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Former Judge Andrew Napolitano Files Libel Suit Against Accuser

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                                                         Andrew Napolitano

Fox News Analyst Andrew Napolitano Files Libel Lawsuit Against Sexual Assault Accuser


The lawsuit was filed by law firms Clare Locke and Cole Schotz.

Four days after he was hit with a decades-old sexual assault lawsuit, Fox News analyst Andrew Napolitano fired back with a libel suit against his accuser.

Napolitano filed the libel suit in the District of New Jersey, and is seeking to transfer the sexual assault case from the Southern District of New York to the Garden State. Napolitano said his accuser, Charles Corbishley, made up the sexual assault story and is trying to extort him.

Napolitano is represented in the libel suit by boutique law firm Clare Locke. That firm convinced the U.S. Court of Appeals for the Second Circuit to reopen Sarah Palin’s libel suit against the New York Times last year. Napolitano has also retained Hackensack firm Cole Schotz.

Napolitano said in his suit that he never had any sexual contact or a private meeting with Corbishley. Napolitano, who was a Superior Court judge in Bergen County when the alleged assault took place in 1988, denied a claim that a now-deceased criminal defense lawyer set up an arrangement in which Corbishley received leniency in exchange for sex.

Corbishley claims he was facing criminal charges when his attorney, Robert Hollis, instructed him to go Napolitano’s home with a snow shovel. Corbishley followed the instructions and was greeted at the home by Napolitano, who instructed him to shovel the driveway. Later, the suit claimed, Napolitano came outside and sexually assaulted Corbishley, who was 20 years old at the time.

But Napolitano’s suit said he did not live in a house with a driveway and a backyard at that time, and instead lived on the 26th floor of a condominium in Hackensack.

“Even though he knew the accusations were demonstrably false, Defendant, both directly and through his attorneys, repeated his fabricated claims by publicizing the scandalous and false sexual assault allegations to numerous media outlets in an attempt to garner publicity for himself and his suit to coerce and oppress Former Judge Napolitano in furtherance of his extortionate scheme,” Napolitano’s suit claims.

Thomas Clare of Clare Locke said in an email, “Mr. Corbishley filed his lawsuit in the wrong venue. In addition to the defamation complaint we filed against Mr. Corbishley today in New Jersey, we also filed today a motion to transfer Mr. Corbishley’s improperly filed New York lawsuit to New Jersey. The courts will take up these threshold jurisdictional issues, and we look forward to vindicating Judge Napolitano in the proper venue.”

Jon Norinsberg, an attorney for Corbishley, called Napolitano’s suit “patently baseless and completely improper. There is already a pending lawsuit in the Southern District of New York dealing with the identical issues. The filing of a second lawsuit, in a different federal forum, violates the ‘first-filed’ rule and warrants complete dismissal.”

In addition, Norinsberg said Napolitano’s claims against Corbishley are “outrageous and completely false. We look forward to exposing the truth of what really happened between Judge Napolitano and Mr. Corbishley, and fully vindicating Mr. Corbishley’s rights in a court of law.”

Fox News analyst Judge Andrew Napolitano accused of sexually abusing man in 1980s who faced arson charge in his court



Judicial Watch Sues State of Illinois For Failing To Allow Public Access To Voter Roll Data

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                                  Tom Fitton, President of Judicial Watch


Judicial Watch Sues State of Illinois for Refusing to Disclose Voter Roll Data in Violation of Federal Law

Judicial Watch Analysis Finds Dirty Voting Rolls in State
 
(Washington, DC) – Judicial Watch announced today that it filed a lawsuit against the state of Illinois, the Illinois State Board of Elections, and its director for failing to allow public access to its voter roll data in violation of the federal National Voter Registration Act of 1993 (NVRA).
 
State officials refused to allow the non-profit Illinois Conservative Union and three lawfully registered Illinois voters to obtain a copy of the state’s voter registration list, despite their lawful request for those records under federal law. Judicial Watch filed the lawsuit on their behalf in the United States District Court in the Northern District of Illinois (Illinois Conservative Union et al v. Illinois et al. (No. 1:20-cv-05542)).
 
Federal law provides that states “shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters.” 
 
On July 24, 2019, the Illinois Conservative Union sent a public records request under this provision to the Illinois State Board of Elections, requesting information about the maintenance of voter rolls, including the most recent voter registration list for Illinois. The request noted that the records “would be used solely for purposes intended by federal law, namely, to ensure the accuracy and currency of the official list of eligible voters,” the complaint said.
 
The State Board of Elections denied the request, claiming that only political committees or governmental bodies may receive copies of records. The State Board did allow a few Illinois Conservative Union members to travel to Springfield, Illinois during working hours and afforded them the opportunity to review Illinois’ millions of voter records one at a time on a computer terminal, with no ability to sort or organize records. By this lawsuit the Illinois Conservative Union seeks meaningful access to the records it requested. 
 
As several federal courts have recognized, the public records provisions of the National Voter Registration Act were intended to enhance the ability of private groups to monitor whether states are removing ineligible voters from their voter rolls. In April, a federal court in Maryland noted that organizations “such as Judicial Watch” have “the resources and expertise that few individuals can marshal. By excluding these organizations from access to voter registration lists,” the purpose of the federal law is undermined. That court ordered Maryland to produce complete voter registration records requested by Judicial Watch. 
 
In Illinois, Judicial Watch’s research found that 14 out of 102 counties (14% of all counties) have more registered voters than citizens over 18, while Illinois as a whole has 660,000 inactive registrants.
 
“This lawsuit aims to open up Illinois voting records so private groups can tell whether they are dirty,” said Judicial Watch President Tom Fitton. “Illinois voters and citizens have a right to review election rolls under federal law and Illinois’ refusal to make them available suggests the state knows the rolls are a mess and won’t stand the light of the day.”
 
Judicial Watch is a national leader for cleaner elections.
 
Earlier this year, Judicial Watch sued Pennsylvania and North Carolina for failing to make reasonable efforts to remove ineligible voters from their rolls as required by federal law. The lawsuits allege that the two states have nearly 2 million extra names on voter registration rolls.
 
In 2018, the Supreme Court upheld a voter-roll cleanup program that resulted from a Judicial Watch settlement of a federal lawsuit with Ohio. California settled a National Voter Registration Act lawsuit with Judicial Watch and last year began the process of removing up to 1.6 million inactive names from Los Angeles County’s voter rolls. Kentucky also began a cleanup of hundreds of thousands of old registrations last year after it entered into a consent decree to end another Judicial Watch lawsuit.
 
Judicial Watch’s 2019 study found 378 counties nationwide that had more voter registrations than citizens old enough to vote, i.e., counties where registration rates exceed 100%. These 378 counties combined had about 2.5 million registrations over the 100%-registered mark.
 
Judicial Watch Attorney Robert Popper is the director of Judicial Watch’s election integrity initiative. Judicial Watch is being assisted by attorney David J. Shestokas of Orland Park, Illinois.
 

Manhattan's Mental Health Court Doesn't Help Everyone Who Needs It

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Luis Reyes is pictured on October 30, 2020 in Manhattan, New York. 
(Barry Williams/for New York Daily News)
 

"It’s a cruel world, and I’m better off dead:' Manhattan Mental Health Court offers lifeline to those with serious mental illness — but they have to get in

By NY Daily News, November 14, 2020

Luis Reyes was 16 when he first tried to end his life.

It was 2002 and Reyes was doing time at Rikers Island for entering an apartment with friends and swiping several items. The arrest had come just a few months after an unrelated event, where he’d been held at gunpoint near his Washington Heights home because a group of men mistook him for an accomplice in a failed drug deal.

The holdup flipped a switch in Reyes.

Flashbacks triggered panic attacks but the nightmares were worse, he said, the men swelling to the size of giants in his dreams. He began cutting himself and would space out in school. His mother sent him to a therapist, but the paranoia persisted. He turned to cocaine to keep himself from remembering.

The charges he faced for the theft — second-degree burglary, a violent felony — put him in jail, where his thoughts took a dark turn.

“I tried to hang [myself],” Reyes, now 35, told the Daily News during an Aug. 26 call from Rikers, where he landed again 19 years after that first suicide attempt. "Many times I thought there was something wrong with me, so I’d try to take my life. [People would say,] ‘Oh, he’s bipolar, oh he has schizophrenia.’ It was overwhelming.

