Tuesday, November 29, 2022

After The Fall

A George Washington University adjunct law professor who sued the school for personal injuries had her claims dismissed by the United States District Court for the District of Columbia.

The court (Judge Trevor McFadden) held her many asserted causes of action (including RICO) foreclosed by worker's compensation

Hdeel Abdelhady, a law professor, fell on a staircase at the George Washington University Law School campus. She promptly filed for workers’ compensation benefits with her employer, George Washington University (GW), which PMA Management Corporation (PMA) helped administer on GW’s behalf. Abdelhady now sues GW and PMA for claims arising out of her fall and their handling of her workers’ compensation claim. Her claims run the gamut from common law negligence to violations of federal racketeering and civil rights laws.

Defendants move to dismiss all counts. They argue that the District of Columbia’s Workers’ Compensation Act provides the exclusive remedy for Abdelhady’s injury. In the alternative, they move for summary judgment and offer evidence in support. Because the Workers’ Compensation Act provides Abdelhady’s exclusive remedy, the Court will grant Defendants summary judgment on her negligence claim. The Court will dismiss the remaining counts for failure to state a claim.

The injuries occurred as she was leaving from an "adjunct appreciation" luncheon

As she left, she fell after stepping “on an uneven, sticky, and additionally hazardous stair surface.” Id. ¶ 12. She hit the wall at the bottom of the stairwell, injuring her head, face, wrist, hand, and fingers. See, e.g., id. ¶¶ 14, 29–30. Abdelhady was taken to The George Washington University Hospital, where medical personnel diagnosed her with a traumatic brain injury. Id. ¶ 27. The Hospital later billed her directly for “thousands of dollars” of treatment. Id. ¶ 91. Her doctor also referred her to specialists in neurology, ophthalmology, and plastic surgery. Id. ¶ 38

Merits

Abdelhady asks this Court to ignore her election (and receipt) of workers’ compensation benefits and find that the WCA does not apply after all. She argues that it is inapplicable here because she was not acting within the scope of her employment at the time of the injury. Opp’n to GW MSJ at 18, ECF No. 26-1; Opp’n to GW MTD at 14–16, ECF No. 25- 211. The Court disagrees. Her successful pursuit of workers’ compensation benefits forecloses this argument.

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

The Fast Track

The District of Columbia Court of Appeals has released the January 2023 oral argument schedule with this first on the docket

Tuesday, January 10, 2023 10:00 AM

ENBANC

No. 22-SP-0745 DONALD J. TRUMP, ET AL. V. E. JEAN CARROLL

Mark R. Freeman, Esquire
Jason C. Greaves, Esquire

The Hill covered the story

The District of Columbia Court of Appeals on Tuesday said it would expedite former President Trump’s challenge of a defamation suit filed by writer E. Jean Carroll, who accused Trump of rape.

Carroll, a longtime columnist for Elle magazine, accused Trump of raping her in a New York City department store in the 1990s. She sued the former president for defamation three years ago after he dismissed her allegations against him and accused her of lying.

The D.C. Court of Appeals scheduled oral arguments for Jan. 10, according to a new filing obtained by Axios, to answer the specific legal question of whether Trump made the allegedly libelous statements against Carroll within the scope of his role as president of the United States.

In the complex series of legal moves that followed Carroll’s initial suit, Trump’s legal team attempted to dismiss and delay the case, and eventually to countersue Carroll for bringing the lawsuit against him in the first place.

The Justice Department then moved to step in and argue that Trump could not be sued in his personal capacity, since he made the statements during his tenure in the White House, and that the Justice Department should be substituted as defendant in the case.

The former president sat for his deposition in the case earlier this month after his legal team repeatedly attempted to delay the proceedings. 

All active judges on D.C.’s highest court will hear the January arguments before the trial reportedly scheduled for February, according to the filing.

“We are pleased that the DC Court of Appeals set an expedited schedule to determine the issue certified by the United States Court of Appeals for the Second Circuit. As we’ve said several times by now, we are eager to get to trial on all of E Jean’s claims as soon as possible,” Carroll’s attorney Robbie Kaplan said in a statement.

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

No Slam Dunk

The Delaware Court of Chancery has ruled against basketball legend Julius Erving's effort to avoid arbitration of an agreement concerning the sale of his trademark and intellectual property rights

Julius W. Erving II, known by the moniker “Dr. J,” is a basketball legend. In 2016, Mr. Erving agreed to sell a majority interest in his trademark and other intellectual property to Authentic Brands Group, LLC (“ABG”), a brand development and marketing company. ABG and its controlling member and CEO, James Salter, promised to grow Mr. Erving’s brand exponentially by obtaining new licensing agreements, promotional appearances, and other marketing opportunities.

The dispute

Plaintiffs brought this suit on September 22, 2021, bringing claims for breach of contract and specific performance against ABG Intermediate.

Holding

Because the parties evidenced a clear and unmistakable intent to have the arbitrator decide issues of substantive arbitrability, the action is STAYED pending the arbitrator’s decision. “If the arbitrator determines the claim is arbitrable, then this action will be dismissed for lack of jurisdiction . . . . If the arbitrator determines the matter is not arbitrable, then the parties may return to this Court for further proceedings.”

