A Buffalo Lawyer

ABL and former County Attorneys -- Christmas celebration

2011-12-20T08:17:00.023-05:00

ABL met with former Erie County Attorneys for a holiday celebration. Pictured from right to left are: Hon. Eugene F. Pigott, Jr., Larry Rubin, Fred Wolf, Ken Schoetz, Cheryl Green, Jim Magavern, Jeremy Colby, Hon. Patrick H. NeMoyer, and Hon. William Straub.

federal courthouse should be named after Justice Robert Jackson

2011-11-11T20:31:00.000-05:00

ABL will be returning to private practice by popular demand

2011-11-11T20:01:00.001-05:00

to borrow Judge Elfvin's wit (I do not think he will mind). The reference is noted in the BizFirst article by Matt Chandler.

issue of first impression?

2011-07-14T21:23:00.001-04:00

ABL was asked today if he agreed with opposing counsel's assessment of the issue being one of first impression . . . the response was "no." The response ABL really wanted to give: "my brief discussed a surprising amount of on point case law for it to be an 'issue of first impression'!

Metadata Ethics Opinions

2011-04-29T06:49:00.002-04:00

What's New for 2011 on Ethics? NYSBA CLE

2011-04-29T06:32:00.004-04:00

Need help getting into the cloud or going paperless? Call Eric Posa @ DocuSyst (http://www.docusyst.com/).

NYSBA Ethics Opinions (clieck the title link above).

ABL is mad as hell at federal spending

2011-04-23T14:04:00.000-04:00

Desmond summer party

2011-04-17T21:13:00.001-04:00

The Desmond Inn of Court hosted US Attorney Bill Hochul as its guest speaker for the April meeting. The remarks were only rivaled by the strong attendance.

The summer party for judges and members only will be 5:30 on June 9 at Templeton's Landing (fka Shanghai Red's fka Crawdaddy's).

Someone asked how to get an "invite". You must join the Inn (if you want to attend this event you can pre-pay for membership for next year and you can attend this event). Call Donall O'Carroll at 842-2800.

Ice Ice baby . . . in the new federal courthouse?

2011-02-15T20:33:00.001-05:00

Happy Birthday Justice Robert Jackson

2011-02-13T19:17:00.001-05:00

Courtesy of Prof. John Q. Barrett of St. John's:

On February 13, 1952, Justice Robert H. Jackson celebrated his 60th birthday. Although the Supreme Court was in recess that week, Jackson and other justices were working in the building. Late that Wednesday afternoon, they were invited to Jackson’s chambers (today Justice Clarence Thomas’s chambers) for a small celebration that included a birthday cake. Chief Justice Fred Vinson and Associate Justices Felix Frankfurter, Harold Burton, Tom Clark and Sherman Minton attended, along with Jackson’s secretary Elsie Douglas, his law clerks and other Court employees.

Justice Burton, a scrupulous diarist, later made this little entry about the occasion:

Late in PM Justice Jackson had a birthday party in his chambers – the Chief Justice, + Justices Frankfurter, Clark + Minton + I attended – also his law clerks his law clerk C. George Niebank Jr + the other.

Niebank’s name was uncommon, but he had been clerking for Jackson for over a year and Burton clearly had gotten to know him. “The other,” apparently Jackson’s second law clerk, had joined the Jackson staff only a few weeks earlier following his December 1951 graduation from law school. His name, William Rehnquist, also was not common. I am sure that Burton in time came to know both the name and the young man. Rehnquist served as a Jackson law clerk through early June 1953 and then went into private law practice in Arizona.

e-filing in NYS court

2011-02-02T18:20:00.001-05:00

Online Demonstration Video of New
E-Filing System Now Available

A demonstration of the new E-Filing System of the New York State Courts (NYSCEF) is now available online at http://www.nycourts.gov/whatsnew/. The demo will allow attorneys to get a password and learn the benefits of e-filing and serving documents through NYSCEF. Free training sessions are also available through the NYSCEF Resource Center, for which attendees can obtain CLE Credits. For more information, contact them at 646-386-3033 or EFile@nycourts.gov.

Judge Pigott to address Desmond Inn of Court

2011-01-23T17:39:00.004-05:00

Judge Pigott spoke to the Desmond Inn of Court today in the Ceremonial Courtroom. It was well attended and, as always, he entertained and provided insight concerning practice before the Court of Appeals.

Next month, on March 16, U.S. Attorney William Hochul will address the Inn.

Facebook authorizations

2011-01-13T19:35:00.003-05:00

In ROMANO v. STEELCASE, INC., (N.Y. Sup. 2010) Supreme Court in Suffolk County (Justice Spinner) engaged in a thorough analysis of whether or not defense counsel is entitled to seek an authorization for social networking sites such as Facebook and MySpace. The court held that a plaintiff in a personal injury action who is claiming physical limitations and loss of enjoyment are required to provide consents that authorize defense counsel to review plaintiff's Facebook/MySpace pages. Justice Spinner examined federal and Canadian case law because "there is no New York case law directly addressing the issues raised by this application, there are instructive cases from other jurisdictions." Justice Spinner also found that a plaintiff "has no legitimate reasonable expectation of privacy" in their online postings.

A month later, the Fourth Department decided McCANN v. HARLEYSVILLE INS. CO. of NY (2010 WL 4540599 (4th Dep't 2010), which held that it was error to grant a protective order prohibiting defendant from seeking disclosure of plaintiff's Facebook account. Although the court also affirmed the lower court's decision denying defendant's motion to compel, that decision was based on defendant's failure to establish the necessary factual predicate.

more unfunded mandates

2010-11-16T21:12:00.006-05:00

Thank you Mr. Chief Justice, may I have another!

2010-10-20T08:02:00.006-04:00

Last night, John G. Roberts, Jr. (USSC CJ) was the Frank J. Raichle Lecturer. "A Conversation with the Chief Justice" was a conversation (thus appropriately titled) between the Chief Justice and his former partner, Joseph M. Hassett, who asked questions presented by Canisius College students, faculty, alumni . . . and even Chief Judge Skretny. It was an unparalleled evening for the WNY legal community and Buffalo's favorite son.

