April 29, 2008
Gerry Spence Is At It Again
Spence has always been one of my idols. Here is another example of why in the Fieger trial.

Flamboyant attorney and legal analyst Geoff Fieger, perhaps best known for his defense of Dr. Jack Kevorkian, is on trial in federal court in Detroit. He and his law partner, Van Johnson, are charged with having employees at their law firm and others donate to John Edwards' presidential campaign and then reimbursing them, in violation of federal campaign laws. Fieger is also charged with obstruction of justice for allegedly concealing a memo and tampering with grand jury witnesses. Gerry Spence is representing Fieger and doing quite well so far.

March 28, 2008
Mumia's Death Sentence Overturned
Mumia Abu Jamal had his death sentence overturned by a U.S. appeals court in Philadelphia, but his bid for a new trial was rejected. Here's the story. A full copy of the written decision is here.

In the majority opinion, Chief 3rd Circuit Judge Anthony J. Scirica found that Senior 3rd Circuit Judge William H. Yohn Jr. was correct in holding that Abu-Jamal is entitled to a new sentencing hearing because the jury that sentenced him to die in 1982 for killing Philadelphia police Officer Daniel Faulkner received faulty jury instructions on the issue of how to deliberate during the penalty phase.

 

After 25 years, this is far from over. The district attorney's office in Philadelphia could ask the full U.S. appeals court to reconsider this ruling, or it could ask the Supreme Court to reverse it. Defense lawyers could ask the full appeals court to reconsider the ruling upholding Abu-Jamal's conviction and rejecting the claim of racism in the jury selection. Failing that, they could ask the Supreme Court to take up the case and accord Abu-Jamal a new trial. Stay tuned.

March 18 , 2008
Yes We Can
Today, Barack Obama gave the most important political speech on race of this generation. Here is the speech in its entirety.

February 1, 2008
Dockworker Gets $1.2M In Lawsuit
Jurors awarded a dockworker $1.2 million in damages Friday for on- the-job harassment resulting from her promotion at a marine terminal in the Port of Long Beach. Catherine McCoy, a 47-year-old marine clerk who has worked at Southern California ports since 1988, was awarded the sum following a two-week trial in Los Angeles Superior Court. It was McCoy's second successful lawsuit against her employer, the Pacific Maritime Association, an organization representing most major marine terminals at West Coast seaports. The first case, filed by McCoy because of her inability to get a promotion, resulted in an agreement that called for her to at least receive training for a higher-classification job. The new case centered on her treatment when she began that training."It was a long process for her, and she's emotionally drained, but it proved her point," said Tony Luti, McCoy's attorney. "She was set up to fail." Jurors found McCoy was repeatedly harassed by co-workers after she began training for a highly coveted waterfront position known as a container vessel planner. The job, which pays more than $200,000 annually, involves coordinating ship arrivals, departures and stowage. McCoy's harassment, which included verbal abuse, began in December 2003, when she started training for a nighttime vessel planner position at Yusen Terminals in Long Beach, according to court documents. According to Luti, the PMA failed to abide by an agreement stemming from the first court case that they not disclose the reason for her promotion to co-workers. "Both sides were told to use their best efforts to keep it confidential, because if you're putting someone in an environment where other people may not be happy you're there, you're putting them in a lion's den," Luti said. "She was basically hard-timed. People kept materials from her, screamed at her, prodded her, humiliated her." PMA officials said they plan to appeal."We are disappointed by the jury's verdict today and feel strongly that we will be successful in reversing this decision in post-trial motions or on appeal," the PMA said in a statement. The settlement requires the PMA to pay $540,000 for emotional distress and $660,000 for economic damages, Luti said. The case was argued before Judge Jane Johnson in Los Angeles Superior Court. Attorneys Clifford Sethness and Mirna Villegas represented the PMA.

-- Press-Telegram Long Beach, CA.

November 16, 2007
Thoughts Go Out To Kanye West
Today, a memorial service took place for Dr. Donda West, Kanye West's mother who died last week.The memorial service held at Chicago State University, where she was on the faculty for 24 years. I lost my mother eight years ago suddenly too. You never really get over it and it is something that shapes everything you do from then on. My prayers go out to Kanye as he embarks on this new painful stage of his life.

November 6, 2007
A Great Trial Lawyer On A Great Trial
As OJ Simpson's new legal woes continue, and his co-defendants are taking plea deals and agreeing to testify against him, I remembered that Gerry Spence commentated on OJ in the first lawsuit. Here is a great analysis Gerry did on the original OJ case, before the trial actually started. What is interesting is how much of what Gerry said actually ended up happening in the trial.

October 20, 2007
Milton Grimes Gets A Website!!
No news on this one. I'm just happy to report that Milton Grimes, my mentor and the greatest Black lawyer alive, has finally joined us in the 21st Century and got a website. Check it out: www.miltongrimes.com.

October 5, 2007
Murder At Plaintiff's Lawyers Office
MSNBC is reporting that Police shot and killed a man who shot five people in a downtown law office, killing two of them, the mayor said early Friday. John Ashley, a 63-year-old former city worker, opened fire Thursday afternoon. Two of the wounded managed to escape, and police rescued a third. Ashley remained in the building with the two remaining victims, who police found dead after using explosives to enter the building early Friday.

August 30, 2007
Gentry Court Rules That Most Class Action Waivers Are Unenforceable In Employment Actions
Here's one for the plaintiffs. In a long awaited and highly anticipated decision, the California Supreme Court issued its decision in Gentry v. Superior Court. As backgound, the Plaintiff filed a putative class action in California state court against Circuit City alleging violations of the state’s unfair and deceptive business practices statutes and labor code arising out of its misclassifying employees as exempt in order to deny them overtime pay. Defense attorneys moved to dismiss the class action and compel arbitration pursuant to an arbitration clause with a class action waiver. The trial court found the arbitration clause and the class action waiver to be fully enforceable, and granted the defense motion. The Court of Appeal agreed with the trial court’s reasoning, but the California Supreme Court reversed.

In another 4-3 split employment opinion, the Supreme Court did not hold that class action waivers in employment contracts are per se unenforceable. They did come close though. The Court laid down a new multi-factor test to determine whether "class arbitration would be a significantly more effective way of vindicating the rights of affected employees." The Court distinguished its opinion in Discover Bank on the grounds that employee wage and hour claims are based on statutory rights.  The Court set out four factors for determining whether class status should be granted notwithstanding a lass action waiver: (1) modest size of potential individual recovery (the Court implied that even $37,000 was not enough, but implied that $269,000 was sufficient); (2) the potential for retaliation against the members of the class; (3) the fact that absent members of the class may be ill-informed of their rights; and, (4) other "real world obstacles to the vindication of class members' rights to overtime pay through individual arbitration."

A copy of the opinion can be found here.

August 23, 2007
Green Decision Goes Against Plaintiff's
Today, the California Supreme Court issued its decision in Green v. State of California. The question before the court is whether an employee bears the burden of proving that he or she is capable of performing the essential duties of the job, or whether the employer has the burden of proving that the employee was not capable of performing those duties. In a blow to California employment plaintiffs, the Supreme Court ruled in a 4-3 decision that the employee bears the burden here. A copy of the decision can be found here.

