Saturday, March 30, 2013

A large law firm's internal emails boasting excessive hourly billing are discovered during a billing dispute

This was posted from ABA Journal Law News
March 25, 2013 by Martha Neil

Retained by energy entrepreneur Adam H. Victor in April 2010 to prepare the Chapter 11 filing for one of his companies, DLA Piper ran up a very large bill.

 Victor refused to pay it, so DLA Piper law firm sued him for $675,000. Victor defended aggressively, not only filing a counterclaim over what he alleged was a “sweeping practice of overbilling" on the megafirm's part but discovering some 250,000 pages of documents, according to the DealBook page of the New York Times.

Among the documents were copies of email in which lawyers, a number of whom no longer work for DLA Piper, lightheartedly discuss the rapidly growing bill for Victor's company, Project Orange Associates, which operated a Syracuse, N.Y., power plant, the article recounts.
The emails are included in a copy of an affidavit filed Thursday in the Manhattan Supreme Court case, to which a link is provided by the New York Times (reg. req.).

“I hear we are already 200k over our estimate—that’s Team DLA Piper!” wrote then-DLA Piper partner Erich P. Eisenegger in one email.

After another lawyer responded, noting that an attorney colleague, whose first name is Vince, had been added to the group working on the bankruptcy matter, then-DLA Piper attorney Christopher Thomson added his thoughts: “Now Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode," wrote Thomson. “That bill shall know no limits.”
Eisenegger, who now works at another law firm, did not respond to a request for comment from the Times and Thomson, who works for the government, declined to comment.

A spokesman for DLA Piper told the newspaper initially that the law firm doesn't comment on pending litigation. However, they later released a statement saying that "the emails were in fact an offensive and inexcusable effort at humor, but in no way reflect actual excessive billing."

Victor's lawyer, Larry Hutcher of Davidoff Hutcher & Citron, amended the counterclaim against DLA Piper last week, adding a fraud claim and a request for $22.5 million in punitive damages.

The above illustrates why clients, large and small, are increasingly insisting on flat rate retainer agreements and on "value-based" billing.

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Saturday, March 23, 2013

Fundamental error in standard jury instructions, dismissal of complaints for failure to state claims for relief, and espresso-and-peppercorn-rubbed Bison with fingerling potatoes and sauteed sage

Criminal law -- Attempted second degree murder -- Jury instructions -- Trial court committed fundamental error by giving standard jury instruction on attempted voluntary manslaughter as lesser included offense of attempted second degree murder
JEROME J. FERRIER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Battery on law enforcement officer -- Trespass -- Evidence -- Argument -- Trial court erred in denying motion in limine to preclude prosecutor from highlighting defendant's alleged use of racial slurs against law enforcement officer where defendant's use of derogatory terms did not tend to prove any element of offenses charged -- State cannot show that error was harmless where derogatory terms were highlighted in opening statements, during witness testimony, and in closing argument -- Although defendant was acquitted on charge of battery on law enforcement officer, state cannot prove beyond reasonable doubt that inflammatory references and prosecutorial argument centered on racial slurs did not improperly influence jury on trespass charge
JULIANN GUERRERO, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Health care fraud -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- Non-custodial sentence to probation for “time served” while on pre-trial release awaiting sentence for five-year $3 million health care fraud scheme, based on defendant's full restitution payment, his performance of community service, and rising costs of incarceration, was substantively unreasonable where sentence carried guidelines range of 57 to 71 months and sentence does not reflect seriousness and extent of crime, promote respect for law, provide just punishment, or adequately deter other similarly inclined health care providers -- Sentence fails to achieve the important goal of general deterrence when sentencing in a white-collar crime prosecution -- One of primary objectives of the sentence in a health care fraud prosecution is to send a message to other health care providers that billing fraud is a serious crime that carries with it a correspondingly serious punishment, and defendant's sentence sends the opposite message -- Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status -- Sentence was procedurally reasonable where advisory guidelines range was calculated accurately and district court cited several Section 3553(a) factors as basis for variance below Guidelines range
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RICK A. KUHLMAN, Defendant - Appellee. 11th Circuit.

Torts -- Maritime law -- Dismissal of complaint -- Consideration of matters outside four corners of complaint -- Where defendant/employer filed motion to dismiss plaintiff/employee's complaint alleging Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat on ground that employment contract contained forum selection clause requiring plaintiff to file action in federal court, trial court erred in denying motion to dismiss on ground that it could not look to copy of employment contract attached to motion to dismiss in ruling on motion -- Although, as a general rule, trial court is limited to allegations within four corners of complaint when considering motion to dismiss, there are exceptions to this general rule -- Court could properly consider copy of employment contract although it was not attached to complaint
STEINER TRANSOCEAN LIMITED, Appellant, vs. MILENA EFREMOVA, Appellee. 3rd District.

