May It Please The Court
Quote of the Day - I have a punishing workout regimen. Every day I do 3 minutes on a treadmill, then I lie down, drink a glass of vodka and smoke a cigarette.
Smoke 'em While You Got 'em. You May Be Paying The Taxes Anyway.
MITPC is not a cigarette smoker, but as an occasional cigar smoker, I'm somewhat sympathetic to these New Yorkers' plight. They bought cheap cigarettes over the internet, and had them shipped to the Big Apple.
As one of those perhaps unintended consequences of the internet - more likely intended - the New Yorkers were able to avoid paying New York city sales tax on the cigarettes. Some $33.5 million before the City realized what they were missing.
Not about to sit still and lose that kind of revenue, the City went after the vendors seeking payment of the tax. One company, eSmokes, claims to be bankrupt, and the AP story linked above notes that calls and emails soliciting comment were not returned. As you can see from the last link, however, the site is still up and running, and contains what is calls legal disclosures essentially claiming that your purchase is point-of-sale in either North Carolina or Kentucky.
The site also encourages you to write to your Congressional representative about a bill affecting taxation of internet cigarette sales, but you don't need to get your pen ready. The bill appears to be stuck in committee.
eSmokes and NYC were able to reach a settlement, however. The internet vendor agreed to give up the names and addresses of everyone in New York who bought cigarettes from them. The City is now sending out collection letters, seeking payment from the buyers, and they claim to have collected some $700,000 so far.
Another tax dodge up in smoke, so to say.
Now Where Did I Put That Railroad Car?
The contract cases on apparent authority and ostensible authority in law school are hundreds of years old, commonly referred to as "black-letter law" because the definitions are so well known. Why then, would CSX Transportation, Inc. litigate a case involving the apparent authority of someone with a corporate email address who welshed on a debt?
Because it involved the internet, where the law is as undefined as the 'net itself.
Let's review the facts. CSX received an email message from Albert Arillotta, who claimed he worked for Recovery Express and used the e-mail address email@example.com (no longer active), which would appear to most people as someone associated with Recovery Express, Inc. It turns out he actually worked for Interstate Demolition & Environmental Corporation, who shared office space with REI.
The Court gives us the pleasure of reviewing the email, and says, "The entire e-mail –- horrendous grammar and all –- is reproduced here:
From: Albert Arillotta [firstname.lastname@example.org]
Subject: purchase of out service railcars
lynn this is albert arillotta from interstate demolition and recovery express we are interested in buying rail cars for scrap paying you a percentage of what the amm maket indicator is there are several locations i suggest to work at the exsisting location of the rail cars. we will send you a brocheure and financials per your request our addressis the following:
Mr. Arillotta apparently gained access to REI's computers and sent an email message to CSX offering to buy railroad cars for scrap. Since that's one of the things that REI does, CSX bit, and bit hard. They set up a deal with Mr. Arillotta, who showed up at their railroad yard with check in hand, and hauled several cars away.
Mr. Arilotta's $116,000 check bounced, and CSX sued REI and IDEC, believing that one of the two companies had reneged on the deal.
The Court's opinion ruled in favor of REI and IDEC, reasoning that a mere email address, even with a proper domain name, does not confer apparent authority on Mr. Arillotta. Judge William G. Young said it was no different than someone who showed up with a business card, company vehicle or used letterhead, each of which taken alone are insufficient to establish apparent authority. For that matter, if he ruled in favor of CSX, the Judge thought he would have been conferring on everyone at the corporation who had an email address the authority to enter into a contract, all the way down to the janitor.
CSX can't find the railroad cars taken by Mr. Arillotta.
You're The Judge: Do You Force A Rape Victim To Watch The Videotape Of The Crime?
Be Careful Before Issuing Your Ruling: You May Let The Defendants Go Free
You make the call.
It's not an easy one. A sixteen-year old, now 20, was gang-raped at a drunken party in Chicago in 2002. She was drunk, too, and apparently unaware of the sexual activity. The gang rape was videotaped, and at the trial of the defendants the tape was entered into evidence this past week.
Not surprisingly, the woman has not watched the tape, and she doesn't want to watch it.
But the defense attorneys want to cross-examine her, and they want her to watch the tape in order to conduct their cross-examination. They have a right to cross-examine her, but the law is unclear whether they have a right to force her to watch the tape. In fact, the issue hasn't come up before. At first the judge in the trial agreed with the defense attorneys and ordered the woman to watch the tape, and then threatened to hold her in contempt and put her in jail when she refused. The judge later reversed his position, and is now not requiring the woman to watch the tape.
