The Ohio Supreme Court ruled last week that a prosecutor must pay attorney fees to The Cincinnati Enquirer for withholding 911 recordings, that newspaper's Kevin Grasha reports. The prosecutor did not have legal authority to withhold the recordings from a murder case, the court ruled, and must pay attorney fees to the newspaper.
The first lawsuits have been filed to challenge the Federal Communications Commission's new rules prohibiting internet service providers from treating Internet traffic unequally, The New York Times' Rebecca R. Ruiz reports. The United States Telecom Association, as well as a small broadband provider in Texas, have filed the lawsuits against the rules that reclassify broadband Internet providers as common carriers and would prohibit ISPs from blocking, slowing down or speeding up users' access to content. The rules were just released 11 days ago.
The New York Times' Adam Liptak writes that corporations, rather than protesters and civil rights activists, are becoming the main beneficiaries of the First Amendment. Harvard law professor John C. Coates IV has conducted a study finding that "'corporations have begun to displace individuals as the direct beneficiaries of the First Amendment.'" Coates found that First Amendment cases involving businesses have risen before the U.S. Supreme Court, while First Amendment cases involving individuals have fallen.
Legislation has been introduced in Delaware to open up that state's two public universities to public-records requests, The News Journal's Jon Offredo reports. A similar effort was made last year, but the bill was narrowed to only require the universities to supply documents related to contracts funded with taxpayer dollars. Delaware and Pennsylvania are the only states that exempt public universities from open records laws.
The prognosis for the legislation may not be strong. Sponsor Rep. John Kowalko, however, was removed from the House Education Committee and stripped from his chairmanship of the House Energy Committee after criticizing the governor's education policies, Offredo reports.
Utah has enacted a law that allows county clerks to opt out of performing same-sex marriage on religious grounds as long as somene else in their office is willing to perform them, reports Fox 13, the affiliate in Salt Lake City: "The bill was an attempt to address religious objections over same-sex marriage, while also guaranteeing what the courts had ordered when it legalized such unions last year."
Securities and Exchange Commission Chair Mary Jo White expressed concern this week about corporate bylaws that force shareholders to pick up legal bills if they lose their lawsuits against boards of directors, Reuters reports. The Delaware Supreme Court upheld that sort of bylaws in May, even though, under the "American rule," each litigant normally has to pay for its own legal costs.
The American Civil Liberties Union is challenging the airport-security practice known as behavioral detection in which officers send "suspicious passengers" for additional screening, the Washington Post's Josh Hicks reports. The ACLU has filed a Freedom of Information Act lawsuit because the Transporation Secuirty Administration hasn't turned over any records about the practice, which advocates suspect leads to racial profiling.
Senate Republicans, which have been in charge of the legislative chamber since the start of the year, have not confirmed any of President Obama's 16 pending judicial nominees, Huffington Post's Jennifer Bendery reports. U.S. Attorney General nominees Loretta Lynch also has been waiting for a confirmation vote.
Eight of those nominees are for courts facing "judicial emergencies" because the number of cases per judge on those courts is more than 600 or has stayed between 430 and 600 for more than 18 months, Bendery reports.
A spokeswoman for Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, told Bendery the nominees are not moving because Democrats moved to confirm 11 judicial nominees in the lame-duck session at the end of 2014, instead of holding them over and letting new members of Congress review them.
J. Jean Johnson was delivered into this world by a Mississippi midwife, and he never did have a birth certificate or photo ID.
All he had was a social security card and his identification card from his job as a city garbageman. But that was not enough for Memphis Light, Gas & Water, which denied Johnson electricity, heat and air conditioning because he did not have state-issued photo identification. In August 2011, Johnson, an illiterate man with intellectual disabilities, died of heat stroke when the internal temperature of his apartment reached 93.2 degrees.
Even though Johnson’s niece and coworker both testified that he was unable to care for himself without help and that he often became frustrated when communicating with others, U.S. District Judge S. Thomas Anderson ruled that the time period for Johnson’s wife and sister to bring claims against the utility company had expired.
The U.S. Court of Appeals for the Sixth Circuit recently reversed the judge, ruling that a jury should decide if Johnson was of “unsound mind” and if his intellectual capacity tolled the time period in which his relatives can sue the utility.
Circuit Judge Jane B. Stranch noted that the test for whether a person’s unsound mind will pause, or toll, a statute of limitations is “‘whether a person could know or understand his or her legal rights sufficiently well to manage his or her personal affairs.’”
“The deposition excerpts and affidavits read together plausibly show Johnson to have been an individual with extremely limited intellectual abilities who lacked the capacity to ‘carry out legal functions,”’ Stranch said. “He was able to function somewhat independently only with the regular assistance of family, friends, and co-workers. The record suggests that Johnson, poor and apparently disconnected from social services, was as dependent on such informal networks as a comparably disabled middle-class individual might be dependent on an assisted living facility or a court-appointed guardian.”
An even more heart-wrenching aspect of the case is that there was an exception to the ID policy that probably should have applied to Johnson.
When Johnson tried to get utilities in 2010 at the age of 65, the utility company had an exception to the requirement that customers show valid government-issued ID— if people were in their sixth decade or older. “But MLGW did not train employees regarding how to advise customers who did not possess the necessary photo identification, nor did it train employees on how to deal with customers who were illiterate,” Stranch noted.
Here's a piece I wrote for the Connecticut Law Tribune regarding a Connecticut financier who alleges his Manhattan art dealer defrauded him:
The art world has become a big business, with more than $6 billion in modern art and $1.26 billion in contemporary art sold in 2011. And with big business comes big litigation.
