Archive for the 'Court' Category

Potentially Explosive Real Estate Claim: Couple Discovers WWII Era Rocket Inside Their Home

A couple discovered a World War II explosive inside a wall while remodeling their Virginia home. The Newport Fire Department and bomb squad crews responded to the home late at night.

Battalion Chief Jerry Reed identified it as a World War II-era M6 60 Caliber Bazooka anti-tank rocket. After bomb squads determined it was safe to remove the rocket, officials placed it in a secure container and turned it over to the military.

Real Estate Law: Is there Liability for Non-Disclosures?

The expense of having the fire department and bomb squads remove a rocket from a house would be significant. In this kind of case, it would be possible to hold the seller and/or real estate agent responsible for the expenses.

real estateReal estate laws in most states require the seller and/or her agents disclose any material defects to the buyer. Defects that are required to be disclosed include, but are not limited to: foundation cracks, roof leaks, and terminate infestations. Failure to reveal these defects to the buyer could result in seller’s payment of damages to the property and for legal expenses. In this case, there would be two issues: (1) did the seller know about the explosive in the wall and (2) would a rocket be considered a “material defect?”

The answer to the first question is impossible to answer without more information. The answer would hinge on when the house was sold, as multiple owners would indicate that the sellers might not have known and also whether a statute of limitations, or deadline, might apply. Investigators would need to interview the prior owners and any documents they might have regarding the property.

The second question, whether a rocket in the wall of a house is a material defect, might seem obvious. If the rocket ever exploded, the house would be significantly damaged and anyone near the blast would be injured or even killed. Most buyers would also avoid purchasing the property if they knew there was an explosive imbedded inside. The potential hazard would harm the value of the property and if the danger was ever realized, the house itself would be threatened. A rocket in the wall is comparable to a landslide and would be considered a very important defect.

But, What Else is There to Consider?

On the other hand, the rocket in question never blew up. Although the average person would feel that a rocket in a house is too great a risk, this rocket dated back to the Second World War. This rocket could have been inside the walls for decades without any owners ever being the wiser. If the property could be occupied for years without incident, it’s difficult to claim that the rocket was a defect that possessed an actual risk to inhabitants. It is also possible that the rocket was empty and there wasn’t an actual explosive inside – the media has not reported whether the weapon was actually loaded or not.

However, even if the weapon was empty, that does not relieve prior owners from their duty to disclose the rocket if they knew it was inside the house. A reasonable person who found a rocket inside their property would assume that the rocket was capable of exploding. If you are selling a property, it would probably be wise to disclose that there is a rocket inside your living room – or better yet, remove it from the house before selling it.

Parents Head to Court to Stop Transgender Teen from Receiving Hormone Treatment

A big assumption in family law is that the parents of a child will act in the child’s best interests. This is generally true, but there are corner cases that have grabbed national headlines. Parents that refuse to vaccinate their children, decline blood transfusions, and other medical decisions are controversial, especially if their child dies as a result of their decision. A new case in Ohio features another medical parental controversy, but with a culture war twist:

A 17 year old unnamed teen (unnamed for legal reasons) was hospitalized in 2016 for depression, anxiety disorder, and gender dysphoria. According to medical personal who examined the teen, he is suicidal because his father refuses to call him by his chosen name and his parent’s rejection of the teen’s gender identity. He is currently in the temporary legal custody of state family services and lives with his maternal grandparents, who are supportive of his gender identity. He has expressed a desire to stay with them.

transgender teen The medical team at the hospital recommends that the unnamed teen receive hormone therapy. His parents believe these hormone treatments would be pointless. The teen’s court appointed attorney and grandparents accept the recommendation of the hospital, which testifies that the hormone treatments are necessary to save the teen’s life.

Whose Best Interests?

There are two arguments in support of custody. Brinkman, the parent’s attorney, argued “it does not appear that this child is even close to being able to make such a life-altering decision at this time.” Brinkman has a point, since he is, according to the hospital, under severe medical distress. Making life-altering decisions while he is under such stress is not recommended. Calling him a child is disingenuous, since he is 17. However, given that he will soon be an adult anyway, it might be prudent to wait a year before making any major decisions. That year would also serve as a “cooling off” period so that he can think about his choice before making it.

