arizona's New Immigration Law

Associated Press
 
 
 
The debate over Arizona's new illegal immigrant law will likely move from protest lines and talk shows to the courtroom, where a judge could be asked to decide whether the state can enforce laws that until now had been the federal government's exclusive domain.

Republican Gov. Jan Brewer, who signed the bill on Friday, said Arizona must act because Washington has failed to stop the flow of illegal immigrants and drugs from Mexico.

Opposition to the law grew Monday as opponents used refried beans to smear swastikas on the state Capitol, civil rights leaders and others demanded a boycott of the state, a petition drive began to put the measure to a public vote and the Obama administration weighed a possible legal challenge.

Activists are planning a challenge of their own, hoping to block the law from taking effect by arguing that it encroaches on the federal government's authority to regulate immigration and violates people's constitutional rights by giving police too much power.

The measure - set to take effect in late July or early August - would make it a crime under state law to be in the U.S. illegally. It directs state and local police to question people about their immigration status if there is reason to suspect they are illegal.

"If you look or sound foreign, you are going to be subjected to never-ending requests for police to confirm your identity and to confirm your citizenship," said Alessandra Soler Meetze, executive director of the American Civil Liberties Union of Arizona, which is exploring legal action.

Employees at the Capitol came to work Monday to find that vandals had smeared swastikas on the windows. And protesters gathered for an eighth straight day to speak out against a law they say will lead to rampant racial profiling of anyone who looks Hispanic.

Jon Garrido, who produces a Hispanic website and ran unsuccessfully last year for Phoenix City Council, told The Arizona Republic Monday he pulled organizing papers for a petition drive to repeal the law. A referendum would require the signature of 76,682 registered voters to get on the November ballot. If successful, the effort would block the law from taking effect until the vote.

President Barack Obama, who warned last week that the measure could lead to police abuses, asked the Justice Department to complete a review of the law's implications before deciding how to proceed.

Currently, many U.S. police departments do not ask about people's immigration status unless they have run afoul of the law in some other way. Many departments say stopping and questioning people will only discourage immigrants from cooperating to solve crimes.

Under the new Arizona law, immigrants unable to produce documents showing they are allowed to be in the U.S. could be arrested, jailed for up to six months and fined $2,500. That is a significant escalation of the typical federal punishment for being here illegally - deportation.

People arrested by Arizona police would be turned over to federal immigration officers. Opponents said the federal government could thwart the law by refusing to accept them.

Supporters of the law said it is necessary to protect Arizonans. The state is home to an estimated 460,000 illegal immigrants and is the nation's busiest gateway for people slipping into the country. Brewer has ordered state officials to develop a training course for officers to learn what constitutes reasonable suspicion that someone is in the U.S. illegally.

The crux of opponents' arguments is that only the federal government has the authority to regulate immigration.

"If every state had its own laws, we wouldn't be one country; we'd be 50 different countries," said Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund.

Kevin Johnson, dean of the law school at the University of California-Davis and an immigration lawyer, said such a lawsuit would have a very good chance of success. He said the state law gets into legal trouble by giving local law enforcement officers the authority to enforce immigration laws.

However, Gerald Neuman, a Harvard Law School professor, said Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

Kris Kobach, a University of Missouri-Kansas City law professor who helped write the Arizona legislation, said he anticipated legal challenges and carefully drafted the language. He said the state law is only prohibiting conduct already illegal under federal law.

San Francisco's city attorney has urged policymakers in the city to stop dealing with Arizona and Arizona businesses. Leaders in Mexico also demanded a boycott, as did civil rights leader Al Sharpton.

During a town hall meeting Monday in Tucson, Brewer dismissed the threat of a boycott, saying she doesn't believe the law is "going to have the kind of economic impact that some people think it might," the Arizona Daily Star reported.

The law has strong public support in Arizona, where passions have been running high since a rancher was killed close to the Mexican border last month, apparently by drug smugglers from across the border.

Monday, April 26, 2010

Court Strikes Blow to Wal-Mart in Sex Bias Case

Reuters
A landmark sex-discrimination lawsuit against Wal-Mart Stores Inc may proceed as a class-action case, a federal appeals court said, dealing the retailer a major blow and exposing it to billions of dollars of potential damages.




More than 1 million women could be included in the class, after the 6-5 ruling by the Ninth Circuit court on Monday.

Wal-Mart said it would appeal to the U.S. Supreme Court.

The original lawsuit, hailed by lawyers as the largest sex discrimination class-action in U.S. history when it was filed in 2001, claimed that Wal-Mart paid female workers less than male colleagues and gave them fewer promotions.

Wal-Mart, the world's largest retailer and largest private U.S. employer, had asked the Ninth Circuit Court of Appeals in San Francisco to undo class-action certification in the case that alleged discrimination in its more than 3,000 stores.

"It's a huge win for the plaintiffs, and a tremendous loss for Wal-Mart," said Paul Secunda, an associate professor of law at Marquette University Law School. Given the number of employees involved and many years of pay at issue, he said "the amount of liability can be many billions of dollars."

The lawsuit's reemergence follows years of work by Wal-Mart to improve its image, from efforts to become more eco-friendly to mobilizing resources for disaster relief.

Wal-Mart shares closed down 0.9 percent at $54.04 on the New York Stock Exchange. Analysts said the small decline may reflect that fact that investors know the case still faces years of litigation.

NOT TOO BIG


The class action will now cover claims made by women who have worked at Wal-Mart since June 2001.

"Although the size of this class action is large, mere size does not render a case unmanageable," Judge Michael Daly Hawkins wrote for the majority.

A lower court will decide whether the claims of those who worked between 1998 and 2001 can join the class.

Both sides squabbled over the new size of the class in light of the court's ruling.

Theodore Boutrous, who argued the case for Wal-Mart in front of the Ninth Circuit, said the ruling in effect whittled the size of the class down from roughly 1.6 million to 500,000. Seligman disagreed, saying claims from only about 20 percent of the class had been remanded to the lower court.

Boutrous said the ruling contradicted "numerous" decisions by other federal appeals courts, as well as the Supreme Court.

"We do not believe the claims alleged by the six individuals who brought this suit are representative of the experiences of our female associates," Wal-Mart General Counsel Jeff Gearhart said in a statement.

The Ninth Circuit court also ordered the lower court to consider whether to certify the class for claims of punitive damages.

