Quote of the Day - Blessed is the man who, having nothing to say, abstains from giving us worthy evidence of the fact.
Lawyer 2 Lawyer Internet Radio Gets A Case Of The Me-too Evidence
Ellen Mendelsohn, a 51-year old manager for Sprint, was fired in company-wide layoffs and sued citing age discrimination. During the trial, five ex-employees claimed they had also been released because of their age or in lawyer terms "me-too evidence."
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we discuss this highly-publicized case with the experts: Attorney Michael Ketchmark, from Davis Ketchmark & McCreight, Attorney Jeannie DeVeney from Spencer Fane Britt & Browne LLP and Attorney George Lenard, from Harris, Dowell, Fisher & Harris, L.C. We discuss the case and the unanimous decision handed down by the Supreme Court. You can download the podcast here or just click on the link below.
Entertainment Law Crosses With Labor Law: Court Rules Contract Non-renewal Race-free, Legitimate Employment Decision
When a former employee sues an employer for firing due to race discrimination, the legal burden shifts from the former employee to the employer to establish a prima facie reason for firing the employee for a legitimate, non-race based reason. Then, if the employer can establish the legitimate reason, the burden shifts back to the employee to disprove the employer's apparently legitimate reason.
While that's a mouthful, look at it this way: first the employer shows the judge the employee got fired because the employee couldn't do the job. Then the employee has to show the judge the real reason is race.
Let's add an overlay to this legal framework. We have a white evening news anchor at a TV station in San Jose/Oakland/San Francisco, among a number of other on-air talent and off-air managers. NBC came in and bought the station and hired a new manager to shake things up.
In the entertainment industry, "shaking things up" is a euphemism for firing almost everyone in sight and bringing in an almost entirely new team, generally for a TV station only retaining the upper, mid-level management and some of the more popular on-air reporters, but typically not the anchors.
Note I said "not renew." Let me add two more facts: Brad Hicks is white, and the anchor who replaced Mr. Hicks is African-American, T.J. Holmes, now at CNN.
Here are the Court's rulings on those two facts: First, "where the plaintiff does not belong to a racial minority or other traditionally protected class, no universally accepted statement of the standard for establishing a prima facie case exists. There is currently a split among the federal courts that have taken a position on this issue. Five circuits apply an increased burden upon a White plaintiff, requiring a showing of 'additional background circumstances' to support the suspicion of discriminatory intent. "
Second, "Plaintiff alleged that defendants' decision not to retain him was motivated by the desire to place an African-American in the 5:00 p.m. anchor position. In their moving papers defendants produced evidence to show that Sanders's reason for refusing to negotiate a new contract with plaintiff was unrelated to his race. According to defendants, plaintiff did not project the style or personality Sanders wanted in a KNTV news anchor."
The Court accepted the TV station's reason, and didn't believe the Hicks was able to overcome their reason by showing a discriminatory intent. The Court ruled the station hired and fired others without regard to race.
Sanders' techniques at the station worked. The station received 28 Emmy nominations in 2005. You can check out Brad Hicks' blog, as well. He too won NBC News, the U.S. Coast Guard, and The National Water Safety Congress, as well as multiple Emmy Awards, and awards from the Associated Press.
Tip Of The Day: Dig Out Those Gift Cards You Received And Cash Them In
Otherwise, they just might not be valid, even if you're in California. Before I get ahead of myself, let me explain that last qualifier. In Call-e-forn-ya (as only Ahrnold would say it), gift certificates of any kind never expire (well, generally speaking).
Yep, it's right there in California Civil Code sections 1749.45-1749.6. It's the law in this state.
But these statutes won't stop many people from trying. Or filing for bankruptcy, as Sharper Image has done. Unfortunately, California law doesn't trump federal bankruptcy law.
Once a company files for bankruptcy, that gift card you got for the holidays is, well, just a piece of plastic with minimal recyclable value that you can stick in your shredder (hang on here for a moment, Brookstone will give you a 25% discount for a Sharper Image gift card). You actually also get a claim against the company's bankruptcy estate, but who wants to hire a lawyer to prosecute a claim for even a $100.00 gift card?
But don't worry too much, Sharper Image says they'll eventually honor your now-worthless gift card. They're just not saying when.
We're not talking chump change, either, if you look at the bigger picture. According to the AP article in that last link, "Brian Riley, senior analyst at The Tower Group, estimates that shoppers could lose more than $75 million just from stores and restaurant closings in 2008."
$75 million? That's a lot of gift cards. Almost as many as I think I've got stashed somewhere. Quick. Scrounge through your junk drawer and get out all those plastic cards, run to the mall and go shopping and dining.
Who needs to wait for the government's stimulus package anyway?
MIPTC’S Occasional Book Review: Solo by Choice, by Carolyn Elefant
"Back when you were in law school you had dreams. Maybe it was standing before a jury, passionately arguing on behalf of a desperate client ... or winning an appeal that would link your name to a new legal precedent ... or pulling off a dramatic 11th hour deal that would give your struggling technology client a life-saving infusion of capital. But what happened? ... years later ... most of those dreams are unrealized."
Now, instead "You work 60-hour weeks in BigLaw... or, you're a government prosecutor ... whose work is no longer challenging ... Or you just passed the bar, and the prospects of paying off your student loans ... has you popping antacid in the middle of the night." The Preface of Solo by Choice gives this wonderful setup for three-hundred pages packed full of timely and spot-on advice for a lawyer struggling with these issues.
