Friday, November 14, 2003

Another run-of-the mine fee case for Judge Jones in rejecting rate of $550 per hour

In Double K Properties, LLC v. Aaron Rents, Inc., Judge Jones refused to award contractual attorneys' fees at the claimed rate of $550 per hour for counsel from Atlanta, choosing instead to limit the hourly rate to $210 per hour, the amount charged by local counsel from Roanoke. Judge Jones cited his own opinion in the Wynn case, in which he had concluded that a rate of $200 per hour was sufficient for "run-of-the-mine" litigation in Big Stone Gap.

Receiver for ROA sues gang of insiders

Via VLW, this article in the Richmond Times-Dispatch described the lawsuit filed in the E.D. Va. by the receiver of the Reciprocal of America against twenty-some insiders for allowing the company to go down. The case styled Gross v. General Reinsurance, Docket No. 03cv955, is assigned to Judge Spencer. John A. Conrad and JoAnn Nolte of the Conrad firm are the Virginia counsel for the plaintiff Gross.

The defendants include General Reinsurance; John William "Bill" Crews; Milliman USA, Inc.; PriceWaterhouseCoopers, LLP; Wachovia Bank; Crews & Hancock; Atlantic Security, Ltd.; Kenneth R. Patterson; Carolyn B. Hudgins; Judith A. Kelley; Thomas M. Reindel; Victoria J. Seeger; Thomas N. Kellogg; Robert L. Sanders; Gary Stephani; Richard W.E. "Dicky" Bland; Ronald K. Davis; Gordon D. McLean; and Richard Witkowski.

Why not antagonize a member of the legislature so 60 to 80 people can talk about sex?

The Roanoke Times reports here that attendance was slight at a sex talk given by the college TV station at Virginia Tech, while Delegate Robert Marshall is hinting at "a possible budget amendment restricting how student fees can be spent."

Active member of LLC can't claim securities fraud

In Robinson v. Glynn, the Fourth Circuit in a published opinion by Judge Wilkinson joined by Judge Gregory and Chief Judge Hamilton affirmed the district court's conclusion that the plaintiff's membership interest in a limited liability company was not a security on which a securities fraud claim could be based, where the plaintiff was an active participant in the company. "To do otherwise," Judge Wilkinson explained in the opening paragraph, "would unjustifiably expand the scope of the federal securities laws by treating an ordinary commercial venture as an investment contract."

Indeed, there is some authority that the fiduciary duties of LLC members to each other are quite limited. It would be quite something if they could bring securities fraud claims when things go awry.

Fourth Circuit sides mostly against NLRB in solicitation, recognition case

In NLRB v. Transpersonnel, Inc., a split panel of the Fourth Circuit upheld in part and rejected in part the National Labor Relations Board's disposition of unfair labor practice charges against a trucking company, where the issues were whether the company had unlawfully solicited employees to sign anti-union statements and whether the company had unlawfully withdrawn recognition of a Teamsters local as the collective bargaining representative of its employees, after the expiration of the collective bargaining agreement. Judge Shedd wrote the opinion for the Court, with Judge Luttig concurring in part and dissenting as to one of the solicitation claims resolved against the company, and Judge Wilkinson dissenting as to everything decided against the NLRB. What is interesting about the case is that for a published opinion it is mostly about the facts, with Judge Wilkinson's dissent consisting mostly of the complaint that the majority was inadequately deferential to the NLRB's findings of fact.

I was reading that death penalty report the other day and one of the issue raised in it was the page limitation for briefing appeals in the Virginia Supreme Court, the issue being that counsel did not have enough space to argue all the issues and had to pick and choose what to include in the brief. Although the stakes are not comparable, of course, the same is often true in NLRA cases, as I have argued here in the part. The big outcome depends on the smaller disputes about what happened to many different employees. In this case, what if there had been 25 solicitation charges instead of just 9, I wonder. Would the Court have been in the same position to unravel the facts?

