May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - It is a waste of time to be angry about my disability. One has to get on with life and I haven't done badly. People won't have time for you if you are always angry or complaining.
MIPTC Makes Accessibility ImprovementsMIPTC is proud to announce some accessibility improvements you might not have noticed, but our differently-abled readers (and listeners) will appreciate. These changes owe a hat tip to Skye Kilean and her seminar at BloGher. Thanks Skye! If you'll look closely, then you'll notice that this text is much easier to read. That's because we eliminated a design element in MIPTC's background. The background used to be textured, but no longer. Apparently, those readers with limited sight had a difficult time distinguishing the text because the background had small elements of grey in it that interfered with the black text. Now, with the dark black text against a solid, bright background it's much easier to read. For our readers who use a text reader to have MIPTC read out loud, you'll no longer have to listen to our entire blogroll. For those who don't use them, text readers read from top left of a page to bottom right, something I didn't know because I've never used a text reader. Now, however, we've made it easier for our non-sighted readers. We've added "skip to content" navigation code for text readers that will jump from the masthead directly to the most current post. That way, the text reader won't read (speak) the entire blogroll any longer on the left navigation bar. Finally, we've made a slight change to the links. For readers who have full or slight color blindness, it's difficult to distinguish the hyperlinks after clicking on them and following the hyperlink in the new window that pops open. When those readers return to MIPTC, they couldn't distinguish what links they had clicked on and which ones they hadn't. So, now we've changed our code so they links change color from maroon to grey (to more closely match the black text). The change will help non-color blind readers, too. Government Derails Prop 13 Benefits For Testamentary TrustsThe voter revolt otherwise known as Proposition 13 just took a major hit. Essentially, it used to be that if a property owner remains the same, then the government couldn't increase your taxes. Long ago, lawyers had figured out how to accomplish that task by placing a property in a trust. Now, however, the Courts have put a stop to that technique. Under the Court's ruling in that last link, testamentary trusts where there's no direct family relationship between successive trustees will be taxed when a new beneficiary inherits under the trust. Here's how this train wreck happened: The City and County of San Francisco contained a parcel of property owned by the Francis O'Reilly Testamentary Trust. Mr. O'Reilly died in 1966 and the property was placed in the Trust, naming his Grandneice. In the event the Grandneice died with children, then the Trust was to be dissolved and the real property distributed to her children. In that case, the property would fall prey to property tax. If she died without children, then the Trust would stay in place and Mr. O'Reilly's Nephew would become the new beneficiary of the Trust, and the property would presumably dodge the property tax. Or so everyone thought. The Grandneice died without children, so the Trust stayed in place and the Nephew became the new beneficiary. He filed the appropriate notice with the County Recorder, who promptly reassessed the property from under $400,000, increasing the assessed value up to $1,800,000 and taxed the daylights out of it. Not to be outdone, the Nephew paid the taxes and filed a challenge to the reassessment and tax seeking a refund, ultimately ending up in Court. Here's the basic rules about property transfers , at least as they generally apply to these circumstances (if you want the particulars, the case linked above provides a more detailed and specific list than this post). Transfers between direct descendants are generally excluded from reassessment. If you were paying careful attention to the facts, then you may have noticed that there's no direct family relationship between the Grandneice and the Nephew. So the Court held that the Tax Assessor properly reassessed and taxed the property, reasoning that the ownership of the property had changed between non-family (directly related) family members. Now the government has one more way to walk around Prop 13. Beware kiddies. It's a jungle out there. Net Neutrality Heads Toward Showdown In Senate; May Get SidelinedWhat is Internet neutrality and why should you care? Vinton Cerf, called the father of the Internet by some (and you thought it was Al Gore), says Internet neutrality prevents broadband providers from directing users to services they provide and away from other content/service providers. In other words, Mr. Cerf is concerned that the companies who paid to build the Internet may use it to their advantage. Think AT&T, the Baby Bells, Verizon, Cingular, Cox, Comcast, Adelphia and a host of other large companies who have invested heavily in fiber optic cable to bring blazing speeds to your desktop computer. The service providers of the world fear we may be blocked or perhaps misdirected away from their content and toward the content offered by the companies who built the hardware for the Internet. To put it in the vernacular, it's a two-way battle between hardware and