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Supreme Court Weighs 5 Age Bias Cases
Lawyer Blog News | 2008/02/17 20:58
There is only one anti-bias law — the one against discrimination based on age — that would cover all nine Supreme Court justices, if such laws applied to them.

The justices, ranging in age from 53 to 87, are the last people to worry about such things in their own lives. They have life tenure and no mandatory retirement age.

Yet the justices are confronted by allegations of age discrimination in five cases this term. While the sheer number of cases probably can be explained away as coincidence, the topic is one of growing importance as more people work longer because of economic necessity or by choice.

"The importance of protecting older workers as the work force ages is enormous," said Stu Cohen, AARP's director of legal advocacy. "More older workers remain in the workforce and projections are that the percentage will continue to expand."

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year, AARP said. For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

The Age Discrimination in Employment Act applies to workers who are at least 40. It prohibits discrimination based on age in hiring and firing, promotions and pay.

"Literally every employee at some point is going to be protected by it because all of us get older. It's true whether you are a male, female, minority or not. It's not true for any other statute. It's a very broad class of protected people," said Steven R. Wall, a partner at the Morgan, Lewis & Bockius law firm in Philadelphia.

The cases at the court this year include what kind of evidence an employee may present to bolster an age discrimination claim; whether retirement-age workers are entitled to disability payments; and whether federal workers who complain about age discrimination are protected from retaliation.

The last issue is the subject of oral arguments Tuesday in a case involving a postal worker in Puerto Rico who complained of both discrimination and retaliation. Federal courts dismissed the retaliation claim, saying there is nothing in the age discrimination law that allows such claims by federal employees.

Other anti-discrimination laws do provide protection from retaliation for government workers, said Eric Dreiband, former general counsel to the Equal Employment Opportunity Commission. The language in the laws are different "and it would appear deliberately different," Dreiband said.

The AARP and the National Treasury Employees Union are backing the employee.

The most important case from employers' perspective involves "me-too" evidence in a lawsuit filed by a woman who was 51 when she was laid off by a subsidiary of Sprint Nextel Corp.

The fight at the Supreme Court is over whether she should be able to introduce testimony from other employees who also say they were victims of age discrimination, even though they worked for other supervisors.

The employee, Ellen Mendelsohn, argued that such evidence is critical to establishing a culture of discrimination.

"Is it fair to an employer that somebody can call co-workers to testify, even though they had nothing to do with the plaintiff or her boss?" said Wall. "To sum it up from a management attorney's perspective, it's a very dangerous case because you can see how that applies no matter the form of discrimination."

A third case tests whether a retirement plan can treat disabled employees of different ages but similar tenures differently.

Kentucky's public retirement system prohibits employees who become disabled and are eligible for retirement from collecting disability retirement benefits, which can be more generous than regular pensions. The state says those employees are entitled only to their regular pensions.

By contrast, an employee who becomes disabled before he is eligible for retirement will receive a disability pension.

A former employee, backed by the EEOC, says the older worker often will receive lower benefits, sometimes dramatically so, in violation of the age discrimination law.

Decisions in all the cases are expected by late June.

As baby boomers get older, an increase in age discrimination suits seems likely, said David B. Ritter, a partner at the Neal Gerber & Eisenberg law firm in Chicago.

"Telling these folks they're too old or having them thinking that their younger boss thinks they're too old, they're not going to go quietly into the night," Ritter said.

Cohen, the AARP executive, said his group's research suggests that some people wish to continue working because they believe it will help them stay healthy.

Some workers also cling to their jobs because they need the health insurance, if not the paycheck. "They are mostly there out of necessity," Cohen said.



Five districts falsely reported lawyer's job status
Headline News | 2008/02/17 11:00
A federal grand jury in Central Islip has opened an investigation into possible fraudulent financial double-dipping at five Long Island school districts, according to several sources.

Agents with the Federal Bureau of Investigation served subpoenas for the financial records of the districts late Friday, according to the sources.

The subpoenas were served a day after Newsday reported that an attorney for the five districts, Lawrence W. Reich, received a public pension of $61,000 a year and health benefits for life after the districts reported to New York State that he was a full-time employee of each district.

Newsday reported that Reich, who said he had done nothing wrong, worked for the districts only part time, while also working for a law firm that was also billing the districts.

The subpoenas, from the office of the U.S. Attorney for the Eastern District, ordered the school districts - Baldwin, Bellmore-Merrick High School, Copiague, East Meadow and Harborfields - to provide all their records involving financial dealings with Reich, and his former law firm, Ingerman Smith Llp. The sources said attorneys at the firm were also part of the focus of the probe.

Ingerman Smith, formerly of Northport but now located in Hauppauge, has represented nearly 50 Long Island school districts and currently represents approximately 40.

Robert Nardoza, a spokesman for Benton Campbell, the U.S. Attorney for the Eastern District, declined to comment.

