Courtroom Strategy by Attorney Oscar Michelen

NY Court Adopts Federal Standard for Destruction of E-Mails

Oscar Michelen — Wed, 01 Feb 2012 14:24:05 +0000

For the first time in a NY state court case, an Appellate Division court has adopted the standard set forth in 2003 in Zubulake v. UBS Warburg LLC, which set forth guidelines when a party can be punished for the destruction of emails. The NY case, Voom HD Holdings v. EchoStar Satellite LLC, involved a clash of the titans – Voom is subsidiary of Cablevision and Echo Star a subsidiary of the Dish Network. Echo Star had agreed to carry Voom channels if Voom spent $100 MM per year on the Echo Star Service. It seems that $100MM was light as EchoStar found it cost more to distribute the channels as not enough subscribers were coming on from Voom to make it profitable for EchoStar. Executives at EchoStar began to look at ways to get out of the deal in early 2007 and started sending emails and notices to Voom by June 2007. Even when Echo Star’s own audit confirmed that Voom spent $102MM on the Echo Star service, the Echo Star execs kept sniping at Voom.
The legal posturing continued until February 2008 when Echo Star sent a letter terminating the contract. Voom filed suit shortly thereafter. During the course of discovery, it was learned that EchoStar had in place a seven-day automatic email deletion policy; so every days old emails would be auto-deleted from Echo servers. Voom moved for sanctions saying that Echo Star should have preserved those emails since it was reasonable back in mid-2007 to anticipate litigation between the parties. Echo Star claimed it should only be blamed for email destruction that occurred after the lawsuit was filed, as the parties were engaged in settlement negotiations up until the complaint was filed.
The Appellate Division, First Department, held that the proper standard to apply was the one set by Judge Shira Scheindlin which mandated that “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold’ to ensure the preservation of relevant documents.” The court said that this trigger occurred when Echo Star execs first realized that they might consider terminating the agreement and/or claiming that Voom had breached the agreement. It did not help Echo Star that in a Maryland Federal court case in 2005, Broccoli v. Echo Star they got hit with penalties for the same conduct. The court here stated that EchoStar had been on notice of its “substandard document practices” at least since the Broccoli decision, yet continued those very same practices.”
In deciding how to punish Echo Star, the lower court (affirmed by the Appellate Division on this point as well) held that since Voom had copies of the emails it received and since some Echo Star emails that touched upon this subject matter had been preserved as part of a separate lawsuit Echo Star was involved in, Voom was not entitled to an automatic win (the punishment given in Zubulake and many other cases that followed it) because it could still prove its case without the destroyed emails. The court noted that had this other evidence not been available, it would have imposed the harsher standard of striking the answer, based on the egregiousness of EchoStar’s conduct.The sanction chosen by the court was an adverse inference -that at the time of trial, the jury would be told that it is allowed to infer that the destroyed emails would likely have either hurt Echo Star or helped Voom.
The case is a cautionary tale for NY businesses, large and small. Once a demand letter from a vendor comes across your desk, or an email from an unhappy client, or any document which may make you reasonably believe that you may be involved in litigation, you have an obligation to secure your servers and preserve your electronically stored information. Remember that this information may exist on employees’ home computers, on flash drives, on smartphones, in a cloud computing infrastructure, or on back-up tapes, or off-site on a remote server. All of these have to be protected from deletion and destruction and preserved for the course of the litigation or until the other side has had an opportunity to search and copy what they want from the source. That means that businesses must issue litigation holds to all employees advising them of their responsibility. While a small company may get away with doing this by talking to each employee, its best for businesses of all sizes to issue the litigation hold in writing. Failure to do so may find your company up the creek without a paddle – or worse, in a lawsuit without a defense.

Atheist Teen Forces School to Remove Prayer From Wall After 49 Years

Oscar Michelen — Fri, 27 Jan 2012 20:25:01 +0000

Give 16 year old Jessica Ahlquist an “A” for “chutzpa” for being the successful lead plaintiff in a lawsuit brought by the ACLU against a Cranston Rhode Island school district that forced the district to cover up an eight foot high prayer in the school auditorium. The prayer had been there for 49 years and in fact was specifically put up in response to the Supreme Court decision which banned prayer in public schools. Her reward for giving her community a tough civics lesson: residents have crowded school board meetings to demand an appeal; Jessica has received online threats; and the police have to escort her at school.

State Representative Peter G. Palumbo, a Democrat from Cranston, called Jessica “an evil little thing” on a popular talk radio show. Three separate florists refused to deliver her roses sent from a national atheist group. The group, the Freedom From Religion Foundation, has filed a complaint with the Rhode Island Commission for Human Rights.

