Wednesday, November 30, 2011

Lawsuit Against Microsoft Brings Gates To The Stand

Story first appeared in the Associated Press.

Microsoft's Bill Gates returns to the witness stand Tuesday to defend his company against a $1 billion antitrust lawsuit that claims the software giant tricked a competitor into huge losses and soared onto the market with Windows 95. A Boston Intellectual Property Lawyer was keeping himself posted as the case continued.

Utah-based Novell Inc. sued Microsoft in 2004. The company says Gates duped them into thinking he would include its WordPerfect writing program in the new Windows system, then backed out because he feared it was too good. A Frankfurt Intellectual Property Lawyer watched the high profile case closely.

Novell said it was later forced to sell WordPerfect for a $1.2 billion loss.

Gates testified Monday that Microsoft was racing to put out Windows 95 when he dropped technical features that would no longer support the rival's word processor because engineers warned it would crash the system. A Leeds Intellectual Property Lawyer thought that this appeared to be a reasonable answer.

Windows 95 was a major innovation, and Gates said he had his mind on larger issues. A Nashville intellectual Property Lawyer said this is not uncommon.

Gates said Novell just couldn't deliver a Windows 95 compatible WordPerfect program in time for rollout, and its own Word program was actually better. He said that by 1994, Microsoft Word was rated No. 1 in the market above WordPerfect. A Pittsburgh Intellectual Property Lawyer said she liked Microsoft Word.

WordPerfect once had nearly 50 percent of the market for computer writing programs, but its share quickly plummeted to less than 10 percent as Microsoft's own office programs took hold.

Microsoft lawyers say Novell's loss of market share was its own doing because the company didn't develop a Windows compatible WordPerfect program until months after the operating system's rollout. A San Francisco intellectual Property Lawyer agreed this would be a tough argument.

Gates called it an "important win" in an email to executives.

Attorneys for Novell, a wholly owned subsidiary of The Attachmate Group as a result of a merger earlier this year, concede that Microsoft was under no legal obligation to provide advance access to Windows 95 so Novell could prepare a compatible version. The Redmond, Wash.-based company, however, enticed Novell to work on a version, only to withdraw support months before Windows 95 hit the market, Novell attorney Jeff Johnson said. A Zurich intellectual Property Lawyer listen closely.

Microsoft lawyer David Tulchin argued that Novell's missed opportunity was its own fault, and that Microsoft had no obligation to give a competitor a leg up.

U.S. District Judge J. Frederick Motz late Monday denied Microsoft's request to dismiss the case. He said Novell's claims appeared thin but that he would let the case continue another month and allow a jury to decide. An Athens Intellectual Property Lawyer said a jury would have a tought choice to make.

Gates was the first witness to testify Monday in his company's defense after a month-long case by Novell. Cross-examination begins Tuesday.

Gates, a billionaire, began by testifying about Microsoft's history. He was just 19 when he helped found the company. Today, Microsoft is one of the world's largest software makers, with a market value of more than $210 billion. A Bucharest Intellectual Property Lawyer would like to have Gates as a client.

Vioxx Case Causes Merck to Plead Guilty

Story first appeared in USA TODAY.

Drug giant Merck has agreed to plead guilty and pay $950 million to settle criminal and civil charges over the marketing of the arthritis painkiller Vioxx, which studies showed increased the risk of strokes and heart attacks, the Justice Department has announced. A Charleston Defective Drug Lawyer was not surprised.

Merck pulled Vioxx from the market in September 2004.

The company pleaded guilty to a single misdemeanor charge of violating the Food Drug and Cosmetic Act for introducing a misbranded drug and will pay $321.6 million. An Indianapolis Defective Drug Lawyer said these are the types of cases he works on.

Merck will also pay $628.3 million to settle civil charges for off-label marketing of the drug and making false statements about its cardiovascular safety. The federal government will get $426.3 million and $201.9 million will be distributed to 43 states for Medicaid.

Read the full news release.

One Minneapolis Defective Drug Lawyer agrees that when a pharmaceutical company ignores FDA rules aimed at keeping our medicines safe and effective, that company undermines the ability of health care providers to make the best medical decisions on behalf of their patients. As this plea agreement and civil settlement make clear, some will not hesitate to pursue those who skirt the proper drug approval process and make misleading statements about the safety and efficacy of their products. A Salt Lake City Defective Drug Lawyer thought that he would consider seeing a client about this case.

In its statement, Merck emphasized the civil settlement first, noting that it does not constitute any admission by Merck of any liability or wrongdoing.

Some believe that Merck acted responsibly and in good faith in connection with the conduct at issue in these civil settlement agreements, including activities concerning the safety profile of Vioxx. A Savannah Defective Drug Lawyer does not agree with this belief.

Merck's release also notes that the United States acknowledged that there was no basis for a finding of high-level management participation in the violation.

Tuesday, November 29, 2011

Eyewitness Testimony Questioned

Story first appeared in USA TODAY.

Supreme Court justices on Wednesday challenged the notion that testimony from arguably unreliable eyewitnesses should be specially scrutinized at trial because of how it can lead to wrongful convictions.

Why is unreliable eyewitness identification any different from unreliable anything else introduced at trial, Justice Antonin Scalia asked during arguments in a New Hampshire case.

Eyewitness identification evidence is unique, responded lawyer Richard Guerriero. He represents a man whose theft conviction was based partly on the report of a woman who said she watched him out her apartment window. Guerriero called mistaken IDs the leading cause of miscarriages of justice.

Justice Elena Kagan said jailhouse informants could also create an especially unreliable category.

Longstanding national concerns about the trustworthiness of eyewitness accounts formed the backdrop of Wednesday's dispute. The American Psychological Association, which has entered the case on the defendant's side, says, Controlled experiments as well as studies of actual identifications have consistently found that the rate of incorrect identifications is approximately 33 percent.

Supreme Court cases dating to the 1960s have similarly stressed that eyewitness identifications are particularly untrustworthy and can lead to tainted jury verdicts and injustice. The question Wednesday is what safeguards for due process of law and fairness are necessary.

New Hampshire Attorney General Michael Delaney, urging the court to uphold the theft conviction, said identification evidence should be specially reviewed by a judge only when police obtained the ID through an unnecessarily suggestive police method — for example, in photos shown to a witness. The federal government and 29 states are siding with New Hampshire, urging the high court to leave the question of eyewitness reliability generally to a jury.

Wednesday's case arose after Barion Perry was identified by a woman watching from her window as a man peered into cars in a parking lot below, broke into one of them and took a stereo system.

A Nashua police officer who had been called to the scene stopped Perry when she saw him with a set of speakers. He said he had been there innocently and was just moving them. When another officer asked the witness in the apartment for a description of the person who broke into the car, the woman said it was the man in the lot talking to the other officer.

Appealing Perry's theft conviction, Guerriero said due process of law required the trial judge to specially review the witness's identification because Perry was standing next to a police officer when she identified him, possibly suggesting that police considered him a suspect.

Guerriero argued that special review of testimony is necessary when an identification is made under any suggestive circumstances, even those unrelated to police conduct.

Due process concerns arise, Attorney General Delaney countered, if it looks like police officers are essentially stacking the deck, putting their thumb on the scale and skewing the fact-finding process. He said police officers did not try to point the witness toward Perry.

Delaney noted in his brief that the witness was cross-examined at trial about the view from her fourth-floor apartment window and how it was partially blocked by a van, and that the jury nonetheless found Perry guilty.

Justice Stephen Breyer implied that no new judicial review should be required because judges already consider, before evidence is put to jurors, whether its relevance might be outweighed by the chance it would be misleading.

Justice Anthony Kennedy told Guerriero, he doesn't know what you want the police to do in this case. Kennedy said it might have been improper police conduct for police not to have asked the woman in the apartment who she saw in the lot below.

A ruling in the case of Perry v. New Hampshire is likely by the end of June when the justices usually recess for the summer.

Wednesday, November 23, 2011

Lawmakers Question MF Global Trustee’s Work on Lehman Brokerage

Story first appeared in Bloomberg News.

The trustee liquidating MF Global Holdings Ltd.’s brokerage came under fire from two Republican lawmakers who said he’s proven too slow at a similar task resolving the broker-dealer of Lehman Brothers Holdings Inc.

In a Nov. 4 letter to regulators, Representatives Ed Royce and Scott Garrett said they were concerned that the trustee, James Giddens, has been handling the Lehman liquidation for three years and made little progress returning money to customers and creditors. Meanwhile the process has cost more than $640 million, the lawmakers noted.

“As the trustee fees continue to mount” and the “resolution languishes, it is surprising that the very same trustee was recently selected to liquidate MF Global’s broker- dealer business,” the lawmakers wrote to U.S. Securities and Exchange Commission chief Mary Schapiro and Stephen Harbeck, the head of the Securities Investor Protection Corp.