(Mike Frisch)

November 29, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, November 17, 2022

Appealing An (Inaudible) Trial

A deficient trial record  has led the Washington State Supreme Court to remand a conviction for an effort to  reconstruct the record for meaningful appellate review

In August 2020, Waits was tried and convicted of child molestation and attempted child molestation, both in the first degree. The underlying facts of these conviction are not in dispute. Instead, the issues for this court’s review arise from the bad acoustics of the building where the trial took place—a former church that was used to accommodate social distancing during the height of the COVID-19 pandemic.

Over the course of Waits’ two-day trial, the transcription contained over 2,000 “inaudible” notations from the judge, lawyer, jurors, and witnesses. The transcriptionist was later able to fill in some of the gaps, but about 1,500 inaudibles still remain.

The Court of Appeals had set out a reconstruction procedure

Waits sought emergency review here. He objected to the Court of Appeals’ reconstruction procedure. The State offered no response. At oral argument before Commissioner Michael Johnston, the State was allowed a brief comment and indicated it was not opposed to review, citing the need for definitive guidance on the process of recreating a record. Commissioner Johnston granted review. The Washington Appellate Project submitted amicus curiae briefing in support of Waits.

Contentions

Waits contends that the federal constitution places the burden of reconstructing a lost or damaged record on the State rather than, as the Court of Appeals held, on the criminal appellant. We agree in part.

As to the State

We reject this argument. First, it assumes the conclusion that appellate attorneys (who are almost always different from trial counsel) will know on what portions of the record to focus their attention, ignoring completely that an adequate record is first necessary for an appellate attorney to identify any such issues for appellate review. Next, it is not inevitable that placing the burden where it constitutionally belongs (on the State) will result in a record for every single hearing. A verbatim report of proceedings generally allows an appellate attorney to review the entire record (of every hearing), identify issues, and transmit those relevant portions of the record to the reviewing court. When a verbatim report is unavailable and an alternative is necessary, a narrative or agreed report of every hearing may be necessary in order to provide an indigent defendant with a record of sufficient completeness to allow for adequate and
effective appellate review. Mayer, 404 U.S. at 194.

Regarding the remedy, the State concedes that Waits’ originally proposed process is “the most viable.” Br. of Resp’t at 4. We therefore remand the case to the trial court for the parties to attempt reconstruction, with the State undertaking its constitutional duty to lead the effort and recourse to the trial court if the parties disagree or third parties are reluctant to participate as required by the RAPs and our case law.

Justice Yu concurred

“the State is responsible” should be read to mean that the costs of record reconstruction must be paid at public expense by the state government. Moreover, to allow for an expedited process, courts should promptly approve the costs when reconstruction pursuant to RAP 9.3 and 9.4 is deemed necessary. For this reason, I respectfully concur.

(Mike Frisch)

November 17, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, November 9, 2022

Unactionable Hackery

The United States District Court for the District of Columbia has dismissed a suit brought under the Ku Klux Klan Act 

Lieutenant Colonel Alexander Vindman’s name entered the public lexicon in 2019. Vindman was serving a detail on the National Security Council on July 25 of that year when he listened in during the now-infamous phone call between former President Donald Trump and Ukraine’s President Volodymyr Zelensky, which conversation would lead to Trump’s first impeachment. Vindman alleges that, after he reported concerns about the call through official channels and testified before the House Intelligence Committee, a group of conspirators formed an agreement to intimidate and unlawfully retaliate against him. He brings this action against some of those alleged conspirators — namely, Donald Trump, Jr., Rudolph Giuliani, Julia Hahn, and Daniel Scavino, Jr. — alleging that they thereby violated provisions of the Ku Klux Klan Act of 1871, codified at 42 U.S.C. § 1985(1) and (2). Defendants now move to dismiss the case.

History will be the final judge of Vindman’s actions and the former Administration’s response. This Court’s task is to adjudicate something far narrower: whether Plaintiff’s Complaint pleads facts sufficient to state a claim for civil conspiracy under Federal Rule of Civil Procedure 12(b)(6). As the Court will explain, Vindman must allege facts that plausibly suggest two things: first, that each Defendant agreed with others not just to vigorously defend their boss, but to unlawfully intimidate or injure Vindman; and second, that one of the co-conspirators committed an unlawful act — e.g., defamation — to further such scheme.

Plaintiff’s pled facts, taken as true, certainly suggest that Defendants leveled harsh, meanspirited, and at times misleading attacks against him. But political hackery alone does not violate § 1985. Because Vindman does not sufficiently allege a violation of the 1871 Act, the Court will grant Defendants’ Motions to Dismiss.

The opinion was authored by District Judge Boasberg. (Mike Frisch)

November 9, 2022 in Current Affairs | Permalink | Comments (0)

Monday, October 31, 2022

See You In Discovery

Another day, another defeat for the defendant/respondent formerly known as America's Mayor.

Chief Judge Howell of the United States District Court for the District of Columbia denied in total his motion to dismiss a defamation and related actions brought by two Georgia poll workers

Giuliani seeks complete dismissal of this lawsuit, claiming that plaintiffs have failed to state a claim on all three counts in their Amended Complaint. For the reasons set forth below, Giuliani is wrong. Plaintiffs have stated a claim as to each of the three counts, and Giuliani’s arguments to the contrary are unpersuasive.