Quick facts: The prayer, eight feet tall, is papered onto the wall in the Cranston West auditorium, near the stage. It has hung there since 1963, when a seventh grader wrote it and that year’s graduating class presented it to the school as a gift. It was a year after a landmark Supreme Court ruling barring organized prayer in public schools. I actually live in the Herricks School District which is where the school ban prayer emanated from yet I bet my community would have the same reaction nevertheless.

Here’s the prayer:

“Our Heavenly Father grant us each day the desire to do our best, to grow mentally and morally as well as physically -to be kind and helpful to our classmates and teachers – to be honest with ourselves as well as with others – Help us to be good sports and smile when we lose as well as when we win – teach us the value of true friendship- help us always to conduct ourselves so as to bring credit to Cranston High School West – Amen.”

This seems like an easy fix to me. Take out “our Heavenly Father” and “Amen” and change the first sentence to “May we pledge each day to do our best . . .” and you have a secular pledge that does not establish any religion or faith. For those who can’t see what’s wrong with the prayer as is, just imagine that your community over the years became predominantly one religion and the leaders of that community decided to put up an eight foot high prayer to Islam, Judaism, Christianity, Wicca, Buddhism, pick your choice. Still think its ok? Of course its not and neither is this.

Regardless of what you think, this young woman should not be vilified but applauded for having the courage of her convictions and a strong belief in the law to be willing to put herself out there in a very heavily Catholic city like Cranston RI. While most 16 year old girls are doing anything and everything to “fit in,” Jessica Ahlquist is doing all she can to stand out and be the “other” – Perhaps the toughest teen archetype to survive healthily.

Legally, the case was a no brainer. Huge prayer to a Heavenly Father in a public school auditorium. How did this last 40 plus years in the first place? That no one on the school board or in the community ever thought it was unconstitutional or did anything about it is mind-boggling and proof of how like-minded and similar everyone in that community must be. It is a testament to how difficult it must have been for Ms. Ahlquist to take this stand.

Jessica says that she has been an atheist since age 10, when her mother became, seriously ill and her prayers went unanswered. In the NY times article covering the case, she said the prayer was an affront: “It seemed like it was saying, every time I saw it, ‘You don’t belong here.’” She understood at 16 that this feeling was exactly what the Constitution was meant to protect: that the government had chosen someone else’s religion over your own beliefs and that you were not welcome in your own community. When she was asked about how she felt about the folks who wanted the prayer to remain up she stated to the Times:

“I’ve never been asked this before,” she said. A pause, and then: “It’s almost like making a child get a shot even though they don’t want to. It’s for their own good. I feel like they might see it as a very negative thing right now, but I’m defending their Constitution, too.”

I doubt her community will feel that way. In fact, it will be interesting to see the “strict constructionists” argue out of the other side of their mouths that this is why our country is going to hell in a hand basket. Of course, Thomas Jefferson, John Adams, Ben Franklin would all side with Jessica on this one.

It’s ironic that Jessica is actually exhibiting what it means to have true faith in something. She is merely practicing her own brand of religion, I call it “Fundamentalist Constitutionalism.”

Supreme Court Rules Police Attachment of GPS to Car Requires Warrant

Oscar Michelen — Mon, 23 Jan 2012 22:30:36 +0000

Today the Supreme Court in United States v. Jones decided that the District of Columbia’s Police Department’s attachment of GPS device to a suspected drug dealer’s car without a proper warrant violated the Fourth Amendment’s prohibition against unreasonable search and seizures. In overturning the conviction of Antoine Jones, who had received a life sentence for his alleged role in the case, the entire court was unanimous in agreeing that the conviction was unconstitutional but did so in three separate opinions. The way the Court split on the reasons why it should be overturned are to me more important and more telling that the decision itself.
Quick Facts: Antoine Jones is a nightclub owner in DC who DCPD suspected of running a narcotics ring. The police sought and obtained a warrant permitting them to attach a GPS device to his wife’s car and to store and collect the data for a month. The warrant was issued with two requirements: First that the device be affixed within ten days of the warrant and Second that the device be attached to the car while it was physically within the District of Columbia. The DCPD did neither, but still attached and monitored the GPS device for 28 days. They used the evidence that they uncovered through that tracking to indict and convict Jones. The lower court said no warrant was necessary as the monitoring did not amount to a search and no one had a reasonable expectation of privacy while driving on public streets. The intermediate appeals court disagreed and it went to the Supremes.
Main Opinion: Writing for the majority Justice Scalia did what he does best – relied on 18th century law. He insisted that all Fourth Amendment analysis has to harken back to the days of the Founding Fathers to determine whether under the analysis at that time, the new method of “searching” would constitute a search. He concluded the fundamental root of the Fourth Amendment was the importance of a person’s property and that any intrusion on that property was a trespass. Using trespass analysis, he reasoned that the police by placing the tracking device on the car, “trespassed” upon the property of Jones and that therefore, the Founding Fathers would have called that a search requiring a warrant. This opinion was joined in by Justices Thomas (of course), Roberts, Kennedy and Sotomayor (though she joined mostly in the result only and issued her own concurring opinion.
Alito’s concurrence: Judge Alito, while agreeing that the warrantless tracking was unconstitutional, refused to sign on to Scalia’s opinion and attacked it in a strongly worded separate opinion which was joined by Justices Ginsburg, Kagan and Breyer. He pulls no punches and says:

