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Legal Tender: Grandpa the Lawyer
Legal Spotlight |
2008/03/03 04:09
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Two days after D.C. super-lawyer Bob Bennett released his new memoir, yet another VIP client landed in trouble -- John McCain, with the New York Times' controversial story about his friendship with lobbyist Vicki Iseman-- and suddenly Bennett was on every TV channel holding forth. Fortunate timing for a new author? Actually, the opposite: The well-connected Bennett said he had already scored the airtime to flack his book; he then used his moments on camera to defend the GOP front-runner and shift the debate to media ethics. "I've always said: It's better to be lucky than good," he said with a laugh at a party in his honor Friday night at the Hay-Adams. He's the Other Bennett: Big brother to conservative pundit Bill and a former federal prosecutor turned go-to guy for bigwigs in peril -- Bill Clinton in the Paula Jones case, Paul Wolfowitz in the World Bank ethics scandal, Judy Miller in the CIA leak investigation. In "In the Ring: The Trials of a Washington Lawyer," he writes: "I have often felt that being born in Brooklyn and having a few hundred street fights under my belt was better preparation for practicing law here than receiving law degrees from Georgetown and Harvard." But he was a big softy Friday night, doting on wife Ellen, his daughters and new grandchild, greeting a crowd heavier on friends and neighbors ( Esther Coopersmith, Steve Trachtenberg, Mac McLarty, a whole lotta lawyers) than former clients. He told us that all trial lawyers are deeply superstitious (in court, he always makes a point of mentioning his girls and their favorite storybook character, Alice in Wonderland) and that he was reluctant to write about his childhood. But then he realized how much his parents' divorce, his mother's drinking and his role as a big brother molded him as a lawyer: "What really turns me on in the law is when I have an individual to protect." |
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Busy judge pulls plug on stock option class action
Legal Spotlight |
2008/01/24 04:46
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More than a year after Madison County Circuit Judge Daniel Stack took under advisement a defense motion for summary judgment in a stock options class action case, he reluctantly granted it. On Jan. 22, Stack ruled that there were no genuine issues of material fact for which any evidence could be produced in a five-year-old case against CyberSource Corp.
"The law of Illinois makes it very clear that resolution of any issue by the means of summary judgment is considered a drastic measure and it is certainly a disposition that this Court is reluctant to impose," Stack wrote.
Stack has had the case under advisement since Dec. 7, 2006, and apologized that it took him so long to reach his decision.
"This court's trial docket during the past year (which included asbestos, Vioxx, and manganese poisoning from welding rods) coupled with an extremely crowded motion docket (many of which required priority due to the types of injuries and/or imminent deaths of many of the litigants) caused this matter to be given lower priority," Stack wrote.
"Those factors do not, however, alleviate this court's regret for the length of this delay for which the parties and their counsel are begged their pardon."
Stack had to decide whether computer engineer Brian Wilgus tried to exercise stock options on his job.
Wilgus says he tried but his employer, CyberSource, thwarted him.
CyberSource argued that Wilgus never tried and its attorney Alan Goldstein asked Stack to grant summary judgment for lack of any issue of fact.
Wilgus filed a class action against CyberSource in 2002, claiming his employer's delays rendered the options worthless.
He moved to represent about 80 plaintiffs who worked for PaylinX Corporation when it merged into CyberSource, in 2000. CyberSource agreed to class certification.
PaylinX made software for payment transactions. CyberSource provides computer systems for Internet transactions.
At a hearing Goldstein argued that Wilgus could not complain about profit he could have earned.
"If you don't buy the stock you can't earn the profit," Goldstein said.
Howard Becker, representing Wilgus, said at the hearing, "This is a case about a promise made and a promise broken.
"The promise made was, if we merge with another company your stock options will become exercisable in full if you stay with the company.
"The employer did not make all options exercisable in full at the time of the merger," he said. "Instead they delayed for four months."
In his order, Stack wrote, "It has been this Court's experience the cases in which the law appears to be clearly against the Court's own sense of fairness are always the most difficult to decide."
"This is such a case," he added.
Stack said the class action is for breach of contract only and the contract consists of three documents that make up the stock option.
"The plaintiff's claims that he was lured into failing to exercise those options according to their own terms because of a belief that such manner of exercise would be futile, while evoking great sympathy by this court, appear to be immaterial to the issues in this case," Stack wrote.
Stack ruled that there was no count or claim for any equitable remedy, nor any apparent claim for the declaration of an equitable estopple regarding the enforcement of the written and signed documents.