The complaint

Despite the repeated debunking of the Trump Campaign’s claims of voter fraud in the election in Georgia by state officials and private organizations, Giuliani persisted in pushing those very claims—and began taking direct aim at plaintiffs in the process. That began in December 2020, when Giuliani orchestrated and implemented a strategic plan “to educate the public on the fraud numbers, and inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly elected President Trump.” Id. ¶¶ 57, 58; see also “Strategic Communications Plan[,] Giuliani Presidential Legal Defense Team” (the “Strategic Plan” or “Plan”) at 2, ECF 26-3. A section of the Plan was dedicated to exposing the alleged voter fraud schemes in Georgia. See Am. Compl. ¶¶ 62, 63. Freeman was named in the Plan as being “under arrest” and part of “coordinated effort to commit voter/election fraud.” Id. ¶ 63. Giuliani specifically accused Freeman and the other workers in the Edited Video of “ballot stuffing” by
rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. On December 23, 2020, Giuliani, on his podcast, named Freeman as someone with “a history of fraud participation,” and claimed that she, with the help of other election workers, counted  the same ballots “eight times,” “cheating” in manner that “look[ed] like a bank heist.” Id. ¶¶ 66, 67. On December 25, 2020, Giuliani, again on his podcast, accused “Ms. Freeman and her crew” of attempting to scan ballots multiple  times, likening them to “crooks spr[i]ng[ing] into action.” Id. ¶ 69

The court

Giuliani’s weak effort to distance himself from authorship of the Strategic Plan also falls. Given that the title of the Strategic Plan specifies Giuliani by name, see id. at 2 (emphasis added) (“STRATEGIC COMMUNICATIONS PLAN GIULIANI PRESIDENTIAL LEGAL DEFENSE TEAM”), that this document identifies “Rudy Giuliani” as the first person under “Key Team Members,” see id. at 7, and that Giuliani’s conduct after its publication shows he was integrally involved in “launch[ing],” “orchestrat[ing],” and “execut[ing]” the Plan, see Amend. Compl. ¶¶ 9, 57, 136; see also id. ¶¶10–12, 58–64, 134, 137, 190, plaintiffs have done more than  plausibly to allege that Giuliani bears at least “some degree of authority and some degree of responsibility” over authoring the Plan. See Nyambal, 344 F. Supp. 3d at 191.

Next up is Giuliani’s claim that purportedly defamatory statements, which do not mention Freeman and Moss by name, should be dismissed because no reasonable listener would plausibly read them as concerning Freeman and Moss, respectively. Giuliani fails to cite, address or distinguish the holding of Croixland Properties Limited Partnership v. Corcoran, where the D.C. Circuit explained that a plaintiff can satisfy the first element of defamation—that the defendant made a false and defamatory statement “of and concerning” the plaintiff—without specifically identifying the plaintiff by name.

Defamation

Freeman has plausibly alleged Giuliani made statements about her criminal activity/history with actual malice. When taken together, these allegations at least plausibly suggest that Giuliani fabricated Freeman’s arrest and criminal record out of whole cloth: Giuliani accused Freeman of election fraud before the Strategic Plan was allegedly published, even though the Strategic Plan (which Giuliani was at least plausibly an author) noted that the Trump Campaign still needed
evidence that she was arrested for that very criminal activity. Cf. Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 284 (D.D.C. 2017) (denying defendants’ motion to dismiss on actual malice grounds in a defamation case because plaintiffs alleged that defendants “failed to uncover a single reported piece of evidence corroborating [the sole source’s] outlandish claims”). When viewing the Amended Complaint’s factual allegations in the light most favorable to the plaintiffs, this evidence is enough to suggest that Giuliani recklessly accused Freeman of being arrested for election fraud.

There is also sufficient evidence of intentional infliction of emotional distress and civil conspiracy

The Strategic Plan and other conduct provide ample circumstantial evidence of a civil conspiracy between Giuliani and members of the Trump Campaign. The stated goal of the Plan was to engage in a “[n]ationwide communications outreach campaign to educate the public on the fraud” in the election to “inspire citizens to call upon legislators and Members of Congress to disregard the fraudulent vote count and certify the duly-elected President Trump.” Am. Compl. ¶ 58. One of those acts was to accuse Freeman of “ballot stuffing” by rolling out “suitcases” filled with ballots when “press and all third parties were required to leave the premises”—an event the Strategic Plan calls “Suitcase Gate.” Id. ¶ 63. The Plan lists Giuliani and others as “[k]ey [t]eam [m]embers,” Strategic Plan at 7–8, which also suggests that the Plan was a coordinated action. Furthermore, Trump also employed the Strategic Plan’s description of “Suitcase Gate” in his call with Secretary of State Raffensperger, when he alleged Freeman and others “stuffed” ballot boxes with fake ballots hidden in suitcases. Id. ¶ 80–81. A reasonable jury could accordingly infer that (1) Giuliani, Trump, and the “[k]ey [t]eam [m]embers” listed in the Strategic Plan (2) created a plan to sow doubt in the outcome of the 2020 election by (3) launching a misinformation campaign, which included accusing Freeman, Moss, and others of participating in schemes of electoral fraud, and (4) injuring plaintiffs in the process. Plaintiffs have pled a plausible civil conspiracy.