Royce, of California, and Garrett, of New Jersey, both members of the House Financial Services Committee, said that although the Lehman case is more than three years old “no distributions have been made to customers, no settlements have been made with Lehman affiliates and no effort has been made to resolve unsecured claims against” the firm.

Harbeck’s group, known as SIPC, requested last week that Giddens, of the law firm Hughes Hubbard & Reed LLP, be named as the trustee for the MF Global brokerage liquidation. A federal judge approved the appointment on Oct. 31.

Retail Customers

John Nester, a spokesman for the SEC, which oversees SIPC, and Kent Jarrell, a spokesman for Giddens, declined to comment. Ailis Aaron Wolf, a spokeswoman for SIPC, had no immediate comment.

Most of the Lehman brokerage’s retail customers got access to their accounts within a couple of weeks of the bankruptcy after Giddens got them transferred to other firms. He’s now working on solving claims of hedge funds and other institutional investors.

Giddens, in a court filing last month, said he has gathered some $20 billion in the Lehman case and his goal is to “make a substantial distribution on customer claims, and to make interim distributions when it is possible to do so, possibly as early as the spring of next year.”

The bulk of the $642 million in expenses in the case have gone to consulting and financial advisory fees, according to the Oct. 21 court filing. Giddens and Hughes Hubbard have been paid about $169 million.
They’ve been working on the liquidation of Lehman Brothers Inc. since September 2008, shortly after the brokerage’s parent company filed the largest bankruptcy in U.S. history.

In their letter, Royce and Garrett said the “lack of progress” in that resolution “raises questions regarding what is expected of the trustee and the process by which these fees are approved.”

Employee Tries to Poison Restaurant Customers

Story first appeared in the Associated Press.

Animal medication was poured into a customers coffee with the intent to poison at a Big Boy restaurant in Ohio.

36-year-old Edwin Ledgard told Toledo Police that he had a delusion to kill customers. It was reported to the Toledo Police that a Frisch's Big Boy employee entered the store on his day off and poured a drug called Dextran into a pot of coffee.

The drug is used to treat anemia in baby pigs. According to Police another employee saw what ledgard was doing and took the vials from him. Ledgard was charged on contaminating a substance for human consumption and is awaiting a court appearance.

Intellectual Property Suit Over Cancer Pain Drug

All Stories first appeared in Bloomberg.

Impax Laboratories Inc. (IPXL) was sued by the Teva Pharmaceutical Industries Ltd. (TEVA) unit Cephalon Inc., alleging infringement of four U.S. patents for the drug Fentora, used to treat pain associated with cancer.

Cephalon, based in Frazer, Pennsylvania, contends Hayward, California-based Impax is planning to market a generic version of Fentora in violation of patent protections, according to papers filed Nov. 18 in federal court in Wilmington, Delaware.

Ciphalon lawyers contend that Impax Laboratories was aware of the patents, and plaintiffs will be irreparably harmed unless stopped by court order.

Cephalon is seeking a judgment of infringement, unspecified damages and an injunction to stop Impax’s generic sales.

In a statement yesterday, Impax acknowledged the challenge and said U.S. sales of the drug were about $159 million for the year ending in September.

Once its application is approved by the U.S. Food and Drug Administration, Impax intends to commercialize the drug.

Teva, based in Petach Tikvah, Israel, the world’s largest generic-drugmaker, acquired Cephalon last month in a $6.8 billion deal.

The case is Cephalon Inc. (CEPH) v. Impax Laboratories Inc., 11- cv-1152, U.S. District Court, District of Delaware (Wilmington).

Apple Wins Patent Fight With S3 Graphics at Trade Agency

Apple Inc. won a U.S. trade case brought by HTC Corp.’s S3 Graphics over a method of compressing images to appear three- dimensional on an electronic display.

The U.S. International Trade Commission said S3’s patent rights weren’t violated by Apple in a notice released yesterday on the agency’s website with the full decision to be released later. The commission gave no reason for its decision.

An agency judge found in July that Apple’s Mac computers infringed two S3 patents, while devices that run on the iOS mobile operating system, including the iPhone and iPad table computer, didn’t. The six-member commission reviewed the entire decision, including the effects of Apple’s agreements with Intel Corp. and Nvidia Corp. for graphics chips.

Phonemaker HTC, which announced it would buy closely held S3 for $300 million after the judge issued his findings, was counting on a victory to bolster its patent battles with Apple. The commission is also reviewing an agency judge’s determination that HTC infringed two Apple patents, and may take a look at a judge’s findings that cleared Apple of infringing HTC patents.

Apple and Taoyuan, Taiwan-based HTC have other patent- infringement cases against each other, and S3 has filed a second patent case against Apple at the trade agency. S3, of Fremont, California, makes image-compression technology and its Texture Compression feature is used in Nintendo Co.’s Wii and Sony Corp.’s PlayStation portable gaming systems.

The case is In the Matter of Certain Electronic Devices with Image Processing Systems, 337-724, U.S. International Trade Commission (Washington).


Vivid Claims ‘HTC Vivid’ Smartphone Name Infringes Trademark

Vivid Entertainment Inc. LLC, a maker of adult films, is demanding HTC Corp. (2498) change the name of its HTV Vivid mobile phone, the Sydney Morning Herald reported.

The company, which may be best known for marketing of the Kim Kardashian and Paris Hilton sex tapes, claims that the public may mistakenly assume an affiliation exists with the Taiwan-based mobile phone manufacturer, according to the newspaper.

Vivid sent HTC a cease-and-desist letter, threatening legal action if the name of the phone isn’t changed, the Herald reported.

HTC didn’t comment on the allegations, according to the newspaper.

Georgia Lottery Can’t Be Sued for Infringement, Court Rules

The Georgia Lottery Corp. won a trademark dispute against the holder of the “Moneybags” trademark, the Atlanta Journal- Constitution reported.

The state’s supreme court rejected a $5 million claim against the lottery by the holder of the mark who had licensed its use by the lottery from 1999 to 2002, according to the AJC.

The lottery’s ticket printer used the logo without permission in 2005 and 2007, the newspaper reported.

The high court said a legal doctrine known as “sovereign immunity” protected the state from liability, according to the AJC.

Texas Settles Battle With Volunteer Group Over ‘Alamo’ Mark

The Daughters of the Republic of Texas and the state have settled their trademark dispute, the Houston Chronicle reported.

Under the agreement, the state has the rights to “Alamo,” “The Alamo” and other logos, websites, names and titles related to museum and related service, according to the newspaper.

The Daughters of the Republic had been under fire for trying to register a trademark and entering into a $900,000 promotions contract that later was canceled, according to the Chronicle.

The Texas General Land Office and the Daughters will work out an agreement on how best to run the state historic site and generate enough money for needed repairs, the Chronicle reported.

For more trademark news, click here.


Baidu Accused of Enabling Unauthorized Game Downloading

Baidu Inc., China’s biggest Internet company, is being sued for copyright infringement by a game-developers’ industry group, Agency France-Presse reported.

Content Provider Union is seeking 30 million yuan ($4.7 million) in compensation from Baidu for allegedly providing unauthorized downloads of more than 350 games for mobile devices designed by its members, according to AFP.

Baidu denied that it’s permitting users to link to any but authorized games, AFP reported.

A court in Beijing agreed to hear the case, according to the French news service.

Netflix’s Entry in Ireland May Be Slowed by Licensing Issues

Efforts by Netflix Inc. (NFLX), the mail-order and online video service, to enter the Irish market may be affected by existing licensing agreements Hollywood studios already have in place with British Sky Broadcasting Group Plc (BSY), the Irish Times reported.

Content from those studios is available to Sky’s Irish subscribers on digital platforms, according to the Irish Times.

The newspaper reports that the studios may not want to agree to Netflix’s model of subscription-based service instead of a per-transaction model.

Netflix, based in Los Gatos, California, has said it would start its Irish subscription service for online film and television streaming some time in 2012, Irish Times reported.

For more copyright news, click here.

Trade Secrets/Industrial Espionage

DoubleLine Expert Disputes Trade-Secret Royalties Owed to TCW

An expert witness for DoubleLine Capital LP disputed the amount of trade-secret royalties his client owes to TCW Group Inc.

The expert, Michael Wallace, disagreed with the calculation performed by TCW’s expert. A California judge said he will rule on the matter by the end of January.

The case is Trust Co. of the West v. Gundlach, BC429385, California Superior Court, Los Angeles County (Los Angeles).

Ex-AllianceBernstein Employee to Plead Guilty, Lawyer Says

A former AllianceBernstein Holding LP (AB) employee accused of stealing software from the fund manager will plead guilty to computer trespass, his lawyer said.

