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Quote of the Day - The last time I checked, I don't work for the FBI.
Hindsight Is 20/20: Second Guessing The FBI's Pre-9/11 ActionsIt's difficult to look back now, but this CNN story invites a second look at the complacency we all felt before 9/11, including those investigating the possibility of terror on our shores. That's the most troubling aspect of looking back. You judge on what you know now, not what you knew then. You, Too Can Become A Fish FarmerSure, there are million-dollar aquariums in homes, but how can you cash in on Americans' increasing diet for consuming fish? As a former Iowa gentleman farmer (which means I lived on a farm but didn't farm), I've watched with some consternation about how America's farmers are finding it more difficult to make a living. Now it appears you don't even need to own a farm to become a farmer. You can buy a few fish tanks, or for that matter convert your swimming pool into a fish farm. MIPTC has no financial interest in fish farming, but offers this article to those farmers wondering how to make a living. Push Zero If You Want To Secretly Tape Telephone Conversations With Californians"Please note this conversation will be recorded to ensure quality service" is still OK, but not secretly tape recording telephone conversations with residents of California without our consent. It doesn't matter if your state or country has laws that allow one-sided taping, California doesn't and we intend to enforce our laws, according to a recent California Supreme Court ruling. While exercising stock options with her company's broker Solomon Smith Barney in Atlanta, Georgia, Californian Kelly Kearney's telephone conversations were taped without her permission. She filed a class action suite for violation of her and other Calfornian's privacy rights, and won. But in winning, she lost. The ruling came without a retroactive remedy. The Court did not award any damages. Instead, the Court applied its rule only prospectively by allowing an injunction to issue since the parties involved (and the rest of us) were unclear which state's laws prevailed in the event of a conflict. In Georgia, Solomon Smith Barney can tape telephone conversations without the other party's permission. Here on the left coast, you can't. But what happens when Georgia calls California and wants to tape the conversation? Well, for one thing, Georgia can tape her side of the conversation, but not California's side. That's still true after this ruling, but the kicker now takes away Georgia's ability to tape California's side of the conversation, too. For lawyers, the most interesting part of this decision is not the outcome, but the remedy. The Supremes put a stop to secret taping, one of the remedies sought by the Plaintiffs. So, on one hand, the Plaintiffs won. The Supremes, however, likewise put a stop to the Plaintiffs and their lawyers because they barred the recovery of monetary damages. As you likely know, for plaintiff's lawyers, class actions are about recovering damages. Especially when the case, as this one likely was, is "on contingency" in terms of how the lawyers get paid. So, on the other hand, the Plaintiffs and their lawyers lost. You can be sure the rest of this case will die a quick death because nobody's being paid. Coast to Coast Internet Radio Appeals to the Supreme CourtThere have been several big changes over the past year in the U.S. Supreme Court. Take, for example, the death of Chief Justice William Rehnquist, the nomination and resignation of Harriet Miers and the controversial choices of two new justices: Justice Samuel Alito and Chief Justice John Roberts. All of these changes have created a new complexion for the high court. Please join me and my fellow attorney and Law.com blogger Bob Ambrogi while we analyze what's happened with two experts on the Supreme Court. Coast to Coast welcomes Rex Heinke, partner at the firm of Akin Gump Straus Hauer and Feld LLP and Tony Mauro, Supreme Court correspondent for Legal Times, American Lawyer Media, and Law.com. Don’t miss this roundup, and give a listen. 
