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Tuesday, February 25, 2014
Listeners' Legal Tech Questions Answered
The annual Q and A episode has arrived. In this edition of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell will answer the technology questions that listeners have sent in throughout the year. Topics include the addition of technological competence to the ethical rules, the death of certain social media platforms, tech trends for 2014, and Dennis and Tom spring some surprise questions on each other.
Egypt refers Muslim Brotherhood members for mass criminal tribunal
[JURIST] Egypt's Prosecutor General Hesham Barakat [Egypt Independent profile] on Monday referred 504 members of the Muslim Brotherhood [party website; JURIST news archive] for a mass trial. The members are accused of a variety of crimes [AP report] stemming from the Day of Rage clashes on August 16, which resulted in 95 deaths and hundreds of injuries. The Muslim Brotherhood was banned [JURIST report] by the Egyptian government in September, and Barakat has called the Muslim Brotherhood a "terrorist organization"...
LawBiz® Legal Pad: Getting Your Fee
This week, Ed discusses how written engagement agreements are a necessary part of an attorney-client relationship. Just weeks after the New York Times wrote about the hot issue of lawyer fees, Ed describes various ways that lawyers can collect fees.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/H6AspxbBFxU/
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OPINION: A Calculation of Fido's Value Must Include Warm, Fuzzy Factor
Awarding traditional property damages in cases of injured or killed pets falls short.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180028&rss=rss_nlj
2013 Technology Conundrums
Technology can be baffling. Some of legal tech’s toughest questions have been around for 20 or 30 years with no simple answer – but that doesn’t mean we stop trying to solve them. In this edition of The Kennedy-Mighell Report Dennis Kennedy and Tom Mighell will discuss legal-tech conundrums, how to answer them, and how far legal technology has really come.
Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2013/12/2013-technology-conundrums
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California Court of Appeal Makes It Easier to Add Business Owners to a Judgment
Individuals form limited partnerships, limited liability companies and corporations to limit their personal liability. These legal structures encourage entrepreneurs to take risks. The California Court of Appeal, Second Appellate District, however, has made it easier to add a business owner to a judgment that initially was entered only against the corporate or limited partnership entity he or she owns. In Relentless Air Racing LLC v. Airborne Turbine Ltd Partnership (Dec. 31, 2013) 2d Civil No. B244612, the Second Appellate District reversed the trial court’s finding that the business owner could not be added to the judgment under an “alter ego” theory. The Court of Appeal required the limited partners, as well as current and former general partner entities to be added to the judgment against the limited partnership.
In order to add a party to a judgment, the plaintiff must show that:
- the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding,
- there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist, and
- an inequitable result will follow if the acts are treated as those of the entity alone.
Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 508, 509, 511. The first two elements were easily established in the Relentless case. The only issue on appeal was whether recognizing limited liability would lead to an inequitable result.
Relentless obtained a $180,000 judgment against Airborne for breach of contract. The Plaintiff could not collect the judgment because Airborne had no assets. Airborne was a limited partnership. The limited partners were a husband and wife, Wayne and Linda Fulton. The initial general partner during the time period in question was Airborne Turbine, Inc. (“ATI”). The Fultons were the sole shareholders and officers of ATI. During the trial of the Relentless case, the Fultons changed Airborne’s general partner from ATI to Paradise Aero, Inc. (“Paradise”). The Fultons were the sole shareholders and officers of Paradise. The Fultons directed and controlled Airborne’s defense of the Relentless case.
The Fultons and their entities operated their business from the Fultons’ home. The Fultons had partnership and shareholder meetings “several times a day” but kept minutes only of their annual meeting once a year. The Fultons used funds from Airborne to pay ATI’s utility bills in lieu of rent based on an “oral agreement”. The Fultons used Airborne’s money to pay the Fulton’s personal bills by deciding to take a draw from Airborne “when the bills came up”. There was no formal meeting before deciding to take a draw. The Fultons were the sole officers, members, shareholders, owners, and operators of the business entities. The Fultons freely transferred money from the businesses to the Fultons and there was some disregard for the legal formalities. The Court had no problem finding that there was a unity of ownership and that the separate personalities of the entities and owners no longer existed.
