Tag Archives: Case

Microsoft Sues DOJ

In order to sue the Department of Justice, Microsoft has brought out the big guns by hiring law firms Covington and Burling LLP, where partner James Garland used to work for former Attorney General Eric Holder, and Davis Wright Tremaine LLP.  Yesterday, Microsoft’s complaint was filed in the Western District Court of Washington State and the complaint is available on the Wall Street Journal website here.  The complaint is also available on Pacer, but the Wall Street Journal has the free version.

In the past, the U.S. government has requested information about certain users from Microsoft, presumably when warranted Microsoft complied with the production of information, and then the U.S. government could temporarily bar Microsoft from telling its users about the request for data.  Under 18 U.S.C. Section 2705, a governmental entity, with a court order, may delay notification to customers for a period not exceeding 90 days if the government has reason to believe that the notification would result in adverse results.  So, a customer would not be notified that a provider, like Microsoft, supplied information to a governmental authority until well after the production of information.  Adverse results include endangering the life or physical safety of an individual, flight from prosecution, destruction of evidence, tampering with evidence, intimidation of a potential witness, or otherwise seriously jeopardizing an investigation or unduly delaying trial.

Microsoft argues that this is unlawful and that tech companies should be allowed to tell their users when their cloud database and private information has been turned over to the government.  The U.S. government may argue that the disclosure to users would compromise an investigation.  However, Microsoft asserts that the U.S. government’s behavior is a violation of the Fourth Amendment.  But, is it?

This lawsuit is no easy feat.  It can be difficult to sue the U.S. government due to sovereign immunity issues.  Furthermore, the lawsuit boils down to a fundamental right to privacy argument that seems almost basic and may merit standard Fourth Amendment treatment regardless of all the discussion about cloud computing and the digital age.

Under F.R.C.P. 12, a U.S. governmental agency has 60 days from when they were served to file an answer.  It will be interesting to see who from the DOJ is assigned to the case and what the DOJ’s answer will be.

Furthermore, this case is not likely to settle.  Rather than Microsoft’s typical way of hiring lobbyists to change the law through Congress, it looks like Microsoft is using the courts and this lawsuit to change Fourth Amendment law.  Read more about this new case in this Wall Street Journal article here.

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Say Goodbye to Westlaw Classic

This message is for all those legal beagles who still use Westlaw Classic to do their research.  Westlaw Next is here to stay.  Right now, you can still log into your Westlaw Classic account and conduct searches and keycite citations.  But, Westlaw Classic is set to expire on August 31, 2015 and you will only be able to use your Westlaw Next account moving forward.  We will miss you Westlaw Classic.

UPDATE 6/4/2015:  Recent pop-up messages on Westlaw Classic state that the expiration date is September 10, 2015 instead of the 31st.

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Discovery Related to Facebook and Social Media

Litigation News, associated with the American Bar Association, published a list of cases and the impact of these cases on discovery practices.  The courts’ analysis for these specific cases further defines the parameters of social media evidence.  Furthermore, the discovery practice guidelines mentioned are relevant to anyone dealing with clients who regularly use Facebook.  Read more by clicking on the article here.

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Bid Rigging at Foreclosure Auctions in Alabama

Last month, the Department of Justice announced the prosecution and guilty pleas of two Alabama real estate investors and their company regarding bid rigging at foreclosure auctions.  The official press release is available here.  The DOJ explains:

[T]he Brannons and their company conspired with others not to bid against one another at public real estate foreclosure auctions in southern Alabama. After a designated bidder bought a property at a public auction, which typically takes place at the county courthouse, the conspirators would generally hold a secret, second auction, at which each participant would bid the amount above the public auction price he or she was willing to pay. The highest bidder at the secret, second auction won the property.

The Brannons and their company were also charged with conspiring to use the U.S. mail to carry out a fraudulent scheme to acquire title to rigged foreclosure properties sold at public auctions at artificially suppressed prices, to make and receive payoffs to co-conspirators, and to cause financial institutions, homeowners and others with a legal interest in rigged foreclosure properties to receive less than the competitive price for the properties.

The initial timeline of the charges were from 2004 to 2007.

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Holiday Helping Roundup

It is that time of year again!  Time for the Holiday Helping Roundup!

–  The Supreme Judicial Court amended Mass. Rule of Prof’l Conduct 1.5(b) and 6.5 that deal with fee arrangements.  The original order is available here.  However, the Massachusetts Board of Bar Overseers published a helpful article further explaining the new rules which will take effect starting January 1, 2013.

