Brad Bernstein, President of the Law Offices of Spar & Bernstein and new LBN Commentator talks about his New York, immigration law practice and radio show with LBN host Scott Drake.

Go to his LBN Commentator Profile

Miami lawyer Stephen N. Zack, a partner in the national law firm Boies, Schiller & Flexner, was elected as president-elect of the American Bar Association – the first Hispanic American to achieve that distinction.  Zack will serve one year as president-elect before taking office as president in August 2010 at the ABA’s Annual Meeting in San Francisco.  

The son of a Cuban mother and American father, Zack is focused on promoting civics education, the importance of inspiring a new generation of lawyers and ABA programs that advance access to justice for everyone in the United States.  In addition, he will work to create a commission on Hispanic rights.

“I am proud to be the first Hispanic American slated to become the president of the ABA.  This country is still a land of opportunity.  I want to work as an advocate for access to justice – and also for the possibilities that can exist for all young students from all backgrounds.”  

Stephen ZackIn his speech to the House of Delegates, Zack said he will focus on “two critical areas” of the legal profession – civics education and the high cost of legal education.  He said these issues and the programs and strategies to address them will have “an impact on the profession and on future generations.”

In the coming year, Zack, who grew up in Cuba and has practiced law for more than 35 years, will work with other bar associations to develop a pilot program for an American to teach students about everything from making an opening statement to understanding the Bill of Rights.  The goal is to eventually enroll a small group of students – half of which would be minority students — from every high school in the United States to participate in an educational program over the President’s Day holiday weekend.  Zack called on members of the ABA to get involved.

“Every last one of us will go in and teach these students.  We can’t wait.  We will begin to reach out to a new generation,” said Zack.

In addition, Zack said he is determined to push for a renewed focus on teaching civics education in the classrooms of America so that students truly understand why we have three separate branches of government.

“With every right that we have comes an obligation to understand those rights,” Zack said after quoting a study that revealed that most Americans cannot name the three branches of government.

 His hope is that a renewed interest in civics and an understanding of the role of government will not only create a more informed citizenry, but also increase student interest in pursuing a career in law.  

Zack said a law school education must be affordable for all, otherwise, “We will become an elitist profession at a time when we must look like the people we represent.  We have an overriding obligation to make sure that a new generation can service the needs of all Americans.”

Prior to his selection as president-elect, Zack served from 2004-2006 as chair of the ABA’s House of Delegates, the 555-member body that debates and votes on issues that become official ABA policy.  The chair of the House is the second highest elected office within the association.      

More than three decades ago, Zack became an active ABA member not long after completing his law degree at the University.  He is passionate about the mission of the ABA – serving the public and legal profession by “defending liberty and delivering justice as the national representative of the legal profession” – and believes that all lawyers have a special obligation to promote these goals and to speak out against the repression of freedom.

At the ABA, Zack has a long record of service.  In addition to his serving as chair of the policy-making House of Delegates, recent activities have included being a member-at-large of the Long Range Planning Committee of the Board of Governors, member of the Advisory Committee to the chair of the House of Delegates, member of the Center for Racial and Ethnic Diversity, member-at-large of the Section of International Law and secretary of the American Bar Endowment.

Zack has served as a member of the House of Delegates since 1988, and was a Florida delegate from 1997-2000.  He is a former member of the ABA Board of Governors (1992-1995), and was a board liaison to the Sections of Litigation and Dispute Resolution.  In addition, Zack served as president of the National Conference of Bar Presidents, is a former chair of the Standing Committee on Bar Activities and Services, a former member of the Commission on the Judiciary in the 21^st Century and a former chair of the ABA Latin American Council.

Zack is also a founding member of the Cuban American Bar Association and a life Fellow of the American Bar Foundation, which promotes justice through research on the law and its impact on society.

An active member of the Florida Bar Association, Zack has served as president of the association, president of the Young Lawyers Section and chair of the International Law Section.  He was a member of the 11^th Circuit (Miami-Dade) Judicial Nominating Committee for the Southern District, the Federal Judicial Nominating Commission’s Board of Governors and a Florida Bar Fellow.

