Sunday, September 1, 2019

No Liability For Reporting On Law Firm Travails

Litigation arising from the New York Post's reporting on the breakup of a high-profile class action plaintiffs law firm (and an affair between a partner and associate that spawned its own litigation) has led to this decision of the New York Appellate Division for the First Judicial Department.

From December 2014

Prominent Manhattan lawyer Paul Napoli would stop at nothing to continue his sordid affair with a pretty auburn-haired associate even after his wife uncovered their 18-month dalliance, court filings charge.

Vanessa Dennis, who once worked as a junior lawyer at the 9/11 firm Napoli Bern formally filed a defamation complaint against her ex-boss and lover, his wife and the law firm last week, demanding at least $11 million.

Dennis, 33, who claims she was harassed by Napoli’s wife, Marie, after she discovered their affair in April 2013, now claims Napoli refused to end their relationship...

Dennis’ allegations come amid the epic unraveling of a firm that made tens of millions of dollars in fees by representing some 10,000 sick and dying Ground Zero first responders.

Bern and partner Alan Ripka are now also waging messy court battles against Napoli.

Last month, a judge named a receiver to oversee the financial affairs of the firm.

Co-founder Bern accused Napoli of “financial irregularities” after he took over Napoli Bern’s operations when Napoli was diagnosed with leukemia in May.

Napoli attacked Bern by sending an e-mail around saying Bern patronized prostitutes and cajoled a receptionist into oral sex at a company Christmas party.

The Post walks

The court properly determined that the Post defendants' reporting of the contents of an email concerning third-party conversations mentioning plaintiff were not actionable (see generally Brian v Richardson, 87 NY2d 46, 51-52 [1995]). The court also properly found that the intentional infliction of emotional distress claim was duplicative since the underlying allegations fall within the ambit of the defamation causes of action (see Akpinar v Moran, 83 AD3d 458, 459 [1st Dept 2011], lv denied 17 NY3d 707 [2011]), and that plaintiff failed to allege that she was placed in physical danger or was caused to fear for her personal safety as a [*2]result of the Post defendants' conduct in support of her negligent infliction of emotional distress claim (see Ferreyr v Soros, 116 AD3d 407 [1st Dept 2014]).

But the defamation action against the former partner survives

The court in the Bern action properly determined that collateral estoppel does not apply to bar plaintiff's defamation claims against the Bern defendants. The issues raised in the Bern action, in which plaintiff claims that the Bern defendants made sham filings and circulated them to the press for the sole purpose of defamation, differ from those raised in the New York Post action, in which plaintiff alleges that the New York Post defamed her by reporting on those filings (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]). The court also properly determined that issues of fact remained as to whether the litigation privilege extended to the Bern defendants' court filings (see Flomenhaft v Finkelstein, 127 AD3d 634, 638 [1st Dept 2015]). The court properly sustained plaintiff's prima facie tort cause of action against the Bern defendants, pleaded in the alternative, which did not rest on the same facts and allegations supporting the alleged defamation (see generally Curiano v Suozzi, 63 NY2d 113, 118 [1984]). Furthermore, plaintiff's allegations that Marc Bern disclosed confidential information obtained in the course of his representation of her and disclosed documents in violation of the attorney-client privilege state a cause of action against him for breach of fiduciary duty (see Keller v Loews Corp., 69 AD3d 451 [1st Dept 2010]). The court correctly found that plaintiff's allegations, along with two affidavits supporting her claim that Bern represented her sufficiently pleaded the requisite elements of a breach of fiduciary duty claim (see Burry v Madison Park Owner LLC, 84 AD3d 699 [1st Dept 2011]).

(Mike Frisch)

September 1, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, August 27, 2019

Florida Considers Parental Leave Continuances For Attorneys

An argument today before the Florida Supreme Court

This Court requested the Rules of Judicial Administration Committee submit a parental-leave continuance rule for consideration.  The Committee submitted Draft Rule of Judicial Administration 2.570 (Parental Leave Continuance), which addresses motions for continuances based on the lead attorney’s parental leave. The Committee recommends against the adoption of a parental-leave continuance rule because it believes such a rule would reduce judicial discretion to manage cases adequately.

Appearance for Opponents: Eduardo Sanchez, Past Chair of the Rules of Judicial Administration Committee, Miami, 305-961-9057 and Theodore F. Green of Law Office of Theodore F. Green, LC, Orlando, 328-720-9157

Appearance for Proponents: John M. Stewart, President of Florida Bar, Vero Beach, 772-231-4440; Susan V. Warner, Rules of Judicial Administration Committee Member, Miami, 904-293-0725; Lara B. Bach, Young Lawyers Division of the Florida Bar, Miami, 305-577-3135 and Jennifer S. Richardson, Florida Association of Women Lawyers, Jacksonville, 904-638-2655

Appearance for Statewide Guardian ad Litem Program: Thomasina F. Moore, Tallahassee, 850-922-7213 

Appearance for Juvenile Court Rules Committee: David Silverstein, Bradenton, 941-741-3706

From the Florida Bar majority opposition to the proposed Rule

Ultimately, the question comes down to whether it is prudent to delay the progression of a case due to one attorney’s personal situation, particularly if that delay may cause possible harm to any of the parties, opposing counsel, witnesses, and the court’s busy calendar. Considerations weighing on the discretionary call a judge must make in considering a continuance often include: the nature of the litigation, the age of the case, the established priority of the case, the history of the case that has proceeded the continuance request, the needs and rights (substantive and procedural) of the parties, the availability of court resources, the interests of the other attorneys involved in the case, and whatever broader needs may also exist in the court system at that time. The judge must carefully balance these and many other potential factors that might be implicated in a fair and unbiased way that endeavors to best preserve the integrity and reputation of the courts and the fairness of the process. That is the responsibility and authority bestowed upon a judge by Rule 2.545. No other rule is necessary—particularly not one of single purpose or use...

To the extent that there may be some members of Florida’s judiciary who in the past were not properly cognizant of the value that ought to be given parental leave, the committee respectfully suggests that the almost three-year debate about the adoption of some form of a parental-leave continuance rule in Florida has succeeded in elevating the discussion to a point where few judges, if any, will now ignore the issue. The very widely publicized robust debate over the issue has sensitized both practitioners and the judiciary. And while the committee supports action by the Court in its supervisory capacity to further educate and sensitize the members of the judiciary to the parental leave issue, the committee does not believe that the proposed Rule 2.570 is either the proper or best vehicle to achieve that laudable goal. In this area, as in most such areas that require the exercise of sound judicial discretion, it is the firm and definite belief of the committee that “less is more.”


The minority supported adoption of the proposed Rule 2.570 because it believed a parental-leave continuance rule would provide more predictability in the courts’ treatment of parental leave, reduce obstacles to career advancement faced by women who bear children, encourage male use of parental leave, and help alleviate the stigma of the “mommy track,” all of which would help close the workplace gender gap in the legal profession. In reporting its position in support of the adoption of Rule 2.570, the minority analyzed the existing rules and case law addressing continuances and how they impact the consideration of parental-leave continuances, as well as laws and policies concerning parental leave.

Link to the docket entries here. (Mike Frisch)

August 27, 2019 in Billable Hours, Current Affairs | Permalink | Comments (0)

Friday, August 16, 2019

No One Speaks For Beulah, Minnie And Karen

The Connecticut Appellate Court affirmed denial of habeas relief in a matter brought on behalf of three elephants

The petitioner, Nonhuman Rights Project, Inc., appeals from the judgment of the habeas court declining  to issue a writ of habeas corpus that it sought on behalf of three elephants, Beulah, Minnie, and Karen (elephants), who are alleged to be confined by the named respondents, R.W. Commerford & Sons, Inc. (also known as the Commerford Zoo), and its president, William R. Commerford, at the Commerford Zoo in Goshen.

The court

Only a limited number of courts have addressed the issue of whether a nonhuman animal who allegedly has been injured has standing to bring a claim in a court of law. There are even fewer cases addressing whether a nonhuman animal can challenge its confinement by way of a petition for a writ a habeas corpus. The petitioner asserts that this case ‘‘turns on whether [the elephants] are ‘persons’ solely for the purpose of the common-law right to bodily liberty that is protected by the common law of habeas corpus.’’ In its view, the elephants are entitled to a writ of habeas corpus as a matter of common-law liberty because the writ of habeas corpus is deeply rooted in our cherished ideas of individual autonomy and free choice. It essentially invites this court to expand existing common law. This case, however, is more than what the petitioner purports it to be. Not only would this case require us to recognize elephants as ‘‘persons’’ for purposes of habeas corpus, this recognition essentially would require us to upend this state’s legal system to allow highly intelligent, if not all, nonhuman animals the right to bring suit in a court of law. At this juncture, we decline to make such sweeping pronouncements when there exists so little authority for doing so...

