Source: http://www.nationallawjournal.com/id=1202634055202?rss=rss_nlj
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Monday, April 28, 2014
Kansas' Unauthorized LL.M. Program Draws ABA Censure
The University of Kansas School of Law must pay a $50,000 fine for admitting two foreign attorneys into a new LL.M. program that the American Bar Association had not approved.
Sunday, April 27, 2014
THE PRACTICE: Retaliation Suits Put Firms Up Against the 'Ropes'
A second critical maxim of employment law litigation is illustrated by the Ropes & Gray lawsuit: Do not speak ill of the departed.
Source: http://www.nationallawjournal.com/id=1202631180267?rss=rss_nlj
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Washington's sexual orientation discrimination amendment is not retroactive
The Washington State Supreme Court held today that a sexual orientation discrimination amendment adopted in 2006 is not retroactive.
The court also concluded that conduct that took place prior to the amendment is admissible background evidence to prove the discriminatory nature of certain conduct occurring after the amendment.
Loeffelholz v. Univ of Washington (Washington 09/13/2012)
Loeffelholz sued under the Washington Law Against Discrimination (WLAD) claiming discrimination based on sexual orientation. WLAD was amended in 2006 to include sexual orientation as a protected class, and Loeffelholz alleged several pre-amendment acts and one post-amendment act.
The Washington Supreme Court held that (1) the WLAD amendment is not retroactive and the pre-amendment conduct is not actionable as it was not unlawful when it occurred, and (2) the post-amendment allegedly discriminatory comment is arguably similar enough to the pre-amendment conduct to survive summary judgment.
Loeffelholz alleged that her supervisor between 2003 and June 2006 maintained a hostile work environment based on sexual orientation. This was prior to the WLAD amendment. Loeffelholz also alleged a single act of discrimination by this supervisor after the WLAD amendment.
The court's findings:
(1) Pre-amendment conduct is not actionable. Retroactive application of the amendment would violate the employer's due process rights. The plain language of the amendment and its legislative history indicate only prospective application.
(2) Pre-amendment conduct is admissible as background evidence to prove why the post-amendment conduct is discriminatory.
(3) The post-amendment conduct was a single statement by Loeffelholz's supervisor, who was about to be deployed to Iraq, that he was "going to come back a very angry man." The court found that a reasonable jury could infer that this comment was a natural extension of pre-amendment conduct - the supervisor's dislike of lesbians and his anger management problems as illustrated by his comments that he had a volatile temper and kept a gun. This is enough to preclude summary judgment.
Source: http://www.lawmemo.com/blog/2012/09/washingtons_sex.html
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Cell Industry Beats Back Kill-Switch Legislation
After lobbying blitz by Apple and its allies, Mark Leno's bill falls just short.
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Perils of Law Firms Possessing Massive Amounts of Unreviewed Client Data
Some experts believe that, in addition to being prohibitively expensive for law firms to manage, maintaining immense amounts of client data increases the probability that it will be exposed to the public through a security breach or hack. That is why many like-minded firms are outsourcing data management to companies that specialize in it. On this episode of Digital Detectives, hosts Sharon Nelson and John Simek interview Ralph C. Losey from Jackson Lewis P.C. Together, they discuss how to manage large amounts of data, when to outsource, and what to do with unprocessed information. Tune in to learn more about dark data, how to select outside vendors, and hosting costs vs. storage costs.
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.
Ralph C. Losey is a shareholder of Jackson Lewis P.C., a law firm specializing in labor and employment law with over 52 offices nationwide and 800 attorneys. Ralph serves as the firm's National e-Discovery Counsel in charge of electronic discovery issues. Ralph has limited his practice to e-discovery since 2006 and is the author of five books on e-discovery law and multiple law review articles. Ralph is also co-founder of the IT-Lex foundation and the Electronic Discovery Best Practices group, and the developer of an online training course in e-discovery, e-DiscoveryTeamTraining.com. Ralph is a frequent speaker at e-discovery conferences worldwide and a leading contributor in the field of Legal Search.
Special thanks to our sponsor, Digital WarRoom.
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Trial Lawyers and Structured Settlements
There are many benefits of going with a structured settlement. Ringler Radio host Larry Cohen and co-host, Carmella Limongelli join special guest, Attorney Jesse M. Suit III, a trial lawyer and supporter of structured settlements from Kalfus and Nachman, to talk about his experience with structures and the importance of taking care of the client post-settlement.
Source: http://ringlerradio.com/podcasts/ringler-radio/2014/02/trial-lawyers-and-structured-settlements/
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Saudi Arabia court hands down death sentences for 2003 attacks
[JURIST] A Saudi Arabian court on Monday sentenced three people to death for their roles in attacks on expatriate resident compounds in Riyadh in May 2003, bringing the total death sentences to eight. Another 77 people have been sentenced to prison terms [Al AP report] ranging from two to 35 years by the court, which was created to handle terrorism cases. The 2003 attacks, in which terrorists set off explosives in three residential compounds in north-eastern Riyadh that left 35...
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The Power of a Structured Settlement: A Personal Story
Today on Ringler Radio, host, Larry Cohen and his co-host, Jim Early, talk with Congressman Jim Langevin, a Democrat, representing constituents from the 2nd District in Rhode Island since 2001. Congressman Langevin talks about his own personal experience with a structured settlement years ago that helped him and public policy for structured settlements today. Hear one of the best cases for the long-term security of a structured settlement instead of a lump sum settlement.
