Wednesday, September 15, 2021

Depraved Minds, Particular People

The Minnesota Supreme Court reversed a "depraved mind" murder conviction of an officer who shot an innocent person while responding to a 9-11 call that the victim made

This case comes to us following the tragic death of Justine Ruszczyk on July 15, 2017. Ruszczyk had called police that night out of concern for a woman she heard screaming behind her home. When Ruszczyk approached the police vehicle that came in response to her call, appellant Mohamed Mohamed Noor fired his service weapon at her from the passenger seat. Noor’s bullet struck Ruszczyk in the abdomen and sadly, she died at the scene.

..The issue before us on appeal is not whether Noor is criminally responsible for Ruszczyk’s death; he is, and his conviction of second-degree manslaughter stands. The issue before us is whether in addition to second-degree manslaughter, Noor can also be convicted of depraved-mind murder. Because conduct that is directed with particularity at the person who is killed cannot evince “a depraved mind, without regard for human life,” Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstances proved is that Noor directed his single shot with particularity at Ruszczyk, we conclude that he cannot. Accordingly, we reverse Noor’s conviction of depraved-mind murder and remand the case to the district court for Noor to be sentenced on the second-degree manslaughter conviction.

The issue on appeal

According to Noor, our precedent establishes that a depraved mind cannot be evinced when a defendant’s conduct is directed with particularity toward the person who is killed. For ease of reference, we refer to Noor’s argument as the “particular-person exclusion.”  Because the evidence establishes that his conduct was aimed specifically at the victim, Noor argues that the evidence is not sufficient to sustain his conviction of third-degree murder. The State responds that the evidence is sufficient under a line of cases that purportedly refutes the existence of the particular-person exclusion or, at the very least, conflicts with the line of cases cited by Noor. The State also argues that many of Noor’s cases are distinguishable based on their procedural posture and therefore, the particular person exclusion is not as well-established as Noor contends. And finally, if we reject the State’s first two arguments, the State urges us to overrule our precedent and begin our depraved-mind murder jurisprudence anew.

The court

In sum, our precedent confirms that Noor is correct in arguing that a person does not commit depraved-mind murder when the person’s actions are directed at a particular victim. The particular-person exclusion is simply another way of saying that the mental state for depraved-mind murder is one of general malice.

...We reaffirm our precedent today and confirm that the mental state required for depraved-mind murder cannot exist when the defendant’s actions are directed with particularity at the person who is killed.

The court overruled the single precedent that favored the State's position

Mytych was clearly and manifestly wrong when it was decided, and it remains clearly wrong today. The defendant in that case bought a revolver, called in sick at work, and then flew hundreds of miles under an assumed name before killing the victims. Mytych, 194 N.W.2d at 278. The intended target was the defendant’s former fiancé, who secretly married another woman and later lied about the nature of his relationship with his new wife in order to engage in further sexual relations with the defendant. Id. Although this fact pattern closely resembles that of a first-degree murder case, the district court, perhaps motivated by a desire to avoid an overly harsh result for a sympathetic defendant, acquitted the defendant of the first-degree charge and convicted her of only depraved-mind murder. Id. at 281, 283.

Mytych’s analysis in affirming the conviction of depraved-mind murder is poorly reasoned. The analysis is composed almost entirely of direct quotations from the district court, and the district court’s reasoning, in turn, was heavily dependent on the testimony of a medical expert at trial. Id. at 281–83. The expert testified “that the word ‘depraved’ could mean automatically out of touch with ordinary standards of decency and reality.” Id. at 283. What little analysis exists in Mytych represents a near-absolute deference to that medical expert’s opinion on the legal definition of a “depraved mind.” Id.

The Mytych decision - linked here - tells the story of her romance with Sam Pulford, who married Janet Williams but had told Mytych that the marriage was "platonic" and had sexual relations with her after he had tied the knot

Communication for the next 4 months consisted largely of efforts by defendant to learn when Pulford would see her again. In February 1968 he visited Chicago where he again saw defendant. Telephone conversations continued thereafter between them until March 14, 1968, the date of the homicide and the assault.


Upon arrival at the Twin Cities International Airport, she went to a rest room, loaded the revolver, and took a cab to the St. Paul Bus Depot. From there, she took another cab to the Pulford apartment and rang the bell. Pulford, in bed at the time, opened the door at his wife's insistence but only after his wife had gone to the bathroom. After letting defendant into his apartment, he walked down a short hallway to get a cigarette and had turned back toward defendant when she shot him in the side. Pulford heard two more shots while lying on the floor. When he arose he found his wife's body in the bathtub, lifeless as a result of two bullet wounds. Defendant denied any memory of taking the gun from her purse and firing it.

If the law is against you

Finally, the State asks us to abandon our precedent and reinterpret the depraved nmind murder statute from a clean slate. It essentially contends that there is a compelling reason to overturn our cases that rely on the particular-person exclusion. And that reason, the State argues, is that the particular-person exclusion creates a “significant hole” in Minnesota’s graduated statutory homicide scheme.

If there were, in fact, a “hole” in the statute, as the State argues, it would be the job of the Legislature to fill it. But as this case itself proves, there is no hole in Minnesota’s statutory regime. The parties agree that the evidence is sufficient to sustain Noor’s conviction for manslaughter. His death-causing action still results in criminal liability, and therefore there is no “hole” in the statutes in the truest sense of the word.

(Mike Frisch)


September 15, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, September 2, 2021

Utah On Flat Fees And Safe Harbors

A significant opinion of the Utah Supreme Court confirmed and reversed in part the district court's denial of summary judgment to an attorney who had accepted flat fees treated as earned on receipt.

The court found the attorney had violated Rule 1.15(c) in two instances but that a third such arrangement was protected by a Safe Harbor provision in Utah's disciplinary  rules.

The Safe Harbor against disciplinary prosecution is a provision that protects an attorney whose conduct complies with an in-force ethics advisory opinion.

The case - which does not seem amenable  to cut-and-paste - extensively interprets prior Utah disciplinary and ethics opinions on the subject of flat/advanced fees and will be required reading for every lawyer practicing in the Beehive State.

To better understand [the attorney's] arguments. it helps to consider how the law surrounding flat fee agreements has developed. This requires us to examine two rules, two ethics opinions and one Utah Supreme Court case.

 Ethics Opinion 136 addressed the circumstances under which a retainer could be earned on receipt.

The court decision in the Jardine case considered that opinion

But while one hand giveth, the other taketh away. Although we acknowledged that Opinion 136 could be read to support Jardine's argument, we rejected that reading.

The second ethics opinion came in the wake of the Jardine decision.

There are two concurring and dissenting opinions.

Chief Justice Durrant would apply the rule of lenity and give safe harbor here with notice to the Bar going forward.

Associate Chief Justice Lee would find the violation in all three instances. (Mike Frisch)

September 2, 2021 in Bar Discipline & Process, Billable Hours, Clients, Current Affairs | Permalink | Comments (0)

Wednesday, August 25, 2021

Remote Practice Blessed In Ohio

A Staff Report on the web page of the Ohio Supreme Court

The Ohio Supreme Court adopted an amendment that will allow a lawyer admitted to practice in another state to provide legal services remotely from Ohio.

