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On Appeal from the Court of Public Opinion

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Politics Unusual: President And Laureate, Obama, Lectures About Just War (And Peace)

Posted by CV on December 11, 2009

Indeed, “just war” and peace.  U.S. Commander-in-chief Obama targeted the Kingdom of Norway aboard his fleet, Air Force One, before indiscriminately firing over 4,200 words at a peace rally in Oslo yesterday.  This half-hour engagement was due to the controverted Nobel Peace Prize awarded him back in October.  Many are still in shock apparently.

I just finished watching, listening, and reading the President’s speech.  It was both politically and diplomatically unusual.  President Obama said the word “kill” more times in one half hour than his predecessors said in their lifetimes.  I’m not kidding, I’ve looked.  Just kidding.  I really haven’t looked. 

That fun “fact” aside, the President offered nothing less of an intellectual defense of war.  He allegedly wrote the entire speech himself and only solicited speechwriters for tone and such.  

The Lecture in a Nutshell

At the very outset, Obama’s speech carried an implicit call to action.  Immediately after greeting his audience, for example, the President said the award “speaks to our highest aspirations — that for all the cruelty and hardship of our world, we are not mere prisoners of fate. Our actions matter, and can bend history in the direction of justice.”  (emphasis supplied).  This was everything except an introduction to pacifism.  He went on to acknowledge the controversy surrounding his selection, admitting his relatively slight accomplishments and naming others perhaps “far more deserving of this honor” than he.

“Some will kill, and some will be killed,” Obama bluntly remarked, referencing his decision to deploy troops to Afghanistan.  He summarized the history of war and explored the concept of a “just war,” once applied before to defeat the Third Reich and the Axis powers.  Obama further highlighted American leadership in “constructing an architecture to keep the peace: a Marshall Plan and a United Nations, mechanisms to govern the waging of war, treaties to protect human rights, prevent genocide, restrict the most dangerous weapons.”  He cited the benefits of commerce and “ideals of liberty . . . self-determination, equality and the rule of law . . . [as] a legacy for which [the United States] is rightfully proud.”

Obama then addressed twenty-first century threats, namely terrorism and nuclear proliferation.  Although fear of war between superpowers have waned, he reaffirmed the “risk of catastrohpy” remains in the context of proliferation.  The President also mentioned the smaller conflicts and tragedies that presently cripple otherwise upstanding societies.  But he forthrightly proffered no solutions.  Instead, he described the attributes of a people prepared to meet the challenges confronting us today — “vision, hard work, and persistence” of the sort previously exhibited by generations past.  The President recognized the task “will require us to think in new ways about the notions of just war and the imperatives of a just peace.”

While the President acknowledged Gandhi and Martin Luther King’s message of peace, as well as the “moral force of non-violence,” he made clear his special allegiance to America as her head of state, protector and defender.  Obama expressed that he

face[s] the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism — it is a recognition of history; the imperfections of man and the limits of reason.

(emphasis added).  He then reminded reflexive pacifists that treaties alone did not secure stability after WWII, and although mistakes were made, Obama explained that simply put, “[t]he United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms.”  “[T]he instruments of war do have a role to play in preserving the peace,” he continued.  And apart from self-defense, the President stated that force can be justified on humanitarian grounds as well, alluding to the notion of coercive intervention if necessary in other nations.    

Obama also demanded that “all responsible nations . . . embrace the role that militaries with a clear mandate can play to keep the peace.”  Attempting to solicit their support, Obama said to countries ambivalent about military action that “[t]he belief that peace is desirable is rarely enough to achieve it.  Peace requires responsibility.  Peace entails sacrifice,”  the President cautioned.

Obama made a slight turn at this point in his discourse and effectively delivered a veiled criticism of lax international rules governing sanctions of insubordinate regimes.  Again, he called for enforcement.  He called for the world to assertively stand as one essentially.  Obama then observed that even in the absence of visible conflict peace cannot be had where egregious human rights violations, political turmoil, and suppression of dissenting speech remain, threatening violence.

Interestingly, Obama immediately directed his remarks at the social relativists, who staunchly believe in the cultural integrity of societies different from our own, justifying otherwise oppressive “cultural” practices.  The President warned that “even as we respect the unique culture and traditions of different countries, America will always be a voice for those aspirations that are universal.”  He then proceeded to stress the importance of political rights and the dangers of religious fanaticism before ending his message that we can “understand . . . there will be war, and still strive for peace.” 

Politics Unusual

I couldn’t help but recognize that Obama sounded like a Truman democrat and not like the reflexive pacifist that neo-conservatives expected.  In fact, Republican leaders (and Sarah Palin) have reacted positively to the speech.  I think this is an important point considering that people generally believe Republicans are stronger than Democrats on defense.  Obama’s unapologetic mention of his recent deployment to Afghanistan certainly came as a surprise to all — and what a pleasant one for conservatives.

I say pleasant for two reasons.  First, conservatives can rest easy that our president is not afraid to walk soft and swing the big stick.  But secondly, and perhaps more importantly in my judgment, Obama may now have articulated the same message former President Bush kept butchering many times before.  Obama’s engagement in Afghanistan is a ‘bushism’ of sorts.  Politically, I suppose then, Republicans contemplating a 2012 campaign can rest easy knowing that if the President continues upon this course, it will be difficult for Democrats to distance one from the other on the issue of defense. 