The court set out the harassment suffered by the Plaintiffs

Moss enjoyed her job before Giuliani’s actions, but she eventually left because her “workplace became a toxic environment.” Id. ¶ 159. Moss must order groceries online because she now fears for her life in public. Id. ¶ 160. Like Freeman, Moss has retreated from public and social life because of continued violent threats and harassment. Id. ¶¶ 160–62

Discovery will proceed. (Mike Frisch)

October 31, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, October 25, 2022

Statutes And Statues

The Georgia Supreme Court has held that an individual in an affected community has standing to seek injunctive relief against the removal of a Confederate statute.

As alleged in the relevant complaint, the Henry County Board of Commissioners in July 2020 voted to remove a Confederate monument from the courthouse square in McDonough. As a result of this vote, the Sons of Confederate Veterans, Colonel Charles T. Zachry Camp #108, and Georgia Division, Sons of Confederate Veterans, filed suit against the Board seeking injunctive relief and damages, asserting that the Henry County Board’s vote signaled an intention to violate OCGA § 50-3-1 (b)

Sons of Confederate Veterans without a community tie lack standing.

This case is about a highly controversial subject: whether local communities must continue displaying (and maintaining at public expense) monuments that celebrate the Confederacy and its long-dead supporters, despite those communities finding such celebration repugnant. But nothing about those monuments is at issue in this appeal.

Instead, this appeal presents only a discrete and important threshold question: whether the Georgia Constitution requires a plaintiff to establish some cognizable injury to bring a lawsuit in Georgia courts, i.e., to have standing to sue, separate and apart from the statutory authorization to bring suit. This question has broad implications far beyond the underlying controversy.

After a full review of the relevant history and context, our answer is this: to invoke a Georgia court’s “judicial power,” a plaintiff must have a cognizable injury that can be redressed by a judicial decision. Courts are not vehicles for engaging in merely academic debates or deciding purely theoretical questions. We “say what the law is” only as needed to resolve an actual controversy. To that end, only plaintiffs with a cognizable injury can bring a suit in Georgia courts. Unlike federal law, however, that injury need not always be individualized; sometimes it can be a generalized grievance shared by community members, especially other residents, taxpayers, voters, or citizens.

Here

Applying that framework to this case, T. Davis Humphries, as a private citizen, has standing to assert a claim for injunctive relief against her local county government for its planned removal of a Confederate monument in alleged violation of OCGA § 50-3-1. But the other plaintiffs — the various Sons of Confederate Veterans entities — have not shown that they are members of the communities the governments of which they seek to sue, and they have alleged no other cognizable injury sufficient to establish their standing. The Court of Appeals was therefore wrong to affirm the dismissal of Humphries’s complaint for a lack of standing as to her claim for injunctive relief, but it was right to affirm the dismissal of the complaints filed by the various Sons of Confederate Veterans groups. We do not reach the question of whether Humphries has standing for her claim for damages under OCGA § 50-3-1, because the cause of action that statute purports to create has not yet arisen; by the statute’s terms, the cause of action arises only upon the occurrence of conduct prohibited by the statute, and that conduct has not yet occurred. Accordingly, we affirm the dismissal of Humphries’s statutory claim for damages and all claims by the Sons of Confederate Veterans groups, and reverse the dismissal of Humphries’s claim for injunctive relief.

(Mike Frisch)

October 25, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, October 20, 2022

Racist Tropes

A trial involving an automobile accident between a black woman and an at-fault white woman drew a strong rebuke and remand from the Washington State Supreme Court for appeals to racial bias

During the trial, Thompson’s defense team attacked the credibility of Henderson and her counsel—also a Black woman—in language that called on racist tropes and suggested impropriety between Henderson and her Black witnesses. The jury returned a verdict of only $9,200 for Henderson. Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.” 1 Clerk’s Papers (CP) at 180-81.

That reasoning gets it exactly backward. In ruling on a motion for a new civil trial, “[t]he ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” State v. Berhe, 193 Wn.2d 657, 665, 444 P.3d 1172 (2019). A trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation. At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor. If that burden is not met, the court must conclude that substantial justice has not been done and order a new trial. CR 59(a)(9). Here, the trial court abused its discretion by failing to grant an evidentiary hearing and also by failing to impose any sanctions for Thompson’s discovery violations. We reverse and remand for further proceedings consistent with the framework we announce today.

The participants

Henderson’s lead trial counsel was a Black woman; Thompson’s was a white woman. The judge was a white woman, and there were no Black jurors. The only Black people in the courtroom were Henderson, her attorney, and her lay witnesses.

Appeals to bias

Henderson alleges that Thompson’s counsel primed the jurors with appeals to racial bias throughout the trial. Henderson points to numerous instances that permit an inference that an objective observer could conclude race was a factor in the verdict. Berhe, 193 Wn.2d at 666. For example, defense counsel repeatedly characterized Henderson as “combative” and “confrontational.” These terms evoke the harmful stereotype of an “angry Black woman.” See Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman, 102 IOWA L. REV. 2017, 2049 (2017). This harmful negative stereotype affects the way others perceive and interact with Black women, and it can have significant negative social and interpersonal consequences for Black women, including influencing their experience and reasonable expression of anger.

Credibility

Additionally, defense counsel relied on racist stereotypes about Black people and us-versus-them descriptions to undermine the credibility of Henderson and her witnesses. For example, defense counsel suggested that Henderson had probably asked her friends and family to lie for her, as evidenced by their shared use of a popular idiom—“life of the party”—to describe her.

