freelance

Here's a piece I wrote for the Connecticut Law Tribune about the mysterious death of a black attorney and the NAACP's call for further investigation into his death:

Abe Dabela was 35 years old and life seemed to be going well. He had come to the legal profession late, after a series of jobs in the health care industry, and had recently completed a stint as an associate at a major law firm. He loved riding motorcycles and was passionate about health care, social justice and the Second Amendment.

But the Redding Police and the state medical examiner's office say he took his own life on April 5, 2014. Now the Connecticut NAACP, along with Dabela's family, are calling for an investigation into whether the Ethiopian-American attorney was actually murdered.

Here is the police version of events: Gugsa Abraham "Abe" Dabela was only a few minutes from his house in upscale Redding when he flipped his SUV while going around the curve. The vehicle was found at about 1:40 a.m. Dabela had been shot once in the head. A semi-automatic handgun was found in the vehicle.

Scot X. Esdaile, president of the Connecticut NAACP, said in an interview that the civil rights organization plans to put together a team of former law enforcement officers and attorneys to conduct its own investigation. He emphasized that the NAACP has not reached any conclusions about Dabela's death. But he also said there have been many instances where a black men was lynched or murdered as part of a hate crime and authorities have called the death a "suicide."

America has a "long deep-rooted history of blacks being found dead at the side of the road by racist people," said Esdaile, who noted that Redding is 95 percent white.

"Right now, the country is really, really on a cutting edge with racial politics," Esdaile said. "Here we are in Connecticut with a situation that is very mysterious. … It's the duty of the NAACP to make sure things are handled right and in accordance with the laws of this country."

Dabela's family has listed several questions about the Redding Police Department's investigation: Why wasn't a bullet found in the car? Did Dabela's political views in favor of gun rights and his dealings with Redding police to obtain a gun-carry permit negatively influence the investigation into his death? Why, according to a statement by the family, has "Redding exhibited such indolence and apathy for the last 15 months, despite state crime lab reports that suggest this was potentially a homicide?"

Dabela's sister, Albab Dabela, also is an attorney. Family members have declined to speak to the media.

Redding Police Chief Doug Fuchs said in a statement that investigators from his department spent hundreds or hours investigating the attorney's death, and their work has been reviewed by the Connecticut State Police Major Crimes Unit and others, and no one has yet to refute their work. The Danbury News-Times reported that Dabela, when applying for a pistol permit in 2013 with the Redding police, thanked Redding officers for their "service and professionalism" in an email.

Fuchs did not immediately respond to a request for comment for this article.

Dabela's family and the NAACP are planning a news conference in front of the police department on Aug. 5 to further press the issue.

Darnell D. Crossland, president of the Norwalk branch of the Connecticut NAACP and a Stamford-based attorney, said the news conference is being held to address the concerns of Dabela's family and "in light of the fact that there are so many unanswered questions" about Dabela's death.

According to postings on a motorcycle rider website, DCSportsbike.com, Dabela went to high school in Bethesda, Maryland. On his LinkedIn page, Dabela said he graduated from the University of Maryland and then obtained a master's in public health from Drexel University in Philadelphia, where he wrote about the problem of Americans without health insurance in the years immediately before the passage of the Affordable Care Act.

He then spent the next few years working mostly in health care-related jobs, ranging from outreach coordinator at the Philadelphia Department of Public Health to assistant operations manager of a Maryland nursing home.

Dabela attended the Benjamin N. Cardozo School of Law in New York City, participating in the school's securities arbitration clinic and interning at the New York City firm of Schiff Hardin. He received his J.D. in 2011 and was admitted to the Connecticut bar in 2012.

Dabela was hired as an associate in Wilson Elser Moskowitz Edelman & Dicker's Stamford office, where his practice included alternative dispute resolution, product liability, commercial contracts, insurance coverage and professional liability. The firm did not respond to calls seeking comment.

After working with Wilson Elser for two years, Dabela formally established his own firm in Redding about one month before he was killed.

He also provided pro bono legal advice about Second Amendment rights, some of it coming on online forums such as OpenCarry.org.

After his death, a funeral service for Dabela was held in the Metropolitan Memorial United Methodist Church in Washington, D.C. The service was announced on the DCSportsBike website, on which Dabela was often affectionately referred to known as "Googs."

"Abe was a great friend to this community and a valued subject matter expert on legal issues," wrote one poster. "He was always willing to give his advice free of charge, which is an uncharacteristic trait for any lawyer. He was also a true champion of the Second Amendment. I can't quantify how much I have learned from him. … He was a loyal friend and an avid rider. We lost a good one."

Here's a piece I wrote for the Connecticut Law Tribune about a lawyer's law school debt:

Law school students learn how to argue over contracts. But that doesn't necessarily mean they can litigate their way out of a contract to pay their law school loans. One Branford-based attorney is facing this reality after a federal judge ruled that, more than two decades after receiving his law degree, he owes the federal government more than $236,000 for his legal education.

Gregory P. Cohan went to the University of Bridgeport Law School—now the Quinnipiac School of Law—and got his Connecticut bar license in 1993. But he hasn't made a payment on his law school loans since 2001. A few years before that, he consolidated his federal law school loans under the William D. Ford Federal Direct Loan Program, which ties monthly repayment amounts to an individual's income. After 25 years, any balance left on loans is forgiven.

