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antoine-roquentin · 6 years

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Julie Hall smiled on the witness stand as she recalled a memory of her old client Joseph Wood. He had spent most of the last two decades living in solitary confinement, with his recreation confined to a cage, when the Arizona Department of Corrections began to loosen some restrictions over people on death row. A basketball court was built outside his unit on the sprawling desert prison complex in Florence, about an hour south of Phoenix. At 55, Wood was relatively healthy — “he loved going out and playing,” Hall said. A prison sergeant even played a round of basketball with Wood, which meant a lot. “He felt like he was being treated like he was human for the first time in a long time.”

Hall’s smile disappeared when she described the day Wood died. It was July 23, 2014. His execution was scheduled for 10 a.m. Hall arrived at the prison that morning at 6:45, then waited almost an hour to see him. When the Arizona Supreme Court granted a temporary stay of execution, Hall told him the good news. Wood was prepared to die, she told the court; ever since he committed the murders that sent him to death row, he had felt he did not deserve to live. Still, “he wanted someone to listen to us when we said that this was an experimental method of execution.”

Wood was the first to face a new form of lethal injection in Arizona that used a combination of the opioid hydromorphone and the sedative midazolam. The latter had raised controversy over its use in executions. Florida first tried it in 2013 to kill a man named William Happ “in what seemed like a labored process,” according to one media witness. Happ “remained conscious longer and made more body movements after losing consciousness” than people executed under the old formula, according to another report. The Florida Department of Correction, which refused to say how it chose the drug, dismissed the concerns — and soon other states were trying out midazolam. In January 2014, Ohio used it to execute Dennis McGuire. Witnesses described how he struggled and gasped, clenching his fists and striving to breath. A few months later, in April 2014, Oklahoma used midazolam to kill Clayton Lockett in one of the most notorious botched executions in recent memory.

But Arizona stuck to the plan. By noon that day, Wood’s stay of execution had been lifted. Prison staff provided Hall with a pencil and paper and led her to the witness chamber. No phones were allowed. Once inside, she was told, she would be forbidden from leaving the room. Hall watched as a pair of TV monitors were turned on above the closed curtains. “That’s where we could view the insertion of the IV lines,” she explained. Hall was surprised at the amount of blood she saw — some of it dripped onto the floor. With the IVs eventually placed, the monitors went dark. The curtains opened. Wood lay strapped to the gurney, thick straps over his arms and a white sheet covering his legs.

At 1:52 p.m., a voice came over the loudspeaker. The lethal injection was about to start.

After five minutes, with the first dose of midazolam presumably administered, a man entered to conduct a consciousness check on Wood. The voice came back to announce he was sedated. But three minutes later, Hall said, “I saw a quiver in his cheek, which surprised me a little.” She didn’t know whether it was normal or not. It was two minutes after that when she saw Wood gasp for air. Then he did it again. And again.

“He just kept gasping,” Hall said. She began counting the gasps on her notepad. After 20 minutes and 134 gasps, she stopped counting. “I just didn’t know what the point was anymore.” Hall struggled to describe what it looked like. It reminded her of a fish that was dying after being pulled from the water — “that opening of the mouth; trying to get air and just not getting it.”

At 2:50 p.m., Dale Baich, supervising attorney of the Arizona Federal Public Defender’s Capital Habeas Unit, who was seated behind Hall, passed her a note. “Go now,” it said, instructing her to call their colleagues in Phoenix. Hall hurried out of the witness room and asked a guard if she could use his phone. He refused, then escorted her outside of the death house, through a maze of sally ports and checkpoints, and finally, out to the administration building. It took nine minutes. Only then was Hall able to make a call, to tell someone that “something was going very, very wrong and it looked like Mr. Wood was suffering.”

Hall was still on the phone when Wood was finally declared dead at 3:53 p.m. The next day, media witness Michael Kiefer published his own account of Wood’s struggle to breathe. Over the two-hour execution, he reported, Wood gasped more than 640 times.

Hall told her story in fits and starts, answering questions in a courtroom in Nashville, Tennessee. It was July 9, 2018, day one of Abu Ali Abdur’Rahman v. Tony Parker, a trial over Tennessee’s lethal injection protocol. Parker is the head of the Tennessee Department of Correction, or TDOC. The named plaintiff is one of 33 men facing execution under a new formula that includes midazolam. Three have been scheduled to die by the end of the year. One of them, Billy Ray Irick, is set for execution on August 9.

Hall was one of more than 20 witnesses called by the plaintiffs, including some dozen defense attorneys who had witnessed their clients’ executions. They dramatized what lawyers argued in their trial brief: that Tennessee’s new protocol violates the Eighth Amendment ban on cruel and unusual punishment. First issued in January, it called for the injection of three drugs: midazolam, followed by a paralytic called vecuronium bromide, and culminating with potassium chloride to stop the heart. With midazolam chosen to provide anesthesia, the attorneys argued it was not only possible but very likely their clients would suffer. What’s more, they said, the protocol prevents defense attorneys from having access to a phone during the execution, in violation of their clients’ constitutional rights.

The witnesses described executions in Alabama, Arizona, Arkansas, Ohio, Virginia, Florida, and Oklahoma. Many had never spoken publicly. Their accounts ranged from subtle but unusual movement on the gurney to gasping, lurching, and clenching of fists. They were bolstered by leading medical experts who explained the scientific reasons why midazolam was inadequate to provide anesthesia.

One pathologist presented evidence that had never been shown in court. He had reviewed 27 autopsy reports out of the 32 total executions carried out using midazolam. In most of the cases, he found signs of pulmonary edema — fluid in the lungs that indicated the men had been in respiratory distress. The inescapable conclusion was that states have almost certainly been torturing people to death in their execution chambers — and that Tennessee might be ready to do the same.

