The Law Planet Blog

Wow the jury got it wrong! Can the State get a do over? That is now the big question in the Casey Anthony case. The answer is no.

Our Bill of Rights says a person prosecuted for any crime can only be tried once. This is referred to the law against Double Jeopardy. Most people have only heard this term from a popular game show. It specifically prohibits the government from repeatedly bringing a citizen to trial on the same or similar charges. This means the government has but one chance to put their best case forward.

No dry runs or practice trials are allowed. Further, if the Government loses, they do not have a right to appeal. This prevents retrials after a not guilty verdict as well. Why then does a guilty person have a right to appeal? Our founding Fathers were very sensitive to the abuses of government power from English courts. They wanted to make sure that history would not repeat itself in our new country.

Continue reading "Double Jeopardy and the Casey Anthony Verdict" »

For all you Fox News fans, Rupert Murdoch and company are at it again. This time his British “News of the World” publication is under fire for hacking the cell phones of celebrities, murder victims and other crime victims to gather voice mail, text and e-mail messages all to gain a leg up on the competition.

When Murdoch and his son, James Murdoch, first became aware of the situation, they ignored it. Only after the British government threatened to become involved did the publication admit fault and close down. The “news” paper is Britain’s most widely read tabloid and it is believed to have hacked over four thousand (that’s right) victims. Apparently, this seems to be standard operating procedure in England.

Continue reading "Scandal shuts down News of the World after 168 yrs " »

Not since the O.J. Simpson verdict has a court case grabbed such world wide attention as that of Casey Anthony. The verdict is in, "Not Guilty on Murder Charges" and everyone has an opinion. Hollywood talking heads and "the beautiful people" are Tweeting about the gross miscarriage of justice.

The media and pundits had her convicted before jury selection had even started. Now that they are wrong, they blame the legal system and the jurors themselves. "How could this happen? A little girl is dead! How could this be?"

Well folks it happened. And it happened because the State couldn't prove it's case "beyond a reasonable doubt", the legal standard in THIS country. The jury sat through this case and heard all the evidence. Not Nancy Grace, not Aston Kutcher and certainly not Kim Kardashian!

Twelve civilians from our community were sworn to follow the law and they did just that. The
State proved the Defendant was a liar and the jury convicted her of those charges. There simply was no evidence to connect her to the tragic death of Caylee, not enough to prove the Defendant guilty "beyond a reasonable doubt".

Surely something bad happened but by whom? The Mom? The Dad? The Brother? The Defendant? Someone else? Who knows and we will never know and therein lies the reasonable doubt.

Like it or not, the system worked. As a former Supreme Court Justice once said, "better to free 100 guilty men, than convict one innocent one".

That is the way our legal system works. It was created by a group of our founding fathers who, by all accounts, were much smarter than we are.

Now that I have swept up the remnants of the firecrackers, sparklers and smoke bombs, the crepe paper to decorate the kids’ bikes for the parade have been put away, I reflect on the meaning of July 4th, as an American. Nearly 250 years ago a group of very smart, brave men hatched this wonderful idea now known as democracy. And through great personal sacrifice, put that plan into action.

Our Independence was gained from an oppressive government 235 years ago. And today, the notion of freedom rings loud and clear from our streets to our mountain tops. This thing known as democracy is not an easy thing-it takes hard work, tolerance and sacrifice. How difficult is it for any true red blooded American to stand by and watch our flag get burned in the name of free speech? How tough is it for us to watch our friends and loved ones go to war to protect those very freedoms that many of us take for granted?

Our country is facing some of its biggest challenges now and will for some time to come. But we, as Americans, will and surely must persevere. It is our nature, in the very fiber of our souls, to be free and fight to stay that way. So, while I finish cleaning up the festivities from the celebration of our Independence; I tip my hat, say a prayer and shed a tear for all of those currently and before me that have sacrificed so much. Many gave the ultimate sacrifice, for our freedom that we have; and often take for granted. Lasting memories and cherished freedom that can be passed on to our children and future generations to come.

It didn't take long for the Rick "Let's get back to work" Scott to show his real colors. Yesterday he rolled out his budget which calls for the slashing of monies earmarked for education, justice and the department of corrections.

Along the way, he plans on firing nearly nine thousand employees, many of whom are teachers. In exchange, he fattened the budget for the Governor's office and lowered taxes for big business. And nobody saw this coming?????

The bright side is that we will have dumber criminals while we change the State's name from Florida to Allstate.

Click on the following link to read more on What Gov. Scott's proposed budget cuts means for education in Florida.

What an honor it is to live in the United States. I am so proud and privileged to have the right to live here. Today is Constitution Day. A day when we honor the living document which is the final arbiter of the law of the land here in our United States of America. When I think of the Constitution my first thought is really not to the underlying document. I do not think so much about our tripartite government system of checks and balances. As important as those institutions and controls are to our very freedom, the first thing I think about when mentioning the Constitution is the Bill of Rights.

