April 2008 Archives
A suburban wife and mother who has been living in
Deputy
Walsh has lived in
Walsh was booked into Las Colinas county jail, where she is awaiting extradition to
Another dangerous affluent suburban mother of three off the streets and in jail where she belongs.
John M. Hanamirian
Genetic Information Nondiscrimination Act 95 to 0. The Bill, which is expected to shortly sail through the House and then be signed by the President, aims at the two areas of concern over the abuse of DNA testing: it will make it illegal for insurers to deny health coverage to someone on the basis of genetic information and will bar employers from hiring or firing anyone on the basis of such information.
You might recall this office raised precisely these concerns when arguing that NBA center Eddie Curry could not be compelled by his then employer, the Chicago Bulls, to undergo genetic testing for hypercadiomyopathy. The Bulls ultimately backed down from the demand and traded Curry to the New York Knicks.
The Senate Bill will be welcome protection to citizens in this brave new world where DNA testing may reveal our propensities, but not our certainties, to contract certain diseases, become addicted to certain behaviors, or engage in certain socially undesirable activities.
The Supreme Court issued its anxiously awaited decision in Crawford v.
This opinion simply ignores the history in this country, including recent history in the last two presidential elections, of state authorized attempts to discourage minorities from voting. As the well reasoned dissent of Justice Souter makes clear, Indian’s law “poses nontrivial burdens on the voting rights of tens of thousands of the State’s citizens.” Republicans were quick to applaud the Court’s opinion and Democrats to condemn it. One day, hopefully, both parties will encourage attempts to make it easy for all Americans to vote and resist attempts to place burdens in the path of the democratic process.
Here is an excellent article on the absurdity of the current NBA eligibility rule. The author makes the point that it does a disservice to the integrity of the college system to require athletes ready to compete at the next level to spend one year and one year only at an institution of higher learning.
Alan Milstein
A grizzly bear featured in the recent Will Ferrell film "Semi-Pro" and touted as one of the "best trained" in show business has killed its handler. Officials familiar with the incident said on Wednesday they were puzzled by what provoked the attack. Yes, what would provoke a 700 pound bear filming a television commercial to attack?
The bear, which stands 7 1/2 feet tall, bit the handler in the neck on Tuesday at a facility where wild animals are trained for film and TV productions. How about we don't do that anymore. We do not need live animals in movies or for any entertainment purpose. To fit into the law blog, let's call this Animal Rights.
What happens when hourly employees are assigned Blackberrys or IPhones by their employer and compelled to respond to emails and text messages after the 8 hour shift? The marketing of such devices offers the plus side that such technology brings the office home or anywhere the employees happen to be. A number of legal scholars are hinting that such after-hours communicating is overtime work.
Everyone has heard or even uttered the complaint that the new technology puts them on call 24/7. No doubt attorneys and other hourly service providers are beginning to bill their clients for out of office time spent responding to emails. Logic would suggest that employees who find their employers are essentially getting their precious time for free may have a claim under wage and hour laws for the time spent out of the work place working. And employers may need to restrict the use of such devices for work related activity unless they are willing to pay for their employees’ time.
It’s a brave new world.
In a remarkable opinion, the Second Circuit decided Christine Todd Whitman was immune from personal liability when, as Secretary of the Environmental Protection Agency, she gave false assurances about the air quality in and around Ground Zero following the attacks on September 11. The court in Benzman v. Whitman, 06-1166 (2nd Cir.,
The plaintiffs argued that Whitman’s statements were not just reflective of “deliberate indifference,” the constitutional standard addressed in prior cases, but were “intentional lies.” The court concluded: “We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on
Not always for ever instance, but should be if the allegations in this case are accurate.
Alan Milstein
In a ruling preferring form over substance, a
In Home Depot U.S.A. v. Ohio Casualty Ins. Co., the retail store was sued for negligence and fraud after one of its window installation contractors installed a house’s windows backwards and upside down. Home Depot reported the claim and tendered its defense to its insurer. Assuming that it was entitled to coverage by its insurer, Home Depot failed to provide notice of this claim to the contractor’s insurer at this time.
Home Depot’s insurer denied the claim because it resulted from the contractor’s acts. Home Depot then reported the claim and tendered its defense to the contractor’s insurer, who denied coverage claiming that it was prejudiced as a result of the late notice. Home Depot had argued that the contractor’s insurer was on notice of the claim because it was defending the contractor in this lawsuit.