The facts of the case are as follows: Dwight D. Green worked for the State of California as a stationary engineer at a correctional facility for more than 12 years before he was placed on disability retirement. The jury found that in failing to provide Green with reasonable accommodation for his hepatitis C, the State discriminated against him in violation of FEHA. The court of appeal held that it was the employer's burden to prove, as an affirmative defense, the employee's incapacity.  The court approved the trial court's judgment that there was substantial evidence to support the jury's finding of disability discrimination. As a result, this case basically was deciding whether it is the plaintiff's burden to show that he is a "qualified individual" (language from the American Disabilities Act not found in California's own Fair Employment and Housing Act) or the defendant's burden to show that the plaintiff is unable to do the job even with reasonable accommodations as an affirmative defense.

This decision raises interesting questions for plaintiff employment trial lawyers. For example, how do plaintiffs now deal with the real life difficulty of distinguishing between an inability to perform versus a "threat to self" defense that is often raised by defendants. Similarly, it now is anticipated that defense lawyers will possibly now argue that plaintiffs in California now bear the burden on proving that he is not a "direct threat."

August 5, 2007
A Sad Day Indeed: Noted Howard University Civil Rights Lawyer Dies
Civil Rights Attorney Hill Dies at 100
By THE ASSOCIATED PRESS

Filed at 2:05 p.m. ET

RICHMOND, Va. (AP) --
Oliver W. Hill, a civil rights lawyer who was at the front of the legal effort that desegregated public schools, has died at age 100, a family friend said.

Hill died peacefully at his home during breakfast, said Joseph Morrissey, a friend of the Hill family.

In 1954, he was part of a series of lawsuits against racially segregated public schools that became the Brown v. Board of Education decision, which changed America's society and touched off a wrenching period for the nation.


In 1940, Hill won his first civil rights case in Virginia, one that required equal pay for black and white teachers.


Eight years later, he was the first black elected to Richmond's City Council since Reconstruction. A lawsuit argued by Hill in 1951 on behalf of high school students protesting deplorable conditions of their Farmville high school became one of five cases decided under the U.S. Supreme Court's landmark Brown v. Board of Education ruling.


He graduated second in his class from Howard University Law School in 1933, behind his classmate and longtime friend, Thurgood Marshall.


Though blind and confined to a wheelchair in recent years, Hill remained active in social and civil rights causes. In 1999, he received the President Medal of Freedom, the nation's highest civilian honor, from President Clinton.


Two years ago, a renovated 100-year-old building adjacent to the state Capitol was renamed in Hill's honor. In May, he greeted Queen Elizabeth II during her visit to the state Capitol to commemorate the 400th anniversary of the founding of Jamestown, the first permanent English settlement in North America.

July 4 , 2007
Frederick Douglass and the 4th of July
On this 4th of July, I never forget what Frederick Douglass said in 1852 at a speech in Rochester, NY. Below is the speech in its entirety:

Fellow citizens, pardon me, and allow me to ask, why am I called upon to speak here today? What have I or those I represent to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? And am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits, and express devout gratitude for the blessings resulting from your independence to us?

Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions. Then would my task be light, and my burden easy and delightful. For who is there so cold that a nation's sympathy could not warm him? Who so obdurate and dead to the claims of gratitude, that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish that would not give his voice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that, the dumb might eloquently speak, and the "lame man leap as an hart."

But such is not the state of the case. I say it with a sad sense of disparity between us. I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you this day rejoice are not enjoyed in common. The rich inheritance of justice, liberty, prosperity, and independence bequeathed by your fathers is shared by you, not by me. The sunlight that brought life and healing to you has brought stripes and death to me. This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me, by asking me to speak today? If so, there is a parallel to your conduct. And let me warn you, that it is dangerous to copy the example of a nation (Babylon) whose crimes, towering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrecoverable ruin.

Fellow citizens, above your national, tumultuous joy, I hear the mournful wail of millions, whose chains, heavy and grievous yesterday, are today rendered more intolerable by the jubilant shouts that reach them. If I do forget, if I do not remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!"

To forget them, to pass lightly over their wrongs and to chime in with the popular theme would be treason most scandalous and shocking, and would make me a reproach before God and the world.

My subject, then, fellow citizens, is "American Slavery." I shall see this day and its popular characteristics from the slave's point of view. Standing here, identified with the American bondman, making his wrongs mine, I do not hesitate to declare, with all my soul, that the character and conduct of this nation never looked blacker to me than on this Fourth of July.

Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity, which is outraged, in the name of liberty, which is fettered, in the name of the Constitution and the Bible, which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery -- the great sin and shame of America! "I will not equivocate - I will not excuse." I will use the severest language I can command, and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, or who is not at heart a slave-holder, shall not confess to be right and just.

But I fancy I hear some of my audience say it is just in this circumstance that you and your brother Abolitionists fail to make a favorable impression on the public mind. Would you argue more and denounce less, would you persuade more and rebuke less, your cause would be much more likely to succeed. But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? Must I undertake to prove that the slave is a man? That point is conceded already. Nobody doubts it. The slave-holders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. There are seventy-two crimes in the State of Virginia, which, if committed by a black man (no matter how ignorant he be), subject him to the punishment of death; while only two of these same crimes will subject a white man to like punishment.

What is this but the acknowledgment that the slave is a moral, intellectual, and responsible being? The manhood of the slave is conceded. It is admitted in the fact that Southern statute books are covered with enactments, forbidding, under severe fines and penalties, the teaching of the slave to read and write. When you can point to any such laws in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, then I will argue with you that the slave is a man!

For the present it is enough to affirm the equal manhood of the Negro race. Is it not astonishing that, while we are plowing, planting, and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, silver, and gold; that while we are reading, writing, and ciphering, acting as clerks, merchants, and secretaries, having among us lawyers, doctors, ministers, poets, authors, editors, orators, and teachers; that we are engaged in all the enterprises common to other men -- digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hillside, living, moving, acting, thinking, planning, living in families as husbands, wives, and children, and above all, confessing and worshipping the Christian God, and looking hopefully for life and immortality beyond the grave -- we are called upon to prove that we are men?

Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to understand? How should I look today in the presence of Americans, dividing and subdividing a discourse, to show that men have a natural right to freedom, speaking of it relatively and positively, negatively and affirmatively? To do so would be to make myself ridiculous, and to offer an insult to your understanding. There is not a man beneath the canopy of heaven who does not know that slavery is wrong for him.

What! Am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood and stained with pollution is wrong? No - I will not. I have better employment for my time and strength than such arguments would imply.

What, then, remains to be argued? Is it that slavery is not divine; that God did not establish it; that our doctors of divinity are mistaken? There is blasphemy in the thought. That which is inhuman cannot be divine. Who can reason on such a proposition? They that can, may - I cannot. The time for such argument is past.

At a time like this, scorching irony, not convincing argument, is needed. Oh! had I the ability, and could I reach the nation's ear, I would today pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be denounced.

What to the American slave is your Fourth of July? I answer, a day that reveals to him more than all other days of the year, the gross injustice and cruelty to which he is the constant victim. To him your celebration is a sham; your boasted liberty an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your shouts of liberty and equality, hollow mock; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him mere bombast, fraud, deception, impiety, and hypocrisy - a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation of the earth guilty of practices more shocking and bloody than are the people of these United States at this very hour.

Go search where you will, roam through all the monarchies and despotisms of the Old World, travel through South America, search out every abuse and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.

Frederick Douglass - July 4, 1852

June 20 , 2007
Welcome To Ashley Panzarella
The Luti Law Firm would like to welcome its newest addition to the firm: Ashley Panzarella.  Ashley joins the firm as our newest legal intern.  She currently is enrolled at California State University, Los Angeles with a major in political science/prelaw. We look forward to utilizing Ashley various talents for the benefit of our clients. Check out Ashley's bio.