My bad thoughts kept coming and coming…and I didn’t know if I was a bad guy or a good guy. What I felt was it’s a cruel world, and I’m better off dead.”

Reyes — who spoke to The News several times while at Rikers in recent months and once from Bellevue Hospital, where he had been treated for epileptic seizures he suffered in jail — was behind bars until mid-October for a technical parole violation in a separate case. 

His public defender, Thalia Karny, of New York County Defender Services, had repeatedly asked the Manhattan District Attorney’s Office to consider Reyes for mental health court — a specialized court that connects people in need of emotional, psychological and pharmaceutical support to the counselors and physicians who can treat them and guide them toward possible alternatives to incarceration.

Karny provided about 800 pages of Reyes’ medical records going back more than a decade detailing suicide attempts, depression, his substance abuse disorder, schizophrenia, and a traumatic brain injury from a car accident when he was 16, around the time his seizures started.

But the lead assistant district attorney on the case and his bureau chief denied multiple requests to screen Reyes — a missed opportunity for him to get the care he desperately needs, Karny said.

Only a handful of cases ever make it to Manhattan Mental Health Court, according to data provided by the district attorney — and that was before COVID-19 ground the city to a halt. On Friday, after tentatively opening some courtrooms for trials and hearings over the summer, the Office of Court Administration once again shut down most in-person proceedings, citing a recent surge in the virus.

Even pre-COVID, the mental health court moved at a plodding pace. In 2018, the office received 74 requests for referral. Of those, prosecutors consented to refer 43 cases — about 58% — and declined to refer the rest. In 2019, the office got 136 requests. They consented to 46 cases — about 34% — and declined to refer the remaining 90.

The office referred three cases this year before the court shut down in mid-March because of the coronavirus pandemic. Twelve cases were not referred to mental health court, though two of those were referred to another diversion court. Thirty-five are pending.

A New York County Defender Services report of 41 cases involving 29 clients from January 2016 to Sept. 20 found the average wait time from arraignment to get into mental health court is 286 days, with one taking as long as 743. Once in court, the cases tend to last between 18 to 24 months.

The specialized services offered in mental health court — a collective effort between the DA’s Special Litigation Bureau, the judge, lawyers, and services provided through the organization CASES — should be afforded to even more people, some public defenders say, without as many barriers to entry.

“I asked them a bazillion times why they didn’t offer [Reyes] a proffer,” said Karny, referring to a request to screen him. “I would tell the judge, I’m not giving up on mental health court. But guess what? I have to give up because it’s up to [the DA]. And that’s a huge thing. It’s up to prosecutors and it shouldn’t be up to them.”

Manhattan Mental Health Court — one of five mental health courts in the city — started in 2011, according to New York County Defender Services mental health attorney specialist Katherine Bajuk, a champion of this diversion court and the services it provides.

Bajuk said part of the problem is some lawyers don’t know to refer their cases to mental health court — and if they do, they don’t always follow the specific procedure required for consideration. Some prosecutors, she said, also don’t flag cases for the DA’s special litigation unit.

“The more experienced [prosecutors], they know [what to do]. I’ve had DAs come into mental health court with me on client cases…and they advocate just as hard as we do,” she said. "We need more people like that getting assigned to these cases from go.”

To be a candidate for mental health court, a person has to be 18, have a serious mental illness, must be charged with a felony — including violent felonies — and must be capable of entering a voluntary plea and gets the blessing from the DA’s special litigation unit.

Reyes has picked up several other charges over the years, including a second-degree burglary charge in 2013 and a second-degree burglary charge in 2019. Both are considered violent felonies even though Reyes never had a weapon and never physically harmed anyone.

Karny says mental health court is no longer an option for Reyes — but had he gotten in, he likely would have had fewer run-ins with the law and better mental health treatment.

“After careful consideration of this case, the defendant’s criminal history and status as a persistent violent felony offender, and his failure to follow-through with programming in the past, we declined to refer him to Manhattan Mental Health Court," Manhattan District Attorney Spokeswoman Emily Tuttle said in a statement.

On a recent October day in Lower Manhattan, Karny stood with Reyes, who was bundled in a heavy, high-collar oatmeal knit sweater to stave off the fall chill. As she spoke, Reyes gave her a gentle smile, eyes creasing through his thick dark frames, his green hair catching the autumn light. With mental health court out of reach, Reyes faces an uncertain future — but he still has faith in Karny.

“I have the best lawyer,” he said softly, minutes before he walked away with her, a cup of coffee in hand.

Alexandria Ocasio-Cortez Wants To Start an "Enemies List" of Trump Supporters To Punish Them

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President Donald Trump participates in a Veterans Day wreath-laying ceremony at the Tomb of the Unknown Soldier
at Arlington National Cemetery in Arlington, Va., Wednesday, Nov. 11, 2020. (AP Photo/Patrick Semansky)

FOR IMMEDIATE RELEASE:                                       CONTACT: Will Hadden

November 18, 2020, Shirley & McVicker Public Affairs
                                                                                         whadden@sbpublicaffairs.com
                                                                                                        703.739.5920
CFTR Denounces AOC’s Proposed Un-American “Enemies List” of Trump Supporters, Threatens Litigation
Democrats Open Themselves to Lawsuits if Innocent Americans Lose Jobs for Exercising their First Amendment Rights
 
Washington, D.C. – Citizens for the Republic, the political action committee founded by President Ronald Reagan, harshly denounced Rep. Alexandria Ocasio-Cortez for recently proposing the creation of a list of “Trump sycophants” to show their “complicity” with Trump should he leave office. Ocasio-Cortez’s alarming proposal comes at the same time that a group of Democratic staffers launched a website called the “Trump Accountability Project,” to blacklist former Trump staffers looking to find jobs next year.
 
“What Congresswoman Ocasio-Cortez and the operatives behind the Trump Accountability Project are proposing is, at its core, antithetical to every value enshrined in our First Amendment. This is America, and in America we do not penalize citizens for how they choose to vote or who they choose to work for in government. We do not take revenge on political adversaries and we certainly do not ‘make lists.’ Such behavior is no better than the targeted political violence carried out by common despots in places like Cuba and Venezuela,” CFTR said in a statement today.
 
If any Americans who make it onto this list are refused a job opportunity or lose their current jobs as a result, Congresswoman Ocasio-Cortez and her vengeful cohorts may face legal action from those same Americans. Their blind quest for retribution resulting in the loss of business or other similar opportunities may constitute legally as tortious interference with business opportunities and expectations, depending on the facts.
 
“If the Congresswoman and those with her attitude insist on continuing this dangerous course, they should remember that innocent people will be hurt emotionally and financially. They should know their actions have consequences. If they want to play with fire, they can expect to be called to account in court by those of us who still believe in freedom of choice.”
 
To reach a spokesperson from Citizens for the Republic, please contact Will Hadden at whadden@sbpublicaffairs.com or call 703.739.5920


Dems''accountability project' aimed at 'canceling' Trump loyalists shuts down
- The Washington Times - Thursday, November 12, 2020

The Trump Accountability Project (TAP) was short-lived in its plan to blacklist Trump loyalists.

It announced Thursday on its sparse website that “the project will no longer be active.”

Conservatives ridiculed backers of presumptive President-elect Joseph R. Biden’s for launching a campaign to cancel people who worked for President Trump by denying them post-government employment. On social media, Trump supporters invoked the names of Stalin, Mao and Pol Pot, men who brutally suppressed opponents.

Neither the website nor its Twitter page disclosed its organizers. But former Obama and Clinton officials urged liberals to join.

Hari Sevugan, former spokesman for the Barack Obama campaign, was one of those.

 

Two Federal Courts Uphold Coronavirus-Related Restrictions on Abortion Clinics

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Federal Courts Uphold Texas, Arkansas Abortion Orders AmidCOVID-19

Two federal circuit courts this week upheld coronavirus-related restrictions on abortion clinics in Texas and Arkansas, offering some legal victories in the larger national debate over whether abortion is an essential medical procedure.

