Wednesday, January 19, 2022

Page Defamation Suit Dismissal Affirmed; Trial Court Mishandled Lin Wood Pro Hac Matter

The Delaware Supreme Court has affirmed the dismissal of Carter Page's defamation suit against Oath Inc.

Dr. Carter Page, a public figure with ties to President Trump’s 2016 campaign, claimed that Oath Inc.’s online news organizations published eleven defamatory articles about him in 2016 and 2017. Michael Isikoff authored a Yahoo! News article that forms the backbone of the amended complaint (the “Isikoff Article”). Three other articles were written by employees at (“HuffPost”) and refer to the Isikoff Article (the “Employee Articles”). The remaining seven articles were written by HuffPost non-employee “contributors” (the “Contributor Articles”). The articles discuss an “intelligence report” from a “well-placed Western intelligence source” with information that Page met with senior Russian officials and discussed potential benefits to Russia if Donald Trump won the presidential election.

The Superior Court granted Oath’s motion to dismiss. It found that the Isikoff Articles and Employee Articles were either true or substantially true; Page was at least a limited purpose public figure, meaning he was required to plead actual malice by the individuals responsible for publication, and he failed to meet that standard; the fair report privilege for government proceedings applied; and Oath was protected for the Contributor Articles under the federal Communications Decency Act. Page appeals the Superior Court’s judgment except the Superior Court’s ruling that the Employee Articles were true.

We affirm the Superior Court’s judgment. The Isikoff Article describes a federal investigation into a report about Page—an investigation that existed and was being pursued by the FBI. At a minimum, the article is substantially true, and as such, Page did not state a claim for defamation based on that article. Page also fails to state a claim for defamation with respect to the remaining articles. At oral argument, Page conceded that if the Isikoff Article is not defamatory, he loses on his remaining claims. Page also failed to allege that the individuals responsible for publication of those articles acted with actual malice. Finally, Page does not contest the Superior Court’s holding that the Employee Articles were true. Because these grounds dispose of Page’s defamation claims, we do not address any of the Superior Court’s other grounds for dismissal.

The court entered a separate order chiding the trial court for its handling of l'affaire Lin Wood

Both the tone and the explicit language of the Superior Court’s memorandum opinion and order suggest that the court’s interest extended beyond the mere propriety and advisability of Wood’s continued involvement in the case before it. In fact, one cannot read the court’s order without concluding that the court intended to cast aspersions on Wood’s character, referring to him as “either mendacious or incompetent” and determining that he was not “of sufficient character” to practice in the courts of our State. We offer no opinion on the accuracy of these characterizations, but we see no evidence in the Superior Court’s record that supports them. Similarly, the court’s foray into the events of January 6 and its unequivocal finding that “[n]o doubt [Wood’s] tweets . . . incited the [] riots,” was not justified given the scope of the Rule to Show Cause and the record.

 Because the Superior Court’s revocation order is based on factual findings for which there is no support in the record and because the court failed to explain why Wood’s withdrawal would not moot the court’s concerns about the appropriateness or advisability of Wood’s continued admission, we find that the court’s revocation order was an abuse of discretion.

To be clear, when a lawyer admitted pro hac vice to practice in a trial court of this state is accused of serious misconduct in another state, the admitting trial court is not powerless to act. It might be appropriate to issue—as the court did in this case—a rule to show cause why the out-of-state lawyer’s pro hac vice status should not be revoked, and to act upon that rule if cause is not shown. But when, as here, the allegations of misconduct in another state have not yet been adjudicated, there is no assertion that the alleged misconduct has disrupted or adversely affected the proceedings in this State, and the lawyer agrees to withdraw his appearance and pro hac vice admission, it is an abuse of discretion to preclude the lawyer’s motion to withdraw in favor of an involuntary revocation of the lawyer’s admission

(Mike Frisch)

January 19, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, January 12, 2022

A Loss For Facebook

The United States District Court for the District of Columbia has denied Facebook's motion to discuss renewed claims of the Federal Trade Commission

Second time lucky? The Federal Trade Commission’s first antitrust suit against Facebook, Inc. stumbled out of the starting blocks, as this Court dismissed the Complaint last June. In doing so, the Court concluded that the Commission had failed to plausibly allege “that Facebook has monopoly power in the market for Personal Social Networking (PSN) services.” FTC v. Facebook, Inc., 2021 WL 2643627, at *1–2 (D.D.C. June 28, 2021). Because that “defect could conceivably be overcome by re-pleading,” however, the Court left the door ajar for  the agency to amend the Complaint and reinstate its suit. Id. at *1.

