A few days ago, the WSJ Law Blog published a post, here, discussing Jeffrey Skilling's 237 page appellate brief in the Enron criminal prosecution. Since I concentrate in appellate practice and commercial litigation, I thought the tome was worth taking a look at (although I did not have time to read the whole thing).
Generally, appellate briefs have strict page and word limits, (in federal court, the limit by default is 14,000 words (i.e., a little over 25 pages of text). Appellate courts also generally discourage bullets and charts, which this particular brief used a great deal. Noticibly absent from the brief, at least the version given to the WSJ, are a table of contents and table of authorities.
O'Melvany and Myers, however, is a good firm, and if you're at the top you get to bend the rules. The brief makes four arguments: (1) the prosecution's legal theory was faulty because "honest services" fraud, i.e. fraud that was meant in good faith to help the shareholders, is a misunderstanding of the criminal law, which requires intent; (2) the jury instructions were bias; (3) the jury was bias, both due to incomplete questioning by the court during jury selection and the refusal to change the venue from Houston, a city that was particularly hurt by the Enron callapse; and (4) prosecutorial misconduct consisting of withhelding and destroying evidence and coercing witnesses.
To weed out these arguments, however, you will need to read eleven pages into the brief. The strategy is clear: overwhelm the appellate court with rhetoric and complex argument so that they can better understand how the jurors and lower court were overwhelmed by the publicity and complexity of this case.
My guess is that the appellate court will grant some extension, perhaps double their ordinary word limit and give the prosecution a higher word limit and additional time to respond, but I think the court will see, as is clear from looking at the brief, that the brief needs an editor to go through and slash the surplus.
One of the main things they teach in legal writing courses is to be succinct and avoid excess verbiage. In practice, this skill is slowly pruned, since -- unfortunately -- the "weight of the evidence" often refers to the literal heft of the papers submitted rather than the substance of the argument. Authorship on the brief is shared by nine attorneys (and, most likely, there are countless unnamed junior associates and researchers) and it seems that the overall editor did not keep the individual writers on as short of a leash as he needed. The arguments are good, and as someone who writes appellate briefs I understand that it is simply painful to cut out days worth of research, or catchy phrases that made you feel clever when you wrote them, but it needs to be done.
One of my pet pieves, although I do it all the time, is co-writing. In every complex matter I've worked on there has been at least one argument that I believe in strongly which is dropped from the final brief. I have a penchant for arguments where my opposition has failed to jump through a technical hoop, and my experience has been that most judges, particularly federal judges, are prone to agreeing with these arguments because they are clear cut: this person was required to do something, they didn't do it, hence, I win. My supervisor, on the other hand, is more a fan of what one of my appellate advocacy professors called "uncle joe" arguments: common sense, fact centered, moral arguments. Which, since judges are human, are persuasive. Overall, however, I can't be too angry about it, because the balance works well. They need someone with a liberal red pen.
Monday, September 10, 2007
Saturday, September 8, 2007
Re: Are Plaintiff's Attorneys Becoming Targets?
There was a post on the law.com blog today entitled, Are Plaintiff's Attorneys Becoming Targets? discussing whether the Federal Government and various special interest groups are now targetting the Plaintiff's bar. Plaintiff's publications such as "Trial: The American Associate of Justice Journal" have been discussing this issue for a long time, and there has been academic scholarship on the issue for decades.
In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.
Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.
We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.
What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.
What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.
In short, it is well established that yes, Special Interest groups and, in turn, the Federal and State governments are prone to attacking trial lawyers. It is a reciprocal relationship, since the goal of the Trial bar is for the most part, unfortunately, to go after deep pockets. The Trial layers vilify "Corporate America," and Corporate America vilifies the trial lawyers. It is so engrained in the anglo-american culture that it can be considered a quasi-governmental function akin to journalism. Trial lawyer's do not simply target insurance companies, and point out the most shameful conduct in that industry, they do it to every industry.
Tort Law, (the field of law that encompasses personal injury, medical malpractice, and the other retail t.v. commercial type issues, as well as more complex fiduciary and commercial matters), is the field of law that involves governmentally imposed morals, and thus Tort lawyers are, at least they are supposed to be, the gate keepers for public responsibility.