On Wednesday, a three-judge panel of the U.S. Eighth Circuit Court of Appeals ruled 2-1 that Federal District Judge Kristine Baker in Little Rock, Arkansas, erred in granting a preliminary injunction against Republican Gov. Asa Hutchinson’s order prohibiting surgical abortions during the pandemic. The Arkansas victory will be of short effect, however, as the state prepares to open up for elective medical procedures next week.

Meanwhile, a U.S. Fifth Circuit panel, in a 2-1 ruling Monday, allows Texas to restrict medication abortions during the crisis. A week ago, the Fifth Circuit ruled that Texas could prohibit surgical abortions because of public health concerns during the COVID-19 pandemic, turning back a lower court ruling, while delaying a ruling on medication abortions.

In Arkansas, questions quickly swirled Wednesday as Gov. Hutchinson, feeling pressure from hospitals and medical practices trying to avoid layoffs, announced the state would seek to open up for elective medical procedures as early as Monday, provided certain public health requirements are met. One of those requirements is that medical patients be tested for coronavirus 48 hours in advance of being treated for an elective procedure.

Jerry Cox, president of Little Rock-based Family Council, says although the federal court ruling victory will only be effective until Monday, the governor’s order on the Little Rock Family Planning Clinic, the state’s only surgical abortion provider, and the subsequent ruling plowed some important ground for future cases. Planned Parenthood had joined with the clinic to challenge the governor’s order.

“The ruling by the Eighth Circuit yesterday was a huge pro-life victory,” Cox said, “and here’s why: It allowed the governor’s cease and desist order to stand, which means the clinic had to stop doing surgical abortions; and two, they severely slapped the hand of a federal judge here in Little Rock named Kristine Baker, and she has been very prone to rule in a pro-choice direction. … I think the court is sending a very strong message to her that she is out of bounds.” Baker was an Obama appointee.

Cox also mentioned that a group of pro-life legislators visited the Little Rock abortion clinic after the governor’s order and prayed as a group outside, which he said was unprecedented and drew significant attention to the clinic. “The exposing of evil that has been done has been a huge benefit,” Cox said. “The clinic may get back to business as usual, but they have lost big-time in the court of public opinion.”

In Texas, meanwhile, the Fifth Circuit’s ruling vindicates pro-life GOP Gov. Greg Abbott’s contention that abortions, whether medication abortions or surgical abortions, don’t rise to the level of a medically necessary procedure.

Trump appointee Kyle Duncan cast the deciding vote in the 2-1 decision, something abortion proponents were quick to note.

The court agreed with the state that a shortage of personal protective equipment (PPE) was a valid reason to disallow abortion procedures, even those using medication methods. The judges opined that abortion proponents had failed to show that PPE wouldn’t be necessary to at least examine women seeking medication abortions.

Conservative group Texas Values reports that because of Abbott’s executive order, “an estimated 1,800 babies’ lives at least have been saved from abortion to date. On average, abortionists perform 144 abortions per day in Texas.”

Photo: Rex Wholster/Alamy Stock Photo

Betsy Combier, betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

COVID-19 Vaccine Distribution Chain Threatened By Cyber Attackers

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Cyber Attackers Threaten COVID-19 Vaccine Distribution Chain

Jason G. Weiss, Peter Baldwin, Faegre Drinker, December 8, 2020


As COVID-19 vaccine approvals and eventual distribution kicks into high gear, there has been a corresponding – and not particularly surprising – increase in cyber threat activity targeting both vaccine producers and other companies involved in the vaccine distribution chain. Most notably, “cold chain” companies responsible for safely storing and transporting the vaccines have been targeted. The problem has become so severe that both the Federal Bureau of Investigation (FBI) and the Department ofHomeland Security’s Cybersecurity and Infrastructure Security Agency (CISA)recently issued a joint security alert on December 3, 2020, highlighting the risk to the coronavirus vaccine distribution chain.

The alert from the FBI and CISA follows on the heels of an international security alert issued by Interpol warning that there may be an onslaught of all types of criminal activity linked to the COVID-19 vaccine by organized crime. On December 2, 2020, Interpol issued an “Orange Notice” outlining   potential criminal activity against COVID-19 cold chain transporters and highlighting the risks associated with online fraud linked to “advertising, selling and administering fake vaccines.”  Interpol warned that, as COVID-19 vaccines get closer to approval and distribution, it will be critical to “ensure the safety of the supply chain and identifying illicit websites and fake products.” Interpol also advised member nations to warn the public about cyber threats associated with websites purporting to offer information about vaccines. Notably, Interpol found that, after reviewing over 3,000 websites of online pharmacies suspected of selling illicit medicines and medical devices, “around 1,700 contained cyber threats, especially phishing and spamming malware.”

The threat alert released by the FBI and CISA   included information provided by the IBM Security X-Force threat intelligence task force, which is dedicated to monitoring COVID-19 cyber threats. For example, the IBM intelligence report highlighted a recent global phishing campaign targeting organizations associated with the COVID-19 vaccine distribution chain, which targeted many leading COVID-19 vaccine producers. As part of this campaign, cyber threat actors sent spear-phishing emails directly to executives involved in sales, procurement, IT, and finance positions at pharmaceutical companies involved in developing vaccines. In addition, the cyber threat actors sent phishing emails in “Requests for Quotations” to COVID-19 vaccine executives throughout the world. The emails contained malicious HTML attachments in order to conduct “credential harvesting” attacks and steal login and passwords for many of the victim’s accounts.

The IBM security intelligence report recommends the following defenses to help combat cyber threats against the COVID-19 distribution chain:

·         Create and test incident response plans

·         Share and ingest threat intelligence

·         Assess your third party ecosystem and assess potential risks

·         Apply a zero-trust approach to your security strategy

·         Use multifactor authentication (MFA) across your organization

·         Conduct regular email security educational training

·         Use Endpoint Protection and Response

Given the proliferation of cyber-attacks against vaccine producers and the COVID-19 vaccine distribution chain, organizations involved in vaccine development or distribution should carefully review and study the recent threat alert from the FBI and CISA. Finally, in these turbulent times, it is critical that everyone remain vigilant of the threats surrounding the entire COVID-19 vaccine distribution chain.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.


Cybersecurity and Critical Infrastructure

U.S. Army National Guard Reservist Wins Case of Employment Discrimination Against Jeweler Harry Winston

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Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, December 30, 2020
Justice Department Secures Relief for U.S. Army National Guard Reservist on Employment Discrimination Claim Against Luxury Jeweler Harry Winston
The Justice Department and the U.S. Attorney’s Office for the Southern District of Texas announced today that they resolved a claim that luxury jeweler Harry Winston Inc. violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by refusing to offer full-time employment to U.S. Army National Guard Reservist John A. Walker because of his military service obligations.
“Discrimination against members of the National Guard or Reserve because of their service to our country is intolerable, violates the Uniformed Services Employment and Reemployment Rights Act, and the Department of Justice will not stand for it,” said Assistant Attorney General Eric S. Dreiband of the Civil Rights Division. “We honor all service members for their service to our nation, and this settlement signals the Justice Department’s ongoing commitment in protecting the rights of our men and women in uniform.”
“Our soldiers, sailors, airmen, and Marines fight for us. Fighting for their legal rights is the least we can do,” said U.S. Attorney Ryan K. Patrick for the Southern District of Texas. “All service members, including members of the National Guard and Reserve, need to know that employers cannot discriminate against them based on their military service obligations. This settlement sends a strong message to employers that the U.S. Attorney’s Office will protect the rights of our service members.”
In December 2017, reservist Walker applied for a job with Harry Winston, Inc., which denied his application. Walker alleged that Harry Winston, Inc. refused to hire him because of his military service obligations. Under the terms of the settlement, Harry Winston, Inc. has agreed to fully compensate Walker for his back-pay and non-wage damages.
Congress enacted USERRA to encourage non-career service in the uniformed services by reducing employment disadvantages; to minimize the disruption to the lives of persons performing military service, their employers and others by providing for the prompt reemployment of such persons upon their completion of such service; and to prohibit discrimination against persons because of their service in the uniformed services or if they pursue a claim under USERRA.
The U.S. Department of Labor (DOL) referred this matter following an investigation by their Veterans’ Employment and Training ServiceTraining Service. The U.S. Attorney’s Office for the Southern District of Texas and the Employment Litigation Section of the Department of Justice’s Civil Rights Division handled the case and work collaboratively with the DOL to protect the jobs and benefits of military members.
This investigation was led by Assistant U.S. Attorneys Keith Edward Wyatt and Annalisa Cravens and Paralegal Specialist Raymond Babauta of the Southern District of Texas, along with Assistant Director Andrew Braniff of the Department of Justice’s Servicemembers and Veterans Initiative and Senior Trial Attorney Alicia Johnson of the Civil Rights Division’s Employment Litigation Section.
Topic(s):
Servicemembers Initiative
Civil Rights
Component(s):
Civil Rights Division
Civil Rights - Employment Litigation Section
USAO - Texas, Southern
Press Release Number:
20-1399

Defamation and Network Smearing Election Machine Manufacturers

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What is defamation? One definition is character assassination:

the malicious and unjustified harming of a person's good reputation.