–  Peter Madoff, the brother to the infamous Bernie Madoff, is sentenced to ten years in prison for crimes that lead to the failure to detect fraud in the massive Ponzi scheme that swindled millions and billions of dollars from unsuspecting investors.  According to a New York Times DealBook article, Peter Madoff admitted to “falsifying documents, lying to securities regulators and filing sham tax returns.”

–  The Daily Beast published an article about a 52 year old man convicted as a juvenile for a rape that occurred in 1976.  Carlton Franklin was 15 years old at the time of the crime.  The case was heard in a New Jersey family court, and the judge found Franklin killed Lena Triano by bludgeoning, raping, and stabbing her.  Franklin’s DNA matched the semen found in the victim’s underpants.  Franklin spent 17 years in prison for a robbery and kidnapping home invasion committed when he was 18 years old, but he has also been released from prison for 14 years, according to a New York Times article.  Franklin has yet to receive his sentencing by the family court judge.

–  The Department of Justice posted a press release concerning Mercer SME, a New Jersey company.  The company plead guilty for its bid rigging conspiracy involving the sale of municipal tax liens.  The press release states:

The conspirators agreed to coordinate their bids and allocate the tax liens amongst themselves, at the expense of distressed property owners,” said Scott D. Hammond, Deputy Assistant Attorney General for the Antitrust Division’s criminal enforcement program….

When the owner of real property fails to pay taxes on that property, the municipality in which the property is located may attach a lien for the amount of the unpaid taxes. If the taxes remain unpaid after a waiting period, the lien may be sold at auction. State law requires that investors bid on the interest rate delinquent property owners will pay upon redemption. By law, the bid opens at 18 percent interest and, through a competitive bidding process, can be driven down to zero percent. If a lien remains unpaid after a certain period of time, the investor who purchased the lien may begin foreclosure proceedings against the property to which the lien is attached.

–  Keep an eye out for the London Interbank Offered Rate (Libor) scandal.  The Department of Justice and U.S. prosecutors are going after UBS for manipulating LIBOR interest rates.  The company may enter a safe harbor if they identify others involved in the scheme.  Bloomberg published an article about the fraud and collusion.  In addition, the Huffington Post article states UBS settlement costs are currently at $1.5 billion.  The Huffington Post article goes further to say:

Authorities are loath to prosecute big banks criminally, Enrich writes, because they consider it a “death sentence” for the institutions.  Legal experts aren’t so sure that’s really the case, as they discussed recently on HuffPost Live. But prosecutors don’t dare take the chance, because toppling these behemoths might crush the financial system.

Read more about the charges and incoming guilty plea at the FBI and DOJ website here.

–  A Yelp reviewer is in the midst of a defamation suit after writing an online review about a contractor who worked on her home and allegedly stole her jewelry.  The contractor claims that the online review is false and that he was not paid.  The Yelp reviewer states that the quality of the contractor’s work was poor and that her review is truthful.  Read more about the defamation suit published by the ABA Journal here.

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Louboutin Wins Trademark Protection, But Loses Injunction

Fashionistas and stylistas are familiar with the trendy, expensive, red soles and high heeled shoes designed by Christian Louboutin.  Earlier this week, the Second Circuit U.S. Court of Appeals in New York granted trademark protection to Louboutin’s red-soled, high heeled shoes.

Initially, Louboutin’s brand name filed a preliminary injunction against Yves Saint Laurent America Inc. (“YSL”) from selling shoes that are all red because the YSL shoes include an outer red sole which Louboutin alleges as their trademark.  In August 2011, Judge Marrero in the Southern District of New York denied Louboutin’s injunction.  On appeal, the preliminary injunction was again denied and the case was sent back to district court.

However, the Second Circuit judges clarified that Louboutin’s shoes are entitled to a limited trademark protection.  Specifically, the trademark protection applies to the “red lacquered outer sole that contrasts with the color of the rest of the shoe and not to shoes that are monochromatically red.”  Read the full Bloomberg Businessweek article by Don Jeffrey and Cotten Timberlake here.  Jeffrey and Timberlake quote the decision,

The district court’s conclusion that a single color can never serve as a trademark in the fashion industry was based on an incorrect understanding of the doctrine of aesthetic functionality,” U.S. Circuit Judge Jose Cabranes wrote in today’s decision. “We conclude that the trademark, as thus modified, is entitled to trademark protection.

