In 'stunning fall from grace,' med-mal lawyer is convicted of trying to extort medical system for $25M By Paralegal Mark Smith, LL.M., Certified Legal Documents Preparer November 27, 2024, 8:50 am CST

A medical-malpractice lawyer once regarded as a top plaintiff’s attorney in Maryland was convicted of attempted extortion Friday, a day after a federal judge found him in contempt and ordered his detention overnight for violating court orders while representing himself. The conviction of 77-year-old lawyer Stephen L. Snyder for proposing a $25 million consulting deal with the University of Maryland Medical System is “a stunning fall from grace,” the Baltimore Sun reports. He was convicted on one count of attempted extortion and seven counts of violating the federal Travel Act for using interstate travel, emails, a text message and phone calls to further the alleged extortion scheme. Prosecutors had contended that Snyder promised to refrain from disparaging the medical system’s transplant program in exchange for the consulting deal, which would prevent him from suing on behalf of medical-malpractice clients because of a conflict of interest. Snyder has said he offered to become a consultant to “help prevent any future tragedies.” Snyder is known around Baltimore for his slogan, “Don’t just sue them, Snyder them.” At the beginning of the trial, Snyder told jurors that the government “really turned around and Snyder’d me. And they Snyder’d me in a dishonest way,” according to the Baltimore Sun. Snyder contended that he was entrapped by the medical system, which strung him along while the FBI recorded several of his phone calls. He also said he had consulted with two ethics experts who said the consulting agreement would be legal and ethical. The Baltimore Banner reports that Snyder has won multiple nine-figure settlements and jury verdicts over the course of his 50-year career. “But by his own admission,” the publication reports, “Snyder is not at the top of his game. He has told the court that he is in poor health and struggling. He repeatedly ran afoul of the judge. Most of his direct and cross-examinations were peppered with sustained objections for not following court rules and [the judge’s] orders, including 100 in one day of testimony.” U.S. District Judge Deborah Boardman of the District of Maryland found Snyder in contempt after he delivered his closing argument Thursday, WBAL-TV reports. According to WBAL-TV, Boardman had “warned Snyder not to argue with witnesses, not to testify through statements, not to bring up topics he was aware the judge barred from the case in October—but he kept doing it anyway, including four times during his 75-minute closing argument.” Sentencing is scheduled for Feb. 25. Snyder faces up to 20 years in prison for attempted extortion and each violation of the Travel Act. Hat tip to Law360, which also covered the verdict.