Peter Jan, 35, who was an application support specialist at the investment-management company, was accused in April of stealing software used to send and receive messages related to clients’ securities transactions and charged with computer trespass, grand larceny and unlawful duplication of computer- related materials.

He will plead guilty today to one count of felony computer trespass as part of a deal with Manhattan District Attorney Cyrus Vance Jr.’s office, said one of Jan’s attorneys, Jeremy Saland. Vance’s office didn’t immediately respond to a request for comment.

Jan will be able to withdraw his plea to the felony count and plead instead to a misdemeanor charge of attempted criminal trespass if he completes 100 hours of community service and stays out of trouble, Saland said. As a result, Jan will face no jail time and no probation, Saland said.

Prosecutors said Jan gave notice to New York-based AllianceBernstein on March 8, 2010, and was supposed to leave the company 11 days later. On four occasions, prosecutors said, he downloaded software used by the company for FIX messages, a financial information exchange standard. Jan was fired on March 15, 2010.

Jan is admitting to unauthorized use of a computer and isn’t pleading to any theft in any way.

A felony conviction carrying as much as four years in prison would “certainly preclude him from many career paths.

The case is People vs. Jan, 01784/2011, New York State Supreme Court, New York County (Manhattan.)

IP Moves

Hogan Lovells Expands IP Practice With Automotive Expert

Hogan Lovells LLP hired Song Zhu for its IP practice, the Washington-based firm said in a statement.

Song, who does litigation and works with Chinese clients, joins from Cleveland’s Squire Sanders & Dempsey LLP. Before he was a lawyer, he was a senior engineer at General Motors Co. (GM), where he did research on a variety of vehicle systems.

He has represented clients in patent and trade secret disputes and has done IP-related transactional work for clients in the semiconductor manufacturing, electronic device, telecommunication, computer systems and software, renewable energy, automotive systems, and medical device industries.

Rate of People Passing the California State Bar Holds Steady

Story first appeared in the Sacramento Business Journal.

A total of 4,635 people passed the July 2011 California State Bar exam, a pass rate of 54.8 percent, state bar officials announced late Friday.

That’s the same pass rate as the July 2010 exam. The highest pass since 1951 is 63.2 percent for the July 1994 test; the low, 28.1 percent for a test in the spring of 1986.

Successful applicants who have satisfied other requirements for admission to the State Bar of California may take the attorney’s oath individually or participate in admissions ceremonies held throughout the state in December.

Applicants must have passed the multistate professional responsibility exam, received confirmation of a positive moral character and not owe back family or child support payments.

Preliminary statistics show 8,456 applicants took the July 2011 test. Almost three-quarters — 71.9 percent — were first-time takers. The passing rate for first-timers was 69 percent.

The passing rate for the 2,376 applicants repeating the exam was 18 percent.

Pass rates were highest — 76 percent of first-timers — among applicants who went to American Bar Association -sanctioned schools in California. The same rate for students from ABA-sanctioned schools outside California was 66 percent.

The UC Davis School of Law and University of the Pacific McGeorge School of Law are the only ABA-sanctioned law schools in the Sacramento region.

The passing rate drops precipitously when schools are not ABA-sanctioned.

Pass rates for California accredited schools (but not ABA) among first-timers was 35 percent. It was 31 percent for students from unaccredited distance-earning programs, 16 percent for unaccredited facilities and 14 percent at correspondence schools.

Judge Suspended

Story first appeared in the Associated Press.

The Texas Supreme Court suspended a judge Tuesday whose beating of his then-teenage daughter in 2004 was viewed millions of times on the Internet.

Aransas County court-at-law Judge William Adams was suspended immediately with pay pending the outcome of the inquiry started earlier this month by the State Commission on Judicial Conduct, according to an order signed Tuesday by the clerk of the state's highest court.

The order makes clear that while Adams agreed to the commission's recommended temporary suspension and waived the hearing and notice requirements, he does not admit guilt, fault or wrongdoing regarding the allegations. His attorney did not immediately return a call from The Associated Press seeking comment.

Adams' now 23-year-old daughter Hillary Adams uploaded the secretly-recorded 2004 video of her father beating her repeatedly with a belt for making illegal downloads from the internet.

William Adams has not sat on the bench since the video went viral. It has been viewed more than 6 million times on YouTube.

The public outcry over the video was so great that in a rare move the, State Commission on Judicial Conduct announced publicly Nov. 2 that it had opened an investigation. A statement from the commission then said that it had been flooded with calls, emails and faxes regarding the video and Adams.

William Adams appeared in court Monday for a day-long hearing regarding the custody of his 10-year-old daughter. His wife had sought a change in their joint custody agreement, and another judge imposed a temporary restraining order effectively keeping William Adams from being alone with his younger daughter until he reached a decision. An order was expected in that dispute Wednesday.

As Aransas County's top judge, William Adams has dealt with at least 349 family law cases in the past year alone, nearly 50 of which involved state caseworkers seeking determine whether parents were fit to raise their children. A visiting judge has been handling his caseload.

After reviewing the investigation conducted by local police, the Aransas County district attorney said too much time had passed to bring charges against William Adams.

Sandusky's Bail Changes

Story first appeared in the Associated Press

Former Penn State assistant football coach Jerry Sandusky's status as a free man could change if more accusers surface and police file new charges, as his lawyer fears.

Sandusky, now awaiting trial on charges he sexually abused eight boys over 15 years, could then find himself with a high bail he might not be able to pay, criminal defense lawyers said Tuesday.

Sandusky was released after his Nov. 5 arrest on $100,000 unsecured bail, meaning he didn't have to post any collateral to be freed.

His attorney, Joe Amendola, told ABC's "Good Morning America" on Tuesday that he was worried there may soon be new criminal allegations against his client.

His concern is, if they bring new charges based upon new people coming forward, that bail's going to be set and he's going to wind up in jail.

Prosecutors don't have to start all over. The additional counts would result in another arrest, another bail piece, another preliminary hearing date being set.

All four common pleas judges in Centre County, where Penn State is located, removed themselves from potentially presiding over the case and were replaced Tuesday by outside jurists, the Pennsylvania court system announced.

The Administrative Office of Pennsylvania Courts said in a release that the judges bowed out"to avoid any appearance of conflict of interest due to real or perceived connections to Sandusky, the university or the charity for at-risk children Sandusky founded.

John M. Cleland, a senior judge from McKean County, was appointed to take over the case, though another judge, Kathy A. Morrow, was named to handle matters until Cleland can assume jurisdiction.

Cleland chaired the Interbranch Commission on Juvenile Justice, established in the wake of the "kids-for-cash" courthouse scandal in which Luzerne County judges were accused of sending children to private detention centers for kickbacks.

The court system said neither Cleland nor Morrow, president judge in Perry and Juniata counties, have any known connections to Sandusky, the university or the charity.

Morrow immediately signed an order to prevent people involved in the case from disclosing the name of an individual described by his lawyers as a victim of and witness to child sexual abuse.

The temporary order, issued at the request of two State College attorneys, instructed court officials and the parties to refer to him as "John Doe."

The Centre County clerk's office was told to seal any portion of the record that refers to him by name, and the motion seeking the order was itself sealed. Messages seeking comment from his lawyers weren't immediately returned.

Also Tuesday, Sandusky's preliminary hearing was rescheduled for Dec. 13 at the Centre County Courthouse in Bellefonte. It will be handled by an out-of-county jurist, Westmoreland County Senior District Judge Robert E. Scott.

Scott replaced the district judge who set bail for Sandusky, Leslie Dutchcot of State College, who had ties to The Second Mile, Sandusky's charity. The court order said the change was designed to avoid any appearance of impropriety.

If Scott has to make new decisions about bail, they would come in the context of public outrage over the allegations, which include charges that Sandusky found victims among boys being helped by The Second Mile.

Until the preliminary hearing, prosecutors can seek to have bail modified by the district judge, said Lehigh County District Attorney Jim Martin. After that hearing, bail changes would have to be pursued by a county court petition, he said.

Criminal complaints can also be amended before a preliminary hearing but afterward the defendant would have to be rearrested, and then the prosecution and defense would argue over whether to consolidate the two sets of charges for trial.

An attorney general's office spokesman declined to comment on the Centre County judges' recusal or about potential new charges against Sandusky.

The scandal has resulted in the ouster of Penn State President Graham Spanier and head football coach Joe Paterno and has cast a dark shadow over one of college football's most legendary programs. Athletic Director Tim Curley has been placed on leave, and Vice President Gary Schultz, who oversaw the university's police department, has stepped down.

Schultz and Curley are charged with lying to a grand jury and failing to properly report suspected abuse to authorities. Like Sandusky, they have denied the allegations.