Zack’s civic activities in Florida include special counsel to Gov. Bob Graham, chair of the State Ethics Commission of the State of Florida and member of the Florida Constitutional Revision Commission.  He chaired the City of Miami Beach Charter Review Commission and the Environmental Commission for the City of Miami.  He is a former legislative aide to Rep. Claude Pepper and a former member of the Orange Bowl Committee and of the Public Health Trust.

Zack received his B.A. from the University, where he was elected to its Hall of Fame.  He has been admitted to practice in Florida, New York and Washington, D.C.; the Supreme Court of the United States; the Supreme Court of Florida; the U.S. Court of Appeals for the 11^th Circuit; and the U.S. District Courts for the Northern, Middle and Southern Districts of Florida.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

"The Top 10 things The IRS Wants You to Know When Contractors Become Employees"

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"When the Good Lord created tax law experts, He wanted them to be like Rob Wood" (Lao Tzu)

 Scott gets the lowdown from Rob Wood:

(National Law Journal) An unusual twist in the multibillion-dollar battle between the federal government and utility companies over spent nuclear fuel threatens to send more than 50 breach-of-contract lawsuits back to square one after a decade of litigation.

Last week, the full U.S. Court of Appeals for the Federal Circuit heard arguments on whether the government, for the first time, can argue "unavoidable delay" to excuse its failure to pick up and dispose of the industry's nuclear waste.

The issue in Nebraska Public Power v. U.S. comes before the court nearly 10 years after the Federal Circuit found the government liable for breaching the utility contracts and after more than $1 billion has been awarded in damages and settlements. "We're now very far down the road and this would potentially open up everything," said Jay Silberg, a partner in Pillsbury Winthrop Shaw Pittman's Washington, D.C., office who represents Nebraska Public Power.

Jerry StouckAnd that road has been very long and costly, said Jerry Stouck, a partner in Greenberg Traurig's Washington office who filed the first suit charging the government with failure to begin picking up his clients' spent nuclear fuel by Jan. 31, 1998, as required by contracts entered into in 1983.

Lawyers involved in the litigation were stunned not only when the delay argument came alive in a U.S. Court of Federal Claims case but when, after waiting more than a year for a decision on an appeal to a Federal Circuit panel, the full court intervened to hear the case. "This latest episode is particularly interesting because it's a fascinating insight into the Federal Circuit and these big, high-powered cases, a real example of how challenging it can be to obtain relief from the federal government," said Stouck.

Nine years ago, the Federal Circuit held in Stouck's first case -- Maine Yankee Atomic v. U.S. -- that the government's delay in picking up the fuel constituted a breach of contract. In 2006, Stouck won $143 million in damages for Maine Yankee and two other utility clients -- awards still mired in litigation.

To date, utilities have filed 71 breach-of-contract cases in the Claims Court. With liability established, the utilities and the government have been fighting primarily about damages. The utilities seek damages largely for the costs of storing the fuel, often on site, costs they would not have had if the government had performed in a timely manner.

The Department of Energy's most recent estimate of the government's potential liability is $12.3 billion, based on a pickup date of 2020. But the industry estimates damages claims ultimately will total about $50 billion.

"This involves a lot of money," said James Ramsay, general counsel to the National Association of Regulatory Utility Commissioners. "It's now more than 20 years [since the contracts were signed] and billions spent on Yucca Mountain as a repository, which is not going anywhere. We're not happy to see the issue being raised now in the Federal Circuit."

WASTE AND TIME

The issue that the Federal Circuit will hear on Sept. 18 has its roots in a 1997 decision by the U.S. Court of Appeals for the D.C. Circuit. Soon after the 1983 contracts were signed, it became clear that the Department of Energy would not meet the Jan. 31, 1998, deadline to beginning picking up the waste. There was no operating storage facility, and potential sites, such as Yucca Mountain in Nevada, soon faced political and public opposition.

In 1995, the department issued a "final interpretation" of its obligations under the Nuclear Waste Policy Act and the contracts, saying it had no obligation under either to begin disposal in the absence of a repository or interim storage facility. Several utilities and state commissions petitioned the D.C. Circuit for review of the department's interpretation. The court said the department was wrong -- the government had an obligation under the act reciprocal to the utilities' contract obligation to pay into the Nuclear Waste Fund to cover storage costs.

But on remand, the department again said it could not meet the deadline but its delay was excused by the "unavoidable delay" clause in the contracts.