I think about Freedom of Speech and Freedom of Religion. It is probably just my own juvenile understanding of the depth of the many parts of this fantastic document that makes me focus on the most obvious of Rights, but hey, that's where I focus. So be it. And to be honest, those freedoms are being attacked as we speak and I can't help but feel like I am a part of the attack. I do not want the Cordoba House Mosque built near ground zero in New York. I had a knee jerk reaction against it and I have intellectualized my emotions and tried hard to be on the "side" of our Constitution and give these allegedly "peaceful" Muslims the right to worship and congregate lawfully in whatever commercial spots are properly zoned for that activity. I want to be a "Principled" American. Our President seems to stand firmly on this academic ground. I am not so cerebral as to be able to separate my emotional reaction to what I feel is right and wrong from my intellectual processing of rights and duties. There is a disconnect that I could not get over.

Continue reading "Constitution Day" »

Did you know that 30% of all scam victims are over the age of 65? That frightening statistic is a call to action for 3,000 Florida senior citizens who volunteer in the Senior vs. Crimes Project. The Project is administered by the Florida Attorney General’s office. Their mission is to assist seniors who have been victimized by scams, identity theft, and unethical businesses and individuals.

The program began in 1989 as a task force on crime against the elderly. It has grown to include 30 offices statewide. Seniors vs. Crime has been responsible for recovering over $8 million for Florida seniors who were the victims of con artists. While they do not provide legal services or legal representation, their free service is offered to assist all consumers, regardless of age.

If you feel that you or a loved one has been the victim of a scam, you can contact one of the project’s 3,000 volunteers at an office near you.

Florida Attorney General
Fraud help line: (866) 966-7226

Seniors vs. Crime,
Statewide hot-line: (800) 203-3099

Local Seniors vs. Crime Offices

Continue reading "Scammers target Seniors in fraud schemes - Seniors vs. Crimes Project - Helps seniors fight back" »

The Public Investors Arbitration Bar Association has proposed a rule directly to the SEC that would effectively eliminate the “industry” arbitrator from the arbitration panel. The paranoia exhibited by this organization, without any true empirical basis, knows no bounds.

As a lawyer who represents both industry and investor clients, I have a unique position to assess this proposal (although I am not alone in representing both types of parties.) PIABA remains critical of the presence of a person experienced in the industry on an arbitration panel. Personally, having experienced arbitrations where the industry panelist was marginally affiliated and the public arbitrators knew next to nothing about securities, I suggest that we should all be afraid of PIABA’s proposal.

PIABA continually refers to the industry panelist as an advocate for the industry. There is no basis for this. The organization cites flawed research that states that claimants in arbitration win less than they “should.” But how does PIABA know that these cases would have fared better either in court or with an all-public arbitration panel? It doesn’t. I have stated before and I will say it again, that cases that go to hearing tend to be self-selecting. Those cases which can’t settle because the Claimant wants too much or the Respondent won’t pay enough are the ones that go to hearing. Therefore, these are the more difficult, or bad, cases depending on one’s point of view.

I have been involved in a number of cases where it was obvious that the industry panelist did not agree with the Respondent’s position. There is no evidence that the industry panelist serves as a patsy for the brokerage firms. Just because a flawed analysis finds that the “win rate” is down, does not mean that the system is bad. In arbitration, each case stands on its own. Two cases cannot be compared as every person’s situation is different.

PIABA has come up with some good ideas in the past. This is not one of them.

Rule Change Petition presented to the SEC from the Public Investors Arbitration Bar Association

Several years ago, my kids asked me what I “do”. They see the great computers, the phones, and all the other accoutrements of a successful law practice, but they wondered if I did anything other than surf the Internet during the day.

I told them that I try to help people with their problems. I reminded them of some of my more notorious cases, including one case where we recovered millions of dollars for a client who had lost virtually everything at the hands of a scam artist.

I was reminded of that conversation when I received something in the mail today. I recently represented a client who had never had a lawyer before. He was a stockbroker whose client had named him and his former employer in an arbitration. I was hired to protect him and be his advocate.

We met the day before the arbitration because he was in Orlando and I was in Jupiter. We talked about the case and a lot of other things. One thing he told me was that he never finished college. We won the case.

While I was driving home from the hearing, I talked to the client. I told him about how much I enjoyed working with him and he told me how glad he was to have me in his corner. He said that he had thought about going to law school. I asked him “why not go now?” Next thing I knew, he told me that he had decided to go back to college and get his degree. When I received the arbitration decision and called him, he was at the college getting registered.