"all too often they discredit themselves by engaging in character assassination".

Currently, it looks to me like major social media service providers make statements that they "hope" will be taken as factual, but are not.

Facebook and Twitter should not be able to censor what people say because they - the people who have the power to click truth away at these media conglomerates - don't want anyone to read something that contradicts their beliefs. Their beliefs are their right to have, but not to force on others.

Betsy Combier, betsy.combier@gmail.com
Editor, ADVOCATZ.com
Editor, ADVOCATZ Blog
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials


How defamation law is supposed to work: Networks couldn’t 
get away with smearing election machine manufacturers

Edward Steinberg, NY DAILY NEWS, December 29, 2020

The late New York Sen. Daniel Patrick Moynihan famously said that “Everyone is entitled to his own opinion, but not his own facts.” 

Last week, right-wing “news” networks 
Fox News, Fox Business, Newsmax and OAN got a painful, awkward lesson in the legal meaning of Moynihan’s phrase. 

Since the election, these networks have broadcast their opinion, and that of President Trump’s, that the 2020 election was stolen. Of course, they have a First Amendment right to state this. 

But, lacking any evidence whatsoever, Trump, our fabulist-in-chief, in tandem with these Trump-echo networks, made up “facts” to lend support to this opinion: conspiracies involving George Soros; midnight ballot dumps; biased poll workers; and electronic voting systems from Dominion Voting Systems and Smartmatic that supposedly switched votes from Trump to Biden in swing states. 

These conspiracy theories even forced one election systems worker into 
hiding because of death threats. 

And here is where the networks crossed a line. Moynihan’s famous aphorism actually describes defamation law perfectly. False statements of facts, even if mixed with opinion, can give rise to lawsuits by those reputationally injured, even against the press. 

And so, 
Smartmatic and Dominion merely threatened defamation lawsuits — and many of these networks caved, issuing not only specific retractions but also admissions that they possessed no evidence of ballot switching or of the dark conspiracies that they had been advancing. 

Normally, one would not think of corporations as the go-to defenders of truth and democracy, but in this case, it was their threat of defamation lawsuits that brought forward truth, and that hopefully will increase confidence in the outcome of our election. 

In the famous story, it’s a child who calls out the emperor for having no clothes; today, it’s voting machine companies. Tomorrow, it may be poll workers falsely accused of improperly scanning ballots, voters falsely accused of illegal registrations, not-for-profits falsely accused of illegal ballot harvesting, and anyone in a news story, or a widely-circulated Facebook post or Tweet, who is falsely accused of illegal activity in connection with an election. 

Smartmatic and Dominion are on to something. The explosion of falsity by propagandist networks must be met with a flood of defamation suits. 

And while social media companies themselves might be — for now — able to escape such suits because of Section 230 of the Communications Decency Act of 1996, individual users of Twitter, Facebook, and Instagram with large followings should know that they might be held liable for spreading specific lies that sully the reputation of businesses or individuals. 

Lawsuits for intentional infliction of emotional distress can be another tool in the fight for truth against right wing-conspiracies. Fox News found this out when the Second Circuit 
held that the parents of murdered DNC staffer Seth Rich could sue over a segment purporting to link Rich to WikiLeaks in furtherance of an alt-right theory that his death involved leaked DNC emails. 

Legislators, too, can help. New York should consider laws to extend the statute of limitations for defamation suits, mandate double or treble damages in egregious instances, and protect whistleblowers who bring forward evidence of malicious and deliberate false reporting. 

The First Amendment would not be implicated by any of these laws, nor would there likely be much increase in the number of defamation suits filed. Falsely yelling “fire” in a crowded theater has never been protected by the First Amendment; falsely yelling that someone burned ballots is not protected either. 

Steinberg is the president of the New York State Trial Lawyers Association. 

Visit our COVID-19 Response page 
here

join the NYSTLA COVID-19 Listserver

or please contact Nick Novak at 212-349-5890 Ext. 800 

or at nnovak@nystla.org


N.Y.P.D. Concludes That Deputy Inspector James F. Kobel Wrote Racist Posts Under Pseudonym

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James F. Kobel

N.Y.P.D. Concludes Anti-Harassment Official Wrote Racist Online Rants

William K. Rashbaum and 

The official, James F. Kobel, who will now face a departmental trial, filed for retirement as the inquiry was winding down.

After two months of investigation, police officials have concluded that a high-ranking officer responsible for combating workplace harassment in the New York Police Department wrote dozens of virulently racist posts about Black, Jewish and Hispanic people under a pseudonym on an online chat board favored by police officers.

The officer, Deputy Inspector James F. Kobel, filed his retirement papers late last week as the departmental inquiry was winding down. But the officials said on Monday that they still planned to bring administrative charges against him as soon as this month for falsely denying that he had written the offensive messages.

“The evidence is strong,” said one senior police official who spoke on the condition of anonymity to discuss a personnel matter. “We have no doubt that it’s him.”

The downfall of Inspector Kobel, who oversaw the department’s Equal Employment Opportunity Division, began over the summer when an investigator with the City Council’s Oversight and Investigations Division stumbled across a series of disturbingly racist posts on the Rant, an infamous chat board.

Even by the Rant’s vitriolic standards, the messages, written by a poster who called himself “Clouseau,” were particularly vicious and racist.

One referred to former President Barack Obama as a “Muslim savage.” Another labeled Dante de Blasio, the Black son of Mayor Bill de Blasio, as “brillohead.”

By October, the council’s oversight division, led by then-Councilman Ritchie Torres, managed to identify “Clouseau” as Inspector Kobel. In a painstaking bit of online sleuthing, the investigators matched up hints that “Clouseau” had left online about his life with details about the inspector’s personal and professional biographies that were publicly available.

On July 1, 2019, for example, “Clouseau” left a message describing how he joined the Police Department on June 30, 1992, recalling it as an “unbelievably hot” night. Using city payroll records, the investigators determined that Inspector Kobel had joined the force on that same date.


Then last January, “Clouseau” wrote that he had once worked “in Housing” under “JJ,” whom he referred to with an obscene slur for women. According to Inspector Kobel’s LinkedIn page, he too served in the department’s Housing Bureau — from 2012 to 2014, at a time when it was run by a female chief, Joanne Jaffe.

In November, The New York Times presented police officials with a draft report of the council’s findings, prompting the internal investigation. At the time, Inspector Kobel denied the allegations and said he did not post on the Rant.

Inspector Kobel was placed on modified assignment. If he is convicted at his departmental trial, he could be fired. He will keep his pension unless he is convicted of a felony. He did not respond to a message seeking comment on Monday night.

Captain Chris Monahan, who heads the Captains Endowment Association, the union that represents the inspector, defended him in a statement, saying he had served the city and the Police Department for 29 years.

“Given the current political climate and anti-police sentiment, D.I. Kobel did not see it as possible to get a fair administrative trial and decided to avail himself of the opportunity to file for retirement,” the statement said.

At the outset of the inquiry, conducted by the Internal Affairs Bureau, Inspector Kobel voluntarily provided investigators with his personal cellphone and computer, and they believed the postings were not in keeping with his public persona and reputation.


See also:

N.Y.P.D. Anti-Harassment Official Accused of Racist Rants

Law Firms Hired By Washington State Are Given Civil Immunity From Retaliatory Litigation

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Washington State Supreme Court

The action by the Washington State Supreme Court in Leishman v Ogden Murphy Wallace that law firms hired by the government are "persons" under the State's anti-SLAPP statute and are immune from retaliatory litigation draws attention once again to the subject of placement of anyone, at any time, and for any reason, above the law.