How Reading for Leisure Can Improve Your Legal Writing

Reading is part of the lawyer’s job. Reading becomes integral to our day-to-day job as we research, edit, and perfect our best arguments for our clients. In this career, we get sucked into the technical world of legalese and formulate arguments to win our cases. So why spend time outside of work reading for leisure? Because it helps us humanize the very people we represent and helps us be creative in our legal writing. Reading Humanizes Your Legal Clients Ultimately, we represent human beings with issues that affect their lives, much like the characters in the books we read for fun. Reading nonlegal material, whatever it may be, must have a problem that needs to be resolved. The main character must navigate the world alone or with others to solve their problem. Much like the characters in books, we must find a way to solve our clients’ problems. Yet characters in books inevitably find themselves along their journey. They learn something about themselves that helps them solve the problem. A hero, for example, learns they cannot rely solely on themselves to defeat the enemy; they must rely on the best characteristics of others. As lawyers, we often forget this human aspect of our work. We are narrowly focused, researching and arguing to best advocate for our client. Yet how do we accomplish this without knowing the client? What caused the client’s problem that now needs to be solved? What is the client’s goal? Winning a case is always a positive goal, but what do we learn along the journey? These questions highlight why reading for leisure has many benefits in this profession. It humanizes us and keeps us in tune with the realities of the world and how imperfect it is. Reading reflects the world back at us and presents us with challenges for which we may not have solutions. This is a good thing. It makes us change our thinking, taking us outside our respective boxes to see how to achieve our goals and tackle new challenges. Reading translates to creative legal writing. Inspiration can lie within the pages of a good, fast-paced book that may have nothing to do with the issue you are tackling at work. The creativity and humanity we gain from reading can help our legal writing by showing the reader that you are advocating for a real person, for real change. Arguments become more compelling and enlightened. Reading Clears Your Mind and Develops Your Vocabulary Reading for fun also has the benefit of cleansing the mind’s palate. It erases thoughts related to the legal task at hand and transports you into the plot of the book. With a clear head, your mind has a clean slate to build from and create better arguments in your legal writing. Reading for fun can expand your knowledge about the world, increase your vocabulary, and help you develop creative solutions to problems. Reading has brought me many benefits that are reflected in my legal writing. The mental clarity that comes with reading fiction gives my mind the respite it needs to develop better arguments for my clients and better advocate for them. Reading has exposed me to many different worlds, some of which are even like the world in which my clients live. This exposure helps me write in a compelling manner so that I can educate the reader about the kind of situation my client is going through and help them develop empathy for my client. Reading fiction has not only helped me keep my legal writing client-focused but has also helped me cultivate innovative arguments to appeal to the reader’s sense of empathy and humanity. Reading for pleasure has also helped me develop a vocabulary the reader can relate to and understand. The wide variety of material gives me insight into how readers think and relate to the world around them. Hence, when writing, I consciously try to use the tools and skills developed in my reading to make the writing understandable to the reader. While still necessary in legal writing, I try to minimize the use of complex legal jargon so the reader can easily understand legal concepts. And when legal jargon is used, I explain it in terms that the reader can comprehend. Thus, reading for fun develops my writing skills to provide understandable legal writing to my readers. Reading Keeps Us Connected In a world that is evolving toward the increased use of artificial intelligence and its influence on the legal world, reading keeps us grounded; it reminds us that we are making the best of our human minds to develop legal answers for people. Reading for fun helps us connect with one another in meaningful ways, and when you become the writer, those connections expand and reach people in ways automated writing cannot. As lawyers, we tend to think that we must read only those books that will help us in our careers, books that boost our skills in our profession. Reading for fun, even for the avid reader, becomes secondary and often abandoned because of negative biases. I used to think that my reading had to be limited to books related to law, legal writing, and books that would generally stimulate my mind to become a better lawyer. Like how parents play Mozart for their children, I was stuck in the mindset that there were only intelligent books, and those were the ones with the most value to my career and my legal writing. Reconnecting with other genres, even the most trivial ones, helped reset my mindset. It reminded me that inspiration can come in many forms. In my reading journey, I have found mystery and thriller novels to be the most helpful with my legal writing. They present a problem, a mystery that seems unsolvable at first. But as the story develops, more clues appear, leading the reader closer and closer to the ultimate revelation. Sometimes, authors add plot twists that throw you through a loop—an unexpected event the reader could not predict. The same thing happens to us in real life. Our clients’ lives are not linear and predictable. At times, your writing will need to reflect developing events. As an immigration attorney, this is especially true when developing declarations for clients. Circumstances such as trauma or newly discovered information can alter how their story will develop before a judge or immigration officer. My line of work requires me to reflect on these changes in writing and formulating arguments that match the facts of each case. Reading mystery and thriller novels has helped me narrate my clients’ stories in a way that points the reader to the ultimate revelation: the reason my clients are in the United States. Regardless of your reading level on your off time, consider reading for fun. Not only will it reshape the way you think and approach issues in real life, it will definitely improve your legal writing skills.

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."

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.

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.

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.

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.

Pfizer, Moderna Spar Over Trial Date In COVID Vaccine IP Case - Mr. Mark Smith, LL.M., CLDP

