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Ruling gives Sandusky back $4,900-a-month Penn State pension
Opinions | 2015/11/11 16:23
The state must restore the $4,900-a-month pension of former Penn State assistant football coach Jerry Sandusky that was taken away three years ago when he was sentenced to decades in prison on child molestation convictions, a court ordered Friday.

A Commonwealth Court panel ruled unanimously that the State Employees' Retirement Board wrongly concluded Sandusky was a Penn State employee when he committed the crimes that were the basis for the pension forfeiture.

"The board conflated the requirements that Mr. Sandusky engage in 'work relating to' PSU and that he engage in that work 'for' PSU," wrote Judge Dan Pellegrini. "Mr. Sandusky's performance of services that benefited PSU does not render him a PSU
employee."

Sandusky, 71, collected a $148,000 lump sum payment upon retirement in 1999 and began receiving monthly payments of $4,900.

The board stopped those payments in October 2012 on the day he was sentenced to 30 to 60 years in prison for sexually abusing 10 children. A jury found him guilty of 45 counts for offenses that ranged from grooming and fondling to violent sexual attacks. Some of the encounters happened inside university facilities.

The basis for the pension board's decision was a provision in the state Pension Forfeiture Act that applies to "crimes related to public office or public employment," and he was convicted of indecent assault and involuntary deviate sexual intercourse.

The judges said the board's characterization of Sandusky as a Penn State employee at the time those offenses occurred was erroneous because he did not maintain an employer-employee relationship with the university after 1999.

The judges ordered the board to pay back interest and reinstated the pension retroactively, granting him about three years of makeup payments.



High court weighs 3 death sentences in Kansas cases
Opinions | 2015/09/28 21:59
The Supreme Court on Wednesday seemed likely to rule against three Kansas men who challenged their death sentences in what one justice called "some of the most horrendous murders" he's ever seen from the bench.

The justices were critical of the Kansas Supreme Court, which overturned the sentences of the men, including two brothers convicted in a murderous crime spree known as the "Wichita massacre."

It was the first high court hearing on death penalty cases since a bitter clash over lethal injection procedures exposed deep divisions among the justices last term.

The debate this time was over the sentencing process for Jonathan and Reginald Carr and for Sidney Gleason, who was convicted in a separate case of killing a couple to stop them from implicating him in a robbery.

The Kansas Supreme Court overturned death sentences in both cases, saying the juries should have been told that evidence of the men's troubled childhoods and other factors weighing against a death sentence did not have to be proven beyond a reasonable doubt.

The state court also ruled that the Carr brothers should have had separate sentencing hearings instead of a joint one. It said Reginald Carr's sentence may have been unfairly tainted because Jonathan Carr blamed Reginald for being a bad influence during their childhoods.

While the attorneys on both sides focused on the legal technicalities, several of the justices couldn't help but dwell on the sordid facts of the Carr case during two hours of oral argument.

Justice Samuel Alito said it involves "some of the most horrendous murders that I have ever seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country."

At one point, Justice Antonin Scalia recounted at length the brutal details. Authorities said the brothers broke into a Wichita, Kansas, home in December 2000, where they forced the three men and two women inside to have sex with each other while they watched, then repeatedly raped the women. The brothers then forced the victims to withdraw money from ATMs before taking them to a soccer field, forcing them to kneel, and shooting each one in the head.


Disgraced ex-journalist fights for CA law license
Opinions | 2011/12/27 00:34
A former journalist who became the subject of a Hollywood movie after he was caught fabricating articles in the late 1990s is fighting to become a lawyer in California over the objections of a state bar committee.

Stephen Glass, whose ethical missteps at The New Republic and other magazines were recounted in the film "Shattered Glass" and an autobiographical novel, has challenged the bar committee's decision to deny him a license to practice law, the San Francisco Chronicle reported Monday.

Glass attended law school at Georgetown University and passed California's bar exam in 2007. His application for an attorney's license was turned down by the state's Committee of Bar Examiners, which judged him morally unfit for his new profession.

But an independent state bar court ruled in Glass's favor in July and the California Supreme Court has since agreed to hear the committee's appeal. No date for oral arguments has been set.