JGR was entertaining and informative. He deftly handled some not-so-deftly crafted questions (ABL wanted to know what JGR's favorite sit-com is and whether he mows his lawn). JGR also offered other bits of wisdom, such as, you should always eat a donut offered by a Court of Appeals judge. He also recollected that, while clerking for then Justice Rehnquist (6 years pre-CJ for WHR), assisted in writing an article on the duties of the Chief Justice, a position that both men would later hold). Generous references to Justice Robert H. Jackson (Jamestown's favorite son).

ABL almost hit for the cycle, shaking hands with judges on each level of the federal judiciary and two of the three levels of the NY State Court system.

2d Cir. cites Youtube

2010-10-14T21:20:00.003-04:00

Here is a link to the 2d Circuit's decision in Dickerson v. Napolitano, 604 F.3d 732 n.1 (2d Cir. 2010), which cites Youtube to explain the cinematic reference that begat Operation Stinking Badges.

Desmond & Jackson

2010-08-13T12:47:00.003-04:00

Officers of the Charles S. Desmond (Buffalo) and Robert H. Jackson (Jamestown) Inns of Court met at the Robert H. Jackson Center. ABL and Greg Peterson, Judge Marshall, Judge Walker, and Arthur Bailey are pictured standing around the chair used by Justice Jackson at the USSC.

The Inns are meeting together on October 16, 2010 in Jamestown in conjunction with a play at the Jackson Center on the career of Clarence Darrow. Members of the bench and var who are interested in joining the Inn should contact ABL.

Caveat Emptor

2010-07-16T23:17:00.004-04:00

In AIG Europe, S.A. v. MIH Scrap Metals Intern., LLC, 2010 WL 2720593 (W.D.N.Y.,2010), Judge Arcara decided a personal jurisdiction motion in an interesting case involving a multi-million order of copper from Tanzania, that was supposed to be checked by a agent from London when it was loaded on a ship -- and which turned out to be crates full of rocks and dirt. ABL also hears that when the insurer sent an investigator to Africa to snoop around, that he was promptly greeted by armed gunmen who politely asked him to stop asking questions and to leave.

Start saving your pre 1981 pennies -- which are worth more than a crate full of rocks and dirt.

need a lawyer in Buffalo? Rochester? Syracuse?

2010-07-03T23:08:00.003-04:00

or any venue in between? then call ABL! Consultations are free and I will seek to point you in the right direction if I am unable to assist.

Legal Marketing blog

2010-06-30T20:44:00.002-04:00

WNY's history of earthquakes

2010-06-25T07:31:00.000-04:00

NY Times article on digital advertising

2010-06-17T07:21:00.003-04:00

Facebook and internet advertising is better for the consumer because it gives them more information to evaluate attorneys than do commercials or the yellow pages (does anyone gets calls from the phone book anymore?).

Cartoon is found in the linked article from the NY Times.

Litigation Holds -- resources

2010-06-02T16:17:00.004-04:00

http://www.lawtechguru.com/files/ILTA-Legal_Hold_Best_Practices-Jeff_Beard.pdf (5 page white paper)

http://www.iltanet.org/WhitePaperPDFs/2009LitigationSupport.aspx (32 page white paper)

http://legalholds.typepad.com/legalholds/2010/05/all-lawyers-must-be-able-to-fashion-a-defensible-legal-hold.html

http://legalholds.typepad.com/legalholds/2009/06/white-paper-best-practices-for-legal-hold-processes.html

unsealed affidavit re stolen 4G Iphone

2010-05-14T22:17:00.001-04:00

Attorney Advertising -- Alexander v. Cahill

2010-05-04T09:20:00.000-04:00

challenging Obama-care in federal court

2010-05-04T09:17:00.002-04:00

recent non-compete decision

2010-05-04T08:45:00.000-04:00

by Judge Ramos.

How Social Networking can impact your cases & clients

2010-04-28T06:45:00.005-04:00

Today's Desmond meeting will discuss this topic.

Attached are some useful links:

http://en.wikipedia.org/wiki/Use_of_social_network_websites_in_investigations

http://www.llrx.com/features/pretexting.htm

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202428950936

http://legal-beagle.typepad.com/security/2010/03/internet-probe.html

http://en.wikipedia.org/wiki/Social_engineering_(security)

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433484729

USSC decision on attorneys' fees

2010-04-19T07:21:00.005-04:00

Perdue v. Kenny A. (pdf is linked).

Can you patent a gene?

2010-04-15T07:38:00.000-04:00

Sen. Orrin Hatch speaks to Federalists & Canisius

2010-03-30T08:06:00.009-04:00

Sen. Hatch addressed the Buffalo Chapter of the Federalist Society yesterday afternoon -- and gave the Frank J. Raichle presentation at Canisius (at the wonderfully restored Montante Center). Both events were far better than ABL expected. Hatch is an engaging speaker. It is no wonder he has been in the Senate for 34 years.

The Raichle speech discussed the proper role for federal judges, which is to interpret the Constitution and laws as written, not to interpret them in light of changing social mores or the judge's personal preferences or ideology. He references the umpire analogy used by Chief Justice John Roberts (ABL is ready to clerk for you, have your people call my people) in his confirmation hearing. Judges should be like an umpire at a baseball game, calling balls and strikes as they see them, not as they would like them to have been thrown, and not predicting the outcome of the game based on the pre-game review of the teams' rosters. Sen. Hatch decried judicial activism. Although he admitted that conservative judges can also be activists, it is much more common in liberal judges because it is part of their philosophy to believe that the law is a living breathing thing rather than a written set of rules designed to govern behavior and to constrain government and judges. Sen. Hatch referred to the Dred Scott and Roe v. Wade decisions as examples of what happens when judges decide cases without Constitutional moorings.

First One @ One First

2010-03-19T14:02:00.001-04:00

The above link to Above the Law describes a Gerogetown 3L's efforts to be the first in line for each USSC argument.