The amendment will go into effect Sept. 1.

The changes were made to the Ohio Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio.

The changes recognize that due to technology and the ability to work remotely, an attorney can practice the law of his or her own state from anywhere.

The Court approved the amendment on the condition that the lawyer does not do any of the following:

  • Solicit or accept clients for representation within this jurisdiction or appear before Ohio tribunals, except as otherwise authorized by rule or law
  • State, imply, or hold himself or herself as an Ohio lawyer or as being admitted to practice law in Ohio.

A lawyer practicing remotely in Ohio must continue to comply with the rules of the lawyer’s home jurisdiction regarding client trust accounts, and any client property consisting of funds should be handled as if the lawyer were in his or her home jurisdiction.

(Mike Frisch)

August 25, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, August 17, 2021

Cell Phone Calls and Personal Jurisdiction

The North Carolina Supreme Court held that the state courts did not have jurisdiction over the defendant in a protection order matter 

Before the advent of mobile telephone technology and before call forwarding was available, a person making a telephone call would know the approximate physical location of anyone who answered the phone based on the area code and prefix of the telephone number they dialed. However, the number of landlines is rapidly dwindling, and a person’s phone number alone no longer provides a reliable indication of that person’s location.  As a result, it is important to determine whether, and under what circumstances, a telephone call to a cell phone can subject the caller to personal jurisdiction in the state where the phone happens to be when it is answered.

Specifically, in this case, we examine whether the District Court, Wake County, could exercise personal jurisdiction over the defendant, Logan Wagner, in a proceeding initiated by the plaintiff, Marisa Mucha, who was seeking to obtain a domestic violence protection order (DVPO). The only contact Wagner had with North Carolina was a series of phone calls he made to Mucha’s cell phone on the day she moved to the State. We conclude that Wagner did not have the requisite minimum contacts with North Carolina because he did not purposefully avail himself of the benefits and protections of North Carolina’s laws. Therefore, we hold that the trial court could not exercise personal jurisdiction over Wagner consistent with the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. We reverse the decision of the Court of Appeals which affirmed the trial court’s decision to exercise jurisdiction, and we vacate the trial court’s order for lack of personal jurisdiction over Wagner.

The calls at issue came on the very day that the plaintiff had relocated from South to North Carolina

Wagner and Mucha were previously in a romantic relationship for some time. After the relationship ended, Mucha—who was attending college in South Carolina— told Wagner—who lived in Connecticut—never to contact her again. Wagner did not abide by Mucha’s request. While Mucha was living in South Carolina, Wagner sent her a letter and a text message. His unwelcome efforts to reach Mucha culminated on 15 May 2018. That afternoon, unbeknownst to Wagner, Mucha moved from South Carolina to North Carolina after finishing her college semester. That evening, Mucha received twenty-eight phone calls from an unknown number. When she answered one of the calls, Wagner identified himself, and Mucha hung up. Wagner kept calling. Mucha picked up again and told Wagner to stop. Wagner left a voice message. When Mucha listened to the message, she suffered a panic attack. The next day, she filed a pro se complaint and motion for a DVPO in District Court, Wake County

(Mike Frisch)

August 17, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, August 10, 2021

Georgia Affirms, Remands In High Profile Malpractice Case

The Georgia Supreme Court's decision in the Alston & Bird malpractice litigation is linked here.   

The plaintiffs had sued the law firm after settling the case they had brought against their brother. Thus, the firm was a single defendant in the litigation

    We granted certiorari on the question of whether subsection (b) applies in single-defendant cases and also on the question of whether an expenses-of-litigation award under OCGA § 13-6-11 is subject to apportionment. Although we reverse the Court of Appeals on the latter question and hold that such expenses are not categorically excluded from apportionment, we conclude that the Court of Appeals was correct on the scope of application of the apportionment directed by subsection (b): it applies only in cases “brought against more than one person,” not in single-defendant lawsuits like this one. Thus, we affirm in part, reverse in part, and remand for further proceedings regarding the trial court’s apportionment of the expenses-of-litigation award.   

(Mike Frisch)

August 10, 2021 in Current Affairs | Permalink | Comments (0)

Monday, August 9, 2021

A Case Worth Watching

The Georgia Supreme Court has announced the release of its opinion tomorrow in Alston & Bird's appeal of a decision of the Court of Appeals.

The issues involve comparative fault in a tort action as described by Smith, Gambrell & Russell LLP

Alston & Bird, LLP v. Hatcher Management Holdings, LLC, Case No. S20G1419, the Court will examine two questions regarding the apportionment of fault in tort cases. Georgia statutes allow the apportionment of fault between two defendants. The court will address whether a court also can apportion fault in a case involving only one defendant where non-parties are alleged to be at fault. The court will also consider whether attorney fees awarded as damages under O.C.G.A. § 13-6-11 for stubborn litigiousness or bad faith can be apportioned. Both issues are significant for all defendants looking to have damages apportioned in tort cases.

From the lower court opinion

the record shows that in 2000, Maury Hatcher hired Alston & Bird and its partner, Jack Sawyer, to form and represent HMH, a holding company for the Hatcher family fortune. Sawyer prepared HMH’s operating agreement and presented it to family members at a March 2001 organizational meeting.

The agreement drafted by the attorney provided members a right to an annual report

For the next seven years, Maury managed HMH and was the only member in regular contact with Sawyer. Starting in 2005, however, Maury began embezzling company funds, eventually paying himself $876,500 in compensation and $218,000 in distributions. In the spring of 2008, other family members, including Maury’s brother Jerry, raised concerns about a lack of information about company affairs. In response to these concerns, and at Maury’s request, Sawyer issued a May 2008 letter describing Maury’s broad authority but not responding to members’ requests to see company records.

In response to the inquiries

In the course of and following this exchange, Sawyer confirmed that members could have the information only if there were majority approval for replacing Maury or full disclosure, or if the other members “went to [c]ourt” and obtained a ruling to “compel Maury to turn that information over[.]” Sawyer also suggested that “full disclosure” would cost the family “$25,000 a year.”

Maury's conduct continued and he was replaced by majority vote

On January 16, 2009, the members fired Maury as manager and appointed Jerry and Barry in his stead. On February 2, and despite a warning from a junior attorney about an actual conflict of interest, Alston & Bird sent Jerry and Barry a cease-and-desist letter demanding that they stop interfering with HMH’s interests. In early February, as they worked on a second cease-and-desist letter, the junior attorney again warned Sawyer of the conflict between the firm’s representation of Maury and that of the company under new management. On February 27, Maury and Sawyer presented Jerry and Barry with a universal release from any claims or litigation, to be signed in exchange for the return of HMH’s records. Jerry refused to sign the release, however.

A subsequent investigation revealed that Maury had taken nearly $1.5 million.