After weeks of testimony, a ruling came quickly, on July 26. It sided with the state. In her order upholding Tennessee’s lethal injection protocol, Davidson County Chancellor Ellen Hobbs Lyle wrote that the plaintiffs had failed to prove their case, while acknowledging that the use of midazolam might leave them vulnerable to pain during their execution. The U.S. Supreme Court was “aware of the risk of midazolam,” she wrote, and upheld it anyway in Glossip v. Gross. Though “dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions.”

For anyone who has followed the legal evolution of lethal injection, Lyle’s ruling was not a surprise. The decision ultimately turned not on midazolam, but on a different provision of Glossip. Under the ruling, the plaintiffs had to prove not only that Tennessee’s protocol was cruel and unusual, but that there was a viable alternative. In her dissent in Glossip, Supreme Court Justice Sonia Sotomayor decried this “surreal requirement,” one that puts attorneys in the perverse position of identifying methods that should be used to kill their clients. Though Lyle conceded that this law “seems odd,” the requirement was clear. “That proof has not been provided in this case.”

Decisions in chancery court have limited sway. Under Tennessee’s Declaratory Judgment Act, Lyle’s ruling amounts to a “declaration” — an opinion that can only be weaponized by bringing it to a different forum. Most lethal injection challenges are brought before federal courts that have the power to stop executions. Lyle did not. In bringing the lawsuit in chancery court, Federal Public Defender Kelley Henry hoped to win a ruling that could influence the state Supreme Court or governor to intervene.

Yet the order belies the significance of the trial itself. As Henry said in her closing argument on July 24, it was the first time a three-drug protocol using midazolam had been the subject of a “real trial.” Until now, most hearings on midazolam were on whether to grant a preliminary injunction to stop a looming execution. Such hearings are rushed by their nature — witnesses often appear by Skype. This was not the case in Nashville. Though the trial moved quickly, the testimony was extensive and nuanced, providing a much fuller picture of the science behind the drugs used in lethal injection. Lyle was deliberate and measured — and cautious not to allow witnesses to testify beyond their expertise.

The questionable analysis of expert witnesses has had major consequences where lethal injection is concerned. At the preliminary injunction hearing that paved the way for Glossip, Alabama-based pharmacist Dr. Roswell Lee Evans peddled opinions divorced from scientific reality. Among his claims was that 500 milligrams of midazolam — the same dose as in the Tennessee protocol — would render someone unconscious to the point that they would not feel pain. Anesthesiologists adamantly disagreed. In an amicus brief to the Supreme Court, 16 professors of pharmacology cited the “overwhelming scientific consensus” that midazolam was incapable of inducing the “deep comalike unconsciousness” called for in lethal injection. On the eve of oral arguments in Glossip, the case was embroiled in controversy over the revelation that Evans had relied on sources like the website Drugs.com.

There is “no debate around midazolam,” anesthesiologist Dr. David Lubarsky told the court in Nashville. Among such experts, Evans has no credibility. But among prosecutors intent on carrying out executions, Evans remains a useful and willing witness, “recognized by numerous state and federal courts,” as Deputy Attorney General Scott Sutherland told the court. If anyone lacked credibility, he suggested, it was the “highly biased” defense attorneys who watched their clients’ executions, he said, quoting a 6th Circuit ruling over Ohio’s lethal injection protocol. As a more authoritative source, Sutherland offered the official department of correction records from 19 executions carried out using midazolam in Arkansas, Florida, and Ohio. Many of them were described as problematic, but these records showed everything had gone fine, he said....

Henry pushed back against the state’s argument that the true effects of large quantities of midazolam are unknown since there have been no “human experiments” to collect data. “Unfortunately, we do have human experiments,” she said. “We have 32 human experiments. Men who were executed using a protocol that involves midazolam.”

Sutherland began by invoking the gruesome crimes for which the plaintiffs had been convicted. “These facts provide context for this court as to why we are here,” he said.

With a low voice that was sometimes hard to hear, Sutherland wore a look of mild irritation — and the slightly casual air of a man who knows the law is on his side. He quoted Justice Samuel Alito’s reasoning in Glossip: “Capital punishment in this country is constitutional, and it follows, necessarily, that there must be a constitutional means of carrying it out.” The Constitution does not require a painless execution, Sutherland went on. It only prohibits the deliberate infliction of torture, such as disembowelment or being burned alive. What’s more, “in the history of its existence,” the court “has never invalidated a state’s chosen method of execution as cruel and unusual punishment.” As for midazolam, there was nothing new to discuss.

Sutherland seized on the main problem with the plaintiffs’ lawsuit. They argued in favor of a one-drug protocol using the barbiturate pentobarbital, a formula used by states like Texas. But they showed no proof that pentobarbital was available, he said. Instead, they argued that TDOC never made an effort to procure it. This was not true, Sutherland said, but regardless, “it’s not our burden to prove that it’s unavailable.” The plaintiffs had to prove that it was....

On the stand in 2003, Heath explained that if the first drug in the protocol, sodium thiopental, was not adequately administered, the pancuronium bromide would cause suffocation while creating a “chemical mask,” concealing any evidence of the excruciating burning pain that would result from the injection of the third drug, potassium chloride. Lawyers called a woman named Carol Weihrer, who described her terror during eye surgery in 1998, when she woke up while under the effect of pancuronium bromide and was paralyzed, unable to alert her doctors.