"virtual parade of linguistic horrors"

2010-03-19T13:40:00.004-04:00

"Less substantive but also adding to the confusion, the Court observes that in a world where spell-checking and grammar-checking devices are ubiquitously employed, the proposed amended complaint stands resolutely alone, offering a virtual parade of linguistic horrors. After cavalierly invoking the “jurisdication” (sic) of the Court, plaintiff refers to the defendants using dozens of different abbreviations and acronyms, in some cases so far removed from defendants' names as to render them unidentifiable. She converts bulleted lists into separate paragraphs comprised of inscrutable, open-ended sentence fragments, flouts the rules of grammar and sentence construction to the point that many allegations are entirely nonsensical, and vacillates constantly between referring to herself in the first person and third person narrative modes."

This was after the Court noted that the proposed amended complaint was worse than the originally file pro se version. ABL is only a spectator in this one.

NYS judicial pay case

2010-03-18T14:43:00.004-04:00

Deliberate Speed

2010-03-18T07:30:00.002-04:00

Seven years ago, ABL submitted a proposal to the Committee responsible for considering changes to the Federal Rules of Civil Procedure. This proposal remains pending (2 of 5 from 2003 that have not been closed). The is a hyper-link to a list of other such proposals. ABL's proposal is still pending. I recall hearing from the Committee that the process takes a "long, long" time. They were not kidding.

Meditate, not mediate!

2010-02-26T09:06:00.001-05:00

USSC adopts nerve center test

2010-02-26T06:58:00.003-05:00

In Hertz v. Friend, the USSC recently adopted the 7th Circuit's nerve center test for ascertaining a corporation's principal place of business for purposes of diversity jurisdiction, ending a 50 year split amongst the circuits.

BU hockey @ Fenway

2010-01-22T22:30:00.005-05:00

Oye Oye, God Save this Honorable Youtube!

2010-01-16T09:03:00.006-05:00

A federal court in California had agreed to allow a trial on gay marriage be published via Youtube, which was blocked by the U.S. Supreme Court (Dahlia Lithwick's Slate article is linked in the heading).

Why would the USSC get involved in a district judge's decision to allow real-time publication of court proceedings on such a highly publicized proceeding? Typically trial court judges are given vast discretion to run their courtrooms the way they see fit. Why wouldn't a judge prefer to allow a proceeding to be taped (and uploaded to Youtube) so that many interested people could follow the proceeding -- and perhaps decreasing the circus-like atmosphere at the courthouse caused by spectators who cannot follow on Youtube.

Judge Elfvin Scholarship

2009-12-17T19:37:00.002-05:00

Judge Elfvin's law clerks, led by John Schmidt at Phillips Lytle, have established a scholarship fund at SUNY Buffalo Law School in honor of Judge Elfvin. Members of the bench and bar who are interested in making a contribution are encouraged to contact John or send a check c/o Allan Carrell, 311 O'Brien Hall, UB Law School, Buffalo, NY 14260.

2009 Celebration of Excellence

2009-10-22T06:42:00.004-04:00

ABL attended the Celebration of Excellence. Met Justices Scalia and O'Connor (I am sure it was the highlight of their evening). Enjoyed fabulous food (the pumpkin soup was rivaled only by the crab cakes). Reconnected with friends. Thanks to SouthWest, ABL was free to move about the USSC. Thank you Cindy Dennis!

Federal Bench & Bar dinner

2009-10-22T06:37:00.004-04:00

As always, it was an excellent event. A great opportunity to see colleagues and meet a few new ones. Judge Arcara fondly recalled the life and career of Judge Elfvin (n.b. one friendly supplement: Elfvin started his law school career at Harvard while working at GE and that he transferred to Georgetown when he went to DC to work for the Department of the Navy).

Ouch!

2009-10-01T17:12:00.003-04:00

See the link (i.e., click on the title) to see something that you never want to cross your desk.

e-SOP is coming

2009-09-23T07:19:00.005-04:00

Jeff Karotkin recently authored 'CHANGE! Is the Process Serving Profession Doing Enough to Remain Relevant? in Pursuit Magazine, a journal for professional investigators. Jeff suggests that process servers must embrace technological innovations in their business model. Jeff is also too kind in noting that ABL's e-SOP "article is the most comprehensive I have seen on the topic of electronic service of process and is a must read if you want to understand the history of electronic service of process and want to have a glimpse of what the future might hold if the profession does not embrace change and make it work for them." Wow! ABL owes Jeff a beer.

ABL will be presenting a CLE on e-SOP (aka electronic service of process) in February 2010 as part of a CLE sponsored by the BAEC: ""E" Age Litigation Tactics and Ethical Issues." ABL thanks Art Herdzik for asking him to participate.

Merit Systems Protection Board

2009-08-07T22:54:00.003-04:00

ABL has added a link under "Courts." ABL welcomes inquiries from protected employees and whistleblowers who have faced reprisal.

Merck announces $80 million Vioxx settlement

2009-08-04T20:16:00.003-04:00

for third-party payors. Merck's Q209 10Q is linked above (see pp. 20-23). The fund purports to settle 190 claims by insurers and union funds who paid for Vioxx prescriptions. These claims are pending in New Jersey Superior Court and the MDL in the Eastern District of Louisiana. Merck's share price rose $0.04 -- not much of a boost on the announcement.

Public Authorities running amok?

2009-06-08T15:39:00.015-04:00

The attached link is an article from the Boston Globe concerning the Turnpike Authority's allegedly illegal use of turnpike tolls for maintenance of "Big Dig" roads. It looks hidden (and illegal taxes) by Public Authorities are contagious (http://www.buffalonews.com/cityregion/story/689001.html)

Judgepedia

2009-05-27T07:02:00.002-04:00

Non-compete agreements during tough times

2009-04-17T12:22:00.004-04:00

The link is an article about the importance of non-competes during these tough economic times. ABL thanks Susan McClaren for reviewing a draft.