According to Cohan's calculations, his payment should have been about $100 a month. But the government puts the number at $300.

Cohan argued in court papers that because the federal Department of Education incorrectly calculated his monthly repayment, the government materially breached his student-loan agreement, made it impossible for him to pay back his loans and thus discharged his duty to perform under the contract.

"The defendant, the non-breaching party, is entitled to the benefit of the bargain," Cohan wrote. "The plaintiff agreed to reasonable, affordable payments for [a] period of 25 years, then forgiveness of any unpaid balance. The parties agreed that defendant would not be charged more than he could afford to pay, and that he would not have an unmanageable debt hanging over his head for the rest of his life."

The disagreement stems from how Cohan's income was calculated. Cohan reported that his 2001 income was $14,605. But Assistant U.S. Attorney Christine Sciarrino, who handled the case for the federal government, took issue with Cohan's calculations. Because income tax filings actually reflect the previous year's income, Sciarrino said Cohan couldn't officially compute his 2001 salary in December of that year. She said he should have used his adjusted gross income from 2000, which was $26,960. That would have put his loan repayment burden at $310.17 per month, she said.

U.S. District Judge Jeffrey A. Meyer acknowledged that it was within the government's discretion to use the alternative documentation Cohan submitted for his annual income instead of his actual tax returns. But there isn't any evidence in the record, Meyer said, that Cohan even tried to pay the $100 a month that he believed he actually owed beginning in 2002.

"Defendant has presented no evidence to support his statement at oral argument that the government 'made it impossible for [him] to make the payments' or that he was unable to calculate his payments because he lacked access to the Federal Register," Meyer said. "Defendant is and was a practicing attorney. In fact, this debt arises directly as a result of his legal training. … He has provided no reason why he could not have done his research and mailed payments many years ago."

When Cohan consolidated his loans in August 1999, he owed $97,658.55. Now he has been ordered to pay $236,535. That's because while the case has been pending, the unpaid principal balance has been accruing at 8.25 percent every year.

The federal government declared that Cohan was in default on Sept. 17, 2002, and his entire loan balance became due 270 days after payment was due at the end of 2001. The government did not file to collect on Cohan's loans until May 2011.

Sciarrino noted that Cohan was required to pay under the income contingent repayment plan because direct consolidation loans must be repaid that way if a borrower has defaulted on the underlying loans. Cohan defaulted on his underlying loans in the 1990s, according to the opinion.

Cohan did not respond to a request for comment. The U.S. Attorney's Office declined to comment.

Here's a piece I wrote for the Connecticut Law Tribune about an unusual sentencing request:

The normal drill for punishment in federal court is prison time, fines or probation. But a North Branford-based construction company that ran afoul of the law is asking U.S. District Judge Janet Bond Arterton to consider sentencing the company to build two homes.

The hook is that the houses wouldn't be sold for profit. They would be constructed for Habitat for Humanity, and the efforts would be considered community service.

Cherry Hill Construction Co. pleaded guilty to filing a false tax return and a making a false statement in connection with the documents required by the Employee Retirement Income Security Act of 1974, which sets out a minimal standard for retirement plans. The company stated that its contributions to the retirement plans needed to be only $52,198 when they should have totaled nearly $580,000.

The company faces a $500,000 fine and five years' probation. But instead of paying the fine, Cherry Hill wants to build two new family homes in New Haven on behalf of Habitat and donate all the labor and materials. The company placed the value of such an effort at $155,000 to $200,000.

The government is opposing the proposal for several reasons. U.S. Attorney Deirdre Daly and Assistant U.S. Attorney Douglas Morabito said in court papers that Cherry Hill should be made to pay the full $500,000 because corporations can't be imprisoned and fines are the principal deterrent against criminal behavior by corporations.

The government officials said they also oppose providing a benefit to just one organization, rather than society in whole. "The proposal puts the court in the unusual position of directing that community service be done for the benefit of a specific entity," prosecutors said. "Although Habitat for Humanity is a wonderful organization, to some extent this proposal puts the court in the position of picking and choosing beneficiaries of a criminal sentence."

The government also had qualms about the possibility of Cherry Hill reaping positive news from the proposal even though it has promised not to seek any such publicity for any court-ordered community service.

Cherry Hill owner Robert Sachs, who authorized the guilty plea of his family's firm, said in a statement to the court that the 42-year-old company's financial problems started because an employee embezzled money. With the economy in a tough spot in 2010, the company's cash flow dried up. That led to the company underfunding its employee benefit plans and submitting false paperwork to the plan's administrator, Sachs said. The company also falsely claimed a tax deduction for more than the company actually paid into the plan.

In court papers, Cherry Hill's counsel, Robert Casale, argued that community service should be substituted for a monetary fine because the diversion of funds from the employee benefit plan was not driven by corporate greed but because the company's cash flow was eaten up from embezzlement and poor conditions in the construction market.

