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01 October 2022

Legal Blogs Legal Blogs
  • US federal judge dismisses Mexico’s $10 billion lawsuit against US gun manufacturers
    01 October 2022

    A federal judge in Boston Friday dismissed the Mexican government’s $10 billion lawsuit against major US gun manufacturers that sought to hold them responsible for illegal trafficking of guns into Mexico.

    A victory for US gun manufacturers, the decision by Chief Judge F. Dennis Saylor held that the claims of Mexico did overcome the broad protection offered by the Protection of Lawful Commerce in Arms Act to the firearm industry. The law shields gun manufacturers from civil liability arising as a result of criminal or unlawful misuse of their products.

    Saylor wrote that the federal law “unequivocally” bars lawsuits seeking to hold gun manufacturers liable for misuse of their weapons, and although the law does have some narrow exceptions, none of them are applicable in the present case.

    Saylor wrote, “while the Court has considerable sympathy for the people of Mexico, and none whatsoever for those who traffic guns to Mexican criminal organizations, it is duty-bound to follow the law.”

    The lawsuit was brought by the Mexican government against seven US gun manufacturers and one gun wholesaler and distributor for a wide variety of practices that knowingly facilitate trafficking of guns into Mexico.

    The defendants included some of the major gun makers in the US, such as Smith & Wesson Brands, Barrett Firearms Manufacturing, Beretta USA Corp, Century International Arms and Colt’s Manufacturing Company. Another defendant was Interstate Arms, a Boston-area wholesaler of firearms.

    Mexico’s foreign ministry has said that it will appeal the decision of the federal judge and will continue “to insist that the arms trade must be responsible, transparent and accountable, and that the negligent way in which they are sold in the United States makes it easier for criminals to access them.”

    The post US federal judge dismisses Mexico’s $10 billion lawsuit against US gun manufacturers appeared first on JURIST - News.

  • US Senate passes bill allowing sexual misconduct victims to bypass NDAs
    01 October 2022

    On Thursday, the US Senate passed the ‘speak out’ bill which aims to limit the use and enforceability of non-disclosure agreements (NDAs) for cases of sexual misconduct in the workplace. The bill, introduced in July, now only has to pass through the House and be signed by the President to become law. It states:

    “With respect to a sexual assault dispute or sexual harassment dispute, no nondisclosure clause or non-disparagement clause agreed to before the dispute arises shall be judicially enforceable in instances in which conduct is alleged to have violated Federal, Tribal, or State law”

    The bill has amassed bipartisan support, passing the Senate with unanimous consent and having several sponsors from both sides. The drafters found that one-third of women have faced sexual harassment in the workplace, and roughly 90 percent of those who do never file a complaint. Indeed, the #MeToo movement highlighted the prevalence of NDAs in many industries, and how employees were afraid to speak out due to fear of legal consequences.

    It should be noted that the bill only covers NDAs made pre-dispute. NDAs signed as part of a settlement after allegations, as was the case with casino company Wynn Resorts, would still be enforceable. In the Wynn Resorts report, the Massachusetts Gaming Commission concluded on the final page that “[t]heir efforts at secrecy made it exceedingly difficult, if not impossible, for gaming regulators to detect this potentially derogatory information.” Therefore, while the bill is a step forward, some may argue that post-dispute NDAs are still problematic in sexual misconduct cases.

    The post US Senate passes bill allowing sexual misconduct victims to bypass NDAs appeared first on JURIST - News.

  • FinCEN Issues Highly Anticipated Final Rule on Beneficial Ownership Reporting under the Corporate Transparency Act
    01 October 2022

    On September 29, 2022, the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued its highly anticipated Final Rule implementing the beneficial ownership information (“BOI”) reporting requirements of the Corporate Transparency Act (“CTA”) legislation.  The Final Rule brings about the most significant revisions to the U.S. anti-money laundering/countering the financing of terrorism (“AML/CFT”) compliance framework in more than 20 years, implementing sweeping beneficial ownership disclosure requirements applicable to all U.S. companies and foreign companies doing business with or within the U.S.

