Litigation: April 2008 Archives

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.

John M. Hanamirian

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

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 (2^nd Cir., April 22, 2008),  rejected the claim that Whitman could be held liable for injuries sustained by nearby residents and workers who relied on her representations that it was safe to return to or stay in the area when the EPA knew, but did not disclose, that the air around Ground Zero had dangerous levels of toxins and carcinogens.

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 America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.”

Not always for ever instance, but should be if the allegations in this case are accurate. 

Alan Milstein

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 United States and for the church in general and for me personally that this could happen," Benedict said. "It is difficult for me to understand how it was possible that priests betray in this way their mission ... to these children." "I am deeply ashamed and we will do what is possible so this cannot happen again in the future," the pope said.

Benedict's trip to the United States is the first since the scandal involving priests sexually abusing young people. The church has paid out more than $2 billion in abuse costs since 1950, with hundreds of millions in settlements since 2002. Six U.S. dioceses have declared bankruptcy in recent years because of the financial toll of the scandal. 

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 

  The London Times is

     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. 

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 

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, IRS, Inc. He would then prepare tax returns for his clients showing thousands of dollars of tax due and instruct the client to make a check payable to the appropriate agency and, of course, deposit those checks into the accounts he created for the corporations he owned. He then didn't report the income. Brilliant.

April 15th is coming.

John Hanamirian