Indeed, recent polls may be a sign.  As of December 7, 2009, for instance, Obama’s approval ratings had slipped to 47 percent according to the most recent Gallup poll.  (http://www.gallup.com/tag/Presidential+Job+Approval.aspx).  On Afghanistan, moreover, his numbers were at 37 percent on December 1, 2009, and they have been at low 50s for some time prior to that.  For a President who has made history a few times, it may well be that Obama has made history, yet again, with his 47 percent approval as the worst rating of any president during his first year.  Somebody should check the accuracy of that statement — but the point is that his numbers are worse than low.  

Of course I’m not questioning Obama’s competence to lead our country.  I realize our President inherited much, if not all, of the current disasters we face today.  I do submit, however, that his low numbers indeed reflect the sentiments of an electorate, which are replete with information of great political import.  Republicans might seize on that.

It was definitely unsual to hear a modern Democrat speak to the international community with the authority Obama preached, especially in defense of war.  Maybe this is partly the reason Obama’s numbers have slipped.  I do not know. 

By the way, President Obama said “war” about 44 times during his discourse.  He mentioned “peace” (including “peacemaking” and “peaceful”) about 32 times.  He also said “force” about 10 times.  And he said “kill” five times.  I thought these were important to share because they contributed to the assertive tone with which Obama spoke.   

 CV

 

 

    

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Google Scholar’s New Legal Research Service Is Not A Pretty ‘Cite’ For Lexis Or Westlaw

Posted by CV on November 20, 2009

What a case – for Lexis and Westlaw that is.  Google Scholar is currently offering gratuitous legal research services thus far dominated by the two legal research monsters.  It’s true.  Google issued a ‘slip opinion’ on the matter early Tuesday, November 17, on its official blog.

The nascent legal project is intended to allow regular folks access to the specious world of case law (reported written decisions by judges).  To that end, the novel research devise promises an exhaustive database of federal and state cases readily accessible through a natural language search characteristic of Google.  I was personally disappointed, however, to see that one of my favorite cases, Hamer v. Sidway,  124 N.Y. 538 (1891), was not available.  In any case, Google thinks that “this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all.” 

In addition to federal and state cases, the “legal opinions and journals” option on Scholar offers Westlaw’s Key Cite and Lexis’ Shepard’s features as well.  After you type in a search, for instance, results will display both the relevant cases and a “How cited” hyperlink next to them, which directs you to another page listing subsequent cases and articles that cited your case.  Internal citations are hyperlinked on Scholar too, much like in Lexis and Westlaw.      

Many have speculated that the feature will shock the legal research industry, if not threaten to oust Lexis and Westlaw.  I think it premature to intimate views on the impact of Scholar’s “legal opinions and journals.”  Both Lexis and Westlaw consistently seek to improve their services, adding or highlighting interesting features.  Besides, I’d be surprised if either of them depends exclusively on case law research service.  If Scholar now opens a window to a world of case law, Lexis and Westlaw have been kicking down doors to a universe of jurisprudence.  Apart from cases, their respective databases include renowned and obscure treatises, public records, journal articles, congressional hearing transcripts, etc.  On the other hand, this is a giant first step for Scholar, and it is something to keep an eye on for sure.  At this pace, current speculation may not be so wild after all.

CV

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1 New Message: OMG! txt msgs can result in divorce custody battles n restrainin orders 2? :(

Posted by CV on November 14, 2009

There has been an increasingly high number of domestic disputes resulting from careless text messaging.  Some text messages, for example, reveal infidelity, resulting in divorce.  Others implicate parenting skills and evidence abuse, prompting custody battles and restraining orders respectively.  In any case, text messages have apparently become a smoking gun of sorts, according to the National Law Journal.  See (http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202435342658&Text_Messages_Can_Spell_Divorce). 

Incriminating evidence of infidelity, bad parenting, or abuse hasn’t always been this easy to obtain.  In the old days, for example,  suspicious spouses would hire private investigators to unearth clues of infidelity to support a divorce.  I suppose it is now simply a matter of taking a suspected spouse’s cell phone, surfing through the phone’s unique or unfamiliar messaging features, and reading.  But we’re not in Kansas anymore, or are we?

Incriminating text messages have especially favored aggrieved spouses during settlement negotiations, and have embarrassed public figures.  In custody cases, text messages have shown children’s dissatisfaction with a custodial parent.  A Florida case, for instance, involved text messages from a child to the noncustodial parent complaining about problems with the other parent.  As regards abuse prevention (or restraining) orders, moreover, text messages may be sufficient proof of either abuse or imminent threat thereof.  Articles written on the issue further suggest that while emails have become fairly standard proof in domestic matters, text messages are not very far behind.  They are apparently widely accepted evidence in French courts.   

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Happy Veterans Day

Posted by CV on November 11, 2009

My little brother graduated from high school in May 2003.  He joined the Navy and was first sent to Chicago for training (before going to Virginia and abroad) the following month.  He, and other brave men and women, served us honorably for the next four years during time of war.  
 
While other children his age thoroughly enjoyed their summers looking forward to the college life, my little brother was ready to defend it.  Happy Veterans Day Rob.
 
I would like to further extend my appreciation to other service members who likewise stood ready to defend our country.  America would be an exceedingly intolerable place without your bravery.  Thank you all.
 
CV  

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D.C. Sniper, John Allen Muhammad, Will Be Executed Today

Posted by CV on November 10, 2009

Remember John, the “D.C. sniper?”  Well, he is set to die today. 

