Nevada Legal Updates

Would You Like Broccoli With That Health Insurance Plan? The Supremes Discuss The Slippery Slope Of ObamaCare

noreply@blogger.com (Sheri Ann Forbes) — Wed, 28 Mar 2012 16:21:00 +0000

Broccoli, cell phones and burial services, oh my! What will the government force us to buy next? The parade of horribles was the topic du jour at Tuesday's oral argument before the US Supreme Court on the constitutionality of the individual mandate contained in the Affordable Care Act. The Supremes expressed concern over the slippery slope potentially created by the ACA and where the line should be drawn. At issue is whether the individual mandate of the ACA is authorized by the United States Constitution art. 1 sec. 8 clause 3, the Commerce Clause, which gives Congress the power to regulate interstate commerce. The Supreme Court has, over the past 190 years, interpreted the Commerce Clause to allow congress to regulate all sorts of industries, from ship navigation, to the Chicago meat industry, to wheat production for personal use.

Justice Scalia, notorious for his conservative legal opinions, asked the first question of Solicitor General Donald Verrilli, setting the tone for the day. Scalia queried, perhaps disingenuously, why couldn't the federal government just directly address the problems of individual access to health care rather than the individual mandate to purchase health insurance. The answer of course, is that the present Congress will not create a public health care option. Appropriately, Mr. Verrilli did not give this answer, but offered instead that the ACA is in fact addressing the problem directly.

The Justices' questions centered around the concern that if Congress can require individuals to purchase health care, why can't Congress require the purchase of a cell phone, of broccoli, of health club memberships or of funeral services? Verrilli;s answer to these questions pointed out the health care market is different because (a) it is the only market where you can show up without the means to pay and you will still be provided the service at the expense of those who do pay; (b) everyone will eventually need health care and thus everyone is a market participant; (c) the ACA seeks to regulate the health care industry, not the insurance industry, and requires the method of payment for health care be through health insurance; (d) the ACA uses the most efficient method that allows consumer choice among insurance policies; and (e) the ACA does not provide any enforcement powers--if insurance is not purchased, the penalty is not anymore than what one would have paid for the insurance.

The respondents arguing to strike the mandate did not have any easier a time with the Justices. Attorney Paul Clemente, arguing for the respondent 26 states, argued the ACA forces individuals to purchase a product. Clemente argued that defining the market as those who access health care was improper, and that the market being regulated was those that purchased insurance. Clemente suggested it would be constitutional for the ACA instead to only require that insurance be purchased at the point of sale; i.e. only when one gets sick and shows up to the Emergency Room. The Justices focused their questions to Clemente on issues regarding the definition of the market being regualted (insurance versus health care), the fact that uninsured patients already shift the cost of their health care to paying patients, and what difference does it make if the ACA requires the purchase of insurance prior to getting sick or at the time of receiving health care services.

Justice Breyer proposed a hypothetical situation several times to the respondent attorneys, asking, what if "a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the federal Government say all 40 million get inoculated?" Mr. Clemente avoided answering, which perhaps accounts for Justice Breyer's attempt three more times to get an answer. Justice Breyer then changed the hypothetical to whether the EPA could require all automobiles have anti pollution equipment if it turned out 60% of them caused pollution. Attorney Carvin conceded the commerce clause authorized Congress to enact such a law but pointed out only those who bought automobiles would be required to do so.

The problem with the respondents' argument is they attempt to limit the individuals affected in the market being regulated by the ACA to those purchasing insurance, leading to their protest that Congress is requiring an affirmative purchase of a product that would not otherwise be purchased. To hear the respondents say it, the 40 million uninsured are uninsured by choice, rather than because they cannot afford the premiums, and thus should not be forced to purchase an unwanted product. Justice Ginsberg's comparison of the ACA to the social security system is well taken, albiet, social security is funded by a tax, making it a different animal. The truth is, as many of the Justices pointed out, every person from the time they are born will at some point need to use health care. That is the industry that the ACA targets. The ACA mandates that health care is paid for by insurance, which the respondents concede is a proper Congressional power under the commerce clause. As Justice Kennedy pointed out, "the young [healthy] person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that s not true in other industries." Thus their participation directly affects the price others will pay not just for insurance, but for health care. Health care costs go up because hospitals are required by federal law to treat those who cannot pay for their services, thus shifting the costs to everyone else. The respondents' solution that those who "choose" not to purchase insurance can be required to purchase it at the time they do need health cares serices, is not only unreasonable and naive, but implausible.

As Mr. Vermilli pointed out, 40 million Americans can not obtain health care insurance because of the cost of the premiums. If a point of sale requirement were placed on these individuals as argued by the respondents, the cost of insurance would essentially be the cost of the health service. Actuarially, the premium you pay is based on some calculus of the chance you will get sick and how much the health care you might need could cost. If someone shows up at the Emergency Room and endeavors to purchase insurance then and there, the chance that you will get sick is 100% because you are currently sick, and the cost is more or less calculable. So, the premium, from an actuarial point of view and the point of view of the insurance company should be the cost of the treatment you are seeking. Which brings us back to the uninsured showing up to the Emergency Room with no means of paying The cost would still be shifted to others with insurance.