Presiding over the 2003 hearing was Ellen Hobbs Lyle, the same judge who handed down the ruling last month. On June 1, 2003, Hobbs sided with the state, concluding that lawyers for the condemned had failed to prove that Tennessee’s protocol was unconstitutional. But she was critical of the lack of research behind the protocol — and particularly pointed in criticizing Pavulon, “a drug outlawed in Tennessee for euthanasia of pets.” It served no purpose except to give “a false impression of serenity to viewers, making punishment by death more palatable,” she wrote. And if the anesthetic failed to work, she warned, the paralytic would hide the “excruciatingly painful ordeal of death by lethal injection.”...

Henry reiterated an argument she had tried to make at the end of the trial. If the state could not carry out an execution using the alternative they had put forward — a single dose of pentobarbital — the plaintiffs moved to amend their complaint to consider an “alternative to the alternative”: a two-drug cocktail that removed the vecuronium bromide altogether. This option is “clearly available and readily implemented,” which would satisfy the Glossip requirement. And it would remove one of the well-established risks: that their clients would be paralyzed, suffocating, and suffering as the lethal drugs took hold.

It seemed simple enough. Parker himself has suggested it would be possible. Indeed, Lyle had been among the first in the country to criticize the paralytic back in 2003. “If the state is sincere in its belief that midazolam will work the way that they say it will work,” said Bradley MacLean, counsel for Abu Ali Abdur’Rahman, “there is no reason why the state should oppose this.”

But it did. Sutherland called it a “desperate” move, while Lyle explained that the law prevented her from granting the motion. As for her prescient opinion 15 years ago, she wrote in her ruling, it came before Baze and Glossip. The Supreme Court had found a legitimate purpose for the paralytic: hastening death, while dignifying the process for witnesses and the condemned alike. Her previous decision was “of minimal use.”

#read the whole thing

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pilmmalawmarketing · 2 years

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Cyber Security attacks have been on the rise in recent years as the Internet has become such an integral part of our lives. More law firm employees are working remotely, some via the cloud and others independently. Law firms, like other businesses, are conducting more and more business online. The opportunities for cyber hackers abound and continue to grow. In wake of the recent Russian invasion of Ukraine, cyber security concerns in the U.S. are at an all-time high.

According to the Consumer Sentinel Network’s annual data book, over 75,000 incidences of privacy, data security, and cyber threat-related scams were reported in 2020, while the Internet Crimes Complaint Center revealed that they received over 440,000 reports of internet-related crimes each year. This threat continues to grow.

Law Firms are not immune from cyber attack.

Just a few months ago, a federal lawsuit was filed in the Southern District of Florida by United Parcel Service, Inc, against a personal injury law firm, The Haggard Law Firm. (1:22-cv-21049) as a result of settlement money that had been cyber hacked.

The Haggard law firm had gotten a successful settlement against UPS for their client’s personal injuries. UPS‘s counsel made payment to the plaintiff’s firm via electronic direct deposit. Unfortunately, they followed the wiring instructions they received from a hacked/falsified email. The email looked like it came from Plaintiff’s counsel at the Haggard firm. Payment was made pursuant to the instructions in the fake email.

This scenario could have happened to any law firm.

In the Haggard firm case, UPS received a completed ACH form and payment instructions on bank letterhead from the Haggard lawyer’s email account and made payment as directed – only Haggard Law never received the funds.

Apparently, cyber attackers had hacked the law firm’s email system and sent false instructions to UPS, directing the funds to a fraudulent bank account.

Wells Fargo was able to recover most but not all of the funds and forwarded them to the plaintiff. But the plaintiff and the Haggard firm filed suit against UPS for the remaining settlement funds.

UPS argued that The Haggard Law Firm failed to maintain adequate cyber security, among other claims, and that they shouldn’t have to pay the settlement twice.

UPS sought a Declaratory Judgment against the Plaintiff’s firm arguing breach of confidentiality and negligent failure to take proper security measures. While the case ultimately ended in a Voluntary Dismissal without prejudice last month, it should still serve as a huge wake-up call to us all:

Law Firms are just as vulnerable as any other business to the risks of cyber-attack.

September 7-9, 2022 – Learn the latest Internet Marketing strategies and the ways to protect your firm from Cyber Attacks.

While there’s no foolproof way to completely protect yourself and your law firm from online attacks it’s important to

Understand that the risk to your law firm is valid

Identify where your law firm may be at risk

Take reasonable proactive measures to minimize your firm’s risk from the most common areas of cyber-attacks.

Cyber-attacks can take many forms and are constantly evolving, but the best defense is knowing the most common cyber attack forms like malware, viruses, ransomware, and phishing.

COMMON FORMS OF CYBER ATTACK

Malware is an umbrella term for malicious software that aims to damage your computer, server, or network.

Viruses and ransomware are also considered as types of malwares. Viruses can infect your computer, as well as other devices, leaving your system vulnerable. Ransomware works like a virus but is usually delivered through a phishing email and essentially holds your system hostage until a ransom is paid.

Phishing is a type of scam that tricks people into clicking links that appear legitimate but are actually infectious. Clicking a link infects your device with malware. Once your system is invaded, cybercriminals can attempt to steal sensitive information. Phishing falls in a wider category of social engineering. meant to deceive individuals into disclosing sensitive information or clicking an infectious link.

Based on my research and interviews with top cyber security experts, there are six things you can do to avoid cyber-attacks on your law firm’s data.

6 STEPS TO PROTECT YOUR LAW FIRM FROM CYBER ATTACK.

1. Secure your wi-fi networks – Make sure your network is protected. Securing your wi-fi network will assure that both you and your employees will have a secure connection while working online. You can secure your wi-fi networks by using a VPN to encrypt internet traffic that passes through, using a firewall to block cyber criminals, and using a host intrusion prevention system (HIPS) to detect and block cyber attacks.

2. Initiate automated remote backup and data recovery – Use an automated remote backup and data recovery system which will allow you to save and store an extra copy of all your data all safely. Thus, in the event of a data breach, you’re prepared, and your data is safe.