John Allen Muhammad was sentenced to death for indiscriminately shooting and killing ten people in 2002.  The Supreme Court denied the former Army sharpshooter’s stay application and appeal, see (http://www.supremecourtus.gov/opinions/09pdf/09-7328.pdf), and his calendar was therefore marked for execution today at 9 P.M. in a Virgina prison.  His poison of choice?  Lethal injection.

Although the justices declined to review  Muhammad’s stay application, Justice Stevens, joined by Justices Ginsburg and Sotomayor, intimated the following:

This case highlights once again the perversity of executing inmates before their appeals process has been fully concluded. Under our normal practice, Muhammad’s timely petition for certiorari would have been reviewed at our Conference on November 24, 2009. Virginia has scheduled his execution for November 10, however, so we must resolve the petition on an expedited basis unless we grant a temporary stay. By denying Muhammad’s stay application, we have allowed Virginia to truncate our deliberative process on a matter—involving a death row inmate—that demands the most careful attention. This result is particularly unfortunate in light of the limited time Muhammad was given to make his case in the District Court.

Muhammad v. Kelly, 558 U.S. ___ (2009) (statement of Stevens, J.) (denying review of stay application and appeal); see also Muhammad v. Kelly, 575 F.3d 359 (4th Cir. 2009). 

Virginia governor, Tim Kaine, declined to intervene, finding “no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts.”  

On a side note, both the gun shop that sold John the rifle and its manufacturer settled for $2 million and $550,000, respectively, with the families of eight victims following a civil action that involved claims of negligent distribution of a weapon used in a criminal shooting.  Reports say that the agreement was a first for a gun manufacturer.  No kidding.

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Little Caesars Is Hot-N-Ready For A Trademark Action Against Former Worcester Franchisee, “Caesars Pizza”

Posted by CV on November 10, 2009

The Story

Thanks for bringing this to my attention Steve. 

Unfortunately, I don’t have all the relevant facts to examine the case.  But here’s the gist of the story for you all.  See also (http://www.dolanmedia.com/view.cfm?recID=538544). 

Apparently, Sayed El-Bayeh, the owner of a pizza shop in my beloved Worcester, Massachusetts, entered into a franchise agreement with Michigan-based Little Caesars some time ago.  After the parties terminated their agreement, however, El-Bayeh allegedly continued servicing the fine Worcester community under “Caesars Pizza,” using Little Caesars trademarked catchphrases like “Pizza! Pizza!” “Crazy Bread,” “Crazy Sauce,” and “HOT-N-READY.”

Consequently, Little Caesars filed a trademark infringement action against El-Bayeh in U.S. District Court for either the Eastern or Western District of Michigan last January.  The Massachusetts Lawyers Weekly reports that El-Bayeh never responded to the lawsuit, however.  Accordingly, Little Caesars successfully sought a court order enjoining (or preventing) El-Bayeh from using Little Caesars trademarked moniker and catchphrases.  Thereafter, Little Caesars closely monitored El-Bayeh’s operations and allegedly saw little, if any change.  El-Bayeh’s Caesars Pizza is still making “HOT-N-READY” cheesy delights according to Little Caesars (more or less).    

Little Caesars has filed a motion for contempt given El-Bayeh’s alleged noncompliance, arguing that El-Bayeh is “still using Caesars pizza! which is confusingly similar to the proprietary mark Little Caesar.” (http://www.dolanmedia.com/view.cfm?recID=538544) (quoting motion of Attorney Burton Chandler of Seder & Chandler) (internal quotations omitted).  Mr. Chandler is reportedly “asking that the court order El-Bayeh to show why he ‘should not be imprisoned.’”  Id.  The parties have not publicly commented on the relevant aspects of the case.

Legal Talk

As I said in the beginning of this piece, I know nothing about the case other than what I’ve summarized above from a secondary source.  The discussion below arose from mere curiosity.

With that said, I join Steve’s curiosity regarding Michigan’s in personam jurisdiction over El-Bayeh to require his compliance with the injunction.  But I’m afraid there isn’t much of an issue here to ponder absent a comprehensive factual background, because the contractual nature of Little Caesars’ trademark claim would necessarily demand a fact-intensive jurisdictional inquiry — assuming, of course, no other contacts link El-Bayeh to Michigan.  I think one would have to dangerously assume a number of important facts to support this type of jurisdictional analysis.

Eh, let’s assume that apart from his franchise agreement with Little Caesars, El-Bayeh never set foot in Michigan, had no other business operating there, did not advertise in Michigan — nothing.  The facts would then remind me of Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), in which Florida-based Burger King filed a similar trademark action in the U.S. District Court for the Southern District of Florida against Michigan-based franchisee, Rudzewicz, in addition to a breach of contract claim.  There, Burger King alleged that Rudzewicz had breached by failing to pay dues under their agreement, and tortiously infringed upon its trademarks by failing to cease operating as a Burger King franchise.  In that case, the Supreme Court held that absent a show of fundamental injustice in requiring Rudzewicz to defend itself in Florida, the district court could properly exercise in personam jurisdiction (under Florida’s Long-Arm Statute) over Rudzewicz given his extensive contractual relationship with the Floridian company, which was initiated and maintained by Rudzewicz.