June 8 , 2007
Poor Poor Paris Hilton
Yesterday she was screaming "free at last, free at last." Not anymore. I have no words ...

May 31, 2007
Green Oral Argument Today At The California Supreme Court
Today, Green v. State of California was argued before the California Supreme Court. The question before the court is whether an employee bears the burden of proving that he or she is capable of performing the essential duties of the job, or whether the employer has the burden of proving that the employee was not capable of performing those duties. The Luti Law Firm has been watching this case closely.

Dwight D. Green worked for the State of California as a stationary engineer at a correctional facility for more than 12 years before he was placed on disability retirement. The jury found that in failing to provide Green with reasonable accommodation for his hepatitis C, the State discriminated against him in violation of FEHA. The court of appeal held that it was the employer's burden to prove, as an affirmative defense, the employee's incapacity.  The court approved the trial court's judgment that there was substantial evidence to support the jury's finding of disability discrimination. As a result, this case basically was deciding whether it is the plaintiff's burden to show that he is a "qualified individual" (language from the American Disabilities Act not found in California's own Fair Employment and Housing Act) or the defendant's burden to show that the plaintiff is unable to do the job even with reasonable accomodations as an affirmative defense.

Norman Pine, along with Claudia Center from Legal Aid Society of San Francisco - Employment Law Center argued for the plaintiffs.  The State was represented solely by a Deputy Attorney General, even though Paul Cane of Paul Hastings wrote an amicus, he did not argue any part of the case. From the oral arguments this morning, it appears that the real question seems to be  what the scope of the opinion will be.  The Supreme Court may limit the inquiry to this case where the evidence was far more than substantial in plaintiff's favor no matter who had the burden to show whether or not the plaintiff was "qualified" for the job.  Or, in the alternative, the Supreme Court could find that the statute and regulatory history are clear and unequivocal that the burden is on the defendant to show inability to perform. Finally, the Court could expand their opinion and articulate the prima facie case for a plaintiff in disability cases of all types, or limit that expansion by holding that in direct evidence cases the burden is on the defendant, but in an indirect case, the burden is on the plaintiff as part of their prima facie case.

We will just have to wait and see ...

May 22 , 2007
Mumia Abu Jamal Oral Argument Conducted In Philadelphia Regarding Death Sentence
On May 17, 2007, Mumia Abu Jamal had three claims heard before theThird Circuit Court of Appeals in Philadelphia, all challenging his conviction for the 1981 murder of Philadelphia Police Officer Daniel Faulkner. Judith Ritter, Abu-Jamal’s local counsel, argued argued against a claim by the District Attorney to overturn a 2001 decision by a lower federal court which threw out his death sentence. Christina Swarns, a counsel with the NAACP Legal defense Fund, argued in support of Abu-Jamal’s appeal as a “friend of the court.” Here's a summary of what happened. We'll keep you posted on the result when the court issues a decision.

April 16, 2007
Murphy v. Kenneth Cole: Supreme Court Holds That Section 203 Penalities Are Wages
The Murphy v. Kenneth Cole opinion was released today. In it, the Supreme Court unanimously held that the meal and rest break payments are wages, governed by the three year statute of limitations. In the opinion, the Supreme Court held as follows: " This case presents two issues: first, whether the "one additional hour of pay" provided for in Labor Code section 226.7 constitutes a wage or premium pay subject to a three-year statute of limitations (Code Civ. Proc., § 338) or a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340); second, whether a trial court, conducting a de novo trial, can consider additional wage claims not presented in the administrative proceeding before the state Labor Commissioner. We conclude that the remedy provided in Labor Code section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations and that the trial court properly considered the additional, but related, wage claims during the de novo trial. Accordingly, we reverse the contrary judgment of the Court of Appeal." This obviously has massive implications for wage and hour class actions in California going forward. This is a good day for employees in California.

April 11 , 2007
Welcome To Altesa Hatcher
The Luti Law Firm would like to welcome its newest addition to the firm: Altesa Hatcher.  Altesa joins the firm as our newest legal assistant.  She graduated from Rutgers University with a major in social work. She also has a Masters of Fine Arts in acting from New School University in New York. We look forward to utilizing Altesa various talents for the benefit of our clients. Check out Altesa's bio.

April 11 , 2007
Don Imus Finally Dropped
MSNBC said Wednesday it will drop its simulcast of the “Imus in the Morning” radio program, responding to growing outrage about the radio host’s racial slur against the Rutgers women’s basketball team. It's about time. My only question is why it took so long.

March 7, 2007
Murphy v. Kenneth Cole Oral Argument Today At The California Supreme Court
Today, Murphy v. Kenneth Cole was argued before the California Supreme Court. The Luti Law Firm has been watching this case closely. In the lower courts, the First District Court of Appeal opined in Murphy v. Kenneth Cole Productions, Inc. (Case No. A107219; A108346), that the one-hour-of-pay remedy for meal and rest period violations in the Wage Orders and Labor Code section 226.7 is a penalty, not wages. As such, these claims have a one year, rather than three or four year, statute of limitations. This obviously has massive implications for wage and hour class actions in California going forward.

The Supreme Court arguments were interesting, to say the least. Stay tuned ...

March 1, 2007
California's Sentencing Guidelines Struck Down
I know I was a little late posting this here, but better late than never. Dividing 6-3, the Supreme Court ruled that California's "determinate sentencing law" is unconstitutional because it allows judges, not juries, to find facts that lead to higher criminal sentences. Justice Ruth Bader Ginsburg wrote for the majority in Cunningham v. California (05-6551). The California system, the Court said, assigns to the trial judge, not the jury, authority to find the facts that expose a convicted individual to an elevated "upper term" sentence. The ruling overturned a decision of the California Supreme Court that the state system satisfied the Sixth Amendment jury trial guarantee.

This case has huge implications for California sentences. Judges no longer can simply delineate a bunch of aggregating factors -- never established beyond a reasonable doubt before a jury -- to unjustifiably (and now, unconstitutionally) add years to a convicted defendant's sentence. The battle continues...

February 22, 2007
Gerry Spence On The Brandon Mayfield Case
Here's a videotaped discussion by Gerry on the Brandon Mayfield Case and the Patriot Act. As you may know, Gerry Spence recently settled this case for $2 million. More importantly, the government was forced to apologize for the atrocities that Brandon had to go through. Way to go Gerry.

February 16, 2007
This Is Why We Fight
The next time someone tells you Plaintiff's lawyers and criminal defense attorneys are the problem in our judicial system, think about this video of how District Attorneys search for the truth at trial. The philosophy of a "fair" trial in this country is a facade.

February 7, 2007
Long Beach Hate Crime Verdicts
Much has been written about the convictions and subsequent sentences of the nine black teenagers convicted of hate crimes after fighting some white teenagers in Long Beach in Halloween. Here is an interesting take on the whole mess.

January 23 , 2007
A Beautiful Quote
"Lawyers have been known to wrest from reluctant juries triumphant verdicts of acquittal for their clients, even when those clients, as often happens, were clearly and unmistakably innocent."
-- Oscar Wilde

December 25 , 2006
Happy Holidays
No news in this one. Just wanted to wish all of our clients and friends happy holidays. And what a year it has been. Here's to the next one...

November 5 , 2006
Saddam Convicted
What a shocker. Saddam Hussein has been convicted. Hussein and six subordinates were convicted and sentenced to death for the 1982 killings of 148 people in a single Shiite town after an attempt on his life.