Robert Santillo, who worked as Cherry Hill's manager, pleaded guilty in 2012 to two counts of tax evasion. He had received more than $790,000 from a subcontractor used by Cherry Hill on asbestos removal projects and created a limited liability company to conceal his taxable income. Casale said in court papers that Santillo is also estimated to have stolen between $1 million and $2 million from Cherry Hill, eating "away at the company like an intestinal parasite."

"Cherry Hill is a defendant in this case because it made a bad decision during a time of crisis," Casale wrote. "There is no question that the company appreciates the wrongfulness of its actions and has taken steps to ensure that this will not happen again."

The company also agreed to make full restitution to the retirement plan funds and to pay back the taxes it owes to the Internal Revenue Service.

Casale declined to comment. Morabito did not respond to a request for comment.

Alan Sobol, chairman of Pullman & Comley's white collar, criminal defense and corporate investigations practice, said the defense strategy was interesting, but not likely to succeed. For one thing, he said, fines are meant to benefit all of society, not just one particular cause. He called Cherry Hill's idea an "interesting and creative approach. [But] it's not likely to carry the day with the court."

Sobol said he would instead recommend arguing that the sentencing guidelines for white-collar crimes regarding financial fraud are not based on empirical data and can be set aside altogether since sentencing guidelines are no longer mandatory.

An example of guidelines that are based on data are the drug offenses involving powder cocaine, Sobol said. But he argues the guidelines regarding financial fraud and drug offenses involving crack cocaine were developed out of knee-jerk reactions to, respectively, financial scandals over the last three decades and fears about the increasing use of crack in the 1980s. That is a strong reason, he said, that one could argue against the $500,000 fine in the Cherry Hill case.

Here's a piece I wrote for the Connecticut Law Tribune regarding a Connecticut financier who alleges his Manhattan art dealer defrauded him:

The art world has become a big business, with more than $6 billion in modern art and $1.26 billion in contemporary art sold in 2011. And with big business comes big litigation.

Multiple lawsuits filed by a Connecticut financial executive alleging that his Manhattan art dealer defrauded him illustrates the stakes raised when buyers spend thousands, even millions, of dollars procuring art.

Richard C. McKenzie Jr., a Greenwich-based financier, has spent $200 million on art for his Seven Bridges Foundation, which aims to support up-and-coming artists by purchasing their work. The foundation also displays paintings by famous artists in order to inspire budding artists.

In a lawsuit pending in Connecticut federal court, McKenzie alleged that he was defrauded into buying an allegedly fake Pierre-Auguste Renoir painting, an Auguste Rodin sculpture and a Ernst Barlach bronze cast for a total of close to $570,000 by Manhattan gallery Forum Gallery. McKenzie asserts that Robert Fishko, the proprietor of Forum Gallery, befriended McKenzie's former wife and McKenzie himself, gained their trust and nurtured a business relationship that turned fraudulent.

McKenzie also is seeking punitive damages for $1.7 million.

In total, Forum Gallery and Fishko were paid $11.8 million during the dozen years Fishko was McKenzie's exclusive agent in finding art for his collection, according to the plaintiff's court papers.

In a separate lawsuit in New York federal court, McKenzie asserted that Forum Gallery and Fishko marked up the costs of procuring paintings by Norman Rockwell and other artists. McKenzie also alleged that Forum Gallery violated the contract it had with him on the terms on which it was to buy art for him on the primary and secondary markets.

McKenzie stated in court papers that a principal of a competing gallery told him that Fishko bought a Ralph Goings painting on his behalf at such a high price that the gallery pocketed $398,125, or a 114 percent profit. Fishko responded in court papers that the profit margin was only 13.1 percent.

In an interview, Fishko said that his long-time business relationship with McKenzie went sour after a California-based art dealer told McKenzie that Fishko's gallery had been overcharging him and misrepresenting the value of the art it had sold him. Fishko denies this. "I'm very proud of the work that I do for the artists that I represent and I'm very, very sure that Mr. McKenzie and the Seven Bridges Foundation … received everything that he bargained for and more," Fishko said.

There was no wrongdoing, fraud or violations of contractual or fiduciary obligations, Fishko added.

All the allegations in the New York case were struck down this month after U.S. District Judge Laura Taylor Swain, of the Southern District of New York, ruled against McKenzie's claims for fraud, breach of contract and breach of fiduciary duty. The judge said McKenzie could not show that Fishko misrepresented the prices at which sellers were willing to deal regarding the Rockwell and Goings paintings.

"Plaintiffs' evidentiary proffers fall far short of the clear and convincing showing required to demonstrate fraud," Swain said.

McKenzie has filed a third amended complaint in the Connecticut lawsuit pending before U.S. District Judge Janet Bond Arterton, but the judge has not yet made a decision on allowing the submission of the complaint. In the complaint, McKenzie set out a cloak-and-dagger scenario in which Fishko led him through Paris back alleys to a dimly lit apartment of a seller in financial straits to induce him to buy a fake Renoir painting. Fishko called that allegation an "absurd fabrication."

Even though McKenzie bought the Renoir painting in 2000, the Rodin sculpture in 2002, and the Barlach bronze cast in 2002, he alleges that he did not have reason to discover that the works were allegedly fake or inauthentic until 2014 when the various' artists committees decided to not include his property in their catalogs.