We probably are seeking an era where special interest groups are particularly influential and exploiting the Plaitiff's bar's failings (while hiding their own). The lesson from the situation, however, deals more with the big picture. If the less-ethical side of Corporate America (bear in mind I am a big fan of corporate america, I just feel that you need to keep an eye on its leaders, since not all of them are ethical) is winning this battle, it means that we need stronger gatekeepers.
What keeps the Plaintiff's bar down is a lack of public respect and unfortunately low salaries. Money is concentrated at the top, just like in corporate america, and Plaintiff's lawyers are disproportionately composed of sole practitioners and small firms. Salaries for the Plaintiff's bar, (median and mode moreso than average) are a mere fraction of the salaries for their large-firm and defense counterparts. There's two explanations: first, that the 1/3 contingency fees are less lucrative than hourly billing; and second (the one I find more credible), that the money does not trickle down (and I don't mean this to knock my current firm, it is an industry wide epidemic). The average Plaintiff's attorney, however, even if they are making less, has a chance -- if they are successful -- to do better than they would as a partner at a large firm.
What we need are better Plaintiff's attorneys, both as an ethical and practical matter. Top law school grads go to large firms, and Plaintiff's work -- as an entry-level job -- is considered profoundly less respectable than public interest but with near comparable pay. Until that changes, the Plaintiff's bar will be on the defensive.
Tuesday, September 4, 2007
Employment Attorney - Court of Appeals Grants Absolute Privilege From Defamation For Statements Made To NASD In Connection With Termination of Securities Dealers
In Rosenberg v MetLife, Inc., 2007 NYSlipOp 02627 (March 29, 2007), over strong dissent, the NY Court of Appeals extended absolute privilege from defamation for statements made by an employer on the NASD's U-5 form, stating taht "statements made by an employer on a NASD employee termination notice are subject to an absolute privilege in a suit for defamation."
According to NASD regulations, whenever a securities dealer is terminated, the employer is required to file a U-5 form, stating the reason for termination, within 30 days. Traditionally, statements made by a former employer have been subject to only a "qualified privilege," meaning that an employer may comment on the reason for terminating an employee so long as the comments were made without malice, i.e. they were made in good faith and for a legitimate purpose. For example, when an employer receives a reference phone call, they are free to say the reason the employee was fired, such as being suspected of robbery or some other immoral act, so long as the employee actually was suspected of the immoral act, without fear of legal repercussions.
By granting an abosolute privilege, however, which is traditionally reserved for judicial and legislative proceedings, an employer is wholly immune from liability unless the statements are completely unrelated to the purpose of the communication. The court's reasoning rested on the premise that the NASD is a self-regulating body -- which has the capacity to deter malicious comments within its own framework -- and the public interest in encouraging complete disclosure to the NASD without threat of reprisal outweighs the invidivual interest in any possible defamation action.
According to NASD regulations, whenever a securities dealer is terminated, the employer is required to file a U-5 form, stating the reason for termination, within 30 days. Traditionally, statements made by a former employer have been subject to only a "qualified privilege," meaning that an employer may comment on the reason for terminating an employee so long as the comments were made without malice, i.e. they were made in good faith and for a legitimate purpose. For example, when an employer receives a reference phone call, they are free to say the reason the employee was fired, such as being suspected of robbery or some other immoral act, so long as the employee actually was suspected of the immoral act, without fear of legal repercussions.
By granting an abosolute privilege, however, which is traditionally reserved for judicial and legislative proceedings, an employer is wholly immune from liability unless the statements are completely unrelated to the purpose of the communication. The court's reasoning rested on the premise that the NASD is a self-regulating body -- which has the capacity to deter malicious comments within its own framework -- and the public interest in encouraging complete disclosure to the NASD without threat of reprisal outweighs the invidivual interest in any possible defamation action.
Friday, August 31, 2007
Consumer Protection - Overdraft Fees, UK Curbs Excessive Fees; US Efforts Not So Well Received
According to an article today in the UK Times, here, Britain's Office of Fair Trading has initiated a suit against UK banks for charging illegal overdraft fees. According to the coverage, the OFT believes that the illegal overdrafts were derived from "unauthorised overdrafts, bounced cheques and unpaid direct debits."