He also ruled that all of the proposed evidence Wilgus supplied are "hearsay" statements which might be admissible as "statements adverse to the defendant made by the defendant," if Wilgus could attribute them to someone who could be held responsible.
"Furthermore, the plaintiff admits to not even having made the effort to exercise his stock options according to the contractual terms; when, had he or other class members done so and been rejected it certainly would have lent efficacy to his claim," Stack wrote.
Stack also ruled that all of the evidence constitutes "parole" evidence which is outside the "four corners of the contract documents" and could only be admissible to allegations of ambiguity or fraud.
"What appears by the allegations of the plaintiff, even when all taken as true for purposes of this motion, is that the plaintiff discovered, after the fact, that he could have exercised those stock options at a lower price and subsequently resold the stock at a nice profit (hindsight is almost always 20/20)," Stack wrote.
"There appears to be no sufficient evidence for the plaintiff to proffer at trial that would be admissible for consideration by the court or the jury," Stack adds. "As such, it is apparent that there exists no genuine issue of a material fact for which any evidence can be produced." |
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Law Technology News Award Winners Announced
Legal Spotlight |
2008/01/07 11:21
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ALM's Law Technology News today announced law firm and in-house
law department winners in its fifth annual Law Technology News Awards
program. The awards recognize outstanding innovation by law firms and
law departments in their use of technology.
Awardees in the law firm categories are: Goodwin Procter; Ropes &
Gray; George Rudoy, director, global practice technology & information
services, Shearman and Sterling LLP; and John Sroka, chief information
officer, Duane Morris. The winner of the in-house law department award
is Kraft Foods, while the Wills for Heroes project was selected as the
pro bono award winner. These individuals and firms, plus vendor
winners in 14 technology categories, will be honored at the LTN
Technology Awards Dinner, at LegalTech New York on February 5.
"This year's winners exemplify the creativity, drive and
determination of our legal technology community, and their efforts to
provide superb service to their clients. We applaud their leadership
and are happy to celebrate their accomplishments at our annual LTN
Awards dinner," said Monica Bay, editor in chief of the magazine.
Most Innovative Use of Technology by a Law Firm: Goodwin Procter's
iStaff system was cited by the judges as a demonstration of creativity
in law firm use of technology. The system assists the firm in matching
attorneys and staff to new client matters.
Most Innovative Use of Technology During a Trial: Ropes & Gray was
named by the judges for innovative patent trial systems, providing
infrastructure and support for a complicated presentation in a case
conducted in only 9 days, with 16 witnesses and 230 exhibits.
Champion of Technology: George Rudoy, director, global practice
technology & information services at Shearman and Sterling LLP was
selected as this year's Champion of Technology for his work as head of
the firm's worldwide practice-specific technology services.
IT Director of the Year: John Sroka, chief information officer of
Duane Morris, was named IT Director of the Year for his leadership in
areas ranging from pro bono assignment tracking and specialized and
back office systems integration, to the firm's VOIP migration.
Most Innovative Use of Technology by an In-House Legal Department:
Gene Stavrou, associate director of records management at Kraft Foods,
and his team's Legal Hold Dashboard were the judges' selection in this
category. The Web-based in-house system enables the lawyer to place
legal holds and tracks compliance by employees.
Most Innovative Use of Technology for a Pro Bono Project: The
judges selected the Wills for Heroes project as an outstanding example
of how technology can support pro bono efforts. The Wills for Heroes
Foundation provides free wills, living wills, and powers of attorney
to first responders. The project operates in a number of states,
customized to each state's legal requirements.
Law firm and in-house nominations were solicited throughout the
year from the magazine's subscribers, and through the publication's
Web site. The recipients were selected by an independent panel of
three jurors, all members of LTN's Editorial Advisory Board: Andrew
Adkins III, director of the Legal Technology Institute at the
University of Florida Levin College of Law; Fredric Lederer,
Chancellor professor of law, and director of the Center for Legal and
Court Technology, at the College of William and Mary; and David
Whelan, manager, legal information, at the Law Society of Upper
Canada.
Additional information on the awards and winners will be available
in the March issue of Law Technology News and on the magazine's Web
site at www.lawtechologynews.com/awards.
Law Technology News provides timely information and insight into
the latest technologies, products and services available for the legal
marketplace. Each month, LTN features new product announcements, as
well as monthly articles and columns written by industry experts and
senior law firm decisionmakers. LTN is distributed to more than 40,000
selected subscribers and is also available on the Web at
www.lawtechnologynews.com. The magazine is published by ALM. |
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Colorado Springs Church Undergoes Legal Battle
Legal Spotlight |
2007/07/29 10:30
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The Gothic Revival tower of Grace Church and St. Stephen's Parish stands as a monument to staid tradition - but this sanctuary has turned into a battleground.