However, Fishko's counsel, Andrew Nevas, of Verrill Dana in Westport, said in court papers that his clients have provided proof of the authenticity of the artistic works. "McKenzie's willingness to advance knowingly inconsistent and false allegations is, sadly, not a surprise, as he is a serial and vexatious litigator," defense documents stated.

Forum Gallery's and Fishko's counsel maintain that the statute of limitations on all of McKenzie's claims have expired because he did not conduct due diligence about the authenticity of the Renoir and the two sculptures until 2014. "McKenzie, an extraordinarily sophisticated plaintiff who has purchased tens of millions of dollars of art, cannot evade the obvious fact that he had the means available to him to verify Forum's alleged representations himself," the defense said.

The defense is also going to seek sanctions for the prosecution of "patently unfounded, insufficient and time-barred claims."

Eric Grayson, the founder of commercial law boutique Grayson & Associates in Greenwich, said in an interview that his client can prove the higher standard of clear and convincing evidence needed to show fraud in the Connecticut lawsuit. The true test of the authenticity of the Rodin, Barlach and Renoir artworks is whether Fishko would "buy the three pieces back if he's that convinced that they are authentic works," Grayson said.

Fishko "took advantage of relationships that he had with Mr. McKenzie," Grayson said. "We are going to pursue this diligently with vigilance."

As for the New York case, McKenzie is a considering an appeal, Grayson said.

Fishko said there has been a sea change in the art business in the last 20 years because many investors now "come into the art business because they feel it's either a good place to put money or invest money." But the whole reason for Seven Bridges Foundation and McKenzie's art procurement was not for investment but to promote art by inspiring art, Fishko said.

Outside art law expert Robert A. Darwell, the founder of Sheppard Mullin Richter & Hampton's art law practice and a senior partner at the firm, said that there has not been an increase in litigation specifically because there is a new wave of collectors entering the art market. But because the value of art has been rising and there are more investors in the art world, Darwell said "it tends to lead to heightened sensitivities and potential claims."

Art appraisers, museums and galleries are facing more litigation, including for speaking freely about the authenticity of works, Darwell said.

Here's a piece I wrote for the Connecticut Law Tribune regarding a Connecticut financier who alleges his Manhattan art dealer defrauded him:

The art world has become a big business, with more than $6 billion in modern art and $1.26 billion in contemporary art sold in 2011. And with big business comes big litigation.

Multiple lawsuits filed by a Connecticut financial executive alleging that his Manhattan art dealer defrauded him illustrates the stakes raised when buyers spend thousands, even millions, of dollars procuring art.

Richard C. McKenzie Jr., a Greenwich-based financier, has spent $200 million on art for his Seven Bridges Foundation, which aims to support up-and-coming artists by purchasing their work. The foundation also displays paintings by famous artists in order to inspire budding artists.

In a lawsuit pending in Connecticut federal court, McKenzie alleged that he was defrauded into buying an allegedly fake Pierre-Auguste Renoir painting, an Auguste Rodin sculpture and a Ernst Barlach bronze cast for a total of close to $570,000 by Manhattan gallery Forum Gallery. McKenzie asserts that Robert Fishko, the proprietor of Forum Gallery, befriended McKenzie's former wife and McKenzie himself, gained their trust and nurtured a business relationship that turned fraudulent.

McKenzie also is seeking punitive damages for $1.7 million.

In total, Forum Gallery and Fishko were paid $11.8 million during the dozen years Fishko was McKenzie's exclusive agent in finding art for his collection, according to the plaintiff's court papers.

In a separate lawsuit in New York federal court, McKenzie asserted that Forum Gallery and Fishko marked up the costs of procuring paintings by Norman Rockwell and other artists. McKenzie also alleged that Forum Gallery violated the contract it had with him on the terms on which it was to buy art for him on the primary and secondary markets.

McKenzie stated in court papers that a principal of a competing gallery told him that Fishko bought a Ralph Goings painting on his behalf at such a high price that the gallery pocketed $398,125, or a 114 percent profit. Fishko responded in court papers that the profit margin was only 13.1 percent.

In an interview, Fishko said that his long-time business relationship with McKenzie went sour after a California-based art dealer told McKenzie that Fishko's gallery had been overcharging him and misrepresenting the value of the art it had sold him. Fishko denies this. "I'm very proud of the work that I do for the artists that I represent and I'm very, very sure that Mr. McKenzie and the Seven Bridges Foundation … received everything that he bargained for and more," Fishko said.

There was no wrongdoing, fraud or violations of contractual or fiduciary obligations, Fishko added.

All the allegations in the New York case were struck down this month after U.S. District Judge Laura Taylor Swain, of the Southern District of New York, ruled against McKenzie's claims for fraud, breach of contract and breach of fiduciary duty. The judge said McKenzie could not show that Fishko misrepresented the prices at which sellers were willing to deal regarding the Rockwell and Goings paintings.

"Plaintiffs' evidentiary proffers fall far short of the clear and convincing showing required to demonstrate fraud," Swain said.