October 28, 2006
Welcome To Paul Wesley Parker III
The Luti Law Firm would like to welcome its newest addition to the firm: Paul Wesley Parker III. Paul is a seasoned staff investigator who became famous in the 1990s based on his work with clients such as the late Tupac Shakur and OJ Simpson. We look forward to utilizing Paul's various talents for the benefit of our clients. Check out Paul's bio.
September 22, 2006
Why We Need Trial Lawyers
Too often in the media we hear about how my profession is ruining this country. I pains me deeply when I think about how many people trial lawyers actually try to help. We are the last line of defense for the common man in this country, and that fact is either repeatedly ignored or ridiculed. One of my mentors, Gerry Spence, wrote a wonderful article on what we do and why we are needed. Happy Reading.
August 21, 2006
He Can't Be A Trial Lawyer
Wow. Court TV is reporting that a former Nashville attorney was convicted Thursday of murdering his wife, who disappeared 10 years ago without a trace. It took the jury 13 hours over two days to find Perry March, 45, guilty of second-degree murder for killing his wife, Janet, whose body has never been found. March was an attorney in the Nashville law firm of his wife's father.

March must have been a civil defense lawyer. Apparently ignoring the adage "never speak without your attorney present when facing criminal charges", the jury also heard from a jailhouse informant who testified that March admitted beating his wife with a wrench after she told him she was going to "take everything" in a divorce. The panel also heard several hours of audiotaped conversations between the defendant and jailhouse informant Nathaniel Farris as they plotted the murders of his in-laws, Carolyn and Larry Levine.

July 14, 2006
Michael Jackson's Civil Lawsuit Goes To The Jury
Court TV is reporting that a bitter money dispute between Michael Jackson and a former associate was placed in the hands of jurors Thursday after the singer's lawyer told them the plaintiff betrayed the star and urged them to "send him from this courtroom with nothing." We'll see.
September 21, 2005
Child Gets $6.2 Million Settlement For False Arrest.
A boy falsely accused of killing an 11-year-old girl seven years ago agreed Monday to settle his lawsuit against the city of Chicago and two police detectives for $6.2 million.

Some of the money would be spent on therapy and counseling for the boy, who is 15 and I am sure needs it. The girl's slaying made national headlines after the boys, then 7 and along with his 8 year old friend, became the youngest murder suspects in the United States at the time. It took almost a month before the boys were cleared after tests showed semen found on the girl's clothing could not have come from them.

Good for him.

Monday June 20, 2005
41 Years Later, the Killen Jury finally starts deliberating.
The murder case against Edgar Killen, a former Klansman charged in the murders of three civil rights workers went to the jury today. Although it probably didn't need to be said, the prosecutors made an impassioned plea for a conviction, saying the victims' families have waited a long 41 years for someone to be brought to justice. These murders focused the nation's attention on the Jim Crow code of segregation in the South and helped spur passage of the landmark Civil Rights Act of 1964.

While the fact that our country is such that it took 41 years for a murder prosecution to be actually brought in this case -- despite the fact that these murders played such a prevalent role in the civil rights movement -- is offensive, what probably bothered me more about this case was the testimony of Harlan Majure, the former mayor of this rural Mississippi town in the 1990s. Majure testified that the Klan was a "peaceful organization." He also testified that the Klan "did a lot of good up here" and said he was not personally aware of the organization's bloody past. The more things change, the more they stay the same...

Monday June 13, 2005
Jackson Acquitted
Michael Jackson was acquitted today of all charges and left the Santa Maria courtroom a free man. According to the jury, which held a press conference afterwards, they had serious problems with the accuser’s mother, who made them uncomfortable during her testimony. They also had problems with the prosecutions timeline of events.
Friday June 3, 2005
Jackson Jury Starts Deliberating
The jury in the Michael Jackson case has started deliberating. Closing arguments completed today at 12:30 p.m., and the jury composed of eight women and four men filed into the deliberation room, where they will sift through nearly 700 pieces of evidence, and rely on their recollections and notes from the testimony of 140 witnesses. Lets see if the jury understands the concept of reasonable doubt.
Saturday, May 21, 2005
Not the Best Of Both Worlds For Jay-Z
A Manhattan Judge has dismissed Jay-Z's counterclaims filed against singer R. Kelly. In November of last year Kelly filed a $75 million lawsuit against Jay-Z. In the suit, Kelly asserts that one of Jay-Z's associates pepper sprayed the singer as he went on stage for a performance at Madison Square Garden. In response, Jay-Z alleged that Kelly deceived him by reneging on a promise to perform a good show during the duo's "Best of Both Worlds" tour last year and that Kelly interfered with the tour contract. Jay-Z's lawyer plans to amend the claims and refile. Stay tuned.
Friday, May 6, 2005
Judge awards no damages in lawsuit over Elian Gonzales raid.
U.S. District Judge K. Michael Moore in Miami ruled today that 13 people who were tear-gassed by immigration agents during the raid to seize Elian Gonzales five years ago are entitled to no damages whatsoever. In a 19-page decision, the court held that said the demonstrators and bystanders failed to show enough credible evidence that federal officers' use of force was "unreasonable under the circumstances." Hmm... It is interesting to note that this was a bench trial, meaning that no jury was empanelled. Accordingly, the entire decision that its ok to be basically tear-gassed without warning was a court call. I would like to think that twelve citizens in the jury box would have thought differently.
Monday, May 2, 2005
High Court To Hear Military Recruiting Case.
Here's an interesting one. CNN is reporting that the Supreme Court said it will consider whether colleges and universities may bar military recruiters from their campuses without fear of losing federal funds. In the lower court, the 3rd U.S. Circuit Court of Appeals, a 1994 federal law requiring law schools to give the military full access or lose their federal funding was invalidated. The appeals court ruled the law infringed on law schools' free speech rights. In light of the fact that certain branches of the military are currently having significant difficulty reaching recruiting goals, the opinion could have some global implications, particularly in the current "war on terror" climate.
Sunday, May 1, 2005
How Not To Try A Case.
Apparently, prosecuting the most publicly scrutinized criminal lawsuit since the OJ trial does not necessitate one actually knowing what their witnesses are actually going to say. Here is a summary article of the prosecution's latest snafus in the Michael Jackson case.
Wednesday, March 30, 2005
Johnnie Cochran dies.
This is one of the saddest days of my legal career. Johnnie Cochran was why I went to law school. I can't even express how I feel now that he is gone.
Thursday, January 13, 2005
We're Two Years Old!!
No news on this one. The Luti Law Firm has just come up on our second year anniversary. Melissa and I would like to take this opportunity to thank all of our clients for trusting us with their legal matters. We remained honored that you continue to choose us to help you with your legal problems. From us to all of you, here's to a great 2005.
Friday, August 11, 2004  
Gay marraiges annulled by the California Supreme Court.
It looks like San Francisco mayor Gavin Newsom won't be running for governor any time soon. Yesterday, by a 5-2 vote, the California Supreme Court voided thousands of marraiges sanctioned in San Franciso earlier this year. According to the Court, Newsom overstepped his authority by issuing licenses to gay and lesbian couples while simultaneously sidestepping California statutory law.
Friday, August 11, 2004
It has been a while.
I haven't posted for a while, due to a ridiculously busy year. It seems, however, the story is still Kobe, Kobe, Kobe. Amazingly, the prosecution of this matter doesn't seem to know when to quit. The latest, according to CNN, is that the judge has denied the prosecution's request for an indefinite stay in the case. No surprise there. The surprise, however, is how easily Mr. Bryant's constitutional right to a speedy trial was simply ignored when the prosecution filed this motion in the first place.
Saturday, January 24, 2004
Supreme Court to look at loan deal lawsuit.
As CNN has reported, the Supreme Court has agreed to hear a case that could affect whether the Truth in Lending Act will continue to permit prevailing individuals to collect sizable damages based on misleading or high-pressure sales tactics for car loans. Every year, about 45 million cars are bought and sold in the United States. Most deals involve a financing plan through a bank or other lender. Car loans and other kinds of consumer credit are subject to the Truth in Lending Act, which was intended to force details of loans into the open and allow consumers to evaluate the cost of credit better. Sounds interesting. Stay tuned.
Thursday, January 16, 2004
What a difference a year makes.
No news on this one. The Luti Law Firm has just come up on our year anniversary. I'd like to take this opportunity to thank all of our clients -- and our staff (yes, you too Claudine) -- for trusting us with their legal matters and continuing to help us "keep the lights on." In light of the fact that this was merely our first year, this year was an extremely successful one. Here's to the next.
Monday, December 22, 2003
Another attack on Plaintiff lawyers.
Recently, Newsweek contained a package of cover stories and opinion pieces called "Lawsuit Hell" and "Civil Wars." These stories, assailed nationally by plaintiffs lawyers, basically condemned the current state of the American civil justice system. While I would normally comment on something like this, I came across a refreshing rebuttal that articulates the opposite position much better than I ever could, by someone who would know -- a Plaintiff that used this purported flawed civil justice system to obtain redress for a horrible injury that she received.