There may be another reason the parents don’t want the teen to receive hormone treatment. The state alleges that the “Father testified that any kind of transition at all would go against his core beliefs and allowing the child to transition would be akin to him taking his heart out of his chest and placing it on the table.” The state is forbidden from restricting a person’s right to exercise their religion.

However, religious beliefs should not play a role when determining whether another person should receive medical treatment. The Father may have sincere religious beliefs, but if his almost adult child believes differently, the Father cannot justify his medical decisions based on his religious beliefs. This would effectively put the Father’s beliefs over the child’s best interests, a departure from the foundations of child custody.

How Will This Issue Play Out?

The parent’s attorney attempts to sidestep this issue by arguing about the rights of a parent. “If the maternal grandparents were to be given custody, it would simply be a way for the child to circumvent the necessity of parents’ consent.” This argument puts the cart before the horse. The parents act on behalf of the child because the child is not legally able to make his own decisions, but the child will be a person independent of his parents.

Parental consent is required only because the parent is the person who is able to make an informed decision for the child’s best interests. If the parent is not acting in the child’s best interests or is unable to make an informed decision, there’s no reason to obtain the parent’s consent.

Religious conservatives might see this case as a threat to the custody of their own children. The state can force them to inject their children with drugs and now it wants to change their genders. Even in this case though, there is plenty of due process. First, this was an extraordinary case where the child was diagnosed with depression, anxiety disorder, and gender dysphoria.

Most children will not suffer from this level of mental health issues. Second, the child has been examined by medical experts from the hospital and by court appointed attorneys. These types of decisions will not come down solely to a judge – there will be due process and experts who have examined the child.

Finally, the parents have an opportunity to present their side of the story. They were allowed to testify to the court and their own attorney is advocating on their behalf. At least one party will walk away unhappy, but their voice will be heard.

States Ask Congress to End Mandatory Arbitration in Sexual Harassment Cases

Every attorney general in the United States signed a letter demanding Congress end mandatory arbitration in sexual harassment cases. Employment contracts across the country require that employees agree to have their sexual harassment claims settled in private courts. The attorneys general of all 50 states, the District of Columbia and five U.S. territories opposed the continued practice. Instead, American employees should be allowed to litigate their sexual harassment claims in state and/or federal courts. The effort was led by Florida Attorney General Pam Bondi and North Carolina Attorney General Josh Stein.

This is the first time in a decade that all 56 attorneys general have signed one letter to Congress. Currently, Senators Lindsey Graham and Kirsten Gillibrand are pushing a bipartisan bill in Congress to end arbitration in sexual harassment suits. The bill was introduced shortly after the “Me Too” movement gained steam, pushing out prominent political and entertainment figures such as Bill O’Reilly and Harvey Weinstein.

mandatory abritrationSilence Was More Harmful Than We Thought

Arbitration is a process where a neutral third party, an arbitrator, serves as a private judge to resolve a dispute between the parties. The arbitrator is chosen by the parties, will hear evidence and arguments, and the arbitrator will decide the outcome of the case. In essence, the arbitrator replaces the judge in a lawsuit. Generally, arbitrators are not required to follow all of the procedural rules associated with a lawsuit, a decision meant to save money for all parties involved. The arbitrator’s ruling is binding on both parties. Although it is possible to appeal an arbitrator’s decision, most arbitration agreements and the laws governing such agreements are designed to prevent appeals.

Arbitration is used because it saves businesses money. Instead of a costly lawsuit where a sympathetic jury could give a large verdict in the employee’s favor, arbitration allowed the employer to settle most cases. The secrecy also spared the employer any potential embarrassment that a sexual harassment suit might bring. However, that same secrecy also meant that neither the employer nor the abuser had to change their behavior, allowing the hostile work environment to continue.