Obama Care Oral Arguments Underway

noreply@blogger.com (Sheri Ann Forbes) — Tue, 27 Mar 2012 21:28:00 +0000

On Monday, March 26, 2012, oral arguments in front of the United States Supreme Court got underway to hear the legal challenge to the Affordable Care Act enacted by Congress and signed into law by President Obama on March 23, 2010.

The Supreme Court scheduled an unprecedented six hours over three days for oral argument this week after granting certiorari. At issue is the Act's individual mandate to purchase health insurance or pay a tax penalty. two federal appellate courts have upheld the mandate, one declared it unconstitutional and one appellate court declined to decide the issue under the Anti-Injunciton Act, ruling the issue could not be decided until tax payers are actually harmed by having to pay the tax/penalty in 2015.

Monday's oral argument focused mainly on whether the Anti-Injunction Act prohibited the present challenge, and whether the requirement that a tax payer who fails to purchase health insurance is assessed a tax or a penalty, which would dictate whether the AIA applies. There was discussion between the Justices and amicus curiae court appointed counsel Robert A. Long whether the Anti-Injunction Act is jurisdictional, thus robbing the courts of the ability to hear the issue, or directed at the Solicitor General, thus prohibiting the litigants from filing suit.

Nomenclature was an issue regarding whether the assessment is actually a tax or a penalty. Right out of the box, Justice Alito quipped to the Solicitor General for the Department of Justice Donald B. Verrilli, "General Verrilli, today you are arging that the penalty is not a tax. Tomorrow You are going to be back and you will be arguing that the penalty is a tax." When Chief Justice Roberts referred to the assessment as a penalty, attorney for challengers to the Act, Gregory G. Katsas, corrected "taxes, Mr. Chief Justice."

The attorneys were peppered with questions mainly from Ginsberg, Scalia, Sotomayor, Breyer, Roberts and Kegan, with a few questions from Alito and Kennedy. Thomas remained characteristically silent during argument.

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Me and 500 of My Facebook BFFs: A Rambling Stream of Consciousness About Facebook

noreply@blogger.com (Sheri Ann Forbes) — Tue, 20 Mar 2012 22:39:00 +0000

Okay, so this post is not a legal update. So sue me. Just accept that you will see more nonlegal posts interspersed among my legal analyses from now on.

The other morning I was thinking about how on-line banks and financial institutions these days are requiring users to answer “security questions” to verify identity and keep identity theft at bay.
It then occurred to me,that on-line social sites such as Facebook put their users at risk, because they encourage people to share in a public setting the personal information banks use to verify
one’s identity. Perhaps people should not be using Facebook the way we all do because many of the answers to the “security questions” used most often can be found on the Wall of one’s
Facebook page. For example, my home town, my high school, a list of my family members, and now with the new timeline, my job history and places I have lived and the respective dates
are all posted for anyone to which I give access to find. Thus, security questions like mother’s maiden name, city you were born in, first pet’s name, first employer, or even high school mascot
all potentially could easily be found with not too much effort.   To put this in perspective, if one’s security setting allows only friends of friends to see wall posts and information, and one has,
say, 500 friends, each of who have 500 friends, one’s “security” information is potentially accessible to tens of thousands of people.

But maybe the flaw isn’t in the information Facebook has lulled us into voluntarily posting on our accounts, or even in Facebook’s privacy settings. Yes, I know, this is antithetical to the Facebook bashing of late and accusations that Facebook intentionally makes it difficult to control one’s privacy settings. But it is not as if the type of information posted on Facebook is super secret stuff like one’s social security number. With all the conspiracy theories about Facebook, I have yet to see an accusation that Facebook is gathering social security numbers, ATM PINs, or bank account information. Realistically, the type of information contained on my Facebook wall is information I would have no problem sharing with a complete stranger I just met. The usual mindless, boring, get-to-know-you chitchat is not infrequently comprised of where one was born, what high school one attended or what type of embarrassing first car one owned. I am not often concerned nor do I even consider that the person with whom I might share this type of information is going to steal my identity. So maybe the flaw isn’t Facebook. Maybe the real flaw is the type of questions the bank considers “security” inducing. Maybe the banks should be asking stuff that we do tend to keep super secret, such as what loathsome diseases one has, or one’s criminal history, annual income, number of late payments in the past twelve months. Maybe using information we would divulge just to be social is not fodder for a security question to verify our identity. After all, it is those mundane details about one’s self that we use to socialize and with which we make friends with one another. So, maybe Facebook has it right after all.

So, maybe the problem is the number of people we friend on Facebook.   Do we really need to
friend everyone we ever knew and his brother? Do we really have 500 bffs in this world?
Before on-line social networks, we made friends the old fashioned way; we hung out with
them. According to research conducted by the likes of Festinger (1954), Schachter and Back (1950),
and Zajonc (1968), the one factor that most predicted whether two people became friends is
propinquity. Throughout different stages of our lives, we share propinquity with different sets
of people: the kids on our street in elementary school; the kids in our class in high school; the
kids in our dorms in college; the colleagues and/or neighbors we have as young adults; the people
who parent the kids that hang out with our kids; and perhaps inevitably, the people whose rooms
are next to ours in the nursing home.