The trial court, however, found that there was not sufficent evidence to show that an unjust or inequitable result would occur if Airborne was treated as separate from the Fultons, ATI and Paradise. The trial court appeared to rely heavily on the fact that there was no evidence that the Fultons transferred assets for purposes of avoiding payment of a judgment.
The Court of Appeal held that a plaintiff need not prove that a defendant acted with “wrongful intent,” i.e., with a purpose of avoiding payment of a judgment. According to the Court of Appeal, the defendant’s intent is irrelevant as the only issue was whether recognizing the corporate form would lead to an inequitable result. The Court then held that “it would be inequitable as a matter of law to preclude Relentless from collecting its judgment by treating Airborne as a separate entity.” Stated differently, the Court stated that “there is an inequitable result if the Fultons, ATI and Paradise are not added as judgment debtors” because the judgment would not be collected otherwise.
However, the only time a plaintiff would need to add business owners to a judgment would be if the judgment were not otherwise collectible. In this way, the Court of Appeal’s holding could be construed as effectively eliminating the third “alter ego” element. In this way, the Relentless case could make it somewhat easier to meet the requirements of adding business owners to a judgment against the entity they own. This is particularly true for entities whose owners control the operations of the business. So, what lessons can we learn from Relentless?
- Business owners can be added to a judgment after it is entered even if they were not named as parties throughout the case. This is not new, but it is useful to remember. The Fultons wrongly assumed they could not be personally liable. Had they appreciated their personal exposure, they might have handled the case differently.
- Member-managed limited liability companies, closely held corporations, wholly owned subsidiaries, and limited partners with few limited partners who control the general partner may not have the liability protection they assume they have. In these situations, the first element of control over the litigation may be easy to prove.
- Business owners should create at least the appearance of separateness by having separate physical space for business operations, separate books and records, formalized agreements between commonly held business entities (particularly if costs are to be shared), separately documented shareholder/member/limited partner meetings, and formal compensation guidelines. Activity that blurs the distinction between the corporate forms is to be avoided.
- Business owners should refrain from paying personal bills with a corporate account.
- Businesses should consider having outside directors or managers.
- Consider having an outside firm conduct an “alter ego” audit.
Russia court sentences anti-government protesters
[JURIST] A Russian court on Monday sentenced seven anti-Putin protesters to up to four years in prison for rioting and inciting violence against police at a 2012 protest. The protesters were arrested [Guardian report] the night before Vladimir Putin's inauguration to his third term as president. At the protest in 2012, police cut off access [AP report] to the public square where the rally was to be held. In response, Putin signed into law [JURIST report] a controversial bill that...
Source: http://jurist.org/paperchase/2014/02/russia-court-sentences-anti-government-protesters.php
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Monday, February 24, 2014
Tis the Season: Tech Toys for the Holidays 2013
In this edition of The Digital Edge, Sharon Nelson, Esq. and Jim Calloway present their annual Tech Toys for the Holidays episode. Your hosts each present the top electronics on their wish lists and shopping lists for the gift-giving season. Tune in for inspiration and an update on the newest, coolest gadgets like smartphone spy lenses, doorbells connected via wifi, portable chargers powered by hydrogen and oxygen, and more.
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Hookah Copyright Claim Goes Up in Smoke
Although available in various designs and colors, the shape of a hookah's water container is not copyrightable, according to a federal appeals court.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637627585&rss=rss_nlj
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Auto Parts Antitrust Case Produces First Civil Settlement
A Japanese automotive parts supplier has agreed to pay $6 million to resolve claims of price-fixing and bid rigging in the first civil settlements in a sweeping antitrust case coordinated in federal court in Detroit.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202636781749&rss=rss_nlj
Affirmative action ban in state constitution violates US constitution (8-7)
Michigan voters adopted a state constitutional amendment that prohibits "all sex- and race-based preferences in public education, public employment, and public contracting."