The six judges in the majority were appointed to the court by Democratic presidents, while four of the five dissenting judges were appointed by Republican presidents.

"No court has ever certified a class like this one, until now. And with good reason," Judge Sandra Ikuta wrote in the lead dissent. Absent evidence of companywide discrimination, she said "there is nothing to bind these purported 1.5 million claims together in a single action."

Also dissenting was Chief Judge Alex Kozinski, a leading conservative whose view could carry weight if Wal-Mart appeals. He wrote that the plaintiffs who make up the approved class "have little in common but their sex and this lawsuit."

NOT UNMANAGEABLE


Class-action lawsuits generally make it easier for groups of plaintiffs to sue well-heeled corporations and have led to large payouts by tobacco makers, and oil and food companies.

The suit originated with Wal-Mart worker Betty Dukes who sued for sexual discrimination in 2001 with six other plaintiffs. A trial judge certified the case as a class-action in 2004.

According to plaintiffs, female workers were routinely steered away from management positions and into such jobs as cashiers, with little chance for promotion. Court documents cite one woman who was told she was not qualified to manage because she could not stack 50-pound bags of dog food.

Charles Sullivan, a professor at Seton Hall University School of Law, who specializes in employment law, said Wal-Mart would face "huge economic pressure" to settle the case if the Ninth Circuit ruling was allowed to stand.

"Even if there is only a small chance it could lose at trial, the risk of having tens of billions of dollars of potential liability is too great," said Sullivan.

But he noted that the Supreme Court has been unsympathetic to large class-actions of late.

Thursday, April 22, 2010

Blagojevich Wants Obama to Testify at Trial

The Wall Street Journal

CHICAGO—Former Illinois Gov. Rod Blagojevich has asked a federal judge to subpoena President Barack Obama to testify at his corruption trial this June.

In a motion filed Thursday, Mr. Blagojevich contends that "President Obama has direct knowledge to allegations made in the indictment."

Mr. Blagojevich has pleaded not guilty to charges that he plotted to sell the Senate seat left vacant by Mr. Obama after he was elected president.

In the 11-page motion, Mr. Blagojevich's attorneys say that Mr. Obama has said no representatives of his had anything to do with alleged deals for the Senate seat. Those statements "contradict the testimony of an important government witness," according to the motion.

The alleged contradictory information had been redacted in Thursday's filing.

Mr. Obama is "the only one who can say if emissaries were sent on his behalf, who those emissaries were, and what, if anything, those emissaries were instructed to do on his behalf," the motion says.

Mr. Blagojevich contends that Mr. Obama may also have pertinent information about Antoin "Tony" Rezko, a government witness in the trial, who was found guilty in 2008 on charges of bribery fraud and money laundering but has not yet been sentenced.

Mr. Rezko and Mr. Obama became friendly in 1990 and Mr. Rezko helped Mr. Obama purchase his house in Chicago.

"President Obama's relationship with Tony Rezko is relevant and necessary," the motion says.

All of Mr. Obama's testimony would involve things that happened before he became president so would not involve executive privilege, attorneys for Mr. Blagojevich contend.

It is highly unusual for a sitting president to testify at a corruption trial but not unprecedented. Attorneys for Mr. Blagojevich cite cases in which Thomas Jefferson was ordered to comply with a subpoena in the trial of Aaron Burr and a deposition given by President Ulysses S. Grant in a criminal case.

More recently, in 1974 the Supreme Court held that President Richard Nixon was obligated to comply with a subpoena in criminal trials of his appointees resulting from the Watergate scandal and President Bill Clinton was deposed in 1996 in two criminal proceedings.

In deference to Mr. Obama's busy schedule and security demands, attorneys for Mr. Blagojevich said he can testify via video conference or deposed outside of court.

Texas AG's Appeal in Gay Divorce Case to be Heard

Dallas News

Texas Attorney General, Greg Abbott
 
 
Two Dallas men trying to end their Massachusetts marriage in Texas will be the subject of an appellate hearing today in a downtown courtroom.

The appeal pits Texas Attorney General Greg Abbott against family court Judge Tena Callahan, who accepted the case last fall and ruled that the state's ban on gay marriage violates the U.S. Constitution.

But a voter-approved state constitutional amendment and the Texas Family Code prohibit same-sex marriages or civil unions, and Abbott is arguing that a Texas court can't dissolve a marriage that it doesn't recognize.

Abbott said last fall that he was appealing the ruling "to defend the traditional definition of marriage that was approved by Texas voters."

Gov. Rick Perry, who backed the constitutional prohibition on gay marriage in 2005, has also said that he believes the ruling is flawed and should be appealed.

The Dallas men, identified only as J.B. and H.B. in court filings, had an amicable separation, said divorce attorney Peter Schulte, who represents J.B. He said the couple, who married in 2006 and separated two years later, simply want an official divorce.

Schulte wrote in a court filing that the state's arguments were an attempt "to mislead the court in an effort to pursue the attorney general's own political agenda."

In March 2003, a Texas court became the first one outside Vermont, another of the few states where gay marriage is legal, to grant the dissolution of a civil union. After a challenge by Abbott, the judge reversed his decision.

Wednesday, April 21, 2010

Woman Sues City Over HFD Incidents

Houston Chronicle

She alleges years of harassment and sexist retaliation


Jane Draycott appears at a 2009 news conference. Draycott's attorney is representing several other female Houston firefighters.
 
 
A female Houston firefighter who found threatening sexist and racist slurs in her quarters at a fire station last year sued the city Tuesday, alleging she has endured years of sexual harassment and faced retaliation when she complained.

The lawsuit, filed in Harris County state district court, lists numerous allegations of harassment against Jane Draycott leading up to the graffiti incident last July, including at least one instance of unwanted sexual advances that went unpunished.

“When this thing first happened, she had no thoughts about filing a lawsuit,” said her sexual harassment attorney, Joe Ahmad. “She wanted to give the city and the fire department every opportunity to remedy the situation without the filing of the lawsuit.”

Ahmad said Draycott was severely mistreated in a botched “team-building” exercise that took place when she tried to return to work at the George Bush Intercontinental Airport station in January. After that, he said, her only avenue was the lawsuit.

The city's response to the incident, including an inconclusive investigation, the “team-building” exercise and a subsequent outside probe into HFD culture, have roiled the fire department. Former Chief Phil Boriskie abruptly resigned his post, returning to a district chief's position, shortly after Mayor Annise Parker criticized the handling of Draycott's return.