    The Final Rule generally tracks FinCEN’s earlier Proposed Rule from December 7, 2021, discussed in our prior article here, although there have been a few amendments to the earlier proposal. Below we provide a brief summary of key provisions and takeaways from the Final Rule, which goes into effect on January 1, 2024.

    Key Takeaways

    Broad Definition of “Reporting Company” Retained.  The Final Rule makes clear that the BOI reporting obligations will apply extraordinarily broadly to U.S. domestic and foreign registered companies. 

    Under the CTA, “reporting companies” were broadly defined to include “a corporation, limited liability company, or other similar entity” created by a filing to a secretary of state, including foreign businesses registered to do business in the United States subject to exceptions to ultimately be determined by FinCEN. The Final Rule retains the Proposed Rule’s expanded definition for “Reporting Company” to encompass “domestic reporting compan[ies]” defined to include any entity “created by the filing of a document with a secretary of state or any similar office under the law of a State or Indian tribe” and “foreign reporting compan[ies],” defined to include any foreign entity “registered to do business in any State or tribal jurisdiction by the filing of a document with a secretary of state or any similar office under the law of a State or Indian tribe.”  To that end, in commentary on the Rule, FinCEN confirmed that the agency expects the Rule to include (unless specifically exempted): limited liability partnerships, limited liability limited partnerships, business trusts, and most limited partnerships, as well as corporations and LLCs.  FinCEN noted that “other types of legal entities, including certain trusts, are excluded from the definitions to the extent that they are not created by the filing of a document with a secretary of state or similar office,” which is welcome news in the trust world. 

    Beyond confirmation that certain types of trusts will not be included, FinCEN did not expand the exemptions under the Final Rule from the 23 types of entities identified to be exempted under the CTA.  Key exemptions from the BOI reporting requirements continue to include: SEC registered issuers, banks and other types of regulated financial institutions, pooled investment vehicles, tax-exempt entities, large operating companies (20+ US employees, US operations and greater than $5 million in annual gross receipt or sales) and inactive entities formed prior to January 1, 2020 without foreign owners and which hold no assets (including ownership interests).

    Clarification as to “Beneficial Owners” Who Need to be Reported.  As in the Proposed Rule, the Final Rule defines a beneficial owner of a reporting company as any individual who, directly or indirectly, either (1) exercises substantial control over a reporting company, or (2) owns or controls at least 25 percent of the ownership interests of a reporting company.  FinCEN requires a reporting company to identify itself and to report the name, birth date, address, and unique identifying number and issuing jurisdiction from an acceptable identification document, along with an image of that document for its beneficial owners.

    Notably, “substantial control” is defined broadly to include senior officers as well as persons who “direct, determine, or ha[ve] substantial influence over important decisions made by the reporting company” and have “any other form of substantial control over the reporting company.”  Given the breadth of these definitions, there will likely be considerable uncertainty as to specifically who FinCEN will expect to be included in these reports with regard to many (if not most) Reporting Companies.  Hopefully, FinCEN will issue further guidance to assist the public in navigating these definitions.  Guidance may also be sought directly from FinCEN with regard to ambiguities. 

    Penalties are Only for Willful Violations.  While civil and criminal penalties are available under the Final Rule for violations, unlike most other AML/CTF reporting violations, penalties for violations of the Final Rule will apply only with regard to willful violations, including willful failure to file, willful provision of false or fraudulent information or willfully failing to provide complete or updated beneficial ownership information to FinCEN.  The Final Rule does not provide for penalties in the case of negligent or reckless failures. 

    However, the expansive definition of what may constitute a willful violation under the Final Rule will include circumstances involving “willful blindness” or “conscious disregard”, expanding the potential for inquiries and enforcement.  The Final Rule also provides for criminal or civil liability for “causing” a violation, significantly expanding the pool of individuals who could be targeted for their role in failures under this Rule.

    Additional Time Granted for Required Disclosures.  The Final Rule broadens the allowed time frame for reporting companies to disclosure their beneficial owners to FinCEN from the 14 days proposed previously to 30 days of formation for new entities, or within one year of the final rule’s effective date for existing entities.

    What’s Next?