3. Implement role-based access control – RBAC is the act of assigning limited access to your law firm’s information based on an individual’s specific role in the law firm. Limited access means that even if a single employee’s information and access becomes exploited by a scammer, not all of your law firm’s information can be stolen. It provides a layer of protection and built-in damage control.

4. Multi-factor authentication (MFA) – Multi-factor authentication is an important way to secure all your data and accounts. In the event that an account’s password might be stolen somehow, the account cannot be accessed without the approval from a second source, usually by receiving a special code from the account owner’s phone. It’s an extra layer of protection, making it that much harder for scammers to steal information from accounts.

5. Get cyber security liability insurance – As one of our current Mastermind members knows all too well – purchasing cyber security insurance is critical. For them, it was $4,400.00 well spent – saving them from a $950,000 liability. You should check with your local liability insurance carrier to add on a cyber security insurance rider to your existing liability policy.

6. Familiarize all employees with the best practices for cyber security – One of the most important ways to defend your law firm from cyber attacks is by making sure all your employees can spot red flags of scams when they see them. The best way to effectively educate your employees is by providing them with a clear cyber security policy that outlines the risks, the defenses in place, and the steps they can take to protect themselves and your law firm’s data.

#Law Firm Marketing

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darlenefblog · 3 years

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Here's the supposed "Don't Say Gay" bill. It doesn't say that all. Activist are up in arms because it does make schools accountable for coming between a child and it's parents. The big deal is that activist want control of the children so the "evil" parents can't stop the agenda.

Parental Rights in Education bill

House Bill 1557: "Requires [Florida] district school boards to adopt procedures that comport with certain provisions of law for notifying student's parent of specified information; requires such procedures to reinforce fundamental right of parents to make decisions regarding upbringing & control of their children; prohibits school district from adopting procedures or student support forms that prohibit school district personnel from notifying parent about specified information or that encourage student to withhold from parent such information; prohibits school district personnel from discouraging or prohibiting parental notification & involvement in critical decisions affecting student's mental, emotional, or physical well-being; prohibits classroom discussion about sexual orientation or gender identity in certain grade levels; requires school districts to notify parents of healthcare services; authorizes parent to bring action against school district to obtain declaratory judgment; provides for additional award of injunctive relief, damages, & reasonable attorney fees & court costs to certain parents."

#letsgobrandon #Activistidiots

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andrewjbernhard · 7 days

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Challenging Condo Special Assessments Under Florida Law: Essential Guide for Homeowners

Are you a condominium owner in Florida facing an unexpected special assessment and unsure of your rights? Our latest guide is here to help. This article explores grounds for challenging assessments if you believe an assessment is unfair.

In Florida, condominium governance involves a nuanced interplay of laws designed to protect both individual unit owners and the collective community interests. A common source of contention is special assessments—extra fees levied by a condominium association to cover unforeseen expenses or improvements not included in the annual budget. If you face a special assessment you deem unfair,��

#Challenging condo special assessments Florida #Condo association special assessment process #Condo special assessment legal advice #Condominium special assessment disputes #Declaratory judgment special assessment Florida #Florida condo law case studies #Florida condo laws #Florida condo legal resources #Florida Condominium Act special assessments #Florida condominium association disputes #Florida condominium legal guide #Florida condominium special assessment process #Florida condominium special assessments #How to challenge special assessments in Florida #Legal rights condo special assessments Florida #Navigating condo special assessments Florida #Special assessment approval requirements Florida #Special assessment dispute resolution Florida #Special assessment transparency Florida #Unit owner rights special assessments

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bbgwritingsamples · 6 years

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Judicial Precedent: Case Closed? (2003)

As the payroll manager of your company, you try to keep up with the latest happenings in the payroll industry. As you read the latest issue of the Payroll Guide Newsletter over coffee one morning, your eye catches an article discussing the Supreme Court's recent decision in United States v. Fior d'Italia, holding that the IRS may assess employer FICA taxes based on an estimate of aggregate unreported tips. This is an issue your company deals with, so you read the article with interest. What does this mean for you as an employer? If the Supreme Court decided this, it's final, right? Maybe.

Defining the Terms People seem to view judges as "supreme" beings, whose opinions are looked at as the final word on an issue. While judges and the court system as a whole are a very powerful institution, a court decision is not "the law." A court decision interprets the law as Congress has set it.

What some court opinions do have is "precedent." Precedent is a legal principle that provides authority for judges to use in deciding similar issues. As a general rule, decisions of higher courts have precedent over lower courts within the same jurisdiction. For example, in California, decisions of the California Supreme Court are binding on all lower state courts, and decisions of the California Courts of Appeals are binding on all trial courts.

However, the decision of one state Court of Appeals is not binding on other Courts of Appeals. While the decision may be persuasive, it does not have to be followed by that other court. Generally, decisions of the U.S. Supreme Court are binding on all other courts in the United States.

Most payroll tax cases involving the IRS are brought in the United States Tax Court, which has jurisdiction to hear disputes concerning notices of deficiency, notices of transferee liability, certain types of declaratory judgment, readjustment and adjustment of partnership items, review of the failure to abate interest, worker classification, and to review certain collection actions.

Decisions of the Tax Court may be appealed to the proper circuit of the United States Court of Appeals. Some states also have their own tax courts. For example, in Oregon, the Tax Court has jurisdiction to hear tax appeals under state laws, including personal income tax, property tax, corporate excise tax, timber tax, local budget law, and property tax limitations. From there, decisions may be appealed directly to the State Supreme Court.

Case by Example The Eighth Circuit of the United States Court of Appeals recently decided in North Dakota State University v. United States that a university's early retirement payments to tenured faculty members were not subject to FICA withholding.