We should be very careful to not overuse this placement, which allows agencies/groups/law firms who may abuse their obligations and responsibilities to protect the innocent to "get away with the malfeasance".

See more:

LOCAL SOVEREIGN IMMUNITY


Qualified immunity

Betsy Combier


State High Court Ruling Gives Law Firms Hired by Government Agencies Immunity
February 03, 2021

A split Washington state Supreme Court ruled that a government contractor—in this case, a law firm that was hired to perform an independent investigation of the Washington Attorney General’s Office—qualifies as a "person" under the state’s 1989 anti-SLAPP statute and is entitled to civil immunity from retaliatory litigation.

A split Washington state Supreme Court ruled that a government contractor—in this case, a law firm hired to perform an independent investigation of the Washington Attorney General’s Office—qualifies as a “person” under the state’s 1989 anti-SLAPP statute and is entitled to civil immunity from retaliatory litigation.

In a 5-4 ruling filed Jan. 28, the majority reversed the Court of Appeals and reinstated the trial court’s judgment in Leishman v. Ogden Murphy Wallace. The court was asked whether to exclude an otherwise covered individual or organization from immunity under the state’s anti-SLAPP law—RCW 4.24.510—because it was paid under a contract with the government to conduct an investigation and report the findings to a government agency. SLAPP stands for “Strategic Lawsuits Against Public Participation.”

“We hold that a government contractor hired to speak to a government agency is a ‘person’ under the statute,” Justice Raquel Montoya-Lewis, who delivered the 21-page majority opinion, said. “RCW 4.24.510’s immunity unambiguously applies to organizations and individuals, and there is no language in the statute limiting its application when an organization or individual communicates under a contract with a government entity.

“We reverse the Court of Appeals and find that [defendants] OMW and [Patrick] Pearce are entitled to a reinstatement of the trial court’s grant of reasonable attorney fees and costs, as well as attorney fees and costs for their appeal,” Montoya-Lewis said.

Associate Chief Justice Charles Johnson and Justices Mary Yu, Mary Owens, and Sheryl Gordon McCloud join Montoya-Lewis’ opinion.

Justice Barbara Madsen issued a separate eight-page dissent, joined by Chief Justice Steven Gonzalez and Justices Debra Stephens and G. Helen Whitener.

Madsen argued that the majority gave too broad of a definition of “person,” instead of narrowly construing the immunity law.

The anti-SLAPP statute was meant to blunt or prohibit such lawsuits, that the Legislature deemed are designed to intimidate the exercise of First Amendment rights and rights under Article I, Section 5 of the Washington state Constitution, when it passed the law in 1989.

“I disagree with the majority’s decision to give a broad meaning to the term ’person’ and extend protection to a government contractor that is neither exercising its First Amendment rights nor petitioning the government for redress of grievances,” Madsen wrote. “Precedent has established that immunities are to be narrowly construed.”

Plaintiff Roger Leishman, who represented himself, could not be immediately reached for comment.

Robert Sulkin and Malaika Eaton of McNaul Ebel Nawrot & Helgren in Seattle, represented Ogden Murphy Wallace, one of two defendants in the case. Sulkin was also not available to comment.

The entities in question, in this case, were Ogden Murphy Wallace (referred to as OMW in court documents) and Patrick Pearce, the law firm’s lead investigator, who were hired as outside counsel to conduct an independent internal investigation of Leishman’s allegations of discrimination against his employer. The investigation also would include, unbeknownst to Leishman, his workplace conduct with a supervisor.

Leishman, an openly gay man, began working at the Attorney’s General Office in Bellingham as chief legal adviser to Western Washington University in June 2015.

Shortly after starting the job, Leishman began exhibiting serious trichotillomania, anxiety, and other symptoms, which he disclosed to his employer. In November 2015, Leishman’s physician diagnosed him with post-traumatic stress disorder and co-dependency. Leishman informed the office about his new diagnoses, according to court documents.

In January 2016, Leishman learned he did not receive a $3,000 raise given to other assistant attorney generals because of complaints his supervisor made about his conduct at work. Leishman contended his supervisor’s complaints were based on homophobic beliefs.

In February 2016 Leishman made a formal request for reasonable accommodation of his disability, which the office denied. A month later Leishman drafted a discrimination complaint.

During a March 1, 2016 meeting with his supervisor over the complaint, the supervisor denied wrongdoing in connection with her statements, accused Leishman of faking his disability, and refused to support his then-pending accommodation request.

Leishman admitted that during this meeting he became angry, restless, and agitated, and he raised his voice. Leishman formally submitted his discrimination complaint to the Attorney’s General Office.

Leishman’s supervisor complained to the office about Leishman’s conduct during their meeting, and the office placed Leishman on home assignment, where he remained until his termination three months later.

The office retained Ogden Murphy to conduct the independent investigation but never informed Leishman that it was also investigating his alleged behavior during the March 1 meeting with his supervisor.

The law firm’s report concluded that “Leishman has not established support for his complaint of discrimination against him based on sexual orientation” and that “Leishman’s conduct during the March 1 meeting violated expected standards of conduct for his position as reflected in his job description.”

The office moved to terminate Leishman on June 1, 2016, and Leishman subsequently sued the law firm and Pearce for negligence, violation of the Consumer Protection Act, misrepresentation, fraud, and discrimination. Leishman alleged that neither Pearce nor Ogden Murphy was acting as the Attorney’s General Office’s agent and, therefore, his claims against the law firm and Pearce are not barred by the settlement.

Ogden Murphy filed a motion for judgment on the pleadings, under CR 12(c), arguing that it and Pearce had immunity under the anti-SLAPP law. The trial court granted Ogden Murphy’s motion, and Leishman appealed.

The Court of Appeals reversed, holding that “government contractors, when communicating to a government agency under the scope of their contract, are not “persons” entitled to protection under RCW 4.24.510.” The high court was asked to review.

In her dissent, Madsen contended the type of work the law firm conducted wasn’t covered by the anti-SLAPP law.

“RCW 4.24.510 does not contemplate the type of conduct OMW engaged in here,” Madsen wrote. “Rather, the communication was sought and contracted by the government. OMW was acting as the government and not in a personal capacity.”

But Montoya-Lewis and the majority disagreed: “It is not for this court to narrowly construe an unambiguously broad statute in order to make it comport with our vision of who anti-SLAPP statutes should protect.

“If OMW and Pearce are ’persons’ under RCW 4.24.510, then they are immune from Leishman’s suit based on their communication to the [Attorney's General Office], and the case must be dismissed,” Montoya-Lewis wrote in the Jan. 28 opinion.

Alexandra Murphy, Daughter of New York's Chief Judge Janet DiFiore, Takes Seat as a Judge in the 9th District

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Alexandra Murphy.  She is a state Supreme Court judge in the New York State’s
9th Judicial District.


DiFiore’s Daughter Secured Judicial Post in Wake of Cuomo Move

When a main opponent was elevated to a judgeship on the Court of Claims, attorney Alexandra Murphy sailed to a state Supreme Court seat in the Hudson Valley, political insiders say.

The daughter of New York’s top judge sailed to a state Supreme Court seat last fall after Gov. Andrew Cuomo elevated one of her main opponents to a separate judicial post, political insiders say.

Alexandra Murphy, 36, has quietly started a 14-year term as a state Supreme Court judge in the Ninth Judicial District, which covers five counties in the mid-Hudson region.

Murphy, who is the daughter of Chief Judge Janet DiFiore, is set to make a salary of $210,900.

The governor nominated one of Murphy’s main competitors, court attorney Veronica Hummel, as a judge for the state Court of Claims in July 2020, according to party insiders. That move cleared the path for Murphy to receive the Democratic party nomination less than three weeks later, which earned her a spot on the ballot under the party line, they said.

“I felt that was an embarrassment to the party,” said one judicial delegate, weighing in on the maneuver that allowed Murphy an easier track to the nomination.

Murphy went on to receive more than 557,000 votes in the November general election, coming in second overall and securing one of the four open state Supreme Court judgeships.

Murphy, who was rated as “well qualified” by two county bar associations, had a 10-year career as an assistant district attorney in Manhattan. She worked in a part-time role for more than half of her time there, according to a spokesman for the district attorney’s office.

