Legal Eagles: Current Law Case Discussion & Other Legal News

Rambo

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This is some horseshit:

http://www.reuters.com/article/2014/12/09/us-usa-court-workers-idUSKBN0JN1P820141209

Supreme Court rules no worker pay for security screening

(Reuters) - The U.S. Supreme Court on Tuesday handed a victory to employers over worker compensation, ruling that companies do not have to pay employees for the time they spend undergoing security checks at the end of their shifts in a case involving an Amazon.com Inc warehousing contractor.

On a 9-0 vote, the court decided that employees of Integrity Staffing Solutions facilities in Nevada, where merchandise is processed and shipped, cannot claim compensation for the time they spend going through security screening - up to half an hour a day - aimed at protecting against theft.

Justice Clarence Thomas wrote on behalf of the court in the important employment law case that the screening process is not a "principal activity" of the workers' jobs under a law called the Fair Labor Standards Act and therefore is not subject to compensation.

For workers to be paid, the activity in question must be “an intrinsic element” of the job and “one with which the employee cannot dispense if he is to perform his principal activities,” Thomas wrote.

The high court reversed an April 2013 ruling by the 9th U.S. Circuit Court of Appeals, which had found that the screenings were an integral part of the warehousing job done for the benefit of the employer and should be compensated.

Employees had sued Integrity Staffing Solutions for back wages and overtime pay, saying they should have been paid for the time spent going through security screenings.

Amazon, the world's largest online retailer, is not directly involved in the case. But a business group called the Retail Litigation Center, in a brief supporting the warehousing company, said the industry in general loses $16 billion annually in thefts.

The ruling is likely to benefit other companies facing similar lawsuits including Amazon, CVS Health Corp and Apple Inc, according to Integrity's lawyers.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote a brief concurring opinion to stress that the high court's opinion was consistent with Labor Department regulations.

President Barack Obama's administration had backed the warehousing company's position. Both the company and the government said the security checks are not central to warehouse work and instead are more like waiting in line to punch a time clock, an activity some courts have found does not require compensation.

The case is Integrity Staffing Solutions, Inc v. Jesse Busk and Laurie Castro, U.S. Supreme Court, No. 13-433.
 

Zé Ferreira

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Right. It's just a natural continuation of already-established principles. Opening the door the other way ends up with employers having to pay for your travel time to and from your shift, how long you take at home to get ready for the job, etc.
 

Rambo

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Right. It's just a natural continuation of already-established principles. Opening the door the other way ends up with employers having to pay for your travel time to and from your shift, how long you take at home to get ready for the job, etc.
Come on. This is just trolling.
 

Journeyman

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I agree that the decision is a pile of steaming dung.

Whilst undergoing security screening is "not a principal employment activity" (I can't imagine that it would ever be, unless you get paid to test security screening systems!), clearly it is integral to these people's employment. After all, their employer requires that they undergo the security screening if they want to work in that place. It is, in other words, an involuntary, mandated procedure that the employees must follow and which they cannot avoid if they wish to be employed. It therefore seems ridiculous that they clock off beforehand and yet must still engage in an activity that they cannot avoid and which is clearly work-related.

If it was a voluntary procedure, or if it was something that they could avoid by, as an example, moving closer to work, then I would understand the decision. However, treating a mandatory procedure insisted upon by the employer as not being compensable because it doesn't relate to their principal employment seems ridiculous - they need to have the screening in order to be able to do their job.
 

Rambo

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It is a voluntary procedure, they can avoid it by getting a job somewhere else.
No, its not, because if they're already employed they are forced to go through it. Expecting these people to just up and quit their jobs is a bit ridiculous.
 

Rambo

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Possibly the worst decision ever made by the Supreme Court.



Ignorance of the law is no excuse, unless you're paid to enforce the law.
I was just coming to post that.

To me, this sounds like legal footing for cops to effectively skirt the law by claiming "misunderstandings"
 
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Zé Ferreira

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Rambo Rambo based on your knowledge of secure email and e-privacy, I've learned that email harvesting can break attyclient privilege. What email programs/groups don't "harvest" (the buzzword I took from the conversation), thus basically maintaining security?

ie; is using Gmail as the basis for communications as a sole practitioner secure enough to maintain privilege in a fight? JimmyRustler - what have you been using on your own?
 

Rambo

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Rambo Rambo based on your knowledge of secure email and e-privacy, I've learned that email harvesting can break attyclient privilege. What email programs/groups don't "harvest" (the buzzword I took from the conversation), thus basically maintaining security?

ie; is using Gmail as the basis for communications as a sole practitioner secure enough to maintain privilege in a fight? JimmyRustler - what have you been using on your own?
Jimmy uses Gmail.