McKenzie has filed a third amended complaint in the Connecticut lawsuit pending before U.S. District Judge Janet Bond Arterton, but the judge has not yet made a decision on allowing the submission of the complaint. In the complaint, McKenzie set out a cloak-and-dagger scenario in which Fishko led him through Paris back alleys to a dimly lit apartment of a seller in financial straits to induce him to buy a fake Renoir painting. Fishko called that allegation an "absurd fabrication."

Even though McKenzie bought the Renoir painting in 2000, the Rodin sculpture in 2002, and the Barlach bronze cast in 2002, he alleges that he did not have reason to discover that the works were allegedly fake or inauthentic until 2014 when the various' artists committees decided to not include his property in their catalogs.

However, Fishko's counsel, Andrew Nevas, of Verrill Dana in Westport, said in court papers that his clients have provided proof of the authenticity of the artistic works. "McKenzie's willingness to advance knowingly inconsistent and false allegations is, sadly, not a surprise, as he is a serial and vexatious litigator," defense documents stated.

Forum Gallery's and Fishko's counsel maintain that the statute of limitations on all of McKenzie's claims have expired because he did not conduct due diligence about the authenticity of the Renoir and the two sculptures until 2014. "McKenzie, an extraordinarily sophisticated plaintiff who has purchased tens of millions of dollars of art, cannot evade the obvious fact that he had the means available to him to verify Forum's alleged representations himself," the defense said.

The defense is also going to seek sanctions for the prosecution of "patently unfounded, insufficient and time-barred claims."

Eric Grayson, the founder of commercial law boutique Grayson & Associates in Greenwich, said in an interview that his client can prove the higher standard of clear and convincing evidence needed to show fraud in the Connecticut lawsuit. The true test of the authenticity of the Rodin, Barlach and Renoir artworks is whether Fishko would "buy the three pieces back if he's that convinced that they are authentic works," Grayson said.

Fishko "took advantage of relationships that he had with Mr. McKenzie," Grayson said. "We are going to pursue this diligently with vigilance."

As for the New York case, McKenzie is a considering an appeal, Grayson said.

Fishko said there has been a sea change in the art business in the last 20 years because many investors now "come into the art business because they feel it's either a good place to put money or invest money." But the whole reason for Seven Bridges Foundation and McKenzie's art procurement was not for investment but to promote art by inspiring art, Fishko said.

Outside art law expert Robert A. Darwell, the founder of Sheppard Mullin Richter & Hampton's art law practice and a senior partner at the firm, said that there has not been an increase in litigation specifically because there is a new wave of collectors entering the art market. But because the value of art has been rising and there are more investors in the art world, Darwell said "it tends to lead to heightened sensitivities and potential claims."

Art appraisers, museums and galleries are facing more litigation, including for speaking freely about the authenticity of works, Darwell said.

Here's an article I recently did for the Connecticut Law Tribune about a novel lawsuit: can the government take through eminent domain certificates that authorize bus companies to operate on certain routes?

Connecticut is no stranger to landmark eminent domain disputes, with the U.S. Supreme Court having ruled in 2005 that the city of New London could shift from one private owner to another in order to further economic development. Nor is the state Department of Transportation any stranger to such proceedings, as the agency often condemns land to make way for public roads.

Now, the Connecticut Appellate Court or the state Supreme Court is going to hear an apparent issue of first impression in condemnation law: can the Department of Transportation use its eminent domain power to take intangible property? In this case, can it withdraw certificates that authorize four bus companies to operate on certain routes?

The state wants to take away certificates for Collins Bus Service Inc., Dattco Inc., Nason Partners Inc., and the New Britain Transportation Co. for routes between Hartford and nearby towns. The court action preceeds the planned opening of the Harford-New Britain busway by just a few months, but state officials say the intent is not to eliminate competition for the busway but to allow competitive bidding for routes used by the four companies.

Counsel for DOT Commissioner James Redeker have successfully argued in Superior Court that the agency has the power to condemn "certificates of public convenience and necessity" that permit private bus companies to operate in certain parts of the state. The bus companies have lodged an appeal with the Appellate Court. Because the ruling would set precedent, the companies have asked the Supreme Court to directly take the case.

Under state law, the DOT can only take "land, buildings, equipment and facilities" under its eminent domain power. Since there is no definition for "facilities" in Chapter 242 of the General Statutes, Judge Trial Referee Joseph Shortall recently cited a 1942 decision from the U.S. Court of Appeals for the Second Circuit noting that "facilities" is an inclusive term "'embracing anything which aids or makes easier the performance of the activities involved in the business of a person or corporation."'

Shortall also cited a definition of facility from Merriam-Webster's Third New International Dictionary as "'something that makes an action, operation or course of conduct easier."'

As a result, Shortall said, in applying the dictionary definition of facility, that the bus certificates qualify as "facilities" that the DOT commissioner is entitled to condemn so long as it will be in the public interest. "Not only do they make the companies' activities in operating a bus service easier; they are essential to those operations," Shortall wrote.

State Control?

Jeffrey Mirman, a partner at Hinckley, Allen & Snyder and counsel for the four bus companies, said that there is "no language in any statute that would suggest that facilities ever have been to held to encompass intangible rights like franchises or certificates."

The bus companies are fighting the use of eminent domain to take their certificates because "ultimately, we believe that the state wants all bus service to be controlled and operated by the state with no private companies" in the municipal transportation sector, Mirman said.

