Technically Lawful


Despite widespread reports that federal court websites were down nationwide yesterday here in the USA due to a DDOS “cyberattck” (and some outfit taking credit for it on Twitter), the FBI said last night the websites were down due to “technical problems.”

I don’t see many news outlets updating their reports this morning. I suppose “Unknown Hacker-Terrorists Launch Cyberattack on US Justice System” gets more page views than “Federal Websites Back Online After IT Issue Fixed with Server Reboot.” Oh well, they are just journalists after all.

Perhaps a bit less sexy, but a more accurate story is here:

FBI: US court websites went down due to “technical problems,” not DDOS | Ars Technica.


Contractually Bound, Litigation of Business | Business of Litigation

Jùdà de chénggōng–巨大的成功

Great Success

I closed the sale of a Chinese restaurant today. It was a typical seller-financed, small business sale. Actually, it even went a little smoother than usual. Just like every single transaction I have ever done, there is always something (usually plural) that complicates things. If you’re lucky, it is no more than a few minor misunderstandings that are easily repaired with a little extra time, patience and understanding.  But for this deal, there was just one. Kinda big one.

Always Something(s)

The buyer and seller only spoke Chinese. My savior (a/k/a my translator) was a Laotian-American woman who had been in Minnesota for a long time. You could hardly tell English was her third language. Problem was, she’d never dealt with legal lingo before and did not have any related business experience. I spent a little extra time when we first met so I could get all the terms and conditions thoroughly explained to me. It all went from Chinese through the lay translator person and then to me. I was more attuned to the increased possibility for misunderstanding so I double/triple checked everything and made sure I understood. Drawing pictures and hand signals seemed to help. Or maybe they were just being kind and polite? Or maybe it’s funny watching a lawyer do hand signals at a conference table? Or maybe all the above?

Meeting of the Minds

At the end of the meeting, I felt confident I understood how the buyer and seller wanted everything structured. Nonetheless, I set it up so there was plenty of time for the buyer and seller to check and question the documents before the closing with the ability to make changes and with hope it would go off as uneventful as possible. I was a little leery when I got the call to set up the closing because I hadn’t edited anything major in the documents. My first drafts are usually pretty good but there is always something that needs tweaking. Or there is something that wasn’t fully explained, understood or written clearly enough. But everything seemed fine and that made me nervous. Nonetheless, the buyer and seller said they were satisfied. They both had it all translated for themselves. They it all reviewed and thought everything was understood.  I was apprehensive, but set up the closing anyway.

ABC–Always Be Clear

As usual, I explained all the big points in each document to make sure everyone understood everything and agreed before anything was signed. The numbers were the easiest. I didn’t have to say much after passing out the amortization schedule, except pointing out where the payments, interest, maturity date, etc. were located on the page. “If there’s no payment made, then . . .”–seemed like a universal phrase. To answer the question if anything could be changed after today, I shook my head and the translator said no.  I explained (with awesome hand gestures) they call it a “closing” (clasped hands together with finality) because once it’s signed, the deal is shut tight and complete (smack open palm on table top). I seemed understood and was proud of my clarity, with the right touch of drama. But then came the hardest part. The most difficult clause.  Whether I have to explain it to a seller or buyer, a high school drop out or summa cum laude graduate, a doctor or dishwasher, a janitor or engineer I never seem to make it clear.  It’s tough enough when the client speaks English, let alone having it translated into Chinese. It was the dreaded  Indemnification provisions.

Unintelligibly Inarticulate

Because I was so nervous and had built up anticipation to a great degree, I struggled and couldn’t pronounce anything clearly: IN-DEMNE-FACI-ATION. IN-DEMN-ICTA. IN-DEM-NE-FI-CA-TION! Yes! (maybe no one will even noticed if I look stone-faced enough) I took a deep breath and slowed down.  I tried to explain it in plain English that could be translated. Once again, I stumbled and mumbled and was incomprehensible. I got frustrated.  Why words all ran togetherintoone. The frustration made me lose patience. As I was reaching for my pen and yellow pad, to draw something brilliant that would clear everything up–it felt like something snapped in my neck. I felt a spark and it all came clear in my head. I am going to always use this in every sale from here on out. I will use this no matter what the folks at the table speak as a first, second, third or fourth language. This I promise myself.

Recompensations for Indemnification

I will never, ever use the words “indemnification” or “compensate” or “reimbursement.” I will never again say “subsequent” or “consequential.” I will never speak of “preceding” or “antecedent.” I will never use these words again when explaining indemnity clauses to anyone as long as I shall live. In their stead, I will only explain indemnification by using these simple, defined key words:

Preceding means before.

So say before.

Subsequent means after.

So say after.

And indemnification?


It means protect and take care of.

So say Protect and Take Care Of. Using these terms everything went well. My words were easily translated with just one phrase apiece. So in the end, today’s closing was a Great Success (巨大的成功). I will use my new terminology from now on since today they Shǐ wǒ shòuyì fěi qiǎn (使我受益匪浅). MKT

Attorneys & Lawyers & Counselors, Fraudulently Fooled

Beware of email attachments purporting to carry case information, courts warn

If I skip my hearing on Tuesday and claim it was because I thought my Notice was a fake court e-mail, will that be a good enough excuse?

