Judge Gives Dog Protection Order; US Man Accused of Beating It

NEW YORK: A judge is this dog's best friend. Bebe, a 5-year-old bichon frise, a fluffy little white dog, was given an order of protection after a man was accused of beating him.

Fredrick Fontanez, 20, was arraigned Thursday on a misdemeanor count of animal abuse and released on his own recognizance, but not before the judge told him to steer clear of Bebe.

The protection order, the first for a dog in the state, was issued by Queens Criminal Court Judge Alex Zigman. It says Fontanez cannot come within a 100 yards (91 meters) of the dog and its owner, Derek Lopez.

Bebe was found badly beaten July 20 in Lopez's apartment, where Fontanez was staying, a criminal complaint said. Lopez, 27, says he had to go to work and left Bebe with Fontanez, trusting the dog would be safe. When he returned hours later, he found a severely bruised Bebe, who "winced, yelped and cried" at the slightest touch, the complaint said.

Details here from the AP via the International Herald Tribune.

Law School Sued for Expelling Students

A former law student has filed a federal class action against St. Thomas University School of Law of Miami, claiming that it is illegally accepting and then expelling more than 25 percent of its first-year class to boost its flagging bar pass rates.

Filed in U.S. District Court for the District of New Jersey, the complaint alleges that the private law school unlawfully dismissed Thomas Joseph Bentey and as many as 80 students from the incoming class of 2005 because they failed to maintain a 2.5 grade point average.

The action further alleges that in 2003 the school began a scheme to accept large numbers of students -- and their tuition dollars -- only later to dismiss or pressure the withdrawal of almost 30 percent of its first- and second-year students. The case could include hundreds of former students as plaintiffs if the court grants class action status.

Details here from The National Law Journal via Law.com.

Above The Law

David Lat, former U.S. Attorney, proprietor of Underneath Their Robes, and a former contributor to Wonkette, has teamed up with Elizabeth Spiers and created a new law blog: Above The Law.

From his post entitled Letter from the Editor: Welcome to Above the Law:

Above the Law will be defined less by specific subjects within the law and more by tone or worldview (Weltanschauung, if you will; and you will, 'cause you're pretentious). We'll write about all things legal -- law firms, judges, law schools, cases -- as long as we have something mildly amusing, or at least obnoxious,* to say about them.

Hey! That's what The Legal Reader does! Anyhoo, go pay David's new enterprise a visit and welcome him back to The Internets (which, as you know, consist of "a series of tubes").

Broadcast Chief Misused Office, Inquiry Reports

Remember Kenneth Y. Tomlinson, the porcine Republican hack President Bush appointed as the Chairman of the Corporation for Public Broadcasting ("CPB")? Remember when he tried to hire a "consultant" to "monitor" PBS's and NPR's "political" content? Remember when he tried to cut $100 million from the CPB's budget -- the very organization he was supposed to be heading and supporting?

Big surprise: It turns out that Tomlinson's not just fat, partisan, stupid, smug and ugly. He's also corrupt:

WASHINGTON, Aug. 29 — State Department investigators have found that the head of the agency overseeing most government broadcasts to foreign countries has used his office to run a “horse racing operation” and that he improperly put a friend on the payroll, according to a summary of a report made public on Tuesday by a Democratic lawmaker.

The report said that the official, Kenneth Y. Tomlinson, had repeatedly used government employees to perform personal errands and that he billed the government for more days of work than the rules permit. The summary of the report, prepared by the State Department inspector general, said the United States attorney’s office here had been given the report and decided not to conduct a criminal inquiry. The summary said the Justice Department was pursuing a civil inquiry focusing on the contract for Mr. Tomlinson’s friend.

Through his lawyer, James Hamilton, Mr. Tomlinson issued a statement denying that he had done anything improper.

The office of the State Department inspector general presented the findings from its yearlong inquiry last week to the White House and on Monday to some members of Congress.

Three Democratic lawmakers, Senator Christopher J. Dodd of Connecticut and Representatives Howard L. Berman and Tom Lantos of California, requested the inquiry after a whistle-blower from the agency had approached them about the possible misuse of federal money by Mr. Tomlinson and the possible hiring of phantom or unqualified employees.

Details here from the New York Times.

Women Suddenly Scarce Among Justices’ Clerks

WASHINGTON, Aug. 29 — Everyone knows that with the retirement of Justice Sandra Day O’Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O’Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O’Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O’Connell twice, there were 16 women among the 43 law clerks hired by last term’s justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices’ individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Details here from the New York Times.

Exacting Easterbrook to Be Chief of 7th Circuit

Judge Frank H. Easterbrook has long told his law students, only half in jest he says, that he wishes he had a button on his courtroom bench that he could push to open a trapdoor beneath the feet of attorneys not properly prepared for court, sending them down a chute to the street outside. So far, he has no plans to install such an apparatus when he becomes chief judge of the 7th Circuit in November. Court watchers praise Easterbrook's intellect, but opinions about his tough courtroom style vary widely.