2d Cir. on arbitrators' authority to sanction bad faith

2009-04-12T18:27:00.002-04:00

In ReliaStar Life Ins. Co. of New York v. EMC National Life Co., (2d Cir. 2009), the Second Circuit Court of Appeals construed a broad arbitration clause and held that the arbitrators were given discretion to sanction a party for bad faith conduct during the arbitration, including attorneys' fees.

New Ethics rules are no joking matter . . .

2009-04-02T07:55:00.004-04:00

. . . despite the fact that they toof effect on April 1, 2009.

A good article (12/08) from the Daily Record is found here http://www.wolfordfirm.com/documents/Tomaino12.4.08.pdf

Wyeth v. Levine -- no preemption of warning claims

2009-03-09T16:23:00.001-04:00

Whistleblowers protect Federal Taxpayers

2009-03-02T22:35:00.004-05:00

To protect itself against fraud, the federal government allows people who are aware of fraud to sue companies who bilk the government. The False Claims Act (a.k.a. the qui tam statute) allows private citizens to people or companies who fraudulently bill the federal government. Actions under this law typically involve government spending programs such as health care, education, social security or the U.S. military. Several states have also created similar False Claims statutes that enable whistleblowers to recover money at the state level.

People who file actions under the False Claims Act are often called whistleblowers. The Department of Justice may assume a qui tam suit or it may allow the whistleblower to litigate the case.

If the Department of Justice takes over the case, the qui tam plaintiff is entitled to between 15 percent and 25 percent of the recovery. If the Department of Justice does not intervene and the qui tam plaintiff pursues the lawsuit on behalf of the government, the qui tam plaintiff is entitled to between 25 percent and 30 percent of the recovery. Any person can be a qui tam plaintiff regardless of whether he or she has first-hand knowledge of the fraud as long as the fraud has not previously been publicly disclosed. If it has already been publicly disclosed, a person can bring a qui tam action only if he or she has first-hand knowledge of the fraud.

The False Claims Act also protects qui tam plaintiffs who are retaliated against by their employer due to their participation in a qui tam action. The protection is available to any employee who is suspended, demoted, threatened, harassed or otherwise discriminated against by his or her employer because the employee investigates, files or participates in a qui tam action. The protection includes reinstatement, double back pay, interest on the back pay, litigation costs and reasonable attorneys' fees.

ABL handles qui tam cases and welcomes inquiries.

Learned Brother, where art thou?

2009-02-28T15:28:00.006-05:00

The other day ABL referred to opposing counsel in court as "my learned brother." The presiding judge remarked that he had never heard that phrase before. Although uncommon, ABL wondered why (and when) the practice of so referring to one's adversary fell out of mainstream parlance. Although the practice remains prevalent in other common law jurisdictions, it has declined in the United States (perhaps in correlation with the purported decrease in collegiality and civility the bar has experienced over the last several generations). The practice was common in the U.S. at the turn of the last century. It appeared in a New York Times article from 1895 discussing the entry of learned sisters into the profession. (http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9A00E4DD103DE433A25755C1A9609C94649ED7CF).

John Henry Wigmore used it in 1910 (http://books.google.com/books?id=ZHA9AAAAIAAJ&pg=PA466&lpg=PA466&dq=%22learned+brother%22+new+york&source=bl&ots=FWmvFNclty&sig=Md40Eb0rv27RuOtFB3iw_mQbMWM&hl=en&ei=WaKpSdatB-Cbtwf_5-DvDw&sa=X&oi=book_result&resnum=7&ct=result).

It has been used in post-modern USSC practice (1980) (http://74.125.47.132/search?q=cache:uQeRFDiW-AkJ:www.appellate.net/transcripts/RUBIN.PDF+%22learned+brother%22+new+york&hl=en&ct=clnk&cd=24&gl=us).

ABL's quick perusal of case law shows that the practice continues to breathe in some parts of the country (especially Louisiana), although it appears most frequently (not surprisingly) where judges refer to other judges. A Google search also unearthed recent usage in a February 2009 review of Third Department decisions here in New York (http://www.albanycountybar.com/3rdDept.htm).

4th Dep't addresses course of performance

2009-02-12T08:31:00.006-05:00

In Westfield Family Physicians, P.C. v. Healthnow New York, Inc., 2009 WL 281296 (4th Dep't 2009), the 4th Department held that an ambiguous contract provision (i.e., not drafted by ABL) was best interpreted through the lens of the parties' course of performance. The case involved a risk-sharing provision in an agreement governing the compensation between a health insurer and a medical group. The group claimed entitlement to X and the insurer contended that the group was entitled to X-Y. The distributions were settled annually. In the first contract year with a supplement, the group was paid X-Y. They did not object. The next year there was no surplus (and thus no payment). That year, the individual physicians were also presented with provider contracts (in case they left the group). Due to a clerical error that caused a missing page, the provider agreements appeared to suggest that the physicians would get X. The following year, there was a surplus, and the group was paid X-Y. This time they objected. The Group's president also testified that the provider agreements (which he believed replaced the group agreement) were a "welcome change" because they clarified that the physicians would get X rather than X-Y.

The 4th Dep't. held that the group's failure to timely object when they were paid X (i.e., $90K less than what they claimed) rather than X-Y -- as well as deposition testimony elicited by ABL -- showed that the parties intended the contract to provide compensation under the X-Y formula.

New WNY Dining Blog

2009-02-06T10:34:00.003-05:00

NY WARN Act took effect on 2/1/09

2009-02-04T06:27:00.003-05:00

The NY WARN Act will require employers with 50 or more employees to give 90 days advance written notification to employees for mass layoffs, plant shutdowns, or relocation. The Act includes a $500 per day penalty for each day notice is not given. It also includes exceptions such as the big three (i.e. war, terrorism, and natural disaster, oh my), if the layoff/closing was the result of the end of a contract/project that the employee knew to be of limited duration, if the need for the notice was not "reasonably foreseeable" (ABL sees litigation over this one), if the notice would have adversely affected the employer's active attempts to secure capital that would have staved off the job losses/closing, or, where the triggering event is caused by an "industrial action" (whatever that is).

This law applies to more companies than does the federal WARN Act, which applies to companies employing 100 or more workers and only requires 60 days notification.

