Lawyer went the extra 29 miles to shut down refinance scam - Paralegal and Certified Legal Document Preparer Mark Smith, LL.M.

A lawyer in Charlotte, North Carolina, put the knowledge that he gained at a fall conference to use when he visited a homeowner and averted a financial scam. WSOC-TV has the story on lawyer Charles W. Hands III of the Hands Law Firm and his paralegal Devera Alston, who became suspicious when a man seeking a cash-out refinance was a no-show for a Zoom meeting. The man claiming to be the homeowner was in touch with the broker, UMortgage, by phone and text. He provided all the needed documents, including a copy of the homeowner’s driver’s license and tax records. Hands had attended a conference that discussed refinancing fraud and advised lawyers to always meet the homeowner face to face. Hands and Alston decided that they should visit the property being refinanced and made a 29-mile round trip to the home of Samuel Helmick. Hands told WSOC-TV that Helmick’s face matched that of the driver’s license sent to them online, but Helmick “had no idea who we were or knew anything about a refinance with us at all.” Helmick’s home was completely paid off. He told WSOC-TV that he was “absolutely stunned” to learn that someone was seeking about $450,000 in cash by refinancing his home. “They shut everything down, thank God,” Helmick said of Hands and Alston. “They took the time to come to my home, knock on the door and come on inside, and lay it all out for me. And I’ll always be appreciative of that.” UMortgage gave WSOC-TV a statement crediting “a system of checks and balances” for preventing financial loss to Helmick. “UMortgage takes cybersecurity very seriously and is committed to maintaining the highest standards of integrity and security in our operations,” the statement said. WSOC-TV advises homeowners to freeze their credit and open all their mail, even if it looks like junk mail, to avoid such scams. Hands, Alston and Helmick would also like to see a rule requiring lenders to verify a homeowner’s identity in person.

'Spirit of Aloha' clashes with 'federally mandated' gun lifestyle, Hawaii Supreme Court says - Paralegal and Certified Legal Document Preparer Mark Smith, LL.M.

The Hawaii Supreme Court has upheld state laws that generally ban carrying guns in public in an opinion that criticizes the U.S. Supreme Court’s historical approach to Second Amendment cases. “In Hawaii, the Aloha spirit inspires constitutional interpretation,” the state supreme court said in its unanimous Feb. 7 decision. “The spirit of Aloha clashes with a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.” A man named Christopher Wilson had challenged Hawaii’s “place to keep” laws that required him to keep guns and ammunition at his “place of business, residence or soujourn,” according to the decision and Bloomberg Law. The laws had an exception that allows people to carry a handgun for self-defense if they have a license. Wilson cited the Supreme Court’s June 2022 decision in New York State Rifle & Pistol Association Inc. v. Bruen, which found a Second Amendment right to carry a handgun for self-defense outside the home. In that decision, the Supreme Court said gun restrictions should be evaluated based on the nation’s historical tradition. The Hawaii Supreme Court said it would interpret the state constitution first and then the U.S. Constitution. The section of the opinion evaluating the laws under the Constitution did not begin until page 52 of the 53-page opinion. The Hawaii Supreme Court evaluated a section of the Hawaii Constitution that mirrors Second Amendment language. Despite the similarities, the state supreme court concluded that the Hawaii Constitution does not create a constitutional right to carry a firearm in public for self-defense. The state’s historical tradition supports a “collective, militia meaning” for the right to bear arms, rather than an individual right, the state supreme court said in an opinion by Hawaii Supreme Court Justice Todd W. Eddins. “When the Hawaii Constitution was first ratified, courts throughout the nation’s history had always interpreted and applied the Second Amendment with the militia-centric view,” Eddins wrote. The state supreme court also concluded that the original purpose of the Second Amendment was to protect states’ rights to have militias. “That’s what they were thinking about long ago,” Eddins wrote. “Not someone packing a musket to the wigmaker just in case.” “Bruen unravels durable law,” Eddins wrote. “No longer are there the levels of scrutiny and public safety balancing tests long-used by our nation’s courts to evaluate firearms laws. Instead, the court ad-libs a ‘history-only’ standard.” “We believe it is a misplaced view to think that today’s public safety laws must look like laws passed long ago,” Eddins said. “Smoothbore, muzzle-loaded and powder-and-ramrod muskets were not exactly useful to colonial era mass murderers. And life is a bit different now, in a nation with a lot more people, stretching to islands in the Pacific Ocean.” The Hawaii Supreme Court also quoted a Bruen concurrence by Supreme Court Justice Brett Kavanaugh that said states retain the authority to require that people have a license to carry firearms in public. Hawaii’s two “place to keep” laws at issue have an exception allowing people to carry a handgun for self-defense if they have a license, the state supreme court said. The laws “do not graze Wilson’s Second Amendment right,” the state supreme court concluded. The case is Hawaii v. Wilson.

AI-Generated Fake Case Law Leads To Sanctions In Wage Suit

The owner of a Missouri-based technology business that was ordered to pay an ex-employee roughly $311,000 in unpaid wages, damages and legal costs was sanctioned Tuesday by an appellate court for briefing "deficiencies," including submitting fake cases generated by artificial intelligence. The ruling was the first time the appellate court has had to weigh in on the "impact of fictitious cases being submitted to our court," the opinion said. (iStock.com/photoschmidt) In a ruling Tuesday, a three-judge panel of the Missouri Court of Appeals Eastern Division rejected Jonathan R. Karlen's appeal of a 2022 order levying the $311,000 penalty against him and two companies associated with him, Indigo Three Limited and The Karlen Group, in a wage fight with Molly Kruse. It was the first time the appellate court has had to weigh in on the "impact of fictitious cases being submitted to our court," the opinion said. "Due to numerous fatal briefing deficiencies under the Rules of Appellate Procedure that prevent us from engaging in meaningful review, including the submission of fictitious cases generated by artificial intelligence, we dismiss the appeal," Judge Kurt S. Odenwald wrote for the panel. "Given the frivolousness of the appeal, we also award damages to respondent [Kruse]." The appellate court ordered Karlen to pay Kruse $10,000 "in damages for filing a frivolous appeal." At issue in the case is a yearslong wage dispute between the parties. In a court filing, Kruse said she was hired by Indigo Three Limited, which operates as Indigo Three Strategies, in 2015 as its chief creative officer. She worked for the business, which identifies itself on its LinkedIn page as a builder of websites and applications, until 2019, according to the filing. After she was terminated, the company refused to pay her wages from 2018 and 2019, she said. Karlen is "the only known owner, officer and director of" Indigo Three Strategies and The Karlen Group, according to her filing. Kruse had filed a petition in 2021 seeking damages, and the following year a state judge ruled against Karlen and the two companies. The judge ordered Karlen and the companies to pay Kruse $72,936.42 for unpaid wages, $145,872.84 in damages and roughly $92,000 in attorney fees and legal costs. Karlen then mounted his appeal, "acting pro se purportedly on behalf of all defendants named in the original action," the appellate court's decision said. In its decision, the appeals court took Karlen to task for inadequate and problematic filings. Multiple issues arose during the appeal, the opinion said, including untimely filings, numerous deadline extensions and claims by Kruse that Karlen had failed to make certain required filings. "Particularly concerning to this court is that appellant submitted an appellate brief in which the overwhelming majority of the citations are not only inaccurate but entirely fictitious," the opinion said. "Only two out of the twenty-four case citations in appellant's brief are genuine." The panel said Karlen "offers citations that have potentially real case names — presumably the product of algorithmic serendipity — but do not stand for the propositions asserted." He also "erroneously" cited Missouri statutes and rules, the opinion said. "Throughout the appellate brief, appellant's cited statutory and rule authorities do not state what appellant claims," the ruling said. "For instance, some statutes and rules concern a completely different legal matter than what appellant purports, while others misstate the substance of the law." The appeals court also took aim at a reply brief in which Karlen "apologized for submitting fictitious cases and explained that he hired an online 'consultant' purporting to be an attorney licensed in California to prepare the appellate brief." "Appellant stated he did not know that the individual would use 'artificial intelligence hallucinations' and denied any intention to mislead the court or waste respondent's time researching fictitious precedent," the opinion said. "Appellant's apology notwithstanding, the deed had been done, and this court must wrestle with the results." The "bogus citations" in Karlen's filing represent "a flagrant violation of the duties of candor appellant owes to this court," the panel said. "We regret that appellant has given us our first opportunity to consider the impact of fictitious cases being submitted to our court, an issue which has gained national attention in the rising availability of generative A.I.," Judge Odenwald wrote for the panel. In its ruling, the panel referred to the Mata v. Avianca case in New York federal court, in which a judge last year reprimanded attorneys for submitting a brief prepared by artificial intelligence that cited nonexistent case law. "To protect the integrity of the justice system, courts around the country have been considering and/or enacting local rules specifically geared towards prohibiting or disclosing the use of generative A.I. in court filings," the Missouri appellate court said Tuesday. Karlen's "fictitious citations alerted us and respondents to the probability of generative A.I.'s involvement even prior to appellant's disclosure after the fact," the panel said. "We urge all parties practicing before this court, barred and self-represented alike, to be cognizant that we are aware of the issue and will not permit fraud on this court in violation of our rules," the appeals court said. Judges Odenwald, Michael E. Gardner and Renée D. Hardin-Tammons were on the panel for the Missouri Court of Appeals Eastern District. Karlen, who confirmed to Law360 that he is a candidate for a state legislature seat in Missouri, declined to comment Tuesday about the decision. Counsel for Kruse didn't immediately respond to a request for comment. Karlen is representing himself. Kruse is represented by Bridget L. Halquist of Summers Compton Wells LLC. The case is Kruse v. Karlen et al., case number ED111172, in the Missouri Court of Appeals Eastern District. --Additional reporting by Ryan Boysen. Editing by Alanna Weissman. Correction: A prior version of this story incorrectly identified the state in which Karlen is a candidate for public office. The error has been corrected.