Moderna and Pfizer are battling over setting a trial date in a dispute in Massachusetts federal court over COVID-19 vaccine patent infringement claims, with Pfizer looking to schedule a trial after summary judgment motions are decided, while Moderna is arguing a firm trial date is needed now and should be set for this fall. Pfizer, alongside BioNTech, is hoping that the District of Massachusetts will wait on scheduling a trial start date until after summary judgment motions are ruled on in the summer and its attorneys are freed up from other conflicts. Meanwhile, Moderna claims that the case is on track for a September 2024 trial and that pushing it back would create scheduling conflicts with its witnesses.   "The longer that this case proceeds without a firm trial date, the greater the opportunity for the court, the parties, and the witnesses to fill their calendars with other commitments," Moderna said in its Tuesday motion. "As BioNTech and Pfizer have already informed Moderna, their lead trial counsel have previously-scheduled trial conflicts that would make a trial date in 2024 under the present schedule impossible," Pfizer and BioNTech countered in their Tuesday response. Moderna filed its motion first, stating that the case could start as early as September 2024, and adding that it couldn't be held any later than January 2025 under the court's rules. According to the Massachusetts-based biotechnology company, Pfizer's point about possible conflicts actually illustrates the need to set a trial date "sooner than later," as both the court and witnesses' schedules could fill up. In addition, Moderna said summary judgment is not a good reason to delay scheduling the trial because there are no issues brought up that would make a trial unnecessary, and even if there were, setting a trial date wouldn't affect the court's ability to resolve the summary judgment. Moderna said it was worried that Pfizer was angling to slow the trial, as it told the Patent Trial and Appeal Board in a related matter that it wasn't expecting the trial to occur until next spring. "Moderna is concerned that defendants are seeking to delay trial in this case," Moderna stated. "In two recent filings submitted to the Patent Trial and Appeal Board, Pfizer and BioNTech have suggested that trial in this case will not occur until 'around April 2025,' and that it was 'speculative' and 'willfully naive' to expect the court to schedule trial sooner." However, Pfizer said in its response that it is the court's "established practice" to set trial dates after deciding on summary judgment motions, which in this case is set for July, and there is no reason to deviate from that. "The scope and length of the trial, and the time necessary for trial, will depend on the outcome of the summary judgment motions," Pfizer and BioNTech said. "At this time, the parties are proceeding into expert discovery and nothing has changed to warrant departure from the established practice." According to the two biotech companies, several members of their trial counsel have other trials scheduled throughout October and December 2024 that would make any trial dates in 2024 impossible. Pfizer said that if the court did decide to schedule a trial date ahead of summary judgment, sometime in early 2025 would be appropriate, as it would reduce scheduling conflicts and would not prejudice Moderna. Moderna first sued in August 2022, claiming that Pfizer and BioNTech could have steered clear of Moderna's patented technology in developing their COVID-19 vaccine, but instead infringed two key components of Moderna's platform. According to the suit, they used the same chemical modification and encoded their vaccine for the same coronavirus protein — the full-length spike protein — that Moderna says it pioneered long ago. Counsel for Moderna did not immediately respond to a request for comment. Counsel for Pfizer and BioNTech declined to comment. The patents in-suit are U.S. Patents Nos. 10,993,127; 10,702,600; and 10,898,574. Moderna is represented by William F. Lee, Emily R. Whelan, Kevin S. Prussia, Andrew J. Danford and Amy K. Wigmore of WilmerHale. Pfizer is represented by Thomas H. L. Selby, Stanley E. Fisher, A. Joshua Podoll, Kathryn S. Kayali, Michael Xun Liu, Michael Mestitz, Julie Tavares, Ayelet M. Evrony, Derrick M. Anderson and Haylee Bernal Anderson of Williams & Connolly LLP, and Lee C. Bromberg, Erik P. Belt and Wyley Proctor of McCarter & English LLP. BioNTech is represented by Bruce M. Wexler, Eric W. Dittmann, Young J. Park, Ashley N. Mays-Williams, Scott F. Peachman, Karthik R. Kasaraneni and Ryan Meuth of Paul Hastings LLP, and Jeffrey S. Robbins, Joseph D. Lipchitz and Gregory M. Boucher of Saul Ewing LLP. The case is ModernaTX Inc. et al. v. Pfizer Inc. et al., case number 1:22-cv-11378, in the U.S. District Court for the District of Massachusetts.