The Act also appears to have been hastily drafted (i.e. legislators trying to look like they are doing something in response to the recession). For example, it is not clear what amounts to a relocation (i.e., does the termination of an employee who works from home and the hiring of another employee a "relocation"? What about consolidation of several offices?).

Although their heart may be in the right place, this measure makes it more onerous for companies (and thus less likely) to do business in NY. Although the same can be said of any regulation -- the benefits of the NY WARN Act outweigh its benefits. Borrowing from Lord Byron, it is better to have worked and lost than never to have worked at all.

Subs contractually indemnifying GC's

2009-02-01T09:34:00.004-05:00

In Brooks v. Judlau Contracting, Inc., 11 N.Y.3d 204 (2008) the Court of Appeals held that a subcontractor may contractually indemnify a general contractor, but that it may only indemnify the GC to the extent of the subcontractor's negligence. In other words, a sub cannot indemnify a GC for the GC's negligence. As noted by Prof. Siegel, the importance of contractual indemnification is especially important in cases such as this one -- where there was no "grave injury" and thus no common law indemnification (despite injuries sufficient to command a $3M settlement).

Serving la vita loca

2009-01-22T06:58:00.006-05:00

Professor Siegel's Law Digest for January 2009 notes that the recent Court of Appeals case in Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, .... N.Y.S.2d .... (Nov. 20, 2008) holds that a summons may be served outside NY using NY service rules (including CPLR 308) unless there is a treaty that requires that the country's SOP rules must be followed. Where the Hague Convention applies, the country's service rules must be followed, but where the Inter-American Convention on Letters Rogatory applies, NY rules may be followed (because the IACLR is permissive, not mandatory.

In Morgenthau, the DA served numerous parties in Brazil via various means, including methods set forth in CPLR 308 and 311, to pursue a civil forfeiture action against $21 million that was illegally transferred from Brazil to NY (then NJ).

Professor Siegel's comment:

The Court of Appeals has handed down a major decision on the service of process outside the state. The Court holds that as long as a basis for extraterritorial jurisdiction exists, CPLR 313 – the main statute in point – provides that all of the methods of service, whether on individuals or corporations, that are available for service inside the state may be used for the service outside the state, regardless of the methods the foreign state may use as an internal matter. And this includes all of the substituted service methods for individuals available under the several paragraphs of CPLR 308 as well as the substituted method for service on corporations available under CPLR 311(b).

In this case, Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, .... N.Y.S.2d .... (Nov. 20, 2008), Brazil was where the defendants were and the service on them was made there, exploiting a number of the methods supplied by CPLR 308 and 311. As long as there’s no treaty that requires deference to the law of the foreign state as to method of service, the New York provisions have an unfettered run, the Court holds, and there was no treaty barrier here.
Brazil does require that service by a foreign party on a local domiciliary be made by a letter rogatory – a request by one state’s court addressed to another’s to lend a hand with something – and a treaty, the Inter-American Convention on Letters Rogatory, to which both Brazil and the U.S. are signatories, addresses the letter rogatory. The treaty doesn’t make the letter rogatory exclusive, however, thus leaving the door open to the New York's methods, the Court finds. Another treaty, on the other hand, the well known Hague Convention, which does require that foreign process honor local requirements respecting service and would seem to require the honoring of the Brazilian letter rogatory rule, does not – alas for the defendants – apply here: Brazil never signed the treaty. Thus CPLR 313 and its small parade of New York's internal service methods are found to have free reign in Brazil as well.

The case was a civil forfeiture action seeking seizure by the district attorney of local assets of the defendants based on their alleged multi-million dollar wrongdoings inBrazil. There appeared to be no question but that the defendants were subject to New Yorkjurisdiction, which left the validity of the foreign service methods as the sole issue.

Nor was the amorphous doctrine of comity found to require deference to Brazil. In an opinion by Judge Ciparick, the Court explains that while it has sometimes applied comity when a party to New York litigation has asked that effect be given to a foreign law, “we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit – and we decline to do so in this case”. Hence the removal of another fetter that might have qualified the extraterritorial reach of the New York methods of service.

The Court admonishes not to read too much into a statute that has a simple and straightforward instruction, such as CPLR 313 has here when it authorizes extraterritorial service. We must look, the Court says, not only at what the statute requires, but also at what it does not require. Absent in the plain text [of CPLR 313] is any requirement to fulfill a foreign locale’s service of process requirements in order to effectuate service in a New York action upon a defendant in another country.

WDNY legal commuity mourns loss of Judge Elfvin

2009-01-07T06:52:00.004-05:00

http://www.bizjournals.com/buffalo/stories/2009/01/05/daily31.html

ABL 2, NYSUT 0

2008-12-31T12:31:00.006-05:00

The 2d Department recently agreed with the 3d Department in holding that a Hold Harmless Provision “was clearly intended to encompass a situation like the one at hand.” Meirowitz v. Bayport-Bluepoint Union Free School Dist., 2008 WL 5376578, at *1 (N.Y.A.D. 2 Dept. 2008) (citing Elmira Teachers' Assn. v. Elmira City School Dist., 53 AD3d 757, 760 (3d Dep't 2008), lv denied 11 NY3d 709) -- which ABL discussed here

http://abuffalolawyer.blogspot.com/search?q=hold+harmless

These cases show the importance of including releases and hold harmless provisions in contracts -- including salary reduction agreements associated with 403(b) plans.

3d Circuit on punitive damages

2008-12-31T07:42:00.000-05:00

Service of process via Facebook!

2008-12-19T09:03:00.002-05:00

ABL wanted to be the first to serve someone via a social networking website, but was beaten to the punch by an Australian attorney.

This method of service is viable under CPLR 308(5) and/or FRCvP 4(e)(1) or 4(f)(3).

What is your best story of service? ABL has served process via e-mail. The most interesting tale of SOP involved a dodgy chap avoiding service. His selective reclusivity irked the Sheriff, who then stopped in at odd hours, and eventually served him at the Nantucket vacation home on Labor Day weekend.