Friday, November 18, 2011

Judge to give Fox Sports a chance to speak

Story first appeared in the Los Angeles Times.

Network, whose television contract prevents the team from negotiating with any other party besides Fox through Nov. 30, 2012, is opposed to the Dodgers' intention of selling their television rights separately from the club.

Judge vows that Fox Sports will get a fair say in Dodgers sale
Fox Sports will get a "full and fair" say as the U.S. Bankruptcy Court decides whether to approve an agreement under which Dodgers owner Frank McCourt would sell the team, commented a Boston Bankruptcy Lawyer.

McCourt and Major League Baseball reached a settlement agreement last week. The Dodgers intend to sell the team's television rights separately from the team, a proposal to which Fox strenuously objects, agreed a Wilmington Bankruptcy Lawyer.

McCourt has not spoken publicly since the settlement was announced, but he met with team employees at Dodger Stadium on Tuesday.

Speaking in front of hundreds of staff members, McCourt said he never thought his personal life would affect the club as much as it did, according to people at the meeting. McCourt was described as remorseful, reportedly telling employees that he wished he had taken better care of what he had.

Former commissioner Peter Ueberroth, who previously led groups that bid on the Dodgers and Angels, said Tuesday he would not pursue the Dodgers during the current sale process. Ueberroth is perhaps best known as chief of the highly successful 1984 Los Angeles Olympics.

In a court hearing Tuesday, Fox attorney Paul Laurin expressed concern over reports that he said characterized the settlement between McCourt and MLB as a foregone conclusion.

Although the judge has reviewed the deal points with attorneys representing McCourt and MLB, he said a final settlement has yet to be submitted or approved.

The Dodgers' current television contract prevents the team from negotiating with any party besides Fox through Nov. 30, 2012. The settlement agreement targets April 1 as a date for completion of a Dodgers sale.

The Dodgers said in a statement Monday that they soon would submit an amended media rights procurement motion to the court.

However, the settlement agreement between McCourt and MLB calls for one auction, not two, with a decision on the television rights left to the new owner, according to a person involved in drafting the settlement.

A Sydney Divorce Lawyer said that the agreement is explicit.

In court papers, McCourt and his attorneys have argued that a television rights auction would benefit the Dodgers in the event of a sale, for they could fetch a higher price given the certainty of long-term media revenue. The league's media consultant, former NBA TV president Ed Desser, said the Dodgers might command 10% to 20% more in a television rights sale if they wait a year or two."

Fox has sued to enforce the current contract. Laurin suggested Tuesday that the money Fox could win in a lawsuit might be so large as to make it difficult for McCourt and MLB to fulfill promises to repay all creditors in full.

McCourt's attorneys have said the Dodgers could simply honor the two years remaining under the current contract and called it unlikely that Fox Sports can assert any meaningful damages. A Tampa Divorce Lawyer agreed.

Jefferson County Seeks Bankruptcy Protection

Story first appeared in Bloomberg News

The big surprise isn’t that Jefferson County, Alabama, filed for bankruptcy protection from creditors, but that the county was able to stave off the inevitable for so long.
A Paris Bankruptcy Lawyer thought that you have to hand it to the county commissioners. They were intent on doing the right thing, which in the municipal market means doing everything in one’s power to keep the business open and maintain it as a going concern.
In fact, though, the county should have sought protection years ago, and not just from creditors, but from all the bankers, analysts and politicians who have betrayed it. There’s plenty of blame to go around in this one, according to a Houston Bankruptcy Lawyer.
Maybe now Jefferson County will get some much-needed help. All those who have created and abetted this disaster, at least the ones not already in jail, will get some castigation, perhaps in the form of a sternly worded remonstrance from the federal bench.
The county needs help. What nobody needs right now is anyone declaring that Jefferson County is somehow a harbinger, or emblematic of all that’s wrong with the municipal market.
Hogs to Trough
No way. Jefferson County, like all municipal-market catastrophes, is particular and specific. There aren’t a barrelful of other municipalities out there just like Jefferson County. No, Jeffco, as its friends call it, is a case study all by itself, agreed a Sacramento Bankruptcy Lawyer.

Public finance has a prominent role in the largest municipal bankruptcy in U.S. history. And to be sure, Wall Street will pay and pay and pay for its part in this mess. Yet please keep in mind that the county and its leaders are the real culprits here.
What happened? The county agreed to clean up its sewer system. Then it let things get out of hand, and so a cleanup at first estimated at a couple of hundred million dollars eventually cost more than $3 billion. The hogs rushed the trough.
The proximate cause of the Jeffco bankruptcy wasn’t the big series of bond sales or even the insane swaps strategy pursued by the county. The thing that pushed it over the edge was a court ruling that invalidated a wage tax that generated one- quarter of the Jeffco general fund.
You can spend hours debating who’s to blame. What’s next?
That’s very hard to say agreed a Wilmington Bankruptcy Lawyer. Municipal bankruptcy is uncharted territory unless you’re dealing with things like rural utility districts and the like -- in other words, “municipalities” in name only, with few people, which are settled in an almost formulaic manner. Every bankruptcy by a city or county is going to be different. Jefferson County is not the city of Vallejo or Orange County, California.
The county commissioners sounded almost relieved after they voted to file for bankruptcy, as if it somehow represented the end. To paraphrase Winston Churchill, this isn’t the end. It isn’t even the beginning of the end. But it is the end of the beginning, and for that all market participants should be thankful, I guess.
“The people of Jefferson County have had enough,” the Commissioner is quoted as saying just before the meeting where commissioners voted for bankruptcy.
Enough? County residents’ woes are only beginning. He doesn’t think the series of remarkable concessions wrested from creditors in a settlement proposed in September -- including a scalping rather than a haircut on debt -- are still going to be on offer.
A Cherry Hill Bankruptcy Lawyer doesn’t think a federal bankruptcy judge is going to provide absolution of all that debt, or of future, and gigantic, sewer rate increases. There are hard times ahead for Jefferson County.
But it’s Jefferson County, not all counties, and not all municipalities, and don’t let anyone tell you otherwise.

Workers Sue For Bonuses

Story first appeared in Bloomberg News

Ingersoll Rand is set to go to trial today in a lawsuit over how much it owes to 130 employees who claim they deserve bonuses under an incentive plan tied to the company’s sale in 2004 of Dresser-Rand Group Inc. (DRC)

Workers sued in federal court in Newark, New Jersey, where they seek payment under a sales incentive plan dated September 2000. Jurors will weigh whether Ingersoll Rand owes $11 million, as the company claims, or $72 million, as workers seek. Workers say the judge can add interest of at least $25.5 million.

Ingersoll Rand, which makes heating and ventilation equipment, offered the bonuses when it began trying to sell Dresser-Rand, which makes compressors and turbines. After Dresser-Rand was sold in 2004 for $1.2 billion, Ingersoll Rand said the 2000 plan no longer applied. Workers sued, and a federal judge ruled the plan remains in effect, setting up the trial.

A Memphis Employee Rights Lawyer felt this is a classic example of overgrab by corporate America at the expense of the people who do the work.

Some of the best-known U.S. trial lawyers will be in the courtroom. Barry Ostrager of Simpson Thacher & Bartlett LLP in New York, who has represented J.P. Morgan Chase & Co., Swiss Re Ltd., and many other companies, will defend Ingersoll Rand.

Merck, Clemens

Lanier, who won verdicts against Merck & Co., Caterpillar Inc., and other companies, will be joined by Rusty Hardin. He has represented former Major League Baseball pitcher Roger Clemens and Arthur Andersen LLP, the now-defunct accounting firm convicted of obstructing a government investigation into Enron Corp. The Supreme Court overturned that verdict.

Workers eligible for the payouts were allotted “sale value units” tied to the net price of the Dresser-Rand transaction. Ingersoll Rand claims the 704,196 units at issue in the trial are each worth $16.18, while workers sale they are worth $102.74.

Penn State May Seek Immunity After Years of Skirting Public Laws

Story first appeared in the Bloomberg News.

Pennsylvania State University, after years of skirting public-school rules, may claim protection from liability under commonwealth statutes that shield government entities, if it faces lawsuits related to a child-sex scandal.

Moody’s Investors Service is examining the school’s relationship with the state to see if claims of sovereign immunity may apply, analysts said yesterday. Fallout from charges against an assistant led to the dismissal of Joe Paterno, Penn State’s marquee football coach, and its president.

While Penn State is the commonwealth’s flagship state- supported school, it has successfully asserted claims to be exempt from freedom- of-information laws that apply to most public institutions including many of its competitors, such as Ohio State University and the University of Texas. Penn State’s unusual position has for years shielded it from public scrutiny, including inquiries into its football program.