Happy holidays.

Wednesday, November 26, 2003
Califoria Appellate Court Severly Limits The Breadth Of Punitive Damages.
A state appeals court issued a ruling on Tuesday that, if it stands, significantly alters the long-established process judges and juries use to determine punitive damages. The ruling -- which reduced the largest punitive damage judgment ever upheld by a California appellate court from $290 million to about $23.7 million -- could eliminate most multimillion-dollar punitive awards. The 30-page opinion by Fresno, Calif.'s 5th District Court of Appeal interpreted State Farm Mutual Automobile Insurance Co. v. Campbell, in which the U.S. Supreme Court earlier this year narrowed the scope of punitive damages, saying they must bear some reasonable relationship to the individual injury at issue and the compensatory damages awarded.

In Romo v. Ford Motor Co., 03 C.D.O.S. 10150, Juan, Evangelina and Maria Romo sued Ford after they were injured -- and their parents and one brother died -- in a car crash on Father's Day 1993. They claimed that their dad's used 1978 Ford Bronco, with a roof that was two-thirds fiberglass, was defectively designed. The jury awarded $6.2 million in compensatory damages in 1999, as well as $290 million in punitive damages, after finding that Ford executives had acted with malice,for failing to warn buyers about a lack of rollover protection. The 5th District, in an opinion highly critical of Ford, upheld the punitive damage award last year. The state Supreme Court subsequently denied review, but earlier this year the U.S. Supreme Court sent the case back for further review in light of its ruling in State Farm.

After reviewing the State Farm decision and looking at the history of punitive damages, the appeal court held that the high court had impliedly disapproved of the broad view of the goal and measure of punitive damages as accepted in California, and instead adopted a constitutional view that the permissible punishment is restricted to the harm inflicted on the present plaintiffs. This decision obviously has massive implications for plaintiffs and society in general. Obviously, the inability of the being able to use punitive damages as a deterrent is good for corporations involved in wrongful conduct and bad for the rest of us.

Friday, November 21, 2003
Ninth Circuit revives gun manufacturer suit.
The Metropolitan News Enterprise reported that the Ninth U.S. Circuit Court of Appeals has reinstated a lawsuit that seeks to hold gun makers and a distributor responsible for the 1999 shootings by white supremacist Buford Furrow in the San Fernando Valley. The Circuit overturned a district judge’s order dismissing claims against Glock Inc. and China North Industries Corp., as well as Glock distributors RSR Management Corporation and RSR Wholesale Guns Seattle Inc. According the the Judge Paez, who wrote the majority decision, the gun makers may be held liable for negligence and for creating a public nuisance if the plaintiffs can prove that they knew their products were being sold in the “secondary market” to persons who had no legal right to own them, and took no steps to prevent this, or that they deliberately oversaturated the legal market with the knowledge that an illegal secondary market would thereby be created. This could be the next wave of cigarette litigation. Stay tuned.
Tuesday, November 11, 2003
Durst found not guilty...
Happy veterans day. As a former soldier, my prayers (and the prayers of our Firm) go out to all of the brave souls currently serving in Iraq.

Now onto the interesting legal tidbit of the day. Today, New York millionaire Robert Durst was acquitted in the killing of his 71-year-old neighbor, Morris Black, despite admitting that (a) he did in fact kill Black and (b) he dismembered Black's body and then fled. Durst remained in jail following Tuesday's not guilty verdict in his murder trial because he still faces a bail jumping charge.

I'm not one to rant and rave about the inequities in the legal system, and I don't intend to do so now. Indeed, I believe that our justice system is the finest on the planet. However, I can't help but wonder where all of the pundits that were screaming for judicial reform after O.J. got acquitted were today. I didn't hear any comments about how problematic our court system is because a murderer went free -- that was the topic of conversation in 1996 as Simpson left the courthouse. I can not help but notice that, beyond race, there really weren't any significant differences between the two cases (actually, I take that back -- O.J. didn't admit to killing and cutting up Ron and Nicole). Despite this, the public apathy exhibited today regarding the Durst decision was palpable. Notwithstanding the fact that -- from a legal perspective -- I agreed with both decisions (in both cases, the prosecution failed to adequately make their cases beyond a reasonable doubt), the nonchalance with which the public has accepted the Durst verdict, especially when compared with the public reaction to the O.J. verdict, saddens me. Let's see what happens when Kobe's verdict comes in next year.

Monday, November 3, 2003
She's baack...
Linda Tripp, infamous for her secret tapes of conversations with Monica Lewinsky that helped lead to President Clinton’s impeachment trial, is back in the news. MSNBC is reporting that Tripp will get more than $595,000 from the Defense Department to settle a lawsuit over the release of confidential personal information about her to a magazine. Apparently, in 1998, Pentagon officials told the New Yorker that Tripp did not admit an arrest for grand larceny (occurring while she was a teenager) on her security application for her job at the Defense Department. Accordingly, Tripp sued based on alleged violations of the Privacy Act of 1974. The Privacy Act prohibits the government from releasing unauthorized personal information about individual Americans to nonfederal organizations.

In the underlying suit, Tripp claimed administration officials retaliated for her role in triggering the impeachment proceedings. As part of the settlement, Tripp gets a one-time payment of $595,000, a retroactive promotion and retroactive pay at a higher salary level for 1998, 1999 and 2000. Must be nice.