Holdings below

Here, a jury was authorized to conclude from the evidence outlined above that as a result of [attorney] Sawyer’s incorrect advice in response to direct inquiries, family members left the August 2008 meeting under the mistaken belief that they were not entitled to information on members’ interests, and that as a result, they were deprived of the opportunity to take action to remedy Maury’s fraud. The jury was also authorized to infer that when Sawyer did not disclose Maury’s redemption or moving plans to the members and when he drafted letters demanding that Jerry and Barry stop interfering with Maury (even after repeated warnings from a junior attorney), Sawyer violated his duties of care and loyalty to HMH. Further, and although Alston & Bird points to evidence that Maury’s thefts occurred before the August 2008 family meeting, Sawyer himself testified that had members learned of Maury’s theft before the redemption, the company could have used his remaining membership interest to repay a portion of what had been stolen. We also note, moreover, that the jury’s award of compensatory damages was well within the range of the evidence.

For all these reasons, the trial court did not err when it denied Alston & Bird’s motion for directed verdict and for judgment notwithstanding the verdict.

On a separate issue

Alston & Bird also asserts that the trial court erred when it instructed the jury that it could award prejudgment interest in this tort action. We agree.

As to plaintiffs' issue

HMH first argues that the trial court erred in reducing the jury’s award by the percentage of the fault of Maury as well as HMH. We agree.

Oral argument is linked here.

After listening, my impression is that the result more likely will turn on Georgia-specific statutory interpretation rather than general tort principles.  (Mike Frisch)

August 9, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, July 15, 2021

Montana Upholds Judicial Independence

From the synopsis of a decision issued yesterday by the Montana Supreme Court

The Montana Supreme Court held unanimously today that the State Legislature exceeded the scope of its legislative functions when it issued subpoenas for the electronic records of Judicial Branch Court Administrator Beth McLaughlin. The Court ruled that the subpoenas sought information not related to a valid legislative purpose, information that is confidential by law, and information in which third parties have a constitutionally protected individual privacy interest. The subpoenas arose from the Legislature’s stated concern about the practice of polling judges for what it called “prejudg[ing] legislation and issues” that may come before the courts. In today’s Opinion, the Court first rejected the Legislature’s argument that the Supreme Court had no authority to rule on the case because it presented a direct conflict between the two branches of government that could be handled only through negotiation between the branches. Citing a court’s “unflagging responsibility to decide cases and controversies,” the Supreme Court noted that disputes over the scope of legislative subpoena power had been litigated in numerous cases and “are squarely within the authority of the courts.” It referred to the U.S. Supreme Court’s recent decision in Trump v. Mazars, in which the High Court ruled on Congressional subpoenas to the President and set forth a balance of factors that courts must consider in examining subpoenas to minimize “interbranch confrontation.” The Montana Supreme Court rejected the Legislature’s argument that it needed McLaughlin’s e-mails to investigate the potential for bias among judges who could be considering court challenges to legislation. First, under the Montana Constitution, the Judicial Standards Commission, not the Legislature, investigates allegations of judicial misconduct. Any concern about a judge making statements about cases that are or could come before the courts would be within the exclusive authority of the Judicial Standards Commission and the Supreme Court. Second, the U.S. Supreme Court in Republican Party v. White (2002) struck down as a First Amendment violation a Minnesota law prohibiting candidates for judicial election from announcing their views on disputed legal and political issues. Impartiality, the Supreme Court explained in White, guarantees a party that the judge who hears the case will apply the law to that party in the same way the judge  applies it to any other party. A judge’s views regarding the relevant legal issues in a case is not a necessary component of equal justice. The Supreme Court explained in White that impartiality also means open-mindedness: “This quality in a judge demands, not that he [editor's note: or she] have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when issues arise in a pending case.” The Montana Supreme Court emphasized the rules of judicial conduct that encourage judges to share their “special expertise” with the Legislature on matters concerning the law, the legal system, and court administration.

...In a separate concurring opinion, Justice Sandefur noted his complete concurrence in the comprehensive analysis and holdings in the majority opinion but wrote separately to further concur in Justice McKinnon’s special concurrence, as supplemental reasoning wholly consistent with the Court’s main analysis and holdings. Justice Sandefur further stressed the critical importance of adherence and respect for the constitutional separation of powers and the rule of law in the face of the reckless “crisis” unscrupulously ginned-up for the purely partisan purpose of undermining the constitutional function of Montana’s duly-elected non-partisan Judicial Branch—to conduct independent review of legislative enactments for compliance with the supreme law of this state, the Montana Constitution.

From Justice McKinnon's special concurrence

By addressing the particulars and substance of the subpoenas (public records and records retention, Opinion, ¶¶ 22-31; use of state resources to lobby, Opinion, ¶¶ 32-37; statements by judges, Opinion, ¶¶ 38-45; overbreadth, Opinion, ¶ 47, process attendant to issuing subpoenas, Opinion, ¶ 48) the Court, though correct on the law, obscures the mark. In doing so, the Court implicitly lends credibility and legitimacy to a legislative act which was blatantly designed to interfere with, if not malign, a coequal and independent branch of government. The constitutional doctrine of separation of powers does not tolerate the control, interference, or intimidation of one branch of government by another. Upon this basis I would quash the subpoenas.

Noting that Montana is not 17th century England [editor's note: not yet]

In conclusion, it seems fitting, given the circumstances of this litigation and its blemish upon Montana’s history, that a final reference to Marbury v. Madison be had. “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury, 5 U.S. (1 Cranch) at 176. The constitutional doctrine of separation of powers is one such limit. It is upon this basis that I would resolve these proceedings.

Justice Sandifer

Contrary to the irresponsible rhetoric that has and will likely continue to spew forth from those intoxicated with their long-sought unitary control over the political branches of government, this case is not about judicial disregard of the public’s right to know, noncompliance with applicable public records retention laws, judicial bias, or judicial “lobbying.” The Court’s opinion clearly lays bare the absurdity of those patently false and intentionally inflammatory political talking-points, revealing a far more sinister motive. Beyond the smoke-screen of the catchy but demonstrably false allegations leveled against the judiciary is an unscrupulously calculated and coordinated partisan campaign to undermine the constitutional function of Montana’s duly-elected nonpartisan judicial branch to conduct independent judicial review of legislative enactments for compliance with the supreme law of this state—the Montana Constitution.

(Mike Frisch)

July 15, 2021 in Current Affairs | Permalink | Comments (0)

Friday, July 9, 2021

Enforcing An Email Settlement

Email settlements are addressed in a decision of the New York Appellate Division for the First Judicial Department

This appeal concerns the certitude of settlements effected via email. Supreme Court held that an apparent email settlement of respondent's underinsured motorist arbitration claim was invalid for two reasons. First, the court found that it was unclear whether respondent's attorney retyped his name on his email agreeing to the settlement. His name did appear in what appears to be a prepopulated block containing his contact information at the end of the email. The motion court, in accord with precedent of this Court, found that the retyping of a name is required for an email to be "subscribed" and therefore a binding stipulation under CPLR 2104. The second basis for the court's ruling was that the email correspondence did not contain all the material terms of the settlement. We now reverse, and write to clarify that the transmission of an email, and not whether an email "signature" can be shown to be retyped, is what determines that a settlement stipulation has been subscribed for purposes of CPLR 2104.