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. . . .
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

That’s Supreme Court trash-talking right there, trust me. He went on to point out several other areas that marked the decision as one which is troubling and insupportable. He noted that since Katz v. United States federal courts including the Supreme Court, have essentially abandoned this ancient “trespass” analysis and instead relied upon a test enumerated in Katz based upon a person’s “reasonable expectation of privacy.” He also noted that under the Court’s majority opinion, if the government required manufacturers to install GPS technology in all cars, that no warrant would be necessary. He added that relying on property rights meant that each State might have a different result since marital property law in each State differs and courts would then have to analyze who owned the car. In fact, in the Jones’ case, the car was only transferred from his wife to him a few days before the device was put on. Alito said the result of the case should not turn on such a minor point. The issue, he said, is that while most people might be aware that you could be followed for a short while on a public street without a warrant, the average person would expect that if the government wanted to track your movements 24 hours a day for a month and also store and analyze the information gleaned from that tracking, that a warrant should be required. He said based on the facts in this case, the warrantless tracking for this period of time was an unconstitutional, unreasonable search of the defendant. This decision raises several problems (which Alito himself recognized). Courts would have to determine on a case by case basis just how long a tracking period would constitute a search. Also, since Alito stated that an investigation into a more serious offense may lengthen how long you could track without a warrant, courts would also have to look at the particular charge the defendant was facing to analyze whether it was justified. In the end, just like occurred in wiretapping, Congress should clear this up and pass a law requiring a warrant for all GPS tracking of criminal suspects.
Sotomayor’s Opinion: Judge Sotomayor took a highly unusual step and wrote an opinion that she recognized raised questions that need not be answered at this time. It was essentially an opinion that just let the Court and society know that new technology will force the country to perhaps re-examine some of the old rules about privacy. She starts out by saying that both of the other opinions are problematic – Scalia’s essentially ignores the expectation of privacy issue and rests too much on property rights while Alito’s ignores that invasion of property rights is still a fundamental principle in Fourth Amendment analysis. She states that since there was a clear invasion of Jones’ privacy rights (and therefore a clear violation of his expectation of privacy) the analysis need go no further. She then goes on to state that GPS tracking and new technologies may call upon us to rethink all of this. That it may still be unreasonable for the government to track us indefinitely even in situations where we are in the public and have no expectation of privacy. Its such a well-written powerful warning of how far this tracking can go that I won’t try to paraphrase it:

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society…. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. . . .I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance”

She even goes on to state that with all of us going online to do our banking and communication that perhaps the mere fact that we are sharing private information with some individuals does not mean we do not expect it to be private from the government or others:

I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private,even in an area accessible to the public, may be constitutionally protected”)

While she correctly notes that these difficult issues need not be addressed in this case, it is great that she decided to essentially think aloud for us to see how she is concerned about where this very public society is heading if the Court and/or Congress don’t carve out some new “expectations of privacy” for us. This forward-thinking opinion is in direct contrast to Scalia’s decision which remains mired in ancient premises and tries to place the 21st Century into the minds of our 18th century Founding Fathers. A wise Latina indeed.

Battle over a Banana as the Velvet Underground Sues over Iconic Album Cover

Oscar Michelen — Sat, 14 Jan 2012 01:56:21 +0000

The record that launched 10,000 rock bands is at the heart of a new lawsuit filed Wednesday by legendary rock band the Velvet Underground.The band, which emerged from the late ’60s avant garde New York scene, released their debut album “The Velvet Underground and Nico” in 1967 (the greatest year in rock history, BTW). The band’s friend and patron Andy Warhol provided its iconic cover image, a screen print of a banana. But he never registered it with the US copyright Office.