Once the certificates are issued, the government only can only revoke them for "sufficient cause," Mirman argued.

Assistant Attorneys General Alan Ponanski and Charles Walsh said in court papers that the bus companies want the Connecticut judiciary to "declare that the the commissioner lacks the authority to take their certificates … Rather than allow the commissioner to implement legislative policy to develop and improve mass transportation series by taking the certificates and competitively procuring bus service at the best price for the Connecticut taxpayers over the routes covered by those certificates, the bus companies want this court to tie the commissioner's hands and require him to contract with them and subsidize their services infinitely into the future."

Shortall added that interpreting the statute otherwise would limit the DOT's ability to implement the busway. "As long as the companies' franchises remained in their hands, they would continue to hold the exclusive right to provide bus service over the routes in question," he stated.

The court cited two cases from other jurisdictions on whether the term "facilities" in the field of eminent domain law includes the exclusive right to provide services held by a utility company. The Mississippi Supreme Court addressed the issue in a 1973 case and the Tennessee Court of Appeals addressed it in a 1990 case.

Mirman said he thinks the "trial court recognized the decision was a toss-up and could have gone the either way" by permitting a temporary injunction to stay in place until the Appellate or Supreme court can take up the case.

Here's a piece I wrote for the Connecticut Law Tribune regarding a former president of the Mashantucket Pequot Tribal Nation who, despite being a strong advocate for American Indian rights, is now serving a federal prison sentence for embezzling from the tribe:

Michael Thomas had a reputation as a "tireless and effective advocate" for the Mashantucket Pequot Tribal Nation, and he rose to president of the tribal council, a position he held for nine years, despite a difficult childhood. But now, with his conviction recently upheld by the U.S. Court of Appeals for the Second Circuit, Thomas will spend 18 months in federal prison for embezzling more than $100,000 in tribal funds.

It could have been worse for the former leader of the tribe that runs the successful Foxwoods Resorts Casino. When U.S. District Judge Janet Bond Arterton sentenced Thomas, she took into account his advocacy for American Indian rights and gave him a sentence that was more lenient than federal guidelines "to reflect [the] defendant's positive work for the tribe."

Over a two-year period, Thomas used his tribal American Express card to pay over $100,000 in personal expenses. Most of the money Thomas embezzled was spent on a car service he hired to bring his mother to and from her dialysis and other medical appointments, at $450 per trip. He also spent tribal money on Direct TV for his personal residence, Sirius XM Satellite Radio for his personal vehicle and cell phone service for two of his associates, among other expenditures.

Tribal law prohibited the use of the tribal-issued AmEx card to pay for personal expenses. Thomas himself signed that tribal resolution as the council chairman. But Thomas alleged that personal items could be charged on his card as long as they were reimbursed.

Prosecutors countered that Thomas had no way to repay the charges. His personal income was in decline and his personal checking account was overdrawn every month. Thomas also never reimbursed or attempted to reimburse the tribe for any portion of the $100,000 of the personal charges.

He was ousted from his elected position in 2009.

In the latest development, the U.S. Court of Appeals for the Second Circuit upheld Thomas' conviction on narrow grounds last month.

Thomas had been convicted of theft from an Indian tribal organization and theft from a tribal government that received $10,000 in federal funds. He agreed that his intention to repay the funds was not in itself a defense to charges of theft and embezzlement. But Thomas's counsel, Steven Rasile of the Law Offices of Mirto & Rasile in West Haven, argued that Thomas's "intent to repay, when coupled with the tribe's practice of permitting [Thomas] to place personal expenses on the tribe's charge card and reimburse them later could have demonstrated that the defendant lacked the requisite intent to commit the crimes with which he was charged."

The district court held that it was not relevant to the case that Thomas had previously reimbursed the tribe for $159,000 in personal expenses charged to his tribal-issued American Express card, or that Shalida Jones, another tribal councilor, had used her tribal credit card for $36,511 in personal expenses. If the defendant "had evidence that other tribal council members charged big-ticket items, like $80,000 of limo services, and went years without repaying, that's getting closer in comparability," Arterton said. "'From what the government is saying, there isn't any such evidence."

The Second Circuit panel of John Walker Jr., Jose Cabranes and Raymond Lohier Jr. rejected Thomas' contention that his due process rights were violated because he was not allowed to introduce that evidence at the trial.

"Even if the evidence at issue was sufficient to establish that the tribe, in practice, permitted its officials to charge personal expenses to their cards with subsequent reimbursement, such evidence would only have been relevant at trial if Thomas's conduct comported with that practice," the panel said. "Here, it is undisputed that Thomas did not reimburse the tribe for any of the over $100,000 in personal expenses that he charged to his card between October 2007 and September 2009—despite the fact that he was not indicted until January 2013."

Not only was Thomas' defense irrelevant to the crimes he was charged with, but the probative value of the evidence was substantially outweighed by the danger of confusing the jury, the court said.

The panel noted in footnotes that there were two issues of first impression in the case.