Friday, October 31, 2003
All about da Benjamins, Baby...
P-Diddy seems to be in trouble again. This time, however, no guns are involved -- just some really nice sweatsuits. MSNBC is reporting that the hip-hop music and fashion entrepreneur Sean Combs' trendy clothing line allegedly used a ''sweatshop'' in Honduras where women sew expensive garments for pitifully low pay. Apparently, "Sean Jean" factory managers cursed at workers, refused to pay overtime, fired them when they became pregnant and blocked efforts to form a union, according to a New York-based National Labor Committee. In his defense, Puffy called a news conference to say he was ''shocked'' at the revelations and promised an investigation that would have ''zero tolerance'' for any labor law violations in factories producing his Sean John clothing line. I sense a P-Diddy/Kathy Lee Gifford collaboration on the horizon...
Tuesday, October 20, 2003
Don't worry if you kill 'em Doc; it's ok.
Apparently, the days of becoming a doctor for the sake of saving lives are over, at least in Cleveland. Today, the Plain Dealer reported that since more doctors would treat more poor, uninsured patients if they knew those patients could not sue them for medical malpractice, a bill has passed the Ohio Senate granting civil immunity to doctors who do so. This brilliant bill was passed despite the fact that proponents of the bill recognize that no evidence exists to show an explosion of lawsuits being filed by the poor. In fact, poor uninsured patients are less likely to sue for malpractice, according to a study published in 1993 in the Journal of the American Medical Association and also a study in 2000 done, in part, by the Harvard School of Public Health. Nevertheless, the seeks to expand civil immunity to health care professionals who treat people not only at accident scenes or in free clinics or shelters; but also treatment of the poor in a medical office, hospital or any other medical setting, except in incidents of gross negligence. Remind me never to forget my wallet if I go to a hospital in Ohio.

Friday, April 18, 2003
The big stuff always sneaks up on you.
This morning, the Recorder reported on the Bush Administration's proposed overhaul of the Fair Labor Standards Act ("FLSA"). Last month, the U.S. Department of Labor presented its proposed changes to FLSA -- construed as the first step toward revising federal wage-and-hour regulations. Specifically, the proposed changes raise the minimum salary for employee designated as "white-collar" workers. They also simplify the job description tests that confer white-collar status.

These proposed changes have massive implications, particularly for labor and employment wage and hour litigation. The white-collar distinction is important, since it exempts an employee from receiving overtime pay. Accordingly, depending on which side of the fence you're on (employer v. employee), the changes will either make you very happy, or very sad. Regardless, one thing is certain: by addressing some of the current vague standards under FLSA, the proposed changes will make it more difficult to bring class actions under the Act. It is important to note, however, that while the proposed changes may significantly affect federal wage-and-hour litigation, the effect in California is likely to be minimal. California maintains its own set of wage-and-hour laws, and those laws are considered by many to be much more employee-friendly.

The proposed changes are currently undergoing a 90-day comment period, and could take effect in 2004.

Saturday, April 5, 2003
Pregnant student athlete brings Title IX suit against school
There's an interesting (and I'd argue, completely justified) suit occurring in Connecticut federal court -- Brady v. Sacred Heart University. A former student basketball player, who became pregnant, is suing her former university to affirmatively force the school to develop a comprehensive pregnancy policy for athletes. The suit is being brought under Title IX of the Education Amendment Acts of 1972. Title IX prohibits discrimination based on sex in education programs and activities receiving federal financial assistance. According to her suit, Tara Brady contends that male student athletes have fathered children with no interruption of their scholarship or team status (a practice that they apparently continue once they join the NBA), and that non-pregnant athletes have been accorded "medical redshirt" status, allowing them to rejoin their teams after returning to good health.

The suit alleges that Brady started at Sacred Heart, located in Fairfield, Connecticut, in 1999 with a full basketball scholarship. She became the team's starting center, and continued her athletic and academic progress uninterrupted until June of 2001, when she got pregnant. Brady told her coach she intended to keep her baby. After consultation with university officials, her coach told Brady that she would be a "distraction" to the team and suggested she return home to Pennsylvania. Though out of school, Brady remained in Connecticut in the fall of 2001 and attended all home games. She contends that, in December of 2001, she noticed that she was listed on a program as a "medical redshirt." However, Brady was not receiving any benefits of that status at the time. After a telephone conference with the university's athletic director, the school reinstated Brady her full athletic scholarship for the spring semester of 2002. She gave birth to her son on Feb. 1, 2002.

When another basketball team member invited Brady to join a post-season scrimmage in March, the complaint alleges that the team's coach told the team it was not allowed to include Brady. In April, she was informed she would not have her scholarship renewed for the fall of 2002. Still, in a May appeal before the ad hoc scholarship committee, her scholarship was again reinstated. So was her status as a team member -- except that her coach refused to speak to her in practice. Brady was only communicated to through an intermediary.

Brady withdrew from Sacred Heart last July and is currently playing center on Pennsylvania's West Chester University's basketball team. The lawsuit includes an emotional distress count against Brady's Sacred Heart coach, who is named as an individual defendant. Good for her.
Thursday, March 13, 2003
Does a Levy on Hardware Make Sense for Copyright Holders?
Germany is on the verge of imposing a levy of $13 plus a 16% VAT on every new computer sold in the country. The money will supposedly be used to reimburse copyright holders such as artists, performers, recording companies, publishers and movie studios for unauthorized copying due to peer-to-peer file sharing, file swapping, and the hacking of software, music and e-books. While the motivation may seem unassailable, it remains to be seen just how well any reimbursement system could work logistically, and what impact this may have on copyright holders. How will the government disburse the money amongst the copyright holders? Does this mean that the government must now keep track of exactly what's being copied in order to fairly distribute the funds? Most importantly, since every computer buyer must pay the fee, is everyone now free to copy? If a copyright holder gets reimbursed, is there no longer any cognizable harm--at least economically? A number of countries have been taxing computer peripherals, yet their track record for distributing the monies to copyright holders is dismal--governments either hoard the money, or the levies are challenged in court (as the German levy will certainly be), which stalls any distribution. Such levies threaten the already slim profit margins of hardware manufacturers, and the unencouraging track record of such distribution systems hardly instills confidence that such systems can be effective. Content brokers are beginning to adapt their business models to a digital world, and to consumers' wants--for instance some music companies now have on-line subscription systems for digital music downloads. Maybe we should just wait for the market to catch up to the consumers.
Tuesday, March 11, 2003
And the State leading the civil rights cause is ... Texas?!
The National Law Journal has reported that a federal jury in Texas has awarded more than $24 million to a black Texas family that had a cross burned on their lawn by five white men three years ago. The jury awarded more than $8 million in compensatory damages and more than $16 million in punitive damages.

Apparently, the morning of June 19, 2000, the men trespassed on the family's property while wearing pillowcases over their heads and carrying a wooden cross wrapped in sheets. After a failed attempt to dig a hole in which to place the cross, the men leaned it against a tree outside of the home, doused it in gasoline, ignited it and fled. The family was sleeping at the time of the incident and was unaware of what had happened until a neighbor notified them early in the morning.

The family's attorney has indicated that, although the defendants all claim to be indigent, he intends to collect the entire award from the homeowner policy carriers for the men's parents. The significance of the conduct underlying the suit becomes more offensive when one considers the fact that June 19th, also called "Juneteenth", is recognized as the date in 1865 that, 2 1/2 years after the Emancipation Proclamation, Texas slaves were told of their freedom. Free at last, free at last ...
Tuesday, March 4, 2003
Victor can keep his secret if he wants to.
It seems the most recent Victor-Victoria saga has reached a sordid end, depending on who you ask. Today, the Supreme Court held that there was no proof that a small sex toy and adult video shop that wanted to call itself Victor’s Little Secret harmed lingerie seller Victoria’s Secret's trademark.

