Appealing Appeals Applied, Attorneys & Lawyers & Counselors, Legally Educated

Civil Rights CLE and Upcoming Moot Court Competition

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Civil Rights CLE

Today I had the pleasure of serving as one of the presenters at a CLE (continuing legal education) at the U of M Law School. It was on the same case we are teaching in our Civil Rights Moot Court class this year: Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, 724 F.3d 377 (3d Cir. 2013). It had the coolest title of any CLE I ever spoke at before: Corporations: How Human Are They? Do They Have A Right To The Free Exercise of Religion?

It’s an ObamaCare case, with a closely-held, private corporation and its shareholders (all part of a seriously religious family) wanting to be exempted from providing contraceptive-coverage for the company’s employees as required (“mandated”) by the new health care law. The corporation and shareholders claim the government mandating this preventive care coverage be provided violates their rights to freely exercise their religion under the First Amendment’s Free Exercise Clause in the US Constitution. The Religious Freedom Restoration Act (“RFRA”) is argued to require the US Supreme Court to apply a strict scrutiny analysis.

Oral arguments before the Supreme Court are on March 24, 2014 and the actual decision should be out early this summer. (My money is on the RFRA being struck down as unconstitutional–my money is $1.98 is all though).

Moot Court Competition

Before any of that occurs, the Conestoga case will first face the scrutiny of the 29th annual William E. McGee National Civil Rights Moot Court Competition on February 20, 21 & 22, 2014. This year about 34 teams of law students from across the country will argue the case in this inter-scholastic appellate moot court competition sponsored by the University of Minnesota Law School.

The competition’s mission is to promote interest, reflection and discourse among law students, law faculty and members of the practicing bar and bench in the substance, procedure and practice of civil rights law and to provide opportunity to interested law students to develop the oral advocacy and writing skills essential to be successful appellate practitioners.

We still need attorneys to act as volunteer judges so please contact me if you are interested. It’ll be another great competition this year and I’m proud to play a small part in it.

MKT

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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.”

MKT
Do I really need to type CLICK BELOW FOR THE REST OF THE STORY?

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

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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.

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

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

moneymoney

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.
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Attorneys & Lawyers & Counselors

Coming THIS FRIDAY to a CLE in Bloomington, MN . . .

Judgment Enforcement in Minnesota

Bloomington, MN — February 14, 2014

 

Holiday Inn Bloomington I-35, 1201 West 94th Street in Bloomington, MN

Live Seminar 

  • February 14, 2014
  • Bloomington, MN
  • 9:00 am – 4:30 pm

Look below!!! I’m doing it again . . . 

It’s me speaking at a CLE! Click: MKT!

I’m speaking at this Lorman CLE at 9 am. Right in between somebody named Registration and right before Break goes on!

Come on out on Valentines Day and learn about Judgment Enforcement in Minnesota. I’ll speak about ethics issues and cases unique to the collection attorney. I’m even updating my written materials from last year. I might have handouts. Handouts for all!

If you click on my initials above or EVEN RIGHT HERE, you can get 50% off the registration fee! A very lovely discount as a valentine from me (actually I just posted the link). So don’t hesitate and follow that link to register today. Come learn something new and get some credits too!

I’ll see you on 2/14/14 in Bloomington, MN!

MKT

Agenda

8:30 am – 9:00 am Registration
9:00 am – 10:00 am Ethical Considerations Particular to the Collection Attorney
— Mark K. Thompson
  • Overview
  • Meritorious Claims and Contentions
  • Truthfulness in Statements to Others
  • Dealing With Unrepresented People
  • Misconduct and Golden Rule
  • Recent Disciplinary Opinions
  • Closing Remarks
10:00 am – 10:15 am Break

Mark K. Thompson

Mark K. Thompson Law Office, LLC

  • Recently formed Mark K. Thompson Law Office, LLC, after practicing law for 12 years at a downtown firm
  • Continues serving small businesses in litigation, while organizing, when being sold/acquired and with commercial collections
  • Adjunct professor at the University of Minnesota School of Law in its Civil Rights Moot Court class since 2007
  • Was privileged to sit on an advisory committee for the United States District Court, District of Minnesota, as a bar member advising during the court during implementation of case management/electronic case files (CM/ECF)
  • Listed in 2005, 2006, 2007 and 2008 as a Rising Star and recognized in Minnesota Law & Politics, Twin Cities Business Monthly and Mpls. St. Paul Magazine
  • Find out more about his practice at http://www.mktlawoffice.com or at http://www.mktlawblog.com
  • Can be contacted at 651-797-0997 or mkt@mktlawoffice.com
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Attorneys & Lawyers & Counselors, Discovered on Demand

Discovering to Discover thru Discovery how it was Discovered

When I first heard of the discovery dispute and resolution ordered in RuizBueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013) I thought: This is the worst punishment possible. They have to conduct discovery into discovery! It must be one of Dante’s circles in the pits of litigation hell. Please, just sanction me instead!

SCOTUS

How could you punish anyone more than forcing them to pose and respond to requests under Fed.R.Civ.P. 26(b). Then being subjected to inquires under Fed.R.Civ.P. 26(b) requiring explanations into compliance with Fed.R.Civ.P.26(b)? The viciousness of the gratuitous circuitousness. Is there no justice anymore?