The first was whether theft from a tribal government could be prosecuted under a federal law that bars people from taking more than $5,000 in funds from programs that receive $10,000 or more in federal funds per year. While Thomas did not challenge federal jurisdiction over his embezzlement from the tribe, the panel did note that the Eighth Circuit has affirmed convictions in federal court for people who have stolen from a tribal government.

The second issue of first impression was whether a defendant's intent to repay funds can be used as a defense to charges of embezzlement and theft. The panel noted that, while it has not decided directly if a defendant's intent to repay funds is a defense to charges of embezzlement and theft, the Second Circuit has issued an unpublished opinion citing a First Circuit's ruling that "'an intent to return money or property is not a defense to the charge of embezzlement.'"

Rasile, Thomas' counsel, declined comment. Assistant U.S. Attorneys Christopher Mattei and Marc Silverman wrote the brief for the U.S. Attorney's Office in Connecticut. Mattei argued the case before the Second Circuit. That office declined comment as well.

Here's a piece I did for the Connecticut Law Tribune about a new call for Connecticut to cut its prison population:

It's not every day that red-state Texas is pointed out as a paragon for reform that blue-state Connecticut should emulate.

But the author of a new book calling for a mass overhaul of Connecticut's criminal justice system says that Connecticut should adopt some of the best practices that have helped Texas reduce its prison population. Texas has reduced the number of inmates so much that the Lone Star State is closing prisons.

Brian Moran, a partner at Robinson & Cole in Stamford, is the principal author of the book: "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream."

Moran notes that Connecticut's prison population has grown from 3,800 inmates in 1980 to almost 17,000 as of January 2014. Meanwhile, the state spends more than $1 billion annually on incarceration costs, but well more than half the prisoners who are released end up back behind bars.

Federal prisons and state correctional facilities all have seen their populations explode because of the 40-year war on drugs, Moran said. It is estimated that in that time period, the penal population in the U.S. grew from 300,000 to more than 2 million.

But other states are further along in enacting reforms to steer more nonviolent offenders away from prison or to establish programming that helps ex-cons reintegrate into society after they finish doing their time, Moran said. "The 40-year war on drugs … is potentially affecting another generation of kids," Moran said. "We think it's long overdue for Connecticut to get onboard with this battle."

Linda Meyer, a Quinnipiac University School of Law professor and who was on the book's writing committee, said "everyone's intuition is that the more people you incarcerate, the less crime you have. We're trying to get the message out that is wrong."

The Connecticut juvenile justice system has taken steps that could offer guidance to the adult justice system, the authors argue. Even as the state has transferred more young lawbreakers from adult courts into the juvenile system, it has placed fewer juveniles in detention facilities and put a greater emphasis on rehabilitative programs. That focus has lowered recidivism rates, Moran says.

Similarly, the book says, the state should expand nonincarceration programs for adult offenders, ranging from transitional housing units for ex-cons to treatment programs for people with substance abuse issues and mental illness.

Moran and the coalition that backed his book project suggest that Connecticut should strive to cut its prison population in half in the next five years, close half of its prisons in five years, reduce recidivism rates by 30 percent in five years and reduce state spending on the prison system by half.

The books makes 30 recommendations for alternatives to incarceration, improving the reentry process, new legislation, new policies the executive branch could undertake and initiatives the Department of Correction could undertake.

Some of the recommendations include:

• Eliminate the requirement that inmates must serve 85 percent of a sentence for crimes classified as violent.

• Adopt reforms that allow for early parole and more time off for good behavior.

• Allocate one-third of any cost savings realized from reducing the prison population toward educational programs and vocational training aimed at reducing recidivism.

• Give judges more discretion in handing out sentences, "including the use of … offender-based data systems, sentencing-support analytics and mandatory offender family impact statements to facilitate informed decision-making."

• Provide employers who hire ex-offenders with tax incentives as well as immunity from liability.

When states such as Texas have enacted these sorts of reforms, and have reinvested savings in treatment, education and providing support to former inmates, they have also seen a reduction in the rate of crime, Moran said. Orienting Connecticut's criminal justice system in this way would provide a "trifecta of benefits: lower costs, lower recidivism and improved public safety," Moran said.

He added that there is a fourth benefit: Better success at achieving the "holy grail of corrections," which is to rehabilitate inmates and restore them to their families.

Moran, who practices in commercial litigation with an emphasis on antitrust, intellectual property and licensing disputes, was drawn to the topic of criminal justice because of his friend William Fox's involvement with the Malta Justice Initiative. The Southport-based group has an active prison ministry providing support to people who are incarcerated. It is overseen by a Roman Catholic religious order called The Sovereign Military Hospitalier Order of St. John of Jerusalem of Rhodes and of Malta.

John Santa, who is chairman of the initiative, said the gist of the book is about "more effective and compassionate treatment when [inmates are] in and more effective support when they're out and reentering." The group says that while Moran is the main author, the book is a collaborative effort, including the input from a bipartisan coalition of businesspeople, correctional professionals, legislators, judges, law enforcement professionals, lawyers, ministers and academics in Connecticut.

Moran also was drawn to the book because of reading Michelle Alexander's book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," in which she argued that young black men, who go to prison for drug crimes 20 to 50 times more often than young white men do, are "part of a growing undercaste, permanently locked up and locked out of mainstream society."