* * *

In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook
Posted Dec 15, 2008, 01:06 pm CST By Martha Neil
Updated: In an apparent first in Australia and, possibly, the world, a judge has OK'd a plan to serve a default judgment on a non-appearing defendant via a social networking website.
Although service previously has been allowed by e-mail and text message, a master of the Supreme Court of the Australian Capital Territory has gone a step further into the Internet world by allowing a default judgment to be served on Facebook, reports the Sydney Morning Herald.
The court okayed the Facebook approach, a Herald Sun article explains, after all other efforts failed, according to attorney Mark McCormack, who represented the creditor side in the mortgage foreclosure case.
"The Facebook profiles showed the defendants' dates of birth, email addresses and friend lists--and the co-defendants were friends with one another," he tells the Herald Sun. "This information was enough to satisfy the court that Facebook was a sufficient method of communicating with the defendant."
To convince the court to try Facebook, the plaintiffs had to show that no other method of service would work, and that the Facebook effort was reasonably likely to succeed, he says.
"Australian courts are regarded as being amongst the most technologically advanced in the world, and this innovation goes to further that claim," the Sydney Morning Herald writes.

you better be good, you better watch out . . .

2008-12-18T07:16:00.006-05:00

The new ethics rules take effect 4/1/09 (they had to pick April Fool's Day?).

See the cliff notes in the attached press release.

Federal Evidence Blog - ABL's blog of the month

2008-12-04T12:48:00.003-05:00

OK, I do not highlight a good blog every month, but it is catchier than saying the blog of the alternating fifth fortnight.

This blog links to 5 Fed. Evid. Rev. 1454-66, 1471 (Oct. 2008), which contains a good discussion of the new FRE 502 -- governing attorney-client privilege.

ABL is thankful he got to Yankee Stadium

2008-11-26T16:41:00.003-05:00

. . . albeit as a spectator.

Notably, however, the back of the ticket does not appear to provide a release for negligence where it provides: "WARNING . . . The bearer of the Ticket assumes all risk and danger incidental to the sport of baseball and all warm-ups, practices, and competitions associated with baseball, including specifically (but not exclusively) the danger of being injured by thrown bats, fragments thereof, and thrown or batted balls and agrees that neither the Yankees, the State and City of New York and their various Agencies, Departments and Subdivisions, the Officer of the Commissioner of Baseball, MLB Enterprises, Inc., Baseball Television, Inc., MLB Advanced Media, L.P., the Major League Clubs, nor any of their respective agents, players, officers, employees and owners shall be liable for injuries or loss or personal property resulting from such causes."

403(b) Tax Sheltered Annuities

2008-11-19T19:44:00.000-05:00

Here is a an article by Brent Cooley in The Advocate, the September 2008 Cayuga-Onondaga BOCES newsletter, reprinted with permission. Cooley discusses preventative measures school districts may take -- and potential pitfalls, as illustrated in litigation involving districts in Elmira (i.e., the hottest real estate market in the country this past year!) and Long Island.

2008 Celebration of Excellence

2008-11-09T15:17:00.001-05:00

You're damn right I didn't order a code red!

2008-10-31T06:26:00.001-04:00

ABL has resurfaced from trial (which was resolved without the need for a jury). ABL was asked by the Court to represent a pro se person at trial in an FMLA action. The plaintiff was fired while on sick leave for being AWOL because, after he attended a training session, his employer called his doctor and got a revised doctor's note -- and then attempted to require the plaintiff to return to light duty. The plaintiff and his employer played phone tag -- and a day after plaintiff called his employer, he was unable to reach his supervisor, and was then deemed AWOL from light duty and charged a few days later.

At trial, the supervisor admitted that plaintiff was never scheduled to work light duty, and that he was never ordered to do anything abd that the supervisor was not going to schedule plaintiff for light duty until he spoke with plaintiff, which he never did. In other words, if plaintiff was not scheduled for light duty and never ordered to do anything, he could not have been AWOL and could not have refused an order (none was given).

2d Circuit rides into Buffalo

2008-10-24T15:12:00.000-04:00

On October 16-17, 2008, the 2d Circuit rode the circuit and held oral arguments and an admission ceremony on the WDNY. The panel consisted of CJ Jacobs and Judges Wesley and Arcara (sitting by designation). Judge Hall also made a brief appearance via video link from Rutland, Vertmont for the first argument on 10/16.

ABL was scheduled to argue two cases before the court, but a settlement and the court's decision to have ther other argument submitted on the papers deprived ABl of the opportunity to participate in the historic visit. Nonetheless, ABL attended some of the arguments -- as well as the lone Q&A. It was a wonderfully organized event and congratulations are deserved by whomever organized this event. The Court ought to ride the circuit more frequently -- with rode trips to the other federal courthouses of the 2d Circuit.

Judge Kloch orders production of MySpace pages

2008-10-24T15:02:00.000-04:00

Yesterday, Judge Kloch, in an unpublished decision, ordered the production of MySpace records of a woman asserting claims for emotional damages. In addition to producing printed records in court, WS LLP also obtained a judicial subpoena to MySpace for the records. One argument in favor of production was the fact that the plaintiff had, after a TRO issued barring her from altering her MySPace account, altered part of the public profile on her MySpace account.

CJ Jacobs -- pro bono is not that bono

2008-10-17T09:56:00.000-04:00

ABL missed the opprtunity to attend the Federalists' meeting in Rochester last week, but it appears to have been rather interesting.

North Philly -- tougher than a $3 steak!

2008-10-15T15:20:00.000-04:00

CJ Roberts issued an interesting dissent from a cert. denial in Pennsylvania v. Dunlap. Thanks to Prof. Laura Reilly for bringing this to ABL's attention.

Fortunately, the meat served at this year's Celebration of Excellance, which was hosted by Justice Alito at the USSC, was a far cry from a $3 steak. Thanks to Cindy Dennis of the American Inns of Court for organizing such a spectacular evening. ABL attended with Robert Klump of Canisius College and the WDNY's pro se office.

USSC lost its juice? So says a study in the NYT

2008-09-18T15:04:00.001-04:00

Seven years later . . .