    All Companies Need a Process to Comply, Document Exception Decisions and Monitor for Necessary Updates. As a first step, all companies should review the Rule carefully and develop a process for identifying any required reporting regarding companies formed prior to the rule’s effective date: January 1, 2024. 

    Companies – and individuals and entities involved in corporate formation – will need to develop procedures going forward for vetting newly established entities and determining whether reports are required under this Rule.  Decisions regarding the application of exemptions to the reporting requirements should be carefully documented.  Procedures should include robust processes for vetting the fulsomeness and accuracy of all disclosures made in reports under the Rule. 

    After an initial report is made, companies will also need a process to monitor changes to ensure that updates as made as required.  This includes new filings on behalf of entities that were previously exempt where circumstances negate the exemption as well as  reporting companies where details submitted in the report may change over time.  Reporting companies must submit updated reports within 30 days of any change. 

    Just Over One Year to Get Monitoring and Reporting Processes Ready.  The Final Rule will go into effect on January 1, 2024.  Reporting companies created or registered before January 1, 2024 will have one year (or January 1, 2025) to file their initial BOI reports.  After January 1, 2024, newly formed reporting companies will only have 30 days after receiving notice of creation to file their initial reports.

    Big Issues Remain to be Addressed. The Final Rule is the first of three rulemakings that FinCEN will make for implementing the CTA.  The Final Rule does not address (1) access to the BOI collected and safeguards to ensure that the information is secured and protected; nor (2) required revisions to FinCEN’s customer due diligence (“CDD”) rules to incorporate this new process.  Given that the Final Rule will go into effect on January 1, 2024, we would expect at least a rule regarding access to and use of BOI within FinCEN’s database–and potentially both additional rulemakings–within the next year.  Reporting companies should pay close attention to those developments in order to calibrate and craft their procedures for complying with the CTA prior to January 1, 2024.

    Recommendations

    The Final Rule marks sea change in the U.S. AML/CFT framework.  While the Final Rule does not go into effect until January 1, 2024, companies should get started now; 2024 may seem far away, but for many companies there will be complicated issues to address, guidance to be sought from FinCEN and significant amounts of information to gather to identify beneficial owners under FinCEN’s broad definition.  The next year will likely fly by for those working to prepare for this Rule. 

    We will continue monitoring additional developments in the CTA implementation process.  Perkins Coie attorneys are available to discuss these and any related issues.   

  • “Ticket-splitting voters were going extinct. Now they may decide 2022’s biggest races.”
    01 October 2022
    Fascinating new NBC report on polling: “In battleground states from Georgia to New Hampshire to Ohio, a potentially decisive slice of voters tell pollsters they’re supporting a Democrat for one high-profile office and a Republican for another. Nowhere is the…
  • “Pa. Supreme Court Chief Justice Max Baer, a Pittsburgh native, dies, called ‘a tireless champion for children'”
    01 October 2022

    “Pa. Supreme Court Chief Justice Max Baer, a Pittsburgh native, dies, called ‘a tireless champion for children'”: Rich Cholodofsky of TribLIVE has this report.

    Peter Hall of the Pennsylvania Capital-Star reports that “Pa. Supreme Court Chief Justice Max Baer has died; Debra Todd becomes first woman to lead court; ‘He was respectful, honest and carried himself with dignity and integrity,’ House Speaker Bryan Cutler said.”

    And in commentary, online at The Pittsburgh Post-Gazette, Ken Gormley, president of Duquesne University, has an essay titled “An Appreciation: Max Baer, a judge’s judge, a lawyer’s lawyer.”

    The post “Pa. Supreme Court Chief Justice Max Baer, a Pittsburgh native, dies, called ‘a tireless champion for children'” appeared first on How Appealing.

  • SDNY: Hard drive and server fried in some unknown fashion results in dismissal of claims for trademark infringement damages
    01 October 2022

    SDNY: The Fashion Exchange v Hybrid Promotions 14-1354 (Judge Stein).

    Plaintiff’s hard drive and server were “fried in some unknown fashion” so it couldn’t establish its damages (page 4). There doesn’t seem to be a lot of other evidence on other aspects of the lawsuit, either. Defendant’s summary motion as to damages granted.