Insurer Must Pay Attorneys Fees Of Third Party Suing On Assigned ClaimWhen you have insurance, it does you no good if your insurance company won't pay your claim, even though your lawyer tells you the claim is covered. It's just that much worse when you're being sued by someone else and your insurance company won't defend you, even though your insurance company owes you a defense against the lawsuit and payment for the claim. That scenario happened to Luis Sanchez d/b/a L.A. Machinery Moving. Luis was transporting two commercial dryers for Five Star Dye House, but in the process damaged one. He dropped it, but didn't repair it fast enough. Five Star sued Luis, and he promptly turned the claim over to his insurance company, Essex Insurance, who just as promptly denied Luis' claim. The only problem Essex had, however, was that it should have defended Luis against Five Star's claim, and it should have actually paid the claim. Luis defended Five Star's lawsuit, but lost to the tune of $1.35 million. A triple whammy for Luis - no insurance coverage for the claim, no insurance coverage for the lawsuit and a big judgment. After reviewing Luis' policy from Essex, however, both Luis' and Five Star's lawyers agreed: Essex should have paid the claim. Five Star wanted payment, but Luis likely couldn't pay the judgment on his own (which is why he had insurance in the first place). Since Luis' insurance company at this point was balking, both Five Star and Luis were out of luck. Or so it seemed. Not to be outdone by his insurance company, Luis assigned his rights against Essex to Five Star. Five Star sued Essex for bad faith failure to pay a claim, defend Luis and pay the judgment (all torts) and won. Not only did Five Star get Luis' judgment paid, but it also recovered its attorneys fees against Essex. If you're at all schooled in attorney's fees and contract law, you now have a question: since Five Star and Essex didn't have a contract with one another and Five Star sued Essex for a tort, which in America doesn't allow you to recover attorneys fees, how did Five Star recover its attorneys' fees? There's a case called Brandt v. Superior Court here in California that allows just this kind of recovery for the insured - the concept is referred to as "Brandt fees." There, the court reasoned that because an insurance company is in a fiduciary relationship with its insured, when an insurer wrongly fails to pay a claim and forces that insured to sue it to recover the benefits of the policy, the insured should be placed back in the position the insured was in as if the insurance company paid the claim. That reasoning requires an insurance company to pay the attorneys fees of the insured in just that situation, like our friend Luis. Here, though, there was a slight twist. It wasn't Luis the insured who sued Essex. It was Five Star, a third party whose only relationship with the insurance company was a claim against its insured. Essex wasn't in a fiduciary relationship with Five Star, so it didn't think it owed Five Star any amount of attorneys fees to recover for Luis' claim. Essex cited to another case that held it owed no such fees to third parties. Essex really must not have wanted to pay this claim, because it appealed the loss all the way to the Supreme Court. Essex lost, and lost twice. It lost in the Court of Appeals and at the Supreme Court level. Both courts ruled that since Luis assigned his claim to Five Star, Five Star assumed all of Luis' rights, including his right to recover fees against Essex for successfully recovering the underlying claim for the damaged dryer. Prisoners Back In The DoghouseIn the category of "you're never going to believe this," we have a 48-year-old dog trainer who allegedly helped a 27-year-old murderer escape from Leavenworth by using a dog crate. They were on the lam for two weeks, but now they're both back in jail. The prison is continuing the program where outside dog trainers teach inmates how to handle dogs from shelters to assist in their adoption into homes in the area. They've also instituted a new search program for the dog crates. They look inside.
Rudolph Aside, We Need A Leader: Syncronize Traffic LightsWith all the hullabaloo about gas prices, you figure that sooner or later, America's cities would figure it out for us: synchronize traffic lights. Whether you live in New York or Irvine, California (opposite sides of the universe as we know it) the song is the same, red light, road block, bridge out ahead. You can't go anywhere for any distance without running into a red light, then another red light, then another red light, then another red light, then ... well, you get the idea. Heck, even Avram Grossman has calculated that he spends 68% of his time commuting waiting at red lights. Unlike most Californians, I don't take a freeway to work. I might as well, though, given how many red lights I run into going to or coming from work. Some days, it can take longer than 30 minutes to go some ten miles. Freeway times aren't much better, for those of you sitting on the parking lots otherwise known as The 405, The 5, The 605, the 710 or any of SoCal's other transportation corridors CalTrans laughingly calls Interstate highways. Yes, if you haven't figured it out by now, I'm a little frustrated, and I've taken about as many penalty shots as the Italian football team. Not that others aren't too. Run this search, and you'll get the flavor. Measure M in Orange County, California promises relief. If we vote it in this coming November. I'm working to get out the vote now. Anything to synchronize traffic lights on surface streets. Tonight on the way home, I think I hit every one - some thirty in all. Yes, that was a scream you heard from within my car. If I could only find a City traffic engineer, I'd only have half a brain left because I'd have given that engineer a big piece of my mind, and maybe a raise, if the engineer could solve the problem. Where I went to high school in Schuylkill Haven, Pennsylvania, we had a saying when things didn't go the way we thought they should: "What do you expect for a town with two red lights?" The question now is what should we expect for a town with hundreds? Coast to Coast Internet Radio Tries Out E-FilingAre you way behind on the legal technology curve? Do you know about e-filings? Join Coast to Coast and my fellow co-host and Law.com blogger Robert Ambrogi for an exclusive survey from the American Bar Association and our special guest, ABA Senior Research Specialist Laura Ikens from the ABA Legal Technology Resource Center. You can hear important information from the ABA Legal Survey Report about how e-filings are underway nationwide. You'll also hear about e-filings in practical experience from Attorney Tom Mighell, Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Texas, who we welcome back to the show! If you’re still avoiding e-filings, then give a listen for all the details.
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