'She Didn't Ask, And I Didn't Tell,' Ex Says Of Fraud Scheme

Both federal prosecutors and defense counsel for a Georgia woman accused of using her small business to hide hundreds of thousands of dollars in illegally obtained pandemic loans agreed Tuesday that her ex-husband was not just a philanderer, but a fraudster to boot. But where their agreement ended — and the question for jurors weighing the guilt or innocence of defendant Carla Jackson — is just how much she knew about her former husband John Gaines' illegal activities. John Gaines, who is divorced from Jackson and was convicted last month of money laundering charges, took the witness stand to tell jurors during week two of a federal trial that he'd kept his wife in the dark about the scheme he was involved in with Darrell Thomas. Thomas, according to prosecutors, was the mastermind of a fraud ring encompassing more than 20 defendants who orchestrated the scheme to illegally obtain $11 million in Paycheck Protection Program loans. "I didn't tell her anything," John Gaines insisted Tuesday, later adding, "She didn't ask, and I didn't tell." John Gaines' criminal behavior, Jackson's attorney David Marshall said, was just the latest in a series of secrets he'd kept from his wife over the course of their nearly 20-year marriage. He'd had affairs behind her back and fathered two children out of wedlock, Marshall said. Why, he suggested, should the PPP scheme have been any different? By John Gaines' own admission, he had partnered with Thomas and his cousin, Andre Gaines, during the early months of the pandemic to prepare fraudulent PPP applications on behalf of businesses that effectively existed only on paper. Also allegedly involved in the scheme was Teldrin Foster, who is being tried alongside Jackson and is accused of working with Thomas to prepare his own bogus applications. After securing the loans, which were intended to help small businesses shuttered by the pandemic keep their workers on their payroll, John Gaines then moved the money into a business run by Jackson in an attempt to hide the fraud from the government. John Gaines said Jackson believed the money was for a purportedly above-board real estate development project they were undertaking together in Alabama. The project never came to fruition because, as John Gaines put it, "Everything went to shambles before we got a chance ... the FBI showed up, and things got ugly." But on cross-examination, Assistant U.S. Attorney Tal Chaiken first hammered John Gaines' credibility by casting doubt on Andre Gaines' role in the scheme. She noted Andre Gaines had suffered a stroke in 2018, and he was in his late 60s with cognitive disabilities by the time of both the fraud scheme and the joint real estate venture. Chaiken then pointed to email exchanges between John Gaines and a woman who, for years before the PPP scheme, had helped him prepare forged documents of all kinds: drivers' licenses, tax records, pay stubs, car titles, utility bills and more. "Is it fair to say you've used her to make so many fake documents over the years that you don't even remember what you've asked her for?" Chaiken asked as John Gaines continued to say he didn't remember the emails in question. Chaiken further scorned the notion that John Gaines and his disabled, retired cousin had "all of a sudden decided to do a construction project together" on a property that didn't appear to have been listed for sale. John Gaines, for his part, said his recollections of a visit to the property were hazy, thanks to having "had a couple drinks" before scoping out the parcel in 2020. Finally, Chaiken circled around the claim that Jackson was unaware of the scheme John Gaines was involved in, even as he was moving six-figure sums of cash into her business's bank accounts. As Chaiken pressed John Gaines on his assertion that his ex-wife never questioned the transactions in the midst of a global pandemic, he continued to maintain her ignorance. "She didn't know how we obtained that money," he said. Marshall, meanwhile, implied John Gaines' and Jackson's continued contact and work together after their divorce stemmed not just from business concerns, but more personal ones as well. At one point, Marshall asked John Gaines why he still stayed at his ex-wife's house on occasion even after their divorce. John Gaines, not making eye contact with Marshall or the jury, took a long pause before answering. "She still loved me," he said. The government is represented by Siji Moore of the U.S. Department of Justice's Criminal Division, and Nathan Parker Kitchens, Tal C. Chaiken, Radka T. Nations, Sekret T. Sneed and Samir Kaushal of the U.S. Attorney's Office for the Northern District of Georgia. Carla Jackson is represented by David D. Marshall. John Gaines is represented by Deana Timberlake-Wiley of the Law Offices of Deana Timberlake-Wiley. Teldrin Foster is represented by Saraliene Durrett of Saraliene Smith Durrett LLC and Leigh Ann Webster of Strickland Webster LLC. The case is USA v. Thomas et al., case number 1:20-cr-00296, in the U.S. District Court for the Northern District of Georgia.

Bank Trade Chief Warns Of Rules 'Masquerading As Guidance'

The American Bankers Association's chief executive fired off a warning shot at federal regulators on Monday over their use of agency guidance, cautioning that several recent documents addressing certain bank fees and other practices are no substitute for formal rulemaking. Speaking at a conference in Texas, ABA President and CEO Rob Nichols criticized what he described as a trend toward "regulation masquerading as guidance" at the banking agencies and said they should not be "circumventing the notice-and-comment process" by using guidance to prescribe new standards. "Banks welcome guidance that helps them understand and comply with legal requirements," Nichols said in prepared remarks at the conference, an ABA-sponsored event for community bankers. "But we're seeing a disturbing pattern lately of federal agencies — including federal bank regulators — issuing so-called 'guidance' documents that are, in fact, regulatory rules." Nichols expanded on those concerns in letters that he and other ABA officials sent Monday to top officials at the Federal Reserve, Federal Deposit Insurance Corp., Office of the Comptroller of the Currency and Consumer Financial Protection Bureau. Recent agency guidance has "too often" consisted of binding legal requirements that must go through notice-and-comment, and in the "most egregious cases," it has even exceeded their statutory authority, Nichols wrote in his letter. Other letters addressed to the FDIC and CFPB singled out five of their recent guidance documents as examples of what Nichols called "guidance gone wrong" in his Monday speech. Among the five were missives issued by the FDIC in 2022 that frowned on charging repeated non-sufficient fund fees, or NSF fees. That guidance is already the subject of an industry challenge pending in Minnesota federal court. The letters also flagged CFPB guidance from last year that warned about fees for "basic" bank account-related information, "pay-to-play" arrangements on mortgage comparison shopping sites, adverse action notices for lenders using artificial intelligence, and immigration-related credit discrimination. According to the ABA, these documents suffer from significant legal and procedural flaws, often create more uncertainty for banks, and should be scrapped until the agencies revise and re-issue them as proposals for public comment. "The failure to confer with industry about interpretive questions, operational impacts, and system constraints limits the utility of guidance, undermines its acceptance, and may limit its durability as administrations change," Nichols wrote.  Monday's letters built on an ABA white paper published last week that raised similar concerns about regulators' use of guidance and urged restraint going forward, including the adoption of a specialized notice-and-comment process for "significant" agency guidance. The paper said that while guidance can be "useful" as a way to clarify legal ambiguities and articulate enforcement approaches, regulators have frequently missed the mark by issuing guidance that is either poorly written or verges into rulemaking territory governed by the Administrative Procedure Act. This latter category of "ineffective" guidance, according to the paper, has included the FDIC and CFPB guidance highlighted in Monday's letters as well as an OCC bulletin issued last year on overdraft practices. But the paper also cited a few examples of "effective" guidance to emulate, such as an anti-money laundering-related issuance that the Fed, FDIC and OCC put out in April 2021. Neither the paper nor Monday's letters identified any specific Fed guidance documents as "ineffective" or otherwise problematic. Industry complaints about regulators exploiting guidance for backdoor rulemaking aren't new. A decade ago, for example, similar criticisms featured in debates over CFPB indirect auto lending guidance that federal lawmakers ultimately struck down as a de facto rule. During the Trump administration, the banking agencies and CFPB sought to reassure the industry by promising that they would limit how they use guidance and would not enforce based on it. The agencies codified this stance in a final rule published at the start of the Biden administration that remains on the books. But more recent regulatory efforts to rein in banks' fee practices, tighten the screws on digital assets and address other fintech-related risks have prompted renewed concerns in the industry about overuse of guidance. Bank trade groups have also shown greater willingness to push back in court on perceived agency excesses. The ABA, for example, is involved in two lawsuits against different CFPB regulatory actions and joined other trade groups last week in suing the Fed, FDIC and OCC to block their new community reinvestment rules. "It's never our preference to bring these kinds of lawsuits," the ABA's Nichols said in his Monday speech. "But we won't shy away from doing so when it's necessary and when we have no other recourse."

BREAKING: Trump Turns To Supreme Court In Criminal Case - by Certified Paralegal and Legal Document Preparer Mark Smith, LL.M., CLDP

Former President Donald Trump asked the U.S. Supreme Court on Monday to stay a D.C. Circuit panel's ruling that he is not immune from federal charges for allegedly interfering in the 2020 presidential election.  The high court's intervention is needed to "forestall ... an unprecedented and unacceptable departure from ordinary appellate procedures," Trump argues, referring to the D.C. Circuit panel's order allowing the district court to move forward with proceedings even if the former president requested review by the entire bench. Trump wants the Supreme Court to grant a stay so that he can seek an en banc review with the D.C. Circuit. He adds the prosecution of a former president would be a "breach of precedent and historic norms" that the Supreme Court shouldn't allow.  "The threat of future criminal prosecution by a politically opposed administration will overshadow every future president's official acts – especially the most politically controversial decisions," Trump says.  A three-judge D.C. Circuit panel – comprising two Biden appointees and one H.W. Bush appointee – issued a unanimous per curiam opinion Feb. 6 rejecting Trump's assertion that he has so-called presidential immunity from prosecution for any official acts taken in the White House. The panel said Trump's claim for sweeping immunity "is unsupported by precedent, history or the text and structure of the Constitution." Trump is facing a four-count indictment in D.C. federal court that accuses him of undertaking a wide-ranging strategy to overturn the 2020 election results, including pressuring state lawmakers and organizing alternate slates of electors. He is charged with conspiring to defraud the U.S., conspiring to obstruct an official proceeding, obstructing an official proceeding and conspiring against citizens' right to vote. He contends the indictment must be tossed for three reasons. The courts, Trump claims, are powerless to review official presidential acts, public policy favors immunity and the U.S. Constitution bars the prosecution of former presidents who have not already been convicted through impeachment. The D.C. Circuit panel addressed each argument separately in a 57-page opinion, first finding Trump's reading of Marbury v. Madison to say that official presidential acts "can never be examinable by the courts" was incorrect. The foundational ruling allows for judicial review of "ministerial" actions that officials are bound by law to perform while prohibiting review of discretionary decisions, the panel said. Trump had no discretionary authority to defy "generally applicable" criminal laws and must be held "answerable in court for his conduct," the panel ruled. The public's interest in criminal accountability and the executive branch's interest in upholding presidential elections also outweigh any risks that Trump alleges would arise if former presidents could be criminally prosecuted, the appellate panel held. The judges rejected claims that future presidents wouldn't take necessary actions during their time in office due to a threat of post-term prosecution. "Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review," the panel said. "We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter." Finally, the panel held that Trump's argument that the impeachment clause prohibits prosecution of former presidents who have not already been convicted through impeachment rests on a "logical fallacy." The clause was explicitly written to not limit an official's criminal liability, and it shouldn't be read any other way, the panel said. Trump is represented by John F. Lauro and Gregory M. Singer of Lauro & Singer, Todd Blanche and Emil Bove of Blanche Law, and D. John Sauer, William O. Scharf and Michael E. Talent of James Otis Law Group LLC. The federal government was represented at the D.C. Circuit by Jack Smith, J.P. Cooney, Michael R. Dreeben, James I. Pearce, Molly Gaston, Thomas P. Windom, Raymond N. Hulser, John M. Pellettieri and Cecil W. VanDevender of the U.S. Department of Justice's Special Counsel's Office. The case is Trump v. United States, case number 23A745, in the Supreme Court of the United States.