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Appellate Court Issues Opinion on SEC’s Conflict Minerals Rule
Yesterday, the Court of Appeals for the D.C. Circuit issued its opinion in the challenge to the SEC’s Conflict Minerals Rule. We have reviewed the D.C. Court of Appeals decision and find that it leaves much of the SEC’s rule intact. It is specifically the requirement that companies describe products as not “DRC conflict free” in their SEC filings and on their website that the Court held constitutes “compelled speech” in violation of the First Amendment. In the words of the Court: “Products and minerals do not fight conflicts. The label ‘conflict free’ is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted. . . . By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.”
The Court of Appeals upheld the other elements of the SEC Final Rule, however, and rejected the petitioners’ arguments about the absence of a de minimis exception and the SEC’s application of the rule to companies that only contract to manufacture products. The decision therefore leaves intact the requirement for the issuer to conduct a “reasonable country of origin inquiry,” exercise “due diligence on the source and chain of custody of its conflict minerals” and file a conflict minerals report in the circumstances specified in the rule. Under the DC Circuit decision, however, an issuer cannot be required to describe its products as “not DRC conflict free” in its report. The Court of Appeals suggested that issuers use their own language to describe their products and also invited the SEC to consider publishing a centralized list of products that it believes are affiliated with the Congo war based on information that issuers submit.
The case could be consolidated and reheard en banc with the unrelated case related to meat labelling requirements that raises a similar First Amendment issue. It is also possible that the SEC could stay its rule until the appellate process is completed. As of this writing there has been no word yet from the SEC.
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Saturday, April 26, 2014
Mid-year union dues increase: Hudson notice required, opt-in not opt-out
The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)
This is a remarkable decision for two reasons.
First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.
The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.
The US Supreme Court held (7-2) that
"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."
The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.
Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."
Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.
Source: http://www.lawmemo.com/blog/2012/06/midyear_union_d.html
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No You Didn’t Just Jostle Me!
If you are prone to occasionally jostling, you’ll want to stay out of Topeka, Kansas. Why? The long (non-jostling) arm of the law, that’s why. From the Topeka Municipal Code:
9.45.060 Jostling, crowding.
It shall be unlawful to be found jostling or roughly crowding or pushing any person in any public place.
Lest you think The Juice is making this up, click here and search “jostling”. (The “search” box is in the upper right corner.)
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/bxkJGZR30IQ/21353.html
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Acrobat Tips and Tricks for Lawyers
In this edition of The Digital Edge, hosts Sharon Nelson and Jim Calloway invite Ernie Svenson, commonly known as "Ernie the Attorney," to discuss his recently published ABA book Acrobat in One Hour for Lawyers and unveil all the abilities, outside of just viewing, that PDFs offer. Topics include the benefits of the professional version versus the standard version, specific features for lawyers such as bookmarking, Bates stamping, redaction, quick tips, and more.
Svenson started his career at mid-sized New Orleans law firm where he learned how to do more with less, and at less cost. This made an easy transition to a solo firm where he continued working on the same kinds of commercial litigation cases he handled at his former firm. He then started PaperlessChase.com to help share what he learned from using technology in his law practice.
Svenson started his career at mid-sized New Orleans law firm where he learned how to do more with less, and at less cost. This made an easy transition to a solo firm where he continued working on the same kinds of commercial litigation cases he handled at his former firm. He then started PaperlessChase.com to help share what he learned from using technology in his law practice.
Source: http://legaltalknetwork.com/podcasts/digital-edge/2014/01/acrobat-tips-tricks-lawyers
It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
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Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
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Sidley Austin Looks to Riverbed to Build a Broader Network
Sidley Austin had a legacy network connecting its 17 offices in the U.S., Asia and Europe, resulting in slow data transfers and limiting the firm's ability to centralize IT resources. To create better connectivity between offices, the firm upgraded its network with Riverbed appliances.
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
Court Grills SEC Over Costly Conflict Minerals Rule
One of the most controversial — and costly — rules in U.S. Securities and Exchange Commission history is under scrutiny by a panel of federal appellate judges, who questioned whether the requirement that publicly traded companies disclose the use of certain minerals from the war-torn Democratic Republic of the Congo violates the First Amendment.
Source: http://www.nationallawjournal.com/id=1202636876934?rss=rss_nlj
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Republican Governors Association Ad Draws Rebuke from ABA
The head of the American Bar Association has sent an angry letter to New Jersey Gov. Chris Christie demanding that the Republican Governors Association take down an attack ad against a Democratic trial lawyer running for governor in South Carolina.
Friday, April 25, 2014
LawBiz® Legal Pad: Value Billing
Ed discusses how increase your value by understanding what is most important to your clients.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/rndSR0JE53s/
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Malpractice Suit Against Morgan Lewis Dismissed
Accounting and consulting firm BDO Seidman LLP missed the deadline for bringing a legal malpractice lawsuit against Morgan, Lewis & Bockius, the District of Columbia Court of Appeals ruled Thursday.
You Stole What From Papa John’s?
It would be misleading, though not totally false, to say this guy walked into a Florida Papa John’s and stole pizza. Here’s what happened, per wptv.com:
Polk County deputies say a man walked into Papa John’s Pizza restaurant, put on a pizza costume, and then walked out of the Lakeland restaurant Sunday evening.
You stole a pizza costume? The Juice is guessing you didn’t know they have video cameras in the store.
Detectives say a white man, perhaps 18 years old, entered the restaurant with six others, wearing a white button-up shirt, dark pants and a dark tie. He put the costume on and left the store wearing it.
The costume is described as approximately six feet tall, and looks like a giant slice of pizza with pepperoni, mushrooms, green peppers and black olives.
Video surveillance shows the images of the suspect and four persons of interest. They are described as three older white males with dark hair. One had a full beard. The fourth person of interest is described as a white female with dark hair.
Here’s the source, including a photo.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/yBdzCmJPclY/asdf-20.html
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