software for money from wetware. Is Internet neutrality a solution without a problem? The hardware companies think so. They haven't invoked the hoopla around the Y2K debacle, but that's about the position that they're taking. "We won't direct traffic away from the content/service providers" On the other hand, Internet neutrality groups cite as a battle cry the words spoken last November by AT&T Chairman Edward Whitacre Jr., who said content providers were "nuts" if they thought they could use "my pipes" without paying extra, referring to AT&T's broadband and telephone DSL services. The United States Supreme Court opened the battlefield for Congress to step in last year in its Brand X decision, which affirmed the FCC's decision classifying cable broadband Internet access an information service and not telephone service. The consequence of the decision was not lost on Congress: According to the Supreme Court, cable is not a common-carrier and therefore does not require equal access to its "pipes." So, Congress has stepped in with the Communications, Consumer's Choice, and Broadband Deployment Act of 2006 to solve what some Senators see as the problem. The act seeks to allow phone companies to negotiate national cable franchise agreements instead of the way cable companies must do now: negotiating city-by-city franchise rights. I'm guessing that the Senators think that freedom somehow balances the restrictions on phone companies to allow equal access to their lines. Wags predict it the bill may get sidelined until next year. The solution has brought together groups normally at odds with one another: the conservative Christian Coalition and liberal MoveOn.org. Both have demanded that Congress make this law Internet neutral and ensure that content/service providers have equal access to these "pipes" - whether they belong to the phone company or to the cable company. AT&T says advocates fears are overblown. Is the hullabaloo real? Check out your own Internet connection and see if you can freely get around the Internet. California PUC Lifts Price Limits On Land Line PhonesWill you switch from a land line phone to just your cell phone as your sole phone number? The California Public Utilities Commission just pulled off the gloves in the state's regulation of the price of telephone land lines. The phone companies convinced the PUC, who voted 5-0, that competition from Internet and cable companies will keep prices low or otherwise in check. As a consequence, there will be no limit on the price of residential land line phones. It doesn't matter to MIPTC; somehow my cell phone company has figured out how to keep my cell phone from receiving signals while I'm at home, where my residential land line is located. I can't do without my land line. You don't need to run right out and cancel your land line, however. The elimination of price controls doesn't take effect until 2009. By then, they will have figured out how to implant your cell phone in your back molar, and you won't even need a land line. The Lawsuits Are Coming! The Lawsuits Are Coming!Paul Revere couldn't have said it better: Lawsuits between businesses have hit the Courts. Yes, I know that's not news. Stay with me for a minute. It's not just the everyday litigation we presently have, but business-to-business lawsuits now include litigation over illegal immigrants. MIPTC previously reported this phenomenon, and promised to let you know when litigation was filed. It has. Here's how it goes: Company A, Global Horizons, provides temporary workers to businesses. It has a contract to supply employees to Company B, Munger Brothers, a vegetable farm that hires illegal immigrants to harvest its crops. Company A verifies that all of its temporary employees are U.S. citizens, so presumably to keep its costs down, Company B wasn't interested in hiring any temporary employees from Company A. Company B instead hires its temporary workers from a temp agency we'll call Companies C and D, (Ayala Agricultural Services and J&A Contractors)which doesn't screen its temporary workers for citizenship. Temp agency A therefore sues farmer B for unfair competition. It's a novel theory to be sure, and it's likely not to last. There are too many variables about why Company A isn't doing well financially, and they've likely named the wrong defendant anyway. It seems to MIPTC that the defendant in this instance should be Companies C and D, not Company B. The farm is not competing with the temporary employee agency. It's the other temporary employee agencies, Companies C and D in our case. I checked the UCL Practitioner's site, and Kim may disagree with me on the potential for the ultimate success of these cases. She's sure to cover it further, so keep a weather eye. I'll go out on a limb here and predict that the only viable cause of action for the temp agency against the farm is breach of contract. Even then, that lawsuit's probably just a yawner. Even so, let's play that game. If temp agency A sued temp agencies C and D, could it win? The case is a bit closer, but it still seems unlikely. The unfair competition laws require direct proof of injury by one business to another. Kim agrees with me on that point, but not likely with my final analysis. Here, temp agency A would claim that temp agencies C and D's practices of providing illegal immigrants as temp workers unfairly competes with it. While that scenario has a bit of sex appeal to it, it misses the mark. It's very likely that temp