    The decision contains a pretty extensive listing of the types of damages possible under the Lanham Act.

    Text of decision in The Fashion Exchange v Hybrid Promotions: the fashion exchange damages sdny

  • The Standard for Individual Contempt for Corporate Actions
    01 October 2022

    The Delaware Supreme Court recently addressed the standard to determine when an individual may be held in contempt for the violation of a court order by a company that person controls. I provided an overview of the decision for my latest article for the current issue of  The Bencher, the flagship publication of the American Inns of Court. The article is reprinted below with their permission.

    The Delaware Supreme Court recently had occasion to address the standard to determine when a person who controls an entity—for example, through ownership of all or most of the stock of a corporation—can be personally responsible for contempt of court penalties when the corporation’s actions are in violation of a court order.

    In the matter styled TransPerfect Global Inc. v. Pincus, Del. Supr., No. 154, 2021 (June 1, 2022), Delaware’s highest court reviewed the latest appeal in a long-running bitter battle that entered the Delaware court system in 2014 with a petition under Delaware General Corporation Law Section 226 to appoint a custodian to resolve a deadlock between two co-owners who were formerly engaged to be married and who each held 50% ownership of a translation and litigation-support company. They continued to co-manage their company, in a contentious manner, despite calling off their nuptials.

    Procedural Background

    For purposes of this short ethics column, instead of reviewing the four prior Supreme Court decisions concerning this case, and about a dozen rulings of the Delaware Court of Chancery over almost a decade, as well as several cases filed in a few other states, suffice it to say that the limited aspect of the appeal that this column focuses on is a suit filed by TransPerfect in Nevada that was in violation of an order by the Delaware Court of Chancery requiring all disputes related to this matter to be filed in the Court of Chancery.

    After the appointment of a custodian to break the deadlock, one of the 50% owners bought the other half of the company to become essentially the 100% owner (the “controller”). The controller was not a named plaintiff in the Nevada lawsuit. But the Court of Chancery found the controller in contempt for the company’s filing of that lawsuit, which the trial court held to be a violation of a prior order, as explained in a 135-page opinion by the Court of Chancery.

    Key Standards of Contempt Clarified

    Delaware’s High Court began its careful analysis with a recitation of the fundamentals on which a finding of civil contempt is based, with copious footnotes to authorities that describe the prerequisites and the nuances involved in such a “weighty sanction.” Slip op. at 22–23 and footnotes 99–101 and 127.

    A trial court must explain how an individual personally violated a court order to satisfy the standard to hold a person in contempt of a court order. Specifically, there must be evidence in the record that a person who controls a company personally violated a court order, for example by directing a company he or she controls to violate that court order. In this particular appeal, there was no such evidence in the record.

    For clarification and guidance, the Delaware Supreme Court explained that “to find a corporate officer or shareholder in civil contempt of a court order, the trial court must specifically determine that the officer or shareholder bore personal responsibility for the contemptuous conduct.” Slip op. at 33. The court observed that this requirement is consistent with the prerequisite that “when an asserted violation of a court order is the basis for contempt, the party to be sanctioned must be bound by the order, have clear notice of it, and nevertheless violate it in a meaningful way.” Id. at 33–34.

    Although the sanctions for contempt were properly applied to the company, the criteria for imposing penalties for contempt on the controller were not satisfied, based on the appellate record. Therefore, the penalties imposed on the controller for contempt were vacated.

    This decision will be helpful for anyone who needs to determine if a person who controls a company may also be personally liable for actions taken by the company that may violate a court order.

    Francis G.X. Pileggi, Esquire, is the managing partner of the Delaware office of Lewis Brisbois Bisgaard & Smith LLP. His email address is This email address is being protected from spambots. You need JavaScript enabled to view it.. For the past 17 years, he has commented on key corporate and commercial decisions, as well as legal ethics, at www.DelawareLitigation.com.

  • Nonprofit Tweets of the Week – 9/30/22
    01 October 2022

    Stay informed of the week’s notable events and shared resources with this curated list of Nonprofit Tweets of the Week.