Defendants have often complained that alleged victims don’t come forward until decades later. However, a significant reason for their silence is arbitration. These private courts are often secret and the outcomes of any complaints are often sworn to secrecy by settlement. Arbitration agreements make news stories like the President’s attorney paying a porn star $130,000 to keep quiet, possible. It might be cheaper for a business to keep allegations of sexual abuse under wrap, but eventually the truth will come out. It will be better for the accused and for employers if those allegations will come out when the evidence is still fresh rather than decades in the past.

What Can We Do Going Forward?

By making sexual harassment complaints more public, we can end the culture of silence that protects abusers. Men like Bill Cosby and Kevin Spacey could not have hurt as many people as they did if allegations against them were made public sooner. The accused would also benefit from having evidence that hasn’t been lost to the passage of time. The Attorney Generals are right in demanding that Congress change its stance on arbitration in sexual harassment cases.

Charges Brought by Mueller Investigation against Defendants at Home and Abroad

The ongoing investigation into Russian involvement and potential corruption in the 2016 election has been a constant source of news and debate ever since Robert Mueller was appointed to run it. There’s been dramatics, threats from President Trump to fire Mueller, guilty pleas from several associated with the Trump administration such as Michael Flynn and George Papadoupolis, and charges brought against people associated with the Trump campaign such as his former campaign manager Paul Manafort and Manafort’s attorney Rick Gates.

The last week has seen a flurry of activity in the Mueller investigation. First, a little over a week ago, we saw a grand jury indictment (a formal accusation of criminal activity) brought against several Russian nationals and a few businesses. These charges related to the operation of a widespread misinformation campaign to undermine the 2016 presidential campaign.

More recently, just in the last few days, we’ve seen further charges brought by the special investigation. Separate charges were leveled against Paul Manafort and Rick Gates having to do with working for Ukrainian government interests and the efforts they allegedly took to conceal the millions of dollars the Ukrainian government and Ukrainian politicians gave them.

On top of these allegations we’ve learned of a guilty plea from Rick Gates which involves an agreement under which, although the exact details of the deal are not available, it appears which he will cooperate with the Mueller investigation in exchange for at least partial clemency.

MuellerAs of now, all these cases are in very early stages. However, they likely represent the most substantial moves by the Mueller investigation so far. Let’s look at the charges brought over the last week or so as well as what this may mean going forward.

Charges Against Russian Individuals and Corporations

On February 16th of this year, the special counsel brought the first of these two new indictments. Those named in the indictment include the Internet Research Agency LLC, Concord Catering, Concord Management and Consulting, and several Russian nationals who allegedly posed as U.S. citizens as part of a misinformation campaign with a general goal of spreading mistrust for the political system of the U.S. and toward specific political candidates. Also, the indictment also includes Yevgeniy Prighozin–an individual quite close to Vladamir Putin–as the partial financier behind the activities.

The charges brought here include conspiracy to defraud the United States including destruction of evidence and stolen identity elements, as well as conspiracy to commit wire and bank fraud, and aggravated identity theft. The charges related to defrauding the United States are over impairing, obstructing, and defeating the lawful functions of the government through fraud and deceit to interfere with the U.S. political and electoral processes, including the presidential election of 2016.Conspiracy to defraud the U.S. is certainly an uncommon charge to see. However, to break down how it works into its constituent parts, it is essentially an effort by two or more people working together with the goal of damaging the lawful function of any department of the U.S. government. This can be done by cheating them out of money or property or interfering with the functions of government by deceit or trickery.

It doesn’t require the government to suffer any real loss, just the effort itself is enough to commit the crime.The other charges–wire fraud, bank fraud, and aggravated identity theft–are much more common and simple. They work much the way they sound–respectively they are fraud using telecommunications technology, defrauding a bank, and knowingly transferring, possessing, or owning the identification of another without lawful authority. The allegations say there was an enormous amount of subterfuge through social media platforms including Twitter, Facebook (through fabricated news stories, purchased advertisements, and even simple emails accounts. This activity targeted nearly all candidates except Trump and Bernie Sanders.

However, it largely focused on supporting Trump and attacking Hillary Clinton. This all came together into what the allegations describe as information warfare against the United States. The core of the charges of conspiracy to defraud the United States are these attempts is an alleged stated goal on the part of those indicted to spread distrust towards some of the candidates of the 2016 election and the U.S. political system.