Which leaves us with a rather uncomfortable situation for the inevitable appeal, should the defendants be convicted. According to this Chicago Sun Times article by Shamus Toomey, "The question will be: Were they significantly impaired in their ability to cross-examine and impeach the [woman] . . . or to bring out some fact that they couldn't otherwise get," said John Corkery, John Marshall Law School's acting dean, by the judge's ruling not to force the woman not to watch the tape.
You might be tempted to focus on the traumatic effect of watching the tape instead and to the exclusion of the Constitutional rights to confrontation and cross-examine your accuser, but don't be tempted, and don't react with a purely one-sided viewpoint. You're in the position of an appellate judge, and you have to balance these two issues. Which one do you give more weight? Who wins? Can you fashion a remedy where there are no losers?
RIM and NTP Are In The Make-up Honeymoon Phase. Will It Last This Time?
OK, MIPTC was wrong. I had predicted the downfall of the BlackBerry because it seemed the parties were so far apart and in philosophically different camps that they wouldn't be able to reach an agreement. But, as most BlackBerry users have found out by now, RIM, the maker of the BlackBerry, and NTP, the holder of the patent for the software that makes the BlackBerry work, have resolved their differences and patched things up.
For $612 million, but without future royalties. For now. While I've learned not to say I told you so on this one, we had a deal once before (for $450 million) that fell apart. It's not a deal I would have made, but then again, if somebody gave me $450 million, I probably wouldn't complain.
Time will tell if this one holds together. After all, the verdict was for $695 million, and Judge James Spencer sent a strong signal to RIM in Friday's hearing that he was about to issue the injunction, putting RIM out of business. RIM apparently (and finally) got the message.
Will the wife of the now-deceased inventor be satisfied with a $83 million discount and no future royalties? If you're in the driver's seat, would you be satisfied?
Coast to Coast Internet Radio Explores Big Firms and Big Business
Law firm mergers and acquisitions are making law firms much like corporate America. Coast to Coast, with my co-host Bob Ambrogi, an East coast attorney and fellow Law.com Blog Network blogger, explores this growing trend toward mega-firms on this show. Our guests are experts with compelling insights on this topic: Attorney and national legal writer, Eric J. Sinrod, partner in the San Francisco office of Duane Morris LLP - one of the largest firms in the U.S. and Attorney, fellow Law.com blogger and well-known legal consultant, Bruce MacEwen from New York. We discuss whether mega-firms better serve legal clients in a new global legal community.
Bruce MacEwen is a lawyer, businessman, and consultant to law firms. He is a charter member of the New York State Bar’s Section on Law Practice Management, and has been nominated as a Fellow in the College of Law Practice Management. Bruce will be an adjunct professor at SUNY/Stony Brook's Graduate School of Business, teaching the core course "Strategic Technology & Innovation," in the school's MBA program, exclusively for law firm leaders (the first of its kind in the country). You can also check out Bruce’s wildly popular and widely read blog, “Adam Smith, Esq.,” which addresses the business side of law firms.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris LLP. Mr. Sinrod’s trial, appellate, and overall litigation practice, which includes experience before the United States Supreme Court, has covered a number of important Internet, technology, intellectual property, information, communications, commercial, antitrust and insurance coverage issues. He has represented domestic and international clients in major class actions and where hundreds of millions of dollars have been at stake. He also has handled numerous matters for smaller companies and individuals. Mr. Sinrod recently was highlighted by an outside publication as "the leading IP attorney in the land," and he has been selected by his peers as one of the "Best Lawyers in America" in the area of Cyber Law and as a "Super Lawyer" for Business Litigation. Recently, Mr. Sinrod wrote an article featured on Findlaw.com and CNETnews.com entitled, “I Want My BlackBerry.” Click on the podcast link below and give a listen to this week's show.
Sea Sponges Take Over Appellate Brief
Hold on to your computer mouse before you hit "Replace All" on your word processor's spell check. Here's a story that will make any spell-check conscious lawyer cringe.
A Santa Cruz solo practitioner representing a judge, now retired from the bench, sought reversal of his somewhat forced resignation due to a flap over traffic ticket convictions. The lawyer submitted a brief to the court of appeal and dutifully ran spell check before submitting it. The brief contained the Latin words sua sponte, which mean "of one's own will," and commonly meant by lawyers to refer to a Court's own power to do something on its own.