The court inexplicably held that Home Depot was a sophisticated corporate entity who should have familiarized itself with the policy, including the notice provision, that it required the contractor to obtain and name Home Depot as an additional insured. The court held that a potential insured should notify any and all potential insurers about a loss, even if they think they are covered by a different insured. Good advice. But left unsaid was how the court considered the insurer was in any way prejudiced by the late notice given that its insured had provided timely notice of the claim.
The lesson to be learned here, of course, is that a party should give notice in such circumstances to every carrier who might be on the risk. Also that courts sometimes put the windows in backwards, too.
Melissa Birnbaum
A former Internal Revenue Service agent has been sentenced to one year in prison, supervised release for one year and a $10,000.00 fine for carrying out a scheme to obstruct the IRS by fraudulently using net operating losses (typically generated from the operation of a business) to offset his personal income tax liability and for attempting to sell those same losses to other individuals or, what I often call, trafficking in losses. The defendant, Mr. Harry Wilner of
Apparently, Wilner was a "team leader or coordinator" in the Large and Mid-Size Business Division of the
John M. Hanamirian
Our friend Michael McCann was recently interviewed by NPR about the vote by the NBA to allow the Seattle Supersonics to move to
Criminal charges have been filed against two men who are accused of burning down the
As a result, the towns where “Twinkle Twinkle Little Star” and “Baa Baa Black Sheep” were penned are on high alert.
No word yet on whether Mary’s carrier had refused coverage on the grounds that either Mary or one of her lambs had conspired to have their residence set ablaze.
Jeffrey Resnick
By now you have surely heard that the Yankees are building a new stadium. As a joke, construction worker Gino Castignoli buried a Red Sox jersey underneath the new stadium last year. The Yankees found out and, rather than letting the jersey stay there, spent approximately $50,000.00 to remove the jersey.
Even though this was unnecessary, the Yankees could have generated good public relations because they are donating the jersey to
Memo to Yankees: Grow up. You have no cause of action and no damage. As Castignoli says, “Anybody with half a brain knows it was all done in fun.” Try putting your efforts into beating the Red Sox on the field, not in the courtroom.
Jeffrey Resnick
As you may recall,Mr. Snipes was acquitted of the felony charges against him and this recommendation for 3 years in jail and a five million dollar fine is for the three misdemeanor failure to file income tax return charges for which he was convicted. The three years seems a bit harsh. It's not like he is Martha Stewart or some other dangerous criminal.
John M. Hanamirian
There may be some relief for individuals and their families who suffered from exposure to asbestos. In Continental Casualty Co., et al. v. Employers Ins. Co. of Wausan, a New York trial court found that employees of Robert A. Keasbey Company, a small New York insulating company who has been out of business since 1995, were exposed to asbestos during the installation and removal processes. The employees’ injuries occurred before the completion of the work, not after, and thus the premises/operations coverage applies rather than the products/completed operations coverage.
This distinction is important because the premises/operations coverage does not have an aggregate limit, it only has a per occurrence limit. On the other hand, the products/completed operations coverage has an aggregate limit, which is exhausted.
Before determining that the company’s primary and excess insurers are on the hook, the Court also examined whether exposure to asbestos in general was considered one occurrence under the policy or whether each injured employee’s exposure was considered a separate occurrence. The Court determined correctly that each injured employee’s exposure was a separate occurrence because the exposure occurred at various work sites over many years. Injured employees and their families may now seek funds from the companies’ primary and excess insurers under the premises/operations coverage.
This decision has many other injured individuals and their families re-examining their facts and it will be interesting to see what effect it has on asbestos litigation. Finally some employees and their families will receive long overdue compensation for their illnesses.
Melissa Birnbaum
In the context of his visit to the United States this week, Pope Benedict said he was "deeply ashamed" of the clergy sexual abuse scandal in the Church and will work to make sure pedophiles don't become priests.
"It is a great suffering for the Church in the
Benedict's trip to the
Some feel as though the church has been complicitous in the abuse noting that although a few bishops accused of molestation have stepped down, no bishop has been disciplined for failing to keep abusive clergy away from children. Cardinal Bernard Law resigned as archbishop of in 2002 after church files were made public showing he and other church leaders had allowed accused clergy to continue in public ministry.