The 6th Circuit (8-7) held this provision - as it relates to education - violates the 14th amendment's equal protection clause.
Coalition to Defend Affirmative Action v. Univ of Michigan (6th Cir 11/15/2012)
(Plaintiffs limited their challenge to racial discrimination in public education.)
The court said that a black applicant could seek adoption of a constitutionally permissible race-conscious admissions policy only through the "lengthy, expensive, and arduous process" of amending the state constitution. On the other hand, someone wishing to change any other aspect of a university's admissions policy has four options - lobby the admissions committee, petition the leadership of the university, seek to influence the school's governing board, or initiate a statewide campaign to alter the state's constitution.
"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change."
Seven judges wrote five DISSENTING opinions. Six said that the majority relied on two US Supreme Court cases that "have no application here," and one said that the majority relied on "an extreme extension" of those cases. The cases are Hunter v. Erickson, 393 US 385 (1969), and Washington v. Seattle Sch Dist, 458 US 457 (1982).
Source: http://www.lawmemo.com/blog/2012/11/affirmative_act.html
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Fighting Video with Video
Sheriff's deputies in Clark County, Ohio, have been given dispensation to wear "pocket cameras" on the job. Not because someone decided it was a good idea for them to video their interactions with member of the public, which is not only a perfectly fine thing to do, but one that has been embraced by other department. According to the Dayton Daily News:
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on theSam Browne body armor, they do with the knowledge that they are no longer acting as ordinary people who just happen to be entitled to seize other ordinary people by pointing a gun at their head. Their authority comes from the job, from the People, who put up the money for their uniform allowance.
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Clark County Sheriff’s deputies are wearing pocket cameras that record their work to help their cases and to protect themselves against accusations of misconduct.So that's how it's going to be, if we record them, they record us. Tit for tat. Fight fire with fire. So nobody in Dayton will be arrested or hassled for videotaping police anymore? What's wrong with that?“Every call we go on, someone’s going to record us,” Clark County Sheriff Gene Kelly said. “We have that same technology.”
Deputies are not required to wear the cameras but can purchase them independently or with their uniform allowance.
Of course, that's not how it worked out when Rory Bruce was tried, but it reveals the one-way street attitude that video is going through on its way to maturity. When the cops want to use it, because it benefits them, it's perfect. A picture is worth a thousand words. When it reflects poorly on cops, it never tells the full story and should be completely disregarded.Kelly said that law enforcement can use the cameras to their benefit if there are false allegations.
“They say a picture is worth a thousand words,” Kelly said.
What Elliott records with his camera can be used for evidence.
“If I feel there are evidentiary purposes, I will submit it to the courts,” said Elliott, who has worn his for about a year.
But what the Clark County Sheriff's office is doing shows the danger of playing this game. Inexplicably, police haven't quite gotten the memo that they are rather unique public employees. They aren't let loose on the streets with guns and shields because they are just a bunch of cool guys, but because they hold a special authority that society has entrusted to them to protect and serve.
When they take the oath and strap on the
Are there rules for the use of pocket cameras in Clark County? Who decides when the camera gets turned on? Must deputies preserve what the camera sees, whether it's good for them or not? Does Gene Kelly, the Sheriff, get to decide what's of "evidentiary value" and what's not? Who preserves the integrity of the video? On whose computer does it get downloaded? Or deleted? Or altered?
A picture may be worth a thousand words, but that's true whether the picture is accurate or modified to show something false. And if the picture shows a cop doing something bad, then the lack of a picture is worth even more words, the words of argument that there is no proof of a beating, a false arrest, a killing.
Members of the Clark County Sheriff’s office are not permitted to have original copies of the digital media evidence after their shifts, according to digital media evidence policies for the office.