    Notable Events of the Week:
    • Long COVID Has Forced a Reckoning for One of Medicine’s Most Neglected Diseases Only a couple dozen doctors specialize in chronic fatigue syndrome (ME/CFS). Now their knowledge could be crucial to treating millions more patients.” The Atlantic
    • “Russian President Vladimir Putin’s speech Friday, declaring his annexation of four Ukrainian regions, was likely the most consequential of his nearly 23 years in power. But rather than a clarion call to restore Russian greatness as he clearly intended, the address seemed the bluster and filibuster of a leader struggling to recover his grip — on his war, and his country.” Washington Post
    • “The nationwide protests challenging Iran’s authoritarian leadership, now in their 10th day, have fed on a range of grievances: a collapsing economy, brazen corruption, suffocating repression and social restrictions handed down by a handful of elderly clerics. On Monday, they showed no sign of abating, and neither did the harsh government effort to suppress them despite international condemnation.” New York Times
    Top 10 Nonprofit Tweets: Racial Equity and Justice:

    The Cherokee Nation is again calling on Congress to deliver on a 200-year-old promise (Harmeet Kaur, CNN)

    EPA Launches New National Office Dedicated to Advancing Environmental Justice and Civil Rights (EPA)

    On the Front Lines: Street Violence, Gun Culture and Relationships in Communities (Race in America, NBC Bay Area)

    Elijah McClain’s death caused by ketamine injection, amended autopsy report says (Deon J. Hampton and Erik Ortiz, NBC News)

    Migrant relocations echo a dark past: Reverse Freedom Rides (Code Switch, NPR)

    If there are any attorneys or law students who identify as Black, Native Americans, or Pacific Islanders who are interested in nonprofit corporate and tax-exemption laws and who’d like to pursue this area of practice, I’m committing one hour each week to being a resource. Please contact me if I can be of service. 

  • Writing About People Who Don't Want to Be Written About
    01 October 2022

    The discussion on the Doe v. Volokh threat struck me as quite interesting, and I was particularly intrigued by some commenters taking the view that, while I have the legal right to write about Doe, I shouldn't, because she's asked me not to. Here's one comment that I think captures this view particularly well:

    So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

    You're such a classy person.

    I don't think that's the right approach, but I think it's an important and difficult question, and one that is routinely faced by people who write about court cases, including newspaper reporters, magazine writers, academics, and bloggers. "Be classy" or "be kind" can't really capture the right analysis, I think, perhaps because news reporting (which I use broadly to cover also opinion and analysis related to news, litigation, and the like) is inherently an unkind phenomenon—or perhaps, in aiming to be good to people seeking information, it may necessarily be unkind to people seeking to conceal information. Still, it bears some deeper discussion.

    The problem is that, for many court cases, one or both parties would very much prefer not to have the case be discussed. (I set aside the separate point that the case should be discussed accurately; I surely have no quarrel with that.) To give just the most obvious examples,

    • Criminal defendants would usually prefer not to have the allegations against them (whether true, false, or, as is often the case, a mix) publicized.
    • Civil defendants would often take the same view, for instance if they're accused of malpractice or embezzlement or assault (sexual or otherwise) or a wide range of other offenses.
    • Libel plaintiffs would often not want to have the allegedly libelous statements about them further publicized.
    • Other plaintiffs (e.g., ex-employees) would often not want the defendants' responses ("I fired him not because of his race, as he alleges, but because he was sexually harassing coworkers") publicized in association with the plaintiff's name.
    • Still other plaintiffs (again, such as ex-employees) would often not want future employers to know that they had sued someone, since they think many employers prefer not to hire litigious workers.

    Often the concerns are about reputation and future employment prospects. But sometimes people might be worried that coverage of accusations against them (e.g., that they had raped someone, or that they had falsely accused someone, or that they had defrauded someone) might lead to harassing phone calls or e-mail, to threats, to vandalism, or even to physical attacks. Indeed, these risks are probably higher for mainstream newspaper articles than for blog posts (or certainly than for law review articles), just because such articles tend to have a higher readership.

    What should a reporter, or a blogger, or an academic make of all this?