Running for the Bench

The Democratic Party nomination is key for state Supreme Court candidates running in the Ninth Judicial District, where Democrats hold a wide voter registration advantage over Republicans. 

Murphy had the least amount of legal experience among candidates vying for the Democratic nomination, even though she was qualified for the spot, according to several Democrats with knowledge about the race who spoke to the Law Journal under the condition of anonymity.

As a lawyer, she had only worked as an assistant district attorney but was running for a judicial position that dealt with a wide variety of civil cases, they said.

In the district, there’s a process for getting the Democratic nomination for a state Supreme Court seat, several insiders said. In general, past Democratic candidates spent several years attending political party events and interviewing with local political committees, they said.

That timeline appeared to not apply for Murphy, who gained the party nomination less than a year after becoming legally eligible for the judicial post, they said. Under state law, a person must be admitted to practice law in the state for at least 10 years before serving as a state Supreme Court judge.

Lucian Chalfen, a state court system spokesman, acknowledged that Murphy handles matrimonial and civil matters in Westchester County as a judge. 

“It is not unusual for a newly elected or appointed Judge to be assigned by court administrators to a new practice of law,” he said in a statement to the Law Journal.

Murphy’s campaign gained the endorsement of many local political committees and several party leaders, including Reginald Lafayette, a former Westchester County Democratic party chair.

Also endorsing Murphy was Kristen Zebrowski Stavisky, who is the chair of the Rockland County Democratic party. She described Murphy as someone who was smart, dynamic and perfectly capable of serving as a state Supreme Court judge.

The Westchester County Bar Association rated Murphy as “well qualified” for the position, as did the Dutchess County Bar Association.

Murphy did not run under her mother’s last name and many Democrats, even those who raised eyebrows about her campaign, said she never brought up her mother’s position during their interactions with her.

Some party members said the high-profile status of Murphy’s mother was unavoidable, raising questions over how her mother’s public prominence impacted the race.

There is no indication that DiFiore played a direct role in Murphy’s campaign, or the move that placed Hummel on the Court of Claims.

“The Chief Judge neither appoints nor anoints Judges, including her daughter,” Chalfen said in a statement.

DiFiore, who herself was nominated by Cuomo, is the head of New York’s judicial branch and the state’s top court. She also oversees a multibillion-dollar budget and a sprawling court system that includes judges and nonjudicial employees across the state.

Her reputation runs deeper in Westchester County, where she previously served as a county court judge and spent many years as the county’s district attorney, said one judicial delegate.

DiFiore and Murphy did not make themselves available for an interview.

Prosecutorial Career

A graduate of Fordham University law school, Murphy spent more than 10 years as a prosecutor for the Manhattan district attorney’s office—an experience she highlighted during her run for state Supreme Court.

Murphy, who started as an assistant district attorney in September 2009, worked in a trial bureau for years before working in a quality of life unit, according to office spokesman Danny Frost.

Murphy worked in a part-time role for most of her employment at the office and had transitioned to that status in 2014, he said. When she left the office in early 2020, Murphy had less than five years as a full-time prosecutor, according to Frost.

Chalfen said Murphy went to part-time status when she had her first child and she did work as a supervisor at one point during her part-time status.

Knowing how to balance work and life, he said, allows her to have more empathy for litigants and to be part of a more inclusive judiciary. He implied Murphy “should be commended” for wanting to emulate her mother’s decades-long career.

In a campaign video, Murphy appeared to reference her prosecutorial experience and said she had dedicated her career to public service.

“The knowledge and experience I have gained over the last decade practicing in one of the busiest courthouses in the country have prepared me to serve in this next capacity,” she said.

The former prosecutor ran on the Democratic and Conservative party lines during last year’s general election.

Murphy was boosted by a well-funded campaign and received a $10,000 loan from her father, Dennis Glazer, in February 2020, according to campaign filings. Glazer is also DiFiore’s husband.

Chalfen said the $10,000 loan was used to kick off Murphy’s campaign. DiFiore and Glazer “maintain separate checking accounts,” he said in a statement.

Stephen Gillers, a law professor at New York University who focuses on legal ethics, said DiFiore as chief judge has limitations on her political activity, but those do not apply to her husband. Glazer, he said, does not give up his rights as a citizen due to his relationship with DiFiore. 

Gillers also commended Murphy for not running under her mother’s last name.

Now that Murphy is on the bench, DiFiore should not sit on any case in which her daughter was a lower court judge, he said.

Political Jockeying

There were four open judicial spots in the Ninth Judicial District during last year’s general election. But before the Democratic party nominations were settled, political insiders say the main competition came down to three candidates—Murphy, Hummel and Robert Ondrovic—for two open state Supreme Court seats in Westchester County.

Another candidate, E. Loren Williams, was expected to fill an open position in Orange County and Judge Sam Walker in the Ninth Judicial District was an incumbent, making him likely to win reelection, they said.

Before the general election, Democrats in the Ninth Judicial District hold a judicial convention where they nominate candidates for state Supreme Court.

Last year, the Democratic judicial convention appeared to be headed for a contested convention, with Murphy, Ondrovic and Hummel competing for the two open positions, two judicial delegates said.

Hummel had been principal court attorney in White Plains for a state Supreme Court judge, according to a press release.

She had also served as the principal court attorney for a Westchester County Court judge and worked as the principal court attorney for a state Supreme Court judge in New York City, the release said.

Ondrovic conducted more than 300 jury trials and practiced for more than three decades in state Supreme Court, according to campaign material. Attempts to reach Ondrovic for this article were unsuccessful.

Many people wanted to back Murphy because they saw her as a younger candidate who was personable, said one judicial delegate from the district. It’s possible that Murphy could have come out with one of the two spots even with competition, the judicial delegate said.

“So what happened took away any risk from anybody,” they said, referring to Hummel’s nomination to the state Court of Claims.

Less than three weeks from the judicial convention, Hummel announced on Facebook that she was confirmed as a judge on the Court of Claims and expected to become an acting Supreme Court judge in the Bronx. 

While my application was first filed last year, this opportunity suddenly presented itself,” read the July 2020 post on her Facebook page.

Hummel expressed interest in a Court of Claims judgeship during the summer, according to the judicial delegate, and it was known that a Court of Claims nomination could resolve the issue of three candidates running for two open Westchester judgeships.

“In the heat of battle, it may seem like a consolation prize. But it’s not,” the judicial delegate said.

Yet Tina Volz-Bongar, a district leader with the Peekskill Democratic City Committee, said she couldn’t help but feel disheartened over Hummel taking the Court of Claims position—even though the move did get her on the bench.

To Volz-Bongar, it felt like the party didn’t do its job. Democratic voters trust the party to follow a process that puts forward the best candidate, she said.

“And it didn’t happen that way,” she said. “It’s so disappointing to me.”

Jeffrey Parker of Rincon Georgia is Sentenced to Six Months in Federal Prison For Making False Statements

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Jeffrey Parker

People who believe in the cancel culture philosophy of making up false statements to defame someone are going to have their moment in court when more cases similar to that of Jeffrey Parker are fought by victims in criminal or civil cases filed in state or federal courts.

We are starting to mend as a society when the rampant posting of anonymous and false statements on the internet is stopped.


City Has Lost Contact With 2,600 Students Since MarBetsy Combier

Richmond Hill man pleads guilty to creating scheme to frame former acquaintance with violations of patient privacy


RICHMOND HILL, Ga. (WTOC) - A Richmond Hill man has admitted that he created fake email addresses and concocted other information to falsely accuse a former acquaintance of committing violations of patient privacy, according to the South District of Georgia.

Jeffrey Parker, 43, pled guilty in U.S. District Court to one count of false statements. The charge carries a possible sentence of up to five years in federal prison.

According to court documents, Parker used an intricate scheme to claim a former acquaintance had violated privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA).

In the news release from the Department of Justice, it states that Parker is accused of creating email addresses using names of real people and pretending to be them to make it appear as if his acquaintance committed a crime. Parker sent the emails to the hospital, the DOJ and to the FBI.

Parker claimed to have received threatening messages in retaliation for blowing the whistle, and FBI agents took steps to ensure his safety and investigate the alleged crime.