Eagerly accepting such invitation, the FTC has filed an Amended Complaint containing significant additions and revisions aimed at addressing the shortcomings identified in the Court’s prior Opinion. The core theory of the lawsuit remains essentially unchanged. The Commission continues to allege that Facebook has long had a monopoly in the market for PSN services and that it has unlawfully maintained that monopoly via two types of actions: first, by acquiring competitors and potential competitors — most notably, Instagram and WhatsApp — that it believed were well situated to eat into its monopoly; and second, by implementing and enforcing policies that prevented interoperability between Facebook and other apps that it viewed as nascent threats. The facts alleged this time around to fortify those theories, however, are far more robust and detailed than before, particularly in regard to the contours of Defendant’s alleged monopoly.

Facebook nonetheless moves to dismiss once again, contending that the FTC’s latest effort is akin to rearranging the deck chairs on the Titanic. Although the agency may well face a tall task down the road in proving its allegations, the Court believes that it has now cleared the pleading bar and may proceed to discovery. That holding flows from several conclusions. First, the FTC has now alleged enough facts to plausibly establish that Facebook exercises monopoly power in the market for PSN services. Second, it has adequately alleged that the company’s dominant market share is protected by barriers to entry into that market. Third, the agency has also explained that Facebook not only possesses monopoly power, but that it has willfully maintained that power through anticompetitive conduct — specifically, the acquisitions of Instagram and WhatsApp. The Court will not, however, allow the allegations surrounding Facebook’s interoperability policies (also known as the Platform policies) to move forward; they founder for the same fundamental reasons as explained before: Facebook abandoned the policies in 2018, and its last alleged enforcement was even further in the past.

Last, the company lets fly a new arrow this time around, urging dismissal on the independent basis that the FTC’s vote authorizing the Amended Complaint was invalid because Chair Lina Khan’s alleged prejudgment of Facebook’s antitrust liability required her recusal. The Court believes that such contention misses its target, as Khan was acting in a prosecutorial capacity, as opposed to in a judicial role, in connection with the vote.

Ultimately, whether the FTC will be able to prove its case and prevail at summary judgment and trial is anyone’s guess. The Court declines to engage in such speculation and simply concludes that at this motion-to-dismiss stage, where the FTC’s allegations are treated as true, the agency has stated a plausible claim for relief under Section 2 of the Sherman Act. The Court, consequently, will deny Facebook’s Motion.

Judge Boasberg authored the opinion. (Mike Frisch)

January 12, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, December 29, 2021

Pulled Pork

A decision issued today by the United States Court of Appeals for the District of Columbia Circuit

When Charles Erwin, a commercial airline pilot with a diagnosed alcohol dependence, tested positive for alcohol, the Federal Aviation Administration (FAA) withdrew his medical certification required for flight. Erwin, whose test came less than a day after consuming food prepared in beer, requested reconsideration of the FAA’s decision with documentation to demonstrate that the positive test was due to unknowing exposure to alcohol. Standing firm, the FAA issued a short order denying Erwin’s request but failing to explain adequately its denial. Accordingly, we remand to the FAA for a more complete explanation of its decision.

From the partially-redacted opinion

On December 13, 2017, Erwin ate a lunch of pulled pork at a Franklin, Tennessee restaurant. The menu did not note that the pork was prepared in beer. Erwin took some of the meal home and ate the leftovers that night. The next morning, Erwin submitted to a random alcohol test. [Redacted]  On December 28, 2017, one day after learning of the positive test, Erwin voluntarily took additional tests, specifically tests for phosphatidyl ethanol (PEth) in his blood and EtG in his hair and nails. Those tests came back negative.


we remand to the FAA for it to consider the evidence Erwin provided and to make explicit the “why and wherefore” of its action.