After submitting the brief, he got a call from his client, the former judge, asking for an explanation of the Latin phrase "sea sponge." (Side note here, and although I haven't taken Latin classes in awhile, "sea sponge" isn't Latin.)
Turns out that the lawyer was using Word Perfect, which doesn't have sua sponte in its dictionary.
The program does, however, think that "sua" was probably meant to refer to "sea," and since you've been paying attention so far - yep you guessed it - Word Perfect also thought "sponte" was supposed to be "sponge."
When the lawyer clicked "Replace All" each time on those two words, the word processor replaced sua sponte five times, and gave the brief such gems as: "An appropriate instruction limiting the judge's criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction," as well as "It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense."
MITPC is checking to see if there's a Black's Dictionary download for the Word and Word Perfect dictionaries. We'll keep you informed.
March 4, 2006 Update: faithful spellcheckers may want to try SpellEx's product for law firms, software recommended by one of MIPTC's technical consultants. We're going to give it a try and will let you know how it turns out.
Dydd Gwyl Dewi Hapus! Happy St David's Day!
Today, March 1, is St. David's day, and celebrated by wearing a leek or a daffodil in your buttonhole if you're Welsh like me. You can also fly his flag, St. David's Cross, which has a black background and a yellow cross. According to his biography written in the 11th Century, St. David, known as Dewi Sant, died on March 1, 589. Born in approximately 487, his lineage is considered royal, and he is popularly and proudly traced back to King Arthur through his mother, Lady Non, who was the daughter of a local chieftain. Legend has it that Lady Non was a niece of King Arthur.
St. David is believed to have established many churches and some five monasteries in Wales and in 545 took a pilgrimage to Jerusalem, where he was anointed by the patriarch. St. David's Cathedral is named for him and dedicated to his memory, and at least one city is named after him. Apart from this productivity, he lived an ascetic life, eating leeks and other vegetarian fare, bread with salt and herbs, drinking only water, avoiding alcohol and meat. In his last sermon before he died he said, "'Be joyful, and keep your faith and your creed. Do the little things that you have seen me do and heard about. I will walk the path that our fathers have trod before us." The phrase, 'Do the little things' ('Gwnewch y pethau bychain') is today a very well-known phrase in Wales, and has proved an inspiration to many.
St. David's influence in the country is far-reaching. As an example, the emblem of Wales is the leek, which came from a battle near a castle between the Welsh and Saxon English. At St. David's advice, troops of Welsh wore leeks on their "uniforms" and were thus able to distinguish each other from troops of Saxon English enemy, who were dressed in similar clothes. The English government has instead developed the daffodil as an alternative emblem in recent history, used and preferred over the leek by the English government because it lacks the overtones of Wales' patriotic defiance associated with the leek.
Unlike many other Welsh saints, David was canonised by Pope Callixtus II in 1120. In 1398, the church ordained that his feast-day was to be kept throughout the Province of Canterbury. The feast of Dewi as a religious festival came to an end, however, with the Protestant Reformation in the 16th century, but St. David's Day was established as a national festival during the18th century. The day is celebrated by children wearing the Welsh National Costume: schoolgirls in a pais a betgwn - a petticoat and overcoat - made of Welsh flannel, and a tall beaver hat, worn over a frilled white bonnet. The boys wear a white shirt with a jabbot and wrist frills, a Welsh flannel waistcoat, black breeches, long woollen socks and black shoes and to complete the outfit, also a flat beaver hat.
The day is celebrated by parades, dancing, singing (link has sound, and is the National Anthem of Wales, Land of My Fathers), eating and no school. To honor St. David as you go about your day, don't forget to do the little things. And on St. Patrick's Day, don't forget to wear orange (a typical Welsh dig at the Irish).
Businesses Beware: You Don't Have To Pay A Fee For DocuMinute's 'Shareholder Compliance'
DocuMinute.com (that website now responds with a "Cannot find server") has been sued by the California Attorney General for sending bogus mailings to businesses seeking a $100.00 to $175.00 fee for supposed government compliance with shareholder listings. The suit, filed in Orange County Superior Court, names DocuMinute, Business Compliance Division LLC and Basics Financial Corp. and seeks an injunction to shut down the operations and penalties from the owners. If you receive government-looking "official" letters from these companies, you can safely put them in the round file.
A Google search turned up a blistering thread of posts about this apparent scam. Beware out there: email scams are not the only way to get hoodwinked.