The utilities returned to the D.C. Circuit seeking an order to compel performance by the department. The court did not issue that broad writ of mandamus but a narrower one in which it specifically precluded the government from using "unavoidable delay" as a defense to breach-of-contract claims. That defense, it said, was inconsistent with the department's obligation under the federal act.

Fast forward to 2006 and the Nebraska Public Power case. Claims Court Judge Francis Allegra becomes the first and only judge in the spent nuclear fuel litigation to hold that the D.C. Circuit's 1997 order is void because it exceeds the D.C. Circuit's jurisdiction and infringes the Federal Circuit's jurisdiction. Unavoidable delay as a defense is back on the table. "We're revisiting this history at a time when the government said nothing about this from 1998 to 2005, and all these cases are proceeding forward and all the judges are operating under the assumption this is a valid decision by the D.C. Circuit," said Silberg.

The Pillsbury lawyers argued an appeal to a three-judge panel of the Federal Circuit in December 2007, and then "we tried to read the tea leaves" as to why a decision was so slow in coming. In June of this year, the Federal Circuit issued its en banc hearing order.

The National Association of Regulatory Utility Commissioners and a number of utilities with spent nuclear fuel cases have filed amicus briefs supporting Nebraska Public Power. They and Nebraska Public Power argue that the D.C. Circuit properly exercised its jurisdiction to interpret the statutory provisions of the Nuclear Waste Policy Act under that act's judicial review section and properly directed the parties to seek remedies in the Federal Circuit under the contract if and when the breach occurred.

But Assistant Attorney General Tony West counters that, absent action by Congress granting another court jurisdiction to hear contract claims, the Court of Federal Claims has exclusive jurisdiction. The Nuclear Waste Policy Act's judicial review provision, he said, did not give the D.C. Circuit jurisdiction to issue an order concerning contract remedies.

DEFINING DELAY

The delays clause in the utilities' contracts has two subcategories, according to Greenberg's Stouck: avoidable and unavoidable delays. The Federal Circuit, in one of Stouck's cases, interpreted avoidable delays as applying to delays during the performance of the contract, he added. "When the government fundamentally fails to perform its most basic obligation, that's not a delay," said Stouck.

The unavoidable-delays category has not been interpreted by the Federal Circuit, but the utilities urge the court in their briefs to settle the issue of what it means if they lose the jurisdiction issue. "The rationale is the same," said Ramsay of the National Association of Regulatory Utility Commissioners. "Those clauses were not meant to apply to a systemic failure of a government program. They were meant to apply in situations like hurricanes, acts of God and war."

If the government wins in the Federal Circuit and that court does not interpret "unavoidable" delays, Stouck predicted the utilities will endure another five years of litigation in the Claims Court and Federal Circuit only to find that the government's failure to perform is not an unavoidable delay. "The government, like any contracting party, is not excused by events it is in control of," he said. "It's possible to construct and operate a storage facility for spent nuclear fuel. The contract doesn't require Yucca Mountain to be built."

Both sides are concerned about the time and cost of the litigation.

Deputy Assistant Attorney General Michael Hertz, in July testimony before the House Budget Committee, told the lawmakers, "A legislative solution would be preferable to the current drain on the resources of the courts and the Department of Justice caused by the seemingly endless litigation."

He reported that, of the 71 lawsuits filed, 51 cases remain pending either in the Claims Court or the Federal Circuit, 10 have been settled, six were voluntarily withdrawn and four have been litigated through final nonappealable judgment.

Of the 51 pending cases, the trial court has entered judgments in 13 cases, most of which are not final because of appeals and remands.

Counting judgments and settlements, Hertz said, the government's liability to date stands at $1.3 billion. The government, he said, has paid $565 million in settlements and one judgment that was not appealed.

The department, he said, has spent approximately $24 million in attorney costs, $91 million in expert funds and $39 million in litigation support costs in defense of these suits.

"There is every reason to believe that these cases will continue to be filed and litigated into the foreseeable future, and these costs will continue to be incurred," Hertz said.

The costs to the utilities are staggering too, said a number of their lawyers. Taking a case just from complaint through trial averages $5 million to $7 million, not including expert witness fees, a document-maintenance fee and other costs, they said. And, utilities are still paying fees into the Nuclear Waste Fund -- their side of the contract.