Details here from The National Law Journal via Law.com.

Beatles Reunite to Sue Record Companies for $25M

The Beatles have reunited, though only to sue their record companies.

A lawsuit filed by the Beatles, their representatives and their recording label Apple Records against Capitol Records and EMI Records will go forward following a Manhattan judge's denial of a motion to dismiss.

Capitol and its affiliate EMI concealed their use of the band's recordings "in an effort to pocket millions of dollars" in royalties, according to the complaint. The plaintiffs are seeking at least $25 million, asserting causes of action for fraud, breach of contract and -- in a difficult and unusual claim against a record company -- breach of fiduciary duty.

The defense moved to dismiss the causes of action for fraud and breach of fiduciary duty, as well as the plaintiffs' requests for punitive damages and to reclaim the rights to their recordings, perhaps the most valuable catalog of music in existence.

Manhattan Supreme Court Justice Karla Moskowitz last week denied the defense's motion in its entirety.

Details here from the New York Law Journal via Law.com.

Plaintiff Who Came to Deposition Stoned Has Case Dismissed and Must Pay Fees

A plaintiff whose deposition was aborted because he was under the influence of drugs, and who failed to comply with consequent sanctions, has seen his case dismissed with prejudice.

On Aug. 18, Superior Court Judge Vincent LeBlon in Middlesex County, N.J., also entered judgments against John Freeman for $9,375, the fees of the six defense attorneys who attended the botched dep. . . .

[F]reeman, a roofer, sought $3 million in damages for a shattered left elbow sustained in a fall at an East Hanover jobsite. But at his deposition on Dec. 21, 2005, defense lawyers pressed for details of a prior drug conviction, which was relevant to their suspicions that Freeman was using drugs at the time of his fall.

Upon objection from his lawyer, Blume Goldfaden associate Richard Villanov, the defense lawyers called LeBlon in chambers for a ruling. The lawyers also told LeBlon that Freeman appeared to be on drugs that day, as his speech was slurred, his pupils sometimes rolled backward and his answers were contradictory. LeBlon ordered Freeman to a hospital for an immediate drug test. After some further dickering among the lawyers and the judge, Freeman left the dep and never went for testing.

On March 10, LeBlon dismissed the case without prejudice and imposed $9,375 in sanctions against Freeman for the fees of the defense lawyers.

Details here from the New Jersey Law Journal via Law.com.

Don’t Count on a Standing Ovation, Nino

Supreme Court Justice Antonin Scalia agreed to a public “conversation about civil liberties” with American Civil Liberties Union president Nadine Strossen at the ACLU’s “Stand Up For Freedom” conference in Washington on Oct. 16. NBC’s Pete Williams is to moderate.

Scalia, of course, doesn’t always see the world the way the ACLU does. In June 2005 case, in which the ACLU of Kentucky challenged county displays of the Ten Commandments, the court sided with the ACLU, but Scalia dissented. “The Court’s repeated assertion that the government cannot favor religious practice is false,” he wrote.

And in Hudson v. Michigan this year, Scalia wrote the majority opinion in a 5-4 vote decision that gave police more leeway to enter private homes. In this drug case, police failed to knock on Hudson’s door and waited only three to five seconds after announcing their presence to enter his home. The ACLU objected; the court did not. “Ominously,” the ACLU wrote in a review of the court’s term, “Justice Scalia’s majority opinion seemed to lay the groundwork for a broader attack on the exclusionary rule by questioning its continuing need as a deterrent to police misconduct.”

To be sure, in a 1989 case, Texas v. Johnson, Scalia sided with the ACLU and joined a 5-4 opinion by Justice William J. Brennan Jr. that struck down a law banning flag burning for violating the First Amendment. – David Wessel

Details here from the Wall Street Journal's Washington Wire. (via the WSJ's Law Blog)

Florida Man Gets Six Years in Prison For Software Privacy Piracy

The owner of a major software piracy Web site was sentenced to six years in prison yesterday, one of the longest jail terms ever imposed for the growing crime of stealing copyrighted computer products, prosecutors said.

U.S. District Judge T.S. Ellis III in Alexandria also ordered Danny Ferrer, 37, to pay restitution of more than $4.1 million and to forfeit a wide variety of luxury goods he bought with millions of dollars in proceeds. They included three airplanes; a helicopter; and numerous cars, including a 1992 Lamborghini, a 2005 Hummer and two 2005 Chevrolet Corvettes.

Starting in 2002, Ferrer and a number of co-conspirators operated http://www.buysusa.com/, which sold at huge discounts copies of software products copyrighted by such companies as Adobe Systems Inc., Autodesk Inc. and Macromedia Inc. The total loss to owners of the computer products was nearly $20 million, prosecutors said.

Details here from the Washington Post.