The case involved a claim for uninsured coverage by the driver-employee against the employer's insurer

The arbitrator rendered her decision on September 16, 2019, awarding Kendall $975,000.  The same day, the decision was emailed to Kendall's counsel and faxed to Philadelphia's counsel. However, neither counsel received the decision and they continued to negotiate.

On September 19, 2019, the parties reached an agreement to settle the dispute for $400,000. On that day, respondent's counsel emailed petitioner's counsel: "Confirmed -we are settled for 400K." Below this appeared "Sincerely," followed by counsel's name and contact information. Shortly thereafter, petitioner's counsel emailed in reply, attaching a general release, styled a "Release and Trust Agreement," and saying, "Get it signed quickly before any decision comes in, wouldn't want your client reneging." Respondent's counsel answered, "Thank you. Will try to get her in asap." This email concluded with the same valediction, name, and contact information as had respondent's counsel's earlier email.

After respondent's counsel received the arbitrator's decision and before respondent signed the Release and Trust Agreement, counsel indicated that he would not proceed with the $400,000 settlement and demanded payment of the $975,000 awarded by the arbitrator. Petitioner thereupon brought this special proceeding to enforce the settlement agreement, and to vacate the arbitral award.


We now hold that this distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is commonly practiced today. It is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Since 1999, New York State has joined other states in allowing, in most contexts, parties to accept electronic signatures in place of "wet ink" signatures. Section 304(2) of New York's Electronic Signatures and Records Act (ESRA) provides: "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." Moreover, the statutory definition of what constitutes an "electronic signature" is extremely broad under the ESRA, and includes any "electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302[a]). We find that if an attorney hits "send" with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own, then it is unnecessary for them to type their own signature. This rule avoids unnecessary delay caused by burden-shifting "swearing contests over whether an individual typed their name or it was generated automatically by their email account" (Princeton Indus. Prods., Inc. v Precision Metals Corp., 120 F Supp 3d 812, 820 [ND Ill 2015]).


While we jettison the requirement that a party or a lawyer retype their name in email to show subscription, that does not mean that every email purporting to settle a dispute will be unassailable evidence of a binding settlement.

First, there may be issues of authentication. Email accounts can be hacked. An email from an attorney's account is presumed to be authentic, but that is a rebuttable presumption. Just as a party may attack a hardcopy settlement offer or acceptance as a forgery, a party that claims an email was the product of a hacker (or of artificial intelligence, or of some other source) may rebut its authenticity.

Second, an email settlement must, like all enforceable settlements, set forth all material terms. That condition is satisfied here where the sole issue is how much respondent would accept in settlement of her SUM claim. Respondent argues that the settlement was conditioned on the respondent signing the release. We disagree. The Release and Trust Agreement [*5]was to be further documentation of the binding agreement constituted by the parties' counsel's emails agreeing to settle respondent's claim for $400,000 (see Kowalchuk v Stroup, 61 AD3d 118, 123 [1st Dept 2009]), rather than something on which that binding agreement was contingent (see Trolman v Trolman, Glaser & Lichtman, P.C., 114 AD3d 617, 618 [1st Dept 2014], lv denied 23 NY3d 905 [2014]; Shah v Wilco Sys., Inc., 81 AD3d 454 [1st Dept 2011], lv dismissed 17 NY3d 901 [2011]). The material term of the parties' agreement to settle respondent's claim being the sum of money that petitioner would pay respondent, respondent's execution of a general release was essentially a ministerial condition precedent to payment (see CPLR 5003-a[a]; Anghel v Utica Mut. Ins. Co., 164 AD3d 1294, 1296 [2d Dept 2018]; compare Teixeira v Woodhaven Ctr. of Care, 173 AD3d 1108 [2d Dept 2019] [email exchange that included "'consider it settled'" did not show mutual accord where settlement was subject to resolution of related proceeding in Surrogate's Court]).

Respondent's remaining arguments are without merit. Her reliance on Philadelphia's counsel's email urging speed in executing the release to avoid respondent "reneging" is misplaced. The email exchange exhibits offer and acceptance; in this context, an expression of concern that a party might renege presupposes the existence of an agreement. Additionally, the doctrine of mutual mistake is not applicable where the existence of an arbitral award was easily ascertainable before entering into the settlement (see P.K. Dev. v Elvem Dev. Corp., 226 AD2d 200 [1st Dept 1996]).

Accordingly, the judgment of the Supreme Court, New York County (Lynn R. Kotler, J.), entered May 27, 2020, denying the petition to enforce a settlement agreement, direct respondent to execute a certain Release and Trust Agreement, and vacate an arbitration award, and dismissing the proceeding, should be reversed, on the law, without costs, the proceeding reinstated and the petition granted.

July 9, 2021 in Current Affairs | Permalink | Comments (0)

Friday, June 25, 2021

Fourth Circuit Upholds Public Access To Civil Complaints

The United States Court of Appeals for the Fourth Circuit upheld the right of reporters (and the public) to prompt access to civil complaints.

Courthouse News brought this action after its reporters could not obtain prompt access to newly filed civil complaints from two Virginia courts. After a four-day bench trial, the district court found that the Clerks of those courts had not made the complaints timely available to the press and public, violating the First Amendment right of access to such documents. Accordingly, the district court granted a declaratory judgment so holding, which the Clerks now appeal. We affirm.


The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible. After considering all of the evidence offered at trial, the district court found that the facts of this case demonstrate that the Clerks did not do so, and so violated the First Amendment

Associate Judge Diana Gribbon Motz authored the opinion. (Mike Frisch)

June 25, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, June 24, 2021

Fourth Circuit Defamation Decisions

From the United States Court of Appeals for the Fourth Circuit

In April 2019, the television news program CBS This Morning broadcast interviews with two women who accused Justin Fairfax, the Lieutenant Governor of Virginia, of sexual assault. Fairfax denied the allegations and subsequently sued CBS Corporation and CBS Broadcasting, Inc. (collectively, CBS) for defamation and intentional infliction of emotional distress. The district court granted CBS’s motion to dismiss the complaint in its entirety but denied CBS’s motion for attorney’s fees and costs. The parties now appeal, and we affirm the district court in both respects. Specifically, Fairfax’s complaint fails to plausibly allege that CBS made the allegedly defamatory statements with knowledge or reckless disregard of their falsity, as required to state a claim for defamation of a public official. And the relevant fee-shifting statute by its plain terms is discretionary, not mandatory or presumptive. We therefore must affirm.

The opinion is linked here.

