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Court reverses conviction on online Obama threat
Legal News |
2011/07/20 16:20
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A federal appeals court on Tuesday overturned the conviction of a man who posted Internet messages threatening Barack Obama during his 2008 presidential campaign.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Walter Bagdasarian's violent and racist screeds against Obama were "repugnant" but not criminal. The court also said it was obvious the San Diego man wasn't planning to attack the candidate and that the postings were protected by Bagdasarian's free speech rights.
Bagdasarian was convicted in 2009 of two felony counts of threatening a major presidential candidate.
Bagdasarian posted several messages to a Yahoo Finance message board in October 2008, including one that called Obama a racial epithet and another that said "he will have a 50 cal in the head soon" — a reference to a .50 caliber gun.
A retired Air Force officer forwarded the postings to the Secret Service. Yahoo provided Bagdasarian's subscriber information to investigators, who raided his house and seized six guns and a hard drive containing an email with similar sentiments.
Bagdasarian admitted posting the messages, but said he was drunk and joking.
He waived his right to a jury trial. District Judge Marilyn L. Huff found him guilty and sentenced him to 60-days in a half-way home.
But the appeals panel said no "reasonable person" could have taken seriously Bagdasarian's posts. |
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Ex-CEO convicted in scam at auto-chemical company
Court Center |
2011/07/20 11:21
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A former corporate executive officer of a New York-based automotive-chemical company was convicted Tuesday in a multimillion-dollar investor fraud scheme that enabled him to buy expensive jewelry and take private jets.
A jury in Manhattan state Supreme Court found Cleveland lawyer James Margulies guilty of charges including grand larceny and scheme to defraud. He faces up to 25 years on the top two counts, which could run consecutively. Bail was set at $1.5 million.
Ira London, an attorney for Margulies, said he planned to file "a very vigorous appeal."
"The jury has spoken. I believe they have convicted an innocent man," he said.
While serving as the company's finance chief — and briefly as CEO — of Industrial Enterprises of America, Inc., from 2004 to 2008, Margulies illegally issued millions of shares of stock to friends and relatives, inflating the share price by making the company look more profitable than it was, prosecutors said.
A teachers' pension fund in Ohio and a church were among the victims of the scheme, prosecutors said.
Margulies personally reaped more than $7 million, spending it on lavish luxuries such as a $350,000 diamond ring for his wife from jeweler Harry Winston, prosecutors said.
He also paid more than a million dollars on the mortgage of his first home, bought a second home and spent $500,000 on a vacation club membership, prosecutors said.
Margulies was charged in the scheme in 2010 along with John D. Mazzuto, who pleaded guilty Jan. 14 to his role in issuing fraudulent shares of stock. |
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When is a Person an Employee of Another?
Lawyer Blogs |
2011/07/19 16:20
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.
Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another |
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High court sets oral arguments in campaign lawsuit
Court Center |
2011/07/16 05:21
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A conservative group fighting campaign finance rules in Montana says in a recent filing that it agrees disclosure laws can apply to corporate speech, but Western Tradition Partnership argues it isn't subject to current disclosure laws because its attack mailers fall outside the definition of "electioneering."
The Montana Supreme Court has set oral arguments for September in the state's challenge to a district court decision that tossed out the outright ban on corporate political spending.
Western Tradition Partnership first filed the lawsuit last year piggybacking on the high-profile Citizen's United case decided by the U.S. Supreme Court. The group aims to undo Montana's century-old restriction on corporate political spending.
Western Tradition is separately fighting a decision that it failed to report campaign expenditures. The group argues its activities are not intended to influence elections.
In a brief filed earlier this month with the Supreme Court on the main case fighting the ban corporate campaign spending, WTP made it clear it believes campaign finance regulation is OK.
"If the State is truly concerned with accountability, the state has other means at its disposal, such as disclosure laws, to make sure that people know who is speaking," Western Tradition argued in the brief. "It is inappropriate, and indeed, unconstitutional, to completely outlaw corporate political speech." |
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Ryan & Maniskas, LLP Announces Class Action Lawsuit Against Ebix, Inc.
Law Firm Business |
2011/07/16 05:21
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Ryan & Maniskas, LLP (www.rmclasslaw.com/cases/ebix) announces that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of purchasers of the common stock of Ebix, Inc. ("Ebix" or the "Company") (NASDAQ: EBIX) between May 6, 2009 through June 30, 2011, inclusive (the "Class Period").
For more information regarding this class action suit, please contact Ryan & Maniskas, LLP (Richard A. Maniskas, Esquire) toll-free at (877) 316-3218 or by email at rmaniskas@rmclasslaw.com or visit: www.rmclasslaw.com/cases/ebix.