This most recent scandal is an unprecedented development in many areas of liability risk, it may not be clear even to Penn State what the situation is. Many legal issues need to be decided by corporate counsel and possibly the state and federal courts.

Jerry Sandusky, the former assistant coach, faces charges of sexually abusing boys as young as 10 at the school. In addition to Joe Paterno, 84, college football’s most successful coach, with 409 wins, the scandal also claimed the job of President Graham B. Spanier, 63. Both were fired by Penn State on Nov. 10, 2011.

Defendant Denies Accusations

The charges against Sandusky involve alleged assaults on eight boys from 1994 to 2009, when he ran The Second Mile, a charitable children’s organization, according to Pennsylvania Attorney General Linda Kelly. Sandusky, 67, denied the accusations against him in a telephone interview Nov. 14 with Bob Costas of NBC News.

The unviersity's credit rating may be cut in the wake of the sex scandal rocking the university, New York-based Moody’s said last week in a report. It cited the potential for lawsuits, settlements, and declines in philanthropic and state support, as well as “significant management and governance changes.”

Penn State University traces its roots to 1855 when it was started as a private agricultural college, and 1863, when the Legislature made it the state’s only land-grant institution.

State Funding

Since 1887, Penn State has received annual appropriations from the Pennsylvania Legislature, even though it remained a privately chartered organization, according to its website. The university describes itself as “not state-owned and -operated” yet with the “character” of a public school as a “state-related” institution.

In March, Penn State University cited a decline in state funding as leading to tuition increases, including in the discounted rate for Pennsylvania residents. The school has more than 80,000 students attending classes on more than 20 campuses statewide.

While it gets financial support from the commonwealth, Penn State is set apart from its higher-education system.

The University of Pittsburgh, as well as Temple University and Lincoln University, both in Philadelphia, are also state-related schools.

Penn State doesn’t use government or tuition money to fund its athletics programs, which it describes on its website as “an auxiliary enterprise” that is “self-supporting.” The school, with an operating budget of about $4.1 billion a year, sought $364.2 million in state support for fiscal 2012.

Liability Shields

Some states have strict liability-limiting statutes that protect government agencies against lawsuits, in contrast to private nonprofit organizations. Whether such laws apply to Penn State wasn’t immediately clear to Moody’s analysts.

Moody's declined to provide specifics citing that they are not lawyers and so Moody's declined to answer the questions.

Some Penn State employees are covered by the State Employees’
Retirement System, a public pension. Sandusky got almost $150,000 in a lump-sum payment when he retired and has been receiving almost $59,000 a year since then, according to a spokeswoman for the plan.

Penn State’s debt is graded Aa1, the second-highest Moody’s rating, because of strong student demand and other credit strengths linked to its status as Pennsylvania’s flagship and land-grant university. Penn State has about $1 billion of rated debt outstanding, with many lawsuits on the short-term horizon.

Will Kilpatrick get to keep his book profits?

Story first appeared in the Detroit Free Press

Former Detroit mayor Kwame Kilpatrick is asking the Michigan Supreme Court to halt prosecutors’ plans to claim profits from Kilpatrick's memoir to help pay off his restitution debt.
His attorney, in a motion filed late Monday, said a hearing Wednesday before Wayne County Circuit Judge violates Kilpatrick’s right of free speech and actually is undermining the state’s goal of recovering restitution.
The lawyer ordered Creative Publishing Consultants into court Wednesday to explain why no money from sales of “Surrendered: The Rise, Fall & Revelation of Kwame Kilpatrick” has gone into an escrow account to offset his debt of $860,702.60.
According to earlier filings, the publishers cleared $19,258.54 on sales of $56,487.54.
If prosecutors prevail, it could cut off book sales that could help pay down the debt and lectures that help support his family
He wants the hearing put on hold until the high court hears and rules on his claim.
Michigan's version of the so-called Son of Sam Law — aimed at stopping criminals from profiting by selling their stories — has not been tested and is contrary to the U.S. Constitution.
A state appellate panel rejected Kilpatrick’s motion in September.
The Wayne County Prosecutor’s office said it hasn’t gotten a copy of the latest appeal and cannot comment.

Thursday, October 27, 2011

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These are the areas of service that the Jordan Balema Elder Law Center provides:
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Medicaid Planning — Do you have a loved one in a nursing home or hospital? Or are you thinking long-term care may be inevitable? The professionals at Jordan-Balkema Elder Law Center can assist you with planning for long-term care costs.
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Tuesday, October 18, 2011

Alabama Immigration Laws Cause Students to Miss School

Story first appeared in the Traverse City Record-Eagle

Court disallows provisions of law on immigration.

According to a Belize Immigration Lawyer, in a blow to Alabama’s toughest-in-the-nation immigration law, a federal appeals court sided with the Obama administration Friday when it blocked public schools form checking the immigration status of students.

The decision from the 11th U.S. Circuit Court of Appeals also said police can’t charge immigrants who are unable to prove their citizenship, but it let some of the law stand, giving supporters a partial victory. The decision was only temporary and a final ruling wasn’t expected for months, after judges can review more argument, claimed a Raleigh Immigration Attorney.

Unlike crackdowns in other states, Alabama’s law was left largely in effect for about three weeks, long enough to frighten Hispanics and drive them away for the state. Construction businesses said Hispanic workers have quite showing up for jobs and schools reported that Latino students stopped coming to class.

A Philadelphia Immigration Lawyer said that while the long-range implications of the decision remain to be seen, immigrants celebrated the judges’ ruling. Word spread quickly through the state’s Hispanic community as Spanish-language radio stations aired the news.

The judges let stand part of the law that allows police to check a person’s immigration status during a traffic stop. According to a Panama Immigration Lawyer, courts also can’t enforce contracts involving illegal immigrants, such as leases, and it’s still a felony for an illegal immigrant to do business with the state for basic things like getting a driver’s license, the judges ruled. Their 16 –page decision contained very little discussion about their ruling.

The appeals court blocked part of the law that required school officials to verify the citizenship status of students enrolled after September 1. According to a Raleigh Immigration Lawyer, it also barred enforcement of a section that let police file a misdemeanor charge against anyone who is in the country illegally and doesn’t have federal registration papers.

The Obama administration and immigrant advocates sued the state of Alabama after the law was passed in June. A BVI Immigration Lawyer commented that a federal judge upheld much of it late last month, and the Obama administration and groups appealed.

Tuesday, October 4, 2011


Story first appeared in the Wall Street Journal.

In a ruling that could have a far-reaching impact on lawsuits seeking money for Bernard Madoff's victims, a federal judge threw out the bulk of claims by a court-appointed trustee who sought to recover about $1 billion from the owners of the New York Mets baseball team, according to a Moscow Bankruptcy Lawyer.

The decision by U.S. District Judge Jed Rakoff limited—though didn't eliminate—possible financial ramifications from the epic Ponzi scheme for one of Major League Baseball's most valuable franchises.
Beyond making it harder for trustee Irving Picard to recover the owners' principal investment in the Ponzi scheme, the ruling indicated that he would only be able to take back money withdrawn in the last two years of the fraud, a decision that could also benefit others against whom he had launched so-called clawback suits.
Judge Rakoff's decision comes after nearly a year of contentious legal wrangling between Mr. Picard and the team's owners, Fred Wilpon and Saul Katz. Mr. Picard has accused Messrs. Wilpon and Katz of ignoring warning signs of the Ponzi scheme. According to a Bucharest Bankruptcy Lawyer, in his ruling on Tuesday, Judge Rakoff handed the Mets owners, who have denied any wrongdoing, a partial victory by tossing out nine of 11 claims Mr. Picard made in his 373-page complaint.
The judge, rejecting the Mets owners' request to dismiss the entire lawsuit, said Mr. Picard could continue to pursue less than half of the $300 million of alleged false profits and $700 million of principal he had originally sought. He said Mr. Picard could seek $83.3 million in allegedly false profits and $301 million in principal. But Mr. Picard would have to meet a high standard of proof to seize any of the Mets owners' principal investment—showing that the owners were "willfully blind" to signs of the fraud and ignored red flags that would have uncovered it had they investigated, the judge said.
A Cherry Hill Bankruptcy Lawyer not involved in the Mets lawsuit said Tuesday evening that could be a very difficult burden for the trustee to meet. Judge Rakoff's decision is a significant step in the process of properly protecting innocent Madoff victims from the trustee's overreaching clawback efforts," said David Bernfeld, a lawyer who represents Madoff investors.
Iit appeared from the ruling that Judge Rakoff appeared skeptical about the validity of Mr. Picard's willful blindness claims and called it "very remote" that he could recover the principal.
With the threat of the lawsuit hanging over them, Messrs. Wilpon and Katz reached an agreement with hedge fund manager David Einhorn last spring to sell a stake in the team, but the deal collapsed this month, leaving the owners still searching for a capital infusion into the debt-laden enterprise.
In a statement, partners at Sterling Equities Associates, the real-estate firm run by Messrs. Wilpon and Katz, said they were pleased that the court today dismissed nine of the 11 counts in the Trustee's complaint" and that Mr. Picard could only seek money going back two years. A person close to the team's owners said they believed it would be impossible for Mr. Picard to prove willful blindness.
A Hong Kong Bankruptcy Lawyer said he heard the trustee and his counsel are aware of the District Court opinion and order and are in the process of reviewing the decision.. The judge ordered the parties to come to court Wednesday to lay out a schedule for the lawsuit. He has set a trial date for March.
The ruling limited the Mets owners' exposure by eliminating claims the trustee made under New York law to recover alleged false profits from six years prior to the Ponzi scheme's collapse. Judge Rakoff said Mr. Picard could make claims only under federal bankruptcy law, which allows him to go back only two years. In a footnote, though, the judge said without explanation that Mr. Picard might still be able to recover false profits from the entire period of Messrs. Wilpon and Katz's investments with Mr Madoff. According to the judge, the last two years of their profits amounted to $83.3 million, while they received $295.5 million in profits over the course of their entire investment.
The judge also threw out Mr. Picard's claims to recover principal withdrawn within 90 days of the Ponzi scheme's collapse. The trustee has made similar claims against many other investors. While Tuesday's ruling is not binding on other judges, it is likely to have an impact on other cases.
According to a Madrid Corporate Bankruptcy Lawyer, Judge Rakoff in his ruling also rejected Mr. Picard's attempt to block requests the Mets owners filed with him to be repaid for $160 million in principal they lost in certain of their accounts with Mr. Madoff. But he said the trustee can give their claims a lower priority than those of other investors if he can prove they were willfully blind to the fraud.