Brown Prof Testifies That Fluoride IQ Studies Have Gaps - Mr. Mark Smith, LL.M., Certified Paralegal and Legal Document Preparer

A Brown University epidemiologist testified Friday on behalf of the U.S. Environmental Protection Agency in a bench trial over fluoride's risks Friday that there are data "gaps" in studies linking fluoride exposure to lower IQ, while acknowledging under cross-examination that he hadn't reviewed studies assessing the effects of high-dose fluoride exposure. Brown University professor of epidemiology David Savitz's testimony came during the EPA's defense case on the sixth day of a two-week bench trial before U.S. District Judge Edward Chen in San Francisco in high-stakes litigation launched by Food & Water Watch Inc., the Fluoride Action Network and others against the U.S. Environmental Protection Agency in 2017. The groups seek to force the EPA to make a new federal rule under the Toxic Substances Control Act that would ban fluoride from being added to drinking water. Local municipalities have added the chemical to public water for decades to boost public dental hygiene and prevent dental decay, but the groups' experts have testified during the trial that the latest scientific studies suggest that fluoride is neurotoxic and that even low levels of exposure lowers IQ. The EPA called Savitz as its first witness on Wednesday, and he testified that he recently participated in a Canadian health panel reviewing the latest scientific studies on the potential effects of fluoride exposure. Savitz testified that there's too much uncertainty in the scientific data on the neurocognitive impacts of fluoride exposure from drinking water, which typically has 0.7 mg/L of fluoride, and it would be premature to regulate fluoridated water based on its potential neurotoxicity. Before trial recessed Wednesday, Savitz said his panel recommended that Canadian water regulators instead focus on moderate dental fluorosis — a condition resulting from taking in too much fluoride as a kid — that can occur with fluoride exposure above 1.56 mg/L. Trial resumed Friday morning with the EPA continuing Savitz's direct examination, and over the course of about three hours, the professor took issue with various aspects of the dozens of fluoride IQ studies that were analyzed by the plaintiffs' epidemiological expert. Savitz explained that his panel was also tasked with closely reviewing the recent National Toxicology Program's fluoride monograph, which included multiple studies showing a steep drop in IQ points over a fluoride range from 0.2 mg/L to 1.5 mg/L. "We were really scrutinizing the document, looking at it in detail, as we were charged to do, and we remained concerned," Savitz said. Savitz took issue with various aspects of the studies, claiming that some had "double counting" issues with overlapping populations and "in broad terms, there was a bit of a disconnect" between the studies' analysis and results. He also took issue with certain studies he said didn't adjust for keratin. "It's not to say that their conclusions were wrong, but that trail from raw evidence to assessments, [there were] gaps and concerns," he said. Savitz also acknowledged that there wasn't a single problem definitively showing the studies' conclusions were wrong. Instead, he said, there were a series of issues, including various methods of fluoride testing and population demographics, that "might seem to be modest initially, but cumulatively ... it's not making its case well." "They were not being as direct as we would want them to be," he said of the NTP's monograph. "It sounds like nitpicking, and I suppose in a way it is, but when you look at the details there were some troubling issues," he said, adding, "The question is did they implement their strategy effectively, not if it's the best strategy." Although the professor acknowledged the fluoride IQ studies do appear to "follow the pattern" that NTP researchers suggest, showing a link between IQ drops and levels of fluoride exposure above 1.5 mg/L, Savitz cautioned against drawing strong inferences from them. "I'm not saying they were completely off base — not at all," he said. "They probably got it right, but there are some real concerns about the description of the process and the details." The EPA's counsel asked how fluoride compares to lead. During trial, the judge has heard testimony from the plaintiffs' experts that the resistance to regulating fluoride is similar to resistance to lead regulations in the 1970s. In 1976, the U.S. Supreme Court eventually required the EPA to prohibit companies from adding lead to gasoline, even in small amounts, due to its risks, despite significant pushback from industry, according to trial testimony. Savitz testified that he believes lead is different from fluoride, because "in the early days" of lead research, scientific studies clearly showed that lead was dangerous at high exposures, and the question was the "ratcheting down" of lead exposures. "It wasn't moderate confidence. It was airtight. You weren't taking a leap when you pushed [lead exposure] further and further in that direction," he said. "It's very different where we stand with fluoride." But the plaintiffs' counsel objected repeatedly, arguing that some of Savitz's testimony constitutes undisclosed opinions. The plaintiffs also noted that Savitz acknowledged that he has not analyzed studies analyzing the effect of high levels of fluoride exposure, or even exposures above 1.5 mg/L, so he can't claim fluoride doesn't follow the same risk pattern as lead exposure. But the judge mostly overruled the objections. Savitz's cross-examination began with the plaintiffs' counsel reading the professor quotes from his own textbook stating that the precise "causal nature of any given effect is almost never known" in epidemiological studies. The counsel also tried to get Savitz to concede that at least one other member on his panel had a conflict of interest in assessing the risks of fluoride, but Savitz denied knowing about the other panelist's purported conflicts, and the judge sustained objections to further questioning on the issue. During cross-examination, Savitz acknowledged that he had never conducted a fluoride study himself, and that when he joined the panel he wasn't an expert on fluoride. Savitz also acknowledged that confounding of data "probably could not" explain the relationship between fluoride and IQ, and he agreed that he never reviewed fluoride studies involving doses of fluoride of 1.5 mg/L or higher. Before trial recessed for the day, Savitz also repeatedly acknowledged that he's not a risk assessor, and that he doesn't know how the EPA evaluates "risk" under TSCA. Trial will resume Monday morning, and it's expected to conclude Wednesday. The legal fight went to a first bench trial in 2020, with the plaintiff groups asking the court to declare that fluoride in tap water posed a risk to human health. But Judge Chen suspended litigation so the EPA could conduct another study and reevaluate fluoride's risks. Litigation resumed in October 2022. The groups are represented by C. Andrew Waters and Michael Connett of Waters Kraus & Paul LLP and Christopher T. Nidel of Nidel & Nace PLLC. The EPA is represented by Brandon N. Adkins and Paul A. Caintic of the U.S. Department of Justice's Environment and Natural Resources Division and Emmet P. Ong of the U.S. Attorney's Office for the Northern District of California. The case is Food & Water Watch Inc. et al. v. Environmental Protection Agency et al., case number 3:17-cv-02162, in the U.S. District Court for the Northern District of California.

BREAKING: Judge Newman Again Denied Return To Federal Circuit - Mr. Mark Smith, LL.M., Certified Paralegal and Legal Document Preparer

A D.C. federal judge on Monday shot down suspended Circuit Judge Pauline Newman's request for an injunction that would allow her to hear cases on the Federal Circuit again and largely dismissed her suit accusing her colleagues of trying to wrongfully remove her from the bench.   U.S. District Judge Christopher R. Cooper held that his court doesn't have jurisdiction to oversee many of Judge Newman's claims challenging her suspension under the Judicial Conduct and Disability Act, and that her remaining claims are too weak at this point to justify an injunction. The surviving claims deal with Judge Newman's challenges to the act itself, rather than the way it was applied against her, which requires "a demanding standard" for the 96-year-old to meet, according to Judge Cooper. He will allow Judge Newman to argue that the act is vague when it comes to deciding what counts as a mental disability, and therefore, whether it would apply to her.  "The court therefore may not entertain dismissal of the case in its entirety at this juncture," Judge Cooper wrote. "Defendants may seek dismissal of the surviving claims under Rule 12(c) or via summary judgment." The decision comes less than a week after the Committee on Judicial Conduct and Disability upheld the one-year suspension Judge Newman received for refusing to undergo a medical examination when the circuit's other judges questioned her mental competency. Judge Newman's attorney, Gregory Dolin of the New Civil Liberties Alliance, said Monday: "We are certainly gratified that Judge Cooper did not dismiss the entirety of the action, and we will proceed on the claims that remain live." Dolin said, "With respect to the dismissed claims, we are evaluating our options and will seek review in the DC Circuit in due course and as necessary." A representative for the Federal Circuit didn't immediately respond to a request for comment Monday. Judge Newman is represented by Gregory Dolin and John J. Vecchione of the New Civil Liberties Alliance. The Federal Circuit is represented by Michael Andrew Zee and Stephen Ehrlich of the Civil Division of the U.S. Department of Justice. The case is Newman v. Moore et al., case number 1:23-cv-01334, in the U.S. District Court for the District of Columbia.

Pentagon Secretly Institutionalized DEI In Its K-12 Public Schools - Mr. Mark Smith, LL.M., CLDP