Now his estate’s foundation has licensed the image’s use for iPad sleeves and iPhone covers and The Velvet Underground, led by Lou Reed are not having it. They filed suit in NY Federal court seeking to stop the foundation from profiting off the image in this fashion. The VU’s lawyers say that since Warhol never registered it, no one has copyright over it and the band has instead made the image its trademark.

The case shows the common intersection of two areas of intellectual property -copyright and trademark. Normally the artist who creates an artistic work automatically has copyright interest in the work even if he doesn’t register it. But the VU argue that Warhol didn’t design the banana, he acquired it straight out a of a magazine and that they paid him out of their $3,000 advance for the image. They therefore claim that no one has any copyright protection in the image.
They claim that since then, the image has been associated with the band as its trademark – a legal term for an item of intellectual property (a picture, slogan, logo etc) that identifies the source for a product. :Just Do IT” is no longer just an English phrase, its become synonymous with company Nike, given the company trademark protection over its use by anyone else. It would be hard to argue that this image is not directly associated with VU and that when you see it most people think of their album and their band.

This case will hinge on where the banana image came from; whether the Warhol Foundation can have attributed as his original work of art; whether VU can claim that since they paid him for it, he was doing it as a “work for hire” meaning that they own both the copyright and the trademark; and whether its worth enough money to fight over or whether the two sides can agree to a co-ownership deal that keeps it all within the family. I have to say its funny that Andy Warhol, who exploited others’ trademarks regularly to create pop art masterpieces would be sued over doing what made him famous by the band whose iconic image helped make them famous.

Prosecutorial Misconduct Causes US Supreme Court to Overturn Murder Conviction -But Justice Thomas Just Doesn’t Get It.

Oscar Michelen — Thu, 12 Jan 2012 14:05:28 +0000

In another blow to New Orleans DA Harry Connick (Father of the singer Harry Connick Jr) the US Supreme Court once again found that his office withheld exculpatory evidence from a defendant in a capital murder trial. There is a long history of problems in Connick’s office. In 1995, Esquire photographed him, for a piece on the death penalty, standing confidently in front of his desk with one of his favorite office decorations: a 12-inch-high, battery-powered (and operational) electric chair, complete with the mug shots of the five men he had personally prosecuted successfully in capital punishment cases. All five have subsequently been released or had their death sentences commuted to life due to procedural problems in their trials.

In this most recent case – Smith v. Cain – Juan Smith was convicted of killing five people in 1995, when a group of men burst into a house in search of money and drugs. They ordered the occupants to lie down and opened fire.Mr. Smith was the only person tried for the killings. He was convicted based solely on the eyewitness testimony of a survivor, Larry Boatner. Prosecutors presented no DNA, fingerprints, weapons or other physical evidence.But Mr. Boatner’s testimony proved sufficient. “He’s right there,” Mr. Boatner said at Mr. Smith’s trial, pointing at the defendant. “I’ll never forget him.” That is compelling evidence for sure. (though I question whether anyone should ever be put to death on the say-so of just one individual).

There was just one problem. Just hours after the killing, Mr. Boatner was interviewed by the police and he said that he was unable to identify any of the shooters, except that they were all black. Five days later, he told prosecutors he had not seen the intruders’ faces and could not identify them. Surely any criminal defense lawyer worth his salt would rip Mr. Boatner to shreds with this and raise reasonable doubt, right? So what happened? Connick’s office just sat on the interviews and never turned them over to the defense or even let them know of their existence. They intentionally withheld them.

The Supremes were swift and sure in their terse four page opinion – I mean the Supremes take four pages just to say good morning! A four page opinion sends a clear message – this is a no brainer. The Court relied on one of the most revered (and rarely used) Supreme Court decisions: Brady v. Maryland. Brady requires the prosecution to turn over to the defense any evidence it has in its possession which may tend to establish the innocence of the defendant. Here, the question for the justices was only whether the failure mattered — that is, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” In Smith, Chief Justice Roberts wrote that “Boatner’s undisclosed statements were plainly material.” Of course they were. Now Smith will be taken off Death Row and given a new trial. He may still be convicted, but at least he will be armed with all the evidence he is entitled to.

Smith v. Cain was decided by an 8-1 court, with Justice Clarence Thomas providing the sole dissent. In his 19 page decision, Thomas stated that since Boatner later explained that his first statements were the product of far of retaliation, that this testimony would have cleared up the discrepancy and made the withheld evidence irrelevant. But the majority wasn’t buying that argument:

The State and the dissent advance various reasons why the jury might have discounted Boatner’s undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner’s contradictory declarations the jury would have believed. The State also contends that Boatner’s statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so.