Health Care Law To Be Reviewed by High Court

Story first appeared in USA TODAY.

The Obama administration on Wednesday asked the Supreme Court to decide the constitutionality of a requirement that most Americans buy health insurance by 2014, paving the way for a ruling in the middle of the 2012 presidential election campaign, said a Winston-Salem Health Care Lawyer.
Separately, 26 states and the National Federation of Independent Business, which have challenged the mandate as exceeding federal power, urged the justices to intervene and strike it down.
The new filings all but guarantee the justices will review the law that is at the heart of President Obama's domestic agenda and that has become a flashpoint in the race for Republican nomination, commented an Albany Healthcare Lawyer. All the major Republican presidential candidates have vowed to overturn the law.
The justices, who open a new term on Monday, would likely act on the pending appeals this fall and hold oral arguments in early 2012.
Justice Department lawyers have appealed a decision by an Atlanta-based appeals court that said the individual-insurance mandate went beyond Congress' power to regulate interstate commerce. The lawyers and a Des Moines Health Care Lawyer say that appeals court decision, which conflicts with two appeals court rulings rejecting challenges to the law, undermines federal efforts to tackle the "crisis in the national health care market." The administration said the appeals court ruling "denies Congress the broad deference it is due … to address the nation's most pressing economic problems."
The requirement that most Americans buy insurance or face a tax penalty is the centerpiece of the health care law passed by Congress and signed by Obama in March 2010. The law was the most significant change in the nation's health care system since the creation of Medicare and Medicaid in 1965 and extends insurance coverage to 32 million Americans, said a Peoria Healthcare Lawyer.
The administration says people without insurance incur billions of dollars in costs that are passed on to the insured. It contends that creates a substantial burden on interstate commerce that is within Congress' power to address.
The U.S. Court of Appeals for the 11th Circuit disagreed as it declared that forcing people to buy insurance represents an "unbounded assertion of congressional authority."
The 26 states and business group won major portions of their challenge, but the 11th Circuit rejected claims that the law's expansion of Medicaid encroaches on the states and that if the mandate is unconstitutional, the entire law is void. According to a Sacramento Healthcare Lawyer, the states and business group have asked the justices to reverse those findings.

Did Cragslist Lobby Against EBay?

Story first appeared in Bloomberg Law.
EBay’s lawyer said Craigslist Inc. may have lobbied for a criminal subpoena issued in a federal probe into allegations the online auctioneer stole confidential information from Craigslist. A Boston Intellectual Property Lawyer reviewed the case.
The criminal subpoena issued last week and served on EBay means the exchange of documents and information in Craigslist’s lawsuit against EBay should be put on hold, EBay lawyer Mark Lambert said at a hearing yesterday in state court in San Francisco.
The online classified company claims in the lawsuit that San Jose, California-based EBay used proprietary information from Craigslist to start a competing online ad site when the two companies were negotiating over EBay buying a stake in Craigslist. After winning two rulings that the case can proceed, Craigslist is seeking to move ahead with discovery, where the two sides exchange documents and interview witnesses. This is standard practice according to a Leeds Intellectual Property Lawyer.
Ebay believe they lobbied for the subpoena and put it in newspapers yesterday. It names lots of individuals and creates tremendous uncertainty.
This is something that they took to the authorities, it’s of their making. A Nashville Intellectual Property Lawyer claims that this is a game changer.
‘Alleged Criminal Activities’
The Sept. 7 grand jury subpoena to Craigslist seeks information pertaining to “incidents where EBay employees engaged in alleged criminal activities and misconduct focused around the misappropriation of proprietary/confidential information from Craigslist.”
It lists a February 2005 incident in which EBay founder Pierre Omidyar allegedly requested information from EBay and instructed employees to use Craigslist metrics to compare its growth rates with those of EBay’s competing website called Kijiji.
Anyone named in the subpoena may want to hire a Salt Lake City Intellectual Property Lawyer and may be unwilling to respond to civil subpoenas in the case, Lambert said.
Michael Clyde, an attorney for Craigslist, told Kramer that the criminal subpoena should have no impact on the civil case.
The subpoena will not cause complete cessation of anything. It will be taken into account in fashioning a discovery plan. The judge scheduled the next hearing in the case for Oct. 18.
According to a Pittsburgh Intellectual Property Lawyer, he heard that EBay said Sept. 13 that the company is cooperating with the U.S. Justice Department investigation.

Voters Rights Act Under Scrutiny

Story first appeared in USA TODAY.

A federal court in Washington upheld the part of the Voting Rights Act that requires states with a history of racial discrimination to get advance approval from the Justice Department before changing voting laws. This has prompted some to take anti discrimination training.
The ruling comes as the Justice Department is being deluged with applications from states and localities asking for pre-approval of new boundaries for congressional, state legislative and other voting districts, which are being redrawn after the 2010 Census. As of last week, the Justice Department had 794 "pre-clearance" cases pending.
In the court case brought by Shelby County, Ala., county officials argued that Section 5 of the Voting Rights Act, which requires the advance approval, has cost "significant taxpayer dollars, time and energy" — and that the county had to delay at least one election while it waited for approval.
Judge John Bates of the U.S. District Court for the District of Columbia ruled in a 151-page opinion that the modern existence of intentional racial discrimination in voting justifies the 2006 decision by Congress to extend the Voting Rights Act through 2031.
Nathaniel Persily, a Columbia University law professor whose work was quoted in the opinion, has said the Voting Rights Act is living on borrowed time.
This decision is a shooting of the starting gun in the race to have Section 5 declared unconstitutional. It is expected that the case will reach the Supreme Court, which upheld the Voting Rights Act in 2009 in a case that largely avoided the constitutional issues raised in the Shelby County case.
The case could have political ramifications as states prepare for 2012 congressional elections.
This decision comes out at a time when the Department of Justice is flooded with pre-clearances over redistricting. The Obama administration has been very reluctant to deny pre-clearance to redistricting plans and voting changes because they know the Supreme Court is looking over their shoulder.
The decision, however, comes the same week Attorney General Eric Holder signaled his intent to fight proposed new congressional districts and state House districts in Texas, which Justice Department lawyers said would diminish the ability of minority voters to select a candidate of their choice.
The Justice Department is scheduled to examine six other redistricting plans in the next six weeks, including congressional maps in Alabama, North Carolina and South Carolina.
Frank Ellis, the Shelby County attorney, could not be reached. Bert Rein, the Washington lawyer who argued the case for the county, declined to comment.
The Project for Fair Representation, a non-profit group that supports legal challenges to race-based voting and affirmative action laws, said it would continue to support the lawsuit if it goes to the Supreme Court.
Edward Blum, the project's director, said the court failed to consider why some states are on the pre-clearance list while others are not.
Nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — must seek approval of any voting change. Parts of seven other states must do so.
It makes no sense in 2011 for Shelby County, Ala., to be covered by these provisions, but not Shelby County, Tenn. If the Voting Rights Act needs to be in place to protect minority interests, it should be done coast to coast, and not just in places where there were bad actors 30 years ago.
Justice Department spokeswoman Xochitl Hinojosa applauded the court ruling and said the Justice Department will continue to defend the constitutionality of the Voting Rights Act, which she noted has overwhelming bipartisan support in Congress.