(Mike Frisch)

December 29, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, December 28, 2021

"Struggling Young Mother" Evidence Does Not Establish Murder Motive

The New Jersey Supreme Court has overturned the murder conviction of a single mother for the 1991 murder of her son.

The charges were not brought until 2014.

The trial witnesses mostly agreed that Lodzinski was a loving mother who worked hard to care for and support her young son. Lodzinski’s sister Linda and babysitter Danielle Gerding both stated Timothy was her “life.” As the sole provider for Timothy, Lodzinski held a number of different jobs during Timothy’s childhood. She worked as a secretary, a paralegal, a receptionist, a bank teller, and in retail. At times, she held two jobs at once. As with many single mothers, securing childcare was a struggle.

The basis for reversal

The State offered motive evidence to suggest that Lodzinski had a reason to kill her son and to impute to her the requisite state of mind to commit murder, urging the jury to find that Lodzinski purposely or knowingly killed Timothy because she “was a young struggling mother” and “Timothy was a social burden.” But most witnesses did not question Lodzinski’s devotion to Timothy or suggest that she was anything but a loving and caring mother. It is not uncommon for a twenty-three-year-old single mother, raising a child on her own, to have financial and social challenges. That singularly unremarkable scenario hardly indicates a motive to murder one’s child. The Court has rejected the very  type of generalized class assumptions offered to the jury as a motive to commit a crime. See State v. Mathis, 47 N.J. 455, 471-72 (1966) (holding that the State cannot present as a motive for robbery that a person may be poor or unemployed). That a person is poor does not mean that he is inclined to commit a robbery; that a single working mother is the sole support of her son and dating, or even having difficulty in her relationships, does not mean she is inclined to murder her child. Stereotypes associated with single-parent women cannot substitute for an absence of evidence relating to an essential element of the offense of murder.

The was a dissent that found sufficient evidence of motive citing as one of several supporting factors

evidence of motive through testimony that defendant, raising her son with no financial
support from his father, had difficulty finding adequate child care, maintaining a job, and
establishing a stable relationship...

The qoutes are from the court's headnotes. (Mike Frisch)

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

Friday, December 10, 2021

Yates Email FOIA Litigation Remanded

The United States Court of Appeals reversed and remanded an order dismissing Judicial Watch's FOIA request for emails from Sally Yates' DOJ email account

One week after taking the oath of office, President Donald Trump signed Executive Order Number 13,769 suspending entry into the United States of foreign nationals from seven majority-Muslim countries. Critics immediately challenged the Executive Order, and on January 30, Acting Attorney General Sally Yates issued a four paragraph statement declaring that, “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.” President Trump fired Yates later that day. Some two months later, Judicial Watch filed suit under the Freedom of Information Act, seeking attachments to four emails sent to and from Yates’s DOJ email account on the same day that she issued her statement.

Thee district court had granted summary judgment

Because DOJ has failed to satisfy its burden to demonstrate that the attachments are deliberative, we reverse the district court’s grant of summary judgment. Because the district court chose to rely on the government’s declarations, and because we expect the attachments are relatively brief, we remand with instructions to review the attachments in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative. Should the district court conclude that the attachments are deliberative, it must then determine, consistent with the principles set forth in Reporters Committee, whether DOJ also satisfied its burden under the FOIA Improvement Act. 3 F.4th at 369–72.

Judge Tatel authored the opinion. (Mike Frisch)

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

Wednesday, December 8, 2021

Disclosure Violations Do Not "Undermine Confidence" In Blankenship Verdict

Donald Blankenship's efforts to undo his conviction for alleged disclosure violations fell on the deaf ears of the United States Court of Appeals for the Fourth Circuit

Following an explosion at Massey Energy Company’s Upper Big Branch coal mine in Montcoal, West Virginia, that killed 29 miners, Blankenship — who was at the time of the explosion the Chairman of the Board and CEO of Massey — was charged with and convicted of conspiring to willfully violate mandatory federal mine safety and health standards, in violation of 30 U.S.C. § 820(d) and 18 U.S.C. § 371. The trial evidence centered on the allegation that Blankenship had willfully failed to address numerous notices of mine safety violations that Massey had received, favoring coal-mine production and profits over safety.

