Quote of the Day - Last night I stayed up late playing poker with Tarot cards. I got a full house and four people died.
I'll Bet You $30,000 You Can't Finish That Hamburger
In the world of professional gamblers, that's a bet that one of the two contestants will win and the loser will honor. "If you don't keep your word, you don't have much," said Jonathan Grotenstein, the co-author of "All In: The (Almost) Entirely True Story of the World Series of Poker," according to Harriet Ryan, a Court TV reporter.
That comment arises out of amateur poker player Jamie Gold's winnings of some $12,000,000 in a recent Las Vegas tournament. That win now involves the World Series of Poker, a lawsuit, celebrity endorsements for BoDog apparel, reputations, recorded telephone messages, an injunction and an alleged, unwritten promise to split half of those winnings.
It's almost a made-for-TV drama-laden miniseries turned reality show, and no, I can't make up stuff this good. I just report it.
Let me introduce the other players in this story. British TV executive Crispin Leyser alleges that he befriended Gold prior to the tournament and agreed to share the $10,000 seat that BoDog paid for in return for Gold delivering celebrities who would wear BoDog apparel while Gold played Texas Hold 'Em. Gold, however, is a talent agent and television producer and has represented James Gandolfini, Lucy Liu and Felicity Huffman. If that's the case, then you have to wonder why he needed Leyser to find celebs to wear T-shirts at the tournament.
Apparently Gold refused to split his winnings and Leyser sued. Leyser's allegations, however, were good enough to convince a judge to issue an injunction prohibiting the Rio from distributing the winnings to anybody. Leyser claims to have a recorded telephone message from Gold that says, "You've trusted me the whole way, you can trust me a little bit more. I promise you there's no way anybody will go anywhere with your money. It's your money. All right, I send you love," according to Leyser's suit.
In the 15 months before his victory, Gold had been playing poker 40 hours a week in card rooms and casinos around Los Angeles, and had won just $100,000. This recent victory was a big change that resulted in some big change.
Now, we just have to wait and see whether Leyser or Gold has the better poker face, and who will win the Final Table in Court.
Coast to Coast Internet Radio Turns One!
Coast to Coast, co-hosted by my fellow attorney and Law.com blogger Bob Ambrogi, celebrates its one-year in the legal podcasting arena on the LegalTalkNetwork. Great guests and interesting legal topics keep us at the top of the listening list! We thank you.
This week, you can hear about how it works, who is listening and what's ahead in technology for podcasters along with guests and fellow veteran legal bloggers and podcasters Attorney Evan Schaeffer and Attorney Denise Howell, as well as Legal Talk Network's Co-founder Lu Ann Reeb.
Put on your party hat, grab a horn and give a toast to our anniversary show!
Court Upholds Contract That Limits One Party's Liability
Oil well drilling can be a dangerous job. As a conseqence of the danger, several types of contracts exist that allocate the risk differently, and allocate it between the parties differently. The adage "the big print giveth and the small print taketh away" never had such a close examination by a court.
This case involves a blow-out, contamination and a death. The employee's death is the subject of an entirely separate suit, however. We're just going to talk about the allocation of risk between the two companies. TEG Oil and Gas (the owner/operator) and CAZA Drilling (the contractor/driller) signed what's known in the industry as a Daywork Drilling Contract. There are other types of contracts, too.
According to the Court's opinion, "Besides the standard 'Daywork Drilling' contract there are standard 'Turnkey' contracts and 'Footage' contracts, and that operators sometimes prepare their own agreements. Under a Turnkey contract, the contractor hires a geologist and formulates a drilling plan, but under a Daywork Drilling contract, 'the Operator is in control' and '[t]he Contractor receives all of its direction from the Operator.' [CAZA's area manager] stated that standard provisions are negotiable and that if a company wished to place responsibility for damage caused to the geologic structure on CAZA, 'CAZA [would] allow such a change in exchange for a dramatically increased drilling cost to the Operator'."
So there you have it.
Let's look at the conditions in the Daywork Drilling contract, and perhaps learn why the court was so willing to look past Civil Code section 1668, which generally prohibits a party from "exempt[ing] any one from responsibility for his own fraud, or willful injury to" another. The driller pointed to one provision:
"[e]xcept for such obligations and liabilities specifically assumed by [CAZA], [TEG] shall be solely responsible and assume liability for all consequences of operations by both parties." The court hung its hat on that paragraph, in my mind in large part because there were a number of other paragraphs that allocated other specific risks differently between the parties. As an example, "the contractor (CAZA) "assume[s] liability" for "damage to or destruction of Contractor's surface equipment."
Whether you're drilling oil wells or dealing with other risky operations, it pays to read the contract,, and perhaps even more so to have a lawyer look at it.
The opinion is much more complicated than I've laid out here, and if you're looking for specifics, you should read the opinion.
MIPTC Makes Accessibility Improvements
MIPTC 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 Trusts
The 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 Sidelined
What 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.
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 Phones
Will 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.