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Supreme Court agrees to hear challenge to citizenship question on census

Posted by on Feb 16, 2019 in Elder Care | Comments Off on Supreme Court agrees to hear challenge to citizenship question on census

U.S. Supreme Court

Photo by Maria Dryfhout/Shutterstock.com.

The U.S. Supreme Court on Friday agreed to decide whether a citizenship question may be added to the 2020 census and scheduled arguments for the case in April.

The court granted cert before any appeal to the 2nd U.S. Circuit Court of Appeals at New York and put the case “on an unusually fast track,” the New York Times reports. The apparent aim is to issue a decision before census forms are printed in June. The National Law Journal and the Washington Post also have coverage of the cert grant; an American Civil Liberties Union press release is here.

U.S. District Judge Jesse Furman of Manhattan had ruled in the case last month, finding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act in a “veritable smorgasbord” of ways when he added the question.

Furman said Ross ignored statutes on data collection and notice to Congress, acted arbitrarily, and concealed the true basis for his decision. But Furman found no violation of the due process clause because the plaintiffs did not prove Ross was motivated by discrimination against noncitizens and minorities.

Ross had said he was adding the citizenship question in response to a request from the Department of Justice for better citizenship data to assist in its enforcement of the Voting Rights Act of 1965. But Furman said the evidence showed that Ross had persuaded the DOJ to make the request, showing his stated reason was pretextual.

The Supreme Court had blocked Ross’ deposition in October but allowed the deposition of a DOJ lawyer to go forward. In November, the Supreme Court allowed trial of the case.

Two lawsuits have been consolidated in the case. One was filed by 18 states, as well as several cities and counties. The other was filed by several advocacy groups. The American Civil Liberties Union, the New York Civil Liberties Union and Arnold & Porter had sued on behalf of the groups.

The plaintiffs have argued that the question will reduce head count because immigrants will be reluctant to participate.

The House of Representatives has filed an amicus brief supporting the challengers, according to the National Law Journal. The brief points out that an inaccurate count will affect state representation in the House as well as the flow of federal dollars to the states.


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Michael Avenatti agrees to place law firm in receivership after former partner claims he hid money

Posted by on Feb 16, 2019 in Elder Care | Comments Off on Michael Avenatti agrees to place law firm in receivership after former partner claims he hid money

Law Firms

Michael Avenatti

Michael Avenatti. Photo from Shutterstock.com.

Lawyer Michael Avenatti, who’s probably best known for representing adult film actress Stormy Daniels, has agreed to place his onetime law firm in receivership after a former partner alleged in court papers that he had hidden millions of dollars from the bankruptcy court.

U.S. Magistrate Judge Karen E. Scott of Orange County appointed a receiver who will take possession of bank accounts and case files for the firm, Eagan Avenatti, the Los Angeles Times reports.

In a joint court stipulation, Avenatti agreed to the receivership and the former partner, Jason Frank, agreed to withdraw papers alleging “brazen acts of bankruptcy fraud.”

Frank had claimed that Avenatti had received undisclosed legal fees during the bankruptcy that he used for personal expenses, such as a payment on his Ferrari, payments to his ex-wife, and money to aid his coffee company, Global Baristas.

Avenatti also agreed to cooperate with efforts by Frank to collect on a $10 million judgment against the firm. Frank had alleged Eagan Avenatti failed to pay him money owed for legal work.

Avenatti denied any wrongdoing in an interview with the Los Angeles Times. “Every dollar has been properly accounted for and reported as required,” he said.

Avenatti said the bankruptcy court never had required him to receive all his legal fees through Eagan Avenatti. Money from one case constituted reimbursement for out-of-pocket expenses, he said.

Avenatti’s legal practice is now known as Avenatti & Associates. Eagan Avenatti lawyers and staff members are employed by the new firm.


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Former state justice gets 2-year prison sentence; he used government credit card to buy gas

Posted by on Feb 16, 2019 in Elder Care | Comments Off on Former state justice gets 2-year prison sentence; he used government credit card to buy gas

Judiciary

Former Justice Allen H. Loughry II. Photo from the West Virginia Supreme Court of Appeals.

Former Justice Allen H. Loughry II of the West Virginia Supreme Court of Appeals has been sentenced to two years in prison for a conviction mostly stemming from his use of a government credit card to buy gas for personal travel.

Senior U.S. District Judge John T. Copenhaver Jr. of Charleston, West Virginia, sentenced Loughry on Wednesday, report the Charleston Gazette-Mail, Courthouse News Service, the West Virginia News and a press release.

Copenhaver also sentenced Loughry to three years of supervised release, fined him $10,000 and ordered him to pay about $1,200 in restitution.