    [1.] One possibility is to take the view that parties' names should be included only if it's "necessary." But in most situations, it's not actually strictly necessary to include the parties' names: We could just replace everyone's names with pseudonyms in our stories (even if the underlying cases aren't pseudonymized).

    Yet that's not how newspapers do this, and I don't think there's any reason that bloggers or law review article authors should do it, either. Such pseudonymization would probably make our articles come across as somewhat less trustworthy. And beyond that, I think that many reporters and the like take the view that it's good for readers to know the names of people involved in various controversies. True, a few readers might misuse that information even in criminal ways. Still more readers might overreact to what are often just allegations (e.g., by shunning or not dealing with people just because of the accusations). But other readers may take this information into account in a reasonable and thoughtful way, and newspapers and blogs try to convey the truth to those readers.

    Moreover, court cases in the U.S. are generally captioned using the parties' real last names. If I'm writing an analysis of Smithski v. Jonesovich, people who are interested in that case will generally search for those particular names. If I omit the name of the case, or omit the parties' names from the discussion, my article or post won't be found, and the information and insight (such as they are) in that article or post won't be available to people interested in the case. I don't think there's any real obligation, as a matter of manners or morals and not just of law, to make the article thus unfindable by people who are interested in the case and searching for the case's name.

    Just to give an example drawn from the Doe v. Volokh litigation: Doe's appeal of a decision that depseudonymized her (the decision that led to my writing about her in the first place) will soon be considered by the Tenth Circuit. I expect that the Tenth Circuit will affirm, and thus write a significant (and quite likely precedential) opinion on the law of pseudonymity, including Doe's real name. (I'm an intervenor in that case, and did the bulk of the briefing as to why pseudonymity is indeed improper.) I plan on writing about that case, as I do about other important cases in the area. That writing would be much less effective and useful if it didn't use the case name and thus Doe's real name.

    To be sure, this post and my earlier one don't cite the relevant cases, precisely to avoid mentioning Doe's real name. This is chiefly because I have a motion opposing pseudonymity pending in Doe v. Volokh, and I think that, out of respect for the judge's ability to meaningfully decide that motion, I ought to err on the side of not including Doe's real name in my posts while that motion is pending. (Note that I'm certainly not legally barred from including Doe's real name in these posts; there is no gag order on me, nor for that matter any motion even authorizing Doe to proceed pseudonymously.)

    But there are substantial costs to this decision, I think: It makes it harder for people interested in Doe's other cases to find my post and read the analysis in it. And it makes the post less credible, because I talk only vaguely about Doe's other cases (including the case that led to my writing about her and thus to her attempt to gag me) rather than actually citing and linking to them. I'm willing to accept these costs in the rare situation where I have a motion pending on the subject; but I think it would be bad to incur the costs in writing about Doe and those like her more generally.

    [2.] Another possibility is to take the narrower view that the names should generally be removed when the person asks. That is consistent with some customs in ordinary life, but, for much the same reason as those given above, I don't think this should apply to news/opinion/analysis coverage of litigation.

    Moreover, in practice this may end up being not that much narrower a view. True, in my experience few people ask to have their names removed from blog posts (or, I expect, online newspaper articles), but I think that this is largely because they know that they're likely to get a "no." If it were accepted that simply asking to have your name removed would entitle you to have it removed (again, even just as a matter of morals or "class" rather than law), many more people would ask.

    [3.] Still another possibility is to take down the names of litigants who say that they had gotten threatening messages (or other such reactions) based on the newspaper article, blog post, law review article, and the like. But I'm pretty skeptical about that. Part of the reason is that it's often hard to know whether that sort of harassment is real, or just made up by someone who is actually just concerned about reputation and employability. As the Grey's Anatomy writer hoax story reminds us, people sometimes lie about being victimized in various ways.

    And surely it must be tempting: Here you are, the subject of a story about a criminal prosecution or a lawsuit. The story mentions (however accurately) allegations that you think are unfair or highly private or what have you. You think that the reason you aren't finding a job is that prospective employers Google your name and see the story. (Maybe the real reason is that you aren't that well-qualified, or you come across badly in interviews, but of course we'd all much prefer to focus less on that possibility.) You learn that a publisher has a custom of removing names from stories if the story has supposedly led to threatening messages. Many people—even otherwise decent people—would, I expect, fake a threatening text or voice-mail if that's what it takes to (in their view) put their lives back together.

