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Defections lead to new law firm
Headline News | 2007/10/18 08:28

Three lawyers split from personal injury attorney William Mattar and formed their own practice.

Dean Smith, Joseph Bergen and Todd Schiffmacher broke from the Law Offices of William Mattar on Oct. 15 and opened Smith Bergen & Schiffmacher LLP the next day.

The office is located at 1207 Delaware Ave., Suite 219, in Buffalo.

Bergen said the three left because of differences in business practices including "increasing pressure on the attorneys to settle cases."

Mattar said the three "quit by their actions" and that their claims "are pure opinion and not substantiated."

Mattar said Bergen was employed there for several years while Smith and Schiffmacher were there for one year each.



Supreme Court Pursues Microsoft, Best Buy Case
Lawyer Blog News | 2007/10/17 16:42

The Supreme Court Monday rejected an appeal in the racketeering case against Microsoft and Best Buy that alleges consumers had MSN accounts activated and were charged for them without their knowledge when they purchased new PCs at the big box store. The two companies were trying to overturn the reinstatement of the 7-year-old case that was handed down in May 2007 by the 9th U.S. Circuit Court of Appeals in San Francisco.

In that ruling, the court reinstated the case, which accuses Microsoft and Best Buy of violating the Racketeer Influenced and Corrupt Organizations (RICO) Act.

The Supreme Court allowed the ruling to stand.

The two companies will now face a class-action lawsuit involving thousands of consumers and potentially hundreds of millions of dollars in damages.

Allegation of RICO violations are typically seen in cases of organized crime, such as the conviction of mobster John Gotti. RICO, however, is now being used in some civil cases and plaintiffs can be awarded triple the amount of their claimed damages.

In the Microsoft/Best Buy case, plaintiff James Odom complained that during the purchase of a new computer at Best Buy he was enrolled in a free-trial subscription to Microsoft's MSN Internet service without his knowledge and then his credit card was charged for the service once the trial period had expired. He says other customers paying with credit or debit cards also were enrolled in the same fashion.

The suit alleges wire fraud in the transferring of his financial data and, therefore, a violation of the RICO Act.

Odom charged the pair violated RICO in part due to an agreement under which Microsoft invested $200 million in Best Buy and agreed to promote Best Buy's online store through its MSN service. In return, Best Buy agreed to promote MSN service and other Microsoft products in its stores and advertising. The agreement, Odom alleged, led to the MSN enrollment issue.

We conclude that plaintiffs have alleged facts that, if proved, provide sufficient evidence that the various associates function as a continuing unit', the 9th Circuit Court wrote in its findings. The continuing ruling means the behavior by Microsoft and Best Buy was ongoing and not an isolated incident. The court also wrote that if the allegations are true that they establish that the pair shared a common purpose to increase MSN subscribers through fraudulent means.

In papers filed with the Supreme Court, the two companies said their joint marketing did not constitute an ongoing enterprise.

Microsoft officials told Bloomberg News in May after the 9th Circuit Court's decision that the ruling was procedural and did not reflect on the merits of the case. The MSN subscription program at Best Buy concluded in 2003 when Microsoft began to offer refunds to customers.



House Democrats split on Armenian 'genocide' bill
Lawyer Blog News | 2007/10/17 16:37

A House vote on whether to label as genocide the killings of 1.5 million Armenians by what is now Turkey -- a resolution that deeply offended that key U.S. ally -- could be delayed as Democrats hash it out. While top Bush administration officials and powerful Democrats press colleagues to scrap the measure, House Majority Leader Steny Hoyer on Tuesday appeared to hedge his pledge to bring it to a full vote before November's holiday recess.

"I said I thought we would bring this up prior to us leaving here," said Hoyer. "I have not changed on that, although I would be less than candid [not] to say that there are a number of people who are revisiting their own positions."

President Bush called on House leaders Wednesday to abandon the measure. "Congress has more important work to do than antagonizing a democratic ally in the Muslim world, especially one that's providing vital support for our military every day."

Bush also said at a Wednesday news conference that "... one thing Congress should not be doing is sorting out the historical record of the Ottoman Empire," the predecessor of modern Turkey.

By a 27-21 vote last week, the House Foreign Affairs Committee adopted the resolution, which formally identifies the killings as genocide. Turkish officials acknowledge the killings of Armenians during World War I but vehemently object to the designation "genocide."

The U.S. and Iraqi governments fear the proposed resolution could harm Washington's influence with Turkish officials who want to launch military raids against Kurdish rebels in northern Iraq. Washington officials are concerned the Turkish raids would further destabilize the region.



Supreme Court dumps Microsoft, Best Buy appeal
Lawyer Blog News | 2007/10/16 15:11
The Supreme Court Monday rejected an appeal by Microsoft Corp. and a unit of Best Buy Co. Inc. to dismiss a lawsuit alleging violation of racketeering laws through fraudulently signing up customers for Microsoft's online service. The companies asked the justices to overturn a May ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals, which said the civil suit could proceed. The Supreme Court is letting that ruling stand, which means the class-action lawsuit involving thousands of consumers with complaints against the companies will be litigated in federal district court.

Originally filed by one consumer in northern California, the lawsuit claims the companies' joint venture violated the Racketeer Influenced and Corrupt Organizations Act, or RICO, which is usually used in organized crime cases. Successful RICO claims provide for triple damage awards in civil cases.

In a friend-of-the-court filing on behalf of the companies, the U.S. Chamber of Commerce said the filing of civil cases invoking RICO is out of control and urged the Supreme Court to hear the case as a way to determine whether the use RICO should be reined in.