Bar Prep Company Ordered to Pay $11 Mil. for Copying Questions

In a ruling that promises to fundamentally alter the way many American law students prepare for the bar exam, a federal judge has ruled concluded that a California company illegally copied questions from the Multistate Bar Examination for use in its bar exam preparation courses and ordered it to pay more than $11.9 million to the National Conference of Bar Examiners.

In the suit, NCBE claimed that employees of Multistate Legal Studies Inc. have attended bar exams in several states for the sole purpose of copying questions to be used in its prep courses.

MLSI is based in Santa Monica, Calif., and has offices in Philadelphia and New York. It operates bar review programs under the trade name PMBR, which stands for “preliminary multistate bar review.”

Lawyers for MLSI insisted that any similarities between the questions in their prep courses and those on the MBE stem from the fact that both are drawn from the same pool of material -- hornbooks, law treatises and case law -- and that such similarity is entirely permissible.

But Senior U.S. District Judge John P. Fullam disagreed and said the evidence showed MLSI had copied both the detailed facts in the questions as well as the correct and incorrect answers.

Details here from The Legal Intelligencer via Law.com. (HT to Bashman)

Judge Paves Way for Blockbuster Anti-Trust Suit Against NetFlix

Now that the Apple v. Creative insanity has begun to die down, another equally outlandish lawsuit has taken the crown. On August 17, 2006, Blockbuster filed a motion to dismiss an injunction filed by NetFlix attempting to prohibit Blockbuster from offering movie rentals online claiming Blockbuster infringed on NetFlix patents for its distribution method.

The same San Francisco judge responsible for the NetFlix v. Blockbuster case, US District Judge William Alsup, will now be responsible for the official proceedings of Blockbuster v. NetFlix. Although NetFlix counsel has claimed that the newest proceeding should be separate from the previous IP case, Judge Alsup claims Blockbuster does indeed have enough evidence for an anti-trust case.

"As a result of NetFlix's purported monopolistic conduct, Blockbuster may be forced out of the market, which would cede to Netflix virtually complete control of the online-DVD market," Alsup wrote during the acknowledgement letter to open the case. Since the same judge is handling both cases, the most likely outcome is that NetFlix will either be found correct in its assertion that Blockbuster has infringed upon its intellectual property, but is subsequently a monopoly; or that Blockbuster does not infringe upon NetFlix IP and thus NetFlix could not be a monopoly. Talk about damned if you do and damned if you don't.

Details here from DailyTech.com.

Judge Detains Five Over Ringing Phones

A judge detained and questioned a row of spectators when a cell phone rang for a third time in her courtroom, later ordering two people to serve community service for contempt of court.

When no one admitted having the ringing phones Wednesday, Lake County Criminal Court Judge Diane Boswell told all five people in the row to sit in chairs reserved for jail inmates. They stayed there for more than an hour until the morning court call ended.

Boswell found three people in contempt of court because they initially refused to say who had the ringing phones. . . .

"The next time you come to court, don't bring your cell phone," Boswell said. "And when the court asks a question, answer the question."

That sounds a little over-the-top to me. My bet is that Judge Boswell gets censured and apologizes. Details here from the AP via Forbes.

Advocacy Group Sues Barney the Dinosaur

Warning: If you have children present, you may wish to excuse them before reading further.

The Electronic Frontier Foundation is suing children's TV icon Barney the purple dinosaur. It claims that the Lyons Partnership, the company that owns the Barney trademark, is violating the free speech rights of Stuart Frankel, publisher of a Barney parody site.

Since 2002, Barney's lawyers have sent Frankel a series of cease-and-desist letters to shut down his site. The lawsuit, according to EFF, "asks the court to finally resolve the matter by declaring that his parody does not infringe Barney's copyright or trademark rights." CNET's Declan McCullagh reported in October that the cease-and-desist letters complained that Frankel's site "depicts a plush Barney toy in a violent manner or position" and asked that he "remove this violent content toward Barney on your Web site."

Read all about the case and view litigation documents at the EFF's Barney page. But be sure your kids are away.

Details here from Robert J. Ambrogi via the Law.com Blog Network.

Lawyers Who Won $200M Fen-Phen Settlement Suspended by Kentucky High Court

Kentucky's highest court suspended three attorneys Thursday over questions about how they divided a $200 million settlement over the fen-phen diet drug.

The ruling by the Kentucky Supreme Court came after a lower court judge found that the Lexington, Ky., attorneys breached their duty to about 440 clients they represented against drugmaker Wyeth.

The plaintiffs were among tens of thousands who sued Wyeth, which pulled the fenfluramine half of fen-phen off the market in 1997 amid reports that some users had heart valve damage and a few had a deadly lung condition. Fen-phen was never an FDA-approved combination.

The clients of William Gallion, Shirley Cunningham Jr. and Melbourne Mills received about $45 million in a 2001 settlement with Wyeth. The rest was split among attorneys and consultants, according to Linda Gosnell, chief counsel for the Kentucky Bar Association.

"This is a case of absolute, unbridled greed," Gosnell told the high court in arguments last week.

Details here from the AP via Law.com.