John M. Hanamirian
Yes, the Department of Justice announced the creation of a national "tax defier" or TAXDEF (it's the government, there has to be an acronym) inititative the purpose of which is "to reaffirm and reinvigorate the Tax Division's committment to investigate, pursue and prosecute those who take concrete action to defy and deny the fundamental validity of the tax laws". Apparently, the term "tax protestor" is now out of favor due to the potential it had for representing some "noble effort" says Assistant Attorney General Nathan J. Hochman. Hochman further stated:
"These folks link themselves to so-called patriotism, but at the end of the day, all it is about for them is their greedy self-interest." This TAXDEF initiative should send an unequivocal message to honest taxpayers that, to the extent any of their neighbors on their right or on their left engage in tax defier conduct, their neighbors will go to bed knowing that tomorrow may be the day when their crime will be prosecuted to the fullest".
I don't even know where to begin. Okay, first the TAXDEF or Defier Intitiative is obviously a response to Mr Snipes' acquitttal of the felony offenses for which he was charged. Second, I quoted Hochman because if I hadn't, some would have said something was lost in the translation. I actually checked the announcement date to see if it was April 1, but it was April 8.
Let's make this deal. How about next time you lose a case where a major motion picture actor admits his crimes in a 500 page written statement and there is a website that details how the crimes were committed, we don't thereafter spend tens of millions of dollars on nonsensical deterrence efforts. Next time, just spend the money to prosecute the case. Then, just then, my neighbors might sleep.
John M. Hanamirian
The London Times is reporting that Jerome Kerviel plans on suing his employer Société Générale for wrongful discharge. Kerviel you might remember was the rogue trader accused of losing his bank €5 billion in one of the world’s biggest financial scandals.
The 31 year old trader was recently released on bail after 37 days in prison on charges of breach of trust, fabricating documents and illegally accessing computers. The gist of Mr. Kerviel’s claims is that the bank violated French employment law by failing to hold a face to face meeting with its employee prior to discharge. The bank says that would have been difficult because the conditions of Kerviel’s bail forbade him from in any way communicating or contacting his employers. Good point.
In Cinergy. v. Associated Elec. & Gas Ins. Services, Ltd, an insurer, AEGIS, sought a declaratory judgment that it was not liable for the defense costs of its insureds until it was determined that its insureds were entitled to coverage for the underlying claims. The underlying action in Cinergy concerned whether the insureds were entitled to coverage for an action brought under the federal Clean Air Act by the
The Indiana Supreme Court confirmed the appellate division’s decision that the insureds were not entitled to a defense in the underlying action even though the insureds’ policies stated that the policies imposed a duty on the insurer to directly pay for all amounts associated with its insureds’ defense of a lawsuit.
Even though prior
The Court avoids deciding whether insurers as a general rule should defend their insureds in environmental actions brought by the government even though concern for public health and environmentalism are in the forefront. The Court also declines to examine whether the public good is served by obligating the insurers to pay for costs to defend litigation, rather than the power companies, who are less able to absorb the costs of litigation than their insurers.
One important question that this decision leaves us with is whether these power companies will survive and be able to pay for a defense for these actions and upgrades to their facilities to meet environmental standards when insurers can avoid coverage by adding a phrase in the insurance contract which redefines the scope of coverage. If independent power companies are not able to survive and bought out by larger companies, what will happen to competition? Will our power companies follow the path of the oil companies and will the public eventually be the ones to pay for the defense and upgrade through our power bills?
Melissa Birnbaum
Bob Dylan was awarded an Honorary Pulitzer Prize. Kudos to Mr. Dylan and the Pulitzer Committee. What does this have to with the law? Absolutely nothing.
Here is an excellent essay by Paul Gelsinger and Adil Shamoo about whether any real change has occurred since Jesse Gelsinger’s death eight years ago.
The Montana Supreme Court recently declared that exclusions in a commercial general liability policy did not apply to an additional insured. In Swank Enterprises, Inc., et al. v. All Purpose Services, Ltd, the court found coverage on behalf of a general contractor who was an additional insured under a subcontractor’s commercial general liability policy, even though the subcontractor was barred from coverage by the policy’s business risk exclusions.