    Plus beyond that, let's think again about the newspaper article about an accusation that might indeed lead to such occasional threats. A local professional is accused of mistreating a vulnerable client. A local teacher is accused of being cruel to a student. Someone is accused of racist insults. And, for the clearest example, someone is sued alleging sexual assault or especially child molestation.

    Would we take the view that the newspaper shouldn't report the person's name in a story about that criminal prosecution or civil lawsuit, because of the likelihood that some readers (however tiny a fraction of the tens or hundreds of thousands who will see the article) will misbehave based on that article? Maybe we should, but I'm hesitant to say so.

    [4.] To be sure, I should note that many publications do have a policy of not naming alleged sexual assault victims, and in Doe v. Volokh, Doe claims in various lawsuits to have been sexually assaulted on various occasions. I too would normally not have published her name. But, though, in the case I wrote about, the Magistrate Judge at first allowed her to sue pseudonymously (over alleged libel by a defendant who had accused her of, among other things, falsely alleging rape), he then changed his mind (in the opinion that I wrote about), partly on the grounds that,

    Plaintiff has filed numerous lawsuits, several of which involve circumstances similar to this case. In some she has been permitted to proceed anonymously; in others, she has not. Regardless, Defendant maintains that Plaintiff is a "vexatious litigant." This goes directly to Plaintiff's credibility, and Defendant should not be hampered in pursuing that defense. Nor should the public be prevented from reaching its own conclusions in this case.

    The District Judge affirmed that decision; and my view is that, given the circumstances that the judges described (including, as the District Judge notes, plaintiff's having tried to publicize some of her cases herself), members of the public should indeed have the information allowing them to draw inferences about Doe's position in her various cases.

    [5.] Another possibility might be to include parties' last names, which again are needed to normally identify a typical American court cases, but not their first names. Indeed, there are times when I don't include parties' first names in discussing or quoting a case. But in this instance, I thought it important that my law review article include the litigant's full name, because the last name seems fairly common; including the litigant's full name is important to show the links between the litigant's various cases. (Recall that my law review article was discussing, among other things, how pseudonymity interferes with tracking potentially vexatious litigants, and I needed to establish that this was indeed a serious concern as to this particular Jane Doe.)

    [6.] Finally, I should acknowledge that, as with most ethical matters, there might not be hard and fast categorical rules here. Sometimes things might turn on my own judgment calls about the importance of a matter, the character of the people asking to have their names removed, the age of the post, and more. (For instance, my understanding is that some newspapers do remove from their archives stories about people's old and minor criminal convictions, or sometimes make them harder to find via Google searches for the people's names.) And of course that judgment may well be mistaken, and not entirely consistent from case to case.

    Still, I thought it would be helpful to write up some general thoughts of mine on this subject, and see what others think about this.

    The post Writing About People Who Don't Want to Be Written About appeared first on Reason.com.

  • THE INDEPENDENT TORT DOCTRINE (AND ITS IMPORTANCE)
    01 October 2022

    A non-construction raises an important legal principle.  Here it is because it applies to construction disputes.  It actually applies to many business-type disputes.  It is based on what is widely referred to as the independent tort doctrine:

    Florida law does not allow a party damaged by a breach of contract to recover exactly the same contract damages via a tort claim. “It is a fundamental, long-standing common law principle that a plaintiff may not recover in tort for a contract dispute unless the tort is independent of any breach of contract.  A plaintiff bringing both a breach of contract and a tort claim must allege, in addition to the breach of contract, “some other conduct amounting to an independent tort.” 

    Bedoyan v. Samra, 47 Fla.L.Weekly D1955a (Fla. 3d 2022) (internal citations omitted).