HFD spokesman Patrick Trahan said the suit will move the city “forward.”

“Firefighter Draycott has now enumerated her complaints,” Trahan said. “They can be addressed on their merits in the civil process.”

He declined comment on the individual allegations in the suit.
 
Pattern alleged

The lawsuit details more than 60 allegations of harassment or discrimination, including:

• • An incident in 2000 in which a male firefighter “grabbed her from behind and rubbed up against her,” climbed into Draycott's bed and made “sexually suggestive comments.” She later was ordered by a supervisor to file a formal complaint, beginning a process in which she was ostracized for years for reporting a comrade;

• • Two incidents in 2007, in which she found pictures of her children, including that of a daughter who had died in a car accident, had been removed from her locker, torn up and placed in the trash;

• • Several instances in 2008 when she was unfairly passed over for overtime shifts that she was qualified to work, shifts that were given to men;

• • A pattern of alleged harassment, previously reported in the Houston Chronicle, at Station 54 in the six months before the graffiti incident, including one time when the cold water was turned off in the women's showers and another in which a firecracker was rigged to explode when a stall was opened in the women's restroom.
 
Mayor responds

The suit brought by Draycott's attornies also faults the city's investigation of the graffiti incident, alleging that not everyone who had access to the vandalized areas was interviewed and that the probe focused solely on her.

An Office of Inspector General Investigation into the July 7 graffiti incident concluded last month, substantiating the allegations but finding no suspects.

Mayor Parker said in a statement that Draycott, who has been on leave except for two brief interludes in the past nine months, is scheduled to return to Fire Station 54, where the vandalism occurred, on Monday.

“I plan to do everything in my power to ensure that we provide a safe, respectful and welcoming work environment for all firefighters,” the mayor said. “There is at least one firefighter who knows what happened, but there have been firefighters who have been unfairly tainted as a result of this event. We need to focus our attention on firefighters who work every day to keep Houstonians, and their homes, safe.”

Ahmad said Draycott's return was not a certainty, as he continues to have a number of concerns he wants to discuss with the city first. Those include whether he will be allowed to be present and whether firefighters who participated in the “team-building” exercise in January and urged Draycott to leave the station will be working with her.

Tuesday, April 20, 2010

Alaska Reaches Deal with Cruise Lines on Passenger Tax

USA Today

 
Word from Alaska is an agreement has been signed for cruise lines to back off on their federal lawsuit over a controversial passenger head tax. But all hinges on the state legislature agreeing to lower the charge to cruise lines for doing business in the state.

The deal, signed Sunday by the Alaska Attorney General and Alaska Cruises Association President John Binkley, says the suit will be dropped if a reduction in the head tax is signed into law this year.

Alaska Governor Sean Parnell has recommended lowering the fee paid by the lines from $46 to $34.50 per cruise passenger, as well as deeper offsets for local taxes in Juneau and Ketchikan. The agreement reached Sunday, reportedly allows, though, for other bills to also be considered.

The Alaska Cruise Association has blamed the head tax for a cut in ships this year, for a total estimated loss of 142,000 passengers.

Reportedly, another term of the agreement is that the cruise lines would agree to help market the state as an "attractive" destination and increase cruises departing from Anchorage and other major cities.

The lawsuit would proceed if the changes in the tax are not made. Alaska voters approved the controversial head tax in 2006.

Sunday, April 18, 2010

AP Exclusive: How the Pope got his US Lawyer



The Vatican has long let cardinals or its official spokesmen do its talking when scandal hits.

But as the Vatican reels from a swirling clerical sex abuse crisis, the Holy See has turned to an unusual advocate: a tennis-loving, Saab-driving solo practitioner from Berkeley, Calif., whose obscure interest in sovereign immunity law and fluency in Italian landed him the job of the pope's U.S. lawyer.

Jeffrey Lena's studied yet creative approach to defending the Vatican in U.S. abuse lawsuits has influenced the Vatican's new public message as he is increasingly called on to act as Rome's unofficial U.S. spokesman and strategist.

In an exclusive interview Saturday with The Associated Press, Lena conceded he never thought he'd be the Vatican's lawyer much less it's very public messenger.

"Two weeks ago I was a lawyer minding my own cases. That's not what's happening now," Lena said.

Still, the 51-year-old former history professor avoids the limelight. He declined to be photographed for this profile, citing security and privacy concerns for his wife and son. He says he has received threats because of his advocacy for the Holy See and has moved his three-person law office to an undisclosed location in Berkeley.

The threats stem from the controversial nature of the cases brought against the Vatican in the U.S. over the past 10 years: before the clerical abuse lawsuits targeting the Holy See, Lena defended cases in which the Vatican bank was accused of stashing Nazi loot.

Lena recalls that when looking for co-counsel to represent the Vatican bank, several large firms declined because they didn't want to defend a Holocaust claims suit.

"It deepened in me a sense of the importance of defense work when you could have effectively prominent law firms refuse to serve a client because they thought it was too controversial for their bottom line - that it might affect their image. That annoyed me."

So Lena agreed to go solo - albeit with some help. An initial collaboration with law professor Ugo Mattei broke off. Lena now works with two main allies in a two-room, nondescript office near the University of California, Berkeley, campus with law books, an unused coffee pot and Nilla wafers on the shelves.

Their latest project: defend Pope Benedict XVI against allegations that he personally, and the Vatican generally, turned a blind eye to decades of rapes and molestation of children by priests. The Vatican has vehemently denied such reports, saying the pope has done more than anyone to root out abusers.

"What is most important for people to know is that he does understand, that his heart is moved," Lena said. "He has seen the files, he gets it, and indeed he got it long before most others did."

Though raised in a Catholic family, religious conviction doesn't seem to fuel Lena's defense. He notes that no one at the Vatican ever asked about his faith.

Lena grew up in Berkeley in the 1960s and 70s, the third son of second-generation Italian/Irish immigrants. His father was a public school teacher and his mother was a social worker. They prized books and open discussions as well as roll-up-your sleeves manual labor.

"I did grow up in a family in which intellectual work was admired and physical work was expected," he said, alluding to his lifelong interest in building and renovating houses.

After graduating with honors from the University of California, Santa Cruz, Lena entered Berkeley's history Ph.D. program in 1984. He completed everything but his dissertation before being drawn to the law after helping his father in a messy family estate problem.