A federal jury in Maryland on Tuesday found former Baltimore State's Attorney Marilyn Mosby guilty of lying on mortgage applications for one of her two Florida vacation homes, but not guilty on the application for the other home. After a more than two-week trial in Greenbelt, Maryland, the jurors convicted Mosby of making a false mortgage application, ruling after a day of deliberations that Mosby lied about receiving a $5,000 gift from her husband as she closed on a condominium in Longboat Key, Fla., according to the U.S. Attorney's Office for the District of Maryland. The jury, however, acquitted her on similar charges related to the purchase of an eight-bedroom house in Kissimmee. The split verdict is a second conviction for Mosby, Baltimore's top prosecutor from 2015 to 2023. In November, a separate federal jury convicted her of two counts of perjury in connection with her withdrawal of thousands of dollars from her city retirement account under a federal law designed to help people suffering amid the COVID-19 pandemic. Mosby is facing up to 30 years for the mortgage fraud conviction, and the perjury counts from the November trial each carry a maximum of five years' incarceration. Still, actual federal sentences are usually less than the maximum. U.S. Attorney Erek L. Barron, whose Maryland office prosecuted the case, said in a statement following the verdict Tuesday: "We humbly respect the court's considered rulings, opposing counsels' zealous advocacy, and the wisdom of both jury verdicts in this case and we remain focused on our mission to uphold the rule of law." Local media reports say Mosby did not comment as she left court. During Mosby's latest trial, federal prosecutors vied to prove that Mosby spun a web of lies — about her federal tax debts, rental intentions and the $5,000 gift — as she purchased two homes in Florida with the retirement funds that she withdrew. Mosby's lawyers contended that Mosby was a first-time homebuyer and real estate rookie who leaned on professionals throughout the home purchase processes. Evidently, jurors were pushed toward conviction by the so-called gift letter that Mosby sent to her mortgage company in February 2021. In it, she said she had received a $5,000 gift from her then-husband and Baltimore City Council President Nick Mosby. Marilyn Mosby had the money and needed it to lock in a lower interest rate on the Longboat condo, but the funds were tied up in a custodial account that she shared with her daughter and the lender wouldn't accept. So, prosecutors said, Mosby wired the $5,000 to her husband, and he sent the money to an escrow agent. Marilyn Mosby testified that she wired the money because she was not confident that her husband could come up with the cash by closing. Assistant U.S. Attorney Sean Delaney, on the other hand, said during closing statements Monday that the gift letter is a smoking gun. "On the gift letter, it's open and shut," he told jurors. Although jurors hung their hats on the letter, opening and closing statements focused heavily on the $64,000 in back taxes that Nick and Marilyn Mosby racked up in tax years 2014 and 2015. Mosby still owed thousands of dollars to the Internal Revenue Service when she applied for mortgages on the vacation homes in 2020 and 2021, prosecutors said, but she indicated that she was not in default or delinquent on any federal debt. Mosby's legal team, meanwhile, insisted that Mosby was unaware of the lingering debt because her now ex-husband lied to her for years about paying it off. The couple divorced last year, and both Marilyn and Nick Mosby testified at trial. Prosecutors also accused Mosby of signing a contract that promised to maintain exclusive control over the Kissimmee property despite having already given control to a vacation rental company. In addition, prosecutors said Mosby sent a letter to her mortgage company falsely stating that she had lived in the Kissimmee property for the past 70 days. The government is represented by Sean R. Delaney and Aaron S.J. Zelinsky of the U.S. Attorney's Office for the District of Maryland. Marilyn Mosby is represented by James Wyda, Maggie Grace, Sedira Banan and Cullen Macbeth of the Office of the Federal Public Defender. The case is U.S. v. Marilyn Mosby, case number 1:22-cr-00007, in the U.S. District Court for the District of Maryland. Read more at: https://www.law360.com/legalethics/articles/1794544?nl_pk=7089bcf1-8829-40c2-883f-4d8f8fbbf1ea&utm_source=newsletter&utm_medium=email&utm_campaign=legalethics&utm_content=1794544&read_main=1&nlsidx=0&nlaidx=0?copied=1

Mosby Guilty On One Count Of Lying For Fla. Mortgage - Mr. Mark Smith, LL.M., CLDP