Judge Jones denies summary judgment in withholding tax case

There's nothing short of a criminal conviction that messes up your life like the 100% penalty imposed on a person held responsible for failure to pay over the government the money that is withheld from employee wages. The debt can't be discharged, and the debtor does not have much leverage in bargaining for a compromise with the IRS. That's what made me think Judge Jones' short opinion this week in Layne v. U.S. significant, where he denied the government's summary judgment motion in a case where the government sought to impose the penalty on the wife of a former coal operator who worked for a time as the company's treasurer. The Court concluded that "[w]hether a responsible person has the necessary state of mind to act willfully under § 6672(a) is a 'quintessential jury issue.'"

Thursday, November 13, 2003

Buchanan County school board sues 56 gasoline firms over MTBE in water supply

According to a front-page story in this week's Virginia Mountaineer, the Buchanan County School Board has filed a suit in the Circuit Court for Buchanan County against 56 gasoline manufacturers, designers, refiners, formulators, and distributors for in excess of $180 million, claiming that the water in the wells owned by the school system have been contaminated by the gasoline additive MTBE. The lawyers representing the School Board are identified as Tom Scott of the Street firm in Grundy, Jeffrey A. Breit from Norfolk, Scott Summy from Texas, among others.

MTBE is part of the plot in Nothing But the Truth, one of the John Lescroart novels in the series with the Dismas Hardy/Abe Glitzky characters - lively and entertaining books, all of them, and colored by great descriptive snippets about San Francisco (where I have never been).

Bush administration considers changes to Clean Water Act in favor of mountaintop mining

According to this AP report, the Bush administration may push for changes in the Clean Water Act that will cure the legal attack on mountaintop mining, where coal companies fill in creek beds that lie between the hills where the overburden is stripped away to expose the coal seams.

Rehnquist to speak at William & Mary on Friday

As reported here in the Daily Press, Chief Justice William Rehnquist will speak in Williamsburg on Friday at a conference put on by the William & Mary School of Law about "how state and federal courts work in concert."

Committee vote on Claude Allen scheduled for this morning

This article in the Times-Dispatch says, among other things, that the Senate Judiciary Committee is supposed to take a vote this morning on the nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit, but notes that Senator Sarbanes of Maryland "has vowed to do all he can to block confirmation, including a filibuster if Allen's nomination reaches the full Senate." The article also talks about the roles of Virginia's Senators Allen and Warner in the late-night judge talkfest in the U.S. Senate, trying to break the filibusters on other court of appeals nominees. This article in the Virginian-Pilot also details the speaking assignments of Senators Allen and Warner in the talk marathon on the Senate floor.

More on the death penalty in Virginia

According to this report in the Richmond Times-Dispatch, the Attorney General's office has declared in response to the ACLU anti-death penalty study that Virginia's death penalty statute is the best in the nation.

Rehearing denied in Wise County landfill case

As reported here in the Coalfield Progress, the Virginia Supreme Court denied Wise County's petition for rehearing in the landfill fee case.

Wednesday, November 12, 2003

On whether there should be a moratorium on the death penalty in Virginia

Via Jurist's Paper Chase, the AP has this article on this study calling for a moratorium on the death penalty in Virginia.

The study is called "Broken Justice: The Death Penalty of Virginia" and is the result of collaboration between the ACLU of Virginia, the Rutherford Institute, the Virgina State Conference NAACP, the Virginia Interfaith Center for Public Policy, the Virginia Association of Criminal Defense Lawyers, the Office of Justice and Peace of the Archdiocese of Richmond, Virginians for Alternatives to the Death Penalty, Virginia Coalition for Juvenile Justice, Amnesty International USA, Legal Aid Justice Center, and Virginai CURE.

In a nutshell, the report says "that Virginia’s criminal justice system is crippled by procedures that fail to ensure a reliable determination of guilt or innocence." It says that wrongful convictions are "the foreseeable product of two factors presented here: prosecutorial misconduct and incompetent counsel" and that "these factors are aggravated by insensible restrictions on discovery that permit trial by ambush." The report urges that more attention should be paid to the Roger Keith Coleman case.

On Tennessee's CHOOSE LIFE license plate

Both Virginia and Tennessee have dealt with the issues of the "Choose Life" license plate. This Findlaw article by law professor Michael Dorf explains his views as to why the ACLU's challenge to the "Choose Life" license plate should fail.