Abusive overdraft protection charges have also been a major problem in the US, but the government has not stepped in and private lawsuits have generally not been successful. In the US the overdraft problem has two main causes. First, the some banks do not adjust the accounts in real time to reflect debits and holds (despite the technology to do so), making more money appear to be available in the account than there actually is and thus allowing transactions to be processed against money that actually isn't there. In some instances, even when the bank knows the account is already overdrawn, they will also allow a debit to be processed rather than declined, calling it a "courtesy," and then charge an exhorbant fee.
The second problem is an accounting method called high-low sequencing. Rather than processing transactions on a first-in-first-out basis, banks will wait for the end of the day and then process your debits from the highest to lowest amount. The effect of high-low sequencing is that multiple overdraft transactions occur, rather than only one. For example, a customer has $10 in their account, makes nine $1 purchases, and then a $9 purchase later in the day. Under FIFO, the customer overdrafted once with the $9 transaction. Under high-low sequencing, however, the customer overdrafted eight times, the $9 transaction and one $1 transaction cleared the account, and each of the eight remaining $1 transactions were overdrafts. By using this accounting method, the bank, rather than collecting one fee of, say $30, will collect eight fees, amounting to $240.
Early overdraft litigation in the US showed some promise. See Best v. United States Nat'l Bank, 303 Ore. 557, 568 (Or. 1987); Best v. United States Nat'l Bank, 78 Ore. App. 1, 13 (Or. Ct. App. 1986) (national banking act does not preempt NSF litigation; an NSF fee of $6 is not unconscionable; whether the bank acted in good faith is a question of fact); Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117, 1128 (Cal. Ct. App. 1990)(NSF Settlement for Wells Fargo/BOA, notes 1986, NSF fees were 3% of total income for banks).
In the late 1990's, however, judicial hostility towards overdraft litigation began to mount. See Video Trax, Inc. v. NationsBank, N.A., 33 F. Supp. 2d 1041 (SDFL, 1998)(Overdraft fees are not interest and therefore not subject to usury laws); Terrell v. Hancock Bank, 7 F. Supp. 2d 812 (D. Miss. 1998)(Overdraft fees are not interest and therefore not subject to usury laws).
In 2002, the Office of the Comptroller of Currency, the regulator who sets rules for National Banks (i.e., all banks with an "N.A." after their name), formally approved the practice of high-low sequencing. OCC Interpretive Letter #997, dated April 15, 2002, released August 2004 (discussing high-low sequening under 12 USC 24(7) and 12 CFR 7.4002).
In the last five years -- although mostly unrelated to the OCC's approval of high-low sequencing, but stemming from the same general mindset -- overdraft litigation in the US has been nearly futile. See e.g. Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Tobin v. Casco N. Bank, 663 A.2d 1 (Me. 1995)(it is not illegal to allow customer to overdraft account through $10 withdrawal from atm, where the bank knows the account will overdraft but the customer doesn't, and then charge a $20 fee); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving debit transactions despite knowledge that an NSF Fee will be incurred is not unconscionable); Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving small debit transactions despite knowledge of already existing overdraft, and thus collecting a large fee, is not unconscionable); Brooks v. Northwest Corporation, 2004-NMCA-134, Docket No. 23,423 (NM, 2004)(denying class certification for an action related to high-low sequencing and NSF fees); But see 70 CFR 29582 ("courtesy" overdraft protection, and fees, must be disclosed to consumers).
There is some hope. At least one recent decision has been receptive towards overdraft litigation, Sola v. Wash. Mut. Bank FA (In re Wash. Mut. Overdraft Prot. Litig.), 201 Fed. Appx. 409, 410 (9th Cir. 2006)(allowing excessive overdrafts on a debit card may count as “unsolicited issuance of a credit card” under 12 CFR 226.12). There have been some high-quality academic commentary. See Aruna Apte, "The Impact of Check Sequencing on NSF (Not-Sufficient Funds) Fees," 34 Interfaces 97 (March, 2004). And at least one state's banking commission has conducted an investigation and found that banks intentionally use high-low sequencing for the sole purpose of increasing their NSF fee earnings, which are directed intentionally towards the uneducated and underprivileged, and have reaped an astonishing amount of profit from the practice (I found this report once, a year or two ago, but unfortunately have lost the citation).