As we moved along life, we drop some friends, keep in touch with a select few, and move on
to a new set of friends. Part of what keeps us friends is being in close enough geographic proximity
to one another so that we may share the little mundane things about our lives. For example,“Oh!
Did I tell you what so-and-so’s response was to my letter (email post 1990s)?” or “My wife wants
me to take her to another bad 70’s/80’s/90’s band/concert this weekend. Wanna come?” or
“Dude, I want a rematch on that racquet ball game last week.” If we didn’t have this semi regular
discourse, most people who were in our circle fell out, with the exception of the one or two with
whom we kept in touch regardless of where we were in life or where we moved geographically.

Facebook has really changed all that. Not only do we keep in contact with more people, perhaps
people we would even be happier to have lost contact with, but we are kept up to date on all
those mundane details on a regular basis. We post our status constantly. “Made it to the gym
today, did 50 push ups, my personal best.” Or “My three year old knocked out his front tooth.”
Or “I was offered a new job at Local Big Firm.” Propinquity is now present not only in real
space, but in cyberspace. I was keenly made aware of this revelation when I updated my own
status last week to announce my accepting a job offer at Local Big Firm. I received comments
or “likes” from somewhere around 50 separate people. In my life, I have never had 50 people in
anyone circle of friends to which I would have made this announcement and in return received
so many heart warming good wishes. And of course, these 50 people don’t include those closest
to me who don’t even have (gasp!) a Facebook account! When I saw (what I consider) the large
number of good wishes, I started thinking about what the 217 people I have friended on Facebook
really mean to me. Like many, my (modest) Facebook posse consists of friends and acquaintances
from: elementary school, high school, college, neighbors from old addresses, work, family, present
neighbors, friends/acquaintances, friends/acquaintances made because of my kids’ friends, and all
their brothers. Surely I don’t have 217 bffs, do I??  The propinquity theory dispels this, doesn’t it?
I don’t have regular contact and/or discourse with 217 people, except in cyberspace. Can the
propinquity theory be applied to cyberspace? The answer is yes. Propinquity explains cyberspace
just as well as real space.

Here’s the thing. Facebook gives us the tool to create propinquity in cyberspace. I had an
epiphany that brought this conclusion into focus for me. I have a friend Matt E. from college
(not to be confused with my close friend Matt G. from grad school). Matt E. and I were close
friends in college and for a few years after until our lives diverged. He got married, I moved
to go to grad school. I haven’t actually seen Matt E. in person since Bush Sr. was President.
If not for Facebook, I likely would never have (recently) gotten back “in touch” with Matt.
By Facebook standards, “in touch” means we friended each other and said something like,
“Long time no see!” and left it at that beyond public status updates. But I have read Matt’s
status updates and posts. I was updated on his trip to Korea and saw pictures of his college-
aged daughter I have never met. And presumably, Matt has seen my posts about my latest
work-out session personal bests and has seen pictures of my five year old’s cut finger that
resulted to an ER visit, along with the other 216 Facebook friends I have.

Here’s how my epiphany went. After making my post about my new job, Matt made a short,
tongue-in-cheek comment that reminded me just how well he knew/knows me. That short
comment bridged both time and space to bring him back, if only briefly, to being one of my
closest friends. Without Facebook, that would never have happened. Without Facebook, I
might have looked him up on a trip back home. Maybe. I might have suggested that we grab
lunch. We might have spent the two hours “catching up.” “So, how’s your daughter? In college??
Really???” and that would have been that for another ten or twenty years, if we were lucky.
Facebook dispenses the small talk we engage in on a semi regular basis when we are in proximity
to each other and that brings us together and keeps us friends. Even if we don’t act on the
information posted to Facebook, e.g., “How was your trip to Korea?” (and really, Facebook
relieves us of that social requisite of feigning interest in some subjects), nonetheless, it keeps
us friends. So when Matt thinks of something short and witty to say to me that he knows only
I will get, time and space don’t get in the way of him making that comment to me. All he need
do is click on my post and type a comment. Just like that, we shared an inside joke between
two friends. So yeah, I really do have 217, give or take, bffs. Facebook, and all it’s evil
information-gathering, makes it possible for me to do so.

So, really, it’s the banks that need to come up with some other way to make our on-line banking
more secure. Using mundane facts to put up firewalls to our financial information is just a dumb
idea, even without Facebook putting it all out there.

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Just Pay The Attorney Consultation Fee: You'll Thank Me Later

noreply@blogger.com (Sheri Ann Forbes) — Wed, 29 Feb 2012 15:20:00 +0000

There is a saying among attorneys that lawyers do well in good economic times and bad. Of course, the latter hasn't been so true in the present bad economic environment, simply because collecting what is owed has been more challenging for attorneys than in the past. But for some, the adage seems to be backwards; that in good economic times, one does not need an attorney. This could not be further from he truth.