Assuming Michigan has a similar Long-Arm Statute, Burger King may control the jurisdictional posture of the case here.  We can fairly assume, for example, that given the potentially lucrative advantage of a Little Caesars franchise in Worcester, El-Bayeh himself initiated direct contact with Little Caesars and not the other way around.  We can also reasonably assume that the parties’ franchise agreement contained substantial rights and obligations, possibly permitting El-Bayeh to address his concerns directly to Little Caesars in Michigan.  While we’re at it, let’s further assume that in the interest of business expansion, El-Bayeh had assented to a long-term relationship with Little Caesars.  And above all, let’s presume that El-Bayeh knew Little Caesars was located in Michigan. 

Assume all of the above, and it seems as though El-Bayeh has shown sufficient contacts with Michigan (availing himself of blah, blah, blah) to be justly required to defend against any alleged injury arising from those contacts.  If that’s the case, then Michigan could properly assert in personam jurisdiction over El-Bayeh, giving that state’s injunction sufficient bite to have the same enforced in Massachusetts. 

As an aside, I think El-Bayeh made a mistake in not responding to the action in Michigan because any adverse judgment on the merits from that court may be immediately binding upon him if he fails to successfully challenge Michigan’s personal jurisdiction in Massachusetts federal court.  But I think personal jurisdiction may be a given in this case.

I wish I knew the details of the motion for contempt, though, to discuss whether the court would allow it.  Mr. Chandler’s reference to prison made it especially interesting.  Thanks again Steve. 

CV

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Pepsi Follow Up: $1.26 Billion Judgment Vacated

Posted by CV on November 6, 2009

Hearing on Pepsi’s Motion was held earlier today.  The court vacated the billion-dollar judgment.  (See http://wcca.wicourts.gov/courtRecordEvents.xsl;jsessionid=411ABA71FE6B3E80C5B7CFF369CD52A0.render6?caseNo=2009CV000391&countyNo=28&cacheId=75E8CB5093A414FA383C00A4A9D1BB23&recordCount=28&offset=2&linkOnlyToForm=false&sortDirection=ASC).

Litigation proceeds, and unless other pre-trial dispositive motions are filed and allowed, plaintiffs will have to prove their misappropriation claims against defendants, Pepsico, Wis-Pak, and Carolina Canners.  A scheduling conference will be held on November 20, 2009.  Let’s hope Pepsi makes an appearance.  (See http://wcca.wicourts.gov/caseDetails.do;jsessionid=D10878136F1BE745EF936BF36F75CC09.render6?caseNo=2009CV000391&countyNo=28&cacheId=75E8CB5093A414FA383C00A4A9D1BB23&recordCount=28&offset=2&linkOnlyToForm=false&mode=details).

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Top (Trade) Secret: Pepsi Ordered To Pay $1.26 Billion For Default

Posted by CV on November 4, 2009

It’s as simple as this:  two plaintiffs filed suit in Wisconsin state court against Pepsico and two distributors, alleging the cola giant misappropriated trade secrets.  Pepsico did not answer the complaint.  It didn’t even appear in court!  Accordingly, a default judgment was entered against Pepsico, ordering the company to pay plaintiffs $1.26 Billion.

Again, “a default judgment was entered against Pepsico, ordering [it] to pay . . . $1.26 Billion.”  Pepsico is now seeking to vacate the judgment. 

Many have written about the story.  Few have reasonably speculated about the outcome.  Even fewer have made any legal sense regarding the issues confronting Pepsico at this stage of the litigation or made sensible predictions on Pepsico’s motion to vacate.  Here’s my two cents on the billion-dollar judgment against Pepsico.

The Story

On April 28, 2009, Charles A. Joyce and James R. Voigt (“plaintiffs”) filed a complaint against Pepsico (“Pepsi”) and distributors, Wis-Pak, Inc. (“WP”) and Carolina Canners, Inc. (“CC”) (collectively referred to as “defendants”) in Jefferson County Circuit Court, Wisconsin, alleging defendants misappropriated trade secrets.  Specifically, plaintiffs say they entered into contractually binding confidential talks in 1981 with one Arnold E. Fobes, then Vice-President of WP and CC regarding bottled water as a product idea.  That idea, plaintiffs contend, was improperly shared with Pepsi officials, who subsequently turned it into Aquafina.

Pepsi did not appear at scheduled court hearings in June and July, although counsel for WP and CC were present.  Accordingly, Judge Jacqueline R. Erwin entered the billion-dollar judgment against the company on September 30.  Reports say the $1.26 billion amount is approximately 20 percent of Pepsi’s recent annual profits, and is based on Pepsi’s operating margin for Aquafina over the last 5 years.  Plaintiffs called the figure “conservative,” implying that it could have been a lot more. 

It looks like the front desk did it for Pepsi.  Apparently, after plaintiffs filed their complaint, they mailed all necessary and related documents to Pepsi’s registered agent in North Carolina.  There, the secretary charged with managing correspondence admitted she received the letter, but put it aside while she prepared for an important board meeting.  She had forgotten about the letter, as it turns out, and did not forward it to Pepsi’s legal department for review.  On September 29, Plaintiffs demanded a default judgment and the court complied.

The same secretary received notice of the judgment on October 5, which she promptly delivered to Pepsi’s legal department.  Pepsi found out about the lawsuit and judgment the next day.  Meanwhile, attorneys presumably labored overtime to draft a motion and accompanying memorandum seeking to vacate the judgment, finally appearing in court for the first time on October 13 to explain everything.  The court will hear Pepsi on its motion to vacate this Friday, November 6, 2009. 