Michael Conte, a spokesman for Harborfields, confirmed late Friday that his district had received a subpoena.

Officials for Baldwin, Bellmore-Merrick High School, Copiague and East Meadow did not immediately return phone calls. Reich and a representative for Ingerman Smith also could not immediately be reached.

John Milgrom, a spokesman for New York Attorney General Andrew Cuomo, said Friday his office was reviewing the matter.

"While we've reached no conclusions, we take seriously and will fully investigate any claim involving a breach of the public trust or misuse of public funds," Milgrom said.

A Newsday review of records showed that Reich submitted no time sheets, never worked full time and that school officials knew he was working only part time. He was able to obtain state-funded family health coverage through the Baldwin school district and received pension credits from all five districts.

Reich retired from the districts with an annual pension of $61,459 in September 2006. But he continued working for some of the districts, according to letters he sent asking them to pay him a retainer, rather than a salary.

After Newsday inquired about Reich's arrangement on Thursday, the New York State comptroller sent letters to four of the five districts notifying them that they would be audited to determine whether they were properly classifying people who provide professional services as employees or contractors.

"We want to make sure that only individuals who are entitled to receive a state pension get a state pension," said Emily DeSantis, a spokeswoman for the comptroller.

Last July, state auditors uncovered the problem in an audit of the Harborfields school district but apparently took no action. Although the final audit did not mention the issue, Reich notified the districts last October that he would no longer work for them.

In December, Ingerman Smith wrote a letter to one of the districts saying Reich had left the law firm.


Bush Says Congress Putting US in Danger
U.S. Legal News | 2008/02/16 20:59
With a government eavesdropping law about to expire, Washington is awash in accusations over who's to blame. President Bush said Friday that "our country is in more danger of an attack" because of Congress' failure to adopt a Senate bill that would have renewed a law that made it easier for the government to spy on foreign phone calls and e-mails that pass through the United States.

That bill also would have shielded from lawsuits telecommunications companies that helped the government wiretap U.S. computer and phone lines after the Sept. 11 terrorist attacks without clearance from a secret court that was established specifically to oversee such activities. In its competing version of the legislation, the House intentionally left out that feature.

"American citizens must understand, clearly understand that there's still a threat on the homeland. There's still an enemy which would like to do us harm," Bush said. "We've got to give our professionals the tools they need, to be able to figure out what the enemy is up to so we can stop it."

"By blocking this piece of legislation, our country is more in danger of an attack," he said.

Democrats, in turn, accused Bush of fear-mongering and misrepresenting the facts.

"This is not about protecting Americans. The president just wants to protect American telephone companies," Rep. Rahm Emanuel of Illinois, head of the House Democratic Caucus, said Friday.

Beyond the rhetoric, the central issue is what the government can and can't do come midnight Saturday, when a temporary eavesdropping law adopted by Congress last August expires.

That law let the government initiate wiretaps for up to one year against a wide range of targets. It also explicitly compelled telecommunications companies to comply with the orders, and protected them from civil lawsuits that may be filed against them for doing so.



Refco Ex-CEO Pleads Guilty to 20 Counts
Lawyer Blog News | 2008/02/16 20:59

Refco's former chairman and chief executive, Phillip R. Bennett, pleaded guilty to fraud, conspiracy and money laundering, among other charges, in a scheme that cost investors at least $2.4 billion.

Bennett's plea yesterday came a month before he was scheduled to go on trial in New York on charges of deceiving banks, auditors and investors, including the buyout firm Thomas H. Lee Partners, during an eight-year accounting fraud.

Two colleagues, former Refco finance chief Robert C. Trosten and former president Tone Grant, still face a March 17 trial.

Under federal sentencing guidelines, Bennett faces life imprisonment with a maximum penalty of 315 years covering all 20 counts as well as forfeiture of $2.4 billion, prosecutors said.

Bennett, whose lawyer said he has $20 million in assets, is scheduled to be sentenced May 20.

After increasing bail, the judge rejected a request by prosecutors to take Bennett into custody immediately.

"I take full responsibility for my conduct," Bennett, 59, told U.S. District Judge Naomi R. Buchwald in Manhattan federal court. "I wish to publicly apologize to my family and to all those I've harmed."

Refco, once the biggest independent U.S. futures trader, collapsed in October 2005, two months after its initial public offering.

The New York firm, which also provided brokerage services, filed for bankruptcy protection days after disclosing that a Bennett-controlled firm owed hundreds of millions of dollars to Refco.


The roots of the case stretch back to 1997, when Refco began hiding massive losses sustained by clients in the Asian debt crisis.

According to the indictment, the company hid the scam from Thomas H. Lee, which paid $507 million for a 57 percent stake in Refco in 2004; from banks and debt holders that extended more than $1.4 billion in financing in 2004; and from investors who paid $583 million for shares when Refco went public.



Court declares Steve Fossett legally dead
Court Feed News | 2008/02/16 20:58

Millionaire adventurer Steve Fossett has been declared dead by a Chicago judge five months after his plane disappeared.