In other words, maybe the jury would have believed Boatner but it could have also disbelieved him. Either way ti was for the jury to decide and for the defense to have the opportunity to let the jury decide. Its not hard to understand why Justice Thomas can’t see this simple and clear application of the law. Having risen to the US Supreme Court just because he was a young, African-American neo-con, he was one of the only Supreme Court justices at that time to have never tried a jury trial or even presided over a jury trial or even to have argued an appeal in court. It is worth reviewing Thomas’ meteoric rise to the bench. In 1974, he was appointed an Assistant Attorney General in Missouri. In 1979, he became a legislative assistant to Missouri United States Senator John Danforth and in 1981 was appointed Assistant Secretary for Civil Rights at the U.S. Department of Education. In 1982, President Ronald Reagan appointed Thomas Chairman of the Equal Employment Opportunity Commission (EEOC); he served in that position until 1990, when President George H. W. Bush nominated him for a seat on the United States Court of Appeals for the District of Columbia Circuit. In 1991, after only 16 months of service as an appellate judge, Thomas was nominated by Bush to fill Supreme Court legend Thurgood Marshall’s seat on the United States Supreme Court, making him the second African-American to serve. At the time of his retirement Marshall had this to say about his then potential replacement “I hope they don’t pick the wrong man for the right reason.” Thomas passed confirmation by a vote of 52-48. Having only served in governmental, political positions, Thomas could not fully understand the importance of cross-examination to a jury. But as a lawyer and appellate judge, even though it was for the shortest of stints, he should understand the need for a fair trial.

As another Supreme Court legend, William O. Douglas, stated in his decision in Brady v. Maryland:

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.”

This case is a fitting reminder of that principle and is one that Justice Thomas needs to understand the importance of.

Georgia School Shows Zero Tolerance But Plenty of Idiocy

Oscar Michelen — Tue, 10 Jan 2012 17:03:49 +0000

Congratulations to Gwinnett County School System for winning the coveted Courtroom Strategy Bonehead Legal Move of the Year Award for 2012. I know what your thinking – Oscar its only January How can you possibly award this now? Because I am confident that no application of a governmental rule or law will stop this one by this school. Read on and tell me if you disagree(taken from the website of the NBC subsidiary 11 Alive):

Thirteen-year-old Jack Persyn was at chess club before the start of classes at Lanier Middle School in Gwinnett County when he discovered an inch-and-a-half long knife in a bag he brought to school. The military style bag was given to him as a Christmas gift from his aunt, who bought it at a yard sale The disciplinary report written by administrators at Lanier Middle states that the 8th grader “accidentally” brought the knife to school and that he “immediately self-reported” the weapon to his teacher. Still, Jack was punished with four days of in-school suspension.

That’s right even though he immediately told the school about it and even though the school confirmed and agreed that it was brought to school by accident, they suspended Jack for four days as a reward for doing the right thing. BONEHEADS. But to make it worse, the school tried to justify its decision with the most circular reasoning I have heard in a long time:

The Gwinnett School System insists their policy on weapons in school is not zero tolerance, yet a school spokesperson said any student found to have a weapon at school will face punishment even when a student self-reports accidently [sic] having that weapon.

OK so its not Zero Tolerance, but “any student” with a weapon will be punished. That’s Zero Tolerance. When you apply your weapons policy to a kid who did not know he had the miniscule knife when he went to school because it was in a used backpack given to him for Christmas (just in case you forgot we were talking about Georgia)and then immediately told the school you have Zero Tolerance and Zero brains. The kid was at morning chess club for crying at loud! How about some reverse profiling here.

Why am I even writing about a four day school suspension in Georgia, because ever since 9-11 (and Columbine) these types of policies have come to impact our lives and personal freedoms in ways that we are now immune and accustomed to. We think nothing of a TSA agent searching a 5 year old or passing a 95 year old through a body scan. We allow States to have laws that allow police to ask for ID if someone “appears to be an illegal immigrant”; we allow our past president to pass the “Patriot Act” which restricts our constitutional rights so much that any true patriot would call for protests against its passage; President Obama, who pledged to veto the National Defense Authorization Act, has signed it essentially allowing for martial law in the US and I could go on and on.

