Monday, May 20, 2013

Fraud on the court, Engle-class decision, Jordanian law, and sage-rubbed roasted free range chicken, tomato-rosemary rissoto

Bankruptcy -- Voidable transfers -- Fraud -- Cash dividend transferred to shareholder in amount equal to shareholder's income tax attributable to his share of debtor's S-corporation taxable income was not avoidable -- Debtor received reasonably equivalent value in form of S-corporation election benefit obtained under shareholders agreement -- Shareholders agreement that requested shareholders' consent to pay a share of debtor's taxes if debtor ever elected to be treated as an S-corporation benefitted debtor because it secured shareholders' consent for debtor to shift to S-corporation status whenever it determined it was advantageous to do so -- Moreover, debtor enjoyed added benefit of freeing up cash that otherwise would have been dedicated to paying its tax liability -- Although agreement obligated debtor to pay out a dividend in an amount sufficient for shareholder to pay income tax attributable to the portion of the corporation's income included in shareholder's income in the preceding year, debtor gained added benefit of being able to delay payment to shareholders until a year after shareholders had incurred debtor's tax liability

Civil rights -- Americans with Disabilities Act -- Employment -- Medical examination -- Psychiatric/psychological fitness-for-duty evaluation of employee conducted at behest of employer was valid under Section 12112(d)(4)(A) of Americans with Disabilities Act, because evaluation was both “job related and consistent with business necessity” -- Statute protects non-disabled employees -- Evaluation was job-related and consistent with business necessity where employer had a reasonable, objective concern about employee's mental state, which affected job performance and potentially threatened the safety of other employees -- Evaluation was job-related because an employee's ability to handle reasonably necessary stress and work reasonably well with others are essential functions of any position.

Paternity -- Sperm donors -- Trial court erred in granting parental rights to biological father with respect to child who was conceived through artificial insemination in “do-it-yourself,” non-clinical, conditions, where the sperm donor was the brother of one of the same-sex partners who were to parent the child according to unwritten agreement, but whose relationship had later soured resulting in the biological mother's denying the former partner access to the child -- Statute denying parental rights to sperm donors still applies where donor's identity is known to the biological mother and where insemination is artificial but occurs outside the laboratory.

Public employees -- Whistle blowers -- Trial court improperly entered summary judgment in favor of defendant city in action by terminated fire chief because genuine issues of material fact remain for resolution -- Where fire chief had changed his recommendation about supporting a merger of city fire services with another governmental agency, preferring to proceed with caution, after which the mayor suspended him for failure to follow the direction to move forward with the consolidation and, after meeting with commissioners, effecting the chief's termination, differing versions as the motivation for the termination exist

Torts -- Fraud -- Contracts -- Violations of Jordanian law -- Dispute arising out of agreements, acts, and communications relating to U.S. government procurement contracts -- Trial court did not abuse its discretion in excluding expert testimony concerning whether there is condition precedent, under Jordanian law, that notice be given to certain Jordanian ministry prior to plaintiff's instituting suit where condition precedent claim was not raised as affirmative defense prior to trial and was addressed for first time mid-trial -- Moreover, all jury instructions on Jordanian law had been extensively negotiated and were presented to court by stipulation, thereby removing any battle of experts on Jordanian law, and defendants failed to comply with disclosure requirements of pre-trial order -- Damages -- Lost profits -- New trial on damages not required because jury's damage award did not distinguish between fraud claims and Jordanian law claims where parties stipulated to verdict form and verdict was for precise amount sought, regardless of count -- Error to deny prejudgment interest where, even without verdict form breakdown, it was clear that total sum for lost profits was, at a minimum, fixed as of the end of last contract between the parties

Torts -- Medical malpractice -- Proximate cause -- Action alleging negligent treatment of plaintiff's bedsore -- Error to deny defendants' motion for directed verdict on proximate cause grounds where there was no evidence that defendants' negligence more likely than not caused injury to plaintiff

Torts -- Premises liability -- Slip and fall -- Discovery -- Surveillance video -- Defendant is not entitled to reconsideration of order requiring defendant to produce to plaintiff, prior to her deposition, a copy of surveillance video which captured plaintiff's fall on defendant's premises -- Defendant's failure to confer with opposing counsel is by itself grounds to deny motion -- Additionally, motion for limited reconsideration does nothing other than reiterate arguments previously made in response in opposition to plaintiff's motion for protective order and/or motion to compel.

Tobacco -- Engle class membership -- Trial court erred in directing verdict in favor of plaintiff on issue of membership in Engle class, by removing the “addiction causation” requirement from the Engle class definition -- Engle class membership requires production of evidence that decedent's addiction was the legal cause of her COPD, and defendant introduced evidence sufficient to create jury issue on whether decedent's addiction caused her COPD -- Trial court erroneously instructed jury that issue for its determination was whether decedent's smoking of cigarettes containing nicotine was the legal cause of her death

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Thursday, May 16, 2013

Criminal charges dropped against Florida teen iniitially charged with adult felony after she mixed household chemicals in water bottle that exploded on school grounds.

"All criminal charges have been dropped against a Florida teen who initially faced an adult felony case after she mixed household chemicals in a water bottle and it exploded on school grounds.
Kiera Wilmot, 16, has said the incident was a failed effort to develop possible science project. But even though she hadn't been in trouble before, she was arrested on school grounds and sent to an alternative school. Her mother calls the April 22 incident a nightmare and, although she is relieved her daughter will no longer face a criminal case, she is worried it will put a shadow on the girl's hitherto unblemished record, the Orlando Sentinel reports.
School officials could still impose administrative sanctions, but have said they will take the dropped criminal case into account as a positive factor for the 11th grader when they determine what, if any, further discipline should ensue.
Marie Wilmot tells the newspaper her daughter made a mistake and deserved a reasonable punishment, such as a few days' suspension. But she wants the teen back at Bartow High School, and calls the "zero tolerance" approach that forced her to hire a lawyer to defend a criminal case an overreaction.
"The whole process was very traumatic," Wilmot said. "It look an emotional toll." "

Originally posted by Martha Neil, May 16, 2013, ABA Jouranl Law News Now

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