He spent a year of law school studying at the University of Milan where he discovered comparative law, how ideas circulate among different legal systems. It would be key to his later work defending the Holy See, with its own juridical system and canon law, in U.S. courts.

Lena was teaching contracts at the University of Turin in 2000 when he was asked to submit his advice on a clamorous lawsuit that had just been filed near his hometown in San Francisco.

Holocaust survivors from Croatia, Ukraine and Yugoslavia had filed suit against the Vatican bank, alleging that it accepted millions of dollars of their valuables stolen by Nazi sympathizers.

Just who asked Lena to take on the case? All roads point to Franzo Grande Stevens, one of Italy's best-known and respected attorneys, dubbed "l'avvocato del'Avvocato" - the attorney of the late Fiat chairman Gianni Agnelli.

Grande Stevens was also the lawyer for the Vatican bank, formally known as the Institute of Religious Works, and the lawyer for the Vatican City state.

Grande Stevens didn't respond to e-mail requests for comment and Lena declined to say if Stevens made the request.

But in a letter to La Stampa newspaper last week, Grande Stevens channeled virtually all of Lena's key defense strategies in the U.S. sex abuse cases to complain about a profile the paper had run on Lena's main U.S. adversary, Jeff Anderson.

The Holocaust claims suit against the Vatican bank was dismissed in December after an appeals court upheld the bank's immunity under the foreign sovereign immunities act, one of at least 12 published federal decisions Lena has won in the area of sovereign immunity.

Given Lena's past, his newfound role as public defender of the pope causes some pause among his friends, who describe him as a reserved history grad student Berkeley with a "playful" intellect who can deconstruct ideas with ease.

"I do think with some people think he's gone to the dark side," said Maura O'Connor, an associate professor of history at the University of Cincinnati who met Lena in 1985. "The emotional reaction is he's defending this. But he's not. ... If the Vatican is needing legal advice, he's giving it."

The Vatican's selection of the unknown and untested Lena ruffled some feathers among the small coterie of U.S. attorneys - most of them Catholics at big law firms - who were representing dioceses in sex abuse lawsuits.

"It was not jealousy. More a feeling 'how could there be somebody out there who had this expertise and we had never heard of him?'" said James Geoly, attorney for the archdiocese of Chicago who is representing a defendant in an Oregon suit naming the Holy See.

"There was definitely a 'getting to know you' period. But very quickly Jeff established himself with all the major diocesan attorneys of the U.S. and they know him and respect him highly," he said.

So do Lena's opponents.

Anderson, who is suing the Holy See in Oregon, said he expected the Vatican would have hired a "white-gloved, blue blood," corporate firm.

"He's not a bigshot in a big firm but he's a formidable lawyer," he said.

Victims' attorney Kelly Clark went up against Lena in a deposition of Cardinal William Levada, the former archbishop of Portland, Oregon, and now a top Vatican official. Levada was asked to testify in a 2006 deposition to attorneys handling dozens of lawsuits against the archdiocese claiming abuse by Oregon priests.

Clark had few complaints about the deposition, but said he was surprised by all the "interference" thrown up by Lena prior to the deposition to limit what could be asked. Since Levada is an official of a foreign sovereign, he enjoys immunity as an official.

In the end, the judge limited Levada's testimony to his time in Portland.

"The problem was that ignored a very real legal theory that we were pushing which was that institutional knowledge of the child abuse problem can't realistically be limited to diocese by diocese knowledge," Clark said. "You have to be able to say what did the institution as a whole know."
Lawyers for victims charge that Rome mandated policies to keep abuse secret.

Lena said the judge was correct because she recognized that dioceses are independent of the Holy See.

"The pope is not a five-star general ordering troops around," Lena said. "Diocesan bishops are not agents or vicars of the pope at all. A bishop's authority comes from his office. It is the bishop who controls his diocese and what happens."

Thursday, April 15, 2010

Negative eBay Feedback Triggers Lawsuit

Herald Sun (Australia)
An online shopper is being sued for more than $15,000 for posting negative comments on eBay about a man who sold him a broken clock.


Michael Steadman accused Elliot Miller of having the "ethic of a car salesman" after the $US44 clock arrived in pieces, Florida Today reported.

Mr Miller, a lawyer, claims the negative feedback has ruined his "100 per cent" eBay rating and commericial reputation and is suing for damages.

Mr Steadman said that the case had so far cost him $US7000 in legal fees.

"It's not safe to say anything online," he told Florida Today. "Because I don't have the money to fight, I'm losing. It's not right."

Mr Steadman was looking for a clock that would time stamp his employees cards for his welding business in Cape Canaveral.

He spotted one on Mr Miller's eBay page, which sells electrical components and hardware, and sent off the $44.

However, the clock arrived in three shipments and the parts appeared to be from different models and were incompatible, he said.

He filed a complaint with eBay and got his money back, but said he wanted to leave the negative feedback to warn other potential buyers.

Mr Miller says in his lawsuit that the clock was "plainly offered for sale with the following language: 'We cannot give you any guarantees and must offer it on an as-is, where-is basis only'."

IRS Blamed in Wrongful Death Suit

Associated Press

A northern Indiana man has filed a lawsuit blaming the U.S. government for his wife's suicide three days after Internal Revenue Service agents raided their home, saying she couldn't go on living in fear of the agency's trumped-up accusations.

"Being innocent is simply not enough for the government," Denise Simon, a 50-year-old mother of six, wrote in a suicide note posted on a memorial Web site set up by her widower.

In documents filed Tuesday in U.S. District Court in Fort Wayne, government attorneys denied any responsibility for Simon's death.

Department of Justice spokesman Charles Miller could not immediately say whether any charges had been filed against Simon. He declined to comment on the case.

James Simon, 57, sued the government in February, accusing the government of intentional infliction of emotional distress, negligence in obtaining and executing a search warrant, trespass, invasion of privacy and wrongful death. His lawsuit seeks unspecified damages. A similar lawsuit was filed earlier against IRS agents involved in the raid.

Court documents say Denise Simon and the couple's 10-year-old daughter were the only ones home when about 10 armed IRS agents in bulletproof vests raided the Simons' Fort Wayne home at about 7 a.m. on Nov. 6, 2007. James Simon, who maintains a secondary residence in Ukraine, was outside of the United States on business.