A federal jury in Maryland on Tuesday found former Baltimore State's Attorney Marilyn Mosby guilty of lying on mortgage applications for one of her two Florida vacation homes, but not guilty on the application for the other home. After a more than two-week trial in Greenbelt, Maryland, the jurors convicted Mosby of making a false mortgage application, ruling after a day of deliberations that Mosby lied about receiving a $5,000 gift from her husband as she closed on a condominium in Longboat Key, Fla., according to the U.S. Attorney's Office for the District of Maryland. The jury, however, acquitted her on similar charges related to the purchase of an eight-bedroom house in Kissimmee. The split verdict is a second conviction for Mosby, Baltimore's top prosecutor from 2015 to 2023. In November, a separate federal jury convicted her of two counts of perjury in connection with her withdrawal of thousands of dollars from her city retirement account under a federal law designed to help people suffering amid the COVID-19 pandemic. Mosby is facing up to 30 years for the mortgage fraud conviction, and the perjury counts from the November trial each carry a maximum of five years' incarceration. Still, actual federal sentences are usually less than the maximum. U.S. Attorney Erek L. Barron, whose Maryland office prosecuted the case, said in a statement following the verdict Tuesday: "We humbly respect the court's considered rulings, opposing counsels' zealous advocacy, and the wisdom of both jury verdicts in this case and we remain focused on our mission to uphold the rule of law." Local media reports say Mosby did not comment as she left court. During Mosby's latest trial, federal prosecutors vied to prove that Mosby spun a web of lies — about her federal tax debts, rental intentions and the $5,000 gift — as she purchased two homes in Florida with the retirement funds that she withdrew. Mosby's lawyers contended that Mosby was a first-time homebuyer and real estate rookie who leaned on professionals throughout the home purchase processes. Evidently, jurors were pushed toward conviction by the so-called gift letter that Mosby sent to her mortgage company in February 2021. In it, she said she had received a $5,000 gift from her then-husband and Baltimore City Council President Nick Mosby. Marilyn Mosby had the money and needed it to lock in a lower interest rate on the Longboat condo, but the funds were tied up in a custodial account that she shared with her daughter and the lender wouldn't accept. So, prosecutors said, Mosby wired the $5,000 to her husband, and he sent the money to an escrow agent. Marilyn Mosby testified that she wired the money because she was not confident that her husband could come up with the cash by closing. Assistant U.S. Attorney Sean Delaney, on the other hand, said during closing statements Monday that the gift letter is a smoking gun. "On the gift letter, it's open and shut," he told jurors. Although jurors hung their hats on the letter, opening and closing statements focused heavily on the $64,000 in back taxes that Nick and Marilyn Mosby racked up in tax years 2014 and 2015. Mosby still owed thousands of dollars to the Internal Revenue Service when she applied for mortgages on the vacation homes in 2020 and 2021, prosecutors said, but she indicated that she was not in default or delinquent on any federal debt. Mosby's legal team, meanwhile, insisted that Mosby was unaware of the lingering debt because her now ex-husband lied to her for years about paying it off. The couple divorced last year, and both Marilyn and Nick Mosby testified at trial. Prosecutors also accused Mosby of signing a contract that promised to maintain exclusive control over the Kissimmee property despite having already given control to a vacation rental company. In addition, prosecutors said Mosby sent a letter to her mortgage company falsely stating that she had lived in the Kissimmee property for the past 70 days. The government is represented by Sean R. Delaney and Aaron S.J. Zelinsky of the U.S. Attorney's Office for the District of Maryland. Marilyn Mosby is represented by James Wyda, Maggie Grace, Sedira Banan and Cullen Macbeth of the Office of the Federal Public Defender. The case is U.S. v. Marilyn Mosby, case number 1:22-cr-00007, in the U.S. District Court for the District of Maryland. Mr. Mark Smith, LL.M. Certified Legal Documents Preparer (800) 590-6698 (Telephone) cldp@mail.com (E-Mail) https://cldpmarcsmith.com (Website) American Bar Association No.: 6036858 Please feel free to reach out via social media as well: https://www.instagram.com/marksmithcldp/ https://www.facebook.com/groups/marksmithcldp https://medium.com/@cldpmarksmith https://twitter.com/cldpmarksmith https://mrmarksmithllmcp.quora.com/ https://www.youtube.com/@cldpmarksmith https://www.pinterest.com/cldpmarksmith/ https://www.facebook.com/certifiedlegaldocumentspreparermarksmith

911 Call Scrutiny Should Not Be Used To Identify Suspects - Mr. Mark Smith, LL.M., CLDP

This spring, Tracy Harpster, a retired deputy police chief from Dayton, Ohio, will travel to West Virginia,[1] Michigan[2] and Indiana[3] to train police officers and other criminal legal system stakeholders in 911 call analysis — a troubling and scientifically unproven method of suspect development that threatens to ensnare innocent people in the criminal legal system.