Another decision released yesterday 

In 2019, a jury found Puma Biotechnology, Inc. had defamed Fredric Eshelman and ordered Puma to pay Eshelman $22.35 million in compensatory and punitive damages. This verdict constituted the largest damages award in a defamation suit in North Carolina history. Puma appeals, challenging the jury verdict on a number of grounds, including excessiveness. For the reasons that follow, we affirm the liability verdict but vacate the damages award and remand the case to the district court for further proceedings consistent with this opinion.

(Mike Frisch)

June 24, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, June 22, 2021

Competitor Keyword Purchases Violate Attorney Advertising Rules

A Staff Report from the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two advisory opinions regarding lawyer advertising.

Advisory Opinion 2021-04 advises lawyers regarding the purchase of keyword online advertising to affect online search results conducted by prospective clients.

A purchase of keywords of a competitor lawyer’s or law firm’s name or keyword will return a list of websites in an Internet search engine that displays the purchasing lawyer’s website above that of the competitor lawyer. The opinion concludes that the purchase of a competitor’s name or keyword is an act intended to deceive a prospective client and is a false, misleading, or nonverifiable communication about the lawyer purchasing the keyword.

The Board additionally concludes that the use by a lawyer of the name of another lawyer, without consent, improperly furthers the purchaser’s own financial and business interests and displays a lack of professional integrity contrary to the Rules of Professional Conduct.

Note: South Carolina reprimanded an attorney for such conduct.

Advisory Opinion 2021-05 addresses whether a lawyer certified as a specialist by a private certifying organization recognized by the Supreme Court may advertise their specialization when the Court has not designated a particular field of law as a specialty. The Court has designated 18 fields of law as specialties that may be advertised by Ohio lawyers.

The Board advises that a lawyer is permitted to advertise a designated specialty under the Rules of Professional Conduct only when the Court, with the advice of its Commission on the Certification of Attorneys as Specialists, has designated the field of law as a specialty.

The Board concludes that the advertisement of a specialization by the lawyer not designated by the Court results in a misleading and improper communication under the Rules of Professional Conduct.

(Mike Frisch)

June 22, 2021 in Current Affairs | Permalink | Comments (0)

Friday, May 14, 2021

Jewel Theft Not Covered

A denial of insurance coverage was affirmed by the New York Appellate Division for the First Judicial Department

Plaintiff, a high-end jeweler in Manhattan, was insured under an all-risk, jewelers block policy issued by defendant. The policy excluded from coverage "[l]oss, damage or expense caused by or resulting from sabotage, theft, conversion or other act or omission of a dishonest character . . . on the part of any person to whom the Interest Insured may be delivered or entrusted by whomsoever for any purpose whatsoever . . . " (dishonest entrustment exclusion).

On Tuesday, March 21, 2017, plaintiff was contacted by one Paul Castellana, who represented that he worked for Sony Pictures International, was shooting a video with Jennifer Lopez, and wanted to borrow pieces of plaintiff's jewelry for the shoot, which was to be in Miami the coming weekend. Plaintiff and Castellana communicated via email, Castellana using a Sony Pictures International email address. After the two settled on five pieces of jewelry totaling $2.09 million, Castellana sent plaintiff a certificate of insurance for the items. He also gave plaintiff the contact information for someone who could confirm the authenticity of the certificate of insurance; the contact information matched the person's contact information on the insurance group's website. The person confirmed to plaintiff that Castellana was "a good client of his" whose "reputation in the industry [was] stellar." Plaintiff then gave the jewelry to an associate of Castellana's who had come to plaintiff's store to collect it. When Castellana failed to return the jewelry the following week, plaintiff contacted law enforcement, hired a private investigator, and filed a claim with defendant.

It turned out that Castellana was an alias for one James Sabatino, a member of the Gambino Organized Crime Family of La Cosa Nostra (United States v Sabatino, SD Fla, Case No. 16-20519-CR-JAL, Case Management/Electronic Case Filing [CM/ECF] Doc. No. 231, "Stipulated Factual Proffer," at ¶¶ 3, 30). While in federal prison in Miami, Sabatino managed to obtain several cell phones, which he used to create the Sony Pictures International email address and communicate with plaintiff by voice call and email (id. at ¶¶ 28-30). His co-conspirators then collected the jewelry and transported or sent it to others in south Florida or elsewhere for resale (id. at ¶¶ 32, 34). The jewelry at issue in this case was never recovered (id. at ¶ 32). Sabatino was only caught when federal prison officials went to his cell to search it and found him on the phone; a search of the phones themselves uncovered his scheme (id. at ¶ 40). Sabatino ultimately pleaded guilty in federal court to one count of conspiracy to violate the RICO Act and was sentenced to a term of 240 months in Florence ADMAX in Colorado (id., CM/ECF Doc Nos. 287 and 306, judgment and amended judgment, respectively).

Defendant, meanwhile, denied plaintiff's insurance claim, relying on the dishonest entrustment exclusion, and plaintiff commenced this action for breach of contract.

The Miami Herald had a story about Mr. Sabatino and other victims

Goodbye, Jimmy Sabatino.

Federal prison officials in Miami, who consider the legendary con man a royal pain in the you-know-what, were more than happy to see that Sabatino will soon be sent off to a maximum security facility in Colorado. It’s a notorious Supermax prison for murderers and terrorists held in isolation.

Sabatino, a wiseguy wannabe from New York, was sentenced Monday to a maximum 20 years in prison, showing no remorse for his $10 million rip-off scheme from behind bars in Miami — right up until the end.

“I don’t apologize to nobody,” Sabatino told U.S. District Judge Joan Lenard, after blaming the U.S. government and other defendants who snitched on him in the FBI investigation.

“They [the government] allowed this to happen,” he said. “They should be ashamed of themselves. ... All of this is about rats.”

Sabatino, a 40-year-old perennial inmate, pleaded guilty in September to a racketeering charge that featured a signature bit of audacity: Using cellphones purchased from federal corrections officers, he tricked luxury retailers such as Jimmy Choo, Tiffany & Co. and Van Cleef & Arpels into loaning out fancy jewels, watches and handbags for placement in music videos shot in Miami.

Of course, Sabatino fenced the high-end goods, valued at millions of dollars, through South Florida pawn shops with the help of another inmate at the Federal Detention Center in downtown Miami and two other outsiders. He kept some of the illicit profits for himself, but gave a piece to an associate of the Gambino organized crime family.

The Herald provided background information

Sabatino is a legendary Miami con artist whose past crimes have included posing as a music executive while running up hundreds of thousands in unpaid tabs at Miami resorts and pretending to be an entertainment mogul to acquire hundreds of free Super Bowl tickets.

For years, the Staten Island native has captivated connoisseurs of flim-flam artistry with his brazen crimes. These have included calling the FBI from a prison cell in England and threatening to kill then-President Bill Clinton, which got him brought back to the United States, and running a scam from prison several years later that defrauded the phone provider Nextel out of about $3 million.

He even managed to convince Miami-Dade corrections officials three years ago to pay to repair a lazy right eye after falsely complaining he’d suffered a stroke and was experiencing severe headaches.