2008-09-12T07:05:00.000-04:00

. . . we are worried about the cost of discovery. We'll show those terrorists that they cannot stop the commercial juggernaut that is the United States.

Municipalities may sue under RICO

2008-09-05T10:06:00.000-04:00

Smoke 'em if you got 'em because in City of New York v. Smokes-Spirits.com, Inc., the 2d Circuit held that NYC could sue a cigarette retailer under RICO for helping customers avoid paying taxes. The court rejected dicta from Town of West Hartford v. Operation Rescue, 915 F.2d 92, 103-04 (2d Cir. 1990), which suggested that a municipality had to suffer injury to its "business or property" through a commercial transaction in order to have standing under RICO. Not so says the Smokes-Spirits court, which held that lost taxes constitutes for RICO purposes.

Municipalities should take a second look at potential RICO defendants.

biglaw interview

2008-08-29T13:06:00.000-04:00

Thanks to Nate Bouley for bringing this to ABL's attention.

crazy pro se guy versus God's earthly minions

2008-08-28T21:46:00.000-04:00

This Complaint is a better read than some of CPSG's other work -- ABL represents some of the numerous parties sued by CPSG in an unrelated case that does not involve the Holy See or the CIA. Generally speaking, this action relates to the CIA's denial of CPSG's FOIA request for information about a Fr. Pierre Teilhard de Chardin, S.J., who died on April 10, 1955. Apparently, Fr. de Chardin "was a French Jesuit priest trained as a paleontologist and a philosopher, and was present at the discovery of Peking Man, and conceived such idea as the Omega Point and Noosphere, and who is the father of cosmology necessary for Liberation Theology and the New Age movement. [sic] used by the CIA in domestic and foreign operations as an infringement of Plaintiff's liberty, freedoms and first amendment rights."

Simple Truths of Service

2008-08-19T06:43:00.001-04:00

ABL . . . where Canadian money is accepted at par

2008-08-14T21:52:00.000-04:00

ABL welcomes Canadian residents and businesses with questions concerning the American legal system, New York legal issues, or cross-border issues. Several of you have contacted me recently, including the Ottawa Citizen (no grudges for knocking the Sabres out a few years back).

PS ABL plays hockey!

To settle or not to settle, that is the question

2008-08-07T07:16:00.000-04:00

The Lewiston-Porter School District . .

2008-08-05T10:02:00.001-04:00

named Kevin Szanyi as the District's attorney.

UB law student interns in London

2008-07-26T06:17:00.001-04:00

ABL cannot wait to hear about Jenna Piasecki's experience abroad this summer. Thanks again to James Normington for hosting Jenna as a mini-pupil this summer.

Attorney advertisers gone wild

2008-07-21T13:03:00.000-04:00

2d Cir. finds D SOL under 4th Am. for "poop pit"

2008-07-21T11:57:00.001-04:00

In Simko v. Town of Highlands, the Second Circuit Court of Appeals rejected an assertion of 4th Amendment protection for a shed and adjoining "poop pit" because they were visible from neighboring properties (despite enclosure by trees, bushes, and stumps) and the canine fecal matter suggested that the area was not intended for the type of "intimate human activity" necessary for an area to fall within the curtilage of the home. 276 Fed. Appx. 39, 2008 WL 1925143.

WNY Book Arts Center debut

2008-07-17T20:11:00.001-04:00

Congratulations to P22's Carima El-Behairy and Richard Kegler for making this investment in Buffalo's Renaissance -- and on having brought the TypeCon conference to Buffalo last week.

http://www.wnybookarts.org

http://www.typecon.com/

Adverse possession - tomato plants no longer suffice

2008-07-09T20:25:00.001-04:00

New York recently revised its adverse possession law, that favorite topic of Property professors across the country.

You have to hate it when . . .

2008-07-07T14:58:00.000-04:00

the judge reads from a document and tells your opponent that "this is not a bad document for you. Not a home run, but a base hit."

3d Dep't agrees with ABL re hold harmless clause

2008-07-04T16:49:00.000-04:00

In Elmira Teachers' Association v. Elmira City School District, the Third Department held that a hold harmless clause contained in Salary Reduction Agreements signed by school district employees barred their claims for losses stemming from investment in the district's 403(b) Plan. The hold harmless provision provided that "[t]he Employee agrees that the Employer shall have no liability whatsoever for any loss suffered by the Employee with regard to his [or her] selection of an insurance company or mutual fund, or the solvency of, operation of, or benefits provided by said insurance company or mutual fund company." The Court held that this provision was clear and unambiguous -- that it encompassed losses suffered by employees who invested their money in a fund that was ultimately liquidated. Plaintiffs attempted to avoid this result by arguing that their claims against the District were for negligent selection and supervision of the third-party-administrator. This argument, however, was rejected because employees who selected other investment options -- but who participated in the same 403(b) Plan administered by the TPA selected by the District -- did not lose any money.

The District filed a pre-discovery summary judgment motion that eliminated three claims, with two claims surviving. Those two claims were dismissed by the Third Department. The District also obtained a stay of discovery in the action pending resolution of the appeal.

The Third Department's ruling is consistent with a ruling by Justice Arthur G. Pitts of Suffolk County that dismissed an identical Complaint brought by teachers in Long Island. That decision is currently on appeal to the Second Department.

ABL thanks Matt Lerner for his insights concerning the Third Department.

http://nypublicpersonnellawarchives.blogspot.com/2008/07/school-district-not-liable-for-losses.html

You scratch my back and I will sue you

2008-06-29T16:28:00.001-04:00

Aloise v. Saulo, NY Slip Op 04629 (2d Dept. 2008)
(Barter arrangement sufficient quid pro quo to constitute a compensable hiring to invoke Labor Law 241(6) protections to carpenter).

Plaintiff, a 40 year-old journeyman union carpenter injured his eye when a nail ricocheted off of a pipe he was securing with a “brad gun.” Plaintiff owned the nail gun for eight years and it bears a warning that protective eyewear is to be worn. Plaintiff did not wear eyewear and claimed that eyewear was not provided by Defendants.