There are profound implications for a court to conclude that an elephant, or any nonhuman animal for that matter, is entitled to assert a claim in a court of law. In the present case, we have little difficulty concluding that the elephants—who are incapable of bearing legal duties, submitting to societal responsibilities, or being held legally accountable for failing to uphold those duties and responsibilities—do not have standing to file a petition for a writ of habeas corpus because they have no legally protected interest that possibly can be adversely affected. See Gold v. Rowland, supra, 296 Conn. 207 (‘‘[a]ggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected’’ [internal quotation marks omitted]). Accordingly, we conclude that the court properly declined to issue a writ of habeas corpus on standing grounds.

(Mike Frisch)

August 16, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, August 13, 2019

Smell Test Fail

A decision of the Maryland Court of Appeals

“The times they are a-changin’.”

—Bob Dylan, The Times They Are a-Changin’

It is by now well known that the laws in Maryland and elsewhere addressing the possession and use of marijuana have changed. Those changes naturally have compelled examination of how the affected laws are to be interpreted and applied consistent with the dictates of other law including, here, the Fourth Amendment’s protection against unreasonable searches and seizures.

Presented in this case is a question of first impression. That question, as framed in the brief of Petitioner Michael Pacheco, is

whether police are authorized to arrest a person for the criminal offenses of possession of more than ten grams of marijuana and/or possession of marijuana with intent to distribute, based solely on facts indicating that the person is committing the civil offense of possession of less than ten grams of marijuana.

For reasons that follow, we answer that question in the negative.

The appropriately characterized Head Note

In the post-decriminalization era, the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search incident thereto. It is well established that individuals have a heighted expectation of privacy in their person as compared to their automobile, meaning the probable cause analysis for the search incident to arrest exception versus the automobile exception will often differ given the respective justifications for those exceptions and the facts and circumstances of each case. Thus, although Petitioner’s possession of a marijuana cigarette along with the odor of marijuana may have given the officers probable cause to search his vehicle, it did not grant them probable cause to arrest him and conduct a search incident thereto.

(Mike Frisch)


August 13, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, July 30, 2019

Nothing In Common

The South Carolina Supreme Court has imposed the death penalty on the institution of common law marriage going forward in the Palmetto state. 

Our review in this case has prompted us to take stock of common-law marriage as a whole in South Carolina. We have concluded the institution's foundations have eroded with the passage of time, and the outcomes it produces are unpredictable and often convoluted. Accordingly, we believe the time has come to join the overwhelming national trend and abolish it. Therefore, from this date forward—that is, purely prospectively—parties may no longer enter into a valid marriage in South Carolina without a license. Consistent with our findings regarding the modern applicability of common-law marriage rationales, we also take this opportunity to refine the test courts are to employ henceforth.

Nevertheless, the case before us remains. We do not believe Stone demonstrated the mutual assent required to prove a common-law marriage, and as a  result, we hold the parties were not married and reverse the family court on the merits and as to the issue of attorney's fees.

(Mike Frisch)

July 30, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, July 14, 2019

The Nixon Offense: John McCain And Mormon Basketball

The Utah Supreme Court affirmed the grant of summary judgment to a defendant sued for (basketball) court injuries. 

At the outset of the oral argument in our court in this case, counsel for the appellee presented a quote from the late Senator John McCain. The quote alludes to the sport of mixed martial arts as a “dangerous and brutal exercise,” while then warning of a “sport, more vicious and cold-blooded, that takes place in Mormon meetinghouses across this great nation of ours”—“LDS Church Basketball.” This quote, sadly, appears to be a matter of internet apocrypha. We can find it attributed to a McCain floor speech on various pages of the world-wide web, but no such quote appears in the pages of the Congressional Record. Yet the apocryphal quote conveys an accepted view of “church ball” among many who have experienced this phenomenon—an athletic competition acclaimed on some local t-shirts as “the brawl that begins with prayer.”

At least one of the parties to this case seems to see it that way. Judd Nixon is the plaintiff in a tort suit that arose out of a basketball game at a meetinghouse of the Church of Jesus Christ of Latter-day Saints. Nixon sought to recover damages from the player he viewed as responsible for his injuries—Edward Clay. The issue on appeal is whether the district court erred in adopting a “contact sports exception” in the law of torts. The district court held that “in bodily contact games . . . participants are liable for injuries in [a] tort action only if [their] conduct is such that it is either willful or with a reckless disregard for the safety of the other player.” Applying this “contact sports exception” to the facts of this case, the district court determined that Nixon’s injury arose out of conduct that was not willful or reckless but was inherent in the game of basketball. On that basis the district court held that Clay owed no duty to Nixon. And it granted summary judgment to Clay.

We affirm but on a slightly modified basis. We endorse the idea of an exception to liability arising out of sports injuries. But we do not think the exception should turn on the defendant’s state of mind, or be limited just to contact sports. We instead hold that participants in any sport are not liable for injuries caused by their conduct if their conduct was inherent in the sport. Applying this exception to the facts of this case, we conclude that Clay’s conduct was inherent in the game of basketball. And we affirm the district court’s grant of summary judgment on this basis.

The incident

Judd Nixon and Edward Clay were playing on opposite teams in a church-sponsored recreational basketball game. Nixon dribbled the ball down the court to take a shot. Clay pursued Nixon to try to contest the shot. As Clay approached Nixon’s right side he extended his right arm over Nixon’s shoulder to reach for the ball. Nixon came to a “jump stop” at the foul line and began his shooting motion. When Nixon came to this sudden stop, Clay’s arm made contact with Nixon’s right shoulder. Nixon then felt his left knee pop. Both men fell to the ground.

The referee determined that the contact was not intentional and warranted only a common foul. Nixon unfortunately sustained a serious knee injury in the collision.

And sued.

Based on the court's description, I'd venture that then Senator Scott Brown and I exchanged more flagrant fouls in the 2011 Home Court charity basketball game. 

Title apologies to John Dean. (Mike Frisch)

July 14, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, July 10, 2019

Superior Claim To Art Looted By Nazis

Summary judgment has been affirmed on behalf of plaintiffs seeking recovery of art stolen by the Nazis

This controversy stems from art allegedly looted by the Nazis during World War II. We are asked to decide whether Supreme Court properly granted plaintiffs, Timothy Reif and David Frankel, as co-executors of the estates of Leon Fischer and Milos Vavra (collectively plaintiffs), summary judgment on their claims for conversion and replevin. We find that plaintiffs made a prima facie showing of entitlement to judgment as a matter of law that they have superior title to two pieces of art by Egon Schiele, "Woman Hiding Her Face (1912)" and "Woman in a Black Pinafore (1911)" (collectively the Artworks), and that defendants Richard Nagy and Richard Nagy Ltd. (collectively defendants) failed to raise a triable issue of material fact.

Plaintiffs are the legally declared heirs of Fritz Grunbaum (Grunbaum), a well-known Jewish Viennese cabaret artist and art collector. Grunbaum admired the Viennese modern artist, Egon Schiele, and amassed an 81-piece collection of his work before World War II. After the Nazi invasion of Austria on March 12, 1938, Grunbaum attempted to escape with his wife, Elisabeth "Lilly" (nee Herzl) Grunbaum (Elisabeth), to Czechoslovakia, but was apprehended and arrested by the Nazis on or about March 22, 1938. From the time of his arrest until his murder on or about January 14, 1941, Grunbaum remained imprisoned in various concentration camps, including Buchenwald and Dachau.

This little scheme failed to pass good title

On July 16, 1938, while Grunbaum was imprisoned at Dachau, the Nazis forced him to execute a power of attorney in favor of Elisabeth. Just four days later, pursuant to the purported power of attorney, Elisabeth was compelled to permit a Nazi official named Franz Kieslinger (Kieslinger) to inventory Grunbaum's property, including his art collection, which contained the 81 pieces by Schiele. Kieslinger determined Grunbaum's entire art collection of over 400 pieces to be valued at 5,791 Reichsmarks (RM). Kieslinger inventoried the Schiele pieces as follows: he first listed the five oils by name, then he listed together 55 sheets of "large hand drawings," 20 pencil drawings, and one etching, but gave no more details, nor their titles. Grunbaum's collection also included French watercolors and pieces by artists such as Rembrandt, Degas, Rodin and Durer, all identified by name in the Kieslinger inventory. Only Grunbaum's name appears on the inventory. Elisabeth had her own property and filed a separate declaration on behalf of herself on or about April 27, 1938.

Sometime after it was inventoried, Grunbaum's entire art collection was deposited with Schenker & Co., A.G. (Schenker), a Nazi-controlled shipping company, and marked for "export." On September 8, 1938, the company formally applied for an export license for "Lilly Grunbaum." The license, however, is devoid of customs stamps, meaning that the art collection never legally left Austria. In addition, a subsequently filed statement of assets dated November 12, 1938, lists Grunbaum, "formerly Vienna . . . now Buchenwalde," as still possessing 5,791 RM worth of "pictures and graphics."