His lawsuit alleges that an IRS agent misstated facts and made misleading statements concerning the receipt of farm subsidies and the handling of a family trust to obtain a search warrant from a federal judge.

The suit alleges that another IRS agent improperly accused Denise Simon of wrongdoing during the raid, "causing unnecessary emotional stress."

"I am truly innocent of any attempt to evade taxes, launder money, commit fraud or any of the other things I am being accused of," Denise Simon wrote in another suicide note. She left suicide notes addressed to her husband and each of her children, ages 10 to 19, all of which were posted on the memorial Web site, http://rememberdenise.org.

James Simon's lawyers claim the IRS violated its own policies by not using a less intrusive method to obtain evidence. It cites IRS policy that search warrants are to be used only when evidence cannot be obtained any other way.

It also maintains that the search unnecessarily endangered the Simons' daughter.

"I am currently a danger to my children. I am bringing armed officers into their home," Denise Simon, who was described as a dedicated homemaker and mother, wrote in one of the notes. "I am compelled to distance myself from them for their safety."

In the court documents filed Tuesday, government attorneys denied the allegations and insisted the search warrant was valid. They said Denise Simon's death was "voluntary and self-inflicted."

Denise Simon died of carbon monoxide poisoning Nov. 9, 2007, according to records at the Allen County coroner's office. Her death was ruled a suicide.

Susan Imler, a spokeswoman for the Fort Wayne law firm handling the suit, Beckman Lawson LLP, said no tax charges or penalties were assessed against the Simons after the raid, though the case remains under investigation.

Wednesday, April 14, 2010

3rd Circuit to Hear Arguments in Jets Fan’s Suit Against Patriots

Philadelphia Inquirer

 
To the ire of the New England Patriots and the NFL, Carl J. Mayer, football fan, Jets season ticket holder, and, most importantly, a lawyer with a like-minded colleague, has filed the lawsuit that won't die.

He's claiming the Pats and their coach, Bill Belichick, owe fans $184 million in compensation stemming from the infamous incident on Sept. 9, 2007, when a Patriot employee surreptitiously videotaped the New York Jets defensive signals.

Or as Mayer contends, "illegally recording, capturing and stealing the New York Jets signals and visual coaching instructions," thereby depriving ticket holders of an "honest match."

The lawsuit was widely derided and ridiculed when it was filed in 2007. A U.S. District Court judge in Trenton, New Jersey, tossed it out without a hearing. But the case is still alive because of the Third Circuit Court of Appeals in Philadelphia, which hears New Jersey cases. The higher court not only agreed to decide whether the potential class action case can go to trial, but selected it to be one of the relatively few cases to get an oral argument before a three-judge panel.

Kickoff is at 1:30 p.m. Wednesday.

While the NFL fined Belichick $500,000 and the Patriots were ordered to pay $250,000, Mayer wants ticket holders to get a triple refund for all eight games played between the Patriots and the Jets in Giants stadium from 2000 through 2007.

The Pats and the NFL, through their attorneys, have begged the court to toss the case. Their opinion?

"Frivolous." "Mockery of the judicial process." "The NFL respectfully submits that allowing this case to continue any longer would only waste more time, money and judicial resources," the lawyers said in court filings.

Even when Mayer and colleague Bruce Afran, both Princeton lawyers, twice missed filing deadlines - technically a reason to toss the case - the appeals court rejected pleas for a dismissal.

Apparently someone on the court finds the legal issues intriguing.

"For them to grant argument on a case like this is pretty unusual," said Burt M. Rublin, who specializes in appellate law at Ballard Spahr LLP. He is not involved in the case.

"The court generally reserves argument for cases that they find significant, because they have so many appeals," he said.

Like many attorneys, and not a few sports fans, Rublin recalls the news coverage when Mayer first went to court. "We all thought what a ridiculous law suit."

For pro-football, the suit is a potential nightmare. There are hundreds of rules governing player and team behavior on and off the field. And, "teams sometimes decide to break rules intentionally to gain a competitive advantage," noted the Patriots' lawyers.

"If every patron at every game could sue every time a team was offsides or took a cheap shot at the quarterback - or had a player that was found to have taken 'banned substances'," said a court filing, "every court in the country would be overfilled with class action law suits."

"That's absurd," Mayer said in an interview. He spent 10 years on the waiting list for a Jets season ticket. "They are trying to argue that its no different than an offensive lineman trying to hold someone."

Mayer and Afran contend that media accounts of the Patriots taping and information collected by U.S. Sen. Arlen Specter suggest the team was secretly tapped opposing squads from 2000 through 2007. That, says Afran, "rigged" the games in the Patriots favor. The Patriots did not respond to a request for comment Tuesday.

"This is a case involving fraud by the management of the team," Afran said in an interview. "One team is rigging it, because one team is getting an advantage over the other . . . Its the ticket holder who is defrauded."

The Patriots and the NFL want the court to uphold the 2008 decision of U.S. District Court Judge Garrett E. Brown Jr.

He read the suit, and in a seven page decision gave Mayer and Afran the back of his hand. "Plaintiff's ticket was redeemed, and he was able to see whatever transpired . . . on that date, in this case, a football game, and as a result Plaintiff got exactly what he paid for."

Ticket holders have no legal right to sue over the quality of the play, he concluded.

The NFL says Brown was "absolutely" right.

"The question is whether they have any right to monetary damages,' said Greg Aiello, a spokesman for the NFL said Wednesday, "and the judge ruled under the law they don't."

The NFL is a party because Mayer contends the league's decision to destroy the Patriot's cache of videos was, essentially, destroying evidence.

Mayer and Afran are not exactly minor leaguers. They've made a career of representing the little guy. Mayer describes himself as the "Lawyer for the People," and on his Web site says he "dedicates his law practice, writing and electoral efforts to ending the tyranny of corporate power over American citizens."

Afran once ran for the U.S. Senate from New Jersey on the Green Party ticket.

Mayer also concedes that if he and Afran weren't lawyers, there would likely be no case.

"It would very, very expensive," for anyone without their own law degree, he said. "The other side has an entire squadron they are throwing at this."

Montana's States' Rights Lawsuit over Gun Regulation Gets South Dakota's Support

Canadian Business Online

South Dakota will support Montana in a federal lawsuit asserting states' rights to regulate guns that are manufactured and sold within a state's borders, Attorney General Marty Jackley said.