In a Congressional hearing last spring, Gil Cisneros, then-Under Secretary for Military Readiness, announced that the Pentagon was closing its newly formed Office of Diversity, Equity, and Inclusion within its K-12 school system and reassigning its controversial DEI chief after a ten-month internal investigation. The Pentagon’s climb-down was a big win for OpenTheBooks.com. We had worked alongside whistleblowers, journalists, other investigative non-profits, and ranking members of Congress to expose alleged conflicts of interest, violations of military ethics policies, and radical ideologies being forced on the kids of servicemen and servicewomen. Today, we are announcing Cisneros was actually faking. The radical curriculum was not dismantled. Instead, it was stealthily embedded into the lesson plans and classrooms throughout the entire school system. The Pentagon, under Secretary of Defense Lloyd Austin, is preventing details of their DEI policies from coming to light by abusing the Freedom of Information Act. They bamboozled the public with window dressing in Congressional hearings while forcing woke extremism on the roughly 70,000 children of our military service members. It’s critical that taxpayers understand the scope of the DEI philosophy within the DoD’s schools – deployed servicemembers often have no alternative but to use the Pentagon-run school system, called the Department of Defense Education Activity (DoDEA). Pledge your support Troubling Curriculum DOD relentlessly promotes DEI-ideologies to school children of serving families through educational contractors with millions of dollars of taxpayer funding. Here are some examples of what’s happening in the Pentagon’s schools: Chat rooms to facilitate teacher-student conversations that are closed off to parents about sexuality and gender, and likely without their knowledge or consent. Engaging four-year-olds in LGBTQ+ conversations. Elementary schools are the “perfect time” to “really show students the diversity of the gender expression and gender activity.” Solidarity with the neo-Marxist Black Lives Matter organization to encourage teachers to “challenge our beliefs, examine our own biases, and reflect on how we need to evaluate the structures and systems in our classrooms.” Video content on “dissent” and “equity” to “help educators facilitate classroom conversations and much-needed discussions about implicit bias and systemic racism, human rights, equity, social justice, dissent, protest, and empathy." Marxist activism to dismantle systems of “power” and “privilege.” Suggesting a refusal to teach a “white-washed” curriculum and instead teach “social justice rather than heroes, holidays, and celebrations.” A teaching handbook that recommends “critical conversations” with students about race, identity, and privilege and the way “injustice” affects our lives and society. These “explicit conversations” provoke “strong emotions” and crying students are expected. Read the details about these vendors, their payments, and the full background dossier on our investigation here. Transparency Problems The Pentagon is assiduously attempting to hide its biased left-wing extremist curriculum from public view. It is deleting public access to links, driving DEI infrastructure underground, and liberally redacting the most basic Freedom of Information Act requests. For example, OpenTheBooks.com filed a FOIA request for the agency payroll just as we have at nearly 13,000 public schools across America. Stunningly, the DoDEA refused to disclose the individual salaries of its staff, unlike public schools nationwide and almost every other federal agency. No names, job titles, or compensation details on the $1.4 billion payroll. It’s not just our organization having problems. In September 2022, The Claremont Institute published a groundbreaking report on left-wing extremism in DoDEA classrooms, called “Grooming Future Revolutionaries.” The report highlighted content from dozens of video presentations from staffers at a 2021 “Equity and Access Summit” discussing what they were doing to turn schoolchildren into social justice activists. Days later, all videos were taken down from the publicly available links and are no longer accessible. While the agency originally refused to release relevant documents via our FOIA request, we appealed, and the subsequent production confirmed that the videos were taken down in response to the report. Last spring, at the Congressional hearing, Gil Cisneros announced that the Pentagon was dissolving the DoDEA’s DEI department and reassigning its chief. However, key documents we captured via FOIA suggest that DEI-ethos is still at the core of agency mission. Here is what we were able to find out: The Pentagon “integrated” DEI specialists into “four key divisions” in the agency last March while also launching a DEI Steering Committee. The committee is comprised of top executives including the agency’s CEO Thomas Brady, Chief Operating Officer, Chief Academic Officer, and twelve others. We sought more information on the steering committee, but our DoD redacted, or, “hid”: 1. member names; 2. agendas, materials, minutes and discussions; and 3. impact the committee is having on the whole education environment at the Pentagon. The extent of these redactions is so ridiculous that almost every slide from the 14-page slide-deck presented at a committee meeting had been redacted except for the title page and a page defining DEI. The only non-executive staffer we can confirm attended these meetings is DEI Specialist Michelle Woodfork. See her redacted slide deck and calendar information here. Key Quote During the agency’s 2021 Equity and Access Summit, Woodfork made her devotion to the Pentagon’s DEI initiatives abundantly clear in her presentation: “When headquarters published their initiative for REDI [an earlier name for DEI at DoDEA] I got heart palpitations because it felt so affirming of the work I’ve been doing for so long.” Woodfork’s presentation centered on her then-role as a principal at a Pentagon school, where she led “equity audits” on school materials and practices. The background and ideological orientation of Woodfork only underscores the need for the public and DoDEA parents to know who exactly is on this committee, and how much power they have over system-wide education.‍ Background DoDEA made headlines in recent years for practices like hiding “gender transitions” from parents, forcing children into “difficult conversations” about race, class, gender, and sexuality, and the antics of a self-described “woke” Diversity, Equity, and Inclusion chief who allegedly hawked her own books to her colleagues. DoDEA’s focus on DEI, Thomas Brady said, is compelled by President Biden’s 2021 Executive Order 14035, which among other items charges all agencies with “assessing the current state of diversity, equity, inclusion and accessibility within their workforces.” But even before EO 14035, Brady strived to inculcate DEI ideology at the agency, announcing on Juneteenth 2020 that DEI must be “embedded in everything we do.” In December 2024 the National Defense Authorization Act was signed into law by President Joe Biden. The law delineates “rights” for the parents of children attending DoDEA schools, authored by Representative Elise Stefanik (NY-21) which will go into effect in two years. The parental rights include, among other items: The right to review the curriculum of the school The right to review all instructional materials used by their students While these measures are certainly progress for military families, much can still be obfuscated. Teacher training, such as the Equity and Access Summit, should be included as well. And it is not clear if the full spectrum of tools included, such as the secret LGBT chatrooms, would be disclosed as “instructional materials.” Moreover, if extremist materials are disclosed, there does not seem to be a recourse for opting children out of these lessons. Conclusion Secretary Austin and then-Under Secretary Cisneros devoted themselves to hiding their DEI bait-and-switch. With the fanfare of a Congressional platform, Cisnero sought credit for shutting down DEI. But under our scrutiny, we found DoD instead made DEI a stealth weapon against the kids of our fighting men and women in service to an anti-American neo-Marxist ideology. We have further found that DoD under Secretary Austin is leveraging public record laws to the hilt to prevent parents and the public from knowing details of its efforts, while spending millions of taxpayer dollars on objectionable content for school children. DoDEA did not dismantle its DEI efforts. It redoubled those efforts and added deceit and dissembling to its mix. Given DoDEA’s recent history and press regarding extremist content in schools, heads must roll, and the agency must provide full transparency of teaching methods and its DEI-related policy operations. Parents, taxpayers, and the kids themselves deserve no less. Note: We reached out to DoDEA and all educator employees who were quoted or gave presentations as referenced in this article. If they are no longer employed by DoDEA, we couldn’t reach them. We will update our piece if we receive a response. Furthermore, no employee or vendor is accused of any breach or violation of statute, military policy, or agency policy. In fact, they just might be abiding by agency rules or Biden’s executive order, if anything. Will Griffin, DoDEA Director of Communications responded to our comment request: DoDEA remains committed to maintaining a school system where military-connected students can excel and prepare for success in college and careers and where all employees are treated with dignity and respect. We will continue to comply with all applicable Federal laws, Department of Defense policies, and applicable executive orders.

Iran capable of building nuclear bomb in one week, report finds as Middle East tensions flare - Mr. Mark Smith, LL.M., Certified Legal Document Preparer

An Iran watchdog group says the country has enough weapons-grade uranium to build a nuclear weapon in just one week. The Institute for Science and International Security published the findings in a report on Monday, saying Tehran could produce a total of six bombs in a month. "The volatile situation in the region is providing Iran with a unique opportunity and increased internal justification for building nuclear weapons while the United States and Israel’s resources to detect and deter Iran from succeeding are stretched thin," the report states. "Iran's nuclear weapons capabilities are more dangerous than they have ever been, while its relations with the West are at a low point." Iran can "break out and produce enough weapon-grade enriched uranium for a nuclear weapon in a week, using only a fraction of its 60% enriched uranium," the report continued. "This breakout could be difficult for inspectors to detect promptly, if Iran took steps to delay inspectors’ access." An Iran watchdog group says the country has enough weapons-grade uranium to build a nuclear weapon in just one week. (Office of the Iranian Supreme Leader via AP) Iran has been steadily growing its ability to produce enriched uranium in recent years. The substance needs to be enriched to roughly 90% before being used in a nuclear weapon. Iran has an extensive supply of 60% enriched uranium that could quickly be siphoned off and enriched further. The report comes as tensions in the Middle East continue to skyrocket. Iran's proxy terrorist groups have launched missiles into Israel and attacked U.S. forces operating in Iraq, Syria and the Red Sea. The U.S. Navy has shot down numerous anti-ship ballistic missiles launched by incoming Iran-backed Houthi missiles in the Red Sea. President Biden's administration says it is working to prevent Israel's war against Hamas from spilling over into a regional conflict. Nevertheless, the U.S. has carried out a series of airstrikes against the Iran-backed Houthis in Yemen and other groups. The uptick in U.S. strikes came after three American service members were killed in a drone attack on a base in Jordan in late January.

Mass. Attys Shrug Off 'Brilliant' Top Court Pick's Ties To Gov.

Massachusetts Gov. Maura Healey's selection Wednesday of a former romantic partner to fill a vacancy on the state's highest court didn't raise eyebrows among prominent Bay State attorneys, who touted Appeals Court Justice Gabrielle R. Wolohojian's "impeccable" resume on the bench and in BigLaw. Justice Wolohojian, 63, if confirmed, will replace Justice David Lowy, who left the Supreme Judicial Court to serve as general counsel of the University of Massachusetts. Justice Wolohojian, a graduate of Columbia Law School, has served on the Appeals Court, an intermediate appellate court, since 2008. Prior to that, she was a partner at WilmerHale, where she first met Healey. While the two were involved in a long-term relationship and lived together in Boston's Charlestown neighborhood, Healey did not address their past connection in her announcement. She called Justice Wolohojian the best candidate for the position. "There is no one more qualified or better prepared to serve on the Supreme Judicial Court than Justice Wolohojian," Healey said in a statement announcing the nomination. "She will bring over three decades of broad trial and appellate experience, including sixteen years on the Appeals Court." Healey's relationship with Justice Wolohojian ended prior to her election as governor in 2022, according to published interviews of the governor and her new partner, Joanna Lydgate, who is also an attorney. The nomination was vetted by the Supreme Judicial Court Nominating Commission, and will now go to the Governor's Council. A hearing is scheduled for Feb. 21. One member of the Governor's Council called Healey's decision "courageous." "I frankly think that it's kind of courageous of the governor to nominate her," Governor's Council member Terrence Kennedy told Law360 on Wednesday. "She knows she's going to catch heat." "She's absolutely brilliant," Kennedy said of Justice Wolohojian. Kennedy said he had encouraged her to apply for a vacancy on the court during the administration of then-Gov. Charlie Baker. "She's really, really smart and really qualified," Kennedy said. "When you look at it objectively, she has impeccable credentials," said Martin Healy, chief legal counsel for the Massachusetts Bar Association. "It's a solid pick." "I don't think it's going to be an impediment," Healy said of the prior relationship. Justice Wolohojian has strong support within the legal community, said Healy, and brings "tons of experience" both as a practicing attorney and a jurist. "She'll hit the ground running," he said. Justice Wolohojian joined what was then known as Hale & Dorr in 1991, following clerkships for U.S. District Judge Rya Zobel and U.S. Court of Appeals for the First Circuit Judge Bailey Aldrich, according to a biography provided by the governor's office. She eventually became partner and chair of the firm's litigation department, focusing on complex commercial cases, including product liability and consumer class actions. Justice Wolohojian spent 16 months as an associate independent counsel on what came to be known as the Whitewater investigation into President Bill Clinton in 1994 before returning to the firm, which merged with Wilmer Cutler & Pickering in 2004. She was appointed to the Appeals Court by then-Gov. Deval Patrick in 2008. Besides a workload that has included authoring more than 900 decisions for the Appeals Court, Justice Wolohojian chairs the Supreme Judicial Court's Advisory Committees on the Rules of Appellate Procedure, and the Appeals Court's Committees on Judicial Mentoring and Training, Education, Policies and Practices, and En Banc Rehearings. Prior to Columbia Law School, where she received her law degree in 1989 and served as a Columbia Law Review editor, Justice Wolohojian earned a Ph.D. in English language and literature from the University of Oxford in 1987, and a Bachelor of Arts from Rutgers University in 1982. The selection earned praise from retired Massachusetts Supreme Judicial Court Justice Geraldine S. Hines, who called Justice Wolohojian "uniquely qualified" for the role in the statement announcing the nomination. "This is a difficult job that demands intellectual vigor, respect for the rule of law, an unwavering commitment to equal justice under the law, and an impeccable work ethic," Justice Hines said. "From our time together on the Appeals Court and from my conversations with colleagues who have continued to serve on the court, I can say that Justice Wolohojian is richly blessed with these qualifications, as exemplified in her record of achievement as a lawyer and jurist." Outside her legal work, Justice Wolohojian is also a violinist who has performed with the Boston Civic Symphony for 35 years, and has served as president of the organization's board. She also serves as an overseer of a radio program called "From the Top," which features children performing classical music. The governor on Wednesday also nominated four new state district court justices, who if confirmed will sit in community courts in the greater Boston area. Among the nominees is longtime Supreme Judicial Court clerk Francis V. Kenneally, who has overseen the court's docket for the past decade. The other nominees include Lynnfield solo practitioner Leo Fama, Middlesex County Assistant District Attorney Courtney C. Linnehan, and Executive Office of Public Safety and Security attorney Marjorie P. Tynes, who is the agency's deputy executive director of the office of grants and research.