Is The Court Likely To Side With Pepsi and Vacate The Billion-Dollar Judgment?

Well let’s see.  To vacate a judgment (or court order) under Wisconsin law, Pepsi must show:

(a) Mistake, inadvertence, surprise, or excusable neglect; (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15(3); (c) Fraud, misrepresentation, or other misconduct of an adverse party; (d) The judgment is void; (e) The judgment has been satisfied, released or discharged; (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated; (g) It is no longer equitable that the judgment should have prospective application; or (h) Any other reasons justifying relief from the operation of the judgment.

Wis. Stat. § 806.07 (2009) (emphasis added).  According to reports, Pepsi has wisely pursued vacation only under subsections (a) and (h).  The others seem plainly inapplicable.  Furthermore, Wisconsin case law has construed the provision above to require an additional showing of a “meritorious defense,” or a defense good at law that would otherwise survive a judgment on the pleadings.  See  J.L. Phillips & Associates, Inc. v. E&H Plastic Corp., 217 Wis.2d 348 (1998) (interpreting the applicable standard in motions to vacate judgments). 

Think of it this way, Pepsi must show (1) excusable neglect OR a damn good reason for throwing out the billion-dollar judgment AND (2) that it has a legally sound defense to plaintiff’s allegations of misappropriation in order to prevail in court this coming Friday.         

Excusable Neglect

To make the best guesstimate as to the likely outcome, we need to know what “excusable neglect” really means.  Thankfully, not only have Wisconsin courts been so kind as to define it for us, they have provided examples too.

Wisconsin courts have essentially said that excusable neglect is not the same as ordinary neglect, carelessness or inattentiveness.  Excusable neglect is basically what a “reasonably prudent person” would’ve done in Pepsi’s position.  Giese v. Giese, 43 Wis.2d 456, 461 (1969).  I find it helpful to think of the reasonably prudent person as the one who is always alert and prepared for the mere possibility of mishaps – the last person you’d invite for drinks, as one of my bar instructors used to say.

Here go a short list of examples of what is not excusable neglect:  (1) pressure of a lawyer’s work alone is not it, (2) confusion about which attorney is retained to handle a matter AND confusion in forwarding papers from one office to another due to reorganization of a business is not it, and (3) a lawyer’s failure to answer a complaint because of her misplacement of client’s files during relocation is not it either.  J.L. Phillips,  217 Wis.2d at 363, n. 5.

Having gotten the first part of the two-pronged test for vacating judgments out of the way, has Pepsi excusable neglect OR an otherwise damn good reason to throw out the judgment?  Probably.

Pepsi is a giant producer of soft-drinks, incorporated in the state of New York with registered agents (offices charged with receiving and processing complaints like Plaintiffs’) in many places, including North Carolina, and offices everywhere in the world.  It carries out countless of business and legal transactions on a daily basis.  It encompasses a huge web of corporate officers and offices.  More importantly, Pepsi must get served with complaints of this kind routinely, making such ‘internal oversight’ not necessarily likely but rather understandable.  A reasonably prudent entity with comparable demands might become victim to its own corporate bureaucracy every now and then.  Moreover, as Pepsi attorneys have alleged, the $1.26 billion judgment is certainly unprecedented in size, particularly considering that the merits have yet to be heard.  The examples of what doesn’t constitute excusable neglect probably won’t apply here because they seem only hostile to neglect by attorneys rather than parties.  And even if they did apply to parties, they probably would not apply to a party with Pepsi’s level of corporate complexity.   

Finally, even if the court were in doubt about whether excusable neglect exists, sound policy counsels against leaving the judgment undisturbed.  Courts generally disfavor early disposition of cases without hearing the merits largely because the truth-seeking purpose of judicial inquiry is frustrated by such disposition.  Conversely, the policy favoring early disposition is not very much at play here.  That policy is basically designed to accord finality to judgments, punish the defaulting party, etc.  Given that Pepsi (1) acted promptly in responding to the order, (2) stands to incur an unprecedented financial loss without a chance to defend against Plaintiffs, and (3) had an understandable oversight given its size and corporate complexity, the policy favoring a disposition on the merits becomes even more significant and works to Pepsi’s favor.  Accordingly, the court is likely to find excusable neglect.     

Meritorious Defense

The analysis here shouldn’t be too complicated.

As noted earlier, in addition to excusable neglect, Wisconsin requires Pepsi to have a meritorious defense.  A meritorious defense is no more than a defense good at law enough to survive a judgment on the pleadings.  This prong won’t be at all difficult to satisfy. 

Pepsi has asserted a statute of limitations defense, among others, against Plaintiffs’ allegations of misappropriation pursuant to Wis. Stat. § 893.51(2), which requires a claim to be brought “within 3 years after the misappropriation of a trade secret is discovered or should have been discovered by the exercise of reasonable diligence.”

The confidential talks between Plaintiffs and officials from WP and CC regarding the bottled water idea occurred in 1981.  According to Pepsi, Aquafina has been sold in Wisconsin since 1996.  Accordingly, Pepsi argues that the 3-year limitations period began to run somewhere around 1996 as the Aquafina sales in the state should’ve alerted Plaintiffs to the alleged misappropriation.  However, Plaintiffs counter that the period should be tolled — maybe.  Nonetheless, the statute of limitations defense seems sufficiently meritorious to me.