And what happens to the deputies if they do? Who decides what gets uploaded after a shift? Is this intended to prevent a deputy from screwing with videos at home or uploading embarrassing videos on Youtube of their interactions on the job?
There probably isn't anyone who disagrees with this, though its hardly as simple as Kelly would have it. We're still a ways off from figuring out how video will best serve "deputies and civilians," ignoring, of course, that deputies are civilians, but I hesitate to be overly critical of Ben Hunt, human resources and labor relations administrator at the Clark County Sheriff’s Office, for his confusion. It's got Tale of Two Cities potential, best and worst at the same time.“They can be used to protect deputies and civilians to be sure everything is safe and appropriate,” Hunt said.
Officials believe that the cameras will be helpful in protecting themselves and the community.
“I think there will be a time when everyone carries one,” said Kelly.
But the set up of deputies carrying personal video to offset the public having video of their own smacks of a deeply entrenched "us" versus "them" problem, and provides all sorts of opportunity for facile abuse. Cops want to video their interactions for everyone's benefit? Cool. But then it has to be done right, used from the initiation of all interactions and remain on until the bitter end, preserved in a manner that secures it from any alteration and available to everyone, cop or non-cop alike, should it be needed.
Why isn't the public required to do so if that's what you demand of cops? Because you are cops, whose function is to protect and serve at the behest of the public. This is the life you chose and the obligation that goes with it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/14/fighting-video-with-video.aspx?ref=rss
What Would Atticus Have Done?
Hearing that the mob was going to storm the jail and lynch Tom Robinson, the fictional Atticus Finch stood at the doorway to block their entrance. Among criminal defense lawyers, Atticus Finch is revered as a paragon of honor. Not all lawyers saw it that way.
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
In 1992, Monroe Freedman, a legal ethics expert, published two articles in the national legal newspaper Legal Times calling for the legal profession to set aside Atticus Finch as a role model. Freedman argued that Atticus still worked within a system of institutionalized racism and sexism and should not be revered. Freedman's article sparked a flurry of responses from attorneys who entered the profession holding Atticus Finch as a hero, and the reason they became lawyers. Critics of Atticus such as Freedman maintain that Atticus Finch is morally ambiguous and does not use his legal skills to challenge the racist status quo in Maycomb.While Atticus might have fulfilled the highest calling of a lawyer, Freedman saw the character as failing his calling as a human being in a racist society, and considered that to be a fatal flaw.
Monroe H. Freedman, ""Atticus Finch, Esq., R.I.P.,"" 14 LEGAL TIMES 20 (1992); Monroe H. Freedman, ""Finch: The Lawyer Mythologized,"" 14 LEGAL TIMES 25 (1992) and Monroe Freedman, Atticus Finch – Right and Wrong, 45 Ala. L. Rev. 473 (1994).
Yesterday was Race Day at the New York Times, where two op-eds argued the failure of a certain verdict in Florida was due to the one word unspoken throughout the trial, race. In a "surprising" choice that suggests the power of an excellent public relations team, one op-ed was by Gloria Allred's daughter, Lisa Bloom, who, after explaining the basis for her assumption about what was inside George Zimmerman's head, illuminated the race issue with the insightful:
Huh?In contrast, Cardozo lawprof Ekow Yankah invokes the spirit of his fellow lawprof, Freedman, in writing:
The anger felt by so many African-Americans speaks to the simplest of truths: that race and law cannot be cleanly separated. We are tired of hearing that race is a conversation for another day. We are tired of pretending that “reasonable doubt” is not, in every sense of the word, colored.This conforms with my assumption as well. I find it impossible to believe that Zimmerman's perception of Martin as being "a punk" wasn't colored by race. Sure, there was also youth and attire, but it was part of the whole package. And to the extent that his skin color played a role in his perception that this was a kid who needed to be followed, who posed a threat of doing something wrong, it is racist. Maybe not white hooded, cross-burning racism, but racist nonetheless.