For example, in 2019, Jessica Logan,[4] a young mother in Illinois, called 911 when her child stopped breathing. Shockingly, her attempt to seek help in this desperate moment of need was later used as evidence to convict her of first-degree murder of her baby, and she was sentenced to 33 years in prison. A key part of the prosecution's case against Logan was a detective's testimony analyzing her call for help using Harpster's unproven method.

According to an exhaustive investigatory series by ProPublica,[5] 911 call analysis has now been used by law enforcement to develop suspects in more than 100 known cases across 26 states. This concerning approach continues to spread across the country, despite the risk it poses to innocent people who were simply calling 911 to seek help.

In light of increased awareness over problems associated with 911 call analysis, prosecutors would be well advised to review any investigation and prosecution that relied on this questionable technique. And policymakers and law enforcement leaders should consider banning this technique nationwide.

In his training, Harpster promises to teach people to ascertain "indicators of guilt or innocence"[6] from the words people use when they ask for help, the tone and cadence of their call, and how they are processing their circumstances.

According to Propublica, "[s]uch linguistic detection is possible, [Harpster] claims, if you know how to analyze callers' speech patterns. ... [A] misplaced word as innocuous as 'hi' or 'please' or 'somebody' can reveal a murderer on the phone."

Not only does this questionable analysis fail to consider how people may speak when under duress, shock or pain, but it also takes data from an exceedingly small sample of just 100 callers to create a general theory of how innocent or guilty people speak on 911 calls.

Furthermore, it doesn't take into account differences in speech that can stem from one's cultural background, regional dialect, education level or socioeconomic status.

Researchers who attempted to verify this technique could not do so, and Harpster has not shared his data, despite requests for independent review.

Historically, investigators have often sought tools to detect when people are not telling the truth by analyzing verbal and nonverbal cues. But research has repeatedly shown that these methods lack a valid scientific basis — human behavior is simply too complex to allow us to distinguish between lies and truth with a simple, one-size-fits-all test.

We're seeing this play out with existing research on 911 call analysis, which confirms that this approach does not come close to meeting the standards for evidence admissibility that must be applied when life and liberty are at stake.

Although this method was unreliable from the beginning, 911 call analysis has spread to police and prosecutor offices in at least 26 states, according to ProPublica's reports. It's alarming that so many in law enforcement are embracing this unscientific method that weaponizes the language used by people experiencing the worst moment of their lives against them. And, in doing so, investigators may end up overlooking other suspects, leading to tunnel vision that opens the door to wrongful convictions.

It's sadly not surprising that this unproven method has spread. The American legal system lacks sufficient guardrails to ensure that forensic and investigative methods are based on a strong scientific foundation.

Strategies that are used to identify suspects but are not later introduced as expert testimony in court due to judicial concerns that they don't meet the standard of admissibility — as we are now seeing with 911 call analysis — escape the safeguards that do exist.[7]

As a result, unfounded or outright discredited methods can be used by police and prosecutors across the country in ways that profoundly affect the trajectory of criminal cases, and are subject to almost no meaningful oversight.

Because police and prosecutors are not in a position to conduct scientific analysis of the methods and technologies on which they rely, the availability of scientifically unproven methods — and the promise that they will help catch and convict people who commit crimes — creates the very real risk that police and prosecutors will unknowingly use flawed methods to accuse and charge innocent people of crimes.

Indeed, a quarter of people exonerated since 1989 were wrongfully convicted based on false or misleading forensic evidence, like bite mark analysis.[8]

But that hasn't stopped some in law enforcement from ushering in new and unproven methods of suspect development, which are often deployed before they are adequately tested, and many have already been demonstrated to have disparate impacts on people of color.[9]

For example, in the past year, facial recognition technology led to the wrongful arrests of a pregnant woman, Porcha Woodruff in Detroit,[10] and Randal Reid,[11] who spent nearly a week in jail in Georgia after being falsely accused of stealing.