On these facts, I think Pepsi has a strong chance of getting the relief they seek.  But we’ll see what the court does.  I’ll be interested to know myself.

With that said, here’s the best Pepsi commercial in the world!

CV

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Justice Just Is Not For Our (Latino) K.I.N.D.: Unaccompanied Alien Children Are Denied Counsel At Deportation Proceedings

Posted by CV on October 23, 2009

The American Dream, national borders, undocumented aliens, and deportation — we’ve heard enough about them.  Alien fathers, mothers, and families are mentioned.  But alien children without them have been completely ignored.  They are labeled “unaccompanied alien children.”  Naturally, the Kids In Need of Defense (“KIND”) organization, in partnership with national law firms and corporate counsel, has long offered them legal representation, and Soledad O’Brien’s CNN documentary, Latino in America, gave them a national voice last week.  Still, children are denied appointment of counsel during a critical stage.

Just Facts

The very circumstances that motivate migration inside our borders also compel emigration outside of them.  Most of us experience only the result.  All unaccompanied alien children cannot be said to simply emigrate from their home countries, where most of them actually escape from them.  The federal Office of Refugee Resettlement (“ORR”) reported that approximately 7,200 children came to the U.S. completely unaccompanied in 2008, escaping abuse, violence, abandonment, and poverty, or looking to reunite with family members, or searching for jobs to support family back home. 

The ORR is an office “within the Department of Health and Human Services” whose director is “appointed by the Secretary of Health and Human Services.”  8 U.S.C. § 1521(a).  It is charged with the obligation to “fund and administer (directly or through arrangements with other Federal agencies), in consultation with the Secretary of State” federal government ‘immigration and nationality’ programs.  8 U.S.C. § 1521(b).  Unaccompanied alien children are predominantly Latino.  In FY08, for instance, the ORR housed between 500 to 1500 unaccompanied children, of which 30.8% were Honduran, 27% Guatemalan, 23.4% El Salvadoran, 10.6% Mexican, 3.2% Ecuadoran, 0.8% Nicaraguan, and 0.5% Brazilian.  Furthermore, 78% of those children were male and 22% were female.  13% were 14 years old or younger.  All face the prospect of deportation. 

It is unlikely that any of them contemplated the legal implications of their actions before arriving.  And it is unimaginable that any of them can manage the resulting legal battle without counsel.   

A Borderline Issue

While the deportation process may begin upon execution of an arrest warrant, it is typically triggered by warrantless arrests.  An arresting officer with sufficient reason to believe that the arrestee is here unlawfully and that obtaining a warrant might otherwise permit arrestee’s escape is legally authorized to make a warrantless arrest.  By its own terms, federal regulation 8 C.F.R. § 287.3 applies to cases dealing with warrantless arrests.  Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004) (explaining applicable immigration statutes and regulations). 

Legalese

The regulation above sets forth preliminary deportation procedures beginning with “examinations,” which are generally conducted by a non-arresting officer and mainly regard the manner of entry to the states.  If the examining officer finds sufficient evidence of unlawful entry, he may refer the case to an immigration judge or consider expedited removal alternatives, including voluntary departures.  There, the alien will be given reasons for the arrest and a list of organizations offering free legal services.  Hiring private counsel is always an option.  Absent voluntary departure, finally, a decision regarding deportation should be made in approximately 48 hours.  8 C.F.R. § 287.3(a)-(d). 

Said regulation applies to children with equal force.  Although, a separate regulation requires children to communicate with a parent, adult relative, friend, etc. before assenting to a voluntary departure.  Reno v. Flores, 507 U.S. 292, 307 (1993).  Voluntary departure seems to be a form of expedited removal under which deportation hearings, etc. are essentially waived. 

However, even under expedited removal, the Immigration and Nationality Act (“INA”) permits an immigration court to engage in “credible fear review” if the alien has expressed fear of persecution or intent to apply for asylum.  The regulations appear to require a preliminary determination of credible fear by an immigration official, and allow the alien to submit an adverse decision to an immigration judge for de novo review.  The ‘credible fear review’ standard requires a showing of  “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.” INA § 235(b)(1)(B)(v).    

Not Legal Ease, At All

Beyond the voluntary departure stage, however, children proceed to standard age-determination techniques designed to find their corresponding place of detention while their matters are reviewed — the Department of Homeland Security assumes custody over adults while the ORR does so over children.  There are additional rights aliens enjoy during early stages of detention such as notice of detention to their respective consulates under relevant international treaties.    

Eventually, a hearing will be scheduled unless the child has waived it.  That waiver is apparently revocable, however.  Reno, 507 U.S. at 307-308.  And apart from potential asylum (provided a successful showing of credible fear), children have other real options for relief.  For example, the U.N. Convention Against Torture protects children who have experienced or fear torture at the hands of their government, which may operate to delay deportation, if not postpone it indefinitely.  Special Immigrant Juvenile Status (“SIJS”) is also available for abuse victims resulting from domestic violence, abandonment, or neglect.  Children who were victims of trafficking may also qualify for a T-visa.  There are other forms of relief available to children.