Chad Bray of the Wall Street Journal expounds upon the decision by stating,

Louboutin may have lost the fight against Yves Saint Laurent’s monochromatic shoe, but won a much broader battle over the use of its iconic color, according to trademark experts.

The full article is available here.

Since the justices believe that granting broad rights to the color red harms competition in the fashion industry, the injunction was denied and YSL will continue to produce red shoes with red outer soles.

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Chemerinsky on Plea Bargaining and Effective Assistance of Counsel

The popular Constitutional Law expert, Erwin Chemerinsky, published an article with the ABA Journal titled, “Effective Assistance of Counsel Now a Right in Plea Bargaining.”  Chemerinsky goes through the different Supreme Court cases dealing with effective assistance of counsel and how it relates to the plea bargaining phase in criminal cases.  It will be interesting to see the fall out and application of these case decisions.


The court concluded that plea bargaining is a “critical stage” of criminal proceedings and thus the right to effective assistance of counsel applies. Justice Kennedy noted that 97 percent of federal convictions and 94 percent of state convictions are gained via guilty pleas.

The court applied the test from Strickland v. Washington, decided in 1984, for determining whether there had been ineffective assistance of counsel. Under Strickland, a defendant must show first that counsel’s performance is so deficient as to negate the Sixth Amendment right to counsel, and, second, the defendant must demonstrate “prejudice” from the inadequate representation. As to the former, the court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”…

Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

The full article is available here.

On an unrelated side note, if you have not been following the Supreme Court discussion about Arizona immigration, Chemerinsky wrote a good run-down about the relevant issues.  The article is available here.

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Affordable Care Act Upheld as Constitutional

The Supreme Court of the United States (SCOTUS) is live blogging about the recent Affordable Care Act decision that was upheld as constitutional.  To access the SCOTUS Live Blog website, go here.  Here is a link to the full case decision.  If you do not want to read all 198 pages of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services, then CNN does a nice recap and condensed version about the key facts of the decision and how it impacts Americans.  CNN’s article is available here.

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Case Blurb: Henrietta Eaton v. Federal National Mortgage Association

The Massachusetts Supreme Judicial Court released their long-awaited Eaton v. Fannie Mae decision on June 22, 2012.  For months now, former homeowners and their attorneys anxiously awaited the SJC’s final decision and remarks on whether a foreclosing entity requires possession of both the mortgage and note.  The Court held that moving forward, Banks and foreclosing entities require possession of both the mortgage and the note in order to properly transfer title and foreclose.  While it helps homeowners in the future, this may leave anyone who faced foreclosure prior to decision in a lurch because this new case law is not retroactive.

The specific holding for the case reads:

For the reasons we discuss herein, we conclude as follows.  A foreclosure sale conducted pursuant to a power of sale in a mortgage must comply with all applicable statutory provisions, including in particular G. L. c. 183, § 21, and G. L. c. 244, § 14.  These statutes authorize a “mortgagee” to foreclose by sale pursuant to a power of sale in the mortgage, and require the “mortgagee” to provide notice and take other steps in connection with the sale.  The meaning of the term “mortgagee” as used in the statutes is not free from ambiguity, but we now construe the term to refer to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder.  Further, we exercise our discretion to treat the construction announced in this decision as a new interpretation of the relevant statute, only to apply to foreclosures under the power of sale where statutory notice is provided after the date of this decision.  We vacate the preliminary injunction and remand the case to the Superior Court for further proceedings consistent with this opinion.

The Boston Globe published an article on the case which is available here.

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Case Blurb: Commonwealth v. Clarke related to Padilla v. Kentucky

For anyone who has had a client in criminal court facing potential deportation, they may be familiar with Padilla v. Kentucky.  The full Supreme Court decision for Padilla is available here.  The Supreme Court clarified the confines of ineffective assistance of counsel when applied to a criminal defendant assenting to a guilty plea without knowing the risk that the guilty plea could have on their citizen or non-citizenship status.

In Commonwealth v. Clarke, the Supreme Judicial Court held that Padilla should be applied retroactively.  The case decision is available here.  I cannot summarize the impact of the Padilla decision and the Padilla elements in two paragraphs.  Nor can I explain the intricacies of the Clarke case in relation to Padilla in two paragraphs.  But, I can refer you to a helpful article, available here, that was published in the Boston Bar Journal written by Jesse Boodoo that expands on the two cases.

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