Report shows law firm mergers are up
Legal Topics | 2008/07/08 15:49

The second quarter of this year saw the pace of law firm mergers rise sharply in the U.S., according to a new report from legal consultancy Altman Weil Inc.

There were 26 new law firm mergers and acquisitions reported in April, May and June, compared to 18 during the first quarter of the year, according to Newtown Square, Pa.-based Altman Weil.

The largest of the latest law firm combinations was between K&L Gates, a 1,500-attorney firm, and Kennedy Convington Lobdell & Hickman, a 175-lawyer firm.

In Memphis there were no significant mergers reported for the quarter. However, in the previous quarter St. Louis-based Husch & Eppenberger LLC and Kansas City, Mo.,-based Blackwell Sanders LLP finalized their merger, which was first announced last September. Of the two, only Husch & Eppenberger had an office in Memphis.

In July 2007, Memphis-based Baker, Donelson, Bearman, Caldwell & Berkowitz PC merged Atlanta-based Gambrell & Stolz LLP into the firm, adding 36 attorneys.

"Even in a deteriorating economy, law firms continue to pursue a growth strategy via merger and acquisition," said Altman Weil principal Tom Clay in a statement. "And based on our conversations with law firm leaders, we think the pace is unlikely to slow."



Ruling Limits Courts' Role In Environmental Review
Legal Topics | 2008/07/07 15:52
Three people are accused of beating, torturing and prostituting a mentally disabled teen. Waquita "Goddess" Wallace, 33, Richard Marquis Harper, 20, and a woman identified only as "April" were charged in federal court with sex trafficking by force, fraud or coercion and sale into involuntary servitude. The victim may have been held for up to a month.

Here is the story as told by FBI Special Agent Cynthia Dockery in an affidavit:

The victim had been living with a female cousin who tried to convince her to have sex with her boyfriend. That man later forced the victim to have sex with him twice. The cousin left the victim at Wallace's house in late May or June. The cousin owed Wallace $3,300 and Wallace told the victim that the debt was now hers to pay off through prostitution and her food stamp and disability income.

The victim was forced to have sex with men and Wallace took her identification, wallet and clothes. Wallace beat her with fists and blunt objects and burned her with cigarettes and lighters. Wallace told her that she, Wallace, would kill her cousin, mother and grandmother if she tried to leave. Wallace, Harper and April held her head under water when she said she wanted to leave. The victim was rescued by her sister, who called the police.


Texas Fired Her For Dissing 'Creationism'
Legal Topics | 2008/07/03 15:58
The longtime director of science curriculum claims the Texas Education Agency illegally fired her because she forwarded an email announcing a lecture by a speaker who opposes teaching creationism in science classes. Christina Castillo Comer claims the TEA's official "neutral" position on creationism is an unconstitutional dodge to allow Texas public schools to push religion under the guise of science.

Comer was director of science for the TEA's Curriculum for more than 10 years. She claims the agency fired her in November 2007 "for contravening the Agency's unconstitutional 'neutrality' policy by forwarding an email to other science educators announcing an upcoming lecture about evolution and creationism."

The federal complaint cites this TEA memorandum recommending that Comer be fired: "On October 26, 2007, Ms. Comer forwarded from her TEA email account to a group of people, including two external email groups, that announced a presentation on creationism and intelligent design entitled 'Inside Creationism's Trojan Horse.' The email states that the speaker [Barbara Forrest] is a board member of a science education organization, and the email clearly indicates that the group opposes teaching creationism in public education. ...

When Dr. Jackson asked Ms. Comer about this situation, she replied that she was only forwarding information. However, the forwarding of this event announcement by Ms. Comer, as the Director of Science, from her TEA email account constitutes much more than just sharing information. Ms. Comer's email implies endorsement of the speaker and implies that TEA endorses the speaker's position on a subject on which the agency must remain neutral. Thus, sending this email compromises the agency's role in the TEKS revision process by creating the perception that TEA has a biased position on a subject directly related to the science education TEKS."

Comer says that the TEA does indeed have a biased position on the subject: "Creationism is a religious belief. Teaching creationism as science in public schools violates the Establishment Clause of the First Amendment. ... The Texas Education Agency has a policy of purported 'neutrality' on teaching creationism as science in public schools. By professing 'neutrality,' the Agency credits creationism as a valid scientific theory. Creationism, however, is not a valid scientific theory; it is a religious belief. The Agency's policy is not neutral at all ... The Agency's 'neutrality policy has the purpose or effect of endorsing religion, and violates the Establishment Clause. ...