Grunbaum was murdered at Dachau on June 9, 1941. Elisabeth signed a declaration before an Austrian notary in connection with obtaining her husband's death certificate, stating, "[T]here is nothing left," in other words, there is no estate. Therefore, "[b]ecause of a lack of goods or property, there [was no] estate proceeding for inheritance" before the Dachau Probate Court. On or about October 5, 1942, Elisabeth was murdered at Maly Trostinec death camp.

The defendant 

Defendant Richard Nagy, who has been an independent art dealer since 1980, first obtained a 50% share in "Woman in a Black Pinafore" from Thomas Gibson Fine Art on or around February 24, 2005, the day after its unsuccessful auction at Sotheby's . In October 2011, he "voided" his interest, given the ambiguity and problems with the provenance. However, he reacquired his interest in the piece on or around December 9, 2013, soon after the Second Circuit affirmed the dismissal of the plaintiffs' claims in Bakalar (see Bakalar, 500 Fed Appx at 6).

Nagy acquired "Woman Hiding Her Face" on December 18, 2013. The Art Sale and Transfer Agreement (the Agreement) for "Woman Hiding Her Face" states that "the heirs of Fritz Grunbaum claim ownership of the Painting on the theory that it was stolen from Mr. Grunbaum when he was deported to a German concentration camp during World War II." Nagy agreed that he would have no claim against the seller if title were declared invalid on that basis.


The tragic consequences of the Nazi occupation of Europe on the lives, liberty and property of the Jews continue to confront us today. We are informed by the intent and provisions of the HEAR Act which highlights the context in which plaintiffs, who lost their rightful property during World War II, bear the burden of proving superior title to specific property in an action under the traditional principles of New York law. We also note that New York has a strong public policy to ensure that the state does not become a haven for trafficking in stolen cultural property, or permitting thieves to obtain and pass along legal title (see e.g. Lubell, 77 NY2d at 320; Reif, 149 AD3d at 533). It is important to note that we are not making a declaration as a matter of law that plaintiffs established the estate's absolute title to the Artworks. Rather, we are adjudicating the parties' respective superior ownership and possessory interests. We find that plaintiffs have met their burden of proving superior title to the Artworks. Defendants raise no triable issue of fact.

(Mike Frisch)

July 10, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, June 27, 2019

Snow White And The Naked Kiss

The Massachusetts Supreme Judicial Court affirmed a conviction for indecent assault and battery in an unusual fact context

While the defendant was naked, he kissed his girlfriend's sister on the mouth, without insertion or attempted insertion of the tongue, while she was sleeping and without her consent. The question is whether such circumstances present sufficient evidence for a conviction of indecent assault and battery on a person over the age of fourteen, in violation of G. L. c. 265, § 13H. We conclude that they do and affirm the judgment.

The victim had fallen asleep on a couch while fully clothed

At some point in the night, the victim awoke to the defendant kissing her on the lips. The defendant was naked, kneeling next to the couch, and hovering over the victim. The victim stood up and shouted, "What are you doing? Why are you doing this?" The defendant replied, "I couldn't help myself. I didn't know what I was doing."

A kiss on the hand may be quite continental; on the lips, quite illegal

Our case law recognizes the mouth is an "intimate part of the body," as "the vast majority of people are very discriminating in who they allow to touch . . . this bodily orifice." Commonwealth v. Rosa, 62 Mass. App. Ct. 622, 625  (2004), quoting People v. Rivera, 138 Misc. 2d 570, 571 (N.Y. Sup. Ct. 1988). See Commonwealth v. Colon, 93 Mass. App. Ct. 560, 562 (2018). Under certain circumstances, touching of the mouth, even without insertion of the tongue, may be considered an indecent act. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 307 (2005). We conclude that such circumstances exist here.

The victim awoke to the defendant hovering over her, naked, and kissing her on the mouth. The victim and the defendant were not in a dating relationship; the defendant was in a relationship with the victim's older sister. See Colon, 93 Mass. App. Ct. at 563 (whether there is existing relationship between victim and defendant should be considered when assessing indecent conduct). The defendant acted surreptitiously, as he acted in the night while the victim and the other occupants of the apartment were asleep, and the victim was unable to consent.


We need not get tangled in whether a fully clothed prince may kiss Sleeping Beauty or revive Snow White. At least while one is naked, when one is not in a preexisting intimate relationship, kissing a sleeping woman, a spellbound princess, or otherwise, is not consistent with our "contemporary moral values." Mosby, 30 Mass. App. Ct. at 184.

(Mike Frisch)

June 27, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, June 4, 2019

All Bets Are Off

Two questions certified by a federal court were answered by the New Jersey Supreme Court

In New Jersey and elsewhere, no one can procure insurance on a stranger’s life and receive the benefits of the policy. Betting on a human life in that way, with the hope that the person will die soon, not only raises moral concerns but also invites foul play. For those reasons, state law allows a policy to be procured only if the benefits are payable to someone with an “insurable interest” in the person whose life is insured. N.J.S.A. 17B:24-1.1(b).

In April 2007, Sun Life Assurance Company of Canada received an application for a $5 million insurance policy on the life of Nancy Bergman. The application listed a trust as the sole owner and beneficiary of the policy. Ms. Bergman’s grandson signed as trustee. The other members of the trust were all investors, and all strangers to Ms. Bergman. The investors paid most if not all of the policy’s premiums.

Sun Life received an inspection report that listed Ms. Bergman’s annual income as more than $600,000 and her overall net worth at $9.235 million. In reality, her income was about $3000 a month, and her estate was later valued at between $100,000 and $250,000. Although Ms. Bergman represented that she had no other life insurance policies, five policies were taken out on her life in 2007, for a total of $37 million.

.Sun Life issued the policy on July 13, 2007. At the time, the trust was the sole owner and beneficiary. The policy had an incontestability clause that barred Sun Life from challenging the policy -- other than for non-payment of premiums -- after it had been “in force during the lifetime of the Insured” for two years. About five weeks after the policy was issued, the grandson resigned as trustee and appointed the investors as successor co-trustees. The trust agreement was amended so that most of the policy’s benefits would go to the investors, who were also empowered to sell the policy.

More than two years later, the trust sold the policy and the investors received nearly all of the proceeds from the sale. Wells Fargo Bank, N.A. eventually obtained the policy in a bankruptcy settlement and continued to pay the premiums.

After Nancy Bergman passed away in 2014, Wells Fargo sought to collect the policy’s death benefit. Sun Life investigated the claim, uncovered the discrepancies noted above, and declined to pay. Instead, Sun Life sought a declaratory judgment that the policy was void ab initio, or from the beginning. Wells Fargo counterclaimed for breach of contract and sought the policy’s $5 million face value; if the court voided the policy, Wells Fargo sought a refund of the premiums it paid.

The court explores the history of life insurance in general and in New Jersey in particular. Notable in the discussion is the impact of the AIDS epidemic on the sale of interest in life insurance proceeds. 

 It's not just a vodka

The policy in question is known as a “STOLI” -- a stranger-originated life insurance policy. Because such policies can be predatory and may involve fraud, other states have adopted legislation that bars them. We now consider STOLI policies as a matter of first impression.


The first certified question poses a supplemental inquiry: If the policy procured violates New Jersey’s public policy, is it void ab initio? When an insurance policy violates public policy, it is as though the policy never came into existence. The policy would be void from the outset.

The second certified question asks, “If such a policy is void ab initio, is a later purchaser of the policy, who was not involved in the illegal conduct, entitled to a refund of any premium payments that they made on the policy?” The traditional rule -- that courts leave the parties to a void contract as they are rather than assist an illegal contract-- has evolved over time. Under the more modern view, equitable factors can be considered to determine the proper remedy. The Court reviews several decisions in which such factors were considered by courts assessing STOLI policies and observes that the fact-sensitive approach adopted in those cases is sound. To decide the appropriate remedy, trial courts should develop a record and balance the relevant equitable factors. Those factors include a party’s level of culpability, its participation in or knowledge of the illicit scheme, and its failure to notice red flags. Depending on the circumstances, a party may be entitled to a refund of premium payments it made on a void STOLI policy, particularly a later purchaser who was not involved in any illicit conduct. The Court notes that the District Court considered equitable principles and fashioned a compromise award but does not comment on the award itself.