"It's a lot of money, and even if we get a judgment, we haven't been able to collect it, and its value diminishes with time," said Silberg.

(Marcia Coyle NLJ)

For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.

The frenzy has even pushed the nation’s top firms, a tradition-bound coterie, into discussing how to reform the recruitment process with an earnestness that would have been unthinkable just years ago.

Read the article in the New York Times

Washington and Lee Law School Dean Rod Smolla discusses the current job market and the school's revolutionary 3L curriculum with LBN host Scott Drake.

You may read the entire opinion by clicking the link here, The case number is 08-1409 and the name is United States, ex rel. Mark Eugene Duxbury and Dean McClellan, Plaintiffs vs Ortho Bio Products.

This case was spearheaded by Attorney Jan Schlichtmann on behalf of the relators Duxbury and MacClellan and when the trial court dismissed the claim, the appeal was filed and argued in mid 2008 and today's decision affirmed part of the decision but cleared the way for the Duxbury claim on kick backs and rebating tied to the off label marketing and use of Procrit in oncology clinics and hospitals.

In this exclusive interview, Duxbury and McClellan's attorney Jan Schlichtmann discusses the courts ruling, shares his thoughts on the elements that were affirmed as well as the next steps in this long dormant but now front page Whistle Blower case regarding Procrit and the marketing of it's off label use. As long time readers of this page will recall this was also featured in a Wall Street Journal profile on the case at about the time of  the original trial in 2007 and while many had given the case up for dead, the Appeals Court has done a comprehensive analysis of what the bar is to filing a Whistle Blower claim and brought in a real stunner on what could be a massive potential claim against Ortho Biotech.

Joel Tenenbaum appeared stoic as the jury announced that each of the 30 counts of willful infringement would cost him $22,500. The tab— while steep — is far less than the $4.5 million that the companies could have received had the jury imposed the maximum per-song damages allowed under law. Copyright law allows for damages of $750 to $30,000 for each copyright infringement and up to $150,000 for each willful infringement.

Tenenbaum said he was happy the verdict wasn’t in the millions and “not displeased with the jury given how the trial went.”

Tenenbaum’s attorney, Harvard Law School professor Charles Nesson, whose case has faced several setbacks in recent weeks, closed his eyes just before the jury read the verdict. Nesson said he expects to appeal the judgment – and contends that U.S. District Judge Nancy Gertner’s ruling that Tenenbaum couldn't cite fair use, or the legal use of copyrighted works under certain circumstances, is “vulnerable.” That ruling was issued the morning jury selection began.

“It’s not a fair verdict because the jury never got to consider the fairness issue,” Nesson said. “We had a pretty darn good argument.”

Nesson himself tangled with plaintiffs lawyers after the jury left the room Friday. The lawyers — Matthew Oppenheim of the Oppenheim Group in Potomac, Md. and Timothy Reynolds of Denver-based Holme Roberts & Owen — sought sanctions against Nesson for posting deposition excerpts on the Internet.

Nesson said the plaintiffs’ side offered to drop the sanctions motion if he destroyed the materials at issue. But he said he wanted to use at least some of the materials for teaching purposes. Oppenheim told Gertner that he and Reynolds didn’t want to be a part of Nesson’s classroom materials or to be a party to any Internet distribution of the information. Gertner asked Nesson to send her a letter by Aug. 10 outlining his plans for the material.

Throughout closing arguments on Friday, Nesson, tried to convince the jury to keep damages low. He argued that Tenenbaum was “addicted” to downloading music, and that the college student was only taking advantage of available technology. He was not, Nesson said, attempting to deprive the record companies of profits. Declining profits at record companies, Nesson said, was caused by their inability to keep up with technological change.

“Progress happens, it’s not Joel who is responsible,” Nesson said. “There’s no reason for [the industry] to put their calamity off on kids.”

Near the end of three hours of testimony on July 30, Tenebaum admitted liability for downloading and distributing the songs at issue in the case. After Tenenbaum’s testimony, Gertner ruled that the jury had only to decide whether infringement was willful and how much Tenenbaum should pay in damages.

In a statement for the plaintiffs’ side, the RIAA said the organization “appreciates that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work...We only wish he had done so sooner rather than lie about his illegal behavior.”