Following the trial and in response to Blankenship’s ongoing requests, the government produced documents to Blankenship that it had not produced before trial and that it should have produced under applicable Department of Justice (“DOJ”) policies. Indeed, an internal DOJ review concluded that prosecutors in the case failed, as DOJ policies require, to “develop a process for review of pertinent information to ensure that discoverable information [was] identified.” The suppressed documents fell broadly into two categories: (1) memoranda of interviews conducted of seven Massey employees and (2) internal emails and documents of the Mine Safety and Health Administration (“MSHA”) showing, among other things, some MSHA employees’ hostility to Massey and Blankenship.

The district court, recognizing that the documents were improperly suppressed, concluded nonetheless that they were not material in that there was not a reasonable probability that they would have produced a different result had they been disclosed before trial. The court stated that “after thorough review, nothing ha[d] been presented to undermine confidence in the jury’s verdict.” It accordingly denied Blankenship’s § 2255 motion.

Having given the record a close review ourselves, we reach the same conclusion as the district court. Accordingly, we affirm.

The court on defense due diligence

when assessing the defendant’s role in preparing his defense, he should not be allowed to turn a willfully blind eye to available evidence and thus set up a Brady claim for a new trial. In this manner, we distinguish the burden of due diligence — which the defendant need not carry in asserting a Brady claim — from the common-sense notion of self-help imputable to a defendant in preparing his case. This is precisely the distinction between [prior cases] Wilson and Banks.

On the MSHA documents

We agree with the district court that the suppression of these documents and the other MSHA records did not violate Brady and Giglio. The bias of individual MSHA employees — if bias is the correct word when considering that the employees’ hostile comments were in response to the perceived lack of mine safety — could not be accepted to show agency bias unless it was shown that the employees spoke for the agency or had some responsibility in regard to Blankenship’s prosecution. But that has not been shown. Most importantly, the core issue at trial did not relate to the validity of the mine safety citations or to MSHA conduct; it focused on Blankenship’s state of mind — whether he conspired to willfully violate mine safety standards. And the evidence relevant to that issue came from (1) miners and others with factual knowledge of the conditions at the mine and (2) Massey employees and documents providing evidence relevant to Blankenship’s state of mind.

We agree with the district court that this category of documents was not material to the outcome of the trial and that their suppression therefore did not constitute a Brady violation.

(Mike Frisch)

December 8, 2021 in Current Affairs | Permalink | Comments (0)

Monday, December 6, 2021

Spicer Preliminary Injunction Denied

The United States District Court for the District of Columbia has denied Sean Spicer's motion for a preliminary injunction to prevent his removal from the Naval Academy Board of Visitors, concluding his likelihood of success on the merits is remote

The “failure to show a likelihood of success on the merits alone is sufficient” to deny a preliminary injunction. Hudson v. Am. Fed’n of Gov’t Emps., 308 F. Supp. 3d 121, 127 (D.D.C. 2018) (citing Ark. Dairy Co-op Ass’n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009)). But even if the merits of this case were closer, the plaintiffs have not met their burden of showing either that they face an irreparable injury or that the public interest favors a preliminary injunction. See Winter, 555 U.S. at 20. Although the plaintiffs express an interest in attending a Board meeting on December 6, 2021, they give no account of why missing that meeting would be personally injurious. See Compl. ¶ 23; Pls.’ Mot. at 36; Pls.’ Reply at 24–25, Dkt. 7; see also Newby, 838 F.3d at 8 (noting that irreparable harm must be “certain and great”). And although the plaintiffs argue that their removal from the Board would “silence dissenting views,” Pls.’ Reply at 25, they give no indication that their views on the governance of the Naval Academy actually differ from the other Board members’. Nor do they explain how it would serve the public interest to present advice to the President—the primary function of the Board, see 10 U.S.C. § 8468(f)—that the President does not intend to consider. For the foregoing reasons, the Court concludes that the plaintiffs are not entitled to the “extraordinary remedy” of a preliminary injunction. Winter, 555 U.S. at 22

Judge  Friedrich decided the motion. (Mike Frisch)

December 6, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, November 24, 2021

No Vaccine For Incivility

A divorced couple's litigation over vaccination and medical care of their two children has been remanded by the Maine Supreme Judicial Court due to the trial court's failure to take judicial notice of CDC website information about childhood vaccines.