Immigrant Screening by Homeland Security under Scrutiny

Story first appeared in USA TODAY.

A program that checks the immigration status of all people booked into local jails needs systemwide changes and may need to be suspended until its problems are worked out, according to a review conducted by the Department of Homeland Security's advisory council.
The program, called Secure Communities, allows Homeland Security to review the fingerprints of people arrested by state and local law enforcement agencies against federal immigration databases.
The program has been criticized because some people arrested for minor crimes, or on charges that are later dropped, are detained by Immigration and Customs Enforcement officials, sometimes resulting in deportation. This people may seek a Raleigh Immigration Lawyer.
That runs contrary to Homeland Security's stated goals of concentrating on illegal immigrants who have committed serious crimes or pose a threat to national security, according to a Shanghai Immigration Attorney.
The apparent 'disconnect' between the Homeland Security documents describing a tight focus on dangerous criminal offenders and the actual operation of Secure Communities has led to criticism of the program and is a key reason for opposition to the program in a number of cities, counties and states. A Philadelphia Immigration Lawyer agrees.
That opposition has resulted in distrust of local police, as victims and witnesses of crimes are now afraid to speak with police out of fear of being deported, the report found.
Since its inception in 2008, Secure Communities has been activated in half the nation's law enforcement jurisdictions, and it continues to grow, with the goal of nationwide activation by 2013. About half of the members of the task force that conducted the review for the advisory council suggested halting that expansion, or suspending the program entirely, until the problems are worked out.
Arturo Venegas was the first of five task force members to resign, saying the recommendations didn't go far enough and calling Homeland Security irresponsible for continuing to expand the program when so many problems are clearly apparent. 

A Panama Immigration Lawyer would also like to see the program reviewed.

The report suggested that Homeland Security better train its officials to focus on dangerous criminals, adopt more oversight to ensure those policies are being enforced and consider ignoring illegal immigrants booked into local jails for minor crimes and traffic offenses.

The report will be given to Homeland Security leadership, who then can adopt any or all of the recommendations — although it is under no obligation to do so, add a Belize Immigration Lawyer.

Monday, October 3, 2011

Top Law Firms Go After Video For SEO

Story first appeared in the Law Practice TODAY.
Viewing video on the web is nothing new.  We’ve all laughed at Charlie biting his brother’s finger, the sneezing baby panda, and a host of other entertaining clips.  However, in the past year, video has evolved from a novelty into a mainstream method for executives to receive business information  in association with Google, of more than 300 senior executives at U.S. companies with $500 million-plus in annual revenues).  The study found that younger executives are more inclined to not only view video, but to also create it and share it over the business-oriented “social” web.  The inference is that as these young execs advance in their careers, their influence within corporate America is likely to make business-related video even more prevalent in the coming years.
More importantly, these execs are not just passive viewers.  Those surveyed appear as willing to take action based on viewing a video as they do reading an article.   As moves corporate America, so must the companies that serve them – or certainly their marketing departments; as the trend continues, law firms will not be exempt. 
An informal survey on YouTube reveals that the majority of videos by law firms are by those who provide services for individuals, such as personal injury, family law, personal bankruptcy, etc.  There are a few larger firms with their own channels providing a handful of useful and informative videos, but the number is still small.  While YouTube isn’t necessarily the harbinger of business video on the web, it’s probably the best known and that’s because it makes it easy to post and host video on the Internet.
Did you know that people are 95% more likely to make a purchase after they see a video of the product they are considering?  Lawyers may not be selling products per se, but they are selling services. Video can add a personal element, foster trust and compel potential clients to pick up the phone.  Our curiosity led us to do a Google search on “top law firm” to see how many clicks it would take to find video used by a law firm.  Not surprisingly the top results were ranking lists, but in fifth place was “a global relationship law firm.”  Not to pick on this global, prestigious law firm, but wouldn’t a potential client be more engaged if they could see and hear their people epitomize what a “relationship law firm” does?
Ten clicks later and we found John C. Buchanan, president of Primerus, “an international society of the world’s finest independent boutique law firms,” explaining what Primerus is and does.  The video is concise and to the point.  Moreover, we understand what the organization offers and when Primerus says it is driven by innovation, we believe it.
Still unconvinced of the power of video? 
From a 2010 report : 30% of Internet traffic is video.  By 2013, 90% of Internet traffic will be video.  And, by 2014, Advanced Internet Video (3D and HD) will increase 23-fold to represent 46% of Internet video traffic.  In the same timeframe, online video ad spending is expected to swell from $1.97 billion to $5.71 billion. 
Video on the web is serious business and it’s a requirement for any organization that aims for effective – and efficient – communications, both within and outside the organization.
Ready to get started?
Crafting the perfect video may be more complicated than a Flip of your family’s summer vacation, but it needn’t be daunting.  Here are some guidelines:
First, identify your subject.  Are you doing an overview of the firm for recruiting purposes?  Partner profiles to highlight your expertise and practice areas?  Discussing a new hot topic to educate your clients?  Or all of the above?
If it’s all of the above, you may want to hire someone to shoot your videos in a single day so that it’s more cost effective.  Either way, make sure that your videos are well lit, with clear sound and no background noise.  Ideally, use a high-definition camera and aim for top-quality production.  Make sure that you have someone who knows about lighting and someone who can identify a good take. A plane passing overhead may be cause to try again.
To script or not to script?  It helps in the editing suite if you have a strong idea of how you want to relate your story, especially if it involves multiple people, b-roll, etc.  However, don’t get stuck on exact verbiage as this can make people nervous when they’re already anxious about being on camera.  A script can also help keep you on track with timing; you don’t want a video that’s longer than three minutes.  Shorter is better.
Remember that you want your video to be engaging.  Just like a movie, have a beginning, middle and end.  And, you don’t have to say everything; use text and subtitles to provide necessary but mundane information such as phone numbers.  In fact, graphics and sound effects can add dazzle and polish to your product.
Now to that all-important SEO (Search Engine Optimization)
Google already factors in the presence of video on a page when determining where the page ranks in its search results.  If you want to get ahead of the curve and beat out other firms competing for those top positions on search engine results, start using video now!
You can submit your video to a number of outlets, including YouTube.  Use the code that the site of your choice provides to embed the video on your home page -- and elsewhere on your site.  Make sure that you give the video a meaningful title using keywords to help prospects find you.   And, don’t forget to choose a thumbnail to represent your vide as well as tags and descriptions that are search-engine friendly.
Practical tips: How to get the most of your online video marketing campaign
  1. Make sure it looks professional.
    -You want to establish credibility and trust, so be sure to find a personable, engaging interviewer and a top-notch production crew.
  2. Put the video on the front page of your site.
    -Online video is an effective selling tool, so make sure it's front and center. Embed it on the homepage, so every visitor (and search engine) will see it.
  3. Submit your video to other online outlets.
    -Although YouTube is the clear leader, there are many other video-sharing sites worthy of consideration. Here are some you will want to check out:
  • Google Video
  • Yahoo! Video
  • Daily Motion
  • MySpaceTV
  • MetaCafe
  • Revver
  • Veoh
  • Blinkx
  • Break
  1. Link back to your site.
    -When placing videos on the sharing outlets, put your URL near the top of your video’s description. You’ll get a higher search ranking and potential clients will quickly see where to go for more information.
  2. Research search terms and put them in the title.
    -Find out what words people in need of your services are typing into search engines, and use the most popular ones in your video’s title. If you don’t know what those terms are, get professional help or use some of these free resources:
  • Wordtracker
  • Google AdWords
  • Keyword Discovery
  • KwMap

  1. Be mindful of tags and descriptions
    -Most video-sharing sites let you tag videos with keywords and post a short text description, so get the most out of these by sprinkling in the search terms you’ve identified.
  2. Include a flattering thumbnail shot.
    -A thumbnail is a still shot from your video that appears along with search results. Don’t waste this chance to present yourself in the best light possible—choose a key moment from your video, preferably one where you’re smiling.
  3. Monitor and respond to viewer comments.
    -Most video-sharing sites also allow viewers to post comments. Use this as an opportunity to answer questions, respond to comments and further promote your practice.
  4. Consider a pay-per-click campaign.
    Natural search engine optimization, while effective, takes time to bear fruit. You might want to jump-start the process with a pay-per-click campaign that gives you a sponsored search listing. You can learn more at Google AdWords or Yahoo! Advertising.
  5. Add new content - often.
    Search engines look for it, and so do potential clients. Keep your content fresh and up-to-date. Make your firm standout by maximizing your online presence with video.
Remember, the technology is there. Use it to your advantage.