His latest scheme began in the fall of 2014: Through emails and phone calls, the pudgy prisoner posed over the phone as a Sony executive and reached out to about 20 luxury store managers to convince them to turn over their jewelry, watches and other goods to be displayed in splashy music videos, according to federal prosecutor Christopher Browne.

Sabatino’s real plan, however, was to enlist a fellow inmate and others on the street to redirect the expensive items and take them to pawn shops, according to a statement filed with his plea agreement.

Pudgy prisoner? (Mike Frisch)

May 14, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, May 13, 2021

Roof Appeal Oral Argument Scheduled For May 25

Richmond, VA (5/25/2021 - Session)
Tuesday, May 25, 2021

US v. Dylann Roof (Gergel)

17-0003 Briefs

CRIMINAL: Multiple issues arising from convictions for hate crime, religious obstruction, and firearms offenses resulting in death and from imposition of death penalty.

Judge Duane Benton, United States Court of Appeals for the Eighth Circuit
Judge Kent A. Jordan, United States Court of Appeals for the Third Circuit
Senior Judge Ronald Lee Gilman, United States Court of Appeals for the Sixth Circuit

Tuesday, May 25, 2021, 10:00 a.m.

(Mike Frisch)

May 13, 2021 in Current Affairs | Permalink | Comments (2)

Friday, May 7, 2021

No Section 230 Protection

The United States Court of Appeals for the Ninth Circuit has held that section 230 of the Communications Decency act does not bar a suit against Snapchat

According to the Parents’ amended complaint, Jason Davis (age 17), Hunter Morby (age 17), and Landen Brown (age 20) were driving down Cranberry Road in Walworth County, Wisconsin at around 7:00 p.m. on May 28, 2017. Jason sat behind the wheel, Landen occupied the front passenger seat, and Hunter rode in the back seat. At some point during their drive, the boys’ car began to speed as fast as 123 MPH. They sped along at these high speeds for several minutes, before they eventually ran off the road at approximately 113 MPH and crashed into a tree. Tragically, their car burst into flames, and all three boys died.

Shortly before the crash, Landen opened Snapchat, a smartphone application, to document how fast the boys were going. Snapchat is a social media platform that allows its users to take photos or videos (colloquially known as “snaps”) and share them with other Snapchat users. To keep its users engaged, Snapchat rewards them with “trophies, streaks, and social recognitions” based on the snaps they send. Snapchat, however, does not tell its users how to earn these various achievements.

The app also permits its users to superimpose a “filter” over the photos or videos that they capture through Snapchat at the moment they take that photo or video. Landen used one of these filters—the “Speed Filter”—minutes before the fatal accident on May 28, 2017. The Speed Filter enables Snapchat users to “record their real-life speed.”

The danger

Many of Snapchat’s users suspect, if not actually “believe,” that Snapchat will reward them for “recording a 100-MPH or faster [s]nap” using the Speed Filter. According to plaintiffs, “[t]his is a game for Snap and many of its users” with the goal being to reach 100 MPH, take a photo or video with the Speed Filter, “and then share the 100-MPH-Snap on Snapchat.”

Snapchat allegedly knew or should have known, before May 28, 2017, that its users believed that such a reward system existed and that the Speed Filter was therefore incentivizing young drivers to drive at dangerous speeds. Indeed, the Parents allege that there had been: a series of news articles about this phenomenon; an online petition that “called on Snapchat to address its role in encouraging dangerous speeding”; at least three accidents linked to Snapchat users’ pursuit of high-speed snaps; and at least one other lawsuit against Snap based on these practices. While Snapchat warned its users against using the Speed Filter while driving, these warnings allegedly proved ineffective. And, despite all this, “Snap did not remove or restrict access to Snapchat while traveling at dangerous speeds or otherwise properly address the danger it created.

The court looked to product liability law rather than the CDA

The duty underlying such a claim differs markedly from the duties of publishers as defined in the CDA. Manufacturers have a specific duty to refrain from designing a product that poses an unreasonable risk of injury or harm to consumers. See Dan B. Dobbs et al., Dobbs’ Law of Torts § 478 (2d ed., June 2020 Update). Meanwhile, entities acting solely as publishers—i.e., those that “review[] material submitted for publication, perhaps edit[] it for style or technical fluency, and then decide[] whether to publish it,” Barnes, 570 F.3d at 1102—generally have no similar duty. See Dobbs’ Law of Torts § 478.

It is thus apparent that the Parents’ amended complaint does not seek to hold Snap liable for its conduct as a publisher or speaker. Their negligent design lawsuit treats Snap as a products manufacturer, accusing it of negligently designing a product (Snapchat) with a defect (the interplay between Snapchat’s reward system and the Speed Filter). Thus, the duty that Snap allegedly violated “springs from” its distinct capacity as a product designer. 


CDA immunity is also unavailable in this case because the Parents’ negligent design claim does not turn on “information provided by another information content provider.”

The court reversed the District Court order dismissing the case. (Mike Frisch)

May 7, 2021 in Current Affairs | Permalink | Comments (0)

Juror Tweets Raised In En Banc Argument

The United States Court of Appeals for the Fourth Circuit heard oral argument en banc on the impact of a juror's social media on the trial of former West Virginia Supreme Court Justice Allen Loughry. 

The oral argument is a bit hard to hear (at least for me at my advanced age) but it's most definitely worth a listen.

The questioning indicates that the court is struggling with some difficult issues with high profile trials in an era awash in social media. 

The specific issue here is whether the trial court should have held a hearing on the tweet-liking juror. 

MetroNews (W.Va.) reported on the decision to rehear the matter

The saga of Allen Loughry isn’t over after all.

The judges of the U.S. Court of Appeals for the Fourth Circuit ordered today that they will all preside over a re-hearing of the former West Virginia Supreme Court Justice’s appeal. Such a hearing is called en banc, and it means all the judges of a court hear the case.

The case is tentatively scheduled for remote oral arguments on May 3.

The other major happening is that the lawyers have been ordered to provide 15 extra paper copies of their earlier filings.

This is the latest twist in the fraud case of the former justice who authored the book “Don’t Buy Another Vote, I Won’t Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia.”

Loughry was elected to the state Supreme Court in 2012 and was selected to serve as chief justice in 2017. But after a spending scandal hit, Loughry was arrested by the FBI, impeached by the Legislature, resigned from the court and convicted on fraud charges by a federal jury.

Loughry has already served his federal sentence and was released Dec. 16. But he continues to dispute aspects of his prosecution and trial.

A three-judge panel in late December rejected Loughry’s appeals claim. The judges heard arguments in late October on Loughry’s claim that a juror in his federal fraud case was unduly influenced by social media.

The appeals hearing  focused on whether the district court in Charleston erred by denying an evidentiary hearing based on a juror’s Twitter usage during Loughry’s 2018 criminal trial.

Loughry’s attorneys had asked for that ruling to be reversed and for an evidentiary hearing to examine the matter further. Loughry is represented by Elbert Lin, West Virginia’s former solicitor general.

A jury in late 2018 found Loughry guilty of 11 charges of mail and wire fraud, witness tampering and making a false statement to a federal investigator.