On perjury convictions in Virginia

The Norfolk paper had this interesting article on perjury convictions in Virginia (and elsewhere). The article says that "Between 1997 and 2002, 56 people in South Hampton Roads were charged with the crime, according to statistics from the Virginia Supreme Court," and that "In the nation’s federal courts, only 0.4 percent of 76,952 defendants had perjury, contempt or intimidation listed as their most serious offense in 2000, according to the U.S. Department of Justice."

John Lamie's case argued before U.S. Supreme Court on Monday

Earlier this week, the U.S. Supreme Court heard oral argument in the appeal brought on behalf of Abingdon bankruptcy attorney John Lamie. The lawyers representing him had this summary of the case on their excellent blog. The case has to do with attorneys' fees for lawyers representing debtors in Chapter 7, and the failure of Congress to fix a "scrivener's error" in the Bankruptcy Code. The Fourth Circuit's opinion can be found here.

JLARC must not listen to Michael Savage or read Pat Buchanan

According to this AP story, the Joint Legislative Audit and Review Commission says that immigrants add wealth to Virginia's economy, don't get much in return, and the Commonwealth ought to spend more on services for them.

Now that the Braves' season is over, the only thing on the radio other than music when I drive home is the Michael Savage show.

Court strikes $10 million verdict in Charlottesville defamation case

Via VLW, the Daily Progress reported here that the Circuit Court Judge Edward L. Hogshire has decided to overturn the $10 million defamation verdict against a Charlottesville television station, and has ordered a remittitur, giving the plaintiff the option of accepting of a $1 million judgment or a new trial on damages.

Worth a visit, just for the cartoon

Via Jurist's Paper Chase, here is the anti-filibuster website with lots of information about why the alleged obstructions of the nominees of President Bush to the various courts of appeals is a bad thing.

D. Conn. judge awards enhanced fees of $325 per hour under EAJA has this article about a case in Connecticut where a federal judge ordered enhanced fees of $325 per hour for class counsel in a Medicare case, noting among other things that some lawyers in the area charge $500 per hour, the judge himself used to charge $340 per hour, and the case involved considerable expertise.

Monday, November 10, 2003

More on Virginia politics and taxes

Ben Domenech says here that if Governor Warner convinces the General Assembly to raise taxes, Warner will never again be elected to statewide office in Virginia (i.e., would lose in a campaign against Sen. Allen in 2006). Someone commenting on Domenech's post wonders: if this is true for Governor Warner, would it also be true for the Republicans in the General Assembly?

On the 40-hour work week for general district court judges

This wild story in the Daily Press says that the administrative powers that be have declared that general district court judges will be docked leave time when they work less than 40-hour weeks, and that one of them is so mad about this apparently absurd policy that he sought a temporary injunction against it.

Heck, I'd think that general district court judges ought to get a bonus for working LESS than 40 hour weeks - the dockets generally won't allow it, at least not in the local courts here in Southwest Virginia. Chief Justice Hassell isn't too likely to be thinking about Southwest Virginia if this new policy is his idea, but I'd like to know just where there is a problem with district court judges not working hard.

Why not cite international law on constitutional questions

This article describes a speech in October Justice O'Connor gave, in which one of her topics was the Supreme Court's citation of international law. This David Limbaugh article said the Supreme Court should not be trying to internationalize American constitutional law.

I mention this because someone else sent me this George Will column today which talks about "fundamental differences between American and European understandings of constitutional democracy."

It seems more than odd to look to international (i.e., European) law for understanding of the U.S. Constitution when the Europeans have no constitution like ours.

Video game maker seeks dismissal of E.D. Tenn. suit blaming game for causing shootings

In federal court in Greeneville, the makers of the Grand Theft Auto III video game have filed a motion to dismiss claims that it is responsible for the actions of two young men who went out and started shooting cars in Interstate 40, according to this report in the Kingsport paper (registration required). The article explains:

"According to court records, on June 25 two stepbrothers - William Buckner, 16, and Joshua Buckner, 14 - took two .22-caliber rifles from their parents' home in Newport and started shooting at automobiles on Interstate 40.