We must ensure that suspect development methods used by police and prosecutors, including 911 call analysis, are thoroughly researched and scientifically vetted before being deployed. Failure to do so causes drastic harm and the unacceptable risk of wrongful convictions.

Elected prosecutors and law enforcement leaders have an obligation to review the investigative methods used in their offices and departments and ensure that they are reliable and based on sound science.

All parts of our justice system, as well as our local and national leaders, have a role to play in addressing these concerns. A national scientific oversight entity should be established to evaluate the validity, reliability and equity of technologies prior to their implementation in the criminal legal system.

The federal government should also establish and fund a research agenda to ensure that extant and future development of criminal investigative and forensic methods and technologies, including 911 call analysis, are properly tested and evaluated before they are widely used.

Lastly, as noted above, we call for a review of every case in the country that involves 911 call analysis and an immediate nationwide moratorium on the technique so it can be fully evaluated before it creates any further harm.

Any one of us could need to call 911 for help in a moment of crisis. Doing so should never be a pathway to a wrongful conviction.

Mr. Mark Smith, LL.M.
Certified Legal Documents Preparer
(800) 590-6698 (Telephone)
cldp@mail.com (E-Mail)
https://cldpmarcsmith.com (Website)
American Bar Association No.: 6036858

#Law #Legal #Lawsuit #Attorney #HarvardLaw #Lawyer #Lawyers #Justice #SupremeCourt #Lawyerlife #Justice4All #Lawsuit #LawFirm #InstaLawyer #Legally #CriminalDefense #InnocentUntilProvenGuilty #Felony #misdemeanor #cldpmarksmith

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Miriam Aroni Krinsky is the executive director of Fair and Just Prosecution. She formerly served as a federal prosecutor, and is the author of "Change from Within: Reimagining the 21st-Century Prosecutor."

Isabelle Cohn is a forensic science policy associate at Innocence Project.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

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] Saint Albans Police Department https://saintalbanspolice.com/event/9-1-1-homicide-is-the-caller-the-killer-identifying-the-innocence-or-guilt-of-a-caller-reporting-homicide/2024-04-08/.

[2] Oakland Community College https://www.oaklandcc.edu/crest/911/911-academy-courses/911-homicide-is-the-caller-the-killer.

[3] in911.net https://www.in911.net/training-calendars.html.

[4] Murphy, Brett. (2022). How Jessica Logan's Call for Help Became Evidence Against Her. ProPublica. https://www.propublica.org/article/911-call-analysis-jessica-logan-evidence.

[5] Murphy, Brett. (2022). They Called 911 for Help. Police and Prosecutors Used a New Junk Science to Decide They Were Liars. ProPublica. https://www.propublica.org/article/911-call-analysis-fbi-police-courts.

[6] Harpster, T., Adams, S. H., & Jarvis, J. P. (2009). Analyzing 911 Homicide Calls for Indicators of Guilt or Innocence: An Exploratory Analysis.Homicide Studies, 13(1), 69-93. https://doi.org/10.1177/1088767908328073.

[7] Murphy, Brett. (2022). They Called 911 for Help. Police and Prosecutors Used New Junk Science to Decide They Were Liars. https://www.propublica.org/article/911-call-analysis-fbi-police-courts.

[8] National Registry of Exonerations (2024). % Exonerations By Contributing Factor. https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx.

[9] Associated Press. (2023). Facial Recognition Tool Led to Mistaken Arrest, Lawyer Says. U.S. News and World Report. https://www.usnews.com/news/best-states/louisiana/articles/2023-01-02/facial-recognition-tool-led-to-mistaken-arrest-lawyer-says#:~:text=%7C-,Jan.,2023%2C%20at%201%3A28%20p.m.&text=NEW%
20ORLEANS%20(AP)%20%E2%80%94%20Louisiana,use%20of%20the%20digital%20tool.

[10] Hill, Kashmir. (2023). Eight Months Pregnant and Arrested After False Facial Recognition Match. New York Times. https://www.nytimes.com/2023/08/06/business/facial-recognition-false-arrest.html.

[11] Hill, Kashmir and Mac, Ryan. (2023). 'Thousands of Dollars for Something I Didn't Do.' New York Times. https://www.nytimes.com/2023/03/31/technology/facial-recognition-false-arrests.html.