    The reason this principle–the independent tort doctrine–is important is because it has become common for parties to assert many causes of action against another party in the same lawsuit.  Oftentimes, they deal with the SAME damages and underlying conduct.  Sometimes, it is the “throw everything but the kitchen sink” approach.  Thus, a party may assert a contract claim (or seek contractual damages) in conjunction with numerous tort claims (e.g., negligence, fraud, negligent misrepresentation, breach of fiduciary duty, etc.).  Yet, when push comes to shove, the damages sought are no different than the contractual damages, i.e., it is all the same damages based on the same conduct.  The damages do not derive from an independent tort (e.g, separate conduct) unrelated to a contractual breach, or contractual damages.

    This case of Bedoyan is an example. Here, there was a partnership dispute that was tried. The plaintiff claimed the defendant breached their oral partnership agreement and breached fiduciary duties. The trial court granted defendant’s motion for a directed verdict on plaintiff’s breach of fiduciary duty claim. The plaintiff’s breach of fiduciary duty claim “was not independent from his allegation of breach of contract; the same conduct gave rise to both. As such, there are no damages for breach of fiduciary duty separate and apart from the breach of the contract, and the trial court correctly directed a verdict against [plaintiff] on this issue.”  Bedoyan, supra.

    Please contact David Adelstein at This email address is being protected from spambots. You need JavaScript enabled to view it. or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

     

    The post THE INDEPENDENT TORT DOCTRINE (AND ITS IMPORTANCE) appeared first on Florida Construction Legal Updates.

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So You Used To Chat With Old Workmates, Or Study Friends, But They Don't Frequent The Old Social Network Any Longer?

Which Social Network Would They Be On Now? There Are So Many...How Would You Find Them?

Don't Lose Contact Over The Years. Add Your Social Network Info. And Contact Details Here, And Stay Contactable.

Great For Gamers

You Have Switched From One Game to Another? Leave Your Forwarding Details Here To Help Your Fellow Gamers Find You. 

You Are An Artist Or A Photographer

You Might Have Artwork Scattered Throughout The Web. You Might Be A Photographer, And Have Provided Work For Many Websites. Link All Of Your Work To Your Profile, And Showcase Your Abilities In One Location.. 

  • Create A Profile

    Sign Up to create your profile. 

    Once you have filled out the sign up form, you will be directed to the profile page. To add entries to your profile (eg. your social network links, your online work etc,), you will need to 'edit' your profile by selecting the 'Edit' button.

    Join Us


  • Public Messaging

    Once your profile is created, you may be contacted by email direct from your profile by public (whilst your email address remains hidden).

    This feature enables long lost friends and family to contact you, even if they have misplaced your contact details...you will always be found.


  • Create An Article

    Create and article to sell a household item, or to inform the public of some important news or information

Don't Lose Your Online Works

You May Have Published Blogs And Informative Forum Entries All Over The Web. Over Time, Web Search Engines Can Make It Difficult To Find Your Work. Link Your Work To Your Profile, And Keep It All Easily Accessible, And Easy For Viewers To Identify Articles And Blogs etc As Yours.

Don't Be Confused With Someone Else

It Can Be Frustrating When One Is Easily Confused With Someone Else Online. Prospect Employers Have Been Known To Search For Information On Prospective Employees. If Your Name Is A Common One, Or Even If Not, It Is Still Easy For You T Be Mistaken For Another, Especially If the Person Searching For Your Online Presence Has No Visual. Create A Profile Here, Link Your Social Media Profiles, Give Out Your Username(Id)--Then Be Found.

  • Create A Blog

    Registered users may create blog entries which feature in relevant Category Pages.

    To create a blog, go to your profile page, and select the button "New Blog".

    Once your blog is created, you will be able to manage any comments made on your blog.

    The RSS ability of your blog, enables your readers to subscribe to your blog post, and follow any further additions as you make them.


  • Own QR Code

    At the bottom of your profle, and each page created by you (eg. blogs, articles etc), a unique QR code is available for your use.

    You may save a copy of the image, and paste it on to hard or soft copy items, in order to direct people to your profile, blog or article.


  • Image Gallery

    Add some images, and make photo galleries to show the public, friends and family.

    Suitable for family photos, photographer galleries, artist images or images of your business.

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