UC Beats Suit Over SF Law School Name Change

A San Francisco judge tossed all claims in a lawsuit challenging the name change of the University of California, Hastings College of the Law to the University of California College of the Law, San Francisco. The lawsuit contended the name change was illegal because a nearly 150-year-old state act creating the law school had also stipulated the school would forever be known as Hastings, after the man who founded the college. "The act that created the law school is a statute, not a contract," said Judge Richard B. Ulmer Jr. in his Tuesday ruling. "The act 'authorized' S.C. Hastings to found the law college. The act does not include any covenanting language; the act is not couched in the terms of a contract." In dismissing the case, Judge Ulmer did not provide leave to amend the lawsuit. Attorneys for the plaintiffs said they will appeal the ruling.   "Although we are disappointed by yesterday's ruling, we remain undeterred in our pursuit of justice for the family of Serranus Hastings, and we look forward to appealing the court's ruling," attorney Gregory Michael told Law360 in an email. A group of school alumni and Hastings descendants calling themselves the Hastings College Conservation Committee filed the lawsuit in October 2022 upon news that the San Francisco law school's name would change, dropping the Hastings name, in January 2023. They argued the new name would violate an agreement enshrined in state law that the college would always bear the Hastings name after Serranus Clinton Hastings gave the state $100,000 in gold in 1878 to establish the law school and served as its inaugural dean. Hastings was also a former state Supreme Court justice. The law school initiated the name change as a way to distance itself from Hastings after commissioning a report that uncovered evidence that he orchestrated the killings of hundreds of Native Americans of the Yuki tribe in the late 1850s to remove them from ranchland he had purchased in what is now Mendocino County in Northern California. Both houses of the California Legislature unanimously approved the law school's name change in August 2022 and Gov. Gavin Newsom signed the bill, AB 1936, the following month. The suit also sought to keep the hereditary board seat given to the Hastings family by the 1878 act establishing the school. The bill authorizing the name change also eliminated the hereditary seat. However, Judge Ulmer dismissed that part of the lawsuit as well, saying the case "does not present the situation where the Legislature is attempting to dictate university policy." Attorney Eduardo Santacana of Willkie Farr & Gallagher LLP, representing the law school's dean and board of directors, said the judge made the proper ruling. "We are pleased the court agreed with our fundamental argument, which rejects the notion that the California Legislature made a contract with Hastings when it agreed to name the law school for him and provide for a board seat in his honor," Santacana told Law360 in an email. "The Legislature did not and cannot contract away its fundamental powers to private parties, because to do so would be to take the administration of public matters out of the hands of the electorate and put them in the hands of individuals who can afford it." Among the famous graduates of the law school are former San Francisco Mayors Willie Brown and George Moscone and U.S. Vice President Kamala Harris. The plaintiffs are represented by Harmeet Dhillon and Karin M. Sweigart of Dhillon Law Group and Gregory R. Michael and Dorothy C. Yamamoto of Michael Yamamoto LLP. The law school's dean and board of directors are represented by Eduardo E. Santacana, Benedict Y. Hur and Joshua D. Anderson of Willkie Farr & Gallagher LLP. The state of California is represented by Rob Bonita, Lisa Chao and Kara Siegel of the state attorney general's office. The case is Hasting College Conservation Committee v. State of California, case number 22-602149, in San Francisco Superior Court.  

Dish's Bid For More Fees Called 'Nightmare' By Fed. Circ. Judge

A Federal Circuit judge told counsel for Dish Network LLC on Wednesday that to secure more fees after the cable giant defeated a patent case in district court that was found to be "exceptional" to cover the costs of challenging the patent at the patent board would create "an effing nightmare." Dish had argued to the three-judge panel that it should be able to bill a shell patent company for expenses incurred challenging the patent through an inter partes review at the Patent Trial and Appeal Board after Dish defeated the related patent suit against it. The patent company, Dragon Intellectual Property LLC, was also appealing the $1.45 million in fees that Dish already won, along with the $1.86 million won by attorneys for Sirius XM Radio Inc. in a different case over the same patent. But the hearing was dominated by arguments over efforts by Dish's lawyers to score more money out of Dragon IP and potentially its lawyers — taking up over an hour of debate among the panel of judges. In that endeavor, Dish had cited the 1989 Sullivan v. Hudson ruling from the U.S. Supreme Court, which gives the courts discretion to award fees to lawyers in a Social Security administrative proceeding. According to the filings, Baker Botts LLP billed Dish for $673,905 in fees from patent board proceedings and wanted that money added to the $1.45 million. Sirius XM was hoping to clock $134,272 in additional fees. U.S. Circuit Judge Kara Farnandez Stoll told Baker Botts lawyer Lauren Dreyer that she had a "practical" question about this argument. "The district court is in the best position to determine whether or not something is exceptional or not because they're in the day-to-day running of the case. That's not so with an IPR," she said. "The district court knows nothing about what happened at the IPR." U.S. Circuit Judge Kimberly Moore was more wary of the possible effect of Dish's request in a legal climate where "every single patent litigation has a companion IPR now." This would open up an entirely new avenue for victorious patent lawyers to litigate further, Judge Moore said. "So, what you're now asking for is every time we're thinking about attorney's fees, anytime an IPR is successful, you're going to have the district court being put in what Judge Stoll was just articulating [is] the very awkward position of trying to evaluate the exceptionality of what was argued and decided, not in his or her forum but in an administrative forum," Judge Moore said. "That sounds like I'm creating an effing nightmare." In response, Dreyer tried to argue that these motions would not come all the time if Dish succeeded just this once. "I think [this case] is the exception; it's not the rule, and it only occurs in the rare cases in which there is frivolousness and an unreasonable manner of litigating," she said. That didn't go down well with Judge Moore. "With all due respect, every time you guys win, that's what you claim," Judge Moore told her, audibly annoyed at Dreyer's repetition of legalese. U.S. District Judge Cathy Ann Bencivengo, on the panel by designation, acted to move the lawyers along in talking about "the circumstances in this case" and said there could be some general grounds for "sweeping the IPR" into a fee bid, as it "wasn't a waste of time [since] you didn't lose there." Judge Moore then told Dreyer that it appeared Judge Bencivengo was "arguing your case better than you are." The 12-member appeals court is down one of its regular members following the suspension of Judge Pauline Newman for refusing to undergo medical tests as part of a probe into her mental fitness. On Wednesday, a national panel that reviews judicial misconduct cases affirmed the suspension of the 96-year-old judge, saying that she hadn't shown good cause for not complying. Judge Bencivengo appeared occasionally mystified at the larger legal effort by Dish to go after Dragon in the first place. "Basically, you have a hollow victory here if you win because plaintiff Dragon is a shell. An empty shell. ... You can get zero. They're judgment proof," she told Dreyer. In addition to asking for more money, Dreyer said Dish was also hoping to get the appeals court to hold Dragon IP's lawyers liable for paying those fees. But Dreyer made little headway again. "All of what you discussed [with Judge Bencivengo] is not in this record. You attempted to supplement this record with a deposition that would have brought to light all of those points. They are not before this court, are they?" Judge Moore asked. Dreyer acknowledged they were not. "So we can't rely on any of that," the judge told her. Judge Moore also took issue with how defense-side patent lawyers use "exceptionality" findings in federal courts. "It feels like in a lot of these exceptional case findings, what really bothers me is that you all come in, and you complain that the district court should have done some sort of redo of all the things it didn't do in order to conclude that the originally asserted positions should have been deemed exceptional," she said. "You're asking us to adopt a rule in which district court judges are now going to have to evaluate conduct, behavior and an outcome in a proceeding they had no involvement with and determine whether fees should be awarded for that in their forum, which would have evaluated the exact same issues under an entirely different burden of proof." The exclamation seemed to surprise Dreyer, who responded that "there shouldn't be a bright-line rule" about it. "Oh, that's good," responded Judge Moore, who later warned that "floodgates will open" from victorious defense-side lawyers if Dish wins what it wants from the appeals court. "I'll be honest. I don't know how many exceptional case findings that have been appealed to me that have ever been overturned," she said. "I'm sure there's some law professor out there that will let us all know on Patently-O." Judge Bencivengo suggested that the court could create "factors" that judges could use to consider if the IPR fees could be included. After Dreyer said that sounded like a good idea, Judge Moore responded: "Out of curiosity, did you make any of those arguments?" "Yes, your honor, we did," Dreyer said. "Really? I would love to see them. On what page in your brief?" Judge Moore asked. Dreyer then acknowledged that actually she hadn't quite made that argument. "I think the answer is 'No, I didn't make those arguments,'" the judge told her. Dragon IP's lawyer also didn't appear to start off on the best footing with Judge Moore. In arguing against the fee awards, Dragon IP lawyer James McDonough III of Rozier Hardt McDonough PLLC said, "I believe reasonable minds could interpret the statements and the prosecution history differently." But Judge Moore told him she was likely not to be swayed. "Let's just start from the premise that is most likely, which is 'I completely disagree with everything you just said,' could you just move on?" she asked. The patent-in-suit is U.S. Patent No. 5,930,444. U.S. Circuit Judges Kimberly A. Moore and Kara Stoll and U.S. District Judge Cathy Ann Bencivengo sat on the panel for the Federal Circuit. Dragon IP is represented by James McDonough III of Rozier Hardt McDonough PLLC. Dish is represented by Lauren Dreyer, Jamie Lynn, G. Hopkins Guy III and Spencer Packard of Baker Botts LLP. The case is Dragon Intellectual Property LLC v. Dish Network LLC, case number 22-1621, in the U.S. Court of Appeals for the Federal Circuit.