The information that Joshua wanted the trial court to judicially notice relates to the second category: scientific fact. When a court is asked to take judicial notice of a scientific fact, the relevant inquiry is whether that fact has been generally accepted by the scientific community—not whether it is universally accepted by the public at large.

...On remand, if Michelle seeks to contest the CDC’s position as a matter of scientific fact, she must show that its position is not accepted to be true within the scientific community. Information available from other scientific sources, such as the Maine Centers for Disease Control, the Food and Drug Administration, the National Institutes of Health, the World Health Organization, the American Academy of Pediatrics, and the American Medical Association could be relevant on this question.

A footnote

We feel obligated to address the unprofessional nature of the brief filed by Michelle’s attorney. Besides engaging in selective editing of the guardian ad litem’s report, the brief does not reflect the standards of civility that we expect because it is filled with intemperate language and unsupported allegations. For example, Michelle’s brief refers to parts of Joshua’s brief as “arrogant[]” and “egocentric, self-serving, and nonsensical”; calls Joshua’s argument about the best interests of the children “slanderous” and “false and defaming”; and makes an unsupported allegation that Joshua’s attorney became “incensed” when the trial court did not take judicial notice of the CDC’s “proclamations.” This type of uncivil language is never acceptable, see Key Equip. Fin., Inc. v. Hawkins, 2009 ME 117, ¶¶ 22-23, 985 A.2d 1139, but is particularly harmful here because the parties already have a long history of strife. Attorneys should seek to reduce heated rhetoric between parties in litigation, not fan the flames of conflict.

(Mike Frisch)

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

Friday, November 12, 2021

Capri Pants, Spaghetti Straps, Ripped Clothes: Nebraska Drills Down On Workplace Attire

The Nebraska Supreme Court has adopted extensive amendments to its court staff dress code.

New definitions

(1) Definitions
Professional Attire: Professional attire means employees shall dress in a conventional businesslike manner; appropriate professional attire includes dresses, skirts, dress slacks, pantsuits, collared shirts, ties, suits, or sport coats. Dress shoes are required.
Business Casual Attire: Business casual attire means employees may dress in khakis or similarly styled pants, shirt, and dress shoes. Shirts should have a collar or finished edge. Capri or “Gaucho” pants may be worn if they are no shorter than mid-calf length and are worn in the same manner as dress slacks, i.e., with a jacket or dress shirt.
Casual Attire: Casual attire shall consist of jeans, a collared shirt with a Nebraska Judicial Branch approved logo or similar shirt, and casual shoes, which may include tennis shoes. Shorts or hats are not permitted unless specifically authorized by the Administrative Office of the Courts and Probation to be worn in conjunction with community activities occurring outside, on weekends, or as other conditions warrant.
Field Work is defined as visitations to homes, other places of residence, hospitals, treatment facilities, schools, places of employment, community service sites, nursing homes, or similar locations.

Professional attire is required in court or while representing the court; otherwise business casual fills the bill.

Casual in Nebraska is a privilege, not a right

Casual “jeans” or “denim” days are permitted not more than one day per month at the discretion of the presiding judge, chief probation officer or the division head within the Administrative Office of the Courts and Probation. Additional days may be granted at the discretion of the State Court Administrator or the State Probation Administrator.

Body armor

Unless otherwise prevented from doing so, body armor shall be worn under clothing or concealed from public view. At all times, probation officers shall present themselves in appearance as officers of the Court, not as law enforcement officers. Battle dress uniforms (BDUs), “raid-type” jackets, or similar clothing with law enforcement identifiers may be worn only in conjunction with conducting a search or field visits in conjunction with law enforcement.