Court records state that Aaron Hamel, 45, the son of John and Rosemary Hamel, was shot in the head and killed. His passenger, Denise Deneau, suffered injuries. Kimberly Bede, who was traveling in another vehicle, was struck by a bullet and wounded.

The Buckners were arrested and pleaded guilty to reckless homicide and aggravated assault and are serving an indefinite term in state custody.

In statements to police, the Buckners allegedly told officers they had gotten the rifles from a locked room in their home and then started shooting at vehicles. The boys allegedly told police they were inspired by Grand Theft Auto III.

On Oct. 20, the Hamels, Bede and Deneau filed suit against Rockstar Games, Take-Two Interactive, Sony Computer Entertainment America and Wal-Mart.

In that lawsuit, the plaintiffs claim that Grand Theft Auto III 'makes extreme violence pleasurable and attractive' and trains players 'to point and shoot firearms and inspires them to do so in an effective manner.'"

Sunday, November 09, 2003

No power, no cable, nothing to do but hit the road

As noted in this squib from the Channel 5 news, the night before last and off and on during the day yesterday we had no power and then no cable - so during the day we went to Johnson City.

The news item says there were 14,000 AEP customers in Southwest Virginia affected.

Lawyer fees for Big East suit averaging $157,000 per week

This article says the lawyer bill for the lawsuit brought by the remaining schools in the Big East was more than $2 million for the period from May 26 to August 31 of 2003. The Atlantic Coast Conference was dropped from the lawsuit filed in Connecticut state court, for lack of personal jurisdiction. Virginia Tech was originally one of the plaintiffs in the case, before the ACC changes its mind and voted to add Tech as a new member.

Whistle-blower for mine safety to be fired by Bush administration?

The NY Times (registration required) has this story on Jack Spadaro, the superintendent of the National Mine Health and Safety Academy in Beckley, WV, who "has been an outspoken critic of a federal investigation into a huge spill of coal sludge in eastern Kentucky three years ago. The accident, at the Martin County Coal Company, is considered one of the biggest environmental disasters in the Appalachian region."

The article goes on to say the Martin County spill was larger even that the Buffalo Creek disaster, the subject of this interesting lawyer book.

No basis in law for geographic claims to Fourth Circuit seats

Regarding the opposition of Maryland's U.S. Senators to the nomination of Claude Allen, who is not from Maryland, to the U.S. Court of Appeals for the Fourth Circuit, this article in the Baltimore Sun explains that there is no basis in law for their arguments that the seat belongs to Maryland.

The article describes the history of the Fourth Circuit, and says in part:

"The idea of states having any sort of proportional representation on federal appellate courts did not come about until the past few decades. Before then, these courts were so small that there were not enough judgeships to go around. . . .

The 4th Circuit had three judges until 1961, when two more were added. Another two joined in 1966, three more in 1978, one in 1984 and four in 1990 to bring it to its current level of 15. . . .

The original three seats on the court were given to judges from various states. It was not until the 4th Circuit grew to five judges in 1961 that it had one from each of its states. As additional seats were added, they were dealt out to the states like a deck of cards.

After a 1966 expansion and a 1967 retirement, Maryland, Virginia and South Carolina each had two judges. North Carolina and West Virginia had one. Maryland got a third seat in 1978 when North Carolina and West Virginia got their second seats. In 1984, North Carolina got a third seat, but two years later it went to a South Carolinian.

The addition of four seats in 1990 brought the court to its current composition -- Virginia and South Carolina each have four seats, West Virginia and North Carolina each have two. Maryland has two sitting judges, with a third seat in the current dispute. . . .

In testifying against Allen's nomination. Sarbanes correctly said that Maryland, with a population of more than 5.3 million, has 20 percent of the circuit's total population of 26.6 million, concluding that it should have 20 percent of the seats on the court -- three of the 15.

But by that calculation, North Carolina with 8.2 million people should have four seats and South Carolina, at 4 million, should have two. The opposite is true.