I'm not exactly sure what issues there would be RE: attorney client privileges via email harvesting, but I suspect we're not exactly talking about the same thing. This is the email harvesting I'm thinking about:

http://en.wikipedia.org/wiki/Email_address_harvesting

I think you're talking about something else.
 

Zé Ferreira

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Yeah, not discussing email-addresses; moreso email companies reading and being able to see emails sent through their servers. Just the word the guy I was talking to used.
 

Rambo

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Yeah, not discussing email-addresses; moreso email companies reading and being able to see emails sent through their servers. Just the word the guy I was talking to used.
Ah, well in reality, gmail can see everything you send between you and the client. Of course, so could any host. What I think you're wondering about is whether they'd be required to turn that information over upon subpoena?
 

Rambo

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Any opinions on this JimmyRustler John Lee Pettimore III John Lee Pettimore III Zé Ferreira Zé Ferreira

https://www.emptywheel.net/2015/01/28/marissa-alexander-jeff-toobin-and-blackledge/

By now, you probably know the story of Marissa Alexander, a charming young woman who tried to defend herself and her children from a criminally abusive ex in Florida. Another soul outrageously and scandalously prosecuted by the, by all appearances, morally and ethically bereft Angela Corey, the state prosecutor in Florida’s 4th Judicial Circuit. Marissa was, finally, released from jail today pursuant to a forced plea agreement. Via Reuters:

A Florida woman who says she fired a warning shot at her abusive husband was released from a Jacksonville jail on Tuesday under a plea deal that capped her sentence to the three years she had already served.

Marissa Alexander, 34, was initially sentenced to 20 years in prison in 2012 but her conviction was later overturned. She faced another trial on charges that could have put her behind bars for 60 years before she agreed to a plea deal in November.
Her case helped to inspire a new state law permitting warning shots in some circumstances.

Leaving the courthouse, Alexander cried as she thanked her supporters, sharing plans to continue her education in order to work as a paralegal.

Ms. Alexander is indeed out of incarceration and home tonight, though she will still, pursuant to the plea she entered, have to serve two years on home confinement, starting from this date going forward. She appeared on Anderson Cooper’s “AC 360″ tonight on CNN and looked simply radiant. I don’t normally get into red carpet like descriptions of people in legal cases I comment on, but in this case it really seems appropriate. She is quite a woman, and it is impossible not to be charmed by her, and wish her the very best.

But what I really come to write about is the commentary of Jeffrey Toobin, who was on after Marissa’s appearance to discuss the legal considerations with Cooper. Toobin was strident, unflinching, and spot on in what he said. So much so I nearly stood up and cheered. Instead, I made a transcript:

AC: Why would Angela Corey suddenly say [to Marissa Alexander] okay, if we are going to go to trial you face 60 years, we are going to go for 60 years in jail instead of the 20 years sentence?

JT: Because Angela Corey incompetent, because she is vicious and because she is a disgrace to prosecutors around the country”

AC: Really?

JT: I mean this is one of the most appalling examples of prosecutorial abuse I have ever seen. The harassment, the endless pursuit of this woman [Alexander] is just a blot on Florida, and our whole country.

AC: What makes it particularly, and why it captures so many people’s focus is during the George Zimmerman trial where obviously “stand your ground” was an issue, was raised, it seems it is a completely different interpretation of stand your ground.

JT: Well, that’s right. And I don’t know motive. I can’t tell you why Angela Corey pursued her so obsessively, and I…thinks it’s important to…all I know is what she did. All I know is what the facts are. The facts are that this woman had a very legitimate defense, this guy [Alexander’s ex] was a monster. He had a history of abuse of women, and that she [Alexander] would be pursued this way is just sickening.

AC: It is interesting, because the statute was amended subsequently basically to allow for warning shots and you wouldn’t necessarily be prosecuted for that, but it was not retroactive.

JT: Fortunately, this case has prompted a lot of outrage in Florida and around the country and that change in the law is one effect of this that was too late for her, too late to help her.

AC: It has to be such a gut wrenching decision, to decide to take a plea, to serve another 65 days in jail and then you get out, you have a record then, and you are under house arrest for another two years…or, maintain you innocence and risk another 60 years.

JT: It is a heartbreaking dilemma, but one thing tipped this case. You know, Angela Corey was not even negotiating, as far as I can tell, in good faith, but her lawyers, including Faith Gay of Quinn Emanuel, they were working pro bono on this case, they got a ruling from the trial judge that they could introduce evidence of all the abuse that Gray had imposed on other women…so that’s the trial setting that was going to happen.

Angela Corey is incompetent, vicious and a disgrace. Thank you Mr. Toobin, I could not possibly have said it better. As perfect as the description is, it may still be an understatement.