Eventually, people are going to get angry enough to do something. In recent months, the FTC has held hearings on several credit issues and has moved towards wholesale improvement of its various consumer protection policies. If the government becomes receptive, and quality lawyers begin taking initiative (not just for profit, but for the general good), this terrible injustice will be rectified soon. Perhaps this activity in the UK, with the renewed scrutiny of banks after the mortgage backed securities scandal, will provide an impetus for improvement.
If you would like more information, please see my other related posts:
* February 8, 2009, "Potential Tide-Turning Victory In The Battle Against Illegal Overdraft And Non-Sufficient Fund Fees: Bank Of America Settles Closson Class Action."
* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).
* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."
* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."
Also, consider the following outside sources:
* The Washington Post, Bailout recipients also major lobbyistsashington Post Article, (1/23/2009)
* USA Today, FDIC: Bank overdraft fees hit young, low-income customers, (12/3/2008)(Overdraft fees are boosting banks' profits at the expense of consumers, especially young and low-income people, finds a new Federal Deposit Insurance Corp. study.")
* USA Today, Banks raise penalty fees for customers' overdrafts (6/18/08)
* USA Today, Good news in the works on overdraft charges, 6/3/08.
* USA Today, Banks' check-clearing policies could leave you with overdrafts, (11/19/2006)
* USA Today, Banks' check-clearing policies could leave you with overdrafts (11/20/06)
* Wikipedia, Overdraft
Abusive overdraft protection charges have also been a major problem in the US, but the government has not stepped in and private lawsuits have generally not been successful. In the US the overdraft problem has two main causes. First, the some banks do not adjust the accounts in real time to reflect debits and holds (despite the technology to do so), making more money appear to be available in the account than there actually is and thus allowing transactions to be processed against money that actually isn't there. In some instances, even when the bank knows the account is already overdrawn, they will also allow a debit to be processed rather than declined, calling it a "courtesy," and then charge an exhorbant fee.
The second problem is an accounting method called high-low sequencing. Rather than processing transactions on a first-in-first-out basis, banks will wait for the end of the day and then process your debits from the highest to lowest amount. The effect of high-low sequencing is that multiple overdraft transactions occur, rather than only one. For example, a customer has $10 in their account, makes nine $1 purchases, and then a $9 purchase later in the day. Under FIFO, the customer overdrafted once with the $9 transaction. Under high-low sequencing, however, the customer overdrafted eight times, the $9 transaction and one $1 transaction cleared the account, and each of the eight remaining $1 transactions were overdrafts. By using this accounting method, the bank, rather than collecting one fee of, say $30, will collect eight fees, amounting to $240.
Early overdraft litigation in the US showed some promise. See Best v. United States Nat'l Bank, 303 Ore. 557, 568 (Or. 1987); Best v. United States Nat'l Bank, 78 Ore. App. 1, 13 (Or. Ct. App. 1986) (national banking act does not preempt NSF litigation; an NSF fee of $6 is not unconscionable; whether the bank acted in good faith is a question of fact); Rebney v. Wells Fargo Bank, 220 Cal. App. 3d 1117, 1128 (Cal. Ct. App. 1990)(NSF Settlement for Wells Fargo/BOA, notes 1986, NSF fees were 3% of total income for banks).
In the late 1990's, however, judicial hostility towards overdraft litigation began to mount. See Video Trax, Inc. v. NationsBank, N.A., 33 F. Supp. 2d 1041 (SDFL, 1998)(Overdraft fees are not interest and therefore not subject to usury laws); Terrell v. Hancock Bank, 7 F. Supp. 2d 812 (D. Miss. 1998)(Overdraft fees are not interest and therefore not subject to usury laws).