The bar association's lawyers said in written filings that even though Glass' transgressions occurred when he was in his 20s, his attempts at atonement were inadequate and in some cases coincided with the publication of his novel. They faulted him for never compensating anyone who was hurt by his falsehoods.


Is the iPhone Ready for Law Firms?
Opinions | 2009/10/02 23:14

It used to be that the only thing lawyers tried to recruit was new clients. But these days, seemingly every firm has a group of attorneys pushing to bring aboard something else entirely: iPhones. And they want them badly.

"I have probably 15 people who continue to e-mail me about it," says the IT director at an Am Law 100 firm who asked not to be identified. "This one attorney, he goes out and finds someone who says he can solve any iPhone problem for $175," he says. "These attorneys, they want this thing so much, they are off trying to solve my problems. God bless them, but they don't know what they're doing."

The issue isn't technical. It's relatively simple to hook an iPhone into a corporate network, since it can use the same Microsoft Exchange Server that most firms already use for their BlackBerrys. Instead, IT directors' reluctance boils down to this: The BlackBerry was designed from the ground up to do one thing: transmit e-mail securely. Other features have been tacked onto newer models, but robust, secure, immediate e-mail was -- and is -- at the BlackBerry's core. The iPhone, on the other hand, is more of a consumer device with e-mail tacked on. Law firms shied away from the iPhone because it couldn't match the BlackBerry on security. And security -- well, that's at the core of a law firm IT director's job. "The original iPhone and the later 3G model had no local encryption, which meant that everything on the device was stored in clear text," says the IT director. "The simple passcodes many users had -- if they used any passcode at all -- could be hacked, and then everything would be viewable. We told our attorneys this was a deal-breaker."

But with the release of the latest iPhone, the 3GS, along with the new iPhone 3.0 operating system, the platform is looking more business-friendly. Forget about the consumer-oriented enhancements (like the upgraded camera on the 3GS, capable of shooting video). The real story, at least for law firms, is the vast array of enterprise-focused improvements. The 3GS phone now has local encryption along with more memory (up to 32 gigabytes) and a faster processor. And with the 3.0 OS, law firms running Exchange can require the use of strong passwords (the complicated ones, with numbers and letters, that no one except IT administrators want to take the time to create and use) and remotely wipe devices that have been lost or stolen. Users get a long-awaited, cut-copy-paste feature (a glaring omission on the iPhone until now), a landscape keyboard option for easier typing, and the ability to search the "from," "to," and "subject" headers (but not, alas, the body) on their e-mail, as well as their iPhone contact list, calendar and notes.



Six-figure Cabinet jobs sometimes mean a pay cut
Opinions | 2009/01/27 23:15
Jobs in President Barack Obama's Cabinet come with a pay cut for some of his appointees, who made millions from investments and lucrative careers in law, lobbying and business before joining his administration, according to financial reports the government released Tuesday.

At least one must sell stock to avoid potential conflicts of interest.

Obama's choice for deputy defense secretary, William J. Lynn, until recently a lobbyist for military contractor Raytheon, holds Raytheon incentive stock valued at $500,001 to $1 million, the documents show. The stock is due to vest next month. He has Raytheon "unvested restricted stock" worth $250,001 to $500,000.

Lynn has said he will sell the stock. He received a salary of $369,615 last year as a Raytheon senior vice president, and is expecting a 2008 cash bonus of $100,001 to $250,000 to be paid this March, his report shows. Obama has given Lynn a waiver from ethics rules banning employees from taking part in decisions related to their former employers for two years and prohibiting them from taking jobs in agencies they recently lobbied. If he is confirmed as expected, Lynn will be subject to ethics reviews for one year.

Government ethics rules require senior administration officials to provide details annually on their personal finances. The reports include descriptions of assets, income and debt — typically given in ranges rather than exact amounts — and lists of gifts and any outside positions. The disclosures are intended to shine a light on and help avoid any potential conflicts of interest.

The report for Obama's nominee to become attorney general, Eric Holder, shows he received $3.3 million, including deferred compensation, as a partner at the law firm Covington & Burling, far more than the $196,700 he would make as a member of Obama's Cabinet. He anticipates receiving a $1 million to $5 million partner separation payment when he leaves the firm.