Finally, once a deportation hearing is held and a decision is made, aliens can appeal the decision and have the case submitted for further review.  And it is at these stages, presumably, where the much of the outrage is targeted.  Indeed, it’s been reported that as many as half of all unaccompanied children endure said hearings without counsel, and counseled children are more likely to be granted some form of relief than their un-counseled counterparts.  Perhaps even more outrageous is that many more children would actually qualify for relief but for the lack of counsel. 

In Short:

While some might reasonably argue that these issues merit legislative rather than judicial consideration, I would submit that: (1) courts are no strangers to remedying wrongs that are profoundly offensive to our sense of justice, like subjecting children to mount a legal defense in matters which imminently threaten their health, personal safety, and lives in some cases; and (2) alternatively, if the courts decline to provide an appropriate remedy on account of political impediments, courts are certainly competent to supply every stage of detention with a sort of burden-shifting legal framework that will reduce the apparent injustices resulting from un-counseled defenses.

“Laws control the lesser man . . . Right conduct controls the greater one.”  –Mark Twain

If you didn’t get through, or even bother to read, either the legal-ease or the not-legal-ease sections of this note because it was simply boring, that’s okay — really.  I intended for it to have precisely that effect on you to show the unrealistic expectations of our legal system.  Mind you, the rules I referenced above are but a fraction of the entire body of immigration law that children are expected to understand if they wish to prevail in deportation proceedings — original hearing and subsequent appeal. 

I’ll admit I had a tough time reading these rules, and I enjoy reading and researching law.  But researching immigration law felt particularly challenging.  Every provision contained a labyrinth of cross-referencing, as though its drafters desired to discourage research and understanding for some reason.  And case law had its own set of challenges.  This is only substantive law, by the way, procedure is certainly another ball game — pick your poison.  (For a comprehensive discussion of immigration law see Navarro-Chalan v. Ashcroft, 359 F.3d 19 (1st Cir. 2004))

But it isn’t just us who find the relevant law especially challenging.  Immigration judges themselves admit immigration law can be a world of confusion, at least procedurally.  Accordingly, they published a manual in February 2008 to help people understand and apply local procedure with less difficulty.  In Chapter 1 of said manual, the court explains their Legal Orientation and Pro Bono Program (“LOPBP”) that was designed to help aliens understand their rights, generally, and find affordable legal assistance.  That’s the gist of it anyway.  They also outline the jurisdiction of the court and additional legal recourse after a final decision by the court.  The manual, and particularly its LOPBP, is a commendable effort, although unaccompanied alien children still may not benefit from it.

The Constitution has been interpreted to require appointment of counsel to indigent criminal defendants facing possible jail time.  Regarding juveniles, however, case law also makes it “unquestionably clear that juvenile court proceedings that affect a young person’s substantial rights must measure up to the essentials of due process and fair treatment . . . in the same manner as must criminal proceedings affecting the substantial rights of adults.”  Kemplen v. Maryland, 428 F.2d 169, 173 (4th Cir. 1970) (writing in the context of a juvenile jurisdiction waiver hearing).  Courts have reaffirmed that “[i]n all cases children need advocates to speak for them and guard their interests, particularly when disposition decisions are made. It is the disposition stage . . . in which the danger inheres that the court’s coercive power will be applied without adequate knowledge of the circumstances.”  Id. at 175 (same). 

While the law above may refer to a different context, the principles underlying it absolutely may apply to unaccompanied alien children as well.  In fact, I see little difference, if any, between the perils of criminal adjudication and deportation, considering the latter implicates imminent child abuse in the form of domestic violence, neglect, and extreme poverty.  To that extent, I submit that a child’s substantial rights are seriously compromised and urgently require appointment of counsel.  But put aside substantive law for a moment and consider the procedural demands a deportation proceeding entails.  Perhaps the most significant being the ensuing appeals process, which may be available to aliens who disagree with a judgment against them.  However, should a child miss the usually strict deadlines applicable to filings, etc., any and all legimitate claims may be forever lost as a result.  Same thing may be true with objections during the hearing. 

Some may counter that these are policy issues appropriate for a legislature rather than the judiciary.  I disagree.  This is certainly a matter of Constitutional interpretation.  The issues surrounding appointment of counsel to unaccompanied alien children are no different than those which motivated the Supreme Court to decide in Gideon v. Wainwright that counsel must be provided to indigent criminal defendants facing possible jail time.  It’s not at all a stretch to suggest that the principles which compelled Gideon should be held to apply in the context of vulnerable children who are accused of unlawful entry and face imminent dangers on deportation.    

Even if courts would consider it a stretch, it is well within the courts’ judicial province to apply a burden-shifting framework favorable to unaccompanied alien children.  That is, upon determination of proper age, children should enjoy a presumption of qualification for some type of relief.  The Government, in turn, should be held to carry a heightened burden of persuasion respecting relief.  A child should not be expected to request it, let alone prove their qualification.  In other words, because no counsel is appointed children, and because they are vulnerable, and because they face imminent danger on return, I don’t find it at all unfair to require the Government to disprove a child’s presumed qualification for relief.  

Children charged with crime are already entitled to appointment of counsel.  Are we then to encourage alien children to commit petty criminal offenses during detention, sufficient to implicate jail time, in order to be appointed defense counsel whose defense may require addressing overlapping immigration issues?  Is this really the only alternative?  Is it a bad one? 

I firmly believe that legal principles permit my suggestion and fundamental justice requires it.