(Mike Frisch)

June 4, 2019 in Current Affairs | Permalink | Comments (0)

Friday, May 31, 2019

Facebook Consent Decree Compliance Can Be Explored

The Delaware Court of Chancery has ruled that plaintiffs suing Facebook established a basis to inspect records relating to compliance with a consent decree

In July 2018, Facebook, Inc. (“Facebook” or the “Company”) experienced one of the sharpest single-day market value declines in history when its stock price dropped 19%, wiping out approximately $120 billion of shareholder wealth. This unprecedented misfortune followed news reports that, in 2015, the private data of 50 million Facebook users had been poached by Cambridge Analytica, a British political consulting firm.

Facebook did not disclose this security breach to its users upon discovery or at any time thereafter. Users first learned of the breach when they read or heard about it in the news.

At the time of the Cambridge Analytica breach, Facebook was subject to a consent decree entered by the Federal Trade Commission (the “FTC”) in 2011 (the “Consent Decree”) after the FTC determined that the Company’s data privacy measures were not protecting users’ private information. Among other things, the Consent Decree required Facebook to implement more robust and verifiable data security protocols.

Soon after news of the Cambridge Analytica breach broke, reports surfaced that Facebook’s business model included incentives to monetize its users’ data without their consent. These reports were followed by news that the FTC, Federal Bureau of Investigation (“FBI”), Securities and Exchange Commission (“SEC”), Department of Justice (“DOJ”), European Information Commissioner’s Office (“ICO”) and other European authorities had all opened investigations into Facebook’s data privacy practices.

On April 11, 2018, Plaintiff, Construction and General Building Laborers’ Local No. 79 General Fund (“Local No. 79”),served a demand to inspect Facebook’s books and records (the “Demand”) under Section 220 of the Delaware General Corporation Law (“Section 220”). As required by statute,  Local No. 79 stated that its purpose for inspection was to “investigate and assess the actual and potential wrongdoing, mismanagement, and breaches of fiduciary duties by the members of the Company's Board” in connection with the data privacy breaches and “to investigate the independence and disinterestedness” of the Company’s directors. In response, Facebook produced about 1,700 pages of significantly redacted books and records.

Negotiations over access broke down and suit was filed

Facebook asserted the Complaint failed to plead a credible basis to infer that Facebook’s directors breached their duty of oversight, or any other aspect of their fiduciary duties, because the Cambridge Analytica breach resulted from the unanticipated acts of third parties who had managed to compromise Facebook’s existing (and adequate) data privacy systems.


In the wake of the Consent Decree, Facebook was under a positive obligation to take specific steps to protect its users’ private data. That obligation was firmly in place at the time of the Cambridge Analytica breach. Delaware courts traditionally have viewed stockholder allegations that a board failed to oversee the company’s obligation to comply with positive law, or positive regulatory mandates, more favorably in the Caremark paradigm than allegations that a board failed to oversee the company’s efforts generally to avoid business risk. Plaintiffs have presented “some evidence” that the Board failed to oversee Facebook’s compliance with the Consent Decree resulting in unauthorized access to its users’ private data and attendant consequences to the Company. In other words, Plaintiffs have sustained their minimal burden to demonstrate a credible basis of wrongdoing justifying the inspection of certain of the Company’s books and records. 

Judgment is entered for Plaintiffs. Facebook shall produce for inspection the books and records designated herein as essential to Plaintiffs’ pursuit of their proper purpose.

(Mike Frisch)

May 31, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, May 30, 2019

Unclean Hands: Beware The Bloomingdales Cosmetics Counter

The Maryland Court of Appeals applied the doctrine of "unclean hands" in rejecting the claims of the decedent's third spouse to estate benefits

Robert F. Watkins, Jr. (“the Decedent”) died on August 30, 2014 at the age of 82. He was survived by his third wife of less than two years, Emeline Wilson Watkins (“Emeline”), the appellant; his adult daughter from his second marriage and the personal representative of his estate, Shannon Watkins (“Shannon”), the appellee; and his adult daughter from his first marriage, Hannah Ink (“Hannah”). The Decedent’s second wife of 52 years, Jasmine Watkins (“Jasmine”) predeceased him in 2012.

Mr. Watkins' family had played a role in the development of College Park Maryland

The Decedent’s family owned and managed numerous apartment buildings in College Park, which he inherited. During his marriage to Jasmine, she managed the rental properties by collecting payments, advertising vacancies, paying taxes, and arranging repairs. The Decedent and Jasmine also owned thoroughbred racehorses and maintained an account with Maryland Thoroughbred Purse Account, Inc., in Laurel (“Purse Account”). Their income was derived from these business assets.

The tale turned sad

The Decedent and Jasmine were “snowbirds” who routinely traveled to Hollywood, Florida during the winter months, from December through March, to stay in a house at 937 Adams Street that Jasmine owned (“the Florida Property”). They made their last trip to the Florida Property together in early 2012, shortly before Jasmine died.

During his marriage to Jasmine, the Decedent was physically active and social. He played golf several times each week. He and Jasmine went to the racetrack together multiple times each week, went out to dinner, went to the movies, and hosted family for cookouts and celebrations. Shannon and Jeffrey have two children, and the Decedent was extremely close to them, spending time with them on a weekly basis.

In 2009, Jasmine was diagnosed with bladder cancer. The Decedent was her primary caregiver during her illness, taking her to all her medical appointments. By the end of 2011, Jasmine’s cancer had metastasized and she was terminally ill.

In early 2012, shortly before Jasmine died, the Decedent took her to Bloomingdales in Chevy Chase to buy makeup. Emeline worked at the cosmetics counter and assisted them. Emeline learned during that encounter that Jasmine was sick. Emeline also learned that the Decedent owned racehorses and she expressed interest in seeing his horses race. Emeline and the Decedent later arranged to meet for lunch at a P.F. Chang’s restaurant. Emeline denied that the Decedent disclosed that Jasmine was dying of cancer during their lunch.

Jasmine died on March 17, 2012. According to the Decedent’s longtime friend and lawyer, Mr. Green, the Decedent was “absolutely devastated.” Shannon described him as “despondent” and a “mess.” Jeffrey characterized him as “very depressed.” The Decedent told Jeffrey that there was “no need for [him] to be around anymore.” The day after Jasmine’s funeral, the Decedent drove to Florida alone. He stayed for just a day or two and then drove back. He later told Shannon that he drove “erratically and terribly” because he did not care if he lived or died.

Within weeks of Jasmine’s death, the Decedent was spending most of his time with Emeline. Emeline soon quit her job at Bloomingdales, where she had earned an annual salary of $45,000. Upon being questioned about their relationship, the Decedent told Shannon, Hannah, and other family and friends that he had no intention of marrying Emeline.

But he did

In mid-September 2012, the Decedent took a trip to Florida with Emeline. He stayed for about a week. On September 24, 2012, Emeline and the Decedent were married at the Broward County courthouse. None of their family or friends were present and no one knew about the marriage in advance. The Decedent did not tell Shannon that he had married Emeline for more than a month after they returned. At some point, Emeline called Hannah and told her about their marriage. Emeline was “kind of  laughing” during the phone call. Hannah spoke to the Decedent and he seemed “very matter of fact” about the news.

In late November 2012, the Decedent and Emeline met with Mr. Green, who as mentioned was the Decedent’s close friend and his attorney, at Mr. Green’s law office to discuss matters relative to closing out Jasmine’s estate. During that meeting, Emeline became irate and began screaming and calling Jasmine a “whore” and an “adulteress.” According to Mr. Green, the Decedent “just sat there and did nothing” looking like “a deer in the headlights.” Shannon was in the waiting room during part of the meeting. Mr. Green’s secretary asked Emeline to leave the office. Within days after that meeting, Emeline and the Decedent left for Florida.

The finding in the trial court

Applying Maryland law with respect to the elements of undue influence, the Orphans’ Court found that Emeline took undue advantage of the Decedent’s vulnerability in the immediate aftermath of Jasmine’s death and “physically and emotionally dominated [him]” to induce him to marry her. It concluded, based upon a Florida statute, that Emeline’s conduct deprived her of any entitlement to a share of the Estate.