Senate Democrats subpoena Mukasey over detainees
Opinions | 2008/10/22 02:44
Senate Democrats on Tuesday subpoenaed Attorney General Michael Mukasey for testimony and documents about the Justice Department's legal advice to the White House on detention and interrogation policies since the 9/11 terrorist attacks.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., complained to Mukasey that after five years of efforts to glean the information, the committee still has seen only a fraction of the documents it is seeking.

"There is no legitimate argument for withholding the requested materials from this committee," Leahy wrote in a letter to Mukasey that accompanied the subpoena.

The Justice Department blasted the subpoena as a partisan move.

"We have worked in good faith over the past several months to see that the Judiciary Committee's legitimate oversight requests were being met in a manner consistent with the Justice Department's equally legitimate and long-standing need to provide confidential legal advice within the executive branch," department spokesman Brian Roehrkasse said. "We will now assess our next steps."



Second Circuit Deals a Severe Blow
Opinions | 2008/04/08 14:37

Last week, the U.S. Court of Appeals for the Second Circuit issued its opinion in McLaughlin v. American Tobacco Co. The decision constituted a major win for Big Tobacco - and a major loss for the plaintiffs.

The theory behind the case - which was a class action -- was simple. The plaintiff class was composed of persons (and the estates of persons) who had smoked lights cigarettes and allegedly suffered harm. The plaintiff class alleged that the tobacco industry has known for years that "light" cigarettes are not safer than regular cigarettes. Therefore, the class argued, the advertisement campaigns for light cigarettes constituted a form of consumer fraud, in which the seller promised one thing (a safer cigarette) and intentionally delivered something else (a cigarette that was not, in fact, safer).

Given this compelling, simple theory, why did the plaintiffs suffer a major loss? In this column, I'll explain the reasons. I'll also consider what that loss might mean for the future of consumer class actions in the Second Circuit.

A Prediction Made by Many Observers, Based on the Oral Argument, Is Now Fulfilled

Last July I wrote a column suggesting that Michael Hausfeld, one of America's greatest plaintiffs' lawyers, had made a crucial error in an oral argument in this case - an error that, I contended, ensured that the Second Circuit would hand him a defeat. In fact, my prediction was confirmed--Hausfeld lost 3-0 before the Second Circuit. Importantly, however, I was far from

the only person who predicted that Hausfeld would lose. To the contrary, it was the conventional wisdom among lawyers observing the case that the Second Circuit would reverse the lower court's decision. After all, the district judge was Jack Weinstein, and his decision was a true Weinstein special--brilliant, iconoclastic, and somewhat inconsistent with precedent.

Hausfeld's major error, as I explained in my prior column, occurred when he told the panel that there was nothing out of the ordinary with Judge Weinstein's decision, and that they would be breaking with twenty years of precedent if they did not affirm the lower court. That statement was, on its face, ridiculous, and it left the two moderates on the panel - Judges Walker and Pooler - nowhere to turn if they were inclined to help the plaintiffs in the case. (The last member of the panel, Judge Winter, was a lost cause from the start.)

Before the argument, it had seemed plausible that the McLaughlin class action might appeal to the sympathies of the two moderates.

Other lawyers have brought lights cases around the country with mixed success. Moreover, since lights cases are fraud cases involving money damages, not personal injury, they should, in theory, have been easier to certify as class actions, since class actions in tobacco have proven impossible to certify when they involved highly individualized questions regarding cancer and other ailments. But this case proved somewhat different.

Overextending the Reach of the "Fraud on the Market" Theory

Hausfeld hit upon the idea of bringing a nationwide class action based on a federal racketeering statute, the Rackeetering-Influenced Corrupt Organizations ("RICO") law. This strategy had the advantage of permitting Hausfeld to consolidate the millions of small-value individual claims into a single, huge, $800 million class action ($2.4 billion, if treble damages were awarded, as RICO allows).

Racketeering law is still the law of fraud, however, and fraud class actions have their own problems. The single most important problem is that fraud typically requires proof of reliance -- that is, proof that it was the defendant's intentional misrepresentation that caused the victim of the scheme to part with his or her money.