"Similarly, the Agency's firing of its Director of Science for not remaining 'neutral' on this subject violates the Establishment Clause, because it employs the symbolic and financial support of the State of Texas to achieve a religious purpose. ... Finally, the Agency fired Director Comer without according her due process as required by the Fourteenth Amendment - a protection especially important here because Director Comer was fired for contravening an unconstitutional policy."
   


Anthrax settlement may moot contempt case
Areas of Focus | 2008/07/01 15:50

The US Department of Justice announced Friday that it has settled a lawsuit brought by former US Army germ-warfare researcher Dr. Steven Hatfill, a development that may moot a landmark contempt case against former USA Today reporter Toni Locy now awaiting a ruling by the US Court of Appeals for the DC Circuit. Under the settlement, Hatfill would drop all damages claims against the government in return for a lump sum payment of $2.825 million and a 20-year annuity of $150,000 amounting to $3 million. Hatfill had initially sued the Department alleging that it violated the US Privacy Act by providing personal information and information about him to journalists - including Locy - during its investigation of the 2001 anthrax attacks in which he was at one point named a "person of interest". Locy had refused to disclose her sources in discovery, arguing that the information Hatfill was seeking was not central to his lawsuit. In a letter to the Court of Appeals Friday informing it of the settlement, Hatfill lawyer Christopher Wright said that Locy's evidence was no longer needed by his client.

In March, US District Judge Reggie Walton found Locy in contempt of court for not disclosing her sources and ordered her to pay a fine of $500 a day, increasing to $1000 a day after one week and then up to $5000 a day after two weeks, the costs of which could not be covered by her former employer. Locy obtained an emergency stay of that order from the Court of Appeals and oral arguments on the merits of the sanctions were heard last month. The appeals court has yet to make a formal ruling on the status of the contempt case in light of the Hatfill settlement, but Locy said late Friday that she and her lawyers are hopeful that the deal would end the matter. Locy will be a professor at Washington & Lee University's journalism school this fall.



NY Sets Bar High for Adult Victims of Predatory Clergy
Legal Topics | 2008/06/30 17:30

New York’s highest court has set the bar prohibitively high for proving certain civil cases against predatory clergy by ruling that a woman cannot sue a rabbi who had an affair with her because she was not “uniquely vulnerable and incapable of self-protection."

Some state and federal courts have upheld breach of fiduciary duty claims arising from sexual misconduct by clergy with adult parishioners whom they are counseling. A fiduciary duty exists, those courts said, if the clergy member “held himself out as possessing the education and experience” of a professional counselor.

Only last month, an intermediate New York appeals court recognized a fiduciary duty claim for the first time in the case of a woman who sued a Catholic priest for damages arising out of her adulterous relationship with him. Doe v. Roman Catholic Diocese.

But the New York Court of Appeals pretty much slammed the door on such cases in finding last week that Adina Marmelstein had “insufficiently demonstrate[d] that she developed a fiduciary relationship” with Rabbi Mordecai Tendler.

“Allegations that give rise to only a general clergy-congregant relationship that includes aspects of counseling do not generally impose a fiduciary obligation upon a cleric,” the opinion said.

“To establish that a course of formal counseling resulted in a cleric assuming 'de facto control and dominance' over the congregant,” it continued, “a congregant must set forth facts and circumstances in the complaint demonstrating that the congregant became uniquely vulnerable and incapable of self-protection regarding the matter at issue.”

Tendler, who officiated at an Orthodox Jewish synagogue in New Hempstead, N.Y., counseled Marmelstein for emotional problems. They allegedly began their affair after he told her that “a course of sexual therapy” would make her more attractive to men and help her find a husband.

Marmelstein's allegations were insufficient, Judge Victoria A. Graffeo wrote for the appeals court, because she “has shown only that she was deceived by Tendler, not that she was so vulnerable as to surrender her will and capacity to determine her own best interests.”

In a footnote, Graffeo said she was not suggesting that “a cleric who is also a licensed professional, such as a psychiatrist, psychologist or attorney, could not assume fiduciary obligations under existing laws and the secular standards that govern the practice of those professions.”

But her decision means clerics who are not licensed professionals cannot be sued for sexual misconduct unless the plaintiff somehow meets a “vulnerability” standard which completely disregards the inherent “control and dominance” that clergy assume over congregants.

As a more enlightened New York appellate judge put it, “The hallmark of fiduciary duty -- an imbalance of power between the parties -- is especially manifest in the relationship between a priest and parishioner.” Langford v. Roman Catholic Diocese, 271 A.D.2d 494 (2000).