The policy’s “severability of interests” clause provides each insured with separate coverage for any claims or suits as if different policies applied to the named insured and the additional insured. The business risk exclusions of the policy only applied to the named insured because these exclusions used the terms “you” and “your,” which the policy defined as the named insured without mention of the additional insured. The court noted that although the business risk exclusions for the applicable year only specifically referred to the named insured, the subsequent year’s policy changed and specifically applied the business risk exclusions to both the named and additional insureds. The court relied on the well-established rule that exclusions are narrowly and strictly construed against the insurer and found coverage for the additional insured.
This decision is important because it extends coverage to innocent third-parties who contracted for coverage and have claims and suits brought against them as a result of another party’s negligent or intentional acts or omissions. The court confirms that the responsibility for the defense and indemnity of an insured rests on its insurance company. In the end the parties received what they contracted for: the additional insured received the insurance coverage that it contracted for with the named insured for claims or suits brought as a result of the named insured’s acts or omissions and the insurance company was bound by its insurance contract, in which it had agreed to insure the additional insured.
Senate Finance Committee Chairman Baucus says that his office continues to work towards achieving some certainty in reaching a bipartisan estate tax compromise. The current estate tax legislation is set to expire in the next eighteen months or so and taxpayers and practitioners are in an abyss. The general sense is that the estate tax unified credit may return to $1,000,000.00 per person or $2,000.000.00 per married couple. I know it sounds like a lot of money, but if you look at the middle and upper middle class, and include the value of their homes and any retirment monies they may have accumulated, it adds up very quickly. Stay tuned.
John M. Hanamirian
Judge Marvin Arrington is fed up with the defendants he keeps seeing in his courtroom, so on Tuesday, he ordered white lawyers out of his courtroom so he could lecture African-American defendants. 
"In retrospect, it was a mistake," Judge Marvin Arrington told reporters. "Because my sheriff said to me, 'Judge, that message should be given to everybody' -- 'Don't violate the law, make something out of yourself, go to school, find a role model, somebody that will help you advance your life.'"
Arrington, who is African-American, is a judge in Fulton County, Georgia.
"I came out and saw the defendants, and it was about 99.9 percent Afro-Americans and at some point in time, I excused some lawyers -- most of them white -- and said to the young people in here, 'What in the world are you doing with your lives?'"
The judge apparently thought his message would make a greater impact if he delivered it to a black-only audience.
"I didn't want them to think I was talking down to them; trying to embarrass them or insult them; be derogatory toward them, and I was just saying, 'Please get yourself together,'" Arrington said.
He said he would open his court doors to everyone today and "I am going to give the same identical speech: 'You've got to do better.'
Sometimes the message is more important than being politically correct.
John M. Hanamirian
A district court in Texas ruled today that the State's $5 fee imposed on patrons entering a strip club is an impermissable impediment to the free speech guarantees of the United States Constitution.
The tax, referred to vernacularly as the "pole tax", went into effect in January of this year and, according to the report, most of the proceeds were used in a fund set up to assist rape victims. Ellen Cohen, a sponsor of the legislation, then said “This is an industry that largely employs women, and this gives them an opportunity to raise funds for a crime that affects women." Budget estimates reflected that the anticipated revenue effect of the legislation was $40 million dollars, based upon estimates that 8 million people go to Texas strip clubs annually.
The Texas court specifically determined that the State failed to meet its burden of demonstrating that the tax is necessary to serve a compelling state interest and is narrowly written to achieve that purpose. The court then concluded that no evidence was submitted to show that the amount of the tax was in any way related to the degree to which the taxed business activity contributes to the secondary effects or to the financial cost of that contribution to the secondary affects of the activity.
As much as I am opposed to "sin tax" legislation, this one was right on the mark. It is hard to believe that Texas, was pioneering a tax that actually potentially benefitted society. Now, of course, in the face of a Constitutional challenge, and probably a great deal of pressure from strip club owners, this Texas court determined that the tax was not legally imposed.
John M. Hanamirian
The United States Department of Justice and the Office of the United States Attorney for the Central District of California issued a news release today advising that Abdul Wahid, the owner of Global Accounting and Tax Service in Los Angeles, pleaded guilty to a series of criminal tax charges relating to a scheme in which he defrauded his clients and the Internal Revenue Service.
Mr. Wahid purportedly formed a number of companies, each bearing the acronymn for a governmental agency to whom you would make a check payable. For instance,
April 15th is coming.
John Hanamirian