Rebellious parishioners left the American Episcopal Church this spring, protesting its acceptance of gay unions and other departures from orthodoxy, to join a Nigerian Anglican diocese.
Now, the congregation is locked in a legal battle with the Colorado Diocese over ownership of the church, valued at $17 million.
The congregation also is trying to keep its conservative priest of 20 years, the Rev. Don Armstrong, in his pulpit, despite allegations of theft and fraud.
Tuesday, an Episcopal ecclesiastical court will weigh charges against Armstrong, who is accused by the diocese of stealing or misusing more than $500,000.
The battle for Grace Church is part of a global theological conflict within the worldwide 77-million-member Anglican Communion.
Liberal church members are pitted against conservative Anglicans in Africa, Asia and South America.
In Colorado, 14 congregations have moved to affiliate with African-led dioceses rather than the Episcopal Diocese in Denver.
Active membership in the American Episcopal Church has been in decline for four decades, hitting 2.3 million in 2004, according to church reports. Active membership in Colorado that year was about 33,000.
"The crisis of the Episcopal Church, the fault lines that run through that, run right through Grace Church," said Alan Crippen, a spokesman for St. Stephen's breakaway congregation.
"The Episcopal Church is dying," Crippen said. "It's dying in the United States. It's dying in Colorado. It's a denomination that's lost its relevance by accommodating the culture."
The split in the Anglican community widened in 2003 when the American church consecrated New Hampshire Bishop Gene Robinson, who is openly gay.
This past February, leaders of the worldwide Anglican Communion gave U.S. and Canadian churches an ultimatum: Stop blessing same-sex unions and consecrating openly gay bishops by Sept. 30 or face being asked to leave the Anglican Communion.
St. Stephen's Parish's breaking point came the night of March 26, hours after Armstrong had been charged by the diocese.
Nine of 10 church vestry members, the parish's lay leaders, voted to secede from the diocese and an American church they saw drifting left - away from Scripture and toward secular humanism.
"The people around that table believed the bishop was trying to destroy this parish," Crippen said.
Bishop Robert O'Neill, an outspoken liberal, had placed Armstrong on leave in the midst of the 2006 Christmas holidays. Although forbidden to have contact with parishioners, Armstrong defied the ban.
On the night of the vestry vote, Armstrong sent an e-mail to the senior warden, Jon Wroblewsi, saying of O'Neill: "He has no army and no keys and no authority - possession is nine-tenths of the law - and I have the microphone."
By Palm Sunday, Armstrong and parishioners had changed the church's locks.
About 250 exiled parishioners still loyal to the diocese had to worship at a borrowed church a few blocks away. Some 450 to 550 Armstrong followers held Grace Church.
"It was a big shock," said Tim Fuller, vestry member in the exiled parish. "This was done without consultation with the parish."
Before the split, Grace's rolls stood at about 2,000. Average Sunday attendance had been about 800 people, about the size of the congregation of St. John's Cathedral in Denver.
The diocese froze some parish bank accounts, Crippen said.
Breakaway parishioners filed a lawsuit on Good Friday asking the court to determine ownership of the parish's real and personal property.
Clash over motives
The breakaway group contends that it can better care for the property and that the diocese probably can't afford to keep Grace Church, Crippen said.
It costs $20,000 a month to run the church, he estimates. Programs and salaries aside, maintenance and utilities run about $8,000 monthly.
"That is a specious argument. You make that argument when the law is not on your side," said Lawrence Hitt II, chancellor of the diocese.
The parishioners can leave the Episcopal Church - but they can't take Grace Church with them, Hitt said.
The exit, he added, appears to be motivated less by theology and more by a desire to salvage Armstrong's ministerial career.
By late May, parishioners remaining at Grace with Armstrong had ratified the church vestry decision to join the African mission by a vote of 342 to 28.
The group chose to align themselves with the Convocation of Anglicans in North America, CANA, a mission of the 17-million-member Nigerian Anglican Church.
The Diocese of Nigeria, the largest, after Great Britain, of Anglican Communion's 38 provinces, holds itself out as a safe harbor for conservative congregations estranged from North American dioceses.
CANA, founded in 2005, now includes 37 churches in 15 states and the District of Columbia.
Another African group - the 7-year-old Anglican Mission in the Americas - with oversight from Rwanda's Anglican province, claims affiliation with 116 congregations in North America, including 13 in Colorado, from Cortez to Broomfield.
Altogether, at least 200 of 7,200 Episcopal congregations in North America have aligned themselves with overseas provinces.