Those accused worked largely at the behest of a couple of companies, primarily one known as the Internet Research Agency. Besides the false social media pages and personas, the efforts included fake emails, fake personalities, travel from Russia to the U.S. to gather intelligence for their operations, and more. The evidence even includes memos from the Internet Research Agency telling those accused to use social media sites to “use any opportunity to criticize Hillary and the rest (except Sanders and Trump — we support them).”

These Russian allegations have very little in the way of connection to the actual Trump campaign. The closest the existing evidence comes to this is a couple of requests for aid by Russian nationals in putting mocked up demonstrations which were sent to Trump campaign officials in Florida. However, there’s no indication as to whether these officials even responded.

Charges Against Paul Manafort and Rick Gates

While these initial charges have very little link to the Trump campaign, the more recent charges hit much closer to home. Although it is important to note that the allegations as of now do not include much of anything that could be called a smoking gun linking the actions of Manafort and Gates to President Trump himself.

However, in addition to the previous charges of conspiracy against the U.S., money laundering, and more  brought against Trump’s former campaign manager Manafort and his lawyer Rick Gates last November, we’ve now seen 32 additional counts leveled against the pair in a February 22nd filing. These new charges are primarily allegations of bank and tax fraud associated with efforts to hide funds obtained from Ukraine.

Just before these charges came out, Gates apparently pled guilty to conspiracy to defraud the United States and lying to the FBI and the special counsel. This plea deal has apparently been in the works since January, so it’s unclear whether the plea is because of the new charges or just comes from ongoing negotiations. Either way, it is very likely it will result in Rick Gates testifying as a witness to the deeds of Paul Manafort.

According to the allegations, and those of the previous charges brought against the pair, the two made tens of millions of dollars through work with Ukraine. Funds they allegedly worked to hide from the U.S. by funneling the earnings into front bank accounts abroad. They also allegedly repeatedly lied to banks about their financial situation and source of income to create greater liquidity for funds from Ukraine they otherwise tied up primarily in real estate.

The recent indictments against Manafort and Gates go into quite a bit of detail as to how they allegedly lied to banks to launder money received from Ukraine as well as alleging that they repeatedly outright lied on their taxes about the existence of the funds.

Much of the charges revolve around the provisions of the Bank Secrecy Act. This is a statute which, among other things, requires United States citizens to report to the Treasury any financial interest in, or signatory authority over, any bank account or other financial account held in foreign countries, for every calendar year in which the combined totals of all these foreign accounts exceeds $10,000 at any point during the year. Manafort and Gates apparently had enormous amounts offshore from their dealings with Ukraine which they never reported.

Other allegations in the new indictments include charges that Manafort recruited and paid for former European politicians–recruiting them to lobby for Ukraine within the United States with payments in the realm of 2 million Euros.

These charges are related to the original allegations against Manafort and Gates of acting as undeclared Ukrainian lobbyists as well as a larger money laundering conspiracy. However, it seems they are more likely part of a strategy to turn up the heat on the pair.

What Does All This Mean?

Gates is the third person with connections to the Trump administration to plead guilty to some sort of collaboration with Russia and its allies–following similar pleas by Michael Flynn and George Papadoupolis. What happens with Manafort moving forward, especially now that his lawyer and business partner Rick Gates has agreed to testify, will be interesting to see. Manafort himself was fired as campaign manager by Trump, but kept on as an advisor throughout Trump’s campaign–instead traveling with Trump and working as a liaison between the campaign and the Republican National Committee.

Either way, at this point it’s very early in the proceedings on all fronts–both against the newly indicted Russian nationals and Manafort. While the proceedings have not been the exoneration that President Trump has claimed them to be on social media, there is at least no immediate smoking gun linking the President’s campaign or the President himself to these events at this point.