Justice McCloud concurred but would find the "life of the party" argument permissible. (Mike Frisch)

October 20, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, September 28, 2022

The MyPillow Precedent Hamstrings Sydney Powell

The United States District Court for the District of Columbia has dismissed Sydney Powell's counterclaim against Dominion

Even if Powell adequately alleged that Dominion had an ulterior motive in bringing its lawsuit, her counterclaim fails under the second element. Powell’s core allegation is that “Dominion’s initiation and maintenance of its lawsuit against Defendants constitutes an abuse of process.” Powell Counterclaim, ECF No. 49 at ¶ 73. “But the mere pursuit of a lawsuit, just like the mere filing [of] a lawsuit, does not support an abuse of process claim.” MyPillow, 2022 WL 1597420, at *4. Instead, Powell must allege that Dominion, after filing its suit, performed some act that perverted the judicial process. See Spiller, 362 F. Supp. 3d. at 6. But Powell’s complaint fails to link her abuse-of-process claim to any act that Dominion has taken other than filing and pursuing its lawsuit. See Powell Counterclaim, ECF No. 49 at ¶¶ 67–73 (focusing entirely on an ulterior motive). She has thus failed to state a claim for abuse of process.

District Judge Carl Nichols has the litigation. (Mike Frisch)

September 28, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, September 27, 2022

No Deferral For Jeffrey Clark

The District of Columbia Board on Professional Responsibility has affirmed the denial of Jeffrey Clark's request to defer the bar disciplinary proceedings.

The Board finds that no listed collateral proceeding - the federal and Georgia criminal investigations, the January 6th Committee investigation or a subpoena enforcement proceeding before the Court of Appeals - would be substantially likely to  "help to resolve material issues" in the ethics prosecution.

The Board notes that the subpoena enforcement proceeding has been resolved. (Mike Frisch)

September 27, 2022 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Monday, September 26, 2022

Guano In Delaware

If this is a day ending in "y" then there must be discovery orders issued by the overburdened Delaware Court of Chancery in Twitter v. Musk

Defendants continue to press for the historical account data. Specifically, Defendants seek all information that the reviewers who conducted the mDAU audit had access to through an application called “Guano Notes,” including but not limited to information regarding accounts that were suspended or placed in ROPO status. Plaintiff maintains that Defendants are not entitled to this data under my August 25 Order and that it is not relevant in any event, because the agents who performed the quarterly mDAU audit were not instructed to consider it. Still, Plaintiff has attempted to moot this issue, offering to produce additional data other than Guano Notes reflecting the suspension and ROPO status of each of the 9,000 accounts.

I confess that I do not totally comprehend the significance of or burden in collecting Guano Notes. The parties should be prepared to drill into this issue—albeit in layman’s terms—during the September 27 hearing. I will hold my determination on Defendants’ Seventh Discovery Motion in abeyance until then.

Britannica gives a definition of guano

guanoaccumulated excrement and remains of birds, bats, and seals, valued as fertilizer.

(Mike Frisch)

September 26, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, September 20, 2022

The Attention They Deserve

Another day, another Musk slap from the Delaware Court of Chancery in denying a motion to reconsider a discovery ruling in the Twitter litigation

Defendants appear to be under the impression that they can take unreasonable positions in their discovery requests, when conferring with their opponents, and in motion practice, and then, through reargument, propose a more reasonable approach. A motion for reargument is not a vehicle for renegotiation. A court makes rulings, not proposals for the parties to counter. Defendants’ approach wastes judicial and litigant resources.

Defendants should be forewarned that I will give future motions for reargument the attention they deserve. If a motion appears to have merit, then I will address it promptly. Otherwise, I will take the motion under advisement for the full 90-day period and address the motion, to the extent a ruling remains warranted, in connection with post-trial briefing.

No misapprehension

I did not misapprehend this argument. I simply rejected it as relevant. Defendants’ displeasure with that decision is not a basis for reargument.

(Mike Frisch)

September 20, 2022 in Current Affairs | Permalink | Comments (0)

Saturday, September 17, 2022

A Giant Passes

I note the passing of a giant of the District of Columbia Bar Earl J. Silbert.

My generation of Assistant United States Attorneys revered Earl as no other. Many, many people I deeply respect regarded him as the perfect leader of a U.S. Attorney's office from a standpoint of both integrity and competence.

I first saw Earl in action in the spring of 1972 when I was a 1L at Georgetown and thinking the law might not be for me.

My friend Jim Hibey's older brother Richard suggested I go see a criminal trial.

I sat in on this case that Earl prosecuted and was transfixed, totally sold on the idea of criminal trial work.

I first worked with Earl in the mid-1980s when I was a newly-minted assistant bar counsel and he served as a hearing committee chair. 

I was fortunate later to try a multi-week case against him in which he defended a partner in a prominent law firm accused of dishonest billing.

He was a relentless litigator who challenged me at every turn but always with the utmost professionalism.

The case was remanded several years after we had argued it in the Court of Appeals.