Under the joint venture, Microsoft invested $200 million in Best Buy in April 2000, and agreed to promote the company's online store through its Internet access service, MSN. In turn, Best Buy agreed to promote MSN in its stores.

The dispute began in 2003, when James Odom sued the companies after purchasing a laptop computer at a Best Buy store. Odom alleged that Best Buy included a software CD with his purchase that provided a six-month free trial to MSN.

Best Buy allegedly signed Odom up an MSN account with the credit card Odom used to pay for the computer. After a six-month free trial ended, Microsoft began charging him for the account, the suit charged.

Odom is one of two lead plaintiffs in a class-action suit involving thousands of consumers with similar claims, said Daniel Girard, a lead attorney on the case in San Francisco.

The lawsuit alleges the companies violated RICO by engaging in wire fraud when they electronically transmitted the plaintiffs' financial information. The plaintiffs are claiming damages in the "tens of millions," which if tripled would top $100 million, Girard said.

Microsoft has denied illegal conduct in response to these allegations and a Best Buy spokeswoman says the company does not comment on pending litigation.

In papers filed in court, the companies said their joint marketing agreement did not constitute an ongoing "enterprise," as required under the RICO statute.

The appeals court ruling that the companies' venture constituted an enterprise would greatly expand RICO's scope, Microsoft and Best Buy said.

The 9th Circuit's decision would "convert a statute designed to eradicate organized crime into a tool to induce settlements from legitimate businesses," the companies said. Most corporations "cannot risk the possibility of an award of treble damages" or the "reputational injury" of being sued under a law "associated with racketeers and mobsters," they added.

In its filing, the Chamber said civil RICO "is becoming one of the most frequent and damaging devices used against businesses." Over 4,500 RICO cases have been filed since 2001, the Chamber said, with only 35 of those filed by the government.

The case is Microsoft Corp. v. Odom, 07-138. Chief Justice John Roberts did not participate in the decision to turn down the case, the court said. As is customary, no reason was given, but Roberts' 2006 financial disclosure shows he owned Microsoft stock that year.



Craig Opens Another Legal Battle
U.S. Legal News | 2007/10/16 14:12
Sen. Larry Craig has opened a new round in his legal battle stemming from his airport restroom arrest, appealing a judge's refusal to let him to withdraw his guilty plea to disorderly conduct. Craig's appeal was filed Monday at the Minnesota Court of Appeals, less than two weeks after Hennepin County District Court Judge Charles Porter refused to overturn the plea.

The four-page filing did not detail the basis for the appeal, noting only that Craig was appealing Porter's Oct. 4 order. The documents were dated with Friday's date but were received and stamped by the Appeals Court on Monday.

"From the outset, Senator Craig has maintained that he is innocent of any illegal conduct at the Minneapolis airport," Craig's lead attorney, Billy Martin, said in a statement. "Like every other citizen, Senator Craig has the constitutional right to make every effort to clear his name."

Craig, a Republican from Idaho, pleaded guilty to disorderly conduct in August after he was accused of soliciting sex in a bathroom at the Minneapolis-St. Paul International Airport in June.

A spokesman for the Metropolitan Airports Commission, which owns and operates the airport, said the guilty plea reflected Craig's conduct in the public restroom.

"The facts in the case speak for themselves, and we are confident the senator's guilty plea will stand," spokesman Patrick Hogan said in a statement.

The appeals court must find there's been an "abuse of discretion" by the trial judge before overturning a ruling — in other words, that some aspect of the ruling was decided improperly.

It would most likely be well into 2008 before the Court of Appeals rules on the case. The process by which both sides prepare their legal briefs alone usually stretches to more than 100 days, and the Court of Appeals faces a heavy caseload.



Calif. Court OKs Sex Offender Arrests
Court Feed News | 2007/10/16 13:09
Parole agents can continue sweeps of sex offenders living too close to schools and parks after the state Supreme Court refused to grant a broad injunction halting the arrests. The court had blocked the state from arresting four parolees who claimed the so-called Jessica's Law is too vague and unfairly punishes offenders after they are released from prison.

But in Monday's ruling, the court refused to apply that protection to hundreds of other paroled sex offenders, saying they needed to look to lower courts to get their own injunctions.

Parolees' attorneys said they are not immediately sure if they will ask a lower court for an injunction covering the affected parolees.

The state Supreme Court is considering whether the law is constitutional as it applies to the four parolees, meaning attorneys representing additional sex offenders could simply wait for a decision.

"We have to give it some time to figure what our next move is," said Don Specter, director of the San Rafael-based nonprofit Prison Law Office.

The group filed the lawsuit with another firm on behalf of the four parolees and sought the wider injunction.

Parole agents began the sweeps last week under the law, which sets strict residency requirements for recently released sex offenders to keep them away from children. About 850 parolees were in violation.

Gov. Arnold Schwarzenegger ordered agents to start revoking paroles despite the high court's decision to block the arrests of the four sex offenders who were violating the residency requirements.

The state corrections department could not immediately say how many offenders have been arrested since the crackdown began, spokesman Seth Unger said.

The state had said it had notified 1,800 parolees that they were in violation of the residency portion of the law, and gave them 45 days to move. As of Thursday, the state said, roughly 850 parolees were still in violation.

Jessica's Law, passed with 70 percent support from California voters last November, is named after a 9-year-old Florida girl who was kidnapped, raped and murdered by a convicted sex offender in 2005. It prohibits offenders from living within 2,000 feet of a school or park where children regularly gather.

Critics say Jessica's Law is forcing sex offenders to become homeless or move from towns and cities into rural areas because they cannot find housing that meets the law's requirements in more populated areas.

Similar laws in Florida, Iowa and other states also have led to questions over where sex offenders can live once they finish serving their prison sentences.



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