The Montana law targeted by the lawsuit was the template for a bill approved by the South Dakota Legislature this year and signed by the governor. It says guns manufactured and sold within South Dakota are exempt from federal regulation.

Jackley said his office would file a friend-of-the-court brief in the Montana case.

"We joined because we can do it very cost-effectively, there is the impact directly to South Dakota because of our (firearms) manufacturers, and because we have a statute now in law that is very similar and could receive a very similar challenge," Jackley said.

The federal Bureau of Alcohol, Tobacco, Firearms and Explosives sparked the legal fight when it wrote to all licensed gun dealers in Montana last year telling them they were still bound by federal gun regulations.

The Montana Shooting Sports Association and other pro-gun groups then sued the federal government.
Attorneys general in Wyoming and Utah, which have passed similar laws, also are filing briefs supporting Montana.

"This is our ability to say to the Montana court that this is an important issue more than just in Montana," Jackley said. "We have similar legislation in South Dakota, we have similar concerns about the expansion of the federal government into states' rights, and therefore we want you to take a close look at this."

Montana was the first state to pass a "firearms freedom" law. The various states claim that as long as the guns aren't involved in interstate commerce, the federal government should have no say over them. The Montana trial is scheduled for December.

The chief sponsor of the South Dakota bill, Sen. Larry Rhoden, said the number of states considering similar legislation offset the sentiment of some lawmakers that fighting for states' rights is "futile."

"I think we convinced them that if we were going to take a run at states' rights and pick an issue and a hill to stand on, that this might be a likely candidate," he said.

Jackley said a federal court ruling in Montana would not be binding in South Dakota because the states are in different federal court circuits.

"But it certainly would set a very valuable precedence for us," he said.

Tuesday, April 13, 2010

Lawyer Threatens Lawsuit Over Canceled Ayers Speech

Associated Press

Subject of Controversy: William Ayers
 
 
A Denver lawyer says he'll sue the University of Wyoming unless it lets former 1960s radical William Ayers speak on campus.

David Lane sent the school a letter Monday saying he had been retained by student Meg Lanker. He contends the university violated the First Amendment when it canceled a speech Ayers was scheduled to give in March.

He gave the university until noon Wednesday to respond.

A university spokesman didn't immediately return messages left after business hours Monday seeking comment.

Lane previously represented former University of Colorado professor Ward Churchill, who was dismissed for alleged plagiarism and research misconduct following criticism of an essay in which he compared some 9/11 victims to a Nazi.

Monday, April 12, 2010

WWU Professor Pulled Back into '94 Murder Trial

The Seattle Times

In 1994, Carolyn Nielsen was a graduate student at Northwestern University's Medill School of Journalism when she wrote stories that questioned the trial and subsequent murder conviction of a 14-year-old Chicago boy.

In 1994, Carolyn Nielsen was a graduate student at Northwestern University's Medill School of Journalism when she wrote stories that questioned the trial and subsequent murder conviction of a 14-year-old Chicago boy.

Nothing came of it then. The boy, Thaddeus Jimenez, was sent to prison and Nielsen went on to become an assistant professor of journalism at Western Washington University.

But last year, after 16 years behind bars, Jimenez was exonerated of the crime by a group of lawyers who say Nielsen's reporting spurred their interest in the case. Jimenez, now free, has sued the Chicago Police Department for false arrest, claiming he was framed.

Nielsen was ecstatic at the exoneration, writing in her personal blog at the time that she had stayed in touch with Jimenez and his family over the years, and that Jimenez himself had called to say he was free. "It was the only instance in my journalism career in which I switched from reporter to advocate," she wrote on May 4, 2009.

"More than 14 years later, I still have my original draft, my notes and letters TJ [Jimenez] sent me when I interviewed him via mail," she continued.

That sentence caught the attention of lawyers representing the Chicago police officers being sued by Jimenez. Earlier this month they subpoenaed the documents.

On March 16, Nielsen called one of the officers' lawyers in Chicago and "requested several more weeks to respond to the subpoena," according to court documents.

When the attorney asked Nielsen if she had any relevant documents — not letting on that he had already read her blog — he claimed in a sworn affidavit that she became "very evasive."

The attorney, in a sworn affidavit, said he returned to look at Nielsen's blog and found the sentence had been deleted. The officers' lawyers worried Nielsen might attempt to destroy the notes, so they sought a court order protecting them in U.S. District Court in Seattle.

The officers believe the notes or letters may contain material that could help their defense, showing for instance that they had probable cause to investigate or even arrest Jimenez at the time, even if he hadn't committed the crime.

They cite as an example a letter introduced at Jimenez's 1994 trial in which he wrote a girlfriend that he was going to have a friend stop a witness from testifying "in anyway he has to, even if he has to kill him. It won't mean anything to me. And it only takes the pull of a trigger."

The lawyers for the officers hope to find similar documents that could be used to support the arrest of Jimenez.

Jimenez was 13 when he was arrested and charged with the fatal street shooting of an 18-year-old Chicago man.

Despite evidence that someone else was responsible — including a surreptitiously recorded confession by the killer and the statements of the killer's companion — Jimenez was charged, convicted after two trials and sentenced to 45 years in prison.

The case caught the attention of lawyers from the Northwestern Law School's Center on Wrongful Convictions in 2005. The following year two of the state's key witnesses recanted, including a young man who said police dragged him out of his bed in the middle of the night and interrogated him for hours — he was 14 at the time — until he agreed to say Jimenez was the shooter.

Last May, the Cook County, Ill., State's Attorney's Office filed a motion with Jimenez's lawyers seeking to vacate the conviction. Within hours, another man was taken into custody for the killing.

Jimenez sued the department and six specific officers who were involved in the investigation, alleging that he was framed.

The attorneys in Chicago defending the officers hired Seattle lawyers Anne Bremner and James Lynch, who filed the Seattle lawsuit.

On Thursday, Judge Marsha Pechman issued an order to Nielsen to "preserve all documents responsive to the defendant's subpoena." The judge also ruled that Nielsen has the right to challenge the subpoena.

Eric Stahl, one of Nielsen's attorneys, said Friday that Nielsen intends to fight the subpoena and will claim reporter's privilege regarding the letters and notes.