As a litigator, it never ceases to amaze me when a new client walks in my door with contract in hand asking me to defend a lawsuit that has been filed against him, and one look at the contract reveals
the clients' ignorance of the contract's contents or the obligations the client agreed to.

In good economic times, new business associates are giddy with anticipation when they venture into a new agreement together. They are in the honeymoon phase, shaking hands, back slapping, and congratulating each other on their new contractual arrangement, and pouring the champagne to celebrate how much money they are going to make. However, too often one party to a contract is handed a prewritten contract, that, though there may be some negotiation about the salient terms (e.g. how much is the monthly rent, what percentage of profits am I entitled to, etc.), they do not pay any attention to the "boiler plate" language, or do not recognize the obligations to which they are agreeing. This especially occurs where one party has more "bargaining power" than the other. Generally, it is usually the small business owner who forgoes consulting an attorney to "save money." Thus, while everyone recognizes the need for the pre-nup, love is blind and one party may be blinded as to what the pre-nup should or should not say.

Every party to a contract should consult an attorney to go over the contract with a fine toothed comb. Parties to a contract should not rely on one attorney to draw everything up, because the attorney must have allegiance to only one party. The attorney either represents Party One OR Party Two, OR the attorney represents the corporation, in which case she is not an attorney for EITHER Party One or Party Two. Small business owners must consult an attorney of their own to avoid buyer's remorse when five years later the deal goes south in an economic downturn. Here are some real life examples I have encountered over the years.

Client A recognized that forming a corporation provided a layer of protection to keep his personal
assets separate from the obligations of the business. Client A formed a corporation and entered into
a commercial lease agreement for the benefit of the business, in the business's name only, but then
signed a personal guarantee. Client A did not realize that a personal guarantee made his personal
assets available for collection for the debts of the corporation. Had Client A come to me before
signing the lease, he would have know what he was committing himself to, and could have avoided
incurring thousands of dollars in legal fees.

Client B signed a 10 year commercial lease that stated if he broke the lease and vacated the premises prior to the 10 year term, then even if the landlord re-leased the premises at exactly the same or even higher rent, Client A would still be held to the balance owed for all future lease payments on the 10 year lease. Had Client B come to me before signing the lease, he would have understood this commitment, and could have perhaps negotiated a shorter lease term with an option to renew.

Client C signed a signature page presented to her by her cousin without asking to see the full document. Nothing more need be said here.

Client D signed a purchase agreement for a condominium that stated he was obligated to pay even
if he could not secure financing from a bank. Client D did not realize this, but would have if he had
come to me before signing.

Client E signed a contract that stated any litigation arising regarding the contract was to be brought
in Florida. I had to explain he could not file suit in Nevada, but had to find an attorney in Florida to
bring suit there.

Client F was in the business of purchasing and selling real estate by borrowing money from others.
Client F put the title in other's names, but believed he "owned" the property based on an oral
agreement he had with these other people. Had he consulted me, I could have explained that
courts do not recognize oral agreements for the transfer of real property. A written agreement
could have been drafted to accomplish his goals and reasons for recording the title as he did.

A couple of things to note: Consulting an attorney before you sign a contract will not make you
"bullet proof." Even if after getting the advice of an attorney, you are able to change the terms of the
contract so they are more favorable to you (and that is not always possible depending on with whom
you are negotiating), there are always arguments that can be made in litigation to challenge even the
most "iron clad" contract. An attorney also cannot tell you what the best business decision to make
is, only you can make the business decisions. But an attorney can do two things: (1) Help you negotiate the best terms possible, and (2) explain the ramifications of the contract so you can make an informed decision before singing on the dotted line.

Noteworthy U.S. Supreme Court Decisions of 2010

noreply@blogger.com (Sheri Ann Forbes) — Fri, 17 Dec 2010 01:22:00 +0000

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010. Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days. Thus, the new police interrogation techniques will be to arrest and Mirandize a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary. This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions: "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

Finding That Elusive Legal Niche Is Not Always A Good Thing

noreply@blogger.com (Sheri Ann Forbes) — Tue, 06 Jul 2010 19:12:00 +0000

The ABA Journal reports that a young Las Vegas attorney was so successful after opening his own practice two years
out of law school, he had a "breakdown" from the sheer volume of clients. Citing the RJ, the ABA Journal reports
that Jorge Sanchez launched his own bankruptcy practice catering to Spanish-speaking clients just two years out of
law school. Apparently,Mr. Sanchez quickly became inundated with clients, and unable to keep up, struck a deal with
Las Vegas attorney Joseph Scalia.But the deal between the two attorneys soured, resulting in what the ABA termed Mr.
Sanchez's "breakdown." The ABA Journal reports that last week the Nevada Supreme Court temporarily suspended Mr.
Sanchez's license.
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Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

noreply@blogger.com (Sheri Ann Forbes) — Wed, 30 Jun 2010 00:19:00 +0000

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity. Where a plaintiff's claim under ERISA
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

noreply@blogger.com (Sheri Ann Forbes) — Tue, 29 Jun 2010 23:21:00 +0000

Last week the United States Supreme Court decided a case originating out of Nevada,