But, how did this come to be? How did Marissa Alexander face 20 years, get convicted, win an appeal, and come out of the appellate win only to face 60 years if she lost the retrial? Well, that is a subject that goes deeper than Jeff Toobin could really get into in a basic 3-4 minute cable TV hit.

Normally, a defendant such as Marissa Alexander might expect to be protected from such an escalation of sentence by the state’s attorney through the edicts of a case known as Blackledge v. Perry.

Blackledge v. Perry is a famous case known in criminal defense circles as the “upping the ante case”. Blackledge was convicted of a misdemeanor and appealed, which in North Carolina at the time meant he would get a new trial in a higher court. The state retaliated by filing the charge as a felony in the higher court, thus “upping the ante”. The Supreme Court in Blackledge held that to be impermissibly vindictive.

A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a [new trial] in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources. . . . And, if the prosecutor has the means readily at hand to discourage such appeals — by “upping the ante” through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy — the State can insure that only the most hardy defendants will brave the hazards of a [new] trial.

. . . A person convicted of an offense is entitled to pursue his statutory right to a trial . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.

So, Angela Corey impermissibly “upped the ante”, in violation of Blackledge, on Marissa Alexander when she sought 60 years imprisonment on Alexander upon retrial even though the sentence from the first trial was “only” 20 years, right? Unfortunately no.

You see, Corey did not up the number or nature of charges when charging the retrial, she alleged the same three counts, it is just that the law in Florida had changed, and Corey cravenly took advantage of it to unconscionably bludgeon Marissa Alexander.

Alexander, 33, was previously convicted in 2012 of three counts of aggravated assault with a deadly weapon and was sentenced to 20 years in prison by Circuit Judge James Daniel under the state’s 10-20-life law. Daniel actually imposed three separate 20-year sentences on Alexander but ordered that they be served concurrently, which meant Alexander would get out in 20 years.

The conviction was thrown out after the 1st District Court of Appeal in Tallahassee ruled that Daniel made a mistake in shifting the burden to Alexander to prove she was acting in self-defense. During jury instructions, Daniel said she must prove beyond a reasonable doubt that she was battered by her husband.
….
But Assistant State Attorney Richard Mantei, the lead prosecutor in the case, told the Times-Union his office was simply following the sentencing laws of the state of Florida.

The same appeals court that ordered Alexander’s retrial separately ruled last year that when a defendant is convicted of multiple counts under 10-20-life that arose from the same crime, judges must make the sentences consecutive and are not allowed to impose them concurrently.

The law has not changed since Alexander was sentenced in 2012, but courts throughout the state have been struggling to interpret what the Legislature meant when it passed sentencing laws regarding 10-20-life.

The Alexander case inspired the so-called “warning-shot” bill that will be part of the Florida legislative session that begins Tuesday. The proposal, which is expected to pass, would create an exception to the 10-20-life law and prohibit those who fire a warning shot from getting 20 years in prison.

So, it is, unfortunately, not really within the ambit of Blackledge. Which leaves us back where we started. Angela Corey. Corey was ridiculously aggressive in not affording Alexander, a victim herself, the benefit of the doubt on self defense, including the much misunderstood, and misdescribed, “stand your ground” provision.

With no protection from Blackledge and its progeny, and the curious ability of Marissa Alexander to be subject to the new “consecutive” provision in Florida’s 10-20-life gun laws, but not the new provisions on warning shots in stand your ground cases, this was the position Marissa Alexander found herself. Take a scandalous plea, the only one being offered by heinously unscripted Circuit Attorney Corey, or risk her children never seeing her out of custody in her natural lifetime. After seeing what Corey was willing to do, how could she not take the deal?

But, make no mistake, the only reason that this situation got to where it did is out of the sheer evil avarice of a woman not fir to represent the people of Florida, nor the justice system in America. Angela Corey is a walking talking picture of injustice. Thanks again to Jeff Toobin for saying that so clearly. And, best wishes and godspeed to Marissa Alexander.
 

Journeyman

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Given that we're talking about abuse of the legal system in Florida, have any of you ever heard of Joseph Gersten, who was (if I remember correctly) both a lawyer and a politician in Florida in the 1990s?

I worked with him briefly after he came to Australia. His story about what happened to him in his journey through Florida's legal system was both quite amazing and disturbing.
 

OfficePants

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Is this a conflict of interest? Should this attorney/firm recuse his/herself?

Scenario: a group starts a corporation and uses a certain law firm. Now one member leaves and is exposed to litigation by the corporation, and that member has met, knows, and has exposed private information to this firm. So, what do you think?
 

Zé Ferreira

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Is this a conflict of interest? Should this attorney/firm recuse his/herself?

Scenario: a group starts a corporation and uses a certain law firm. Now one member leaves and is exposed to litigation by the corporation, and that member has met, knows, and has exposed private information to this firm. So, what do you think?