After an FBI agent interviewing Parker found inconsistencies in his story, Parker admitted the statements he made and emails he sent were false, according to the DOJ.

“Jeffrey Parker tried to portray himself as a ‘whistleblower’ while attempting to frame a former acquaintance,” said U.S. Attorney Bobby L. Christine. “This fake complaint not only caused potential harm for an innocent victim but it also unnecessarily diverted resources from federal investigators whose diligent work shredded his web of lies.”

Copyright 2020 WTOC. All rights reserved.

DOJ: Rincon 'whistleblower' sentenced to federal prison in health care privacy law scheme

A Rincon man who portrayed himself as a 'whistleblower' while falsely accusing a former acquaintance of violating patient privacy has been sentenced to federal prison, the U.S. Dept. of Justice (DOJ) said Tuesday. 

Acting U.S. Attorney for the Southern District of Georgia, David Estes, said Jeffrey Parker, 44, of Rincon, was sentenced to six months in prison after pleading guilty to one count of false statements. Estes said Parker also was fined $1,200 and after completion of his prison term must serve three years of supervised release. 

There is no parole in the federal system.

Our law enforcement partners work tirelessly to protect the community by solving real crimes, and cases like this only divert time and resources from critical tasks,” said Acting U.S. Attorney Estes. “Jeffrey Parker’s fake complaint needlessly alarmed the victim and health care workers, but his scheme ultimately unraveled under the questioning of a perceptive FBI agent.

According to court documents and testimony, Parker admitted that he “engaged in an intricate scheme” in October 2019 when he contacted the DOJ to claim that a former acquaintance had violated privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA).

The DOJ said Parker created email addresses using the names of real individuals and pretended to be these individuals to make it appear as if the acquaintance committed a crime. 

The DOJ said he sent the emails to the hospital where the acquaintance worked, to the DOJ, and to the FBI, and then claimed to have received threatening messages in retaliation for acting as a whistleblower. 

The DOJ said FBI agents quickly responded by acting to ensure Parker’s safety and investigate his allegations, and following questioning, Parker admitted putting together the scheme in an attempt to harm the former acquaintance.

Many hours of investigation and resources were wasted determining that Parker's whistleblower complaints were fake, meant to do harm to another citizen,” said Chris Hacker, Special Agent in Charge of FBI Atlanta. “Before he could do more damage, his elaborate scheme was uncovered by a perceptive agent and now he will serve time for his deliberate transgression.

The case was investigated by the FBI, and prosecuted for the United States by Assistant U.S. Attorney Patrick Schwedler.


FOR IMMEDIATE RELEASE

Tuesday, February 23, 2021

Fake whistleblower sentenced to federal prison for trying to frame a former acquaintance for violating patient privacy

Man created fake email accounts, used others' identities

SAVANNAH, GA:  A Rincon man who portrayed himself as a whistleblower while falsely accusing a former acquaintance of violating patient privacy has been sentenced to federal prison.

Jeffrey Parker, 44, of Rincon, Ga., was sentenced to six months in prison by U.S. District Court Judge Lisa Godbey Wood after pleading guilty to one count of False Statements, said David H. Estes, Acting U.S. Attorney for the Southern District of Georgia. Parker also was fined $1,200 and after completion of his prison term must serve three years of supervised release. There is no parole in the federal system.

“Our law enforcement partners work tirelessly to protect the community by solving real crimes, and cases like this only divert time and resources from critical tasks,” said Acting U.S. Attorney Estes. “Jeffrey Parker’s fake complaint needlessly alarmed the victim and health care workers, but his scheme ultimately unraveled under the questioning of a perceptive FBI agent.”

As outlined in court documents and testimony, Parker admitted that he “engaged in an intricate scheme” in October 2019 when he contacted the U.S. Department of Justice (DOJ) to claim that a former acquaintance had violated privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA).

Parker created email addresses using the names of real individuals and pretended to be these individuals to make it appear as if the acquaintance committed a crime.  He sent the emails to the hospital where the acquaintance worked, to the DOJ, and to the FBI, and then claimed to have received threatening messages in retaliation for acting as a whistleblower. FBI agents quickly responded by acting to ensure Parker’s safety and investigate his allegations, and under subsequent questioning, Parker admitted concocting the scheme in an attempt to harm the former acquaintance. 

“Many hours of investigation and resources were wasted determining that Parker's whistleblower complaints were fake, meant to do harm to another citizen,” said Chris Hacker, Special Agent in Charge of FBI Atlanta. “Before he could do more damage, his elaborate scheme was uncovered by a perceptive agent and now he will serve time for his deliberate transgression.”

The case was investigated by the FBI, and prosecuted for the United States by Assistant U.S. Attorney Patrick Schwedler.

Topic(s): 
Cyber Crime
Identity Theft
Contact: 
Barry L. Paschal, Public Affairs Officer: 912-652-4422
Press Release Number: 
29-21

Federal Courts Need Transparency of the Perks Offered Judges

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The Federal Courts Have a Transparency Problem. Here’s How We Can Fix It.

The third branch says it’s the most transparent when it comes to its work, but it’s the least transparent when it comes to the perks.

Every odd-numbered year, during the mid-March open government festival called “Sunshine Week,” members of Congress introduce bills that would require the U.S. Supreme Court and lower federal courts to broadcast their proceedings live to the public. This year has been no different.

It’s a worthy endeavor, but it obscures the fact that a lack of live broadcast is not, by a long shot, the most hazardous transparency deficit that faces the federal judiciary today. This is especially true in 2021, when the U.S. Supreme Court and all 13 federal appeals courts offer live audio access to their hearings.

The black box is not judicial proceedings but what judges and justices do away from the bench. Federal jurists are treated like “rock stars,” receiving all sorts of benefits when they leave the confines of their chambers and step out across the U.S. and the world. They are feted with luxury box football tickets, blocks of hotel rooms, gift blankets and gift baskets, free hunting trips and fishing equipment. They fly to Malta and New Zealand and South Africa. They accept $2,000 prizes and $1 million prizes. They make $1.5 million and $1.9 million in book royalties and fail to recuse when their publishers have cases before them.

What’s most dispiriting about these details is that they were uncovered months or even years after the fact, long past when they may have been relevant to the work that we, the public, entrusted to them. The third branch says it’s the most transparent when it comes to its work (judicial opinions), but it’s the least transparent when it comes to the perks. Attempts to detect conflicts of interest in real time rely on conjecture.

This lack of transparency cuts both ways: Greater disclosure can sometimes show justices in a more ethical light. For example, on Jan. 15, 2016, Chief Justice John Roberts weighed in on a Microsoft petition to the high court, which raised eyebrows, since his last disclosure showed he owned Microsoft shares, and federal law states a judge can’t consider a case if he owns stock in a litigant. But by law, Roberts was not required to disclose his early 2016 stock status until June 15, 2017, some 500 days later. (Turns out he sold his shares on Jan. 5, 2016, allowing him to participate.)

If Roberts were, instead, a member of the U.S. House Committee on Science, Space and Technology and similarly decided to sell his Microsoft stock as he weighed an issue of import to the company, the public would know about the transaction within a couple of weeks.

This raises the critical point: The easiest way to bring sunshine to the third branch would be to hold our judges and justices to the same ethical standards that members of Congress already abide by—the same travel, gift, stock ownership and financial disclosure rules.

Senators and representatives must file, within a month of their return, a disclosure form whenever they travel on a third party’s dime. Judges and justices, on the other hand, file travel disclosures once per year and can omit the dollar amounts of their perks—airline tickets, lodging, meals and the like.

Members of Congress have strict rules on accepting gifts and in nearly all circumstances must refuse gifts from lobbyists and foreign agents. Yet these rules by and large do not exist in the judiciary, and judges and justices are free to accept certain gifts from individuals with cases in their courts.

Any time a senator or representative buys or sells a stock, they must report that transaction within 45 days. In the third branch, you only need to report once per year, which, as mentioned earlier, can mean a lag of a year and a half before that information reaches the public.

Finally, all these disclosures—whether travel or stocks or gifts—are posted online if you’re a member of Congress. Judicial disclosures, however, are not automatically posted. Those that are online today got there because a transparency group asked for them, waited in some cases several years and uploaded them themselves.