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010). An employee of Rent-A-

Center filed an employment discrimination suit in federal court, and the employer filed a

motion to compel arbitration. On Certiorari from the Ninth Circuit, the Supreme Court ruled

that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),

the courts could decide the enforceability of an arbitration clause in an employment agreement

that stated the arbitrator must decide the enforceability of the agreement as a whole,

whereas only the arbitrator could decide whether the employment agreement as a whole

was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law. The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument. Additionally, Jackson's briefs argued the entire agreement was invalid. Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument. Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide. Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause. Thus, Stevens would have affirmed the Ninth Circuit's decision.

A Copyright Primer for Photographers

noreply@blogger.com (Sheri Ann Forbes) — Fri, 18 Jun 2010 15:32:00 +0000

Under the Copyright Act of 1976, any copyrightable work (such as a photograph) created on or after January 1, 1978, is automatically copyright-protected. It is not necessary to formally register a photograph, although it is still an option. Copyright protection lasts for the life of the author plus 70 years, thanks, primarily, to lobbying efforts by the Disney company after the death of Walt Disney. A photographer has exclusive rights to the use of her photograph, with two notable exceptions.

1) All copyrights are subject to “fair use.” The term fair use can be unclear, but basically includes use as an educational tool, news commentary or parody.

2) If a photograph is a “work made for hire,” authorship and copyright belong to the employer. But for this to apply, the photographer must either be an employee, or she must be an independent contractor who has agreed in writing that the photograph is part of a collective work (such as a book) and is a “work made for hire.”

If a photographer gives her permission, another person may create a “derivative work” that revises, elaborates or modifies the photograph to create an original work, such as a drawing of a photograph. The new work must contain substantial changes from the original. The new author then has a copyright to the additions, changes or new material added to the photograph, but the original photographer retains the copyright in the original photograph.

For more detailed information, or to see how copyright laws apply to works created before 1978, go to www.copyright.gov. For information about the Nevada Camera Club, go to http://nevadacc.org.

There's An App For Bar Exam Torture

noreply@blogger.com (Sheri Ann Forbes) — Wed, 28 Apr 2010 18:01:00 +0000

It was only a matter of time that the iPhone would be used for evil. The ABA Journal reports that bar review courses are now available as an app in the iTunes store, with, sadly, the same four figure price tag as the live course. Sigh, there goes all the fun out of owning an iPhone if you are a recent law school graduate.
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Does Harry Reid Really Need to Resign?

noreply@blogger.com (Sheri Ann Forbes) — Wed, 13 Jan 2010 03:27:00 +0000

Okay, so there is no court action on which to report here. But I feel compelled to weigh in (along with scores of others) on the present flap surrounding Harry Reid's unfortunate comments about then presidential hopeful Barack Obama, memorialized for all time in the upcoming book Game Change. I won't bore the reader with quoting Reid's comments once again--if anyone really needs reminding, Google "Harry Reid" and "Game Change" and his comments will be readily found.

The most interesting thing about Reid's comments isn't that the comments were made, because people of color know that racist comments still lurk at every corner and pop up even in their own backyards. What is interesting is that Reid was actually trying to say something positive and those were the words he chose to use. Reid was trying to discuss the reasons he felt his party had a good chance of winning the presidential election. In fact, what Reid said is probably true. It probably was a lot easier for a lot of (white) Americans to cast their vote for Obama because (all things being equal) he came across as more mainstream than, say, Al Sharpton or Jesse Jackson.

But, of course, "mainstream" is not the adjective that Harry Reid used. Even if Reid was trying to make a valid point, his words betray an old-time way of thinking. His words echo a time in our history when it was common to hear racist remarks in polite company and no one batted an eye. Really, this is the way a lot of "old white men" (for lack of a better stereotyping, pigeon-holing descriptive phrase) still talk today behind closed doors and amongst themselves. Remember the Texaco scandal from the late 1990's? If not, click here. So, is Reid a racist? After all, Reid was actually trying to complement Obama rather than denigrate him.

Let's look at it from a different angle. If a Republican Senator had made the exact same comments about a Republican candidate, (hypothetically, say, RNC Chairman Michael Steele), would they sound any more or less racist? Would the public or the media be more inclined to forgive a Republican for making the same remarks? Would we chalk it up to ignorance or insensitivity, but not racism because the comments were an attempt, albiet a poor one, at a compliment of a fellow Republican who just happened to be an African-American?

Let's change the angle again. What if Reid had commented on a different hypothetical African-American candidate from the Republican party and had speculated, hypothetically, that the hypothetical candidate had little chance of winning because America was not ready for a president with dark skin color and strong dialect? Let's face it; those conversations probably took place somewhere in the Republican party when Al Sharpton and Rev. Jesse Jackson were campaigning for the Democratic nomination. Perhaps, by itself, that concept may not be objectionable because perhaps it was true. But let's not forget the specific words Reid used, and this hypothetical discussion takes on a more racist feel.