Editor's note: To clarify, I was never an AUSA. I regularly litigated with the D.C. office in the 1970s and 1980s. (Mike Frisch)

September 17, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, September 15, 2022

Public Importance Standing

The South Carolina Supreme Court reversed and remanded a complaint filed by the South Carolina Public Interest Foundation against the state Attorney General challenging contingent fee agreements with private law firms

South Carolina Attorney General Alan Wilson retained Respondents Willoughby & Hoefer, P.A., and Davidson, Wren & DeMasters, P.A., (collectively, the Law Firms) to represent the State in litigation against the United States Department of Energy (DOE). Wilson and the Law Firms executed a litigation retention agreement, which provided that the Law Firms were hired on a contingent fee basis. When the State settled its claims with the DOE for $600 million, Wilson transferred $75 million in attorneys' fees to the Law Firms. Appellants challenged the transfer, claiming it was unconstitutional and unreasonable. The circuit court dismissed Appellants' claims for lack of standing, and we certified the case for review of the standing issue. The merits of the underlying case are not before us.

Standing

Appellants' complaint presents a threshold issue of the Attorney General's statutory authority to enter contingency fee agreements with private law firms. This issue will inevitably arise again in the future because Wilson has seven other litigation retention agreements with private attorneys. These agreements are currently listed on the Attorney General's website, and five contain contingency fee provisions. Although the agreements differ in some respects, all contingency fee provisions persist. For example, Wilson recently announced a $300 million settlement with opioid distributors. The litigation retention agreement in that case contains a contingency fee provision identical to the one here. There is a need for future guidance as to whether subsection 1-7-150(B) authorizes the Attorney General to enter into contingency fee agreements. We therefore hold Appellants have public importance standing.

Thus a remand to address the merits. (Mike Frisch)

September 15, 2022 in Billable Hours, Current Affairs | Permalink | Comments (0)

Rambo Litigation Fails

The Delaware Court of Chancery concluded that objections to an estate came too late

The allegations in this action are concerning. The petitioner avers that the respondent, a former teacher, set out to befriend and manipulate two remarkable, elderly women into giving her great power over their lives and estates. These actions, per the petitioner, netted the respondent millions of dollars. But as concerning as this tale may be, the petitioner has failed to state a viable claim for which relief can be granted. The primary reason: she waited too long.

The decedent

This dispute concerns the estate of Ellan Levitsky Orkin (the “Decedent”). The Decedent lived a long life; she passed on November 20, 2019 when she was 99 years old. Around twenty (20) years before her death, she became acquainted with Kimberly S. Fischer (the “Respondent”). The Decedent’s cousin and niece by marriage, Tina Renee Rambo (the “Petitioner”) challenges this relationship, and the Respondent’s motivations and conduct, through this action. But before I address that challenge, I begin with the relevant touchpoints in the Decedent’s long life, cognizant that no report could do such an extraordinary woman justice.

Hero sisters

The Decedent, and her sister Dorothy Levitsky Sinner (“Dorothy”), served as registered nurses in the United States Army Nurse Corp during World War II. They served in combat zones, including on D-Day in Normandy, France in June of 1944. In recognition of their service, they were honored at the D-Day Memorial Celebration in Normandy in June 2012, and each received the French Legion of Honor Medal in Washington, D.C. in September 2012.

They met Respondent around 1998

Between 2012 and 2017, the Decedent executed numerous new wills and restated trusts, until the final versions signed on April 18, 2017 (the “Final Will” and “Final Restated Trust”). Through the amendments, the Respondent’s share was gradually increased from being a 37.5% residuary beneficiary (like the Petitioner) in the September 25, 2012 restated trust, to being the beneficiary of a specific bequest of $250,000.00 and the entire residuary, if she survived the Decedent. While the Respondent’s inheritance increased, the Petitioner argues her inheritance decreased, from her largest expectation of receiving 50% of the residuary, an estimated five to ten million dollars, to a $750,000.00 specific bequest.

Petitioner loses

Most of the Petitioner’s claims are either expressly time barred or seek a collateral attack on the Decedent’s uncontestable final wishes. There is no viable basis for tolling the applicable limitations or permitting the Petitioner a workaround. More compelling is the need for finality in the Decedent’s estate. The only claims outside this bucket relate to the POA. But as explained herein, I find the Petitioner does not have standing to assert such claims at this time.

(Mike Frisch)

September 15, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, September 14, 2022

A Reasonable Expectation

A win for Elon Musk in the Delaware Court of Chancery

This is an action for specific performance of an April 25, 2022 merger agreement under which Elon R. Musk and two entities he owns, X Holdings I, Inc. and X Holdings II, Inc. (with Musk, “Defendants”), agreed to acquire Twitter, Inc. To communicate about the Twitter transaction, Musk used two sets of email accounts: one sponsored by Space Exploration Technology Corp. (“SpaceX”) and the other by Tesla, Inc. Musk asserted attorney-client privilege over emails in the SpaceX and Tesla accounts and withheld them in discovery. Twitter has moved to compel those documents.

To support a claim of attorney-client privilege, Musk must demonstrate that he had an objectively reasonable expectation of confidentiality in the SpaceX and Tesla emails. In certain circumstances, this court had applied the four-factor analysis of In re Asia Global Crossing, Ltd. to determine whether an employee had an objectively reasonable expectation of privacy in personal communications in their work emails. The Asia Global analysis looks to whether company policies or practices reduce an employee’s expectation of privacy in the employee’s work emails. SpaceX and Tesla email policies make clear that employees have no privacy interest in their work emails and warn that the companies reserve the right to monitor those emails. Citing to the plain language of those policies, Twitter argues that Musk had no reasonable expectation of privacy in his SpaceX and Tesla emails.