My rudimentary knowledge says yes, but I'm also taking the MPRE in March. What does "is exposed to litigation" mean? Was a suit brought by the corporation against someone represented by the offshoot firm?
 

OfficePants

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My rudimentary knowledge says yes, but I'm also taking the MPRE in March. What does "is exposed to litigation" mean? Was a suit brought by the corporation against someone represented by the offshoot firm?

Yes, that's correct. One caveat, they assigned the case to another lawyer in the firm that never had any direct contact with the individual. Still, does a firm have to recuse themselves in a situation like this?
 

Zé Ferreira

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There's the old "chinese wall" idea you mention above - completely isolating the "exposed" member of the firm from any subsequent litigation. Although that's hard in practice, and somewhat frowned upon now.

I don't quite know how a firm could recuse themselves in the same way a judge would; judges can theoretically just be substituted, while firms have a long, ongoing, and often tenuous relation with corporate clients. Maybe refer their client to another non-conflicted firm? But that would seem like it's interfering with atty/client privilege somewhere, as well as cutting the firm out of rightful business.

If they did already construct the chinese wall around the other lawyer, I think that's an acceptable play and only by an affirmative showing of some breach of that wall would the firm be on the hook for breach of privilege.
 

Journeyman

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Typically, if there's any conflict, a firm should excuse itself from acting for either party. That way, it avoids any risk of the firm getting in trouble or being disqualified later in any legal process, which may set back the legal process and incur more costs etc.
 

OfficePants

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I'm sorta in agreement with both of you.

To Ze's point, that wall seems to have already been breached, as the main attorney is cc'ing the other attorney on emails between the parties. Perhaps minor, but still. But there can't reasonably have not been communication with the main attorney and the one that filed. The party being litigated against also has a right to a/c privilege, and the firm was being hired, not just the attorney. And I assume that privilege extends beyond where the relationship ended.

To Journeyman, it's surprising that they didn't raise the conflict right away. Since they didn't, it seems there is exposure here. Also, I wonder if this was always just about filing to force the party to settle, at least that's what I sorta read between the lines.
 

OfficePants

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Probably not, unless the firm directly represented the individual member in some capacity. If the firm's representation was limited to representation of the corporation then the firm can continue to represent the corporation.

Now, if the firm provided ANY individual representation of the members then it would be disqualified. So even if a member came and asked for a pre-nup or will to be drafted for the individual member that could be cause for conflict. Most corporate firms are smart enough to avoid this behaviour.

The Chinese Wall thing is generally frowned upon by Judges, as it's just a bullshit smokescreen in 8/10 cases.

The firm drafted an employment agreement for the individuals. Questions were asked by the individuals that were technically about protecting their interests, would this disqualify? What if an individual, during a meeting with the firm, asked them if they handle wills/estate?
 

Zé Ferreira

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Hair analysis is being debunked, or at least discredited just like fingerprints have been, bite mark analysis, footprint analysis, and lie detector tests. Heaven forbid police have to do actual police work.
 

Rambo

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Hair analysis is being debunked, or at least discredited just like fingerprints have been, bite mark analysis, footprint analysis, and lie detector tests. Heaven forbid police have to do actual police work.
I'm more interested in what's going to happen to the people who've been convicted based upon this evidence, as well as the cases themselves. They going to be retried? Overturned? Dismissed?
 

Zé Ferreira

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No, they won't, unless there was some unoverlookable gaff during conviction.

If a DA is convicting someone only on hair analysis, they're not doing their job.
 

Journeyman

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They going to be retried? Overturned? Dismissed?

Given the effort that a lot of prosecutor's offices go to in opposing the re-trial of prisoners in cases where it's pretty damned clear that they are not guilty, it's very hard to see that many "hair analysis" cases would be re-tried, let alone overturned.
 

Rambo

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Given the effort that a lot of prosecutor's offices go to in opposing the re-trial of prisoners in cases where it's pretty damned clear that they are not guilty, it's very hard to see that many "hair analysis" cases would be re-tried, let alone overturned.
Right, which is why I thought this was interesting. I mean, this is the highest domestic law enforcement agency in the country outright saying "we lied." How does any defense attorney worth their salt not run with that?
 

John Lee Pettimore III

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Right, which is why I thought this was interesting. I mean, this is the highest domestic law enforcement agency in the country outright saying "we lied." How does any defense attorney worth their salt not run with that?

A defense attorney calling someone else a liar should elicit more laughter than reversed convictions.
 

Rambo

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OfficePants

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How do you see this one going down? I read earlier that the justices were saying "they weren't sure they wanted to force the states into this issue because the climate is already changing by itself."

That's old man conservative talk. Invoke states rights whenever you need to cower.
 
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