Let's make that angle even more acute. What if a Republican had made the above hypothetical comments about a hypothetical Democratic candidate? It is not as though the Republican party has the reputation of championing racial equality. Now those hypothetical comments sound even more racist. Now it sounds more like the comments made at that Texaco corporate boardroom.

I guess my point is this: Racist comments are made by all kinds of people all the time, whether the comments are about African-Americans, Asian-Americans or even Native Americans. But what makes the speaker a racist is a lot more complicated. Racism in the United States hasn't gone anywhere except underground, which only makes it harder to accurately point out the racists. Reid apologized profusely, appeared contrite and President Obama accepted his apology. So, is Harry Reid a racist? Who knows. Should he resign? Probably not.

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My Afternoon With Erwin....Chemerinsky, That Is.

noreply@blogger.com (Sheri Ann Forbes) — Mon, 11 Jan 2010 22:43:00 +0000

During my last minute marathon in December to get all my Continuing Legal Education credits before the year's end, I had the pleasure of landing in a CLE lecture given by Erwin Chemerinsky at the Boyd School of Law. Chemerinsky, is of course a reknowned law school Professor of constitutional law, and is the founding Dean of the University of California at Irvin School of Law. Chemerinsky's unique vocal cadence and his particular brand of humor always makes dry legal subjects sound more interesting. Of course, Chemerinsky's area of law is far from dry; who isn't interested in the nuances of the sexy parts of constitutional law? The CLE did not disappoint as Chemerinsky recapped the most interesting and significant U.S. Supreme Court decisions for 2009. Here are summaries of three of the Supreme Court decisions he discussed that have particular relevance to Nevada.

A Complaint Can No Longer Rely on the Notice Pleading Standard to Avoid Dismissal.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Despite being less than one year old, Ashcroft is on the verge of being the most cited case in history, according to Chemerinsky. The reason it is so important is that the circuit courts are treating Ashcroft as a new standard in pleading requirements. Notice pleading is no longer sufficient to avoid dismissal. The plaintiff must allege facts that make his claim "plausible," not just a recital of the elements, and the reviewing court may draw on common sense and its experience within the context of the allegations to determining plausibility.

Litigants May Not Contribute to the Presiding Judge's Election Campaign.
Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). Where a judge receives substantial campaign contributions from a litigant, and does not recuse herself, due process is violated. Being that Nevada elects its judges, this ruling has the potential to put a monkey wrench in the Nevada Judiciary. As was reported in depth by the Los Angeles Times back in 2005, Nevada is still a relatively small business and legal community, and it is not unheard of for litigants to contribute to a judge's campaign, even to the judge before which they are appearing. Caperton may change that practice. Even better, Nevada may finally adopt another system for choosing judges.

Certiorari Granted To Decide If Second Amendment Applies to State Governments.
McDonald v. City of Chicago, 129 S. Ct. ___ (2009). According to Chemerinsky, between the years 1791 - 2008, not one law was ever invalidated as violating the Second Amendment. Last year the Supreme Court invalidated a gun control law in Washington DC as barred by the Second Amendment. Now the Court will decide if the Second Amendment applies to state and local government.

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Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

noreply@blogger.com (Sheri Ann Forbes) — Wed, 21 Oct 2009 19:29:00 +0000

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.

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US Supreme Court Vacates Seventh Circuit's Opinion for Failure to Consider All of Death Row Inmate's Arguments

noreply@blogger.com (Sheri Ann Forbes) — Wed, 21 Oct 2009 18:45:00 +0000

The U.S. Supreme Court granted certiorari in Corcoran v. Indiana, 558 U.S. __ (2009), to death row
inmate Joseph Corcoran in his appeal from the Seventh Circuit's reinstatement of his death sentence.
Corcoran's habeas corpus Sixth Amendment challenge to his death sentence was granted by the
district court but overturned by the Seventh Circuit.

In granting Corcoran's Habeas Corpus Petition, the district court stated Corcoran's other arguments
against his death sentence were rendered moot. On appeal by Indiana, the Seventh Circuit failed to
provide any explanation for disposing of Corcoran's other arguments, which included claims that the
trial court committed various errors at sentencing, Indiana's capital sentence statute is unconsti-
tutional, prosecutorial misconduct at sentencing, and that Corcoran should not be put to death
because he is mentally ill. The Supreme Court concluded the Seventh Circuit erred by not considering
or explaining its disposal of Corcoran's other arguments, and remanded the case for resentencing.
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US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

noreply@blogger.com (Sheri Ann Forbes) — Wed, 21 Oct 2009 17:23:00 +0000

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."
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What Do Lawyers Know About the Law Anyway?

noreply@blogger.com (Sheri Ann Forbes) — Sat, 17 Oct 2009 20:41:00 +0000

Besides being an attorney, I am an avid amateur photographer and a member of the Nevada Camera Club. Whilst trolling the internet for a sample model release to use when I take pictures of interesting strangers, I came across a web article by Dan Heller, who advises that photographers should not consult a lawyer when trying to compose a model release to suit their purposes and avoid being sued. Being an attorney, you can imagine how I feel about this advice. Heller gives three flawed reasons for his advice.