Loughry’s sentence exceeded federal guidelines. Copenhaver said the longer sentence was needed because Loughry’s crimes contributed to a lack of public trust and respect for the state supreme court, according to the Gazette-Mail story.

“Of great importance here is a sentence that promotes respect for the law and deters others,” Copenhaver said.

The restitution will be paid to the state and the Pound Civil Justice Institute. Loughry had charged the institute for mileage to a Baltimore event even though he drove a state vehicle there, resulting in a mail fraud conviction. Seven wire fraud convictions were related to Loughry’s use of the government fuel card to buy gas for personal travel.

Loughry also was convicted of lying to the FBI about his use of state vehicles and about his knowledge of the origins of a desk he took from the court to his home.

Loughry also was convicted of witness tampering, but Copenhaver granted acquittal on the charge in January after finding insufficient evidence to support it, the West Virginia Metro News previously reported.

Loughry’s lawyer said during the sentencing hearing that Loughry has reached an agreement with judicial ethics regulators to give up his law license and to never run again for public office.

Hat tip to How Appealing.


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Trump declares national emergency, will tap these funds for border wall

Posted by on Feb 16, 2019 in Elder Care | Comments Off on Trump declares national emergency, will tap these funds for border wall

Immigration Law

President Donald Trump/Shutterstock.com.

Updated: President Donald Trump declared a national emergency on Friday to enable him to tap funds to build a border wall.

Trump announced his emergency declaration in a Rose Garden ceremony, report the New York Times, Politico, the Wall Street Journal and the Washington Post.

Trump said the declaration will help fight a criminal invasion that is causing a national security crisis. “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” he said.

Acting White House chief of staff Mick Mulvaney told reporters that Trump plans to combine about $6.7 billion in diverted funds with $1.375 billion in funds allocated by Congress in a budget bill passed Thursday evening. Trump wants to use the money to build a barrier wall that covers at least 234 miles.

Trump will rely on his emergency declaration to tap $3.6 billion in funds from military construction. The president also plans to rely on traditional budgetary discretion to use $2.5 billion in drug-fighting funds and $600 million in a Treasury Department asset forfeiture fund. Disaster-assistance funds will not be used.

The money allocated by Congress restricts areas where a barrier can be built, the Wall Street Journal reports. Areas ruled out include federal areas such as the Santa Ana National Wildlife Refuge and National Butterfly Center. A senior administration official told the publication that the White House thinks the restrictions apply only to the money appropriated by Congress.

The National Emergencies Act of 1976 regulates how presidents can exercise emergency powers that are given to them in hundreds of specific statutes, including statutes governing military funding.

The law doesn’t define an emergency. It authorizes Congress to vote to repeal an emergency. But under a U.S. Supreme Court decision, the president must sign the resolution into law or veto it.

Litigation likely would focus on whether there is truly an emergency or whether the president is using his executive power to bypass the legislative process, experts told the ABA Journal.

Trump acknowledged the likelihood of lawsuits in his Rose Garden speech. “Hopefully we’ll get a fair shake” in the Supreme Court, he said.

Democrats and several public interest groups criticized Trump’s use of emergency powers for a border wall.

House Speaker Nancy Pelosi of California and Senate Minority Leader Charles Schumer of New York said in a joint statement that Trump’s declaration was “unlawful,” and his actions “clearly violate the Congress’ exclusive power of the purse, which our founders enshrined in the Constitution.”

“The Congress will defend our constitutional authorities in the Congress, in the courts and in the public, using every remedy available,” Pelosi and Schumer said.

House Judiciary Committee Chairman Jerrold Nadler of New York said he would support a resolution to end the emergency and will also “pursue all other available legal options.”

Another lawmaker, Democratic Rep. Joaquin Castro of Texas, said late Thursday he would be ready to introduce a joint resolution to end the declared emergency, the New York Times reports. Castro leads the Congressional Hispanic Caucus.

New York Attorney General Letitia James threatened litigation in a press release delivered during Trump’s Rose Garden speech. “Declaring a national emergency without legitimate cause could create a constitutional crisis,” she said. “We will not stand for this abuse of power and will fight back with every legal tool at our disposal.”

Groups condemning Trump’s emergency declaration include the NAACP Legal Defense and Educational Fund, the Democratic Attorneys General Association, Muslim Advocates, the Immigration Hub, the American Civil Liberties Union and Common Cause.

An ACLU press release said it would be filing suit next week.

Also on Friday, the ABA issued a press release about a new ABA Legal Fact Check, which “looks at the statutory and case law related to presidential emergency powers, including a landmark 1952 U.S. Supreme Court decision on presidential powers in which the justices blocked an order by then-President Harry Truman.”

Updated at 2:08 p.m. to include information on the ACLU lawsuit plans and the press release from the ABA.