So this is just another example (though a small one perhaps) of how those in authority refuse to use any perspective or discretion in dealing with these issues. Zero Tolerance is the best way to cover your butt and not require you to think or exercise judgment. Isn’t that what we want from people in authority – to use their judgment? Otherwise why not have a computer run our school. This case is particularly egregious since we should be looking to reward “self-reporting” and “honesty” especially when it is not disputed that the weapons possession was completely unknowing and accidental; instead the School chose to punish this 13 year old.

Court Rules Gym Owner Could Be Held Liable For Not Using AED

Oscar Michelen — Tue, 03 Jan 2012 14:04:44 +0000

In New York, General Business Law §627-a requires that an automated external defibrillator (AED) be present in health clubs with at least 500 members, along with a trained operator to use it. And now a NY Appellate Court has ruled that this statute also means that the operator has a duty to use the machine to save someone’s life.

Here are the facts of the case: In 2007, Gregory C. Miglino Sr., who was in his late 60s, collapsed while playing racquetball at Suffolk County Bally Total Fitness in Lake Grove. Kenneth LaGrega, a personal trainer qualified to use the AED, found Mr. Miglino lying on his back, breathing heavily and with a faint pulse but with normal color. Another Bally worker brought the AED to Mr. Miglino’s side, but apparently La Grega did not use the device; he says because there was a doctor and a medical student attending to the club member and he di not want to intervene. Mr. Miglino was pronounced dead after being taken to the hospital at 7:45 a.m.

In 2008, Gregory Miglino Jr. filed a wrongful death action against both Bally Total Fitness of Greater New York—the owner and operator of the club—and Bally Total Fitness Corporation.

Bally’s sought dismissal of the lawsuit under NY’s Good Samaritan” Law, Public Health Law §3000-a, which establishes immunity from suit for medical professionals and others who offer treatment in an emergency, including entities and individuals who make defibrillators available as long as they are not “grossly negligent.”

But the Second Department said that the General Business Law trumps the Good Samaritan Law:

“[W]hy statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?” Justice Sandra L. Sgroi (See Profile) asked rhetorically in Miglino v. Bally Total Fitness of Greater New York, 06556-2010.

The court upheld a lower courts refusal to dismiss the case which will now proceed to trial. At trial, a jury could still determine that the Bally’s employee acted reasonable under the circumstances, but would have to consider that the law placed an affirmative duty on him to act.

What makes this so troubling is that the First Department in a similar case granted a motion for summary judgment by a health club whose patron suffered a fatal heart attack when the club did not use an available AED. That court in Digiulio v. Gran, 74 AD3d 450, said that the club had no common law duty to use the defibrillator and “could not be held liable for not doing so.” It also rejected the plaintiff’s argument that General Business Law §627-a implicitly obligated the club to use the device. So, right now, in NY and the Bronx (First Dep’t) you don’t have to use the device but in Queens, Brooklyn, Staten Island, Long Island, Westchester, Rockland, Putnam and Orange (Second Dep’t) you do.

One of two things must now happen. Either the State Legislature needs to clarify whether it intended to place this duty to use the AED on gym owners when it passed GBL 627-a by amending it to make its position clear or the NY’s highest court, the Court of Appeals, will have to break the tie. The Court affirmed the First Dep’t but did not explicitly have to deal with the issue of whether 627-a created a duty to act.

I expect Bally’s to appeal, so the Court should decide this sometime in 2013. I don’t expect the NY State Legislature to act before then. In my opinion, the First Dep’t got it right because statutes that change the common law and place a duty where one never existed before are supposed to be very strictly construed. Since the statute specifically created a duty to house an AED but did not specifically create a duty to use it, I think the Court will say the law did not impose one. The Second Dep’t in discussing this issue stated:

[S]uch strict construction should not be utilized to eviscerate the very purpose for which the legislation was enacted.” Here, given the law’s undisputed requirements, it would be “anomalous to conclude that there is no duty to use the device should the need arise”

The court could not seem to find a reason why the law would require an AED to be present but not require its use. That’s easy – having AEDs around increases the chances that someone who is familiar with its use can use it.

I only know this – gym owners around the state are probably feeling that they could need to have that AED device around for themselves as I am sure this decision is going to give some of the them heart palpitations.

SAT Cheater’s 60 Minutes Interview Is Another Stupid Move

Oscar Michelen — Sat, 31 Dec 2011 15:01:14 +0000

SAT test-taker and cheat Sam Eshaghoff and his lawyer appear tomorrow on 60 Minutes to discuss the criminal case and why he cheated. Normally, I get wanted to capitalize on your 15 minutes of fame, even if its 15 minutes of infamy, but this is a bone-headed move that makes you wonder how smart he is (never mind his lawyer).