Although Twitter’s argument is a compelling one in many ways, Musk nevertheless prevails on this motion. To support his claim of attorney-client privilege, Defendants submitted affidavits from Musk, IT managers from SpaceX and Tesla, and the head of Tesla’s legal department. Those affidavits state that each company had a policy of limiting the circumstances in which they would monitor employee emails. They further state, unequivocally, that Musk had “unrestricted” personal use of his Tesla email account, that “no one” at Tesla can access those emails without Musk’s consent or “to the extent legally necessary,” and that “nobody” at SpaceX can access his email account without Musk’s express consent. These additional facts make Musk’s expectation of privacy objectively reasonable. Twitter’s motion is denied.

(Mike Frisch)

September 14, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, September 8, 2022

Proud Boy Sentence Upheld

The District of Columbia Court of Appeals rejected contentions by the National Chairman of the Proud Boys regarding his guilty pleas in Superior Court

Appellant Henry Tarrio contends the trial judge who presided over his guilty pleas and sentencing should have recused himself sua sponte due to facts giving rise to an impermissible appearance of bias. Appellant asserts the appearance of bias arose from the judge’s past relationship with the church whose property appellant was convicted of destroying, and was manifested by certain adverse rulings by the judge at sentencing. We reject appellant’s contention, both because he waived it by expressly declining the judge’s offers to recuse himself, and because the judge’s relationship with the church and rulings do not show any appearance of bias. We thus affirm appellant’s convictions.

During the online plea the trial judge disclosed

Specifically, the judge explained, his oldest daughter (who was “almost 40 now”) was baptized at the church, and he and his family “attended [the church] with some regularity when she was young,” though he had not “really had any affiliation with the church” since then. The judge stated that he was “perfectly willing” to recuse himself if this past relationship concerned appellant, that it was “perfectly understandable that [appellant] might want another judge” under the circumstances, and that “many” other judges were available to handle the disposition of appellant’s case. Leaving the decision to appellant, the judge offered appellant the opportunity to confer with his attorney, “off-line” and thus outside the judge’s presence, about whether he wanted another judge to take his guilty plea and impose sentence.

Appellant declined to accept Judge Cushenberry’s offer to recuse himself.

The recusal demand came after sentence had been imposed.

Not until nearly two weeks after Judge Cushenberry imposed sentence did appellant move for his disqualification.

Associate Judge Glickman authored the opinion joined by Associate Judges Easterly and Deahl. (Mike Frisch)

September 8, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, September 6, 2022

Court Unimpressed with Pissy Response

Another day, another three letter opinions of the Delaware Court of Chancery posted in Twitter v. Musk.

One deals with a motion to quash a third party subpoena

I will keep this brief. I again assume that the readers are familiar with the background of this action. David Sacks is one of four individuals identified by Elon Musk as persons with whom he privately communicated about the Twitter transaction. Sacks’s fund, Craft Ventures GP I, LLC (“Craft”), entered into a non-disclosure agreement with Musk to evaluate a potential investment in connection with Musk’s acquisition of Twitter.

On August 1, 2022, Twitter served a California subpoena on Sacks. What happened next was unusual. To quote from Twitter’s Opposition:

Sacks’ response was swift and obscene. That evening, he Tweeted a virtual middle-finger at “Twitter’s lawyers,” then a video of a man urinating on a subpoena while yelling expletives to a cheering crowd.

Sacks next complained about the subpoena on Bloomberg TV, stating that he has “never been in possession of non-public information related to [Twitter’s] contract dispute with Elon.” A few days later, Sacks stated on a publicly aired podcast that Twitter’s subpoena was inappropriate because Sacks was “not even involved” with the transaction and was “not in possession of non-public information about this.” He further stated that he would respond to the subpoena by “hir[ing] a lawyer to go quash this thing.”

Craft hired California counsel, who informed Twitter on August 10 that Sacks expected to respond to the subpoena on August 17 and would “endeavor to produce documents by the August 22, 2022 response date.” Meanwhile, Twitter learned of the Craft non-disclosure agreement and served a second California subpoena on Craft on August 15. Sacks’ California counsel agreed to accept service.

Motion to quash

The movants have not met their burden here. The Delaware subpoenas were not “unreasonably” duplicative. Twitter had valid concerns based on Sacks’s behavior that neither he nor Craft would comply with the California subpoenas. Rather than burden a judge in another state with a request to enforce a subpoena, or risk not getting relief in time for use in this highly expedited matter, Twitter served the Delaware subpoenas as an insurance policy. In other circumstances, I might view entirely duplicative subpoenas served for such tactical purposes as problematic. Where, as here, the subpoena recipient Tweets the subpoenaing attorneys the middle finger and a video of someone urinating on subpoenas, I am less bothered by it.

The Delaware subpoenas impose no undue burden. Twitter made clear that it would treat compliance with the California subpoenas as full compliance with the Delaware subpoenas and that the return dates were negotiable. The only burden identified by the movants is the expense associated with hiring Delaware counsel. The movants did not need to hire Delaware counsel to comply with the Delaware subpoenas. They only needed Delaware counsel to move to quash the Delaware subpoenas. In an apparent effort to keep Sacks’s promise to his podcast listeners, the movants created the very burden of which they now complain.

The Motion to Quash is denied.