Torts -- Premises liability -- Trip and fall on allegedly unsafe walkway -- Error to enter default judgment against defendant that was not the owner of the property on date when plaintiff's injury occurred -- Default judgment may not be entered against defendant on a complaint which wholly fails to state a cause of action against the defendant -- Because complaint failed to state a claim against defendant, trial court erred in failing to grant defendant's motion to vacate judgment as void
MAUNA LOA INVESTMENTS, LLC, Appellant, v. ANAMARIA SANTIAGO, Appellee. 3rd District.

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Wednesday, March 13, 2013

The Supreme Judicial Court of Massachusetts rules that Massachusetts stores can't require your Zip code to complete a credit-card transaction

In Tyler v. Michaels Stores, Inc., the Supreme Judicial Court of Massachusetts ruled on March 11, 2013 that Michaels, an arts and craft  chain stores, violated Massachusetts consumer-privacy law when it used a woman's Zip code on her credit-card transaction to figure out where she lived and start spamming her with their ads. A US District Court judge in Boston originally ruled that Michael's was correct and Massachusetts law was meant only to prevent identity theft, not protect the privacy of consumers. But he agreed to certify the question to the Supreme Judicial Court - Massachusett's highest court - for its opinion on the questions raised under Massachusetts law.  Massachusett's highest court ruled that Section 105 says nothing about identity fraud and the original bill that led to the law specifically mentioned, in all capital letters, "CONSUMER PRIVACY IN COMMERCIAL TRANSACTIONS."

The Court then addressed the question of whether a Zip code constituted "personal identification information" that merchants aren't supposed to make consumers provide, since the law refers to "a credit card holder's address or telephone number" but doesn't mention Zip codes specifically.  The court ruled that modern data-mining technology meant the answer was "yes":
[B]ecause, according to (and accepting for present purposes) the allegations of [Tyler's class action] complaint, a consumer's zip code, when combined with the consumer's name, provides the merchant with enough information to identify through publicly available databases the consumer's address or telephone number, the very information [the state law] expressly identifies as personal identification information. In other words, to conclude in those circumstances that zip codes are not 'personal identification information' under the statute would render hollow the statute's explicit prohibition on the collection of customer addresses and telephone numbers, and undermine the statutory purpose of consumer protection.

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Sunday, March 3, 2013

Child custody and relocation, contempt, slip and fall, and "Margarrita" omelette with fresh purple basil, grape tomatoes, and goat cheese


Dissolution of marriage -- Child custody -- Relocation of children -- Trial court abused its discretion by permitting mother to relocate with child to a different county without making oral or written findings, based on statutory factors involved in relocation decisions -- Child support -- Finding that mother was unemployed because of an agreement between the parties that she would not work until child was old enough to go to school full time was not supported by evidence -- However, trial court was not required to impute income to mother where evidence supported conclusion that mother was not voluntarily unemployed -- Life insurance -- Security for child support -- Requirement that husband obtain two million dollars in life insurance to cover monetary needs of child in the event husband became permanently disabled, retired, or passed away was unsupported by evidence as to cost and availability of insurance or need for insurance in that amount to secure child support obligation -- Moreover, there is no authority to order father to include insurance for disability and retirement protection for child

EDWARD ECKERT, Appellant, v. YVONNE ECKERT, Appellee. 4th District.

Dissolution of marriage -- Contempt -- Error to hold former wife in contempt because she prevented former husband from having normal and usual routine contact with parties' sons where there was no court order requiring former wife to provide former husband with normal and usual routine contact -- Error to require former wife to pay attorney's fees of former husband incurred in contempt proceedings without a determination of need and ability to pay
SUSAN HARDMAN, Former Wife, Appellant, v. HARRY KOSLOWSKI, Former Husband, Appellee. 1st District.

Mortgage foreclosure -- Standing -- Error to enter summary judgment of foreclosure where plaintiff failed to establish standing to foreclose and failed to refute defendant's affirmative defense of failure to establish standing -- Plaintiff did not establish standing where assignment of mortgage to plaintiff from initial lender did not purport to assign mortgage note, and original note filed with court did not include a special endorsement to plaintiff or a blank endorsement -- Possession of original note by plaintiff was insufficient to establish standing where note was not a bearer instrument and note was not endorsed in blank or otherwise assigned to plaintiff

Torts -- Cruise lines -- Slip and fall on cruise ship -- New trial -- Attorney misconduct -- Trial court erred in awarding plaintiff a new trial based on defense counsel's misconduct and improper argument where misconduct was unpreserved and insufficient to meet standard for fundamental error -- Although defense counsel's insinuation that plaintiff's counsel had taken advantage of friendship with physician who treated plaintiff under a letter of protection to script the physician's testimony at trial was improper, there was no showing that defense counsel's conduct and comments were harmful or that the conduct was incurable
CARNIVAL CORPORATION, a foreign corporation, Appellant, v. CHERYL JIMENEZ, Appellee. 2nd District.

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