The jury acquitted  Loughry on a count charging him with mail fraud in connection with his removal of a historical Cass Gilbert desk from the Supreme Court building to his home, which had been the subject of extensive media coverage.

U.S. District Judge John Copenhaver later acquitted Loughry on the witness tampering charge.

Loughry’s appeal focused on the social media habits of a particular juror, described as Juror A.

When jurors were selected, they were asked about their familiarity with the allegations against Justice Loughry, which had received heavy coverage, including during an impeachment process at the state Legislature.

At the conclusion of jury selection, Judge Copenhaver issued a blunt warning to stay off social media.

“During the trial you must not conduct any independent research on this case,” Copenhaver instructed. He issued similar daily warnings during the trial.

But after the trial concluded, Loughry’s attorney questioned whether one of the jurors interacted on social media despite the judge’s instructions.

The juror had, in the months prior to the trial, ‘liked’ some tweets relating to Loughry’s troubles.

During the trial period, she had ‘liked’ some tweets related to football, but none referring to any facts about the case or the broader scandal.

However, the juror was following two reporters who tweeted about the trial. That raised the question about whether even inadvertent exposure had contributed to bias.

Loughry’s appeal contended that given the volume of news tweets during the trial, once logging on Juror A almost certainly would have seen some.

Judge Copenhaver concluded otherwise.

“Although Juror A follows a number of West Virginia elected officials and members of the media — including Kennie Bass of WCHS-TV and Brad McElhinny of West Virginia MetroNews, who reported on the evidence admitted at trial — there is no evidence that Juror A was exposed to any content related to the case,” Copenhaver wrote.

Now the full appeals court will hear the matter.

“This petition for rehearing en banc presents a single question of exceptional and growing importance: whether circumstantial evidence that a juror was exposed on social media to extraneous information about a trial can ever entitle a criminal defendant to a hearing,” Loughry’s attorneys wrote in their request for the hearing.

(Mike Frisch)

May 7, 2021 in Current Affairs | Permalink | Comments (0)

Utah Recognizes Sex Change Designation Right

The Utah Supreme Court has upheld the right to change sex designation.

Today, we provide a plain-meaning interpretation of the duly enacted law allowing individuals to change their sex designations. In the process, we explain that Mr. Childers-Gray and Ms. Rice met the requirements—articulated by us today but rooted in common law and applied by Utah district courts and other authorities—for their sex-change petitions to be approved. Accordingly, we reverse and remand with instructions to enter orders granting their sex-change petitions.

The court majority responds to the dissent

Associate Chief Justice Lee‘s dissent disagrees on all fronts, contesting the relevant legislation and the historical practice of Utah courts. The dissent suggests that it is protecting the interests of the State. See, e.g., infra ¶ 195 (suggesting that our articulated standard ―will control all future proceedings in our Utah courts and will bind the executive branch of our government. . . going forward‖). Yet the State does not argue for the principles the dissent advances. In its amicus brief, the State either opposes the dissent‘s position or presents arguments for why we should not reach such a resolution. Nevertheless, we take care throughout our opinion to respond to the dissent‘s arguments, which we firmly reject.

From the dissent of Associate Chief Justice Lee, which notes the author's "personal, moral grounds" opposing the result

Yet this is not a case about personal interactions or individual morality. It is a case about government records, and the legal grounds for amending them. Those grounds are controlled by law. And the law in question leaves no room for the decision made by this court today...

I respectfully dissent from this decision. I explain my reasoning further in the paragraphs below. First, I develop the basis for the conclusion that we should not be resolving this matter in a proceeding in which there is no adverse party and no adversary briefing. Second, I demonstrate that the statute approving an order for a change to the designation of a person‘s "sex" on a birth certificate is speaking to biological sex and is not delegating to this court the power to establish an evolving standard of "gender identity." Finally, I close with some final observations about the nature of my objections to the extraordinary decision made by the court today.

The court's 128 pages of opinions is linked here. (Mike Frisch)

May 7, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, May 5, 2021

Willing To Wait

The Massachusetts Supreme Judicial Court has held that denying a continuance sought for an in-person suppression hearing was an abuse of discretion

This case concerns whether the use of an Internet-based video conferencing platform, Zoom Video Communications, Inc. (Zoom), for an evidentiary hearing during the COVID-19 pandemic violates certain of the defendant's constitutional rights. The defendant, John W. Vazquez Diaz, has  waived his right to a speedy trial and seeks to continue his suppression hearing until it may be held in person. We conclude that a virtual hearing is not a per se violation of the defendant's constitutional rights in the midst of the COVID-19  pandemic.

Nonetheless, where the defendant has waived his right to a speedy trial and there are no civilian victims or witnesses, we conclude that the judge, who had to make a decision in unchartered territory, abused her discretion in denying the defendant's motion to continue his suppression hearing until it may be held in person. Accordingly, we reverse the judge's order denying the defendant's motion to continue.

The defendant is charged with cocaine trafficking. (Mike Frisch)

May 5, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, April 28, 2021

Zoom Indictments Do Not Violate Due Process

The New Jersey Supreme Court has held that properly conducted remote grand jury proceedings do not violate due process.

From the court's headnote

Virtual grand jury proceedings comply with the essential tenets of the fundamental fairness doctrine. Defendant and amici point out the various technological problems that can arise during a virtual grand jury proceeding -- or any virtual proceeding for that matter -- and claim that a virtual proceeding “does not capture all of the cues so vital to judging credibility.” But grand jurors are extensively trained to participate in virtual grand jury sessions and advised to report technical problems to Judiciary staff. And Judiciary staff and prosecutors patrol and monitor the virtual grand proceedings to detect and correct technological issues. As to credibility determinations, judges make them in remote proceedings in many contested matters, and the grand jury process is not a minitrial where issues related to credibility are decided. Because the virtual process may not be perfect does not mean that it is not mostly effective or unconstitutional. Certainly, technological glitches or defects will require individually tailored solutions. A defendant will not be without a remedy if such problems render grand jurors not present or informed about the evidence during a virtual session.

Turning to the virtual grand jury proceeding in this case, a review of the transcript leads the Court to conclude that, viewed in its entirety, the proceeding did not violate the fundamental fairness doctrine or defendant’s constitutional right to a fair grand jury presentation. At times, as in typical in-person grand jury presentations, the prosecutor relied on silence as an answer. That was offset here by the training the jurors received, the monitoring by Judiciary staff, and the foreperson’s pre-deliberation check. But in the future, to remove any doubt about a virtual grand juror’s response to a question, the prosecutor should require a clear indication for the record, such as an audible response or a showing of hands. As to comments by an “unidentified speaker” about whether the jurors could see the indictment, the record, the jurors’ experience, and the foreperson’s post-vote technology check refute the contention that those comments reveal that the jury could not see the indictment. Nevertheless, going forward all persons speaking on the record should identify themselves or be identified. Everyone participating in the virtual grand jury process should remember that the record must clearly reflect who is speaking and the responses to any questions. All in all, defendant received a grand jury hearing that comported with basic tenets of fundamental fairness and the constitutional right to a fair grand jury presentation.