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Justice Ginsburg returns to Supreme Court after absence for cancer surgery

Posted by on Feb 16, 2019 in Elder Care | Comments Off on Justice Ginsburg returns to Supreme Court after absence for cancer surgery

U.S. Supreme Court

U.S. Supreme Court Justice Ruth Bader Ginsburg. ABA Journal file photo by Sam Kittner.

U.S. Supreme Court Justice Ruth Bader Ginsburg is returning to the U.S. Supreme Court on Friday for the first time since her surgery for lung cancer.

The court announced that 85-year-old Ginsburg will participate in the private conference in which justices review requests for certiorari, report CNBC and CNN.

Ginsburg had surgery Dec. 21 to remove two cancerous nodules from her left lung. There was no evidence the disease had spread. She missed oral arguments as she recovered, which was the first time she was absent from arguments for health reasons.

The justices return for oral arguments Tuesday. A court spokeswoman would not confirm for CNN that Ginsburg will attend the arguments. But the network says she is expected to be there.


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Trump will call an emergency to fund border wall

Posted by on Feb 15, 2019 in Elder Care | Comments Off on Trump will call an emergency to fund border wall

Executive Branch

President Donald Trump/Shutterstock.com.

President Donald Trump will declare a national emergency to fund a border wall without congressional approval, according to White House Press Secretary Sarah Huckabee Sanders.

Trump will sign the $328 billion funding bill to keep government operating, and he will also declare an emergency, according to Sanders and Senate Majority Leader Mitch McConnell. The New York Times, the Washington Post, Politico and CNN have coverage.

“The president is once again delivering on his promise to build the wall, protect the border, and secure our great country,” Sanders said.

The spending bill contains only $1.375 billion for 55 miles of steel-post border fencing. Trump has sought $5.7 billion for a wall.

Trump likely will use his emergency powers to tap funds designated for disaster aid or military construction projects, according to previous news coverage. Trump could rely on the National Emergencies Act of 1976, which regulates how presidents can exercise emergency powers that are given to him in hundreds of specific statutes.

The move likely is to lead to lawsuits. The American Civil Liberties Union Immigrants’ Rights Project said last month that it thinks it’s unlawful to use emergency funds to build a border wall, and it is prepared to sue.

Common Cause released a statement Thursday calling on Congress to “check this power grab by President Trump.” If Congress refuses to act, members of Congress should turn to the courts, the statement said.

Some Democratic senators already are crafting a measure that would prevent Trump from using disaster aid for the wall, according to the New York Times.

Some GOP lawmakers also have expressed concern because a precedent set by Trump could be used by Democratic presidents to find funds for causes such as fighting climate change or battling gun violence.


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William Barr confirmed as US attorney general

Posted by on Feb 15, 2019 in Elder Care | Comments Off on William Barr confirmed as US attorney general

Attorney General

William Barr. Photo courtesy of Kirkland & Ellis.

William Barr will return to lead the U.S. Department of Justice for a second time. The Senate voted to confirm Barr on Thursday, report the New York Times and the Washington Post.

Barr was previously the U.S. attorney general in the George H.W. Bush administration. He also was in other DOJ posts and most recently was of counsel at Kirkland & Ellis, according to a cached version of his law firm biography.

Barr had told the Senate Judiciary Committee he won’t let partisan politics or other considerations interfere with the work of special counsel Robert Mueller. He also has said it is important for the public to be informed of Mueller’s work and his “goal will be to provide as much transparency as I can consistent with the law.”

Barr said he would refuse an order to fire Mueller absent good cause.

Barr also told the committee his priorities would be to continue the DOJ’s progress on violent crime, to continue to prioritize immigration enforcement, and to protect the integrity of elections.

Deputy Attorney General Rod Rosenstein, who had been overseeing the Mueller investigation, is expected to step down sometime after Barr takes office.

According to a source who spoke with the Washington Post, Barr is close to identifying a replacement for Rosenstein and is also considering who would fill a vacant No. 3 post in the DOJ. President Donald Trump will nominate both people for those spots, but Barr has reportedly been assured he would be able choose his own deputy, according to the Post.

Barr has not publicly stated who he will be recommending. CNN says that according to its sources, Jeffrey Rosen, the Senate-confirmed deputy transportation secretary, is the favorite for the job of Barr’s deputy. Rosen, who had been a senior partner with Kirkland & Ellis before taking the position with the U.S. Department of Transportation in 2017, had worked previously with the transportation department and also the Office of Management and Budget. He chaired the ABA Section of Administrative Law and Regulatory Practice from 2015-2016.