The District of Massachusetts case, Capitol Records Inc. v. Alaujan, is one of many that record companies and the Recording Industry Association of America have filed against college students for making illegal Internet music downloads. (The companies involved in the case at this point are: Arista Records LLC, Sony BMG Music Entertainment, Warner Bros. Records Inc., and UMG Recordings Inc.)

Most have settled, but Vivendi-owned The Universal Music Group took home a $1.92 million verdict in June when a Minnesota jury decided Jammie Thomas-Rasset should pay $80,000 for each of 24 songs she posted on a Web site for others to download.

The final day of trial focused on damages after an earlier order by Gertner ruling for the plaintiffs on the issues of copyright ownership and liability.

On Friday, Nesson called ethnomusicologist Wayne Marshall, a Mellon Fellow at the Massachusetts Institute of Technology, as his sole witness to demonstrate the current ease of buying an MP3, or digital song, from Amazon.com for 99 cents.

Gertner directed Nesson to do a trial run of Marshall’s testimony without the jury because the plaintiff’s team expressed concerns about the late addition of Marshall as a witness.

Later, during his closing argument, Nesson said Tenenbaum “didn’t have the option of getting an MP3 song in a sleek and easy way” as late as August 2004, when the record companies captured images of 800 songs Tenenbaum infringed.

Gertner sustained a few of the numerous objections the plaintiffs lobbed at Nesson during his closing, including his advice that the jury had “the power not to fill in the boxes” on the jury form, which asks jurors to list damages for copyright infringement of each of the 30 songs.

Nesson said the form looks like “a kind of school exam,” but he said, “justice is in the bottom line, the total number.”

“If that bottom line is just and appropriate, then you’re doing your job,” Nesson said. Nesson also said that because Tenenbaum was distributing music downloaded from others as opposed to posting the first copy, he wasn’t responsible for the companies’ lost revenue. “[As for the] value of the copyright to Joel, I submit it’s 99 cents [for each song],” Nesson said. “That’s what he has to pay for it if he purchases it from Amazon.”

The plaintiffs' attorney, Reynolds, painted Tenenbaum as a “hard-core, habitual, long-term infringer.”

Reynolds also disputed Nesson’s arguments that Tenenbaum’s sharing simply passed along other people’s downloads. He said Tenenbaum downloaded 600 to 5,000 songs onto a Goucher College shared network while he was an undergraduate and before the Baltimore-based school shut down online song sharing.

He also noted that Tenenbaum continued making illegal downloads for at least a year-and-a-half after the record companies notified him he’d been caught. Illegal downloading has caused lost sales, significant layoffs and harmed the record companies’ ability to develop new products, he said.

“The need for deterrence here is great,” said Reynolds.

Scott Drake Interviews Harvard Law professor Charles Nesson.

Scott Drake speaks with RIAA plaintiff lawyer Matthew Oppenheim

Real Estate and Financial expert James Ponte in Scottsdale is interviewd by LBN host Scott Drake. They discuss the current state of the housing market which Ponte says probably won't start recovering until mid 2011.

Scott Drake interviews Luis Bartolomei a partner with Reyes, Bartolomei and Browne in Dallas.

(Arizona Daily Star) The U./S. Supreme Court ruled Arizona lawmakers don't have to provide more funds to teach English to students statewide.

The justices accepted the arguments by attorneys for state School Superintendent Tom Horne that it was improper for a federal judge in Tucson to issue a statewide injunction without evidence that school districts throughout Arizona were violating the Equal Education Opportunity Act. That law requires states to ensure that all students have an opportunity to learn, an opportunity which specifically requires states to take "appropriate action'' to help students become proficient in English.

Justice Samuel Alito, writing the majority decision, said the only thing that is relevant is whether the Nogales Unified School District -- the district at issue when the lawsuit was filed in 1992 -- is now doing a better job of teaching English to its students.

The ruling most immediately absolves the state of funding an additional $40.6 million to schools. But it also opens the door to lawmakers actually being able to decrease some of the extra dollars they have given schools in the past to help students classified as "English language learners.''

In fact, Alito said that U.S. District Court Judge Raner Collins overstepped his authority in all of his mandates to the Legislature to provide more money, several of which were enacted under the threat of monetary penalties, orders that were repeatedly upheld by the 9th Circuit Court of Appeals.