The court declined to dismiss the resulting indictment.

Justice Albin's opinion starts with a Dickens reference

The Constitution must operate not just in the best of times, but also in the worst of times. The framers of our Federal and State Constitutions established a structure of government and system of justice to endure for the ages -- even through crises and perils they could not have envisioned. The fundamental rights guaranteed by our Constitution have been stress-tested during a civil war, two world wars, an economic depression, and now a once-in-a century pandemic.

(Mike Frisch)

April 28, 2021 in Current Affairs | Permalink | Comments (0)

Friday, April 23, 2021

A Message To Lady Gaga

The New York Appellate Division for the First Judicial Department has sustained the viability of a defamation claim brought by a prominent music producer ("Dr. Luke") against a former client

Kesha's statements that Gottwald drugged her, that he raped her, and that he abused her do not constitute hyperbole or nonactionable opinions (see Thomas H. v Paul B., 18 NY3d 580, 585-586 [2012]). The determination whether a statement is opinion or objective fact is a question of law (Mann v Abel, 10 NY3d 271, 276 [2008], cert denied 555 US 1170 [2009]). An opinion cannot be proven false and therefore does not give rise to liability for defamation purposes (Thomas H. at 585-586). Kesha's statements assert that Gottwald drugged and raped her. These statements are not opinion or hyperbole because they can be found to be factual as a matter of law. They are not exaggerations, assert a literal event that is alleged to have occurred, are not protected opinion or hyperbole and can be actionable for defamation.

Kesha's text message to Lady Gaga, that Gottwald had raped another singer, was defamatory per se 

There is a dissent in part

Dr. Luke argues, and the majority accepts, that Dr. Luke is not a limited purpose public figure because he never sought out publicity or spoke publicity about Kesha's allegations of sexual assault or on the issue of sexual assault. That Dr. Luke has not spoken publicly about Kesha's allegations of sexual assault is not surprising, is not relevant, and does not preclude a finding that he is a limited purpose public figure. The definition of limited purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protégé's sexual assault) upon which the defamation claim is based.

The public controversy at issue here is a self-promoting, powerful music industry person's use of his financial leverage over a person whose career he controls to allegedly commit an unpunished sexual assault (see generally Daniel Goldreyer, Ltd., 259 AD2d at 353). Dr. Luke is a limited purpose public figure because he has purposefully and continuously publicized and promoted his business relationships with young, female music artists, like Kesha, to continue to attract publicity for himself and new talent for his label (see generally James, 40 NY2d at 421-422). The allegedly defamatory statements at issue — that Dr. Luke drugged and sexually assaulted Kesha when she was a teenage artist, who was signed to an exclusive contract with his record label — directly relate to Dr. Luke's self-publicized professional and personal relationships with his clients, his integrity in business practices, and in attracting new talent (Winklevoss, 170 AD3d at 619; see also Maule v NYM Corp., 54 NY2d 880, 883 [1981] ["plaintiff not only welcomed but actively sought publicity for his views and professional writing and by his own purposeful activities thrust himself into the public eye"]; Park v Capital Cities Communications, Inc., 181 AD2d 192, 197 [4th Dept 1992], appeal dismissed 80 NY2d 1022 [1992], lv dismissed in part, denied in part 81 NY2d 879 [1993] [plaintiff "was not involuntarily thrust into an unwanted limelight, but rather, invited favorable publicity for his practice"]).

Because Dr. Luke is, at a minimum, a limited purpose public figure, Dr. Luke was "required to show by clear and convincing evidence that defendant[] published the statements at issue with actual malice"

(Mike Frisch)

April 23, 2021 in Current Affairs | Permalink | Comments (0)

Friday, April 16, 2021

Dog Poop And Defamation

The dismissal of a defamation claim brought against a person who commented on a blog post was affirmed by the Iowa Supreme Court.


Plaintiff Richard Bauer (Bauer) resides in Sloan, Iowa, where he manages Bauer Apartments. The apartments are owned by the Kendall R. Bauer Trust for which he is the trustee. On September 22, 2015, Kathy Lynch (Kathy) began the construction of Pet Perfect LLC, a dog care facility, directly next to Bauer Apartments. Bauer became concerned issues were going to arise from the dogs and their feces due to the outdoor area being constructed. He contacted the Sloan City Council and asked for the city’s zoning ordinances. Bauer also contacted Kathy about his concerns and offered to buy the parcel of land where she was building the facility. She refused. He ultimately filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance.

No defamation

Here, the context of the speech begins with a Facebook post by Gabbie Lynch on her personal page. The post criticized [plaintiff] Bauer for expressing concerns about dog feces outside at Pet Perfect LLC. Several people commented on her post expressing their own opinions about Bauer. Bauer concedes in his briefing that none of the comments on the thread discussed the condition of the apartments or his managerial abilities. It would be more reasonable for a reader to understand Brinkman’s use of “slumlord” as a serious factual assertion if the Facebook thread related specifically to Bauer’s occupation and Bauer Apartments. However, the Facebook post and comments were individual’s emotionally charged responses to how they perceived Bauer’s actions in relation to Kathy’s business. As an example of the tone of the comments on the thread, the comment directly above Brinkman’s states, “Dear Mr. Bauer” followed by a photo with enlarged text stating, “Good morning. Don’t forget to drink your water and mind your own fucking business.” This context of an ongoing heated discussion on matters separate from Bauer’s role as a rental property manager lends support to the conclusion that Brinkman’s speech was name-calling and an insult rather than an assertion of fact. See Greenbelt, 398 U.S. at 13–14, 90 S. Ct. at 1541–42 (noting context of a heated public debate showed statement was rhetorical hyperbole rather than factual); Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (determining that a tweet calling the plaintiff crazy was a protected opinion when viewed in the context of an ongoing heated debate on the internet about the disappearance of the plaintiff’s horse).

An examination of the specific context of Brinkman’s Facebook comment additionally shows his statements were rhetorical hyperbole rather than assertions of facts. He states “It is because of shit like this that I need to run for mayor!” followed by a grinning emoji, and that Bauer is a “PIECE OF SHIT!!!” before calling him a slumlord. The tone “is pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” thus alerting readers that the statements are expressions of personal judgment. Milkovich, 497 U.S. at 32, 110 S. Ct. at 2712 (Brennan, J., dissenting); see also Wahrendorf v. City of Oswego, 899 N.Y.S. 502, 503–04 (App. Div. 2010) (determining statements made on the internet that the plaintiffs were slumlords and sociopaths and their property was a garbage heap and pigpen was name-calling and general insults because the tone was intended to be humorous and sarcastic).

Furthermore, Brinkman did not attempt to provide any support for the statement that Bauer is a slumlord; therefore, a reader is alerted it is an insult and a “single, excited reference” rather than a factual assertion.

(Mike Frisch)

April 16, 2021 in Current Affairs | Permalink | Comments (0)