Ebix supplies software and electronic commerce solutions to the insurance industry. The Complaint alleges that during the Class Period, Defendants issued a series of materially false and misleading statements regarding the Company's business and financial results. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company's tax provisions did not conform to Generally Accepted Accounting Principles; (2) the Company overstated its account receivables; (3) the Company consistently failed to tie customer payments to specific invoices; (4) the Company lacked adequate internal and financial controls; and (5) as a result of the foregoing, the Company's statements were materially false and misleading at all relevant times.
On March 24, 2011, Seeking Alpha published a report ("Report”) accusing the Company of engaging in a number of accounting manipulations, including: (a) manipulating stated organic growth; (b) overstating profit margins; (c) overstating its accounts receivables; (d) manipulating tax liabilities; and (e) inflating cash flows. The Report concluded that the Company’s "problems run deeper than accounting. The EBIX story also comes with multiple auditor resignations, governance abuses, misrepresented organic growth, questionable cash flow and a contentious CEO.” On this news, the Company’s shares plummeted $7.20 per share, or nearly 24%, to close on March 24, 2011, at $22.52 per share, on unusually heavy trading volume.
On June 30, 2011, the media reported that the shareholders of Peak Performance Solutions, Inc. ("Peak”), who sold their business to Ebix, filed a lawsuit in the United States District Court for the Southern District of Ohio, claiming that Ebix was consistently unable to bill customers properly, tie customer payments to invoices, and provide basic financial data or calculate revenues for Peak. On this news, the Company's shares declined an additional $1.30 or more than 6% and closed at $19.05.
If you are a member of the class, you may, no later than September 12, 2011, request that the Court appoint you as lead plaintiff of the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Ryan & Maniskas, LLP or other counsel of your choice, to serve as your counsel in this action.
For more information about the case or to participate online, please visit: www.rmclasslaw.com/cases/ebix or contact Richard A. Maniskas, Esquire toll-free at (877) 316-3218, or by e-mail at rmaniskas@rmclasslaw.com. For more information about class action cases in general or to learn more about Ryan & Maniskas, LLP, please visit our website: www.rmclasslaw.com.
Ryan & Maniskas, LLP is a national shareholder litigation firm. Ryan & Maniskas, LLP is devoted to protecting the interests of individual and institutional investors in shareholder actions in state and federal courts nationwide. |
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Regulators shut 4 small banks in 3 states
Headline News |
2011/07/15 09:22
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Regulators on Friday shut down four small banks in three states, boosting to 55 the number of U.S. bank failures this year.
The overall pace of closures, however, has slowed this year as banks work their way through piles of bad debt. A slow, but improving U.S. economy also has helped stem the number of bank casualties this year. By this time last year, regulators had closed 96 banks.
The Federal Deposit Insurance Corp. seized High Trust Bank in Stockbridge, Ga., One Georgia Bank in Atlanta, First Peoples Bank in Port St. Lucie, Fla., and Summit Bank in Prescott, Ariz.
The action brings to 16 the number of lenders to collapse this year in Georgia. In Florida, the tally is now seven, while in Arizona it's now two.
High Trust had about $192.5 million in assets and $189.5 million in deposits, while One Georgia had about $186.3 million in assets and $162.1 million in deposits. First Peoples had about $228.3 million in assets and $209.7 million in deposits. |
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Biesecker named to NC investigations, court beats
Legal Watch |
2011/07/12 16:24
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Michael Biesecker, an award-winning reporter and investigative journalist for The News & Observer of Raleigh, has been hired by The Associated Press to cover federal courts, investigations and politics in North Carolina.
Biesecker is a North Carolina native and has spent his 15-year-career in his home state. He worked at the Winston-Salem Journal in a variety of positions including as a columnist and reporter before going to work for The News & Observer in 2003. He has covered the state capital for the newspaper since 2009.
His work probing the failings of North Carolina's mental health care system in 2008 uncovered more than 80 questionable deaths in state mental hospitals. The newspaper's series "Mental Disorder: The Failure of Reform" led to new policies on how state facilities report deaths and monitor care. He has won numerous awards from the North Carolina Press Association, including for general news and for investigative reporting. In 2008, he was part of a team that won an Associated Press Managing Editors Association First Amendment Award for reporting on access to email written by public officials.
The appointment was announced Monday by South Editor Lisa Marie Pane, Chief of Bureau Michelle Williams and Carolinas News Editor Evan Berland.
"Biesecker has some serious reporting chops and we're looking forward to his using those to cover the vitally important federal courts beat and being involved in some important investigative projects," Pane said. |
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