The 63-year-old went missing on September 3 after taking off in a single-engined plane from a Nevada airstrip.

His wife had asked for him to be declared legally dead.

The judge heard testimony from Mr Fossett's wife, Peggy, and a family friend, as well as from a search-and-rescue expert, before deciding there was sufficient evidence to declare him dead.

Mr Fossett earned millions of dollars trading futures and options on Chicago exchanges.

Attorneys representing his estate had filed a petition to have him declared legally dead so his assets could be distributed according to his will.

Mr Fossett was a record-setting balloonist, sailor and pilot who completed non-stop flights around the world.

Mrs Fossett's lawyer, Michael LoVallo, said: "It was very sad and at first she hoped and sort-of envisioned him walking down the road the next day with another story to tell.

"But as the days went on, she realised it wasn't going to happen as it had on other occasions when he'd had close calls."

Mr Fossett was on a pleasure flight when he vanished and was not looking for a dry lake bed to use as a surface on which to set the world land speed record, as was initially reported.



Judge convicts ex-student in school plot
Legal Career News | 2008/02/15 15:59

A Plymouth Superior Court judge wasted no time rendering a decision yesterday morning against Joseph Nee, a former Marshfield High student accused of plotting a Columbine-style ambush on the school. The 21-year-old sat silently about 11:30 a.m. as Judge Charles M. Grabau found him guilty of conspiracy to commit murder and acquitted him of two other charges. It was the second time that morning the judge proclaimed Nee's guilt.

Much to the surprise of Nee's lawyers, Grabau started to issue his ruling close to 10 a.m., before closing arguments had been made. "The Commonwealth has proved this case beyond a reasonable doubt ..., " he began.

Several people gasped. Some of Nee's family and friends began sobbing. Nee's father, Thomas, stormed out of the crowded courtroom, red-faced, muttering "This is due process?"

But when Nee's lawyer, Thomas Drechsler, stood up and pointed out that he had not made his closing argument yet, the judge stopped short of announcing his decision and directed the lawyer to begin his closing argument.

Almost two hours later, following Drechsler's impassioned argument on behalf of his client, the judge issued his ruling, convicting Nee on one of three charges. Nee is scheduled to be sentenced Tuesday.

Inside the packed courtroom yesterday, Nee embraced his sobbing mother, telling her: "It's all right. It's all right."

It was an emotional and dramatic conclusion to a four-day bench trial that included testimony from a dozen witnesses. It also marked the end of a disturbing case that sent shockwaves through the town of Marshfield in the fall of 2004, when Nee and his friend, 16-year-old Tobin Kerns, were accused of conspiring to kill students and faculty at Marshfield High.

Authorities learned about the plan in September of that year, when Nee went to police with two classmates and told officers that Kerns was planning a massacre at the school. Nee told police the plan involved taking ammunition and explosive devices into the school, securing the school's exit doors with bicycle locks, and shooting students and staff.

Police arrested Kerns the following day.

Police didn't arrest Nee until a month later, after friends of Kerns implicated Nee as the mastermind of the plot. The two youths were once close friends; Nee even lived at the Kerns's home for a month during the spring of 2004.

Kerns's father, Ben, said that the boys had a falling out and that he believed Nee was trying to frame his son.

A grand jury returned indictments against Nee and Kerns in October 2004, charging both with conspiracy to commit murder, promotion of anarchy, and threatened use of deadly weapons at a school. Kerns and Nee pleaded not guilty to the charges.

Kerns was tried and found guilty of threatening to use deadly weapons and conspiracy to commit murder. In November, he was sentenced to 10 months in jail. He is being held at the Plymouth House of Correction.

In his closing argument yesterday, Drechsler cited a lack of physical evidence in Nee's case and inconsistencies in the prosecution witnesses' testimony.

Nee never planned to take part in the alleged plot, Drechsler said.

"My client was the first one who went to the police," he said. "Do the actions of Joe Nee bespeak of someone who intended to attack the school and kill people?"

Assistant District Attorney Karen O'Sullivan gave the judge the prosecution's point of view.

"The defendant's motive for going to police was to save himself," she said. "The defendant did not have intimate knowledge [of the plan] because he had overheard Mr. Kerns; the plan was as much his as it was Kerns's.

"This was more than a couple of teenagers shooting their mouths off," she said.

Grabau could sentence Nee to as much as 20 years in prison or let him go. Since January 2005, Nee has been free on $20,000 cash bail.

He is currently a student at Bunker Hill Community College.

Lawyers on both sides of the case said they were satisfied with the judge's ruling.

Plymouth District Attorney Timothy J. Cruz said he was pleased Nee was convicted on what he believed to be "the most serious" of the three charges.

"I'm hopeful the town of Marshfield will be able to heal from this," he said. "I'm hopeful that the two young men charged with these crimes will get their acts together and try to be good citizens."



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