There is certainly substantial evidence of Russian interference in the campaign, often on President Trump’s behalf or attacking Hillary Clinton. This is along with evidence of larger efforts to undermine the U.S. political system. Where all this evidence will lead remains to be seen. However, it will certainly be interesting to see what happens as the case against Manafort moves forwards.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

4th Circuit Declares Latest Version of Travel Ban Unconstitutional

Mr. Trump’s latest Travel Ban has been found unconstitutional.  The 4th Circuit upheld a Maryland District Court’s injunction in a 9-4 decision. The 4th Circuit ruled against the Travel Ban on the basis that the policy was a product of “animus toward Islam.” The majority argued that Mr. Trump’s statements during the 2016 election were evidence that Mr. Trump was unjustly discriminating against Muslims. The dissent believes that the Judiciary should only examine the official reasons given by the administration instead of the statements given by the President before the election or on Twitter.

The 4th Circuit had declared the first version of the Travel Ban unconstitutional in May 2017. The Ninth Circuit struck down the second version in December of 2017, for similar reasons. The 4th Circuit’s decision in May 2017 and February 2018 focused on discrimination against a religious minority. The Supreme Court removed the injunctions and is set to hear cases against the Travel Bans this April.

travel banDiscrimination against Muslims?

The majority found the Travel Ban unconstitutional because the intent behind it was an “animus toward Islam.” Such a determination would prevent Mr. Trump from ever enacting a Travel Ban during his time in office, but would not preclude a future President from enacting a similar ban. If a President Oprah Winfrey or President Kid Rock wanted to enact a Travel Ban, this court’s decision would not bar our new celebrity President from doing so.

Interestingly, the dissent did not dispute that Mr. Trump has an animus towards Islam. Presumably, the 45th President’s remarks in speeches and on Twitter speak for themselves: “Study what General Pershing of the United States did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!” or calling for a “total and complete shutdown of Muslims entering the United States.” The statements are somewhat ambiguous, since each statement apart could be about fighting radical Islamic terrorism. Nevertheless, it is telling that dissenting judges and government lawyers would prefer not to fight over the details.

Instead, the argument has been whether Mr. Trump’s statements are legally relevant. The majority believes they are, since they are evidence of the Executive Branch’s ill intent. The dissent claims they are irrelevant and that such scrutiny is beyond the court’s purpose.

Discrimination against the President?

A big flaw with the dissent’s argument is that this President constantly blurs his personal and his professional life. The President lets his sons handle his business organization instead of putting it into a blind trust as other Presidents have done. He lets his daughter attend meetings with foreign leaders and gives his son in law access to classified information even though said relative doesn’t have permanent security clearances.

He also uses both his personal Twitter account and his official Presidential Twitter Account to make statements regarding policy. The White House and the DOJ have insisted that the President’s Twitter statements are official statements.  Anything that comes out of the President’s Twitter account is an official statement regarding policies that the White House promotes, even if the Twitter rants contradict or harm the creditability of statements made by other Executive Branch officials.

The dissent is also wrong in asserting that courts will use any contradictory statements to “strike down executive action it disagrees with.” This President is unique. Mr. Trump chooses to engage in behavior that would harm policies he promotes. No President has repeatedly shot himself in the foot like Mr. Trump has. If judges penalize Mr. Trump for saying contradictory and short-sighted things, then that is this President’s problem, not the courts.

Furthermore, judicial demand that Presidents think before they speak or act is a good thing. If a President contradicts his own staff, then either the President is lying to the public or the state attorneys are lying to judges. Since judges must be fact finders before making a decision, Executive branch dishonesty impedes the judiciary from serving its proper function as arbitrator of the law. If state attorneys plan to argue that a policy is for national security, they should communicate with their boss to stick with the plan or risk losing.

Some Republican commentators’ opinion that judges who treat Mr. Trump differently than other Presidents are not behaving as judges. “When judges treat this president as anything other than normal…it sends a signal to the public that the chief executive is not as legitimate as his predecessors… It is true that Trump consistently disrupts all political norms. The courts should not respond in kind by disrupting judicial norms.”

The notion that discriminating against Trump is unconstitutional is absurd. The judiciary must determine if a policy is consistent with the constitution. If the Executive cannot give the judiciary consistent answers, then the policies must be suspect until the Executive can explain itself. The President should either change his behavior or expect his own power to wane. No other President has faced institutional challenges like this because no other President acts like this. Neither the judiciary nor the public should bury its head in the sand.