The Eighth Circuit covers Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota. However, once the decision came out, taxpayers from all over the country started filing refund claims with the IRS service center involved in that decision for FICA taxes withheld and paid by their employers. The IRS then advised service centers to only make FICA refunds to individuals that have claims concerning cases arising within the jurisdiction of the Eighth Circuit with the exact same facts.

How can the IRS do this? The Court of Appeals is one of the highest courts in the United States. Well, the IRS cannot limit the decision in lower courts in any of the states in the jurisdiction of the Eighth Circuit. But, courts in other states are not bound by that decision. Consequently, if a taxpayer brings a case in California with the same facts as in North Dakota University, the IRS can use the same arguments it used in the Eighth Circuit, and the court may reach a completely different decision.

The Final Word? Prior to the Supreme Court's decision in Fior d'Italia, the Seventh, Eleventh, and Federal Circuits had decided in the IRS's favor on the issue of estimating aggregate tips. However, the Ninth Circuit and district courts in the District of Columbia and Florida had decided against the IRS.

It appears that the Supreme Court would be the last resting stop for disputes between taxpayers and the IRS. While that may be generally correct, the Court's decision in Fior d'Italia may not be a final victory for the IRS. According to Tracy Power, one of the attorney's who represented Fior d'Italia, the Court recognized problems with the IRS's methodology and invited the industry to challenge it on that score and to seek redress of its grievances in Congress, which has the power to change the law. The IRS's ability to use the authority given to it by the Court's decision may be limited, and the impact of the decision may not be that great.

Additionally, cases are decided not based just on the law, but also on the facts. The same court can hear two cases dealing with the same principles of law, but with different facts, and come to two different conclusions. So the next time you read the casebook in the newsletter remember it may just be someone's opinion.

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walterfrodriguez · 4 years

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Denny’s Children’s Wear, Ta-boo restaurant sue insurers for denying claims

Ta-boo and Denny’s Children Wear (Credit: Google Maps)

Retailers and restaurants are losing money hand over fist during the pandemic, but insurance companies are still refusing to pay business interruption insurance claims, according to a series of recently filed lawsuits.

Last week, children’s clothing retailer Denny’s and the popular Palm Beach bar & restaurant Ta-boo filed suit against their insurers, International Catastrophe Insurance Managers and Lloyd’s of London, respectively, for denying their claims. Both suits were filed in federal court in the Southern District of Florida.

Such lawsuits are becoming increasingly common in Florida as Covid-19 cases skyrocket and counties eye tighter restrictions on businesses and restaurants.

“The economic realities are setting in,” said Steve Marks, an attorney with Podhurst Orseck, who represents the plaintiffs. “This is only going to get worse before it gets better.”

According to Denny’s suit, the retailer entered into an agreement on Sept. 16, 2019, in which the insurer agreed to make payments for business losses. Due to coronavirus, the retailer had to close and lay off its entire staff at its Boca Raton location. The lawsuit claims it was denied its business insurance claim by its insurer in April. It is seeking declaratory judgment, alleging the insurer breached its contract.

Ta-boo is making a similar allegation. The restaurant on Worth Avenue in Palm Beach claims it was previously open seven days a week from 11:30 a.m. through 11:00 p.m. and had the capacity to hold about 200 guests inside. The restaurant does not have any open air or outside capacity, according to the complaint. It shut down on March 20 and did not reopen until May 22. During that time, Ta-boo was forced to lay off about 50 employees, according to the suit. Ta-boo alleges its insurer denied its claim in June. The lawsuit alleges breach of contract and seeks declaratory judgment.

International Catastrophe Insurance Managers and Lloyd’s of London did not immediately return requests for comment.

Filings of business interruption lawsuits started shortly after coronavirus-related restrictions began in March. In April, IT! Italy Ristorante Café & Bar at 500 East Las Olas Boulevard in downtown Fort Lauderdale sued Chubb Limited, the largest commercial property insurer in the country, alleging it failed to honor its agreement to pay its business insurance claim tied to losses stemming from the pandemic.

In April, Atma Beauty, at 1874 West Avenue in Miami Beach, filed a lawsuit against HDI Global Specialty SE, Axis Specialty Europe SE and Underwriters at Lloyd’s of London. The complaint alleges Lloyd’s of London promised to cover losses and expenses incurred as a result of the salon suspending its operations, but failed to do so, breaching its contract. The salon paid a higher premium to be covered by an all-risk policy, and a pandemic was not excluded from the coverage, according to the suit.

The post Denny’s Children’s Wear, Ta-boo restaurant sue insurers for denying claims appeared first on The Real Deal Miami.

from The Real Deal Miami & Miami Florida Real Estate & Housing News | & Curbed Miami - All https://therealdeal.com/miami/2020/07/21/dennys-childrens-wear-ta-boo-restaurant-sue-insurers-for-denying-claims/ via IFTTT

#The Real Deal Miami & Miami Florida Real Estate & Housing News | & Curbed Miami - All

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alfredrserrano · 4 years

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Denny’s Children’s Wear, Ta-boo restaurant sue insurers for denying claims

Ta-boo and Denny’s Children Wear (Credit: Google Maps)

Such lawsuits are becoming increasingly common in Florida as Covid-19 cases skyrocket and counties eye tighter restrictions on businesses and restaurants.

“The economic realities are setting in,” said Steve Marks, an attorney with Podhurst Orseck, who represents the plaintiffs. “This is only going to get worse before it gets better.”

International Catastrophe Insurance Managers and Lloyd’s of London did not immediately return requests for comment.