Barr takes over the department amid allegations that top DOJ officials had discussed using the 25th Amendment to oust Trump. Former FBI Deputy Director Andrew McCabe said the idea was considered because of concerns about Trump’s firing of former FBI Director James Comey.

McCabe made the assertion in a 60 Minutes interview while promoting his new book.

See also:

ABAJournal.com: “Rosenstein defends zero-tolerance immigration policy and rule of law in ABA speech”

Updated at 6:50 p.m. to add CNN speculation about Rosenstein’s successor.


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Lawyer suspended for lying about case filings, creating fake brief to back up his account

Posted by on Feb 15, 2019 in Elder Care | Comments Off on Lawyer suspended for lying about case filings, creating fake brief to back up his account

Legal Ethics

Photo by Bankrx/Shutterstock.com.

A New York appeals court has suspended a real estate lawyer for three months for lying to a partner after failing to follow his instructions regarding the filing of two appellate briefs.

New York’s Appellate Division, First Judicial Department, suspended Dennis McCoobery in a Feb. 5 opinion, report the New York Law Journal, Bloomberg News and the Legal Profession Blog. McCoobery is a former associate with Stempel Bennett Claman & Hochberg.

To back up his lies, McCoobery drafted a fake appellate brief and constructed a fake chain of emails, the appeals court said.

McCoobery’s conduct had occurred while dealing with his father’s terminal illness and death, the appeals court noted. He had no prior record of discipline in more than 20 years of practicing law, and no clients were harmed. McCoobery agreed to the discipline and stipulated to the facts.

In one matter, the partner asked McCoobery to draft an appellate opposition brief. McCoobery wrote and filed the brief without giving it to the partner for review. When the partner asked to see a draft in March 2017, McCoobery gave him the brief and falsely represented it as a draft. The partner made revisions, but later discovered what McCoobery had done.

In the other matter, the partner had instructed McCoobery to send the partner’s appellate brief and the record on appeal to the firm’s printing vendor, and to instruct the vendor to serve and file the documents. McCoobery sent the documents to the vendor, but didn’t ask for service and filing. He falsely told the partner, however, that he had properly instructed the vendor.

To cover up his error, McCoobery falsely told the partner in December 2016 that he and opposing counsel had stipulated to an extension for filing the brief. To further conceal his misrepresentations, McCoobery fabricated an opposition brief that he provided to the partner as though it were genuine, and he constructed fake emails to make it appear he had received the brief from opposing counsel. The partner then drafted a reply brief.

McCoobery admitted his lies after the partner noticed the appeal had not been calendared for the June 2017 term. McCoobery resigned from the firm.

McCoobery did not respond to requests for comment by the New York Law Journal.


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Apple’s former top corporate lawyer charged with insider trading

Posted by on Feb 15, 2019 in Elder Care | Comments Off on Apple’s former top corporate lawyer charged with insider trading

Securities Law

Apple’s former global corporate-law chief has been charged with insider trading.

Gene Daniel Levoff, 45, allegedly used nonpublic information to trade in Apple stock, according to press releases by the Securities and Exchange Commission and federal prosecutors in New Jersey. Reuters, the New York Times, the Washington Post, the New Jersey Law Journal and CNBC have coverage.

As part of his duties at Apple, Levoff oversaw compliance with the company’s insider trading policy. He was fired in September 2018.

Federal prosecutors allege that Levoff made $227,000 in profits and avoided $377,000 in losses by trading in Apple stock using confidential information. The scheme lasted from about February 2011 until about April 2016, according to the criminal complaint. He is charged with securities fraud.

The SEC civil complaint is based on a narrower time frame in 2015 and 2016. It seeks return of illegal trading profits, plus interest, penalties and a bar on serving as an officer or director of a public company.

A lawyer for Levoff, Kevin Marino, said he was reviewing the allegations. “Gene Levoff was a trusted Apple executive for many years and has never before been accused of wrongdoing of any kind,” he said.


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Oops! ‘Meh’ parenthetical ended up in published federal decision

Posted by on Feb 15, 2019 in Elder Care | Comments Off on Oops! ‘Meh’ parenthetical ended up in published federal decision

Judiciary

A federal judge’s case dismissal is getting some attention because of an apparent note-to-self that didn’t get removed from the published order.

The writer was apparently dissatisfied with a statement summarizing the requirements for a false advertising claim. The parenthetical on page 11 reads: “(Meh I need a better rule statement than this.)”.

U.S. District Judge Gonzalo Curiel of San Diego signed the Feb. 5 order, but one of Curiel’s law clerks likely wrote the “meh” phrase, according to the Recorder.

The “meh” parenthetical was left out of an amended order, but it lives on because of docket scrapers such as Justia, the Recorder explains.

A member of Curiel’s staff told the Recorder that the judge had no comment on the gaffe.


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