Georgia's Top Judge Asks Legislators To Keep Judges Safe Explains Mr. Mark Smith, LL.M., CLDP

Attacks on and threats to judges across the nation are a serious threat that must be addressed in order to ensure "the very independence of our judiciary," Georgia's chief justice told legislators during his second State of the Judiciary address in Atlanta on Wednesday. Chief Justice Michael P. Boggs of the Georgia Supreme Court urged the Georgia General Assembly to support legislation proposed by the Judicial Council of Georgia that would require state and local governments to keep the personal identifying information of judges confidential. Such protections are needed due to the increased threats and attacks faced by judges across the country over the last two years, Justices Boggs said, citing the June 2022 murder of retired Wisconsin state Judge John Roemer, the October murder of Maryland state Judge Andrew F. Wilkinson and the December arrest of a Nevada man who was charged with solicitation to murder two state court judges. Roemer, Justice Boggs said, was murdered in his home by a man he had sentenced to prison, while Wilkinson was murdered outside his home by a man involved in a child custody dispute. "No doubt, these attacks and threats are meant to intimidate and influence courts away from serving as fair and impartial arbiters of justice," Justice Boggs said. "Georgia's judges will not be threatened or intimidated into abandoning their constitutional duties, but incidents like these are repugnant to the rule of law and, if left unchecked, they threaten the very independence of our judiciary." Justice Boggs, who became Georgia's top judge in July 2022, said one way the legislature could help address the problem would be to support legislation proposed by the Judicial Council of Georgia's standing committee on judicial security. Under the proposed legislation, which the council discussed at its most recent meeting, states and local authorities would not be allowed to publicly post or display the personal information of those identified as "protected." In the event that a protected person's information was shared, the draft legislation says, authorities would have 30 days to remove the posts before injunctive relief could be sought. Justice Boggs also emphasized the importance of addressing "workforce development challenges" that make it more difficult for Georgia's courts to run quickly, smoothly and efficiently. Seven rural Georgia counties have no licensed attorneys, Justice Boggs said, and there are 41 assistant district attorney vacancies statewide. Eight of Georgia's 50 judicial circuits have assistant district attorney vacancy rates of 25 percent or higher. Similarly, Justice Boggs said the Georgia Supreme Court had undergone a staff attorney turnover rate of more than 57% since January 2019, and 10 law clerks and administrative assistants have left the Georgia Court of Appeals for "better pay or retirement" over the last 18 months. Even the Georgia Legal Services Program, which arose in the late 1960s to address the dearth of lawyers in rural areas, is facing challenges with more than a dozen openings in Albany, Valdosta, Columbus, Dalton, Macon and Savannah and in its Piedmont region, Justice Boggs said. That's a problem, he said, as it makes it more difficult for survivors of domestic violence, those in need of housing and others to receive the civil legal services they need. "The ugly truth is that many people in Georgia simply do not have access to a lawyer at the most critical time in their lives, either because of where they live or because they cannot afford one," Justice Boggs said. Analyzing the issue, the justice said that while 732 new lawyers passed the July Georgia bar exam, many of them likely plan to practice in and around Atlanta, where private-sector jobs tend to pay higher salaries. Pay for attorneys willing to work in the public sector, he said, is not as competitive today as it was in the 1980s and 1990s. "We must reckon with the fact that this trend depletes our pool of seasoned legal professionals and necessitates time-consuming recruitment and training efforts for their replacements," Justice Boggs said. Age is another factor affecting talent retention, the justice said. The average age of court reporters in the state, whom he identified as vital "spokes on the wheels of justice," was 54 before the pandemic began, with 70% of those court reporters being over the age of 50. Many of these people are now approaching retirement or have retired already, he said, and fewer new court reporters are becoming licensed. This, he said, means "there won't be new ranks to replace the outgoing ones." "Just as it is critical to have enough doctors, nurses and teachers to adequately deliver health care and education services to our citizens, so too must Georgia have enough law enforcement and public safety officers, lawyers and court staff professionals to effectively and efficiently keep the wheels of justice turning," Justice Boggs said. "Without enough court reporters to meet the demand, trials and other proceedings will slow once again." Even so, Justice Boggs, said the state of Georgia's judiciary remains "strong." The number of pending serious violent felony cases in Georgia has decreased by 11% in recent years thanks to American Rescue Plan Act funding allocated by the governor's office to the judicial branch, Justice Boggs said. That is "significant progress," he said, given the challenges affecting judges' efforts to move backlogged dockets that are "still feeling the aftershocks" of the COVID-19 pandemic. "I want to assure you that despite challenges, we remain steadfast in applying and interpreting — not making — the laws and constitution of our state," Justice Boggs said. "And, as always, I want to again express our appreciation for the trust and support that you all in our legislative branch have shown us as we seek your partnership in addressing a wide array of issues affecting our courts." In his first State of the Judiciary address last year, Justice Boggs also lamented workforce challenges that impeded the effort to address case backlogs after the worst of the pandemic.

Giuilani Says Unpaid Bills Mounted As Legal Career Sputtered

Rudy Giuliani laid out his downward financial spiral in acute personal detail over three hours on Wednesday, answering questions from a government bankruptcy watchdog about his approximately $10.6 million of assets, offset by unpaid bills for everything from golf club memberships to condo fees and credit cards. Former New York City Mayor Rudy Giuliani speaks to reporters as he leaves the federal courthouse in Washington on Dec. 11. On Wednesday, Giuliani answered the U.S. Trustee's questions about some $10.6 million in assets he claimed in a Chapter 11 case he filed after a jury found he owed $148 million to two former election workers. (AP Photo/Jose Luis Magana) The former mayor of New York City, who struggled at times to recall details including the timeline of his legal career, shed light on a multitude of catch-up payments he is making — for taxes, dry cleaning and his ex-wife's 90-year old mother's care, for instance — and the spate of lawsuits he is facing, including the $148 million judgment that drove him to seek Chapter 11 bankruptcy protection in December. The Republican firebrand and ally of former President Donald Trump claimed to have no life insurance and no insurance for his Manhattan co-op apartment, which he said is now listed at $5.9 million, in answering questions from Andrea Schwartz for the Office of the U.S. Trustee. Schwartz was running a so-called "Section 341 meeting of creditors" in Giuliani's case, a routine step in the early stages of bankruptcies where the debtor must personally face the U.S. Trustee and creditors to lay bare any assets that could be pursued for the benefit of the estate. "She asked all the right questions and I gave her all the information that I have. I have nothing to hide," Giuliani said as he exited the courthouse Wednesday. Schwartz combed through the details of Giuliani's financial filings for information about how his once lucrative law practice began to fail after he started representing Trump pro bono. Flanked by his bankruptcy counsel, wearing a dark suit and sitting at a table across from Schwartz, Giuliani explained his move from Bracewell & Giuliani LLP to Greenberg Traurig LLP, which he had to leave in 2018 because clients complained about his representation of Trump — with whom he eventually worked "kind of ... 24 hours a day." After the 2020 election, Trump tapped Giuliani to lead a team of lawyers pursuing claims of election fraud. He was supposed to get a salary but didn't, and is now owed an estimated $2 million, which his estate could pursue in bankruptcy. But he took "a major financial hit" when he lost his law license in New York and the District of Columbia in 2021 after speaking at a rally before the attack on the U.S. Capitol on Jan. 6, he said. Since then, he has built up Giuliani Communications, a subsidiary of Giuliani Partners. He earns about $15,000 a month on average from his WABC radio show, which airs every weekday, and a livestream called "America's Mayor Live." The company also employs a handful of other people who are guests, cohosts, producers and security. Giuliani's assets include a $1.2 million retirement account; $30,000 worth of watches, a diamond ring and three Yankees world series rings; a roughly $6 million Manhattan co-op apartment; a $3.5 million Palm Beach condo; and a 1980 Mercedes Benz previously owned, he said, by actress Lauren Bacall. He pays $800 a month for a storage unit in the Bronx holding awards, books, artwork, furniture and files. "I don't think there's anything very valuable," Giuliani said. He has not had his 1951 Joe DiMaggio Yankees' jersey valued. And he spends more than $500 a month on dry cleaning because he wears a different suit every day, he said. Giuliani owns Uber shares, though he could not remember how many or where they are and had forgotten about them until his wife found them during their divorce. He said he received them for early work he did for the ride-sharing company. At other times, Giuliani and Schwartz traded brief banter about church and their personal lives. Counsel for a few creditors was present in the room, but none asked questions. Giuliani "earned everything he has in life through honest hard work," said spokesman Ted Goodman in a statement Wednesday. "The American people are waking up to the abhorrent weaponization of our justice system for partisan political gain, and the fact that we are here today is just another example of this great injustice." Ronald Kuby, who represents creditor Daniel Gill — the Staten Island ShopRite worker who sued Giuliani after he accused him of assault when he slapped him on the back — had a different take. Kuby did not ask any questions during the meeting Wednesday but said afterward that Giuliani was "pathetic" and "doddering" and "utterly unaware of his own finances." Giuliani is represented by Heath S. Berger and Gary C. Fischoff of Berger Fischoff Shumer Wexler & Goodman LLP. The case is In re: Rudolph W. Giuliani, case number 1:23-bk-12055, in the U.S. Bankruptcy Court for the Southern District of New York.

Third-Party Litigation Funding Rule Gets Cold Shoulder In NJ

A New Jersey Supreme Court committee has shot down a proposal to mandate disclosure of third-party litigation funding agreements in civil cases, saying drafting such a rule could be difficult. In its 2024 report recommending rule amendments to the Supreme Court, made available on Tuesday, the civil practice committee indicated a disclosure rule may be appropriate down the road but not at the moment, citing "the need for further development through experience in this area." The rule would apply to cases where lawyers or firms receive funding to work on specific cases in exchange for a contingent interest in the litigation or in cases where a plaintiff uses a loan to pay legal bills while litigation is pending without telling the attorney, the committee said. Those loans can interfere with settlements because it could lead a party to reject an otherwise reasonable settlement offer because it would not pay off the loan. However, the committee and its discovery subcommittee ultimately determined that "there is not sufficient experience to meaningfully develop and recommend a rule change at this time." The committee report noted several potential challenges to drafting a rule to address the question of third-party litigation funding. "Often, attorneys are unaware of their clients' acceptance of TPLF and requiring disclosure by attorneys of the same would prove problematic," the committee said. "While there may be ethical implications where an attorney fails to disclose the existing of TPLF where required, where a client possesses the knowledge, the rule could not be enforced fairly against an attorney."  The committee considered the rule change at the suggestion of the New Jersey Civil Justice Institute, which proposed the change in a letter to the court in April. Anthony Anastasio, president of the NJCJI, told Law360 Pulse on Wednesday that the group is "disappointed" by the decision. "Third-party litigation funding has increased exponentially over the past decade and now constitutes a multibillion-dollar industry," Anastasio wrote in an email Wednesday. "As a result, certain types of civil litigation, such as auto accident cases, mass torts and consumer class actions, are becoming increasingly 'financialized,' with outside money having an outsized influence on case selection and disposition." With no regulation of the issue at the state level, there is a lack of transparency behind these cases, according to Anastasio. Judges and parties may lack the information to identify conflicts of interest and improper influence by funders on litigation strategies or settlement decisions, he added. The NJCJI's letter to the court recommending the change highlighted the case of Sysco Corp. v. Glaz LLC in Illinois federal court. The food distributor Sysco had sued third-party litigation investor Burford Capital, claiming it prevented Sysco from settling with defendants in a price-fixing suit because Burford wanted to continue the litigation against Sysco's wishes. Ultimately, Sysco and Burford agreed to voluntarily dismiss their suits against each other. The NJCJI's letter proposing the change to the court noted that the U.S. District Court for the District of New Jersey mandates disclosure of TPLF and that other states, such as Wyoming and West Virginia, have also enacted their own requirements. "NJCJI's proposal merely sought disclosure of these arrangements in litigation, so that the real parties in interest — namely, the courts, named plaintiffs and defendants — can all ensure that litigants remain in the driver's seat of their own cases and that the desire of third-party funders to maximize profits does not interfere with the administration of justice," Anastasio said.