Emaline did not appeal the undue influence finding but attacked subject matter jurisdiction

While the Florida statute is inapplicable, we may nevertheless affirm the Orphans’ Court’s ruling on any ground adequately shown by the record and which was raised below. The Florida statute, by barring a surviving spouse from receiving a benefit from the estate of a deceased spouse if he or she procured the marriage to the spouse through inequitable conduct, essentially codifies the well-established common law doctrine of unclean hands, recognized by Maryland. The doctrine of unclean hands was argued
before the Orphans’ Court. That doctrine “‘refuses recognition and relief from the court to those guilty of unlawful or inequitable conduct pertaining to the matter in which relief is sought.’” Hicks v. Gilbert, 135 Md. App. 394, 400 (2000) (quoting Manown v. Adams, 89 Md. App. 503, 511 (1991)). The doctrine “is not applied for the protection of the parties nor as a punishment to the wrongdoer; rather, the doctrine is intended to protect the courts from having to endorse or reward inequitable conduct.” Adams v. Manown, 328 Md. 463, 474-75 (1992). For that reason, “an important element of the clean hands doctrine is that the alleged misconduct must be connected with the transaction upon which the claimant seeks relief.” Id. at 475. In other words, “[i]t is only when [a party’s] improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this conduct. ‘What is material is not that the [party’s] hands are dirty, but that he dirties them in acquiring the right he now asserts.’” Id. at 476 (quoting D. Dobbs, Remedies § 2.4 at 46 (1973) (footnote omitted))

While our research reveals no Maryland cases applying the doctrine of unclean hands under similar facts to those before us, at least one sister court has held that a person who “procured [a] marriage . . . through overreaching and undue influence” “forfeited any rights that would flow from the marital relationship, including the statutory right she would otherwise have to an elective share of [her deceased spouse’s] estate.” Campbell v. Thomas, 897 N.Y.S.2d 460, 471 (N.Y. App. Div. 2010)

(Mike Frisch)

May 30, 2019 in Current Affairs | Permalink | Comments (0)

Monday, May 20, 2019

No Territorial Criminal Jurisdiction In New Jersey For Drug-Induced New York Death

The New Jersey Supreme Court has held that defendants cannot be convicted for a death in New York

In a criminal prosecution, the State must have territorial jurisdiction to enforce its laws against a defendant. Defendant Shameik Byrd sold heroin to defendants Noel Ferguson and Anthony Potts in Paterson, New Jersey. Afterwards, Ferguson and Potts returned to their home state of New York where they sold the heroin they purchased to Kean Cabral. Cabral died of an overdose after taking the heroin originally sold by Byrd. New Jersey criminalizes as a strict-liability offense illicitly distributing drugs that cause death to the user. New York does not. The issue is whether New Jersey has territorial jurisdiction to prosecute the three defendants under its strict-liability statute, N.J.S.A. 2C:35-9, for Cabral’s drug-induced death in New York...

Under N.J.S.A. 2C:1-3(b), courts cannot impute or infer a legislative purpose. A legislative purpose to extend the statute beyond New Jersey’s borders must “plainly” appear. Upon review of the legislative declarations codified as part of the Comprehensive Drug Reform Act of 1987, see N.J.S.A. 2C:35-1.1, the Court cannot discern a plain legislative purpose calling for Byrd’s prosecution for the strict-liability drug-induced death of Cabral, when New York, where the death occurred, would not prosecute such an offense.

(Mike Frisch)

May 20, 2019 in Current Affairs | Permalink | Comments (0)

Tuesday, May 14, 2019

Sweat Lodge In High Desert

A claim that a state prisoner was denied religious freedom found some favor in the Nevada Supreme Court

David August Kille, Sr., is incarcerated and in protective custody at High Desert State Prison (HDSP), which is operated by Nevada Department of Corrections (NDOC). While incarcerated, Kille filed several grievances with NDOC, arguing that he had been wrongly denied the right to participate in Native American sweat lodge and sacred pipe ceremonies. NDOC denied each grievance, concluding that Kille had no right to participate in the ceremonies because he failed to provide tribal affiliation paperwork or otherwise failed to demonstrate Native American association or ethnicity pursuant to the NDOC's Religious Practice Manual.

He sued and lost in the district court on summary judgment

As to the substance of Kille's equal protection claim, the State does not dispute that Kille is a sincere practitioner of a Native American religion. Therefore, Kille is similarly situated to Native American inmates who wish to engage in sweat lodge and sacred pipe ceremonies. However, the NDOC policy prohibits equal consideration of Kille's request for religious exemptions based solely on his inability to prove Native American association or ethnicity and the State acknowledges that Native American inmates are the only group required to demonstrate association or ethnicity in order to participate in ceremonies. Thus, the policy is facially discriminatory because it imposes differential treatment based on ethnicity or ancestry and, as applied to Kille, denies his right to have his religious request considered equally with those prisoners who can prove Native American heritage. See Morrison, 239 F.3d at 661-62. While safety and security are legitimate penological interests, the State fails to present any evidence that the association or ethnicity requirement is reasonably related to that interest. The State argues that it "provided admissible evidence of actual security concerns and destruction of property rather than hypothetical concerns," but it fails to point to any specific evidence in this regard. Calderin's affidavit stating that he is "familiar that there have been incidents at various institutions where Native American inmates have destroyed their lands or their sweat lodge because they believed it has been desecrated" by non-Native American inmates entering the lands is not sufficient to show that the ethnicity-based policy of denying sweat lodge and sacred pipe ceremony practices is rationally related to the goal of prison safety and security. As explained in Morrison, such evidence, at best demonstrates that some Native Americans at other institutions "were offended by white inmates practicing Native American rituals." 239 F.3d at 661. As the policy is facially discriminatory and is not reasonably related to legitimate penological interests, we conclude that the State's association or ethnicity-based policy violated Kille's equal protection rights.

The case is DAVID AUGUST KILLE, SR. vs. JULIO CALDERIN et al. (Mike Frisch)

May 14, 2019 in Current Affairs | Permalink | Comments (0)

Friday, April 26, 2019

Kansas Upholds Woman's Right To Choose

The Kansas Supreme Court upheld the right to choose 

Section 1 of the Kansas Constitution Bill of Rights provides: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, "Yes."

We conclude that, through the language in section 1, the state's founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6. Included in that limited category is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental.

Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. And we thus join many other states' supreme courts that recognize a similar right under their particular constitutions.

Finally, we conclude that the plaintiffs Herbert C. Hodes, M.D., Traci Lynn Nauser, M.D., and Hodes & Nauser, MDs, P.A. (Doctors) have shown they are substantially likely to ultimately prevail on their claim that Senate Bill 95 violates these principles by severely limiting access to the safest procedure for second-trimester abortions. As a result, we affirm the trial court's injunction temporarily enjoining the enforcement of S.B. 95 and remand to that court for full resolution on the merits.

Biles, J. concurred

But to be clear from the outset, I join the other members of this court who unanimously agree section 1 of the Kansas Constitution Bill of Rights provides all Kansans, including pregnant women, with state-based, judicially enforceable protections against unwarranted government intrusion. Some cast this as a right to abortion, others as a limitation on state police powers, but the bottom line is the same: those challenging government conduct as an unlawful restriction on their protected section 1 interests may do so in a Kansas courtroom. The difference in our approaches is the standard used to measure where our state Constitution draws the line...

More disturbingly, consider how the dissent's standard perfectly aligns with this notorious passage from our American caselaw:

"In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as a matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizen for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. [Citation omitted.] Three generations of imbeciles are enough." Buck, 274 U.S. at 207.

...All agree this court should interpret the Kansas Constitution in accordance with the framers' intent and the values expressed by its words. Both the majority and the dissent devote nearly 108 pages discussing historical lineage for those words. And it is a demanding read. I hope those reviewing my colleagues' history lessons will accept the exercise for what it obviously is—hard working judges trying to honestly answer the questions presented in good faith. But for me, an originalism search gets us only so far when divining meaning for words with such obvious open-ended qualities as "liberty" or "inalienable natural rights." The historical back-and-forth really just boils down to how much weight is given one selected fact over another.

I believe our framers had to understand this interpretative dynamic and picked those particular words because they require contemporary context. This means we must apply what "liberty" and "inalienable natural rights" mean in the real world today for a pregnant woman. In doing so, that necessarily demonstrates meaningful limitations on the government's ability to elbow its way into the decisions she must make concerning her pregnancy.

The district court did not abuse its discretion by temporarily enjoining S.B. 95's enforcement pending trial.

STEGALL, J., dissenting:

This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government. Which is to say, this case is about the proper conditions for just rule. At bottom, this case is about finding and drawing the sometimes elusive line between law and arbitrary exercises of power. Here we venture onto a battlefield as old as politics itself. And as we argue about the structure of government—and ultimately delineate the proper conditions for just rule—we must never forget that we are also actively engaged in ruling.

The structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare.

Today, a majority of this court dramatically departs from this consensus. Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of common good and onto the uncertain waters of the sea-of-fundamental-values. Today we issue the most significant and far-reaching decision this court has ever made.

The majority's decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state—all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion. In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice. For these reasons, I dissent.