Every step Mr. Martin took toward the end of his too-short life was defined by his race. I do not have to believe that Mr. Zimmerman is a hate-filled racist to recognize that he would probably not even have noticed Mr. Martin if he had been a casually dressed white teenager.
This isn't a legal argument, however. Bloom and Yankah are both writing from the legal perspective, but what they are writing about isn't legal. It's sociological, a condemnation of a society that is still racist despite having a black president. Anyone who thinks it's "problem solved" is delusional.
But Yankah contends that it is "the simplest of truths: that race and law cannot be cleanly separated." Cleanly? No, it probably can't be cleanly separated, though it's similarly unclear that this constitutes "the simplest of truths." There is nothing simple about it.
It gives rise to a troubling question, that Yankah fails to adequately address and is way over Bloom's head.
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.Being fully willing to accept that race factored into Zimmerman's perception, based on my own personal bias, the question that remains unanswered is what should the law have done about it?We know this, yet every time a case like this offers a chance for the country to tackle the evil of racial discrimination in our criminal law, courts have deliberately silenced our ability to expose it. The Supreme Court has held that even if your race is what makes your actions suspicious to the police, their suspicions are reasonable so long as an officer can later construct a race-neutral narrative.
Does the introduction of race by the prosecution into Zimmerman's perceptions alter the rule of self-defense? Does it render his subsequent conduct unlawful, even if it would have been lawful otherwise? Should there be two rules of law, one for interactions between people of different races where perceptions of the significance of conduct is assumed to be racially related, if not motivated?
To point out that we still live in a society where race remains a pervasive unresolved issue is to state the obvious. To suggest that the criminal law should accommodate it is to present an intractable problem. Atticus Finch didn't hesitate to put his life on the line for his client, a black man accused of raping a white woman. But he didn't do enough because he didn't confront the racist society in defending Tom Robinson?
If the prosecution had been allowed, and inclined, to argue that George Zimmerman's conduct was racially motivated, and that his ultimate decision to shoot and kill Trayvon Martin was, at least in the tiniest of ways, based upon his race, would that have rendered his belief that he was about to suffer death or serious injury unreasonable? If his head was being beaten against concrete by a white youth, as opposed to a black youth, would the harm have been different?
The argument that this scenario would never have commenced had Trayvon Martin been a white youth in a sports jacket and khakis is likely true. It's pure speculation no matter how much your head screams "yes, yes, yes," of course, but still. Yet how would the law have been any different at the point where a shot was fired?
If we are to have a nation of laws to guide ourselves, how do we draw these vague, fuzzy lines where the law ceases to apply, where it's a free for all, where there is no longer a fixed right and wrong and everything becomes a matter of feelings, assumptions and personal perspective? Yankah may be right that race and law cannot be cleanly separated in our collective consciousness, but then we cease to be a nation of laws when we ignore one for the other.
You might prefer that to happen here, but will you feel the same when you sit in the defendant's chair? So what would Atticus Finch have done? He would have defended George Zimmerman based on the law, even if he failed to meet Monroe Freedman's expectation that he not be morally ambiguous. Atticus Finch would have still been the paragon of honor, even in the face of societal condemnation. That's what criminal defense lawyers do. That's what we are sworn to do.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/16/what-would-atticus-have-done.aspx?ref=rss
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US vice president threatens sanctions against Ukraine
[JURIST] US Vice President Joe Biden [official profile] on Thursday threatened targeted sanctions [press release] against the Ukrainian officials responsible for violence against civilian protesters. Biden urged Ukrainian President Viktor Yanukovich [official website; JURIST news archive] to remove security forces from Kiev and to take "immediate and tangible steps" toward ending the violence and addressing the concerns of the Ukrainian people. At least 25 individuals have been reported dead and more than 240 injured in protests that escalated when individuals...