You see, Sam got off pretty lightly as far as folks charged with felonies are concerned in Nassau County. The DA allowed him to plead to a misdemeanor and do community service tutoring underprivileged kids as opposed to jail time. In an earlier blog post I agreed that jail time was not necessary for a first offense, non violent offender. But allowing him to tutor as his community service I think was wrong; normally defendants sign up for community service and are given whatever job is next in line – picking up trash, sweeping roadways, etc. The idea is letting folks who can select their own community service do whatever they want is not really punishment and can lead to abuse. But, for whatever reason, DA Rice made an exception and allowed him to do this form of service. Well, now that may be off the table because in snippets of the 60 Minutes interview that were released by CBS, Eshaghoff comes off as an arrogant, unrepentant person who doe snot understand the impact of his actions. His lawyer, Martin Emouna, comes off as an attorney who doesn’t understand that his client has not yet been sentenced. Why any attorney would let his client speak on camera in between plea and sentence and then show that he is not really remorseful is beyond me. Here is one of his comments:

“A kid who has a horrible grade-point average, who, no matter how much he studies is going to totally bomb this test,” says Eshaghoff, “By giving him an amazing score, I totally give him . . . a new lease on life. He’s going to go to a totally new college . . . be bound for a totally new career . . . new path in life.”

So that he was essentially an SAT Robin Hood (who charged $2,500- $5,000 per test). He does not consider that he took away that “new lease on life” from a kid who busted his butt, studied hard, paid for tutoring but just missed the cut of the school of his choice. On that issue our resident genius says:

I feel confident defending the fact that [my clients] getting into the schools that they ended up getting into didn’t really affect other people

OK Sam, do you know how college admission works? There are a limited number of spots for a high number of applicants – people get rejected all the time and often it is SAT score that keeps kids out from consideration. Now a spokesperson for the Nassau DA’s office is saying in today’s Newsday that in light of his comments and lack of remorse they will recommend to the court that he not be allowed to tutor but get in line for the usual drudgery of community service every one else gets:

A source close to the DA said that the type of community service Eshaghoff will complete is not set in stone, and that Rice is not likely to allow him to tutor students when “it’s clear he still doesn’t understand the importance of ethics or honesty. “The community service . . . will almost certainly be significantly less sophisticated work than originally planned,” the source said, adding that trash pickup, janitorial work and park maintenance are more likely.

No word by the way about whether he will have to disgorge all the money he made from his fraudulent scheme like most other defendants have to do as well. What I cannot fathom is why he and his lawyer would not just wait a few more weeks for this notoriety and do this interview AFTER he had been sentenced. Mr. Emouna will likely have to explain this decision to his clients, his parents (paying his fee) and the court. Especially if he ends up getting a harsher result than anticipated.

Solo Farmer Fights Monsanto and Wins Over Patented Seeds

Oscar Michelen — Wed, 28 Dec 2011 16:19:16 +0000

Monsanto is one of the largest conglomerates in the world. For years, they have been trying to corner the world’s food production by patenting genetically-altered seeds. If a farmer wants to grow Monsanto’s crops, they have to actually license the seeds and renew that license every year. But these are seeds that grow into crops and as we all know, crops in turn produce seeds some of which get blown by the wind and sometimes land on other farmer’s property. So what happens when (without the farmer’s knowledge) some of his crops are in fact the by-product of Monsanto’s super seeds? THEY GET SUED!

That’s right, Monsanto has made a habit out of bringing hundreds of massive Federal lawsuits against unknowing farmers over patent infringement. Many farmers have subsequently, quite literally, lost their farms over these lawsuits. But then Monsanto sued the wrong guy – a hardy Canuck by the name of Percy Schmeiser. For 50 years, Percy has been growing crops on his farm in Saskatchewan, Canada, developing his own organic seeds. When Monsanto’s genetically engineered canola found its way, uninvited, into Percy’s canola fields Monsanto threatened him, intimidated him, and tried to take his land away. When Monsanto filed suit, Percy filed a counterclaim for contamination. More than 320 hectares of his farm were found to be contaminated with “Roundup Ready Canola” —the biotech giant’s patented canola, genetically engineered to tolerate otherwise lethal doses of glyphosate, a herbicide Monsanto developed and marketed under the name Roundup. The company sought damages totaling $400,000. After a decade-long battle, Schmeiser won when Monsanto settled out of court, agreeing to pay for all cleanup costs. The agreement also specified that Schmeiser would not be under gag-order, and that Monsanto can be sued for recontamination. His fight has been turned into an indie documentary called David versus Monsanto

The story has important implications in many arenas. Of course for small farmers across the United States, it should set a precedent and end these harassing lawsuits. But for folks who are victims of copyright, trademark and patent trolls of all shapes and sizes,it stresses the importance of fighting back; of not taking their claims for granted; of being creative and fighting for your own rights. As Percy the giant-killer said in a 1999 interview:

“I never put those plants on my land. The question is, where do Monsanto’s rights end and mine begin?”