Oral argument video linked here. The argument is 2 1/2 hours. (Mike Frisch)

April 26, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, April 17, 2019

A Pyrrhic Victory In The Battle Over Marox And Winnie

The Rhode Island Supreme Court dealt with the fallout of a 23-year marriage that ended

The parties to this appeal are former spouses who, in the written terms of their divorce, had agreed that the plaintiff would have full ownership and control of the two dogs they had acquired during their marriage, but that the dogs would spend two days each week (Tuesday to Thursday) with the defendant.  After a few months, the plaintiff withheld the dogs from their weekly visitations with the defendant, and the defendant sought a court order to enforce the agreed-upon schedule.  The plaintiff also filed a motion for relief, claiming that the defendant had not been properly caring for the dogs while they were in his control; she requested that the Family Court find the relevant term of the Marital Settlement Agreement (MSA) to be inequitable and restrain the defendant from having any further time with the dogs.  After a daylong hearing, the Family Court justice found that both parties loved the dogs and wanted to care for them and that the defendant had always acted in good faith with respect to the dogs.  The Family Court justice granted the defendant’s motion for relief and ordered the parties to continue with the schedule set out in the MSA.
The plaintiff appealed from the order, arguing that the Family Court justice had misconceived material evidence before her, was clearly wrong to conclude that the defendant had acted in good faith, was clearly wrong to conclude that the MSA was not inequitable as written, and that she erred by not reforming the MSA.  The Supreme Court held that the Family Court justice neither misconceived the evidence nor was clearly wrong in her findings of fact.  The Court also held that it was not inequitable to enforce the visitation term in the MSA as written, and, therefore, affirmed the order of the Family Court. 

The objects of affection

Paragraph fourth of the MSA gave Diane “all right title and interest in and to [the two dogs:] the greyhound ‘Marox’ and the Chihuahua ‘Winnie.’ [Paul] [was] permitted to take the dogs for visits from Tuesday morning at 8 a.m. through Thursday morning at 8:00 a.m.”

All went well for about six months

Diane claimed that Paul had not properly cared for the dogs when they were with him and had attempted to keep the dogs away from her, thereby breaching the MSA. Diane sought to enjoin and restrain Paul from having any time with the dogs.

Evidence at hearing

She testified that Marox returned from one visit with one of his claws damaged, hanging and bleeding. Marox returned from another visit with a “huge bubble on his lip.” Diane took Marox to the vet both times. According to Paul, the MSA gave Diane complete control over the care of the dogs, such that he could not take them to the vet or make any decisions about their care. He testified that all he could do was play with them. He also testified that he heard about the damaged claw for the first time while in court and that the bubble on Marox’s lip had appeared while he was away for a two-week work-related trip.

According to Diane, the final straw for her occurred on March 29, 2017, the last day she allowed Paul his visitation with Marox and Winnie. That afternoon, Paul had contacted Diane because the dogs were acting strangely and Winnie was whimpering. Paul testified that he knew something was wrong with Winnie because he “let out a cry” when Paul picked him up to put him on Paul’s bed.  Paul called Diane and held the phone close to Winnie so Diane could hear the tone of the whimper. The erstwhile spouses argued through text messages about whether Diane would pick up only Winnie to take him to the vet or whether she would pick up both dogs because, according to Diane, the dogs became anxious when they were separated. Diane and Paul eventually agreed that Diane would pick up both dogs so she could take Winnie to the vet.

When Diane arrived at Paul’s house, however, Marox was missing. Paul testified that he had let the dogs out to relieve themselves and he thought both dogs had returned inside the house, but then he could not find Marox.  Diane testified that Marox’s disappearance was posted on Facebook and that she, friends, and neighbors spent an hour and a half looking for the greyhound. Paul testified that his sister helped in the search as well. Diane testified that she “was so upset and hysterical” during the search effort that she “was puking on the side of the road.” Eventually, Paul found Marox, who had apparently been in his house the entire time, stuck in a closet. Paul had been tipped off by Winnie, who was sitting outside the closed closet door. According to Diane, when she saw Marox, the dog was in Paul’s arms, “violently shaking, like it was traumatized.” Diane testified that she “was already hysterical at that point[,] [but] then [she] went right over the top, screaming and yelling and swearing at the top of [her] lungs.”

Paul also testified that he was emotional on March 29, crying over Marox’s disappearance both before Diane arrived and throughout the search for Marox. He stated that he had not tried to trick Diane by hiding Marox in a closet and then claiming Marox had run off, and that he had been genuinely confused because, after he had spoken with Diane on the phone, he had let the dogs out to relieve themselves and thought that both dogs had come back inside. He testified that he had tried to see the dogs in the weeks following March 29, but Diane had not responded to his communications. During his testimony, Paul’s distress about the litigation over the dogs was palpable.

At the end of the hearing, Diane argued that the hearing justice should withdraw the court’s approval of the MSA because, in light of the incidents described during the testimony, the MSA provision allowing Paul weekly visitation was inequitable. For his part, Paul argued that Diane had breached the terms of the MSA, which she had effectively admitted when she stated that she had not allowed him to see the dogs since March 29.

Diane lost and appealed

Diane contends that, because the dogs are chattel, Paul had an obligation to return the dogs to her in an undamaged condition. Because he did not meet this obligation, she asserts, allowing Paul to have the dogs two days a week is inequitable. Diane further argues that, pursuant to Gorman v. Gorman, 883 A.2d 732 (R.I. 2005), the hearing justice should have withdrawn the court’s approval of the MSA and reformed the MSA.   Paul briefly responds that the hearing justice did not either overlook or misconceive any of the testimony she heard or evidence she reviewed.

Winners can lose

As Paul points out, his victory in this case may be pyrrhic because of Marox’s and Winnie’s advanced ages. Some of us are reminded of the remark that: “Dogs’ lives are too short. Their only fault, really.” Agnes Sligh Turnbull, The Flowering: A Novel 69 (Houghton Mifflin Company 1972).

If they had had children? (Mike Frisch)

April 17, 2019 in Current Affairs | Permalink | Comments (0)

Wednesday, April 10, 2019

Law In Action

Whenever a court improves access to information, I am moved to applaud.

Today's nachas to the Tennessee Supreme Court, which now provides online links to oral arguments bef ore the court.

Of interest 

Polly Spann Kershaw v. Jeffrey L. Levy - M2017-01129-SC-R11-CV

This case is a legal malpractice lawsuit in which the plaintiff claims she suffered financial harm and was convicted of criminal contempt as a result of the defendant’s negligent representation of the plaintiff in her divorce case.  The defendant moved for summary judgment, arguing that the plaintiff’s claims were barred under the judicial estoppel doctrine.  The trial court granted summary judgment, and the Court of Appeals affirmed the trial court’s judgment.  The plaintiff argues before the Supreme Court that the doctrine of judicial estoppel should not apply when the defendant’s own negligence caused the plaintiff to “settle in a compromised position.”

Dialysis Clinic, Inc. v. Kevin Medley, et al M2017-01352-SC-R11-CV 

This case considers whether the attorney-client privilege applies to communications between an attorney and a corporate client’s third-party agent.  The trial court in this case denied the defendant’s motion to compel the production of roughly 200 emails based on attorney-client privilege.  The defendants argue that the trial court denied them their procedural due process rights and that there is an absence of law regarding the standards for determining third-party agency privilege in Tennessee.  In response, the plaintiff argues that the trial court properly held that communications by and between plaintiff’s counsel and the third party were protected by the attorney-client privilege.  The plaintiff also argues that the Tennessee Supreme Court already has determined attorney-client privilege as it pertains to a third-party agent.

Enjoy! (Mike Frisch)

April 10, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, April 4, 2019

Hostile Work Environment Claim Rejected

An appeal of a bus driver's dismissed claim of hostile work environment was rejected by the New Jersey Appellate Court

plaintiff argues that "the trial court erred in granting defendants' motion for summary judgment and dismissing [his] claim for hostile work environment based upon perceived disability under" the LAD. We disagree.

The basis of the claim

Plaintiff began working as a bus driver for defendant Community Bus Lines, Inc. (Community) in 2005. In order to maintain his employment as a bus driver, plaintiff must hold a valid Commercial Driver's License (CDL). The United States Department of Transportation (DOT) requires all CDL holders to pass a medical examination every two years and obtain a medical certification card verifying that they are fit to drive.

During the ten years he worked for Community as an active driver, plaintiff weighed between 500 and 600 pounds. He passed his required medical examinations during this period, and Community recognized his accomplishments on the job by giving him several awards. As a bus driver, plaintiff was required to inspect his bus before beginning his route, and inspect it again at the conclusion of his work day. Combined, these tasks took approximately forty minutes to complete. Plaintiff drove his bus during the remainder of his shift. At the end of the day, plaintiff sometimes spent time in Community's breakroom talking and joking with the other drivers. Plaintiff testified at his deposition that the drivers were his friends. He also only had contact with his supervisors when he was at the Community depot.