As Heller's first reason, he advises that model releases fall under the specialized scope of the First Amendment. Heller writes,

There is no government mandate about when a release is required. That is, the government does not track down violators. It is strictly a matter of civil law that must be enforced by individuals themselves. People have rights to privacy and publicity, but the First Amendment of the US Constitution also grants freedom of expression. It is this mixture of rights that often run counter to one another, so what a model release does is remove that conflict.

This is entirely misleading. The First Amendment guards against government intrusion on one's free speech, not action by private parties. Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Click here to obtain the full text of the Supreme Court case Rendell-Baker v. Kohn. Wikipedia gives a nice overview of U.S. First Amendment protections. Private actions such as libel and slander are tort actions between private parties that do not ordinarily invoke the First Amendment except in specific areas of law that require state enforcement, such as the Noerr-Pennington Doctrine or SLAPP suits.

Heller's next two reasons are that there is no clear answer as to what kind of model release a photographer needs, and that lawyers give bad business advice. While he is correct that there is no clear answer unless a photographer wants a release for a very specific situation (for that matter, there is no clear answer to any legal question without knowing the specific circumstance), Heller makes the erroneous conclusion that lawyers give bad business advice. But business decisions are generally the purview of the client/business owner. What lawyers do do is give legal advice. Any lawyer worth her salt will a) not give advice in an unfamiliar area of law; b) give thorough advice (i.e. all possible legal scenarios) as to what the state of the law in the client's jurisdiction is, based on the circumstances enumerated by the client; and c) not tell the client what to do. An attorney needs to provide all relevant legal information to a client so the client can make an informed decision about how the client wants to proceed based on sound business reasons (i.e. the chances of being sued vs. the cost of preventing suit). So, perhaps Heller has consulted only shady attorneys in the past whose only interests were in "running up the meter."

Notwithstanding the above, Heller does a fair job of explaining the nuances of when a model release might or might not be necessary. But then again, Heller is not an attorney, and he fails to emphasize that he is relating general law and not a specific jurisdiction. Be careful of taking his advice. But don't take my word for it; click here for an attorney who is versed in intellectual property, copyright and entertainment law.
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Inadequate Case Citation Results in $100 Fine for Attorney

noreply@blogger.com (Sheri Ann Forbes) — Fri, 16 Oct 2009 18:55:00 +0000

The ABA Journal reports that an attorney in Wisconsin has been fined $100 for providing the Wisconsin Court of Appeals with an inadequate citation to an unpublished case. The attorney referenced the case in a footnote to support his argument for liquidated damages in a vending machine case, however got the case caption entirely wrong (citing instead to a misrepresentation case between newlyweds and a photographer) and provided a cite to nothing more than a docket number without so indicating. The Court expressed its frustration in the unpublished opinion imposing the fine. The pertinent portion of the opinion can be found at Legal Blog Watch.
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U.S. Supreme Court Grants Certiorari to Hear Appeal of Enron CEO's Convictions

noreply@blogger.com (Sheri Ann Forbes) — Tue, 13 Oct 2009 22:46:00 +0000

On October 13, 2009, the United States Supreme Court granted Certiorari to hear former Enron CEO Jeffrey K. Skilliings' appeal from his conviction of 19 criminal charges stemming from his role in the 2001 collapse of the Fortune 500 company Enron. Skilling was convicted in 2006 and sentenced to 24 years 4 months in federal prison.

Despite Skilling's repeated requests for a change of venue, a Houston jury convicted Skilling in 2006 of insider trading, conspiracy, five counts of making false statements to auditors and twelve counts of securities fraud. Skilling's appeal to the Fifth Circuit was denied. Skilling appealed to the Supreme Court and, according to NPR news reports, is claiming that the lower court erred by not granting a change of venue amidst the wide publicity his trial received in Houston, where Enron was located.

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We Never Really Leave School, Do We?

noreply@blogger.com (Sheri Ann Forbes) — Tue, 29 Sep 2009 21:35:00 +0000

My five-year-old started kindergarten this month. I was mortified in the first week when, after getting her to school two or three minutes after the late bell had rung two days in a row, we were both chastized by the principal on each of those two days. I thought my days of getting in trouble with the principal were over once I graduated high school, but apparently, I was wrong.

I feel much better now after reading an article in the ABA Weekly Law Journal Newsletter I received last week. A federal judge in the Middle District of Florida apparently became fed up with an attorney's sloppy brief writing and took it upon himself to mark up the attorney's brief with red ink. He then ordered the attorney to file a Notice of Complaince certifying that he had personally delivered the marked up motion to his client.

Writing skills among the bar have become quite deplorable. We are, after all, professional writers and should pride ourselves in producing quality writing. While the Florida attorney's work was a bit sloppy, his is not the worst I have seen from opposing counsel. More than once I have had to attempt to explain to the court in my brief what I believed opposing counsel's arguments were before even attempting to refute their arguments, simply because their brief was so unintelligible. I once had to respond to a brief with a sentence that was half a page long. And that is not hyperbole; it was literally half a page in length before encountering even a comma, much less a period.