If you're a lawyer and those law-school dreams have all but evaporated and you're contemplating taking the plunge to start your own law firm, perhaps as a solo, perhaps as a group of lawyers who all have these unrealized dreams and want to run your own show, then...
You need this book. Don't do anything else to start up a new law firm without reading this insightful guide, Solo by Choice, by Carolyn Elefant.* Even if you have a long-established solo or small firm, then this book will help you fine-tune your practice in ways you can't even imagine. Even if you are in BigLaw or even a government prosecutor, there are a few tips you can pick up to help your practice (see the chapter on Dealing with clients).
Even after starting this firm, WLF | The Williams Lindberg Law Firm five years ago and after more than twenty years of practicing law, I learned more than a few things from this paperback. You'll find it more than helpful, I'm sure. Your investment will yield much in return.
Whew! That Was A Close One. Free Speech Does Not Protect Sending Spam
By just a whisker, the Virginia Supreme Court ruled 4-3 to uphold the country's first felony conviction of Jeremy Jaynes of Raleigh, N.C. for sending huge amounts of spam.
Huge amounts. Jaynes is listed in the top ten spammers of all time.
In the trial, prosecutors introduced evidence of just 53,000 illegal e-mails our spammer sent in a three-day period. Janyes was allegedly responsible for sending 10 million e-mails a day in an enterprise that grossed up to $750,000 per month. You can see the grand jury indictment here. He got nine years.
Jaynes sent the email spam through a Loudoun County, Virgina AOL server, which gave the state jurisdiction over him. Jaynes argued that the Virginia law used to ensnare him was unconstitutional because it impinged on interstate commerce.
The Supreme Court thankfully upheld his conviction.
Justice Elizabeth Lacy dissented, however, arguing Virginia's law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."
You have to wonder whether she uses email. Probably not, would be my guess.
Lawyer 2 Lawyer Internet Radio Ivestigates Immigrants and the Law
The 2nd Circuit Court of Appeals in New York issued an opinion that opened with these words: "With disturbing frequency, this Court encounters evidence of ineffective representation by attorneys retained by immigrants seeking legal status in this country."
Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we discuss this hot-button issue with the experts: Attorney Lisa D. Ramirez, an immigration lawyer from the Law Office of Lisa D. Ramirez, Attorney Nora Privitera, Special Projects Attorney for The Immigrant Legal Resource Center and Attorney Eleanor Newhoff, part time attorney for Greater Boston Legal Services.
They will question the quality of legal representation of immigrants, why so many are receiving sub par legal assistance and what lawyers are doing to provide their clients with the best possible representation. You can download the podcast here or just click on the link below.
That's A Negative Ghostrider, The Pattern Is Full
Maverick twice does a flyby in his Tomcat F-14, in TopGun, one of the Navy's favorite movies. He first buzzes the conning tower on the USS Enterprise and next the control tower at FighterTown USA, otherwise known as the Naval Air Station Miramar in California. The stunt apparently has some real-life imitators, one just recently in Seattle.
Most recently, a Cathay Pacific Airways plane swooped down and buzzed a Seattle-area airfield without permission just after the company took delivery of a new, Boeing 777-300ER passenger jet.
There are some subtle differences between the two planes, however. One is a supersonic, twin-engine, variable geometry wing aircraft that can reach 45,000 feet in one minute. The other is a lumbering, 350-ton passenger jet that needs an extra-long runway to get off the ground and two engines at going at full blast, and it generally takes 20 minutes to get to top altitude of 35,000 feet.
One is sixty-two feet long and only thirty-eight feet wide with its wings swept back, weighs about 30 tons fully loaded and costs just $38 million. The other is 242 feet long, weighs about 350 tons and is listed at $264 million. In stark contrast to the two-seater F-14, the 777 carries about 500 people and can only hit about 570 mph. The F-14 can reach speeds in excess of 1,550 mph. The longer and bigger plane doesn't carry any weapons, either unless you count federal marshals.
In the movie, Tom Cruise's character, Maverick, got put into hack by his commanding officer, Stinger. In real life, the Cathy Pacific pilot was fired.
Boys, boys, boys.
Verbal Contracts Aren't Worth The Paper They're Written On
Especially when they involve business deals arising out of a personal relationship. Couple that fact with two more: our hero is a computer programmer, and our heroine is a performer in the adult entertainment industry. In fact, she's in film, in addition to her participation in certain on-stage performances.
In nightclubs. Where she met our computer programmer.
The plot thickens.
Based on the allegations flying back and forth between the two, I'm not quite the extent of their relationship before the lawsuit, but it may have involved more than ... shall we say, business. Just a guess.
The lawsuit isn't particularly revealing either, other than to point out two hints. Phillip Williams, our hero, created a website for Kira Kener (link may not be appropriate to open at work) and also "loaned" her over $75,000. The lawsuit was precipitated apparently because she didn't pay him back, despite her recovery of money in what Williams alleges was a "multi-million dollar settlement from certain litigation she had filed." Despite his demands, she refused to "pay him back."
I put "loaned" and "pay him back" in quotes because the lawsuit contains no allegations of a written contract between the two, despite what else may have been between them. Indeed, at one point in their relationship, they were talking every day, and Kira had assured Phillip there were "no other guys in her life."
Oh. I forgot two other facts. He lives in New Jersey. She lives in North Carolina. The lawsuit was filed in New Jersey. He claims she maintained sufficient contacts with the State and entered into a series of transactions with the intent of benefitting from New Jersey's stream of commerce.
You figure it out.