One of the projects that he had to complete was an interview of someone who inspired him. He chose me. I was flattered (which is not easy). We talked for a while on the phone and he learned about my background, philosophy of practice and feelings about life and law school. I told him that I love being a lawyer. And he is one of the reasons why.

He sent me a copy of what he wrote for the class. It was very well written (despite its topic), he got a well-deserved “A” and it made me think, again, about why I love being a lawyer. It’s clients like him.

Congratulations Eddie. I look forward to your graduation

Today is the last day of The Law Planet as it has existed for the last two years.

Starting March 30, I will be an attorney with LaBovick Law Group, P.A. starting up that firm's Financial Services Department.

I will continue posting on the new and improved Law Planet.

So, I'm on the move this weekend. See you at www.Labovick.com.

Dilbert is always on top of things. I read this panel this morning and it made me laugh.

Scott Adams, the strip's creator, is a genius.

That's the fiduciary view from The Law Planet, Jupiter, Florida.

The Eleventh Circuit Court of Appeals, which covers Florida, is a "manifest disregard" circuit. In Montes v. Shearson Lehman Hutton, the court found that a closing argument in an NASD arbitration that acknowledged the law, but encouraged the arbitrators to ignore it, was evidence of manifest disregard of the law. The arbitrators agreed and Shearson won the case.

On a motion to vacate, ultimately decided by the 11th Circuit, Shearson lost. The court found that the test is that the arbitrators were aware of the law and chose to ignore it. Montes may be the only case decided on this basis for the movant. In other words, in establishing "manifest disregard" as a basis for vacating an arbitration award, Shearson lost.

Over time, and mergers, Shearson became part of Citigroup Global Markets. That entity, Citigroup, recently lost a FINRA securities arbitration award to a woman from Texas. Citigroup thought it had a good argument, that the arbitrators manifestly disregarded the law. The trial court agreed. The Fifth Circuit did not.

In Citigroup v. Bacon the Fifth Circuit said that "manifest disregard of the law" is no longer available as grounds to vacate an award. The court based its decision on a recent US Supreme Court decision in Hall Street Associates v. Mattel. The US Supreme Court in Hall Street found that "manifest disregard" is not part of the statute allowing vacatur of arbitration awards. The Court pronounced for the entire nation that "manifest disregard" does not exist any longer. (Other circuits, by the way, have found their way around this ruling.)

Florida currently is a "manifest disregard" state, but the 11th Circuit said that Montes is the only case it has found worthy of that moniker. In fact, in Harbert v. Hercules Steel,, the 11th Circuit warned that sanctions may be appropriate for weak motions to vacate arbitration awards based on "manifest disregard."

There you have it. Citigroup has managed to establish that "minfest disregard" is and is not a basis for vacating an arbitration award. For those of you non-lawyers who read this, I can't explain it other than to say, that's the way the law is sometimes.

That's the view from The Law Planet - Jupiter, Florida.

My sister, the bankruptcy lawyer, sent me an email to explain the credit crisis. Since my brain is pea-sized, she used points of reference I understand.

John is the proprietor of a bar in Sydney. In order to increase sales, he decides to allow his loyal customers, most of whom are unemployed alcoholics, to drink now but pay later. He keeps track of the drinks consumed on a ledger (thereby granting the customers loans). Word gets around and as a result increasing numbers of unemployed alcoholics flood into John's bar.

Taking advantage of his customers' freedom from immediate payment constraints, John significantly increases his prices for wine and beer, the most popular drinks. His sales volume ncreases massively. A young and dynamic customer service consultant at the local bank recognizes these customer debts as valuable future assets and increases John's borrowing limit. He sees no reason for undue concern since he has the debts of the alcoholics as collateral.

At the bank's corporate headquarters, expert bankers transform these customer assets into DRINKBONDS, ALKBONDS and PUKEBONDS. These securities are then traded on markets worldwide. No one really understands what these abbreviations mean and how the securities are guaranteed. Nevertheless, as their prices continuously climb, the securities become top-selling items because Lehman Bros recommended them as a good investment.

One day, although the prices are still climbing, a risk manager of the bank, (subsequently of course fired due to his negativity), decides that the time has come to demand payment of the debts incurred by the drinkers at John's bar. But of course they cannot pay back the debts.
John cannot fulfill his loan obligations and claims bankruptcy.

DRINKBOND and ALKBOND drop in price by 95 %. PUKEBOND performs better, stabilizing in price after dropping by 88 %. The suppliers of John's bar, having granted her generous payment due dates, and having invested in the securities, are faced with a new situation. His wine supplier claims bankruptcy, his beer supplier is taken over by a competitor.

The bank is saved by the Federal Government following dramatic round-the-clock consultations by leaders from the governing political parties.