Jackson Walker Steps Down From 4E Ch. 11 Amid Fees Probe Mr. Mark Smith, LL.M., CLDP

Jackson Walker LLP, the firm at the center of a legal ethics scandal over the undisclosed relationship between a lawyer and a bankruptcy judge, has stepped down as Chapter 11 counsel to hand sanitizer maker 4E Brands Northamerica LLC as a Texas bankruptcy judge considers revoking $800,000 in legal fees paid to the firm in the case. Jackson Walker on Tuesday exited a Chapter 11 case in which its client's claimants and the U.S. Trustee's Office are demanding that the law firm return $800,000 in legal fees. (iStock) In the brief notice filed Tuesday and signed by Jackson Walker attorneys Matthew D. Cavenaugh and Genevieve M. Graham, the firm told the court it no longer represents the debtor or its plan agent. The announcement comes as the court is considering requests from creditors and the Office of the U.S. Trustee to order the return of legal fees in the case after it came to light that ex-Jackson Walker attorney Elizabeth Freeman was the live-in romantic partner of former U.S. Bankruptcy Judge David R. Jones, who oversaw the case. 4E is one of over a dozen cases where the Office of the U.S. Trustee, the U.S. Department of Justice's bankruptcy watchdog, is trying to claw back payments to Jackson Walker in cases overseen by Jones between 2017 and 2022 when Freeman worked at the firm. Jackson Walker has represented 4E since it filed for bankruptcy in 2022. During that time period, neither Jones nor Freeman, who left Jackson Walker at the end of 2022 to start a solo bankruptcy practice, disclosed that they were live-in-romantic partners. In December 2023, the Office of the U.S. Trustee said it plans to file up to 35 disgorgement motions to recover tens of millions of dollars in legal fees Jones approved for the firm while Freeman worked there. Jones resigned in October 2023, hours before the Fifth Circuit Court of Appeals issued a complaint against him stating there was probable cause that his actions rose to judicial misconduct. 4E, a Mexican subsidiary of consumer products maker Kimberly-Clark, filed for bankruptcy to wind down its business following a 2020 recall of its hand sanitizer products for potential methanol, or wood alcohol, contamination. The company also faced a wave of personal injury and wrongful death litigation connected to the recall. In October 2022, 4E confirmed a Chapter 11 liquidation plan. According to information from the Office of the U.S. Trustee in November 2023, Jones awarded Jackson Walker $859,462 in legal fees and $7,301 in expenses in connection with representing 4E. Following Jones' resignation, the trustee and one of 4E's creditors, the estate of Joshua Maestas, who died after consuming 4E sanitizer, asked U.S. Bankruptcy Judge Marvin Isgur, who took over the case after Jones resigned, to order Jackson Walker to return fees from the case. Judge Isgur, who survived a bid to remove him from the case due to his friendship with Jones, is currently considering the matter alongside a motion from 4E's official committee of unsecured creditors to amend the confirmed Chapter 11 plan. The committee argued in January that any recouped Jackson Walker payments should be added to the $2.6 million set aside for unsecured creditors under the Chapter 11 plan. It also argued that the plan hasn't been fully consummated and can be amended since the plan agent, David Dunn, hasn't taken possession of the $2.6 million pool, has left claims from the IRS and others unresolved and hasn't met the requirements of the plan. The notice of withdrawal filed Tuesday did not indicate if 4E has a successor lined up to take over from Jackson Walker. A spokesperson for Jackson Walker declined to comment. Counsel for Dunn did not respond to request for comment Wednesday. Since his resignation, Jones' caseload has been redistributed to Judge Isgur and U.S. Bankruptcy Judge Chris Lopez. Before his resignation, Jones and Judge Isgur made up the Southern District of Texas' controversial "mega" bankruptcy panel. The Jackson Walker scandal added fuel to critiques of the district's method of diverting complex cases, which it defines as bankruptcies involving over $200 million in liabilities, to select judges. Dunn, in his capacity as the plan administrator, is represented by Ken Green, Aaron Guerrero and Bryan Prentice of Bonds Ellis Eppich Schafer Jones LLP. Jackson Walker is represented by Jason L. Boland, William R. Greendyke and Julie Harrison of Norton Rose Fulbright LLP. The official committee of unsecured creditors is represented by Thomas D. Berghman of Munsch Hardt Kopf & Harr PC and Thomas R. Fawkes and Brian J. Jackiw of Tucker Ellis LLP. Maestas' estate is represented by Johnie Patterson of Walker & Patterson PC. The Office of the U.S. Trustee is represented in-house by Millie Aponte Sall. The case is In re: 4E Brands Northamerica LLC, case number 5:22-bk-50009, in the U.S. Bankruptcy Court for the Southern District of Texas.

GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Arguments - Mr. Mark Smith, LL.M., CLDP

Two Republican senators are questioning what they say are "unethical and unconstitutional" standing orders issued by at least three judges in the Southern District of Illinois that aim to promote participation by newer, female and minority attorneys. Sens. Ted Cruz, R-Texas, and John Kennedy, R-La., the top Republicans on the Senate Judiciary Committee's Constitution and Federal Courts, Oversight, Agency Action and Federal Rights subcommittees, respectively, questioning the judges' alleged practice of granting oral argument requests based on an attorney's race or sex. In a letter sent Wednesday to Chief U.S. Circuit Judge Diane S. Sykes of the Seventh Circuit, which oversees the Illinois court, Cruz and Kennedy cite a legal complaint against the court's purported practice brought late last month by the conservative legal advocacy group America First Legal, which was founded by two top Trump administration officials. "In January 2020, Chief Judge Nancy J. Rosenstengel, along with Judge Staci M. Yandle, and later in October 2020, Judge David W. Dugan, issued nearly identical standing orders implementing a new policy regarding oral arguments in an effort to 'encourage the participation of newer, female, and minority attorneys in proceedings' in reaction to concerns about 'increasing opportunities for courtroom advocacy,'" reads the letter, shared exclusively with Law360, ahead of its public release. There were some variations between the orders, but "each establishes a policy under which oral argument requests are granted based on an attorney's race or sex rather than the substantive merits of the case or the importance of oral argument in clarifying the issue before the court," Cruz and Kennedy wrote. "Those disfavored notice. So do potential clients who realize they can get a leg up by hiring lawyers whose sexes and races are preferred by the court," the group said in a complaint. "Few judicial acts are as confidence-shaking as an announcement by a judge that she will handle a case depending in part on the sex or race of a litigant's attorney." They added this is "unethical and unconstitutional," especially since the U.S. Supreme Court over the summer struck down affirmative action in higher education admissions. Cruz and Kennedy asked Judge Sykes for answers to a list of questions to better understand the scale and scope of what they deem a "discriminatory" practice. They also ask for information about any training the Seventh Circuit or Administrative Office of the U.S. Courts has provided for judges following the high court decision in Students for Fair Admissions v. Harvard . The district judges could not be immediately reached for comment, and the Seventh Circuit said it could not comment currently.

Trainer Who Doped Horses Avoids Prison In Cooperation Deal - Mr. Mark Smith, LL.M., Certified Legal Document Preparer (Call or Text: (800) 590-6698 or Email: cldp@mail.com)

A New York trainer who admitted drugging horses so that the outcomes of their races could be fixed avoided prison Wednesday after a Manhattan federal judge credited his extensive cooperation with prosecutors to include testifying at two trials. U.S. District Judge Mary Kay Vyskocil directed defendant Ross Cohen, 52, of Middletown, to pay a $5,000 fine, to forfeit $40,000 and to contribute to more than $28 million of restitution in the feds' crackdown on corruption in horse racing. "You have likely offered the most significant cooperation of any defendant charged in this case," Judge Vyskocil said. "You seem to have changed and you seem to have broken the pattern of repeated drugging." Cohen, who had been a licensed racehorse trainer for 25 years working at Yonkers Raceway and other venues prior to his arrest, pled guilty in 2020 to a count of drug alteration and misbranding conspiracy. Prior to his arrest, Cohen had been fined for doping and suspended by at least one racing venue, the judge noted Wednesday. Under his cooperation deal with the Manhattan U.S. attorney's office, Cohen testified at trial against two co-defendants, veterinarian Seth Fishman and racetrack worker Lisa Giannelli-Voshell, both of whom were found guilty and sentenced to prison. More than 25 people were charged in the crackdown, including most famously thoroughbred trainer Jorge Navarro. Navarro, nicknamed the "Juice Man," pled guilty and in 2021 was sentenced to five years by Judge Vyskocil. In a tearful statement, Cohen, who now works in sales, told the court that he is still working to repair the harm his actions caused. "In simple terms, I was greedy and selfish," he said. "People lost money because they bet on races that I helped fix. Then I received money that I was not entitled to. I also could have harmed the horses I was partially charged with caring for. I did irreparable harm to the horse racing industry because there will be people who will never regain trust that the races aren't fixed." Cohen faced a five-year sentence, the maximum possible for the conspiracy count to which he pled guilty. Without getting into specifics, Judge Vyskocil also said that Cohen assisted prosecutors in matters beyond the cases that are before her. The government's sentencing memorandum detailing Cohen's cooperation is not public. Cohen's lawyer Aida Leisenring said after the sentencing that Cohen showed honest remorse. "Second chances were invented for people like Ross Cohen. We are grateful to court for recognizing that Mr. Cohen tackled many obstacles to right the wrongs he committed," she told Law360 via email. Cohen is represented by Bruce Barket and Aida Leisenring of Barket Marion Epstein & Kearon LLP. The government is represented by David Felton of the U.S. Attorney's Office for the Southern District of New York. The case is USA v. Navarro et al., case number 1:20-cr-00160, in the U.S. District Court for the Southern District of New York.

Ex-Wilmer Partner Among Biden's Latest District Court Picks - Mr. Mark Smith, LL.M., CLDP Certified Legal Document Preparer

President Joe Biden announced four judicial nominees on Wednesday morning to serve in district courts in New York, California and South Dakota. President Joe Biden, shown here on Jan. 6, announced four new judicial nominees Wednesday. (Alex Wong/Getty Images) The nominees are U.S. Magistrate Judge Sanket J. Bulsara for the Eastern District of New York, Judge Dena Michaela Coggins for the Eastern District of California, Eric Schulte, partner at Davenport Evans Hurwitz & Smith LLP, for the District of South Dakota and Judge Camela Theeler for the District of South Dakota. Judge Bulsara has served on the Eastern District of New York since 2017 and became the first South Asian American to serve on any court within the Second Circuit, according to his court bio. Before serving on the bench, he was deputy general counsel for appellate litigation, adjudication, and enforcement and then acting general counsel at the U.S. Securities and Exchange Commission. Judge Bulsara also rose through the ranks to become a partner at Wilmer Cutler Pickering Hale and Dorr LLP, served a brief stint as special assistant district attorney at the Kings County (Brooklyn) District Attorney's Office and was an associate at Munger Tolles & Olson LLP. After graduating from Harvard Law School, he clerked for Judge John G. Koeltl on the Southern District of New York, the White House announcement said. Judge Coggins has been the presiding judge for the Juvenile Court of the Superior Court of California, County of Sacramento since 2023 and a superior court judge since 2021, according to an announcement from the court.  She was previously an administrative law judge for the State of California's Office of Administrative Hearings in the general jurisdiction and special education divisions, the White House said. Judge Coggins has also served as a supervising attorney and hearing officer at the State of California Victim Compensation Board and deputy legal affairs secretary for the governor of California. In addition to her government work, she was an associate at Downey Brand LLP and at Morrison Foerster LLP, the White House said. Judge Coggins received her law degree from the University of the Pacific's McGeorge School of Law. Schulte has been a partner at Davenport Evans Hurwitz & Smith LLP since 2006 and before that was an associate there for five years, his firm bio states. Earlier in his career, he was a law clerk for the South Dakota Second Judicial Circuit in Sioux Falls. Schulte graduated from the University of South Dakota School of Law, his bio said. Judge Theeler has served on the Second Judicial Circuit of the South Dakota Unified Judicial System since 2018. She was previously an assistant U.S. attorney for the District of South Dakota, an associate then a partner at Lynn Jackson Shultz & Lebrun PC, and an associate at Morgan Theeler Law Firm LLP. Judge Theeler clerked for the First Judicial Circuit of the South Dakota Unified Judicial System after receiving her law degree from the University of South Dakota School of Law, according to the White House. Biden also announced on Wednesday his intent to nominate Col. John E. Richardson, executive assistant to the president of Alabama State University, to serve as U.S. Marshal for the Middle District of Alabama. Law360 is tracking Biden's judicial nominees from the White House to the Senate to the federal bench.