Sherilynn Ifill of the University of Maryland School of Law says there is a simple reason for that -- North Carolina Sen. Jesse Helms opposed every nomination that the Clinton administration put forward from North Carolina because the nominees were black. . . .

Virginia, with 7.2 million people, fits the population formula with its four seats, though West Virginia would seem entitled to only one of its two seats with 1.8 million people. . . .

Some contend that this all could have been avoided -- and the 4th Circuit well-served -- if Maryland's senators had accepted Keisler's nomination. After all, one of Virginia's 4th Circuit judges, J. Michael Luttig, spent most of his legal career in Washington before joining the court in 1991.

But Entin of Case Western Reserve says that Virginia's senators did object when President Reagan tried to give a Virginia seat to Kenneth W. Starr, who moved to the Virginia suburbs to work in Washington.

Reagan backed down and put Starr on the District of Columbia circuit.

Still, if there is a judicial population that can claim underrepresentation on the 4th Circuit, it is lawyers from Maryland's Washington suburbs -- whether they practice in this state or in the District.

In the 4th Circuit's 112-year history, there have been eight judges from Maryland. All have been from Baltimore."

Malvo and the Matrix defense

This Boston Globe article says that the sniper Malvo will be just the latest to claim that the Matrix movies made them do it.

Plain clothes cops in Roanoke

This AP article on a new street crimes unit of the Roanoke police begins with this scenario:

"Five people who stood before a Roanoke judge _ then lost the privilege to drive--walked out of the courthouse and got behind the wheel of a vehicle.

None thought twice about the men in plain clothes who followed them outside until they were stopped and arrested."

Having it both ways on tax increases

This editorial from the Norfolk paper accuses the Speaker of the House of Delegates of trying to have it both ways on government revenues:

"No new taxes, he says out of one side of his mouth. Local governments deserve more help from the state than they’re getting, he says out the other. These are incompatible wishes, unless Howell intends to eliminate major state programs and turn the revenue that funds them over to cities and counties. . . .

If he remains true to his unwillingness to increase anyone’s tax burden while cutting taxes, then we can only assume he intends to cut the heck out of a state budget that has already been shrunk by $6 billion in the past two years. We look forward to the details of the speaker’s plan for doing that. Howell implies that the task won’t be so difficult by pointing out that Virginia’s state budget nearly doubled in the last decade.

We pose a challenge: knock off inflation, a huge buildup in the state prison system, spiraling growth in mandated spending for Medicare-Medicaid health care coverage, costs related to enrollment growth in public schools and almost $1 billion annually in car-tax reimbursement to localities (which, unfairly, counts as growth in the state budget), and tell Virginians then how much their budget has increased.

The result will reveal what Howell ought to know, that Virginia has one of the leanest state budgets in the nation. Howell is honest enough to acknowledge that “localities have too many responsibilities and too few resources.” That’s why property taxes — one of the few sources of revenue available to local governments — have gone up in dozens of localities in the last few years.

But the speaker is on slippery ground when he offers to share state income tax revenue with localities or fund school construction and renovation with state dollars. Virginia can do either of these, but only at the expense of some current state programs. Howell needs to say which ones. . . .

Hopefully, a majority of Republicans in the Virginia House of Delegates will put reality ahead of fantasy when they convene in Richmond in January. Otherwise, we’re headed for a crash."

More on Judge Jane Marum Roush

Judge Jane Marum Roush of the Circuit Court for Fairfax County will preside over the trial in Chesapeake of accused sniper Lee Boyd Malvo, but this past week she was in Wise for the trial of the annexation sought by the Town of Big Stone Gap, and she is the subject of this profile in the Virginian-Pilot.

Roanoke paper against internet access tax moratorium

This editorial in the Roanoke paper says, among other things:

"The intellectual and moral bankruptcy of the prevailing anti-tax atmosphere was on display Thursday in the U.S. Senate.

That's because the Senate was debating a piece of bipartisan dreck - it's co-sponsored by Republican George Allen of this state and Democrat Ron Wyden of Oregon - to make permanent a moratorium on state or local taxation of Internet service provision."