"Within the Episcopal Church, there is a lack of ability to draw clear boundaries ... regarding what is true and faithful to what God has revealed," said associate pastor Rob Paris of the Wellspring Anglican Church in Englewood, which is affiliated with the Rwanda mission.
Among the questions of orthodoxy, the congregations have split on how literally to interpret Scripture, whether Jesus' resurrection was a physical fact or a spiritual symbol, and whether the Bible forbids homosexuality.
Whatever the reason for churches leaving, the Colorado diocese said the legal precedent in this state is very clear since the 1986 Colorado Supreme Court decision Bishop and Diocese of Colorado vs. Mote.
When a faction within an Episcopal parish seeks to secede from the Episcopal Church, the property of the parish is held in trust by the local church for the general church and may not be taken by the seceding faction.
A hearing on the Grace dispute is set for October in district court in El Paso County.
"We love the building, but it's not an idol for us. It's a home, a heritage, but at the end of the day, the church is not a building," Crippen said. "It's the people."
If the diocese gets the building, Crippen predicts, it likely will have to sell it. Hitt said there is no basis to that claim.
Still, Crippen worries that Grace Church could suffer the same fate as the former St. Mark's at 12th Avenue and Lincoln Street in Denver, where a congregation seceded a decade ago over ordination of women priests.
"It's a nightclub now," he said. "There are some who fear that might be our destiny." |
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Competition Policy and IP (Intellectual Property)
Legal Spotlight |
2007/03/28 22:43
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| While response to last week's federal budget unsurprisingly focused on new spending, it also included a commitment to create an expert independent panel to conduct a review of Canadian competition policy. Given that the Minister of Industry envisions a broad mandate to "review anything under the federal umbrella that affects competition within the Canadian economy", intellectual property ought to form a part of that review. I've written about the intersection between anti-circumvention legislation and competition policy, while others have expressed concern about competition and copyright, patents, and trademarks. The media may focus on foreign investment restrictions, but Canadians might be better served by analysis of an IP regime that supports innovation and competition by paying close attention to striking the right balance. As Supreme Court Justice Binnie reminded us when discussing the copyright balance in the Theberge decision: The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them.
http://www.michaelgeist.ca |
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DMCA Architect Acknowledges Need For A New Approach
Legal Spotlight |
2007/03/23 22:45
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McGill University hosted an interesting conference today on music and copyright reform. The conference consisted of two panels plus an afternoon of open dialogue and featured an interesting collection of speakers including Bruce Lehman, the architect of the WIPO Internet Treaties and the DMCA, Ann Chaitovitz of the USPTO, Terry Fisher of Harvard Law School, NDP Heritage critic Charlie Angus, famed music producer Sandy Pearlman, and myself. A video of the event has been posted in Windows format. My participation focused on making the case against anti-circumvention legislation in Canada (it starts at about 54:30). I emphasized the dramatic difference between the Internet of 1997 and today, the harmful effects of the DMCA, the growing movement away from DRM, and the fact that the Canadian market has supported a range of online music services with faster digital music sales growth than either the U.S. or Europe but without anti-circumvention legislation. The most interesting - and surprising - presentation came from Bruce Lehman, who now heads the International Intellectual Property Institute. Lehman explained the U.S. perspective in the early 1990s that led to the DMCA (ie. greater control though TPMs), yet when reflecting on the success of the DMCA acknowledged that "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (presentation starts around 11:00).
Moreover, Lehman says that we are entering the "post-copyright" era for music, suggesting that a new form of patronage will emerge with support coming from industries that require music (webcasters, satellite radio) and government funding. While he says that teens have lost respect for copyright, he lays much of the blame at the feet of the recording industry for their failure to adapt to the online marketplace in the mid-1990s. In a later afternoon discussion, Lehman went further, urging Canada to think outside the box on future copyright reform. While emphasizing the need to adhere to international copyright law (ie. Berne), he suggested that Canada was well placed to experiment with new approaches. He was not impressed with Bill C-60, seemingly because he does not believe that it went far enough in reshaping digital copyright issues. Given ongoing pressure from the U.S., I'm skeptical about Canada's ability to chart a new course on copyright, yet if the architect of the DMCA is willing to admit that change is needed, then surely our elected officials should take notice.
http://www.michaelgeist.ca/content/view/1826/125 |
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Class action or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it. In the United States federal courts, class actions are governed by Federal Rules of Civil Procedure Rule. Since 1938, many states have adopted rules similar to the FRCP. However, some states like California have civil procedure systems which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. They can construct your law firm a brand new website, lawyer website templates and help you redesign your existing law firm site to secure your place in the internet. |
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