Source: http://jurist.org/paperchase/2014/02/us-vice-president-threatens-sanctions-against-ukraine.php
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Sunday, February 23, 2014
A State Judge’s Perspective On E-Discovery
The Honorable John M. Tran uses the terms digital natives and digital immigrants when referring to judges. Coined by author Marc Prensky, digital natives are those born into technology and digital immigrants are learning the field as they go. It’s not uncommon for judges to be digital immigrants, forcing them to confront issues on the bench that they have never experienced. In this edition of Digital Detectives, hosts Sharon D. Nelson, Esq. and John W. Simek invite long-time friend Judge Tran to discuss how his colleagues keep up to date on technology, his views on cooperative discovery as both a judge and a past litigator, and what he’s seen as the best way to address discovery in the courtroom.
Judge John M. Tran started his career at a boutique litigation law firm in Virginia where he had extensive experience in e-discovery matters, in both the state and federal court. Now he is a state judge in the Fairfax Circuit Court, in the 19th judicial circuit of Virginia. He is a graduate of the George Washington University and the George Washington University Law School.
Special thanks to our sponsor, Digital WarRoom.
Judge John M. Tran started his career at a boutique litigation law firm in Virginia where he had extensive experience in e-discovery matters, in both the state and federal court. Now he is a state judge in the Fairfax Circuit Court, in the 19th judicial circuit of Virginia. He is a graduate of the George Washington University and the George Washington University Law School.
Special thanks to our sponsor, Digital WarRoom.
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Second Circuit Holds Delaware Fiduciary Duty Law Preempted By Federal Interest In Fiscal Stability
In Starr International Co. v. Federal Reserve Bank of New York, No. 12-5022-cv, 2014 U.S. App. LEXIS 1770 (2d. Cir. Jan. 29, 2014), the United States Court of Appeals for the Second Circuit affirmed the dismissal of claims against the Federal Reserve Bank of New York (“FRBNY”) for alleged breaches of its fiduciary duties, holding that federal common law preempted state fiduciary duty law. This decision provides an example of circumstances in which federal common law preempts state law. Where, as here, a uniquely federal interest in the stability of the economy conflicts with state law, federal common law will prevail.
During the throes of the 2008 financial crisis, American International Group, Inc. (“AIG”) warned the federal government that it faced possible bankruptcy. In response, FRBNY offered AIG a rescue arrangement. AIG accepted the deal. Starr International Co. (“Starr”), an AIG stockholder, subsequently filed a complaint alleging direct and derivative breach of fiduciary duty claims against FRBNY. Starr alleged FRBNY had breached its fiduciary duties because (1) FRBNY caused a special vehicle funded by FRBNY and AIG to purchase $62 billion in assets from AIG default swap counterparties at full par value, effectively giving them “backdoor bailouts” to the detriment of AIG and (2) FRBNY brought about a reverse stock split of AIG’s common shares to circumvent a vote by AIG’s common shareholders rejecting a proposal to increase the number of shares of AIG common stock. Starr also claimed that FRBNY had aided and abetted AIG’s officers in breaching their fiduciary duties, and was liable for its actions under Delaware corporate fiduciary duty law. FRBNY moved to dismiss.
The United States District Court for the Southern District of New York dismissed plaintiff’s fiduciary duty claims for failure to state plausible claims, holding that (1) Starr failed to plead that FRBNY owed fiduciary duties to AIG under Delaware law and (2) Delaware fiduciary duty law was preempted by federal common law because FRBNY is a federal instrumentality charged with preserving the stability of the national economy. Starr appealed.
The Second Circuit affirmed, agreeing with the district court’s holding that federal common law preempted Delaware’s fiduciary duty laws in this case. The Court first discussed the nature of federal reserve banks, noting that FRBNY, as a regional federal reserve bank, is “an instrumentalit[y] of the federal government.” Federal reserve banks are “fiscal agent[s]” of the United States that operate “in furtherance of the national fiscal policy,” and not for shareholder profit. Federal reserve banks perform some “general fiscal duties of the United States” and have the power to provide discretionary emergency loans to nonmembers in “unusual and exigent circumstances” where that nonmember’s failure to obtain credit “would adversely affect the economy.” See 12 U.S.C. § 343; 12 C.F.R. § 201.4(d).
