The Eleventh Circuit’s opinion in U.S. v. Takhalov will be one of the more talked of the season. Amid colorful references galore, the court “tossed the convictions of nightclub operators accused of using enticing ‘bar girls’ to lure drunken customers to pay tens of thousands of dollars for overpriced drinks.” Judge Thupar begins: “The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai. For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive.” Plus footnote 9, which says that a particular inference “hardly requires Holmesian feats of deduction (Sherlock or Oliver Wendell: either Holmes will do here.)” [ABA Journal, Miami Herald, Daily Business Review]
California’s unique Unruh Act provides automatic bounty entitlements (often $4,000, plus attorney’s fees) to successful discrimination complainants without having to show any actual injury from their treatment. For many years this has led to a distinctive cottage industry of ADA filing mills that mass-generate accessibility complaints against California businesses to settle for cash, often based on minor instances of noncompliance in facilities open to the public. Correcting the bad incentives created by the Unruh Act appears to be politically out of bounds, but now, at least, following a multi-year push from the business community, Gov. Jerry Brown has signed SB 269, which lays out two escape paths from liability for smaller businesses: by hiring a Certified Access Specialist (CASp) they can get 120 days to fix any violations, and by providing a 15-day grace period before legal penalty for small business to fix the most minor violations, typically involving signage and surface display. [KXTV, NorCal Record, L.A. Daily News] “The number one complaint [in 2015]? Non-compliant loading zones. Number two? Problems with parking lot signage.” [Capital Public Radio]
Meanwhile, in Fresno, some disabled plaintiffs are now suing the lawyers who solicited their involvement in mass ADA filings, saying they broke promises, behaved deceptively, and kept nearly all the proceeds for themselves. [KFSN]:
One of the places the Moores sued is a donut shop in Reedley and one of the problems was with the signage.
The shop had a disabled parking only sign up, but it didn’t have the half that states “Minimum Fine $250” and without that part, this is a violation.
What the Moores may not have known is Doughnuts To Go is managed by Lee Ky, who suffers from cerebral palsy.
“Here I am all my life in a wheelchair and I get around in the community just fine,” Ky explained.
Ky says she never had any accessibility problems at her own store, but she made some updates after she was sued for violations and settled with the Moore Law Firm to make the lawsuit go away.
So when an Action News reporter showed her the video of Ronald Moore, the man who sued her, lifting his wheelchair into his SUV, then walking up to the driver’s seat, she was pretty upset.
“I wish I could be him sometimes,” Ky said. “I wish I could just get up and then walking and all the sudden becoming in the wheelchair. It looks bad.”
A witness stepped forward with a story to tell about changed numbers on a check stub, and what followed was something of a “wow” moment as modern litigation goes [Erik Larson and Margaret Cronin Fisk, Bloomberg]:
Dramatic revelations are unusual in U.S. litigation these days, when reams of evidence and testimony are reviewed before the trial begins, making Kleven’s appearance on the scene a rare “Perry Mason” moment, said Leonard Niehoff, a law professor at the University of Michigan.
“The typical television scenario where a witness comes out of nowhere in a trial doesn’t actually happen much.”
- “How to write an overlawyered email, in 4 easy steps!” [Inspired Law Blog]
- Fifth Circuit upholds conviction of Texas lawyer Marc Rosenthal over pattern of fraud including but not limited to suborning of false witness testimony;
- Emoticons/emojis begin arriving in court as evidence, a federal judge in Michigan having already been “asked to rule on the meaning of ‘:-P.'” [Amanda Hess, Slate]
- Disabled access regulations as hobble-thy-competitor method: “AT&T says T-Mobile and Sprint Wi-Fi calling violates disability rules” [ArsTechnica]
- From back in 2012, but missed: a law professor’s book assails fine print in contracts, and Scott Greenfield responds;
- So strange how many expert witnesses say they have no idea how much they make [Brendan Kenny, Lawyerist]
- Get those troops out of my house: “A symposium on the oft-neglected Third Amendment” [Ilya Somin]
Horror story in Queens points up flaws of the city’s deed-transfer system, and also of its pro-tenant housing court regime: “After Darrell Beatty failed to appear in August, a judge approved an eviction, but it was stayed last week when Beatty claimed he had health problems.” [New York Post]
After Wanetta Gibson falsely accused Brian Banks of rape (earlier), her family won a settlement in a civil suit against the Long Beach, Calif. schools; Banks himself, a former prep football star, served more than five years in prison. Now the school district has obtained a $2.6 million default judgment against Gibson, whose whereabouts are unknown. “According to the school district, the judgment recoups a $750,000 settlement paid to Gibson and also includes attorney’s fees, interest and $1 million in punitive damages.” [Long Beach Press-Telegram] Earlier accounts had erroneously reported that Gibson had been paid $1.5 million.
If collecting workers’ comp payments premised on disability from knee and other injuries, it is best not to post photos on Facebook of your exploits continuing to race your BMX bike [Kent, Wash.; MyNorthwest.com]
P.S. You might face less scrutiny, per this L.A. Times account, if you’re a Los Angeles firefighter or police officer claiming injury on the job under a remarkably generous compensation scheme “that has cost taxpayers $328 million over the last five years.”
Extraordinary sequence of events: “After winning a verdict of nearly $25 million in a federal trade secrets case earlier this year, Akin Gump Strauss Hauer & Feld has filed a motion to withdraw from its representation of LBDS Holding Company, LLC.” According to the firm’s account, it had been unaware until seeing a sanctions motion from the defendant that not all was as it seemed with the evidence backing up the case. [ABA Journal]
The large law firm, which is also Washington, D.C.’s biggest lobbying firm, will pay $15 million, express regret and withdraw from representing Ecuadorian environmental complainants to settle the oil company’s charges that it had participated in a litigation scheme that Chevron has called fraudulent and extortionate. “It also agreed to assist Chevron with discovery against the Ecuadoran plaintiffs and their New York-based lawyer, Steven Donziger,” as well as hand over its five percent share of any moneys the plaintiffs happen to win when the whole thing is over. [Washington Post; Paul Barrett, Bloomberg Business Week; our coverage of the case over years]
In November 2010 Camden Sgt. Jeffrey Frett radioed for help after receiving a superficial gunshot wound in the leg. Police discovered his wife near the scene and the officer later admitted “that he and his wife had concocted the incident. Officers injured in the line of duty receive a pension that pays 66 percent of their salary tax-free for life.” In the mean time, however, Frett had applied for a disability pension on a separate basis, namely the aftereffects of a 2008 car accident while on duty. Now the state pension board has turned down his request, with one of its members publicly questioning why the officer was permitted to plead to a very minor charge to resolve the staged-shooting episode. [Philadelphia Daily News]