Hearing on motions will be held today at 1:30 pm.  (Mike Frisch)

September 6, 2022 in Current Affairs | Permalink | Comments (0)

Friday, August 26, 2022

No One In Their Right Mind

A benchslap from the Delaware Court of Chancery in attempting to resolve discovery issues in Twitter v. Musk

Defendants’ data requests are absurdly broad. Read literally, Defendants’ documents request would require Plaintiff to produce trillions upon trillions of data points reflecting all of the data Twitter might possibly store for each of the approximately 200 million accounts included in its mDAU count every day for nearly three years. Plaintiff has difficulty quantifying the burden of responding to that request because no one in their right mind has ever tried to undertake such an effort. It suffices to say, Plaintiff has demonstrated that such a request is overly burdensome.

That said, some additional data from Plaintiff seems warranted. Plaintiff is ordered to produce a subset of what Defendants have requested: the 9,000 accounts reviewed in connection with Plaintiff’s Q4 2021 audit, which the parties refer to as the “historical snapshot.” I recognize that producing the historical snapshot is no small feat. Plaintiff represented that, with considerable effort, these documents could be produced in under two weeks, and Plaintiff shall strive to meet that timeline. In addition, Plaintiff must produce documents sufficient to show how those 9,000 accounts were selected for review.

The historical-snapshot data that I have ordered produced is highly sensitive. To their credit, Defendants have agreed to treat this data as highly confidential. The parties should confer on a list of Defendants’ attorneys and data scientists who will be permitted to access this data.

Other orders entered here and here.

The last linked order deals with "dual purpose" expert discovery

Rule 26(b)(3) does not provide an unqualified protection. As discussed above, the rule permits discovery of work product “upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” This decision has already explained that Plaintiff meets the substantial need test as to the Analyses.

Equally important, Rule 26(b)(3) only protects the work product of the attorney. “At its core, the work-product doctrine shelters the mental processes of the attorney.” The doctrine does not shelter the mental processes of the expert, which are subject to a separate legal analysis and framework discussed above.  A non-testifying expert’s information “is not itself work product.”  Thus, to the extent Defendants object to production of all the Data Scientists’ documents on the grounds that they categorically constitute protected work product, that objection is overruled.

That said, “as a collaborator in the development of pretrial strategy, a non-testifying expert may become a unique repository of insights into counsel’s opinion work product[.]”  And while Plaintiff has demonstrated exceptional circumstances and thus a substantial need for the Analyses, it is possible that communications with counsel concerning the Analyses reflect work product. It is difficult to assess that possibility at this stage because the documents at issue have not been logged. In any event, to the extent that Plaintiff seeks a declaration that Defendants may not assert work product protection over any of the Data Scientists’ documents, that request is denied.

(Mike Frisch)

August 26, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, August 25, 2022

A Struggle For Power And Money

The dispute between claimants to leadership of the church founded in 1954 by the late Rev. Sun Myung Moon has been punted by the District of Columbia Court of Appeals.

The combatants are Moon's eldest living son versus his widow and her younger son

Both of them have claimed to be Rev. Moon’s successor as spiritual leader of the Church and, at different times, each has led the Family Federation for World Peace and Unification International. They believe the Family Federation is the institutional embodiment of the Unification Church, effectively synonymous with it, and that UCI is bound to support it.

The court

The central issue in this appeal is whether this dispute is one for civil courts to resolve. The First Amendment generally precludes civil courts from resolving religious conflicts, in what is sometimes called the religious abstention doctrine. Whether that doctrine bars the District’s courts from resolving the present dispute, or whether it instead can be resolved through the application of neutral principles of law without wading into religious questions, has proven a vexing question. The Superior Court initially dismissed the underlying suit on religious abstention grounds, concluding that it could not be resolved without “venturing into religious questions forbidden by the First Amendment.” Family Fed’n for World Peace & Unification Int’l v. Hyun Jin Moon (Moon I), 129 A.3d 234, 239 (D.C. 2015). We reversed, reasoning that dismissal was “premature” at the motion-to-dismiss stage because it was possible that evidence might be adduced that would permit the dispute to be resolved through neutral principles of law. Id. at 248-52. On remand, and after extensive discovery, a newly assigned judge concluded that the conflict could indeed be resolved by applying neutral legal principles. In the orders now on appeal, the court granted summary judgment in the Family Federation’s favor and directed that the UCI directors be removed from their posts and held personally liable to UCI for more than half-a-billion dollars. In doing so, the court described this case as less a quarrel over church doctrine and more “a struggle for power and money.”

It is certainly that, but this struggle for power and money cannot be resolved without answering core questions about religious doctrine. And we are precluded from providing those answers. It is not for the courts to pronounce, as the trial court did, that the Family Federation is the “authoritative religious entity” that ordains what does and does not benefit the Unification Church. Nor can we say that UCI’s directors fundamentally altered its articles of incorporation without first addressing religious questions that we cannot entertain. UCI’s articles could have vested final decision-making authority in a particular institutional actor like the Family Federation, but they have never done that. See Jones v. Wolf, 443 U.S. 595, 603 (1979) (“[R]eligious societies can specify . . . what religious body will determine the
ownership in the event of a schism or doctrinal controversy.”). Absent that, it is not for us to pass judgment on whose vision of the Unification Church, or Unification Movement, is more faithful to the purposes UCI was established to advance. That religious question is outside of this court’s purview.

(Mike Frisch)

August 25, 2022 in Current Affairs | Permalink | Comments (0)