The post Denny’s Children’s Wear, Ta-boo restaurant sue insurers for denying claims appeared first on The Real Deal Miami.

from The Real Deal Miami https://therealdeal.com/miami/2020/07/21/dennys-childrens-wear-ta-boo-restaurant-sue-insurers-for-denying-claims/ via IFTTT

#The Real Deal Miami

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fuckmaga · 5 years

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What is a Gerstein hearing?

A person arrested without a warrant is required to be brought before a magistrate "without unnecessary delay," for an initial appearance . Also called a Gerstein hearing, it is a judicial determination of probable cause.

Gerstein v. Pugh, US Supreme Court (1975)

Brief Fact Summary

A county in Florida allowed prisoners to be held for a substantial amount of time without a hearing, based solely on the decision of a prosecutor.

Synopsis of Rule of Law

“Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.”

Facts

The Respondents, Pugh and Henderson (the “Respondents”), were arrested in Dade County Florida and charge under a prosecutor’s information with various offenses. One was denied bail and the other could not post bail. In Florida, an indictment is only needed if a crime is a capital offense. An information is sufficient for all other crimes. The law in Florida forbid a suspect from having a preliminary hearing if they are charged via an information. Also, a habeus corpus was only available in extraordinary circumstances. The only way to obtain a judicial determination of probable cause was a statute allowing a preliminary hearing after 30 days and arraignment, which is often delayed about a month after an arrest. Based on these procedures, an individual charged on an information can be detained for a long period of time solely based on what a prosecutor does.

The Respondents filed a class action against Dade County officials in federal court arguing that they have a constitutional right to a hearing on probable cause and declaratory and injunctive relief. The District Court held that “that the Fourth and Fourteenth Amendments give all arrested persons charged by information a right to a judicial hearing on the question of probable cause.” Respondents were ordered to be given an immediate preliminary hearing to determine probable cause for further detention and the Dade County defendants were ordered to promulgate a plan allowing for preliminary hearings in cases instituted by an information. The defendants submitted a plan and the District court made a few changes, but adopted it. It was a very detailed plan.

The Fifth Circuit Court of Appeals stayed the District Court’s order pending an appeal, and before the Fifth Circuit heard the appeal, the Dade County judiciary adopted a plan similar to that accepted by the District Court. The Court of Appeals remanded the case for specific findings as to the constitutionality of Dade County system. Before the District Court issued a ruling, the Florida Supreme Court “amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures.”

Pursuant to the new rules “every arrested person must be taken before a judicial officer within 24 hours. This ‘first appearance’ is similar to the ‘first appearance hearing’ ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable cause. The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment.”

“In a supplemental opinion the District Court held that the amended rules had not answered the basic constitutional objection, since a defendant charged by information still could be detained pending trial without a judicial determination of probable cause. Reaffirming its original ruling, the District Court declared that the continuation of this practice was unconstitutional. The Court of Appeals modifying the District Court’s decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable, as long as it was provided to all defendants in custody pending trial.”

Issue

“[W]hether a person arrested and held for trial under a prosecutor’s information is constitutionally entitled to a judicial determination of probable cause for pretrial restraint of liberty[?]”

“[W]hether the adversary hearing ordered by the District Court and approved by the Court of Appeals is required by the Constitution[?]”

Held

“To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.” “[T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” “At common law it was customary, if not obligatory, for an arrested person to be brought before a justice of the peace shortly after arrest. The justice of the peace would ‘examine’ the prisoner and the witnesses to determine whether there was reason to believe the prisoner had committed a crime. If there was, the suspect would be committed to jail or bailed pending trial. If not, he would be discharged from custody. The initial determination of probable cause also could be reviewed by higher courts on a writ of habeas corpus. This practice furnished the model for criminal procedure in America immediately following the adoption of the and there are indications that the Framers of the Bill of Rights regarded it as a model for a ‘reasonable’ seizure.”

Dade County defends “the prosecutor’s decision to file an information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial.” However, the court recognizes “[a]lthough a conscientious decision that the evidence warrants prosecution affords a measure of protection against unfounded detention, we do not think prosecutorial judgment standing alone meets the requirements of the Fourth Amendment. Indeed, we think the Court’s previous decisions compel disapproval of the Florida procedure.”

“In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, [the majority does] not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Instead, we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information. Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.”

Various adversary safeguards “are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. The standard is the same as that for arrest. That standard – probable cause to believe the suspect has committed a crime – traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof.”

“The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some cases. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.”

Discussion. This case establishes that “a timely judicial determination of probable cause [i]s a prerequisite to detention.”

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coramit2020-blog · 5 years

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There is no dispute that Zurich retained the attorneys

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forensiceyes · 5 years

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Hemp-CBD Across State Lines: Idaho

The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing the crop and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”) and by providing a detailed framework for the cultivation of hemp. The 2018 Farm Bill gives the US Department of Agriculture (“USDA”) regulatory authority over hemp cultivation at the federal level. In turn, states have the option to maintain primary regulatory authority over the crop cultivated within their borders by submitting a plan to the USDA. This federal and state interplay has resulted in many legislative and regulatory changes at the state level. Indeed, most states have introduced (and adopted) bills that would authorize the commercial production of hemp within their borders. A smaller but growing number of states also regulate the sale of products derived from hemp.

In light of these legislative changes, we are presenting a 50-state series analyzing how each jurisdiction treats hemp-derived cannabidiol (“Hemp CBD”). Each Sunday we will summarize a new state in alphabetical order. So far, we’ve covered Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia and Hawaii. Today we turn to Idaho.

To put it bluntly, Idaho is probably the worst state in the country to get caught with hemp. Hemp cultivation is not legal, even after the passage of the 2018 Farm Bill. The state legislature considered House Bill 122 earlier this year. It would have allowed for the regulated cultivation of hemp. It stalled out in April.