The Second Circuit went on to observe that federal common law preempts state law in areas of “uniquely federal interests” when a “significant conflict” exists between a federal policy or interest and the operation of state law. The court determined that such a conflict existed when FRBNY rescued AIG during the 2008 financial crisis. If FRBNY were a fiduciary under Delaware law, it would have a duty to protect its shareholders and act in their best interest. The court deemed that fiduciary duty in direct conflict with FRBNY’s duty as a federal reserve bank to act in the public interest and take necessary action in situations where a failure to act “would adversely affect the national economy.” The court declined to consider whether FRBNY had exceeded its statutory authority in rescuing AIG, noting that Starr had not identified any case that limited the scope of preemption and permitted state law to police a federal actor’s “excesses of authority.”
The Second Circuit’s decision in Starr provides additional guidance as to the sort of “uniquely federal interest” and “significant conflict” with state law, which will lead to federal common law preempting state law. Companies seeking to determine whether preemption applies in a particular instance may look to Starr for an example.
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For Abused Native American Women, New Law Provides A 'Ray Of Hope'
Starting Thursday, three American Indian tribes can prosecute non-Indians for some domestic violence crimes. The change stems from a provision included in the Violence Against Women Act.
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Enhanced 911, The FCC, and a Grandfather’s Mandate for Direct Dial
In an emergency, seconds count. What if you couldn't call 911 because you couldn't reach an outside line? On this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews Henry "Hank" Hunt, the man petitioning for Kari's Law, and FCC Commissioner Ajit Pai. Together they discuss the importance of uniform dialing for 911.
Henry Hunt's nine year old granddaughter, through no fault of her own, could not reach 911 to save her mother. Despite her multiple attempts, the calls would not connect because the hotel's phone system required dialing 9 to get an outside line. In the wake of these events, this Texas grandfather started the Kari's Law petition which calls for mandated direct-dial 911.
Ajit Pai serves as FCC Commissioner focusing on regulatory environments where competition and innovation flourish. He is the former Associate General Counsel at Verizon. In addition, he has served as Senior Counsel with the Department of Justice and Chief Counsel to the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property Rights.
Henry Hunt's nine year old granddaughter, through no fault of her own, could not reach 911 to save her mother. Despite her multiple attempts, the calls would not connect because the hotel's phone system required dialing 9 to get an outside line. In the wake of these events, this Texas grandfather started the Kari's Law petition which calls for mandated direct-dial 911.
Ajit Pai serves as FCC Commissioner focusing on regulatory environments where competition and innovation flourish. He is the former Associate General Counsel at Verizon. In addition, he has served as Senior Counsel with the Department of Justice and Chief Counsel to the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Property Rights.
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Social Media E-Discovery: Keeping On and Keeping Up
Social media data presents significant challenges for lawyers when it comes to issues of investigation, preservation and discovery. Nonsense words, arcane acronyms and unexpected abbreviations are just some of the things that attorneys need to look for in order to effectively discover evidence via social media. In this edition of The Legal Toolkit, your host, Jared Correia, invites Trent Livingston to discuss the challenges of sourcing social media evidence, the differences between public data, private data, metadata, and more.
Trent Livingston is a director with Intelligent Discovery Solutions, Inc., and advises law firms and corporations surrounding the implementation and use of e-discovery, web and cloud-based technology. He is an adjunct professor for Golden Gate University, where he teaches complex data discovery. He is also the owner and founder of Geekly Group, LLC, a web technology consortium. You can check out his blog at www.TrentLivingston.com.
Trent Livingston is a director with Intelligent Discovery Solutions, Inc., and advises law firms and corporations surrounding the implementation and use of e-discovery, web and cloud-based technology. He is an adjunct professor for Golden Gate University, where he teaches complex data discovery. He is also the owner and founder of Geekly Group, LLC, a web technology consortium. You can check out his blog at www.TrentLivingston.com.
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