Plaintiff testified that the other drivers and his supervisors regularly made rude comments to him about his weight. Among other things, they told plaintiff that he was "fat," "must weigh a thousand pounds," would likely eat all the food out of the snack machines, was "as big as a bus" or "a 747," and might break chairs if he sat on them. At the same time, however, plaintiff conceded that he made jokes with, and teased, other employees at the depot. He referred to himself as "fat boy" in the presence of his coworkers, and also admitted that he called himself "fat" on his Facebook page, where he had "friended" some of the other drivers so that they could view and comment on his posts.

Although plaintiff was a union member, and alleged that he complained to his supervisors about the remarks he heard at work, he presented no documentation to support this assertion. Plaintiff's supervisors denied ever hearing any comments of this nature, and stated that plaintiff never complained about anything during his employment. The supervisors also testified that no one at Community viewed plaintiff as disabled; instead, he was a valued employee and a good driver.

Issues arose after a series of medical exams revealed some serious health issues but did not establish plaintiff was disabled.


Even assuming that plaintiff had established that he was disabled within the intendment of the LAD, the judge found no merit to plaintiff's assertion that he was subjected to a hostile work environment in violation of the LAD.


obesity alone is not protected under the LAD as a disability unless it has an underlying medical cause, a condition that plaintiff failed to meet in the present case. Viscik, 173 N.J. at 17. Here, plaintiff did not establish that defendants viewed him as anything other than obese, which is not a protected class under the LAD. Just as significantly, he did not demonstrate that defendants perceived him as being disabled.

In this regard, the record was one-sided in support of the fact that plaintiff's supervisors never took any actions to change the conditions of his employment as the result of any "perceived disability." For the ten years plaintiff worked at Community, he drove a regular route, and never alleged that he received less pay than other drivers or had to work longer or fewer hours. In fact, Community recognized plaintiff's good work on several occasions by giving him awards.

In addition, plaintiff passed each of his mandatory medical examinations between 2005 and 2015 even though he weighed over 500 pounds from the date of his hire. Both of his supervisors testified that they did not consider plaintiff to be disabled, and neither of the independent doctors who examined plaintiff ever made that determination...

Because plaintiff was not able to demonstrate that he suffered from a disability or a perceived disability covered by the LAD, the judge properly dismissed his hostile work environment claim. Even if this were not the case, we discern no basis for disturbing the judge's conclusion that plaintiff also failed to demonstrate that the comments his coworkers made to him about his weight created such an environment...

Community never fired plaintiff, and kept his job open in the hope that he would be able to pass his licensing examination. Under the totality of these circumstances, we agree with the judge that the cumulative effect of the coworkers' comments was not sufficiently "severe or pervasive" to create an actionable hostile work environment claim under the LAD.

(Mike Frisch)

April 4, 2019 in Current Affairs | Permalink | Comments (0)

Thursday, March 14, 2019

Sandy Hook Plaintiffs' Case Survives On Single Claim

The Connecticut Supreme Court has ruled in the high-profile litigation arising out of the Sandy Hook that defendants may be liable on a theory of knowingly marketing the weapon for offensive operations 

From the majority opinion

On December 14, 2012, twenty year old Adam Lanza forced his way into Sandy Hook Elementary School in Newtown and, during the course of 264 seconds, fatally shot twenty first grade children and six staff members, and wounded two other staff members. Lanza carried out this massacre using a Bushmaster XM15-E2S semiautomatic rifle that was allegedly manufactured, distributed, and ultimately sold to Lanza’s mother by the various defendants in this case. There is no doubt that Lanza was directly and primarily responsible for this appalling series of crimes. In this action, however, the plaintiffs—administrators of the estates of nine of the decedents—contend that the defendants also bear some of the blame. The plaintiffs assert a number of different legal theories as to why the defendants should be held partly responsible for the tragedy. The defendants counter that all of the plaintiffs’ legal theories are not only barred under Connecticut law, but also precluded by a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), Pub. L. No. 109-92, 119 Stat. 2095 (2005), codified at 15 U.S.C. §§ 7901 through 7903 (2012), which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. See 15 U.S.C. §§ 7902 (a) and 7903 (5) (2012).

For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semi automatic rifles—which were legal at the time—to the civilian population, the defendants became responsible for any crimes committed with those weapons.

The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers.

Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.

The court's reasoning

We are confident...that, if there were credible allegations that a firearms seller had run explicit advertisements depicting and glorifying school shootings, and promoted its products in video games, such as ‘‘School Shooting,’’ that glorify and reward such unlawful conduct, and if a troubled young man who watched those advertisements and played those games were inspired thereby to commit a terrible crime like the ones involved in the Sandy Hook massacre, then even the most ardent sponsors of PLCAA would not have wanted to bar a consumer protection lawsuit seeking to hold the supplier accountable for the injuries wrought by such unscrupulous marketing practices. That is not this case, and yet the underlying legal principles are no different. Once we accept the premise that Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices promoting criminal conduct, and given that statutes such as CUTPA are the only means available to address those types of wrongs, it falls to a jury to decide whether the promotional schemes alleged in the present case rise to the level of illegal trade practices and whether fault for the tragedy can be laid at their feet.

A dissent would strike the case in its entirety.

In summary, whether this court agrees with Congress or not, in adopting the arms act, Congress adopted findings and statements of purpose in 15 U.S.C. § 7901; see footnote 1 of this dissenting opinion; which made very clear its intent to absolve defendants like these— gun manufacturers and distributors—from liability for criminal use of firearms by third parties except in the most limited and narrow circumstances and, particularly, to shield them from novel or vague standards of liability. This court is obligated, therefore, to construe the predicate exception to the arms act, 15 U.S.C. § 7903 (5) (A) (iii), narrowly in light of that clear expression of congressional intent.

(Mike Frisch)

March 14, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, March 3, 2019

A Win For The Winklevi

The Delaware Court of Chancery dismissed counterclaims brought against the real Armie Hammer[s]

Plaintiffs, brothers Tyler and Cameron Winklevoss, through Winklevoss Capital Fund, LLC, made a substantial investment in an upstart magazine operated by Defendant, Treats! LLC, and founded by Defendant, Stephen Shaw. Plaintiffs allege they have not achieved the return on investment promised them by Defendants and that Shaw’s mismanagement of Treats! is to blame. Defendants deny the allegations of mismanagement and bring counterclaims against the Winklevoss brothers in which they allege the brothers breached commitments to allow Treats! to announce and capitalize on the publicity surrounding the brothers’ investment.

According to the counterclaims, the brothers made their investment in Treats! soon after the release of the movie The Social Network in which their association with the social networking site, Facebook, was depicted. Shaw allegedly accepted the investment, in part, based on the brothers’ commitment that Treats! could announce (presumably with some fanfare) that the brothers had selected Treats! as one of the first investments of their newly created firm, Winklevoss Capital Fund, LLC. The counterclaims purport to state claims for fraud, fraudulent inducement, “fraudulent misrepresentation” and promissory estoppel.

Defendants have moved to dismiss the counterclaims on multiple grounds, including that the claims are barred by laches and by a fully integrated contract governing the parties’ relationship that makes no mention of the brothers’ alleged commitment to promote Treats!. In rare circumstances, the Court may apply laches at the pleadings stage to bar a claim when it is clear on the face of the claim that it is untimely and that equity would not be offended by the claim’s dismissal. This is especially so when the claimant brings common law claims and seeks common law remedies after the applicable statute of limitations has expired. That is what Defendants/Counterclaim Plaintiffs have done here. Accordingly, Plaintiffs’ Motion to Dismiss Defendants’ Counterclaims as time barred must be granted.

The allegations

In early 2011, a mutual friend introduced Shaw to Cameron and Tyler. When they met Shaw, Cameron and Tyler were seeking to strengthen their Los Angeles network. Shaw, a professional photographer well known to many celebrities, opened the door to his social circle for Cameron and Tyler by introducing them to his friends, inviting them to exclusive dinners and parties and photographing their various girlfriends.

When Cameron and Tyler learned about Treats!, they were intrigued and offered to invest in the company. They emphasized to Shaw the potential significance of the fact that Treats! would be the first investment they made through their newly-formed investment firm, WCF. Shaw believed Treats! would develop into a lifestyle brand and he thought a partnership with WCF would provide the perfect launch pad. The notoriety of the Winklevoss brand following the release of the blockbuster film, The Social Network, in which the brothers were depicted, was the main attraction for Shaw as he sought to secure their investment in, and promotion of, Treats!.

WCF invested 1.31 million dollars.

Following WCF’s investment, the parties’ relationship was marked by a consistent refrain. Shaw pressed the brothers to promote Treats! while the brothers pressed Shaw to enhance their personal and professional profiles. For example, Defendants allege that, on October 4, 2012, Tyler asked Shaw to arrange a “special casting” with multiple women he selected from Facebook and a modeling agency’s website. Tyler followed this request on October 17, 2012, with further direction to Shaw: “[d]on’t hire any of them . . . get their details and call the hot ones up, invite them, and then I can shag them ;).” Shaw refused.