The practice of law would improve immensely if counsel would take the time to pick up a style manual once in a while, or have another set of eyes edit for typos or even just for comprehensibility. Counsel does not serve her clients' best interests if the judge can't understand the arguments in the written motion. We all understand that deadlines and time crunches can make it impossible to produce the perfect prose to get our points across, but typos aside, we should all strive to tell our clients' stories in a way the judge will understand. We may not be in school anymore, but our written work is still going to be judged and evaluated. So, even if your motion doesn't come back with a grade, dripping in red ink with a requirement that your parents sign it your client sees it, make sure you proof and edit your written work before filing it with the court. And I vow to do better at getting my Kindergartener to school on time.

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Nevada Supreme Court Denies OJ's Request for Bail Pending Appeal

noreply@blogger.com (Sheri Ann Forbes) — Sat, 26 Sep 2009 15:14:00 +0000

September 4, 2009

OJ Simpson will remain incarcerated while his appeal is pending. In a two-page Order, the Court concluded that Simpson had not met his "heavy burden" to convince the Court he is not a flight risk in light of the "serious, nonprobationable, violent offenses" that Simpson was aquitted of.

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Nevada High Court Hears Oral Argument on OJ's Request for Bail Pending Appeal

noreply@blogger.com (Sheri Ann Forbes) — Mon, 03 Aug 2009 23:58:00 +0000

Today, the Nevada Supreme Court heard oral argument from Yale Galanter, counsel for OJ Simpson, in Mr. Simpson's request for bail pending his appeal of twelve guilty verdicts, including armed robbery and kidnapping. The Nevada convictions stemmed from the well publicized events of September 13, 2007, in which Simpson and others accompanying him forced their way into a Palace Station hotel room, carrying guns and demanding the occupants turn over OJ Simpson football memorabilia. On December 5, 2008, the trial court sentenced Simpson to 15 years to life with the possibility of parole in six years.

Citing the factors in Bergna v. State, 120 Nev. __ (2004), Mr. Galanter argued before the three justice panel that Simpson is not a flight risk because Simpson's noteriety makes it impossible for him to flee or hide without intense media scrutiny. (One can only speculate that Mr. Galanter had in mind Mr. Simpson's prior failed attempt to flee arrest in 1994.) Galanter also argued that the errors by the trial judge in Simpson's trial were "so egregious and so outrageous" that there is a high likelihood that Simpson's convictions will be overturned on appeal. Of particular note, Galanter argued in rebuttal that the trial court's failure to instruct the jury on specific versus general intent rendered the verdicts invalid.

Justice Siatta expressed concern about the public policy considerations regarding granting Simpson's bail request and the precedent it could set among all convicted appellants seeking bail pending appeal. David Rogers, counsel for the State of Nevada, reiterated Justice Siatta's concerns and emphasized the high burden placed on Simpson under Bergna given the violent nature of the crimes and the significant sentence imposed. Mr. Rogers also opined that nothing would prevent Simpson from taking "a short boat ride" from Florida to another country to escape justice.

Rogers indicated the State's Response Brief to Simpson's underlying appeal would be filed sometime within two weeks.

Ninth Circuit Reverses Las Vegas Judge's Grant of Rule 50(b) Motion

noreply@blogger.com (Sheri Ann Forbes) — Thu, 05 Mar 2009 22:08:00 +0000

On March 3, 2009, the Ninth Circuit published the opinion, Tortu v. LVMPD, reversing a decision of the U.S. District Court District of Nevada, Hon. Robert C. Jones presiding. The plaintiff sued the Las Vegas Metro Police Dept. and several Metro Police officers for unreasonable force when plaintiff was arrested at McCarren International Airport. The jury found in favor of two of the officers and found a third officer, Engle, liable to the plaintiff. Engle filed a Rule 50(b) motion for judgment as a matter of law and, in the alternative, a Rule 59 motion for a new trial. The court granted both motions.

The Ninth Circuit reversed, stating that Engle was not entitled to file a Rule 50(b) motion without first having filed a Rule 50(a) motion prior to submission of the case to the jury. The Court cited the plain language of the Rule and the 1991 advisory committee notes stating, "This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of evidence."

The Court also reversed the district court's grant of Engle's Rule 59 motion for a new trial. The Court concluded that the district court abused its discretion because the weight of evidence was not against the jury's verdict. Contrary to the district court's reasoning that finding for the other two officers conflicted with the jury's finding for plaintiff against Engle, the Ninth Circuit conluded only that plaintiff had not met his burden of showing excessive force by the other two officers, particularly where separate evidence as to Officer Engle was given. Moreover, the district court was not entitled to substitute its evaluation of the evidence for the jury's, simply because it would have arrived at a different verdict. Thus, the jury's verdict was not irreconcilable, and Engle could have been found liable while the other two officers were not found liable.
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