The racial disparity in the criminal justice system is no different in Connecticut than it is nationally, Moran said. Blacks and Latinos make up 24 percent of Connecticut's overall population but they comprise 66 percent of the prison population.

That is another reason for criminal justice reform in Connecticut, Moran said. "There are two Connecticuts," he said, "the inner cities and what is happening outside of the bigger cities."

For more information on "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream," visit http://thejusticeimperative.org.

Here's a piece I've written for the National Law Journal:

After a protracted fight, a federal judge has ruled on Thursday that all of the evidence that led him to find misrepresentations by plaintiffs in an asbestos-related bankruptcy must be unsealed.

When U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina estimated the liability of Garlock Sealing Technologies, LLC, in January, he found that Garlock likely owes $125 million to asbestos plaintiffs.

At that time, he rejected the plaintiffs' argument that Garlock's liability is around $1 billion to $1.3 billion after finding that there was evidence of misrepresentation by plaintiffs' lawyers in several cases that Garlock settled in the past or in which Garlock lost jury verdicts.

The judge in January found that some plaintiffs alleged they were exposed to asbestos from different sources in civil court than when they submitted claims to the trusts formed after companies went through bankruptcy because of asbestos-related liability.

During a hearing Thursday, Hodges ruled from the bench that the only information that should be redacted are social security numbers, birth dates, financial account numbers, names of minors and medical information except for diseases related to asbestos.

The judge said he also should not have closed some of the proceedings in January.

The judge said that the First Amendment applies to the records even though the estimation proceeding wasn’t a final adjudication of what Garlock owes to claimants who allege their exposure to Garlock’s products caused them mesothelioma cancer.

“It should have been public,” Hodges said. “This is the type of proceeding that would have been historically open. Public access would have served a positive role in the functioning of the court by enabling the public to evaluate the court’s decision based on all of the evidence rather than on simply part of it.”

Hodges overruled Garlock’s assertion of attorney-product privilege or attorney work-product privilege to keep sealed major expense authorizations forms documenting the approval of settlement decisions and the mental impressions and opinions of in-house and trial counsel. Hodges also unsealed Garlock’s trial evaluation forms with outside counsel’s trial plans and assessment of cases.

U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina in July reversed Hodges’ decision to seal the evidence that led to his estimation of Garlock’s liability. Cogburn remanded the case for the lower court to conduct fact-finding about the public's right of access under common law or the First Amendment. 

Asbestos claimants and their law firms, as well as the official committee of asbestos personal injury claimants, moved to seal questionnaires filled out by plaintiffs, information claimants submitted to the trusts formed out of the bankruptcies of other asbestos defendants, and evidence referencing settlements by asbestos claimants, among other information.
                 

The documents were not unsealed immediately because they must still be redacted.

I'm writing several times a day about products liability for Law.com/The National Law Journal. Occasionally I cross-post a blog I find particularly interesting.

Garlock Sealing Technologies LLC and two other related defendants are opposing motions to keep sealed the names of asbestos plaintiffs and the amounts of settlements they have reached with those plaintiffs.

The judge presiding over the Garlock’s bankruptcy proceedings has set up a process to unseal evidence that led him to make findings of alleged misrepresentation by plaintiffs.

Garlock also wants to unseal questionnaires submitted by claimants in its bankruptcy case and submissions made by claimants to trusts formed out of other companies’ asbestos-related bankruptcies.

“A large portion of the asbestos claimants whose names appear in the estimation record have open claims and are therefore the putative creditors (and parties in interest) in this case,” Garlock said. “The [U.S. Court of Appeals for the Fourth Circuit] has held that parties should be allowed to litigate anonymously only in ‘extraordinary circumstances’ justifying a ‘rare dispensation.’”

Claimants’ names are routinely disclosed in asbestos tort litigation and in marketing materials disseminated by the law firms representing them, Garlock said.

In a separate motion , the official committee of asbestos personal injury claimants objected to Garlock’s request to seal some of the bankruptcy filings, including the major expense authorizations that memorialize the reasons Garlock settled mesothelioma cases for the amounts it did and trial evaluation forms completed by Garlock’s outside counsel about cases going to trial.

“Until now, the debtors have been enthusiastic advocates of disclosure, casting themselves as crusaders on the public’s behalf,” the committee said. “Now, without any sense of irony, the debtors maintain that their own documents—critical pieces of the ‘full story’—should remain sealed and shielded from public scrutiny.”

Those documents cannot be shielded by attorney-client or work-product privilege because Garlock had its attorneys testify during the proceeding held to estimate its liability to asbestos plaintiffs about why they settled cases, the committee said.

According to the committee, those “contemporaneous documents” are at odds with why Garlock says it settled its cases.

Last winter, U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina estimated that Garlock likely owes $125 million to asbestos plaintiffs. He rejected the plaintiffs' argument that Garlock's liability is around $1 billion to $1.3 billion after finding evidence of misrepresentation by plaintiffs' lawyers in several cases that Garlock settled in the past or in which Garlock lost jury verdicts.

According to both sides, the parties agree that there should be redactions of most plaintiffs’ Social Security numbers, birth dates, the identities of minors, account numbers and medical information except that related to asbestos exposure.