“But Your Honor, after Target got hacked and my bank account was drained, I just just couldn’t take any chances.”


Beware of email attachments purporting to carry case information, courts warn.


Attorneys & Lawyers & Counselors, Discovered on Demand

Feds move to block discovery in NSA lawsuit

Alternate headlines:

  • Feds Move To Keep NSA Secrets Secret
  • No Discovery Into What NSA Has Discovered
  • NSA Litigation: Move To Block Gathering Information About Information Gathering     And yours? . . .

Feds move to block discovery in National Security Agency surveillance lawsuit.


Happy New Year – unless you log in remotely…

Some things about practicing law are the same wherever you may roam. See the following from a Solicitor’s blog: Legal Orange.

Legal Orange

So rather than live in fear of the “To Do’s” mounting up as I am out of the office I decided to log in remotely. Bad idea.

There was almost 200 things to do. This was made up of a variety of things:

  • incoming emails, post & voicemails
  • management information
  • a last minute application made on the same day they were due to file a defence (they want arbitration now, having never mentioned it beforehand)
  • witness statements that have been returned
  • a defence (which is likely to succeed)
  • expert reports (both of which look unfavourable, having already been paid handsomely to provide a preliminary report, now the case is going to be litigated they have both got cold feet at the prospect of attending Court) 
  • outstanding cost matters that were not completed by year-end (*argh*!!!)
  • etc, etc, etc


After about 3-4 hours I managed to get this under the 100 mark…

View original post 190 more words

Attorneys & Lawyers & Counselors, Fraudulently Fooled, Litigation of Business | Business of Litigation

U.S. Judge Cuts Attorney Fees in Chinese Companies’ Price-Fixing Case


OK, it’s a price-fixing case and the attorney’s fees were lowered by the Court (a joke’s in there screaming to be let out). I know not many will see an injustice here. I know not many will defend class action lawyer fee awards. But think this one through with me. I’ll lead . . .

  • Money, it’s a Gas

The firms put in a total of $14,000,000.00 worth of their attorneys’ time. They could have done other work and been paid a guaranteed fee with no real risk. But they took this case and put their time on the line. They could have lost and been paid $0.00 per hour. Could have spent a lot of time they would never get back. No guarantee of success. A real chance of loss.

The firms also pulled out their own wallets and fronted about $4,000,000.00 in costs. This is different from time spent on a case. They had already spent time to earn the $4M first. They took a chance and doubled down with their time. No guarantee of success. A real chance of loss.

  • Now Gimme Money, That’s What I Want

If you take a high risk, you deserve a high reward. If the reward is low, no one will take the big risks. These firms deserve a high reward for taking this high risk–with their own money at stake. Why? Even if they personally profit off their own skills, talents and commitment, the profit they gained was realized by all US consumers. You have to consider the result. They procured a significant public good the entire country will enjoy. That’s not hyperbolic. That’s a fact.

  • Anything, Anything–Anything For Money

Don’t get distracted by all the zeros. Or the kind praise the Judge lavished on the lawyers for a job well done. An awesome job done. A job producing tangible public benefits. The firms held a foreign company responsible for price gouging US consumers. Violating US law for a profit. The attorneys recouped ill-gotten gains for price-gouged US consumers. The private law firms have provided a reason to deter future scams for the public. The lawyers got retribution for harmed US consumers, while protecting US consumers from the potential of recurring conduct. The list can go on.

  • Money Makes The World Go Around

To me, this sounds like a governmental responsibility. But no. The government ain’t got no time for that! Instead, the government made a law that would limit the compensation to the attorneys. In effect, deterring attorneys from enforcing US laws against unlawful practices by foreign businesses. This seems backwards to me.

The lawyers did a good job. The Judge said nice things. Then the law was applied and took 2/3 of the pay away. Kinda like expecting  $15.00 an hour if you do a real good job. No guarantee. But a chance. You do a real good job anyway. And ask.  For your reward, you are paid $5 an hour instead. You won. But the risk was not worth the reward.

Next time what do you do? Take a chance anyway? Only the fools. But don’t worry. The government is here to serve and protect foreign corporations US consumers!  

The real article follows . . .

U.S. judge shaves fee request in vitamin C price-fixing case

NEW YORK (Reuters) – A U.S. federal judge on Monday praised the plaintiffs’ attorneys who obtained a $153.3 million judgment against two Chinese companies in a price-fixing case over vitamin C, but still found reason to shave over $9 million off their fee request.

In a written decision, U.S. District Judge Brian Cogan of Brooklyn rejected a request for $13.7 million in attorneys fees by three law firms, citing roughly $9.5 million in fees they were awarded as  . . . . READ MORE:  U.S. judge shaves fee request in vitamin C price-fixing case.