Thursday, September 22, 2011

Judge Sets Schedule in Case Over Google’s Digital Library

Story first appeared in The New York Times.

Google’s plan to build a huge digital library remained stalled on Thursday when a federal judge set a proposed schedule for a lawsuit against the giant search company that could take the case to trial next year.

But Google and the publisher and author groups who are suing it all said they would continue to negotiate on an agreement.

“The bottom line is, we’re making good progress toward a settlement. We would hope to resolve the issues we have left.”

In March, Judge Denny Chin of the Federal District Court for the Southern District of New York rejected the original $125 million proposed settlement among Google, the Authors Guild and the Association of American Publishers, leaving the case in limbo. The case began in 2005 when publishers and authors filed lawsuits against Google over its plan to digitize millions of books.

Judge Chin had given the groups all summer to revise the settlement, twice granting extensions when lawyers for the groups asked for more time, citing the complexity of the issues.

The publisher plaintiffs hinted that they were closer to an agreement with Google than were the authors. Bruce P. Keller, a lawyer for the publishers, said that his clients had no objection to the proposed schedule.

“One of the reasons we have no objection to it is that we think we’ve made enough progress in our discussions with Google so that the schedule may not matter. If we adopt the dates that are being proposed, we hope that those dates will become moot.”

In his ruling in March, Judge Chin cited concerns over copyright, antitrust and other issues in Google’s plans to make millions of books available online, saying it would give Google a “de facto monopoly,” but he suggested that a revised settlement addressing the obstacles might pass legal muster. The incentive for authors and publishers to reach agreement would be to tap a new source of revenue from digitized books.

Negotiations between the Authors Guild and Google were damped by the announcement on Monday that three major authors’ groups, including the Authors Guild, had filed a lawsuit against a partnership of libraries and five universities, contending that their efforts to digitize books violated copyright. Nearly all of those scanned works were provided by Google.

Countrywide May Be Going Bankrupt

Story first appeared in Bloomberg Law.
Bank of America Corp. (BAC), the lender burdened by its Countrywide Financial Corp. takeover, would consider putting the unit into bankruptcy if litigation losses threaten to cripple the parent, said a Boston Bankruptcy Lawyer.
The option of seeking court protection exists because the Charlotte, North Carolina-based bank maintained a separate legal identity for the subprime lender after the 2008 acquisition, said the people, who declined to be identified because the plans are private. A filing isn’t imminent and executives recognize the danger that it could backfire by casting doubt on the financial strength of the largest U.S. bank, the people said.
The threat of a Countrywide bankruptcy is a nuclear option that Chief Executive Officer Brian T. Moynihan could use as leverage against plaintiffs seeking refunds on bad mortgages. Moynihan has booked at least $30 billion of costs for faulty home loans, most sold by Countrywide during the housing boom, and analysts estimate the total could double in coming years.
If the losses become so great, how can Bank of America at least not discuss internally the relative tradeoff of a Countrywide bankruptcy? And if you pull out the bazooka, you’d better be prepared to use it.
Countrywide Practices
Just before former CEO Kenneth D. Lewis bought Countrywide, it was the biggest mortgage lender in the U.S. with 17 percent of the market and $408 billion of loans originated in 2007, according to industry newsletter Inside Mortgage Finance. Regulators later found its growth was fueled by lax lending standards, with loans marred by false or missing data about borrowers and properties.
Bankruptcy for Countrywide has gained credence with some investors and analysts after Bank of America lost almost half its market value this year. The shares have been whipsawed as the caseload of lawsuits by mortgage bond investors expanded, along with doubts about whether the bank has enough reserves to handle claims.
A Countrywide bankruptcy could halt legal proceedings and consolidate litigation into one court that would split up the subsidiary’s remaining assets for creditors. In effect, this would trade one type of litigation for another. The decision would turn on whether the potential savings of a filing outweigh the risks involved in disavowing some of the firm’s obligations.
What Could Go Wrong
Pitfalls include the possibility that a bankruptcy filing would cast doubt on the entire company’s willingness to support its other subsidiaries and damage Bank of America’s standing in the credit markets or with rating firms, hurting its ability to borrow, according to a Houston Bankruptcy Lawyer.
Moynihan, 51, has been asked publicly about a potential Countrywide bankruptcy at least three times in the past year, most recently this week at a conference in New York. The bank’s mortgage division is his only unprofitable business, reporting a $25.3 billion pretax loss in the first half of this year.
Larry DiRita, a Bank of America spokesman, said he couldn’t comment on whether the company planned to file a Countrywide bankruptcy. The bank took great pains to preserve the separate identity of Countrywide.
Separate Accounting
Those steps include using separate accounting systems and profit-and-loss statements for Countrywide units, according to a report prepared for Bank of New York Mellon Corp. (BK), the trustee for a group of investors who agreed to an $8.5 billion settlement in June with Bank of America over faulty loans.
Bankruptcy makes absolute good sense if they can do that, said an Indianapolis Bankruptcy Lawyer. FHFA sued Bank of America and 16 other banks this month to recover losses on about $200 billion in mortgage-backed securities sold to Fannie Mae and Freddie Mae, the government- backed mortgage firms. Bank of America and its subsidiaries created more than a quarter of those bonds.
Given the size of these lawsuits, the potential liability could exceed the net worth of the subsidiary. They could say the claims far exceed the amount that we have and therefore we need a bankruptcy court to pick and choose between those creditors.
Assets Available
Countrywide has $11 billion in assets that could be depleted through demands to repurchase defective mortgages. After that, Bank of America may not have any obligation to pay claims from Countrywide’s creditors.
Typically, a corporation that acquires another firm’s assets isn’t liable for the seller’s debts, unless the transaction is considered a de facto merger or there was fraud in the takeover.
American International Group Inc. (AIG), the insurer that sued Bank of America last month to recoup more than $10 billion in losses on Countrywide mortgage bonds, argued that the bank is a legal successor to the unit. New York-based AIG cited a series of transactions by Bank of America in 2008 that were structured in such a way as to leave Countrywide unable to satisfy its massive contingent liabilities, according to a Paris Bankruptcy Lawyer.
Just in Case
Plaintiffs in the $8.5 billion settlement handled by BNY Mellon didn’t take any chances. Their agreement specified that Bank of America was responsible for making good on the payment because they were concerned that Countrywide might be thrown into bankruptcy, said Bob Madden, a Gibbs & Bruns LLP partner representing institutional investors that sued the bank.
The chances of a bankruptcy filing rise every time another suit gets put on the pile.
Bankruptcy’s Backlash
Bankruptcy would be a last-ditch option, and possibly a costly one, because counterparties might become hesitant to buy the parent company’s debt or open trading lines with its Merrill Lynch unit. Credit-rating firms could downgrade Bank of America subsidiaries, which benefit from the implicit support of their corporate parent. That would drive up the bank’s cost of borrowing.
Most counterparties think this would be a very difficult option for Bank of America and unlikely to be sanctioned by regulators. The whole reason they would pursue the nuclear option of a Countrywide bankruptcy would be to put this behind them, but all you would be doing is opening up a Pandora’s box.
Outstanding Debt
Countrywide has $6.53 billion of debt outstanding, including $2.81 billion of senior unsecured notes, $2.2 billion of preferred securities and $529 million of mortgage-backed bonds, Bloomberg data and Bank of America figures show. The unit’s $1 billion in 6.25 percent notes have plunged 9.2 cents since Aug. 1 to 97.1 cents on the dollar as of Sept. 13, according to Trace, the bond price reporting system of the Financial Industry Regulatory Authority.
Management’s public stance on a potential Countrywide bankruptcy has evolved. In November, responding to a question from Mayo — who had written a report that month entitled “Is a Countrywide Bankruptcy Possible?” — Moynihan said he didn’t see any liability that would make us think differently about working through it in the way we’re working.
Since then, damage from Countrywide has steadily mounted as U.S.-owned Fannie Mae and Freddie Mac step up demands that the bank repurchase soured loans and new suits emerge, including from AIG and the FHFA. Further, New York Attorney General Eric Schneiderman is seeking to scuttle the $8.5 billion deal, which may result in greater mortgage costs, according to a Wilmington Bankruptcy Lawyer.
Last month, when Moynihan was asked during a conference call held by fund manager and bank shareholder Bruce Berkowitz if a Chapter 11 restructuring would be a viable solution for Countrywide, the CEO declined to say what he’d do.