Long before that bill failed, the Idaho Attorney General issued an informal opinion (see pages 132-134) on the legality of Hemp-CBD in 2015. He concluded that in almost all cases, the possession of any form of CBD, whether derived from marijuana or hemp, is illegal. According to the opinion, in Idaho, products containing CBD are only legal if the two following criteria are met:

the substance cannot contain any THC; and

the substance must be excluded from the definition of “marijuana” under Idaho Code § 37-2701(t)

Under Idaho Code § 37-2701(t), the only legal part of the cannabis plant, whether hemp or marijuana, are (a) mature stalks of the plant; (b) fiber produced from the stalks; (c) oil or cake made from the seeds or the achene of such plant; (d) any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks; or (e) the sterilized seed of such plant which is incapable of germination.

For a CBD product to be legal in Idaho and it must be totally THC free and must come from one of the five categories mentioned above. It doesn’t matter whether the CBD was derived from hemp or marijuana. If derived from anything other than the seeds or stems of the cannabis plant, it is illegal.

Stems and seeds aren’t going to have high levels of CBD or any other cannabinoids so really this just means that CBD is pretty much outlawed in Idaho with one notable exception: Idaho allows for FDA-approved CBD, such as that found in Epidiolex. The Idaho Office of Drug Policy’s webpage on CBD Drug Policy indicates that Idaho’s position on CBD has not changed as of June 2019 and that the informal opinion from 2015 is still followed.

Idaho’s opposition to hemp goes beyond the informal opinion as Idaho has recently seized hemp shipments traveling through the state. On August 28, 2019, the Ninth Circuit Court of Appeals heard oral arguments in Big Sky Scientific, LLC v. Jan Bennetts, on appeal from the District of Idaho. We wrote about that case in great detail here.

The case involved the Idaho State Police’s seizure of 6,700 pounds of industrial hemp biomass cultivated lawfully in Oregon that was on its way to Colorado for state-lawful processing. The appeal involved the denial of Big Sky’s preliminary injunction by the state court. Big Sky moved for a declaratory judgment stating that Idaho Police improperly seized Big Sky’s hemp in light of the 2018 Farm Bill’s and a preliminary injunction requiring police to return the hemp. The District Court issued an Order denying relief to Big Sky stating that it’s not clear that the 2018 Farm Bill, which prohibits states from interfering with shipments of legal hemp, provides protection for hemp grown under the 2014 Farm Bill. Because the USDA has not approved any state-level hemp cultivation plans under the 2018 Farm Bill, all hemp in the US is grown under the 2014 Farm Bill. In other words, all hemp shipments are at risk of seizure if they pass through Idaho.

The Ninth Circuit indicated that it believes federal jurisdiction may have been improper, meaning the case may ultimately be dismissed on procedural grounds. Even if Big Sky is unsuccessful here on procedural grounds, it’s worth noting that the USDA’s opinion is that Idaho should not have seized this hemp under the 2018 Farm Bill.

One day Idaho will come around and stop fighting hemp farmers who are merely shipping products through the state. For now, Idaho is one of the worst states on hemp. If you are a stakeholder in this industry, avoid Idaho at all costs.

Hemp-CBD Across State Lines: Idaho posted first on http://ronenkurzfeld.blogspot.com

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simonconsultancypage · 5 years

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D&O Insurance: Thinking About the Invasion of Privacy Exclusion

As the number of Telephone Consumer Protection Act (TCPA) class actions has risen in recent years, one recurring question has been whether or not there is coverage under the defendant companies’ D&O insurance policies for these claims. The specific issue is whether or not D&O policy’s “invasion of privacy” exclusion precludes coverage for TCPA claims. In the latest ruling to address these issues, Southern District of Florida Judge Robin L. Rosenberg, applying Florida law, held that, in light of the specific allegations in the underlying TCPA action, coverage for the claim was precluded by the exclusion. Judge Rosenberg’s ruling is consistent with other rulings, but does also raise some interesting issues. Judge Rosenberg’s May 30, 2019 order can be found here. A June 7, 2019 post on the Wiley Rein law firm’s Executive Summary Blog can be found here.

Background

This insurance dispute arises out of a class action filed against iCan Benefit Group LLC alleging TCPA violations. iCan submitted the claim to its D&O insurer, which denied coverage for the claim in reliance on the invasion of privacy exclusion. After the insurer’s coverage denial, the parties to the TCPA action reached an agreement under which a $60 million consent judgment was entered against iCan, with the understanding that the TCPA claimants would collect this judgment from iCan’s insurer. iCan assigned all of its rights under the D&O policy to the claimants. The claimants then filed a declaratory and breach of judgment action against the insurer. The parties filed cross motions for summary judgment.

The policy’s “invasion of privacy” exclusion provides that: “The Insurer shall not be liable under Insuring Clause C for Loss on account of any Claim made against the Company … based upon, arising out of, attributable to and actual or alleged … invasion of privacy.”

The May 30, 2019 Order

In a 15-page May 30, 2019 order, Judge Rosenberg denied the claimant/assignees’ summary judgment motion and granted the insurer’s motion.

The plaintiffs had opposed the insurer’s motion on a number of grounds, including their argument that they did not have to prove invasion of privacy in order to prevail, since invasion of privacy is not an element of the TCPA cause of action. The plaintiffs also argued that allegations of invasion of privacy were just one component of their lawsuit against iCan.

Based on her review of Florida case law and relevant federal case law addressing the question of coverage for TCPA actions (including the Ninth Circuit’s 2017 decision involving the Los Angeles Lakers), Judge Rosenberg concluded that though invasion of privacy is not an element of a TCPA action, “a violation of the TCPA may in some circumstances be considered an invasion of privacy for purposes of analyzing coverage in an insurance policy.”