Managing Competing Priorities In Witness Preparation - Mr. Mark Smith, LL.M., CLDP

Recently, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology drew criticism for their congressional testimony related to antisemitism on college campuses. Penn President Liz Magill ultimately resigned from her position because of the criticism.[1] Harvard President Claudine Gay also resigned on Jan. 2, due in part to the backlash her comments received. In the weeks leading up to her resignation, Gay apologized for her remarks and stated, "I got caught up in what had become at that point, an extended, combative exchange about policies and procedures. … I failed to convey what is my truth."[2] While the criticism of the presidents' testimony is understandable, what is also understandable is that there were likely competing priorities in the process leading up to the testimony. In other words, there was probably tension between what the university presidents probably knew they should have said — i.e., "Yes, calling for the genocide of Jews violates their school's code of conduct," and what they were likely told to say, i.e., in the words of Magill, "it is ... context-dependent." Such competing priorities are commonly seen in preparing for deposition testimony, as well. This article takes a closer look at these competing priorities, and discusses ways to remedy them. Discrepancy in Goals Between Attorneys and Witnesses There is often a divide between what attorneys want and what witnesses want out of the deposition process. Attorneys want their witnesses to perform well. In other words, they do not want them to do or say anything that may harm the case. They want them to stand firm, spot any traps and react appropriately. If they are working with advanced witnesses responsible for carrying strategy forward — e.g., corporate representatives — they probably also want to make sure the witnesses clearly and succinctly get across the case themes. For most witnesses, their goal is to get out of the deposition in one piece. They do not want to mess up. They want to make everyone happy. But, most of all, they want it over with. The deposition experience is, at best, stressful, and, at worst, an overwhelming tidal wave of emotion. Either way, witnesses — like all humans — seek safety and security.[3] This typically shows up in a fight, flight or freeze response. Individuals gravitate toward built-in responses to external stimuli, like an uncontrollable emotional reaction, i.e., hyperarousal; shutting down and doing whatever is necessary to get it to stop, i.e., hypoarousal; or becoming numb. This numbness is a dissociative response: Individuals no longer have the sense they have any stake in the game. Things cease to matter. Anything goes. They have given up. Witnesses often report that their stress level increases anytime they receive an email or phone call from their attorneys. Without realizing it, some attorneys are retraumatizing their witnesses with each contact because it reminds the witnesses — especially those who have been involved in a catastrophic injury — of one of the worst days of their lives. It also reminds them that no matter how hard they may try to avoid the litigation process, it is unlikely to go away until they sit down and answer accusatory questions from opposing counsel. This remains the case no matter which side of litigation you are on. Plaintiffs and family members have unique stressors when testifying, as do named defendants, corporate representatives and company owners. How can attorneys resolve this tension? Can anything be done to incorporate both sets of priorities? We believe things can be done to minimize this tension, if not totally resolve it. But first, we need to backtrack and consider how the inherent lack of autonomy often projected onto witnesses inhibits the "good performance" everyone is seeking. Tackling Some Assumptions Why is there an assumption that testifying witnesses will happily oblige the legal team's view of the case and perform as directed without question? Why are some attorneys and clients willing to dismiss, or fail to consider, witnesses' perspectives, thoughts, feelings and reactions to the situation the witnesses find themselves in? Many witnesses decidedly do not want to be involved in litigation — many, in fact, would do almost anything to not be involved. Many are doing what they can to grit their teeth and make it through the process unscathed — attempt to perform well, meet the team's expectations and avoid embarrassing themselves. Attorneys tell witnesses to listen carefully, pay close attention to the question, take their time, do not speculate and stay calm. That is a simplistic approach to a situation that is more likely to be full of emotional land mines, manipulative questions and confusing tactics. Most of us do not spend hours in the ticking time bomb-esque feeling of a deposition or trial testimony. Attorneys with years of experience navigating the legal system are conditioned to accept the emotionality inherent in it — the ups and downs of litigation are normalized, expected and prepared for. But what about for those unfamiliar with such a situation? There is a painful fact about human behavior: You can tell someone to do something differently multiple times; however, that does not necessarily mean they have the capacity to change on command. Humans are not that simple. These things require a little more understanding and a little more work. Understanding how to empower behavior change means understanding that it begins with putting the witness at the center of the preparation process. This is what ensures good testimony. Resolving the Tension Between Priorities and Maximizing Preparation One of the first ways to resolve the tension created by competing priorities in deposition preparation is for the attorney to shift their mindset. It is a different thing to enter the preparation room with a prebuilt idea that witnesses are there to perform for the team, versus entering the room genuinely curious about witnesses' perspectives, fears and abilities. This involves asking open-ended questions and building rapport with the witness — an individual who is enduring something difficult. This also involves acknowledging that the situation can be tough, and not rushing to convince the witness otherwise. Taking the time to discuss these concerns and build rapport with witnesses is something that attorneys often overlook. Sometimes, attorneys will try to bypass the rapport-building process with witnesses and get straight to the mock questions. Some of them view building rapport and allowing witnesses to seemingly dump their emotions as a waste of precious time that could be better spent practicing answering questions and honing responses that support the case narrative. While the mock cross-examination process is vital to preparing witnesses for testimony, this process is useless if witnesses are not engaged, feel unheard or are carrying emotional baggage. Interestingly, some witnesses want to bypass the extensive training it takes to be a "good" witness and do not want to discuss how the litigation is affecting them. When attorneys oblige the witness's request to get on to the mock cross-examination questions, there is almost always a point during the preparation process in which the witness's walls begin coming down, and their underlying feelings emerge — it just had to happen on their time. Sometimes it is a document that elicits this reaction; sometimes it is a line of questioning during the mock cross-examination. Regardless of when it happens, that is the moment when the focus must shift away from the mock cross-examination questions and shift to addressing these underlying emotions and concerns. The focus on a positive outcome can cloud the team's perspective. If witnesses sense the litigation team is prioritizing a good result and concentrating on "doing well" above all, it can be difficult for the witness to acknowledge any fears around their ability to meet those expectations. The team needs to establish a climate of psychological safety, where it is clear there will not be negative consequences for acknowledging reality — even an uncomfortable, less-than-perfect one. Attorneys should meet witnesses where they are. Despite your structured witness preparation processes, witness preparation should still look different every time. It must ultimately be driven by, and focused on, the unique needs of whoever is in front of you. Attorneys and clients should also consider letting witnesses in and showing them what is going on behind the scenes in the litigation. For example, how will their "yes" response to one question be used against them later in the deposition? What is the purpose of opposing counsel showing witnesses a specific document — i.e., how does this document tie into opposing counsel's case narrative? What are the bad facts that opposing counsel will point out to try and elicit a defensive or emotional reaction from the witnesses? While we respect the need to be cautious about disclosure and discovery issues when letting witnesses know more about the case, giving them a sense of ownership over what is happening is essential. They are the ones navigating a hard situation. Yet, the litigation team sometimes fails to offer padding for the toughness. Somewhat counterintuitively, putting everything on the table helps dissipate the tension and encourage witness cohesion with the litigation strategy. Trust among the litigation team, including the witness, is essential. The team needs to hear — bad or good — what witnesses know, remember and think about critical elements of the case. Attorneys should not want to be surprised during testimony. There are horror stories recounting how attorneys have learned of witnesses' criminal histories during the deposition. This most likely occurred because the attorneys did not take the time to learn more about their witnesses before deposition. Their preparation likely focused more on the case facts, and not on a holistic view of the person who was testifying. Incorporating Behavioral Science in Litigation It is also worth noting that motivation goes a long way in making it easier for people to do hard things. Research suggests that when people are in social contexts that support their unique intrinsic or extrinsic motivations for engaging in a task, and when people are given autonomy — when they are allowed to have needs of their own within that task — they have higher levels of motivation, and ultimately perform better.[4] Witnesses are no different. Some witnesses are motivated by a team's support and understanding of their unique life circumstances. As an example, this could mean the team meets at an ideal location for the witnesses, but out of the way for the litigation team. It could also mean the team takes the time to bring witnesses to the courtroom before trial testimony to help normalize an unfamiliar environment. Perhaps preparation involves a mental health component, where witnesses get an opportunity to express their anxieties and receive support for their present situation. All these legal team concessions can help motivate witnesses to endure the extensive deposition or trial testimony preparation process. Conclusion Witness preparation involves a power differential: The witness is subordinate to rules obliging them to speak truthfully, which requires significant vulnerability on their part. The litigation team, meanwhile, has no such mandate. Their vulnerabilities are not exposed in the same manner. Ultimately, witnesses are the only ones executing what is being prepared for. They are the performers, asked to spend time in a hard situation from which they may receive little to no benefit. Litigation teams that have empathy with this situation will facilitate better connections, establish greater trust and create conditions where witnesses are comfortable sharing opinions and recollections that help the discovery and strategic process. Ava Hernández is a litigation consultant and Steve Wood, Ph.D., is a senior litigation consultant at Courtroom Sciences Inc. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Arkin, D. (2023, December 9). University of Pennsylvania president steps down amid criticism of antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/university-pennsylvania-president-steps-criticism-antisemitism-testimo-rcna128712. [2] Arkin, D. (2023, December 12). Harvard president to stay amid outcry over antisemitism testimony. NBC News. https://www.nbcnews.com/news/us-news/harvard-president-claudine-gay-staying-rcna129178. [3] Mcleod, S. (2023, November 24). Maslow's hierarchy of needs. Simply Psychology. https://www.simplypsychology.org/maslow.html. [4] Edward L. Deci & Richard M. Ryan (2000) The "what" and "why" of goal pursuits: Human needs and the self-determination of behavior. Psychological Inquiry, 11(4), 227-268. doi: 10.1207/S15327965PLI1104_01.