A simple question that you have to wonder why no one else asked before?

I got this story from the website Mercola.com, a natural health website. The site also documents other recent “contamination” issues caused by unwanted invasion of genetically engineered corps onto natural, organic farmland:

Riceland Foods, the largest rice cooperative in the U.S. won its lawsuit against the Bayer Corporation after its natural long-grain rice was contaminated with Bayer’s unapproved genetically engineered rice. It was just one of about 3,000 similar lawsuits filed against Bayer in recent years. In April of last year, Bayer CropScience was also ordered to pay a dozen Arkansas farmers nearly $50 million “for allowing a genetically altered strain of rice to escape into the commercial market, damaging rice prices in 2006,” a Bloomberg Law article reported.

As a result of the contamination with Bayer’s unapproved experimental GM rice, countries within the European Union refused to purchase U.S. long grain rice, and American rice farmers and cooperatives lost $389 million in projected sales, not to mention the clean-up costs.

2010: Monsanto’s GM corn was discovered across 3,000 hectares (7,400 acres) in seven German states. Since Germany doesn’t allow GM corn to be planted, the farmers had to destroy their crops. These farmers had to “eat” their losses, as the seed companies refused to accept liability for the contamination.

2007: Pollen drift from GM maize (MON810) fields were found to have contaminated hundreds of conventional and organic farmers in Spain, the only country in the EU that allows GM maize to be cultivated.No word on whether lawsuits were brought as a result of that contamination.

In August of last year, the Food Freedom blog reported that the Irish government discovered they’d accidentally planted banned GM maize, originating from Monsanto. In this case, the contamination originated from the seed supplier, Pioneer Hi-Bred Northern Europe, a subsidiary of DuPont. Random tests by the Department of Agriculture, Fisheries and Food (DAFF), discovered that three out of 1,000 plants were contaminated by Monsanto’s illegal GM maize, NK603. The crop was subsequently destroyed to protect organic farms in the area.

I highlight these stories not because they are directly related to the practice of law, but because they show the high stakes involved in these cases. Going up against a global Goliath like Monsanto or Bayer can be daunting but courts can be the great equalizer and as everyone who went to grade school can attest often the best thing to do when being pushed around by a bully is to stand up and fight back!

Ivanka Trump Accused of Stealing Derek Lam’s Shoe Design

Oscar Michelen — Thu, 22 Dec 2011 22:19:51 +0000

Imitation is the fondest form of flattery,right? So famed shoe designer Derek Lam should have been pleased that the Ivanka released a shoe that – well let’s just say it flatters Derek Lam a great deal. (picture of the two shoes is below). Lam has not sued yet, just fired off a cease and desist letter, according to Women’s Wear Daily who reported the story today.

This August I talked about a case involving the famous red-soled shoes of Christian Louboutin (who knew law would make me such a shoe expert?) where a court ruled that his distinctive red soles could not be protected as the red soled shoe existed before Louboutin and the designer himself testified that he chose red not just as a trademark but to convey “energy” and “passion.” That case and the others I have reported on on this blog show the difficulty in protecting a design. Trump’s lawyers are researching shoe history right now (or at least they ought to be) to try and establish that this “design” is really derivative of many other similar shoe designs from year’s past. It is very difficult to get protection over functional items like dresses and shoes for that very reason. Everything old is new again, so if you copied, how can you complain someone else copied?

The other problem Lam will have is his shoe (at $750 compared to Ivanka’s $150 pair price) is not that known a trademark in the community at large. His legal team would try to establish that in his market, among his clientele, this design is synonymous with him and well-known. That is, that it has become one of his “trademarks” so that his customers might think he designed the shoe for Ivanka or that Ivanka’s shoes come from his company.

Without knowing all the facts, it is not clear how this will pan out, but I feel that despite the great similarity between the two products, that Lam will have a hard time stopping Ivanka from selling the similar shoe should she want to. Generally, designers want to be known for their own creativity, not for producing something that builds off of someone else’s creativity. But that’s not a legal issue, that’s a marketing issue. The shoes at question:

Photo courtesy of Huffington Post/ Women's Wear Daily