CV

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Reports Say Supreme Court ‘Only Had A Couple’: Judges Side Step DWI Case Over Two Dissenting Justices

Posted by CV on October 21, 2009

It’s Operating Under the Influence (“OUI”) in Massachusetts.  It’s Driving While Intoxicated (“DWI”) in Virginia.  It’s unlawful everywhere.  And its relation to the Fourth Amendment protection against unreasonable searches and seizures is an issue the U.S. Supreme Court declined to address yesterday.  Only Justice Scalia and Chief Justice Roberts dissented.  See Virginia v. Harris, 2009 U.S. LEXIS 7645 (U.S., October 20, 2009).

To summarize the procedural history of the case, the Commonwealth of Virginia requested review of a Virginia Supreme Court decision that effectively threw out incriminating DWI evidence against Defendant Harris.  To put it simply, Harris was subjected to a traffic stop by a police officer, arrested and charged with DWI.  During trial, Harris moved to suppress incriminating DWI evidence, arguing the officer did not have sufficient reasonable suspicion to effect the stop as required by case law interpreting the Fourth Amendment to the Constitution.  The trial judge denied Harris’ motion and allowed the evidence.  Harris was consequently convicted.  His conviction was further affirmed on direct appeal, but the Virginia Supreme Court ultimately reversed the trial court’s decision to allow the evidence, rendering the remaining evidence, if any, insufficient to support Harris’ DWI conviciton.  So he walked.  The Commonwealth accordingly sought review.

Harris Facts

I hope the facts of this case, while interesting, are not intimately familiar to you at all.  In summary, Harris was driving his green Altima around town on New Year’s eve in 2005.  Meanwhile, a police dispatcher received an anonymous call describing Harris, his vehicle, the area, a fraction of his plate numbers, and accusing him of drunk driving.  An officer was promptly dispatched to the area mentioned. 

Once there, the officer pulled up behind the Altima and followed it.  According to the officer, Harris was under the speed limit throughout this episode, activating his breaklights three times – the first time he slowed down at an intersection on which he had the right of way; the second time he slowed down 50 feet prior to a red traffic light; and the third time Harris finally pulled over to the side of the road on his own initiative.  The officer also pulled over and activated his overhead lights signaling a traffic stop.  The officer approached Harris’ vehicle and smelled alchohol, noticed Harris’ glossy eyes and slurred speech.  He proceeded to arrest Harris for DWI. 

DWI and Fourth Amendment

We all know the Fourth Amendment protects against unreasonable searches and seizures.  Less known is that a traffic stop may fall within the definition of “seizure.”  Perhaps even more obscure is the unwavering command that to make a lawful stop, an officer must have reasonable suspicion that a crime is afoot.  More interestingly, however, where an anonymous tip forms the basis of an officer’s suspicion, some jurisdictions (Virginia and Massachusetts being two of them) require some indicia of reliability regarding the alleged crime to justify a stop.  Said indicia may be had in the form of corroboration through observations by the officer. 

In his motion to suppress, presumably, Harris challenged precisely that.  He would have been wise to argue that the officer did not observe anything corroborative of DWI, as the anonymous tipster had charged, and the officer therefore lacked reasonable suspicion to justify the stop.  And according to the fruit-from-the-poisonous-tree doctrine, whatever evidence the officer collected against Harris resulted from an unlawful stop and should be suppressed.  The Virgina Supreme Court apparently bought it. 

Chief Justice John G. Roberts Enters the Mix

That is the legal issue that Chief Justice John Roberts thought merited review.  The Supreme Court is, by choice and Constitutional mandate, a court of very limited jurisdiction.  Apart from few cases over which the Court has original jurisdiction, the rest of them reach the Court by permission (or writ of certiorari).  This is one of those many cases that applied for the writ and was denied. 

One of the issues, if not the only one, the Court would’ve been asked to resolve may have been (1) whether an anonymous tip alleging DWI, having a descriptive and some predictive elements, coupled with innocent corroborating facts but no clear indication of the crime anonymously alleged, is sufficient reasonable suspicion to justify a stop for purposes of the Fourth Amendment. 

Chief Justice Roberts seems to have been persuaded to review the case because of the nature of the crime alleged — drunk driving.  He writes that “[t]he decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road — by which time it may be too late.”  Justice Roberts further notes that many jurisdictions do not consider it Constitutionally offensive to permit officers to stop suspected drunk drivers without signs of unsafe or dangerously erratic driving, while others find otherwise, warranting a clear answer from the Court.  “The stakes are high. The effect of the rule below will be to grant drunk drivers ‘one free swerve’ before they can be legally pulled over by police,” said Justice Roberts.  Finally, he concludes that “[i]t will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.”  Justice Scalia joined his dissent.

I…

…admire Justice Roberts, despite his ideology.  But I shudder to think that his dissent maybe says too much about the types of cases he desires to explore, as well as his stance on the issues raised.  His position on the issue above, for instance, is one favoring more intrusion, and by extension, less Constitutional protection in criminal justice matters.  Although I very much credit his concerns, the tone in his dissent, the Justice joining him, and the effort invested in drafting a passionate dissent on a mere petition for review raises some concern, from me anyway. 

I wonder, could Chief Justice John Roberts be looking to make his own distinguishing mark on the high court by gently stripping the layers of criminal jusrisprudence in which Chief Justice Earl Warren so warmly dressed defendants?  If he were so looking, to what extent do the Fourth, Fifth, and Sixth Amendments permit such Constitutional striptease?      

CV

 

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