Judge Weinstein held that because the advertisement campaigns for light cigarettes were directed towards the public as a whole, the question of class-wide reliance could be solved by simply borrowing the concept of "fraud on the market" from securities fraud. This theory holds that generalized, class-wide reliance can be shown - and individualized reliance need not be shown - if the defendant engaged in "uniform misrepresentations" to which the entire market for a particular product (such as a stock) was exposed.

Hausfeld suggested at last year's oral argument that the Second Circuit had already held in previous cases such as Moore v. PaineWebber, Inc. that generalized proof of reliance could be adopted by the courts where the defendant engaged in "uniform misrepresentations," and that Weinstein had merely applied Moore to the lights case. In my view, this was Hausfeld's biggest error: to claim

that the facts in the "lights" cases were just like the facts in financial fraud cases like Moore. As the Second Circuit noted in its rejection of Hausfeld's argument, it had stated in Moore that generalized proof of reliance would only be appropriate in the absence of "material variation in the kinds or degrees of reliance by the persons to whom" the misrepresentations were addressed.

At oral argument, the panel in the "lights" case was very concerned that the record suggested that smokers had a variety of reasons for buying "lights" cigarettes -- even though the advertising by the tobacco industry had affected the choices of almost all purchasers. The problem was that no one knew how much that advertising mattered to the smokers' overall decision of which cigarettes to buy, and whether to buy cigarettes at all. People may have bought "lights" for non-health-related reasons.

In sum, by saying to the Second Circuit that its previous rulings obliged it to treat a consumer product like cigarettes just like a financial product or a security, Hausfeld may have caused the panel to rule exactly the opposite way from the way he had sought. In the decision last week, the court seemed to suggest that, notwithstanding Moore, plaintiffs would be hard-pressed to be able to come up with cases where circumstantial evidence would be sufficient to permit a presumption of reliance.

As I said earlier, the decertification of the lights class action was not, in itself, a great surprise. The case was always a bit of a gamble. (In fact, the Supreme Court has just granted review in a federal preemption case that might eliminate "lights" litigation entirely.) But did the Second Circuit go further than just decertifying this particular action, to foreshadow doom for similar consumer actions in the future?

Did the Second Circuit Shut the Door on Future, Similar Consumer Class Actions?

Put another way, by overreaching, did Hausfeld provoke the Second Circuit into overreacting, thus producing a decision that shuts the door for future consumer class actions?

I don't think so. It is important to note that the Second Circuit went out of its way to distance itself from the Fifth Circuit's 1996 decision in Castano v. Am. Tobacco Co,. which the Second Circuit described as imposing a "blanket rule" against class certification whenever issues of individual reliance exist.

Furthermore, the phrase "material variation," which the court used to map out the boundary between acceptable and unacceptable class-wide treatment, is not meaningless --- although Hausfeld, in oral argument, seemed to suggest it was.

Rather, "material variation" clearly contemplates that will be some individual differences between the reasons for reliance among the members of a class. Thus, it does not require, for certification, a presumption that all members of the class have identical reasons for acting (as is the case in fraud-on-the-market in the securities context, where investors are presumed to all know about and act on public information).

Consider, for example, a hypothetical consumer fraud claim based on the purchase of word-processing software that fails to work with a certain type of computer, despite contrary representations by the manufacturer on the box. It may be the case that some of the class of consumers who purchased the software did not, in fact, rely on that representation. For example, some of these purchasers might not have owned a computer incompatible with the software until after they bought the software, so the misrepresentation may have been irrelevant to them at the point of purchase.

However, one might assume that, at the point of purchase, all of the purchasers would have placed a value on the full functionality of the software, even if their decision to buy was not motivated by a desire to exploit that functionality. Let's assume - quite realistically, I think -- that functionality with a typical range of computers is part of the core set of elements that consumers expect in a commercial software program. If so, then the fact that some did not actually subjectively respond to the misrepresentation about functionality should not be, even after last week's Second Circuit decision, a bar to class certification. That is because the differences in various class members' reasons for purchasing the software do not vary in any "material" sense, and thus, the hypothetical class proposed by this example should not fail the Second Circuit's "material variation" test.



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