Plaintiff's project was a barter arrangement with a homeowner and the homeowner’s architectural firm, Defendants, Saulo and Saulo, P.C., respectively. Saulo is a distant cousin of Plaintiff and a licensed architect. Saulo agreed to draw plans for Plaintiff’s home renovation project in exchange for Plaintiff's help completing an outdoor deck for Saulo.

In granting Saulo's SJ motion, Justice Partnow (Kings County) held that the work was not a compensable hiring and that Plaintiff was not an “employee” as defined within Labor Law section 2. Plaintiff appealed to the Second Department seeking.

The 2d Dep't held that the barter arrangement was a sufficient quid pro quo to constitute a compensable hiring. The Court, however, did not reach the issue of causation (i.e., whether Plaintiff was the sole proximate cause of his injury in failing to wear protective eyewear). See, McCormack v. Universal Carpet & Upholstery Cleaners, 29 A.D.3d 542, 815 N.Y.S.2d 635, 2006 N.Y. Slip Op. 03555 (2 Dept. 2006).

Thank you to Robert Conti of Bee Ready Fishbein Hatter & Donovan for bring this decision to my attention.

Art imitating life?

2008-06-28T15:20:00.001-04:00

Avoiding those pesky Medicaid liens

2008-06-27T10:28:00.002-04:00

In re Wright is a decision by the Westchester County Surrogate's Court,
--- N.Y.S.2d ----, 2008 WL 2447373 (N.Y.Sur.), 2008 N.Y. Slip Op. 28230. This decision
permitted the estate of a deceased 6 year old girl to settle a tort action (a car accident that caused her death) while allocating the entire $33,333.33 settlement to conscious pain and suffering and beyond the reach of a hefty Medicaid lien. This decision is based in part on the fact that the lienor defaulted and failed to refute that none of the settlement was for past medical expenses ( see 42 USC §§ 1396p[a]), -- which should not be surprising given the relatively modest amount of the settlement.

This case also declined to apply Riggs v. Palmer as a basis for preventing the girl's father from sharing in his daughter's estate despite the fact that he failed to secure her in a car seat.

ABL goes to see Mr. Garner

2008-06-25T07:14:00.001-04:00

ABL went to NYC to see Brian Garner's seminar on The Winning Brief. It was ABL's 3d BG seminar -- and well worth the trip. At one point, BG told the crowd to take books he had displayed at a table, first come first serve. ABL was very excited because the latest edition of Black's Law Dictionary was there. Although ABL touched the book first (or perhaps tied for first), another BG groupie refused ABL's suggested coin toss [a dispute resolution method that has been adopted by the federal bench in the Northern District of Alabama a.k.a the "high noon coin toss" to decide lead counsel status in a securities class action]. In an effort to spread Buffalo's civility to the NYC bar, ABL left with another book. BG was fun, informative, and engaging -- even better now that he incorporates video clips of judicial interviews into the seminar. BG described the difference between enormity (evil) and enormous (large) with the quip that it is proper to refer to the "enormousness of Skadden Arps, not the enormity of Skadden."

The link above is to the debate between Garner and Judge Posner on the use of footnotes. ABL plans to explore BG's 100 tips from the TWB in future posts.

Buffalo mourns loss of favorite son, Tim Russert

2008-06-13T17:38:00.000-04:00

Time to update the correspondence list

2008-06-12T06:54:00.000-04:00

Judge Larimer recently dropped the following footnote in a decision (not about ABL or anyone ABL knows):

The [] firm directed its opposition to me in an envelope addressed to "Magistrate Judge" David G. Larimer. I held the position of Magistrate Judge twenty (20) years ago but no longer do so. The letter in the envelope was addressed to me at "The United States Supreme Court." I have never served on that Court and do not expect to do so.

2d Cir. on inquiry notice and "storm warnings"

2008-06-11T21:19:00.001-04:00

Domenikos v. Roth, (2d Cir. 2008) held that a class action challenging financial statements placed investors on inquiry notice that previous financial statements were possibly subject to the same alleged infirmities.

Bryan Garner interviews the USSC

2008-05-31T08:44:00.000-04:00

I have attended two of Garner's CLE's and cannot say enough about them. ABL hopes to attend a third later this month (while taking in a Yankees game before they make the mistake of abandoning the House that Ruth built).

Vioxx - consumer fraud decisions overturned

2008-05-30T12:26:00.000-04:00

The consumer fraud verdicts against Merck in the McDarby & Cona cases have been overturned. The Court found that the Product Liability Act claims were preempted by the FDA and that the Consumer Fraud Act claims were subsumed into the preempted PLA. Here are some additional links discussing this appellate decision in the Merck saga:

[http://www.nytimes.com/2008/05/30/business/30drug.html?ref=policy]

[http://druganddevicelaw.blogspot.com/2008/05/conamcdarby-split-vioxx-appellate.html]

[http://lawprofessors.typepad.com/healthlawprof_blog/2008/05/vioxx-verdicts.html]

[http://overlawyered.com/2008/05/breaking-merck-wins-two-more-vioxx-cases-on-appeal/#comments]

WDNY ESI decision

2008-05-23T12:57:00.001-04:00

In Barker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008), Judge Payson held that sufficiently detailed information would be required before requiring party to produce backup tapes.

In this employment case, plaintiff filed a motion to compel production of e-mails. Although the defendants produced some e-mails, plaintiff sought to compel further production. To evaluate the adequacy of the defendants’ search, Judge Payson ordered the parties to submit an affidavit describing the procedures undertaken. The affidavit, however, merely described the additional work required to restore the deleted data from backup tapes. Finding the record of defendants’ search of the requested e-mail from accessible sources incomplete, the court declined to compel production and instead ordered the defendants to identify individuals with knowledge of the steps taken during collection and allowed time for the plaintiff to depose those individuals.

Insurance Archaeology?

2008-05-06T06:06:00.000-04:00

Indiana Jones goes in search of that missing Met Life policy? The site was brought to my attention by Rich Bowman of Boston.