The funds required for this purpose are obtained by a tax levied on the non-drinkers.

There, do you feel educated now?

That's the view from The Law Planet - Jupiter, Florida.

By now anyone who has any interest in investing knows about Bernie Madoff. Mr. Madoff has admitted his guilt in a Ponzi scheme of gargantuan proportions. But I think this is just the beginning.

Mr. Madoff has stated, through others, that no other person knew about his fraud. I find that impossible, not just difficult, to believe. I think he is pleading guilty to protect others.

What can a Madoff investor do? I have spoken with some of them and the stories are heartbreaking. People's lives have been ruined and will never be fixed. Securities arbitration and litigation is one recourse. But the Madoff entities are in receivership. So the feeder funds and moneyraisers are the next targets. But those cases will not be easy. A lawyer familiar with securities arbitration and litigation should have an opinion on this.

In my opinion, the investigation is not over. The SEC, which has been raked over the coals recently, will likely dig deeper. They will find out who else knew about the fraud, or ignored it, and when they found out. They will look at the feeder funds and the moneyraisers. And others will suffer consequences.

It's a shame that the public trust was violated in such a manner. This remains a black eye for the investment industry. It will take a long time to restore this confidence.

That's the view from The Law Planet - Jupiter, Florida.

I just spent the weekend using the Xlink BTTN bluetooth adapter. And if this device doesn't scare landline-based phone companies, I'm not sure what will.

I'm a Bluetooth addict. I have three Bluetooth headsets. All of my cars have BT hands-free kits. Even my laptop has Bluetooth. The interconnectivity it provides is very useful, although the implementation is sometimes clumsy.

I got to wondering why I was paying for a home phone line when only telemarketers use it (and my mother, but she's got a cell phone she can use, too.) So I started thinking that I should become part of the growing group of people who ditch their home phone for their cell phone. Then I wondered if there was a way to hook up my cell to my existing 6-handset DECT cordless phone system. I found two devices and decided, based upon my review of the specs and web information, that the XLINK was for me.

It comes in two flavors, BT and BTTN. The BT is for cell phone integration only. The BTTN adds the ability of integrating a landline as well. Since the phone company reduced my monthly bill to a price where it made sense to keep the landline, I bought the BTTN. It took less than 10 minutes to set up the unit and pair two phones.

But the real beauty is the upgrade path. Yesterday I downloaded the upgrade "wizard" software and connected the BTTN to my laptop. Everything worked great and, in about ten minutes, the software had been upgraded. And the sound quality, which was OK, had improved dramatically.

While I haven't cut the cord completely, at least I'm not running all over the house looking for my cell when it starts to ring. A caller rings my cell and all six of the handsets ring. And the caller has no idea that they're not talking to me on my cellphone handset.

The Xlink. These guys are brilliant.

That's the connected view from The Law Planet - Jupiter, Florida.

This has only a little bit to do with securities, litigation, investments or anything else.

But it made me smile and we all need to smile at least once before the year is out.

Have a safe, healthy, prosperous and Happy New Year.

That's the view from The Law Planet - Jupiter, Florida.

I have always been a big Dilbert fan. Scott Adams has the corporate mindset nailed.

I discovered some animated Dilbert shorts on MSN that are mildly amusing. (not Bermuda shorts with cartoon characters.).

This one's about the brokerage industry.
Dogbert's Discount Brokerage

Enjoy.

Marc

A friend of mine sent me this picture claiming that it was a protest of Lehman Brothers employees outside their office.

I think he's pulling my leg.

This has nothing to do with the law, but everything to do with how I see the world. As I was backing my car out of the driveway, I heard an ad on the radio for a product called "Ass effects". I assumed that it was a gag ad on the talk show I like.

It wasn't. There is a heartburn remedy called Aciphex that is a heartburn remedy. Apparently, the folks developing the name didn't account for the potential for a regional pronunciation which, instead of pronouncing the "i" as "ih", the "i" is pronounced as "uh", thus giving us "ass effects".

Just thought I would share that with you.

That's the windblown view from The Law Planet, Jupiter, Florida.

OK, I am a sucker for new technology. I love playing with stuff. I was looking at my Gmail account and an Adword caught my eye for a product called Jott. It promised emails from voice.

So I clicked the link, read the site and signed up. It's free, so you can't beat the price. The setup was a piece of cake. I sent an email to myself as a test. The voice recognition was perfect and the whole process couldn't be simpler.

The system recognizes my cell phone number and allows me to send emails to contacts that I set up. It can read my contact names very well and I am stunned at the quality of the transcription. As a road warrior, being able to send emails without typing will be a real boon. I wonder if Jott intends to allow emails to be transcribed to voice and have them read back if I called in?

That's the voice-recognized view from The Law Planet - Jupiter, Florida.