At issue for the Supreme Court was (a) whether Victoria’s Secret had to show that its trademark was diluted, or (b) whether there was merely the likelihood of economic harm if the Victor's Little Secret was allowed to keep its name. The Court chose the first option. According to Justice Stevens, “[u]se of the name ’Victor’s Little Secret’ neither confused any consumers or potential consumers, nor was likely to do so.”

I agree with the Court on this one. Just because a customer may make a mental association between a famous trademark and a knockoff does not necessarily mean that the famous trademark has been damaged or diluted. More is needed. As Justice Stevens noted, “[w]hatever difficulties of proof may be entailed, they are not an acceptable reason for dispensing with proof of an essential element.” Notwithstanding this, however, the High Court did skirt the major issue here: since the 1995 Federal Trademark Dilution Act requires a proof of injury, how can a plaintiff making trademark dilution claims, particularly when that company is a major corporation like Victoria's Secret, establish such proof? I guess we'll have to stay tuned for that answer.

Thursday, February 27, 2003
What's good for the goose . . .
A little over a month ago, we commented on a Recorder story in which the California Attorney General's office was threatening to sue the Trevor Law Group for unfair business practices pursuant to Section 17200. Apparently, the AG's office has followed through on that threat. Today its being reported that Attorney General Bill Lockyer has employed California's unfair competition law to sue the Trevor Law Group. As previously noted, the Trevor Law Group, along with a number of other law firms, stands accused of using the 17200 statute to extort settlements from small businesses. By filing this suit, Lockyer has now officially placed himself into the middle of the ongoing debate over reforming Section 17200. Lockyer, a proponent for the statute in its current form, can now point to his own suit to show that there's nothing really wrong with the statute. Lockyer's position is heavily supported by the Plaintiffs' bar. This promises to get interesting.

Friday, February 14, 2003
Democrats File Affirmative Action Amicus Brief
CNN reported today that approximately 100 House Democrats, including Minority Leader Nancy Pelosi, filed a brief with the United States Supreme Court in support of the University of Michigan's affirmative action admissions policy. Apparently, the brief was filed in response to the one filed by President Bush's administration opposing the University's admissions policy and asking the Supreme Court to strike the policy down.

Applicants for Michigan's undergraduate classes are scored by points, with minorities or some poor applicants receiving a boost of 20 points on a scale of 150. At the law school, admissions officers use a looser formula that tries to ensure each class has a "critical mass" of about 10 percent or 12 percent minority enrollment. President Bush has gone on record stating that, while he supports diversity in higher education, Michigan's program "unfairly rewards or penalizes students based solely on their race." The Supreme Court has scheduled oral arguments on the issue for April 1.
Thursday, February 6, 2003
Decreased Cybersquatting
Law.com featured an article today regarding the decline in domain name disputes. The article cites a number of reasons for the decline in trademark disputes over the use of domain names, including: the slowdown in the Internet economy; the fact that about 70 percent of the decisions under the Uniform Domain Name Resolution Policy have come down in favor of the trademark owners; the ability of today's more sophisticated search engines to sift through old-time ruses such as trademark stuffing, metatags and wallpapering; and, companies are also striking deals with domain name holders. The burst of the internet bubble has certainly assisted trademark owners as domain name holders can no longer expect offers for their domains to reach into the hundreds, or even tens, of thousands of dollars. Of course, gone are the early days of cybersquatting when someone could swoop in and register pepsi.com before the well-known corporate owner of the mark could do so--those most egregious of cybersquatting cases have come and gone.
Saturday, February 1, 2003
Work Product? I think not...
According to the New York Law Journal, the law firm representing an American businessman in a foreign bribery investigation conducted by the Southern District U.S. Attorney's Office is not permitted to invoke the work-product doctrine to shield records obtained from Swiss banks.

The Second Circuit Court of Appeals held that records gathered by lawyers with Akin, Gump, Strauss, Hauer & Feld must be turned over to a grand jury hearing evidence in the probe of The Mercator Corp., Chairman James H. Giffen and bribery in the Republic of Kazakhstan. Apparently, in In Re Grand Jury Subpoenas Dates March 19, 2002 and August 2, 2002, 02-6239, the federal court of appeals upheld a September decision by Southern District Judge Denny Chin, who found that the work-product exception does not apply to records for approximately 30 accounts held in Swiss banks.

The records were being sought because U.S. investigators have had significant difficulty in obtaining information on the accounts directly from the banks. Investigators claimed the records were critical for their investigation of possible bribery of foreign officials, a violation of the Foreign Corrupt Practices Act. Writing for the appellate court, Judge Reena Raggi noted that "the principle underlying the work-product doctrine -- sheltering the mental processes of an attorney as reflected in documents prepared for litigation -- is not generally promoted by shielding from discovery materials in an attorney's possession that were prepared neither by the attorney nor his agents." Good call.
The End of a California Legal Giant.
Less two years ago, Brobeck, Phleger & Harrison was California's most profitable law firm. In approximately 30 to 45 days, it will no longer exist. The Recorder has reported that the firm's partnership -- facing insurmountable debts and the recently failed merger talks with Philadelphia's Morgan, Lewis & Bockius -- have voted to dissolve the firm. The dissolution will probably take effect in 30 to 45 days.

The fact that Brobeck is dissolving isn't necessarily what's interesting to me (unless, of course, any former Brobeck clients are now looking for litigation counsel -- if that's you, please call us at 323-960-2600; we'd love to speak with you). What is worth watching is how the partners plan to deal with the nearly $90 million dollars in debt that the firm owes -- apparently, Brobeck was a general partnership and the partners' liability was not limited. Someone's going to have to pay the piper.
Tuesday, January 28, 2003
Cold War Spy Photos Put To Good Use
Although not legal, this is interesting. It seems that archaeologists studying newly declassified satellite photographs from the 1960s and 1970s are discovering extensive trade networks that existed throughout the Middle East during the Bronze Age. This shouldn't surprise us, since a number of such networks throughout the Mediterranean and Middle East have been extensively studied by archaeologists for years--for instance the Assyrian-Cappadocian trade network extending from modern-day Iraq into Turkey. How else did we think such similar pottery kept showing up in far-flung sites? If you're interested, the upcoming issue of the journal Antiquity will have a paper discussing the findings.
Tuesday, January 21, 2003
Class action arbitrations on the Supreme Court's plate.
According the National Law Journal, the U.S. Supreme Court apparently has decided to resolve the issue of whether arbitrations are a proper forum for class actions. In Green Tree Financial Corp. v. Bazzle, the South Carolina Supreme Court upheld a $27 million arbitration award against the financial corporation. The state supreme court held that classwide arbitration may be ordered when an agreement is silent on that issue if it serves "efficiency and equity, and would not result in prejudice." Green Tree obviously disagreed. According to Green Tree's counsel, arbitration agreements must be enforced according to their terms. Thus, if the state court's approach is taken, courts can modify private agreements that don't explicitly preclude a proceeding or result that a court, "in its discretion, believes will 'serve efficiency and equity, and would not result in prejudice.'" Conversely, however, without an arbitration proceeding that contemplates class actions, many consumers will not be able to bring claims because the costs of arbitration may exceed the possible recovery. Similarly, corporate entities that engage in predatory lending practices and then attempt to circumvent liability by imposing arbitration agreements on consumers -- particularly since arbitration is normally a favorable dispute mechanism for businesses -- will not be able to shield their wrongful practices from class action liability. Isn't that what class actions are all about? In any event, it seems like the Supreme Court will answer that question soon.
Thursday, January 16, 2003
Goofy's safe ... for now.
Please be advised that we will not be posting any images of Donald Duck on our website for another 20 years. The Recorder reported today that the U.S. Supreme Court held that Congress acted constitutionally when it extended copyright protection from 50 to 70 years for most works. Professor Lessig, arguing on behalf of Eric Eldred, a webmaster that publishes public domain material online, contended that Congress' action at issue was unconstitutional on two primary grounds -- (a) the copyright clause, which only gives Congress the power to grant copyright protection for "limited times," and (b) the First Amendment's guarantee of free expression. In a 7-2 decision, however, the high court dismissed both of these arguments, relying on the fundamental tenet that the wisdom of Congress' action is not within the province of the Supreme Court to second-guess. Justices Breyer and Stevens dissented.