It got worse

As Shaw was accusing the brothers of failing to honor their promise to promote Treats!, the brothers were accusing Shaw of mismanagement and failing to grow Treats! as promised.

Litigation followed as night follows day.

As to the counterclaims

Delaware’s statute of limitations for claims sounding in fraud or promissory estoppel claims is three years...

The allegations in the counterclaims reveal that Defendants’ claims accrued for statute of limitations (and laches) purposes no later than June 17, 2013.

The counterclaim came two years too late but

For the reasons stated above, I am satisfied Defendants’ counterclaims must be dismissed as time-barred because they were filed after the expiration of three year statute of limitations and no tolling doctrine applies. With that said, Defendants may present evidence of Plaintiffs’ alleged fraud and broken promises in order to set off any potential damages arising from the affirmative claims asserted against them. In this regard, I note that Defendants have asserted as affirmative defenses fraud, fraudulent inducement, fraudulent misrepresentation, and unclean hands, among others, based on the same facts alleged in the counterclaims. I can discern no basis to restrict Defendants from presenting evidence of the Defendants’ failure to honor agreements to promote Treats! as grounds to defend against Plaintiffs’ claim that Defendants have not delivered all that was promised. Counterclaims based on this evidence, however, are time-barred.

Vice Chancellor Slights authored the opinion. (Mike Frisch)

March 3, 2019 in Current Affairs | Permalink | Comments (0)

Friday, February 8, 2019

Topless In New Hampshire: Crime Or Gender Discrimination?

The New Hampshire Supreme Court has affirmed three public nudity ordinance violations. 

Defendant Pierro

The following facts are drawn from the trial court’s order on the defendants’ motion to dismiss or are otherwise supported by the record. On May 28, 2016, Pierro went to Endicott Park Beach in Laconia. At the hearing on the defendants’ motion to dismiss, Pierro testified that she “was topless” and was there “to enjoy the beach.” She agreed with defense counsel that she was “performing yoga on the beach.” She stated that she “was violently harassed” by “[s]everal citizens,” but that “out of everybody on the beach, there were only actually a handful that were upset.”

Sergeant Black of the Laconia Police Department testified that, on that same day, he and Officer Callanan responded to the beach because the department had “received several calls about a female . . . doing nude yoga.” Callanan testified that they approached a woman, later identified as Pierro, who was “not wearing any shirt and her breasts, as well as her nipples, were both exposed.” Callanan stated that she “made attempts to speak to” Pierro, but that Pierro “continued to do her yoga poses.” She explained that “after
about a minute or so, [Pierro] looked up and acknowledged that we were, in fact, trying to speak to her.” She testified that they “explained to [Pierro] that the reason [they] were making contact with her was in reference to a Laconia City Ordinance, since her nipples were exposed on the beach in a public place.” Callanan stated that they asked Pierro “multiple times to cover up, to put her bathing suit top back on, or put her shirt back on,” but that Pierro “refused.

Defendants Sinclair and Libbey

In 2015, Sinclair became involved in the “Free the Nipple” movement. Sinclair testified that she was one of the people who “started” the movement in New Hampshire after having her son and realizing “that there was a very big stigma on breastfeeding.” She explained that she believed that breasts, specifically nipples, are “hypersexualize[d]” and “consider[ed] pornographic and taboo,” which she stated results “in that stigma” and “contributes to the low breastfeeding rates that the United States has compared to the rest of the world.” Sinclair told Lilley about the movement, which Lilley then joined. Lilley testified that she is “a feminist” and joined the movement because she “believe[s] in the equality of the male and female.”

On May 31, 2016, Sinclair and Lilley went topless to Weirs Beach in Laconia. While at the beach, they were arrested for violating the ordinance. Sinclair testified that she “purposely engaged in civil disobedience knowing that the City of Laconia has an ordinance against the exposure of the female nipple and areola.” She stated that she was “protesting [Pierro’s] case where she had been arrested a few days prior.” Lilley testified that she was also protesting Pierro’s arrest and that she “announced to the arresting police officer that [she] was acting in a protest and that [she] did not believe that [she] could be arrested for protesting.” She further agreed with the prosecutor that, on that day, she “chose to take it upon [herself] to violate the ordinance to give attention to [her] cause.”

The court majority rejected both Constitutional and state claims raised by the defendants.

LYNN, C.J., and DONOVAN, J., concurred; BASSETT, J., with whom HICKS, J., joined, concurred in part and dissented in part.

We agree with our colleagues in most respects: Laconia’s ordinance does not violate the defendants’ rights to freedom of speech and expression; it falls within the regulatory authority of the City of Laconia; it is not preempted by statute; and it does not violate RSA chapter 354-A. However, we part company with the majority when it rejects the defendants’ equal protection claim. We strongly disagree that rational basis is the lens through which the defendants’ equal protection challenge should be analyzed. Laconia’s ordinance facially classifies on the basis of gender: if a woman and a man wear the exact same clothing on the beach, on Laconia’s main street, or in a backyard “visible to the public,” the woman is engaging in unlawful behavior— but the man is not...

We agree with the reasoning of the Seventh Circuit. Public nudity ordinances such as the ordinances in Chicago and Laconia — i.e., those that use explicit, gendered language to make it unlawful for a female to engage in certain behavior, while the same behavior is lawful for a male — clearly classify by gender. The majority asserts that such reasoning is “flawed” and “deceptively simple.” We fail to see the flaw or deception in our simple reasoning: when a law uses the word “female” to classify between those who
can violate the ordinance — females — and those who cannot — males — it contains a gender-based classification. We freely acknowledge that the question of whether basic physiological differences between the sexes justify disparate treatment of men and women is a more nuanced and complicated question. But classification and justification present different questions.

Respectfully, we find the reasoning of the majority — which obscures the simple threshold question — needlessly convoluted and artificially complex. Indeed, a court upends the safeguards of equal protection if it reasons that, because a law is premised upon physiological or anatomical differences between the sexes, the law does not classify by gender and therefore it need not be analyzed under strict scrutiny. For example, because women have a longer life expectancy than men, by the majority’s reasoning, a hypothetical law that mandates that women work four years longer than men in order to qualify for a pension, or prevents women from retiring until age 70 as opposed to age 66 for men, or reduces a woman’s social security benefits if she retires at the same age as a man, does not classify on the basis of gender. Such a law would be constitutional so long as it was “rationally related to a legitimate government interest.” Boulders, 153 N.H. at 641. Analyzing whether a law comports with equal protection does not require that the court be blind to basic physiological or anatomical differences. In some cases, applying the constitutionally required level of scrutiny, this court might conclude that such differences justify disparate treatment under the law. However, a court subverts the basic guarantee of equal protection if it concludes that, because men and women have physiological or anatomical differences, a law that classifies on the basis of those differences does not trigger strict scrutiny.


A court would no longer say, as a Supreme Court Justice did over 100 years ago, that a woman did not have a right to practice law because “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. . . . This is the law of the Creator. . . . [T]he rules of civil society must be adapted to the general constitution of things . . . .” Bradwell v. The State, 83 U.S. 130, 141-42 (1872) (Bradley, J., concurring). We revisit that bygone era, and thwart the very protections the Equal Rights Amendment was enacted to provide, if we allow stereotypical notions about women’s bodies to alter our analysis of the straightforward question of whether Laconia’s ordinance classifies on the basis of gender. This is precisely why the New Hampshire Constitution requires that legislation which discriminates on the basis of a suspect classification be subject to strict scrutiny.

The law has often been used to perpetuate discrimination based on “public sensibilities” or “common understandings” about individuals on the basis of immutable characteristics — however misinformed or ill-motivated those understandings might be. “One of the most important purposes to be served by the Equal Protection Clause is to ensure that ‘public sensibilities’ grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government.”

The ordinance does not withstand strict scrutiny

applying the strict scrutiny standard required by Part I, Article 2, we conclude that the State has not carried its burden to prove that its asserted interests are compelling and that Laconia’s ordinance is necessary and narrowly tailored.

...over four decades, we have fashioned an analytical framework which subjects laws that distinguish on the basis of gender to the highest level of constitutional scrutiny: strict scrutiny. See Holbrook, 140 N.H. at 189; Sandra H., 150 N.H. at 637; LeClair, 137 N.H. at 222. However, perhaps mindful of the State’s obvious failure to present evidence sufficient to meet the exacting burden of strict scrutiny in this case, the majority strains to conclude that an ordinance that prohibits women — but not men — from engaging in certain behavior does not discriminate on the basis of sex, but is, in fact, gender-neutral. Such an approach is not in service of our constitutional role: it is an abdication of it.

The Laconia Daily Sun covered the controversy. (Mike Frisch)

February 8, 2019 in Current Affairs | Permalink | Comments (0)