agency C offers U.S. citizens for employment and it's just as likely that temp agency A has plenty of other reasons that it is not doing well financially. Without a full-fledged, consistent pattern and practice of temp agencies C and D undercutting most, if not all of temp agency A's employment contracts, the single instance of one lost contract due to illegal immigrants won't likely sustain an unfair competition lawsuit. This suit won't be the last of these that are filed, and you can be sure that in each successive, the plaintiff' lawyers will learn what they need to allege to pass muster, so later rather than sooner we may see a lawsuit that gets past a trial court. Then we'll see what the court of appeals will do in the next couple of years. Stay tuned. A Bump In The Moral Compass; But Which Way?If you grew up in rural America in the depression, and perhaps even into the 50's, then you likely remember situations where families "took in" children from other families without much ado. Frequently, it was necessitated by the death of parents, an abusive situation or children born out of wedlock. We just took care of each other, especially children without parents. That was the norm. Today, we have nuclear families that are more like nuclear fission families. Courts have always struggled with how to reconcile family struggles. As a society, we've added much more variety into the mix with divorce, combined families, families with parents who have alternative lifestyles, single parents and even children born from artificial insemination. It's enough to make your head spin. Take, for example, this case where a child was born to a married woman, Kim, and a married man, except that they weren't married to each other. Kim and the married man had an extramarital affair that resulted in a child. The married man and his wife, Amy, not only stayed together, but they also raised the child in their home from the time he was a month old. Kim and her husband separated upon the child's birth. Amy and the married man have two daughters, and Kim has one child, Nathan, who is now being raised by Amy and the married man (let's call him the Father). Got that? Here's where things get tricky. At the end of her pregnancy, Kim left California and went to Virginia, where she had Nathan. The Father, also from California, went to Virginia and met Kim in a hotel lobby to pick up Nathan. The Father presented Kim with an adoption and non-visitation agreement drafted by a law firm in Maryland. Kim signed the agreement in Father's limousine. N.B. here that the Court threw in the part about the limousine. It's a "fact" designed to color the picture of the story. Father brought Nathan back to California, where he lived with Father and Amy. Well, here's where things really get tricky. Kim sued for a parentage determination in her favor, excluding Amy, and for visitation rights. She claims she was pressured into signing the agreement. Amy jumps in now, and tries to assert that she's the Mother, filing documents with the Court to assert her rights. The Court strikes her papers and rules that because she didn't adopt Nathan, she has no right to argue that she's the Mother. The Court states that California law recognizes only one mother, and that's the biological mother. Amy is out of luck. The ruling? A woman who is not the biological mother of a child is not the presumed mother and cannot assert the rights of the mother. The only way to do that is through adoption, where the government reissues a birth certificate changing the name of the biological mother. Coast to Coast Internet Radio Identifies What Makes A Go-to LawyerWhat makes a Go-to lawyer? Many believe that a go-to lawyer possesses a certain confidence or style. How about a great Go-To Firm? Is it good results and smooth transactions? In this show, we will speak to the experts on what makes a go-to lawyer and which firms are the go-to firms. Coast to Coast looks at the survey of who companies turn to as a go-to lawyer and a go-to law firm. Join me and my co-host and fellow Law.com blogger and Bob Ambrogi as they turn to our experts for the answers. Coast to Coast welcomes Daniel J. DiLucchio, principal of Altman Weil, Inc. and Tamara Loomis, a contributing writer for Corporate Counsel who just recently worked on the survey on the top firms who represent corporate America. You'll won't want to miss it. 
That's A Lotta LottoEvery once in a while you stumble on something so bizarre you can't believe it. Here's the story of a woman who stole up to $6,000 a day from her employer to play the New York lottery, apparently hoping to win it big. In all, she stole $2.3 million. I don't know about you, but that amount sounds like a winning lottery ticket to me. Apart from the stealing part, I'd be satisfied with $6,000 a day. I could probably figure out a way to live on that kind of change. It apparently wasn't enough for Annie Donnelly, however. She kept at it over a three-year period, taking the money in checks of varying amounts from Great South Bay Surgical Associates. She faces up to 12 years in prison. The DA, with the brilliance only an an attorney can muster, said, "She obviously had a gambling problem." That gem comes from Donna Planty, assistant Suffolk County district attorney, according to the CNN article linked above. Assuming you worked a regular 8-hour day, where would you find the time to buy 6,000 lottery tickets a day?
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