Multiple lawsuits filed by a Connecticut financial executive alleging that his Manhattan art dealer defrauded him illustrates the stakes raised when buyers spend thousands, even millions, of dollars procuring art.
Richard C. McKenzie Jr., a Greenwich-based financier, has spent $200 million on art for his Seven Bridges Foundation, which aims to support up-and-coming artists by purchasing their work. The foundation also displays paintings by famous artists in order to inspire budding artists.
In a lawsuit pending in Connecticut federal court, McKenzie alleged that he was defrauded into buying an allegedly fake Pierre-Auguste Renoir painting, an Auguste Rodin sculpture and a Ernst Barlach bronze cast for a total of close to $570,000 by Manhattan gallery Forum Gallery. McKenzie asserts that Robert Fishko, the proprietor of Forum Gallery, befriended McKenzie's former wife and McKenzie himself, gained their trust and nurtured a business relationship that turned fraudulent.
McKenzie also is seeking punitive damages for $1.7 million.
In total, Forum Gallery and Fishko were paid $11.8 million during the dozen years Fishko was McKenzie's exclusive agent in finding art for his collection, according to the plaintiff's court papers.
In a separate lawsuit in New York federal court, McKenzie asserted that Forum Gallery and Fishko marked up the costs of procuring paintings by Norman Rockwell and other artists. McKenzie also alleged that Forum Gallery violated the contract it had with him on the terms on which it was to buy art for him on the primary and secondary markets.
McKenzie stated in court papers that a principal of a competing gallery told him that Fishko bought a Ralph Goings painting on his behalf at such a high price that the gallery pocketed $398,125, or a 114 percent profit. Fishko responded in court papers that the profit margin was only 13.1 percent.
In an interview, Fishko said that his long-time business relationship with McKenzie went sour after a California-based art dealer told McKenzie that Fishko's gallery had been overcharging him and misrepresenting the value of the art it had sold him. Fishko denies this. "I'm very proud of the work that I do for the artists that I represent and I'm very, very sure that Mr. McKenzie and the Seven Bridges Foundation … received everything that he bargained for and more," Fishko said.
There was no wrongdoing, fraud or violations of contractual or fiduciary obligations, Fishko added.
All the allegations in the New York case were struck down this month after U.S. District Judge Laura Taylor Swain, of the Southern District of New York, ruled against McKenzie's claims for fraud, breach of contract and breach of fiduciary duty. The judge said McKenzie could not show that Fishko misrepresented the prices at which sellers were willing to deal regarding the Rockwell and Goings paintings.
"Plaintiffs' evidentiary proffers fall far short of the clear and convincing showing required to demonstrate fraud," Swain said.
McKenzie has filed a third amended complaint in the Connecticut lawsuit pending before U.S. District Judge Janet Bond Arterton, but the judge has not yet made a decision on allowing the submission of the complaint. In the complaint, McKenzie set out a cloak-and-dagger scenario in which Fishko led him through Paris back alleys to a dimly lit apartment of a seller in financial straits to induce him to buy a fake Renoir painting. Fishko called that allegation an "absurd fabrication."
Even though McKenzie bought the Renoir painting in 2000, the Rodin sculpture in 2002, and the Barlach bronze cast in 2002, he alleges that he did not have reason to discover that the works were allegedly fake or inauthentic until 2014 when the various' artists committees decided to not include his property in their catalogs.
However, Fishko's counsel, Andrew Nevas, of Verrill Dana in Westport, said in court papers that his clients have provided proof of the authenticity of the artistic works. "McKenzie's willingness to advance knowingly inconsistent and false allegations is, sadly, not a surprise, as he is a serial and vexatious litigator," defense documents stated.
Forum Gallery's and Fishko's counsel maintain that the statute of limitations on all of McKenzie's claims have expired because he did not conduct due diligence about the authenticity of the Renoir and the two sculptures until 2014. "McKenzie, an extraordinarily sophisticated plaintiff who has purchased tens of millions of dollars of art, cannot evade the obvious fact that he had the means available to him to verify Forum's alleged representations himself," the defense said.
The defense is also going to seek sanctions for the prosecution of "patently unfounded, insufficient and time-barred claims."
Eric Grayson, the founder of commercial law boutique Grayson & Associates in Greenwich, said in an interview that his client can prove the higher standard of clear and convincing evidence needed to show fraud in the Connecticut lawsuit. The true test of the authenticity of the Rodin, Barlach and Renoir artworks is whether Fishko would "buy the three pieces back if he's that convinced that they are authentic works," Grayson said.
Fishko "took advantage of relationships that he had with Mr. McKenzie," Grayson said. "We are going to pursue this diligently with vigilance."
As for the New York case, McKenzie is a considering an appeal, Grayson said.
Fishko said there has been a sea change in the art business in the last 20 years because many investors now "come into the art business because they feel it's either a good place to put money or invest money." But the whole reason for Seven Bridges Foundation and McKenzie's art procurement was not for investment but to promote art by inspiring art, Fishko said.
Outside art law expert Robert A. Darwell, the founder of Sheppard Mullin Richter & Hampton's art law practice and a senior partner at the firm, said that there has not been an increase in litigation specifically because there is a new wave of collectors entering the art market. But because the value of art has been rising and there are more investors in the art world, Darwell said "it tends to lead to heightened sensitivities and potential claims."
Art appraisers, museums and galleries are facing more litigation, including for speaking freely about the authenticity of works, Darwell said.
Lawyer and Legal Journalist
