Desmond Inn of Court's Holiday Party

Is December 1, 2009 at the Saturn Club from 5:30-7:30.

Government attorneys gone wild!

Celebration of Excellence

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

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 suppement: 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).

Bench slapped!

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

e-SOP is coming

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 January 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.

Mid Day Club runs special promotion

For the next three months, no dues and no fees, just pay for your lunch -- and no initiation fee if you decide to remain. For more information, contact Rich Galbo @ 332-0151.

Admin. Judge Feroleto to speak at Inns of Court

The Desmond Inn of Court will hold its first meeting on October 15, 2009. The Chapter's First Vice-President, and newly named Administrative Judge for the 8th Judicial District, will discuss her new position and what we can expect from the new AJ. Lunch will be provided. CLE credit is available for Inn members. People interested in attending must RSVP to ABL by October 13.

Orrin Hatch to speak at Federalist Society lunch

In November, U.S. Senator Orrin Hatch will speak at a lunch hosted by the Buffalo Chapter of the Federalist Society. The lunch will be hosted at the Buffalo Club at a time to be determined. Senator Hatch will be the Raichle speaker later that day at Canisius College. Further details to be provided soon!

A decade later . . .

ABL finally discards his civil procedure notes and materials . . . but retains bar review outlines for some inexplicable reason. Catharsis in small doses.

Merck announces $80 million Vioxx settlement

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?

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

Non-compete agreements during tough times

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

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 . . .

. . . 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

Whistleblowers protect Federal Taxpayers

To prtect 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?

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

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

What's good for the goose . . . ?

What did a college poli sci major ask that prompted Scalia to to retort "That's a nasty, impolite question," and a question that he refused to answer?

Did she quote Crash Davis from Bull Durham?



No, she "asked whether the rationale for Scalia's well-known opposition to cameras in the Supreme Court was "vitiated" by the facts that the Court allows public visitors to view arguments and releases full argument transcripts to the public, and that justices go out on book tours." (see link for complete article)

tip of the hat to Bob Gallgher for this article.

NY WARN Act took effect on 2/1/09

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

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).

Call the grammar police (or FBI's in this case)

When is Obama going to get around to fixing Bush's poor grammar?

Hat tip to UB's Laura Reilly.

Serving la vita loca

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

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

ABL 2, NYSUT 0

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

Service of process via Facebook!

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 . . .

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.

driving Miss Daisy Fuentes to Kentucky

Judge Skretny recently issued sentences to the local judge and law clerk who violated the Mann Act by transporting a prostitute/illegal immigrant across state lines en route to a conference (of sorts) of the Royal Order of Jesters (whoever the hell they are, but it sounds like they throw a hell of a party). ABL wonders what Judge Skretny will do with the confiscated motor home?

Federal Evidence Blog - ABL's blog of the month

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

. . . 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

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.

Roemer selected as next Clerk of Court

Congratulations Mike!

2008 Celebration of Excellence

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

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

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

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.