The majority's take on the First Amendment argument is probably the most interesting part of the opinion. Justice Ginsberg, writing for the majority, stated that "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech . . . . It bears less heavily when speakers assert the right to make other people's speeches." In other words, I can say what I want, as long as you didn't say it first.
Wednesday, January 15, 2003
A taste of their own medicine?
It seems that a certain group of attorneys that has spent quite a bit of time prosecuting Section 17200 cases lately may end up defending a few of their own. The Recorder reported today that California Attorney General Bill Lockyer has subpoenaed the records of attorneys from the Trevor Law Group. The law firm has been accused of using the unfair competition law to extort money from small businesses. If investigators find evidence of abuse, it seems that the next step would be filing 17200 civil suits against the lawyers themselves.

The Trevor firm has filed numerous Section 17200 suits against thousands of defendants, including many small auto repair shops and restaurants. Most of the suits are based on technical violations reported by state regulators. The firm files these suits and then pressures affected small businesses to settle claims.

Using the statute against them for these practices may actually help the plaintiffs bar in the long run. The cases filed by the Trevor firm has led to a push by defense attorneys for a repeal of the statute. However, by suing the firm in the interest of the public can remind attorneys what the actual purpose of the law is: to protect consumers and small businesses from unlawful and unfair business practices. The instant practice appears to be a prototypical case.
Friday, January 10, 2003
Oops. Sorry about that whole death row thing...
In an age wrought with cold political bipartisanism, it is refreshing to see a sense of morality and common human decency prevail. Today, CNN reported that Illinois Governor George Ryan Friday pardoned four inmates wrongfully convicted and awaiting execution on death row. The Governor pardoned Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange -- men who were tortured by the police in interrogations and convicted on the basis of fraudulent confessions obtained under duress. He is expected to commute the sentences of others on death row Saturday.

In 2000, Governor Ryan halted executions in Illinois after 13 inmates on the state's death row were released because they were wrongly convicted. With the four pardons today, that number is now 17.

While I am sure these four black men are grateful for their newly found freedom, their pardons beg the question: how do you compensate these innocent men for the time they spent mere few feet away from the prospect of state-sanctioned homicide? What value can one put on the freedom that was taken away from them? In my opinion, a simple apology can never be enough.
Tuesday, January 7, 2003
Oral v. Aydin Corp. Class Action Settlement Approved
After five years of litigation, a Pennsylvania federal judge has approved a $4.1 million settlement in a class action suit brought by former employees and executives of Aydin Corp., a Pennsylvania communications company. Those employees stated that they were cheated out of overtime pay as a result of Aydin's practice of classifying employees as salaried workers who were "exempt" from the Fair Labor Standard Act's time-and-a-half overtime pay requirements, while nonetheless docking their pay when they were absent for part of a day. Under the settlement, 83 employees -- including several former vice presidents, a former in-house lawyer and the former director of human resources -- will be paid sums ranging from $1,468 to $193,936.

While the settlement in this class action is not particularly novel, what is particularly interesting is the strategy employed by the defense counsel. Instead of arguing against the feasibility of the opt-in class, or emphasizing the distinctions between the various job classifications and descriptions to minimize the commonality of the claims, the defendants attempted to defend the case at trial by focusing on offering justifications for docking the pay of lower-level management employees and denying the claims of all of the highest-ranking employees. It seems that the size of the settlement may be an indication how effective that strategy was.
Friday, January 3, 2003
I guess they were just kidding.
As we noted on December 30, 2002, the U.S. Supreme Court granted a stay of the California Supreme Court's ruling that Matthew Pavlovich, an Indiana college student residing in Texas, could not be sued in California for trade secret infringement claims based on DVD decryption software programs being offered on his website. Apparently, the U.S. Supreme Court has now changed its mind. Today, the Washington Post reported that Justice O'Connor threw out the emergency stay barring Pavlovich from putting DVD decryption programs on the Internet.

Last week, the DVD Copy Control Association persuaded Justice O'Connor to issue a temporary stay and said that it planned to appeal the state court decision. As a result of Justice O'Connor's decision, the group may reconsider the viability of an appeal. Even though Justice O'Connor did not address the merits of the case in dissolving the stay, it's worth noting that Pavlovich's attorney argued that the stay was unnecessary because the decryption programs at issue are already available on hundreds of other web sites and that they've been printed in magazines and newspapers.
Chalk one up for the bad guys.
After being repeatedly hammered in jury verdicts across the state, Big Tobacco has finally had a legal success in a California trial court. Earlier this week, CNN.com reported that U.S. District Judge Saundra B. Armstrong ruled that there was insufficient evidence to find Philip Morris Cos. and R.J. Reynolds Tobacco Co. liable in the death of 81-year-old Frank Robert White. The ruling came shortly before jury deliberations were about to begin.

A Big Tobacco celebratory dance based on this result, however, is probably a bit premature. Since 1999, this is the first time (in seven West Coast jury trials) that tobacco companies have won. Indeed, panels in California and Oregon have awarded more than $30 billion in damages in lung cancer victim lawsuits, although the awards later were trimmed to a total of $363 million (it's important to note that in the White case, he never developed lung cancer -- the disease most directly linked to smoking). In fact, last week, the Oregon state supreme court refused to overturn an $80.3 million judgment against Philip Morris. Maybe it's time for Big Tobacco to start settling these cases--at least on the West Coast.

Tuesday, December 31, 2002
Some cases need no explanation.
Here's a defamation case that should add a bit of levity to your day. In light of the fact that the Plaintiff in this case has affirmatively put himself out as a public figure, and therefore must establish actual malice on the part of Viacom pursuant to New York Times v. Sullivan in order to prevail, this case becomes even more amusing. Happy New Year.

Monday, December 30, 2002
Where ya gonna sue?
MSNBC recently published an article about the United States Supreme Court's decision to finally intervene in the motion picture industry’s intellectual property war against DVD copying. The case, brought against an individual offering a program to break DVD encryption software on the web, has the potential of eventually establishing standards for how and where people can be sued for information posted online.

In 1999, while he was a college student in Indiana, Matthew Pavlovich allowed codes that permitted people to copy DVDs to be posted on his Web site. The software, however, was written by a teenager in Norway. To complicate matters further, Pavlovich is a resident of Texas. Deciding that neither Indiana, Texas nor Norway were suitable venues, the California-based DVD Copy Control Association, which licenses DVD encryption software to the motion picture industry, brought a trade secret infringement case against Pavlovich in California state court. In November, the California Supreme Court ruled for Pavlovich, holding that while he could be sued in Texas or Indiana, he could not be sued in California. Last week, the U.S. Supreme Court granted a stay of that ruling.

It appears that the issue of where lawsuits based on intellectual property claims originating from the World Wide Web can be filed is now squarely before the Supreme Court. This promises to get interesting. Stay tuned.