While there is no federal reporter's shield law, the 9th Circuit Court of Appeals has recognized that journalists enjoy some protection in revealing sources or notes, particularly if the material can be gathered elsewhere. Stahl has said the Chicago lawyers must show they can't get the material anywhere else before Nielsen can be asked to turn it over.

"It's our opinion that all of this material was gathered in the course of her being a journalist, and that a shield should apply," said Stahl, who works for the firm Davis Wright Tremaine, which represents The Seattle Times.

Nielsen said the whole affair is an overreaction.

In a telephone interview earlier this week, and in filings in U.S. District Court, she acknowledged she has the documents and promises their safekeeping.

"I am not quibbling with the preservation of anything," she said. "I was not evasive ... There were some things I just didn't think it was wise to talk to him about," she said.

Bremner said the whole thing could have been avoided if Nielsen hadn't removed that sentence referring to the notes and letters from her blog.

Nielsen declined to talk specifically about that. Nielsen would not say what is in the documents she has, or whether she will challenge the subpoena, but hinted that she's willing to fight.

"It doesn't matter what is in them," she said. "As a reporter, my notes are my notes."

Smith Estate Appeals Ruling on Oil Fortune

Associated Press

 
Lawyers for the estate of Anna Nicole Smith have appealed a ruling that gave her none of her late billionaire husband's fortune.

The appeal filed Thursday seeks a full review by the San Francisco-based 9th U.S. Circuit Court of Appeals and continues a case that has outlived both parties.

In a March 19 ruling, a panel of the court sided with a Houston jury that decided in 2001 that Texas oil tycoon J. Howard Marshall never intended to leave any of his $1.6 billion estate to Smith.

Marshall's will gave most of his estate to his son, E. Pierce Marshall.

David Margulies, a spokesman for the Marshall family, said Friday the family will continue to defend its case with the "same vigor and resolve it has in the past as this case hopefully nears an end."

Smith and Marshall married in 1994. He was 89 and she 26.

Smith had argued that her elderly husband had promised to leave her more than $300 million.

The case previously reached the U.S. Supreme Court, and attorneys for Smith's estate vow to again appeal to the nation's high court if necessary.

Smith died of a drug overdose in 2008 and named her 3-year-old daughter Dannielynn as heir.

The former Playboy model's ex-boyfriend Larry Birkhead and attorney Howard K. Stern were placed in charge of her estate.

Smith initially challenged the will in Houston probate court and lost.

However, a bankruptcy court in Los Angeles awarded her $474.75 million, which was later reduced to $89.5 million.

The legal dispute has centered on which court ruling to follow.

Saturday, April 10, 2010

Google a 'Brazen' Content Thief, Lawsuit Claims

Information Week
Illustrators and photographers say Google Books project is displaying their works without authorization and in violation of copyright laws.


 
Groups representing artists and photographers and several individual creative professionals have filed a lawsuit against Google, claiming the search giant's online book service violates content producers' copyrights.

"Google is engaging in massive copyright infringement," the plaintiffs alleged in papers filed by attorneys this week in U.S. District Court in New York.

The complainants, which include a well-known combat photographer and a respected childrens' books illustrator, claim Google "will continue its brazen acts of willful copyright violation" unless it's stopped by the court.

Google has struck deals with libraries at several top colleges, including Stanford and the Universities of California, Michigan, Virginia, and Wisconsin, to scan their entire collections and make them available online through its Google Books service. Google's also entered similar deals with several book publishers.

But the photographers and illustrators whose works are included in the books say Google never got their permission to reproduce the images electronically.

"Google knew or should have known that the Copyright Act required it to obtain authorization" from the creators, says the lawsuit, which was brought by the American Society of Media Photographers, the Graphic Arts Guild, Professional Photographers of America, and other groups.

The plaintiffs' roster also includes war photographer Leif Skoogfors and kids' books illustrator Simms Taback.

"Despite this knowledge, Google has unlawfully reproduced, distributed, and publicly displayed the visual works contained in the books and periodicals it has scanned andintends to continue to do so," the suit contends.

The plaintiffs are asking the court to enjoin Google from displaying the books in question on its Web site and fine the company up to $180,000 for each work it's found to have reproduced in violation of copyright laws.

Thursday, April 8, 2010

Law Limiting Medical, Legal Contact Overturned

Associated Press

 
A federal judge has overturned a Texas law that bars medical professionals from contacting victims within 30 days of an accident and lawyers from contacting people within a month of getting arrested.

U.S. District Judge Lee Yeakel ruled Friday that the law was unconstitutional and infringed on free speech. Legislators approved the law last year, saying it was aimed at unethical solicitations. The case was brought by a Houston lawyer and an Austin chiropractor.

Texas Attorney General Greg Abbott's office, which defended the law, was reviewing the opinion and had no immediate comment, a spokesman said Friday. The office has 30 days to decided whether to appeal the ruling.

Rep. Todd Smith, the Euless Republican who wrote the bill, said he hoped Abbott would appeal. Smith said in a statement that the bill was important "because we must protect the public from unethical and intrusive business practices by a small minority of unscrupulous attorneys and chiropractors."

In his ruling, Yeakel wrote that the chiropractor in the case and his patients showed that early medical treatment was beneficial to accident victims. The judge also said no evidence was provided "to suggest that medical treatment after 31 days is as effective as early medical treatment."

Yeakel also struck down banning lawyers' written solicitation of people who had been arrested or received a summons. The judge cited a higher court opinion that drew a distinction between the privacy due to accident victims or those in wrongful-death cases compared to those recently arrested.

"While a criminal or traffic (defendant) may be shaken by his arrest, what he needs is representation, not time to grieve," the judge wrote.

Attorney Martyn B. Hill, one of the plaintiffs, told the San Antonio Express-News that the ruling means a letter sent by a lawyer to someone who recently was arrested or received a traffic ticket is protected as free speech. Hill said the ruling also allows medical professionals to send truthful marketing to people within 30 days after an accident.

Monday, April 5, 2010

Third Strike Against Farmers Branch, Texas

Courthouse News Service 



For the third time, a Dallas judge has ruled that Farmers Branch, Texas, violated the Constitution by enacting an ordinance that banned undocumented immigrants from renting apartments in the city, and barred landlords from renting to them.
 
U.S. District Judge Jane Boyle said the ordinance was an attempt to enforce federal immigration laws, which only the federal government can do.
 