Deciding Disputes

Or so I thought. Despite my horror, I couldn’t believe it was true. I questioned the legitimacy of ordering discovery into discovery. Under what authority? How do you get there? I gave into my curiosity and read the Opinion and Order in RuizBueno v. Scott. Not only did it all make sense, it was reasonable and rational. To top it off the support came right out of the Advisory Committee Notes to Fed.R.Civ.P. 26(b) itself–in 1946!

To keep a long story extended, one party’s attorney was recalcitrant and intractable about answering two interrogatories inquiring into what and how counsel searched for emails requested and subject to production. The emails were relevant but remarkably the emails were bot produced. Due to the apparent conduct and a lack of cooperation, the issue of how counsel handled the discovery process itself became relevant to the proceeding. After all, these days it seems the attenuated line between intentionally hiding evidence and being non-cooperative during discovery is more delicate than ever.

Ideally Apparent

The Court proffered a perfect solution based on compliance with the spirit (and basis) of the Rules: “In an ideal world (a situation which apparently does not exist here), these types of disputes would never be presented to the Court because counsel would have recognized, early in the case, the potential for disagreements ……. and would have actively sought to avoid such disagreements through collaboration.”

The Court went through a fully cited primer that, understandably, sounds like a lecture to counsel on how to behave. After sounding constrained but frustrated by counsel’s failure to respond to what efforts were undertaken to locate certain emails, the Court described the conduct and justified how “discovery into discovery” became relevant and appropriate. By this point in the sermon, I had been fully converted and was even sitting in the balcony with the choir.

Restraint Queried

To emphasis the point the Court posed apparently rhetorical, and reasonable, questions about the searching for the emails : “How did the individual defendants do that here? Through keyword searches? Through searching by sender or recipient? Through searching emails sent or received in a specified time frame? Or going by memory? Did they all do it the same way, or were they left to pick among various methods? The record provides no answer to these questions.” The fact the Judge ends up only ordering the interrogatories be answered shows greater restraint, patience and tolerance than many other courts I have seen exhibit.

The Court emphasized the preferable way to have handled the discovery process in explaining the seemingly unusual ruling:

What should have occurred  here is . . . counsel should have engaged in a collaborative effort to solve the problem.  That effort would require defendants’ counsel to state explicitly how the search was constructed or organized. Plaintiffs’ counsel would then have been given the chance to provide suggestions about making the search more thorough.  That does not mean that all of plaintiffs’ suggestions would have to be followed, but it would change the nature of dispute from one about whether plaintiffs are entitled to find out how defendants went about retrieving information to one about whether those efforts were reasonable.  That issue cannot be discussed intelligently either between counsel or by the Court in the absence of shared information about the nature of the search.

Confronting Communication

Counsel had argued collaborating with opposing counsel on discovery would violate the duty of zealously advocating for the client and could be volitional of client owed privileges. The Court addressed this contention with a cite to Mancia v. Mayflower, 253 F.R.D. 354 (D. Md. 2008):

It cannot seriously be disputed that compliance with the “spirit and purposes” of these discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation.  Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.

Changing Collaboration

With Minnesota’s state court amended discovery rules in effect, I anticipate seeing the Courts begin to rule the same in future discovery disputes. It will be interesting to see if the emphasized collaboration will come to pass.

The discovery process is conducted with such adversarial zeal since I began practicing, it is normal to expect relevant information will be withheld (at least I expect it). It was fairly common for me to request and receive attorney’s fee awards as a sanction against opponents for dilatory and incomplete discovery answers/responses.

Compelled Recollection

This is no longer the case. Not that there is more cooperation. It is just the Courts got tired of the constant discovery squabbles. Now a hearing on a motion to compel is rare with informal letter briefs required and tele-cons with the Court taking place instead of formal motion hearings. But I still fondly recall when it wasn’t so . . . .

About 10 years, I brought a motion to compel answers and responses to discovery that were well overdue and did not appear forthcoming despite my constant cajoling. My opponent eventually produced the discovery but not until I had noticed the motion and had filed/served all required supporting papers.

It was at about a week before the hearing and he called asking if I would cancel the motion since it was moot now that I got what I wanted. I said I was not inclined to do so unless he paid $500 for the fees my client incurred for me preparing/filing the motion (he had been thoroughly forewarned well in advance of being served). He scoffed at me. So I said I would ask for more than $500.00 from the Court and see him at the hearing.

The hearing went forward and I kept my word to counsel. The same argument was made. The Court found that since my client incurred the fees to get the discovery produced, the fees would be awarded against counsel. The Judge ordered fees of $1,000.00 based on the motion submitted.

I sure haven’t had that happen in a while. Maybe that’s good . . .

MKT

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Attorneys & Lawyers & Counselors

The Discovery Plan–Sage e-discovery Advice

Following is a link to a full post by New York attorney, Mark Lyon, who blogs at http://www.marklyon.org. Although it doesn’t look like he’s licensed in Minnesota (but is in a few other places) he must be a pretty smart, tech-oriented kind of guy. You’ll see what I mean when you read his post about discovery conferences under new Rule 26.06 that sprang to life due to this year’s amendments to the Minnesota Rules of Civil Procedure.

I have two of these Rule 26.06 (c) conferences this week so  I am appreciating the pertinent advice. These mandatory conferences seem to come up so quick that, thinking about it, I have not really been as ready as I would like. All of my discovery conferences to date have been perfunctory and mundane (except for my first, which was with a pro se litigant and a story for another day). So, to start the week, here is Mark’s post:

Minnesota Updates Discovery Rules | Mark Lyon

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