In reaching that conclusion, Judge Rosenberg put particular emphasis on the policy’s exclusion of coverage for claims that “arise out of” an invasion of privacy. Given this wording, Judge Rosenberg said, the exclusion would preclude coverage for the underlying TCPA claim if the claim “originated from, grew out of, flowed from, or merely had a connection with any actual or alleged invasion of privacy.” Based on the allegations in the underlying complaint, Judge Rosenberg concluded that “such a nexus does exist” in this case.

Judge Rosenberg specifically cited and relied upon the underlying complaint’s explicit and frequent reference to the invasion of the class members’ privacy. Judge Rosenberg emphasized that she reached her conclusion regarding the applicability of the exclusion based on the specific allegations in the complaint, and therefore did not reach the issue of whether or not TCPA violations are per se invasions of privacy. Moreover, because she found that all of the allegations in the underlying complaint arise out of allegations of invasion of privacy, she concluded that the policy exclusion precluded coverage for the underlying claim entirely.

Discussion

Other courts have held that the invasion of privacy exclusion in a D&O insurance policy precludes coverage for TCPA claims. One very high profile case in which the court reached this conclusion was the Ninth Circuit’s decision in the Los Angeles Lakers case, which I mentioned above. However, the value of this Lakers ruling is somewhat diminished by the fact that in issuing its decision, each of the three judges on the three-judge Ninth Circuit panel issued a separate opinion. The majority opinion concluded that a TCPA action “inherently” is an invasion of privacy claim. A second judge issued a concurring opinion saying that the case could have been decided on narrower grounds; he said he thought the allegations in the underlying claim were sufficient to establish that the claims at issue arose out of an invasion of privacy, without the need for the court to reach the issue of whether a TCPA claim is inherently an invasion of privacy claim. (A third judge dissented from the ruling, arguing that the underlying claim did not seek recovery based on an invasion of privacy).

I thought at the time that the Ninth Circuit’s split on this issue would limit the value of the appellate ruling for subsequent courts. However, Judge Rosenberg specifically said that she considered the opinion to be “persuasive authority.” She did not say specifically what she found to be “persuasive” about it, but given the outcome of her analysis, it seems that she found the opinion of the concurring judge in the Lakers case to be most instructive, as she concluded that she did not need to reach the issue whether a TCPA action represents a per se invasion of privacy allegation, given her conclusion that the specific claims in dispute here arose out of an alleged invasion of privacy.

Judge Rosenberg’s decision, based on the specific allegations in the underlying complaint, at least leaves open the possibility that in another TCPA case, another party might be able to argue based on the specific underlying allegations that the claim does not involve an alleged invasion of privacy. While this might give heart to policyholder side advocates, it is cold comfort for the insurers. Given the proliferation in the number of TCPA class action in recent years, it is hardly surprising that the insurers might seek to avoid coverage for these types of claims. My view is that if insurers mean to exclude coverage for certain specific kinds of claims, they should do so explicitly – here by means of an exclusion expressly precluding coverage for TCPA actions. That kind of express specificity would allow insurance buyers to comparison shop based on available terms and conditions.

It is worth noting here that these issues only arise under a private company D&O insurance policy. These issues would not arise under a public company D&O insurance policy, because the entity coverage in public company D&O insurance policies is limited to securities claims. Because a TCPA action is not a securities claim, it would not come within the entity coverage insuring clause.

But the invasion of privacy exclusion is a standard part of the private company D&O insurance policy. The various court decisions addressing the question of whether the invasion of privacy exclusion precludes coverage for TCPA actions do highlight the exclusion and raise the question of what the exclusion is doing in the D&O policy in the first place.

This question about the purpose of the invasion of privacy exclusion in the D&O policy is particularly noteworthy in the current circumstances where issues involving privacy invasions are a front-page story on a daily basis. I worry about the invasion of privacy exclusion sitting there in the private company D&O policy, silently creating a host of potentially worrisome issues that could arise in the event of, for example, claims arising out of GDPR or the California Consumer Privacy Law, or, more generally, claims arising out of data breaches or privacy violations.

In other words, for me, the issues about the invasion of privacy clause go much further than just the relatively narrow question of coverage for TCPA actions. The issues about the clause extend to a whole host of other kinds of claims that could become increasingly important in the future.

Which in turn begs the question of what the exclusion is doing in the policy in the first place.

The problem with the exclusionary reference to an “invasion of privacy” is that the phrase is too elastic, it potentially could be stretched to extend to a whole host of kinds of claims. All of which for me is another reason why I think it would be far better if, for example, the insurers don’t want to insurer TCPA actions, then they should say that, and not rely on a potentially over-broad exclusion.

So, consider this a modest plea for the insurers to consider removing the invasion of privacy provision, and substituting in the specific claims that the insurer intends to exclude.

The post D&O Insurance: Thinking About the Invasion of Privacy Exclusion appeared first on The D&O Diary.

D&O Insurance: Thinking About the Invasion of Privacy Exclusion published first on http://simonconsultancypage.tumblr.com/

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lawfultruth · 5 years

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D&O Insurance: Thinking About the Invasion of Privacy Exclusion

Background

The May 30, 2019 Order

In a 15-page May 30, 2019 order, Judge Rosenberg denied the claimant/assignees’ summary judgment motion and granted the insurer’s motion.

Discussion

Which in turn begs the question of what the exclusion is doing in the policy in the first place.

So, consider this a modest plea for the insurers to consider removing the invasion of privacy provision, and substituting in the specific claims that the insurer intends to exclude.

The post D&O Insurance: Thinking About the Invasion of Privacy Exclusion appeared first on The D&O Diary.

D&O Insurance: Thinking About the Invasion of Privacy Exclusion syndicated from https://ronenkurzfeldweb.wordpress.com/

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