"Parrot Fever" Suit May Not Fly
Legal Topics | 2008/06/27 16:16

The family of a Texas man who allegedly died of a disease contracted from a sick cockatiel has sued PetSmart for wrongful death, but the fate of similar cases around the country suggests their products liability theory will not fly.

The cockatiel that Amanda de la Garza bought from the Corpus Christi PetSmart store on Sept. 30, 2006 was allegedly suffering from a bacterial infection that crossed over to her father and caused him to be infected with the disease psittacosis, also known as “parrot fever.” Joe de la Garza, 63, died of psittacosis two weeks later.

At least five states have rejected products liability claims against pet stores for selling a defective animal, with courts in Missouri and Ohio taking that position in cases involving parrots. “We ... conclude that a parrot is not a product for purposes of products liability,” the Ohio Court of Appeals said in Malicki v. Koci, 700 N.E.2d 913 (1997).

But in a petition filed earlier this month, the de la Garza family allege that at the time “the bird left the hands of PetSmart, Inc,, the bird was diseased, defective, and unreasonably dangerous” and its defective condition was “a producing cause” of the death of Joe de la Garza.

“As a result, PetSmart, Inc. is strictly liable to the Plaintiffs herein,” the suit says.

A PetSmart representative told KIII-TV in Corpus Christi that the company is not aware of any confirmed cases of humans contracting psittacosis from humans. The de la Garzas insist that “The diseases of birds can cross over to the human population and can cause disease in the people who buy the birds.”

Amanda de la Garza also fell ill and was hospitalized “as a result of psittacosis,” the suit alleges. But whatever the scientific facts may be, PetSmart could argue that it cannot be sued for products liability as a matter of law.

In the seminal case of Whitmer v. Schneble, 331 N.E.2d 115 (1975), the Illinois Appellate Court ruled that an animal could not be a product since its "nature" is not "fixed" when it leaves the hands of a seller.

The Missouri Court of Appeals agreed with that view in rejecting a products claim filed by a parrot buyer who allegedly contracted psittacosis from the bird. “It seems unreasonable for us to hold a seller liable for changes potentially wrought upon a 'product' by the purchaser, while the item was completely outside the seller's control,” it said in Latham v. Wal-Mart Stores, 818 S.W.2d 673 (1991).

New York, Connecticut and Oregon have ruled otherwise. As a New York trial judge said in Beyer v. Aquarium Supply Co., 404 N.Y.S.2d 778 (1997),

[T]here is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product.
But in the most recent case on point -- Blaha vs. Stuard, 640 N.W.2d 85 (2002) --- the South Dakota Supreme Court found a dog was not a product. And you can expect the generally conservative, pro-business Texas courts to follow the Whitmer line of cases.

The de la Garzas also allege that PetSmart and Rainbow Exotics, a Waco bird supplier, are liable for negligent inspection and handling of the cockatiel and failing to warn Amanda de la Garza that “bird disease could affect humans.”

Amanda, the suit says, noticed the bird “was subdued and had separated itself from the other birds offered for sale,” but “was told that the bird was having a 'bad day.'”

Plaintiffs have recently sued PetSmart in Massachusetts and Rhode Island, alleging family members died as a result of receiving organs from donors which had been infected with a virus contracted from pet hamsters. Those cases, however, do not allege products liability.



Drunken Groom's Marriage Declared Invalid After 30 Years
Areas of Focus | 2008/06/26 16:04

An Australian bridegroom was horrified to learn after he had walked down the aisle that he was already married — after a drunken holiday romance he could barely remember.

The husband has had to confess in the Family Court that he spent 28 days partying and drinking in Arizona in 1978 on leave from his job as a cook on the oil rigs.

He can remember the "nice" blonde American woman he met through a pen pal newspaper advertisement — but little more.

"He has no recollection of going through any form of ceremony of marriage with her, or of discussing marriage, or of anything referable to marriage," said Justice Sally Brown, who annulled the marriage last month.

Not only that, but the man, who describes himself as an old-fashioned romantic, was already married at the time — to his wife of 14 years.

Yesterday the 67-year-old, who cannot be identified, told The Daily Telegraph "the sky fell in" when he was shown the Arizona marriage license.

"I looked at the signature and thought it could have been mine or it could not have been," he said.

The man had since divorced his 1966 wife. It was when he married his Hawaiian girlfriend in 2006 and applied to live in Hawaii with her that U.S. immigration authorities broke the bad news.

He said his latest wife, who has become his girlfriend again because their marriage was declared invalid, was very understanding.



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