In 2002, the Office of the Comptroller of Currency, the regulator who sets rules for National Banks (i.e., all banks with an "N.A." after their name), formally approved the practice of high-low sequencing. OCC Interpretive Letter #997, dated April 15, 2002, released August 2004 (discussing high-low sequening under 12 USC 24(7) and 12 CFR 7.4002).
In the last five years -- although mostly unrelated to the OCC's approval of high-low sequencing, but stemming from the same general mindset -- overdraft litigation in the US has been nearly futile. See e.g. Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Tobin v. Casco N. Bank, 663 A.2d 1 (Me. 1995)(it is not illegal to allow customer to overdraft account through $10 withdrawal from atm, where the bank knows the account will overdraft but the customer doesn't, and then charge a $20 fee); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving debit transactions despite knowledge that an NSF Fee will be incurred is not unconscionable); Hill v. St. Paul Fed. Bank for Sav., 329 Ill. App. 3d 705, 710 (Ill. App. Ct. 2002)(debit sequencing, while not disclosing the accounting method, was not unfair or deceptive); Hernandez v. Wells Fargo Bank, 2006 NMCA 18, 11 (N.M. Ct. App. 2005)(approving small debit transactions despite knowledge of already existing overdraft, and thus collecting a large fee, is not unconscionable); Brooks v. Northwest Corporation, 2004-NMCA-134, Docket No. 23,423 (NM, 2004)(denying class certification for an action related to high-low sequencing and NSF fees); But see 70 CFR 29582 ("courtesy" overdraft protection, and fees, must be disclosed to consumers).
There is some hope. At least one recent decision has been receptive towards overdraft litigation, Sola v. Wash. Mut. Bank FA (In re Wash. Mut. Overdraft Prot. Litig.), 201 Fed. Appx. 409, 410 (9th Cir. 2006)(allowing excessive overdrafts on a debit card may count as “unsolicited issuance of a credit card” under 12 CFR 226.12). There have been some high-quality academic commentary. See Aruna Apte, "The Impact of Check Sequencing on NSF (Not-Sufficient Funds) Fees," 34 Interfaces 97 (March, 2004). And at least one state's banking commission has conducted an investigation and found that banks intentionally use high-low sequencing for the sole purpose of increasing their NSF fee earnings, which are directed intentionally towards the uneducated and underprivileged, and have reaped an astonishing amount of profit from the practice (I found this report once, a year or two ago, but unfortunately have lost the citation).
Eventually, people are going to get angry enough to do something. In recent months, the FTC has held hearings on several credit issues and has moved towards wholesale improvement of its various consumer protection policies. If the government becomes receptive, and quality lawyers begin taking initiative (not just for profit, but for the general good), this terrible injustice will be rectified soon. Perhaps this activity in the UK, with the renewed scrutiny of banks after the mortgage backed securities scandal, will provide an impetus for improvement.
If you would like more information, please see my other related posts:
* February 8, 2009, "Potential Tide-Turning Victory In The Battle Against Illegal Overdraft And Non-Sufficient Fund Fees: Bank Of America Settles Closson Class Action."
* June 27, 2008, "Week In Review," (the Federal Reserve is now considering a rule to curb abusive overdraft fees by banks).
* May 7, 2008, "Debit Cards and Overdraft Protection: The US Allows Banks To Steal 10 Billion Dollars Per Year From The Poor."
* August 31, 2007, "The UK Takes Steps to Curb Illegal Overdraft Fees, But US Efforts Have Not Been So Well Received."
Also, consider the following outside sources:
* The Washington Post, Bailout recipients also major lobbyistsashington Post Article, (1/23/2009)
* USA Today, FDIC: Bank overdraft fees hit young, low-income customers, (12/3/2008)(Overdraft fees are boosting banks' profits at the expense of consumers, especially young and low-income people, finds a new Federal Deposit Insurance Corp. study.")
* USA Today, Banks raise penalty fees for customers' overdrafts (6/18/08)
* USA Today, Good news in the works on overdraft charges, 6/3/08.
* USA Today, Banks' check-clearing policies could leave you with overdrafts, (11/19/2006)
* USA Today, Banks' check-clearing policies could leave you with overdrafts (11/20/06)
* Wikipedia, Overdraft
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