"Ordinance 2952 is a regulation of immigration and is preempted by the Supremacy Clause of the United States Constitution because the authority to regulate immigration is exclusively a federal power," Boyle wrote. "The ordinance applies federal immigration classifications for purposes not authorized or contemplated by federal law. As a result, the ordinance creates an additional restriction on alien residence in the city."
 
It was the city's third effort to drive Latinos out of town. The plaintiffs - Dallas apartment owners and tenants - called it racial discrimination. The city claimed it was an effort to support federal immigration law and to address the secondary effects of illegal immigration.
 
The ruling was praised by Lisa Graybill, legal director of the American Civil Liberties Union of Texas.
 
"The court's opinion confirms what we have known from the beginning of this fight, back in November 2006 - that Farmers Branch's effort to legislate in the realm of immigration is a quixotic attempt to circumvent federal law and clearly established precedent," Graybill said.
 
"With this third strike, hopefully the City of Farmers Branch will get out of the immigration enforcement business and move on to address its municipal obligations through more constructive and constitutional local policies."
 
The city's first failed effort, in 2006, sought to regulate rental housing by requiring evidence of citizenship or eligible immigration status for each tenant family in Dallas apartments. Ordinance 2892 also incorporated the HUD classification system on eligibility of non-citizens for housing assistance. Implementation was enjoined on Jan. 9, 2007 due to concerns relating to the Texas Open Meetings Act.
 
The city responded with its second law, Ordinance 2903, which repealed Ordinance 2892 but imposed substantially similar requirements for residential rentals and called for Farmers Branch residents to vote on the measure. City voters approved it by a 2-to-1 margin on May 12, 2007.

U.S. District Judge Sam Lindsay temporarily enjoined enforcement on May 21, 2007 and permanently enjoined it on May 28, 2008, ruling that was a regulation of immigration that is invalidated by the Supremacy Clause and that it violated due process rights of the 14th Amendment and was void for vagueness.


Friday, April 2, 2010

Feds Charge Florida Man in $53M Ponzi Scheme

Tampa Bay Business Journal


A Largo man convicted nearly 20 years ago of wire fraud and money-laundering charges has been arrested and faces new charges of wire fraud.

Michael Greenberg is accused of defrauding more than 30 individuals, financial institutions, his own family and the U.S. Small Business Administration, according to a release from the U.S. Attorney’s office for the Middle District of Florida.

Greenberg incorporated a company called Pure Class Inc. in 1998, two years after he was released from federal prison on his earlier conviction. In connection with the business, he obtained an automobile dealer’s license without disclosing his federal felony conviction, according to a criminal complaint filed in the U.S. District Court for the Middle District of Florida.

He then made false promises to induce people, businesses and banks to give him money in a Ponzi-style scheme, the complaint said. He received more than $53 million, with the scheme causing losses of about $24.6 million, the complaint said.

One of the financial institutions cited in the complaint is Patriot Bank of Trinity, which allegedly lost $915,000 to Greenberg. Other banks that allegedly lost money in the scheme were Wachovia Bank with a loss of $245,137 and Fifth Third Bank with a loss of $133,393.

Ronald Giglio, described as a corporate officer for SimDag Properties LLC, was defrauded of $1 million, the complaint said. SimDag was the developer of the failed Trump Tower Tampa project. Additionally, the office manager of the law firm Brad Souders PA, a civil trial litigation firm in Tampa, used the law firm’s equity line of credit to invest money in Greenberg’s scheme, resulting in a loss of $119,770, the complaint said.

If convicted, Greenberg faces up to 30 years in federal prison, the release said.

Thursday, April 1, 2010

Lawyers Must Point out Deals' Deportation Risks

USA Today


WASHINGTON — Attorneys must tell their immigrant clients if pleading guilty to a crime carries a risk of deportation, the Supreme Court ruled Wednesday in a decision bolstering the constitutional guarantee of effective assistance from a lawyer.

"It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel," Justice John Paul Stevens wrote for the majority. "Our long-standing Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the ... impact of deportation on families ... demand no less."

Seven of the nine justices agreed that the constitutional rights of a Kentucky drug defendant had been violated because his lawyer gave bad information about the possibility of deportation. Two members of the majority disagreed with Stevens' broad reading of the Sixth Amendment guarantee of effective counsel.

Justices Antonin Scalia and Clarence Thomas fully dissented.

The case of Padilla v. Kentucky had been closely watched by immigrants rights advocates concerned about how federal laws over the years has greatly expanded the types of crimes that warrant deportation.

Michelle Fei, co-director of the New York-based Immigrant Defense Project, said immigrants "often plead guilty unaware that the result would be permanent exile from their families and communities." She praised the court for recognizing that "deportation is an extreme penalty."

The U.S. Justice Department, which had argued that lawyers do not have to provide advice on the deportation consequences of a guilty plea, had no comment.

The Supreme Court case centered on Jose Padilla, a native of Honduras, who has been a lawful permanent resident for 40 years. Stevens noted that Padilla served in the U.S. military during the Vietnam War.

In 2002, Padilla pleaded guilty to transporting marijuana.

After agreeing to a plea deal, Padilla discovered that it exposed him to deportation proceedings. He claimed his lawyer told him that he "did not have to worry about immigration status since he had been in the country so long." He says he would not have pleaded guilty if he had not received the flawed advice.

The Kentucky Supreme Court ruled that the Sixth Amendment guarantee of effective counsel does not protect a defendant from bad advice about deportation. Like some other state and federal courts, the Kentucky top court minimized deportation as merely a "collateral" consequence of the guilty plea.

The Supreme Court's decision Wednesday treats deportation as a far more serious consequence. Stevens referred to the "steady expansion of deportable offenses" and said, "The importance of accurate legal advice for noncitizens accused of crimes has never been more important."

The justices returned Padilla's case to lower courts for proceedings on whether his attorneys bad advice sufficiently hurt his case to require a new hearing.

Joining Stevens were Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Chief Justice John Roberts and Justice Samuel Alito agreed that lawyers should not mislead an immigrant about deportation but disagreed with Stevens on how far the lawyer must go to explain potentially complex immigration law.

In dissent, Scalia, joined by Thomas, said the majority too expansively interpreted the protections against ineffective counsel. "The Constitution ... is not an all-purpose tool for judicial construction of a perfect world; and when we ignore its text in order to make it that, we often find ourselves swinging a sledge where a tack hammer is needed."