The following is a list of unacceptable attire, not to be considered inclusive, although it is subject to modification by a supervisor or management and the limited exceptions detailed elsewhere in this policy.
· Tank tops, spaghetti-strap tops, strapless tops, or any top that does not completely cover the midriff area.
· Clothing with noticeable wear, including ripped, frayed, dirty, or wrinkled clothing.
· Stretch pants or leggings worn without skirts, dresses, cardigans, and/or long tops.
· Sweat pants, warm-ups, or other athletic clothing.
· Flip-flop sandals, slippers, or Crocs.
· Clothing which is excessively tight, short, lowcut, revealing, or sheer.

Body decor

Tattoos which by slogan and/or design imply negative connotation shall be concealed at all times during working hours.

What constitutes a "negative connotation"?


The normal wearing of earrings in the earlobe and/or a small, single “stud” in a nostril is acceptable. Although an employee may have parts of his or her body pierced, all other piercings shall be covered by clothing. The wearing of ear gauges is not permitted...

Have to google ear gauges.


An employee may request an exemption to parts of these standards based on legitimate medical, religious, or cultural practice.

(Mike Frisch)

November 12, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, October 14, 2021

Plaintiff May Discover Relationship Between Defense Firm And Medical Expert

The Florida Supreme Court declined to prevent discovery into the financial arrangement between a defense law firm and its medical expert in a personal injury case

After the plaintiff requested certain information regarding the financial relationship between the defendant’s law firm and the defense’s medical expert, the defendant moved for a protective order, but the trial court denied the motion. Younkin, 44 Fla. L. Weekly at D549. The defendant then filed a petition for writ of certiorari in the Fifth District. The district court denied the petition, concluding that the trial court’s order was consistent with the Fifth District’s earlier decision in Vazquez v. Martinez, 175 So. 3d 372 (Fla. 5th DCA 2015). Younkin, 44 Fla. L. Weekly at D549- D550.

The court

We thus reframe the certified question as follows:

Whether it is a departure from the essential requirements of law to permit discovery regarding the financial relationship between a defendant’s nonparty law firm and an expert witness retained by the defense?

And we answer in the negative. Because Worley is distinguishable, and because the trial court’s discovery order was consistent with binding district court precedent, see Vazquez, 175 So. 3d at 374, the discovery order did not depart from the essential requirements of the law.

Justice Poulson dissented and decried unequal discovery requirements for plaintiffs and defendants

Because I would recede from Worley and require disclosures equally from plaintiffs and defendants, I respectfully dissent.

The court issued this opinion reaching the same conclusion in an unrelated case

Because the trial court’s order permitting discovery related to the financial relationship between Dodgen’s insurer and defense experts was consistent with established law, we agree with the Fourth District that the trial court did not depart from the essential requirements of the law in denying Dodgen’s motion for protective order.

(Mike Frisch)


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

Thursday, October 7, 2021

Pride Goeth Before The Nol Pros

The Massachusetts Supreme Judicial Court declined to order relief sought for a District Attorney's decision not to charge protestors, affirming the conclusion of a single justice

The complaint stems from the district attorney's decision to nol pros several cases against individuals who were arrested at a "Straight Pride Parade" in Boston on August 31, 2019, and at a rally that followed the parade. Those who were arrested apparently were at the parade and rally to object to those events. They were charged with an assortment of crimes, mostly disorderly conduct and assault and battery on police officers. Del Gallo alleges that, as a marcher in the parade and a speaker at the rally, he was a victim of the disorderly conduct2 because the conduct interfered with his right under the First Amendment to the United States Constitution to participate in the events, although it is difficult to find any specific allegation in his lengthy complaint suggesting that any of the charged individuals or their conduct actually prevented him from marching or speaking or even interfered in any way with his doing so.

Various contentions failed to persuade

we cannot imagine that the Legislature intended to confer "victim" status on someone in Del Gallo's position simply because he or she was involved in an event's planning and was disappointed that the event ultimately was met with protest and allegedly was marred by disorderly conduct.

(Mike Frisch)

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

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)