There were a few bills introduced in the last Congress that would move us in the right direction. The Judicial Travel Accountability Act would require certain transportation, lodging and meal disclosures, and the 21st Century Courts Act would shine a light on judges’ and justices’ conflicts of interest and automatically post annual financial disclosure reports within 90 days.

But both bills died before enactment, and neither has been reintroduced this year.

At a time when faith in all three branches of government is low, government officials should favor more sunshine. There’s no better time than Sunshine Week to enact changes in judiciary policy—shedding light where there’s been none for far too long.

Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for a more open and accountable federal judiciary.

Cornell Law Student Defends Blogger's First Amendment Rights in Anti-SLAPP Case

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Law student plays key role in blogger’s defamation defense

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis


During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation– should apply retroactively. Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”

Report of The Special Advisor on Equal Justice in the Courts

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Recommendations from the  Special Adviser on Equal Justice in the Courts 

From: National Public Voice

New York’s courts continue efforts to combat racism

By Rachel Vick, Queenseagle.com, May 17, 2021

Just six months after the release of a report outlining racism in the state’s court system, leaders shared an update on the steps they are taking to eliminate system-wide bias.

The dozen recommendations made by the Special Adviser on Equal Justice in the Courts, former U.S. Secretary of Homeland Security Jeh Johnson, were issued in October 2020 to mitigate pervasive racism within the courts by declaring a zero-tolerance policy and implementing bias training. 

“There is no greater priority for the court system than the implementation of the Special Adviser's recommendations,” Chief Administrative Judge Marks said on Monday. “I am gratified by the significant progress made these past few months and look forward to further developments in our pursuit to combat racial and other bias systemwide.” 

Marks described the task force’s ongoing efforts as a “critically-important undertaking” and “a wide-ranging endeavor that relies on the collaboration and support” from all parties involved. 

To date, the courts have taken steps including improving high ranking court official’s outreach, mandatory training for all judges and nonjudicial staff on racial bias and implicit bias, mandatory name tags for court personnel, updating the court system’s juror orientation video to address juror bias, increasing visibility of the Franklin H. Williams Judicial Commission and Office of Diversity and Inclusion, increasing language access and the inclusion of diversity in a new Unified Court System mission statement.

“In the service of our mission, the UCS is committed to operating with integrity and transparency, and to ensuring that all who enter or serve in our courts are treated with respect, dignity, and professionalism,” the new statement reads.  “We affirm our responsibility to promote a court system free from any and all forms of bias and discrimination, and to promote a judiciary and workforce that reflect the rich diversity of New York State.” 

They are also working to increase awareness of the Inspector General’s office, including its Bias Matters Unit, where court system employees and court users can file complaints, and increase access through an intermediary. 

Judge Edwina Mendelson, who is overseeing the overhaul, is launching a website to highlight the vision and ongoing work of the Equal Justice in the Court's Initiative in the coming weeks. She is also in the process of organizing court officer community outreach programs and a community affairs appointee in each courthouse to improve public trust.

“It is a professional and personal privilege for me to oversee implementation of the Special Adviser’s recommendations for eliminating racial bias in the courts and promoting meaningful diversity, equity, and inclusion at all levels,” Mendelssohn said. “I have deep faith in the strength of our commitment and a strong belief in our collective will to meet this moment – and to fulfill our obligation to provide equal justice in all our courts.”


The Impeachment Of Governor Andrew Cuomo Goes Nowhere - No Surprises Here

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Speaker Carl Heastie and Gov. Andrew Cuomo

In New York State, did anyone really believe that Governor Andrew Cuomo, son of former Gov. Mario Cuomo, would be held accountable for any of his actions, including sexual harassment of women who worked for him?

Reporter who covered Cuomo for years recounts governor's 'checkered, bullying, spiteful' past

Nope.

 Betsy Combier

Editor, ADVOCATZ.com
Editor, ADVOCATZ blog
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, NYC Rubber Room Reporter
Editor, NYC Public Voice
Editor, National Public Voice
Editor, Inside 3020-a Teacher Trials

Even the impeachment of Gov. Cuomo is just grist for corruption

NY POST Editorial Board, May 31, 2021

The charges against Gov. Andrew Cuomo won’t be real until Speaker Carl Heastie says they are.

Assemblyman Charles Lavine, who’s nominally in charge of the supposed Cuomo impeachment inquiry, admitted last week that there’s no end anywhere in sight. Nor will there be, until Speaker Carl Heastie decides he wants it.

At just the third Judiciary Committee meeting to even pretend to address the issue since the ball supposedly started rolling in March, Lavine merely announced that the $250,000 for outside lawyers at Davis Polk & Wardwell is just the start; the Assembly will spend as much “as needed” on its investigation.

Meanwhile, The Post’s Bernadette Hogan reported that Heastie dutifully played middleman when Gov. Andrew Cuomo wanted Assemblyman Ron Kim to walk back his truth-telling about the admission by top Cuomo aide Melissa DeRosa that Team Cuomo had intentionally kept legislators in the dark about the true COVID death toll in state nursing homes.

At the gov’s behest, Heastie had an aide “relay” Cuomo’s request that Kim deny what he’d already told the press. “I came to the conclusion that if I put out this statement, that I would be complicit in the coverup,” Kim told The Post.

And Heastie had his staff convey that invitation to help deceive the public, not the first time he’s had staff relay the gov’s threats.

So it stands to reason the Assembly’s impeachment probe won’t get very far until Cuomo tells Heastie it’s time to wrap it up. And, sadly, all Cuomo has to do in return is let the speaker have his way with public policy — the public interest be damned.

Pretty sordid, isn’t it, that even the effort to hold a governor to account for horrific abuse of his office is just grist for another corrupt bargain?

Plaintiffs Lose Case Against Assisted Living Center in Schoengood v Hofgur

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Plaintiffs neither sufficiently alleged they were discriminated against because of their disabilities, nor that they sought reasonable accommodations which were denied because of their disabilities. The court dismissed plaintiffs' disparate impact and reasonable accommodation claims under the ADA and RA.  Plaintiffs lost their case because, the Court ruled, "...the plaintiffs’ contention that Title III orSection 504 requires QACC to provide different and additional services than it allegedly currently provides would not appear to be an issue that Title III or Section 504 was meant to regulate."

Schoengood v. Hofgur LLC

Disabled Assisted Living Residents Do Not State ADA, RA Claims Against Facility Over Covid

Case Digest Summary

Defendants operate the Queens Adult Care Center. Plaintiffs, disabled QACC residents, alleged defendants violated the Americans with Disabilities Act and Rehabilitation Act by not complying with regulations and guidelines issued by the Centers for Disease Control and Prevention and the Department of Health and Human Services Centers for Medicare and Medicaid Services, thus leading to a rapid increase in Covid-19 cases at QACC. They claimed defendants permitted substandard conditions at QACC during the pandemic. Plaintiffs neither sufficiently alleged they were discriminated against because of their disabilities, nor that they sought reasonable accommodations which were denied because of their disabilities. The court dismissed plaintiffs' disparate impact and reasonable accommodation claims under the ADA and RA. Finding amendment futile, it ordered plaintiffs' case closed. Plaintiffs did not show that defendants' facially neutral acts or practices caused significantly adverse or disproportionate impact to either residents in defendants' assisted living programs, or psychiatric residents. 

Despite significant legal obstacles, on May 4, 2020, a group of plaintiffs filed a class action complaint alleging the Queens Adult Care Center (QACC) violated Title III of the Americans with Disabilities Act (Title III) and its precursor, Section 504 of Rehabilitation Act (Section 504), by failing to provide a level of care to safeguard their health and safety at its assisted living facility during the COVID-19 pandemic.

The plaintiffs seek to certify a class under Federal Rules of Civil Procedure Rule 23(b)(2) or (b)(3) of all current or future residents of QACC during the course of the COVID-19 pandemic who have disabilities that require assistance with activities of daily living.

The proposed class action lawsuit, Schoengood, et al. v. Hofgur LLC d/b/a Queens Adult Care Center and Gefen Senior Group, No. 1:20-cv-02022 (E.D. N.Y.), is the first of its kind seeking to hold a place of public accommodation liable under Title III or Section 504 for not taking adequate measures, in the plaintiffs’ estimation, to prevent or mitigate the spread of COVID-19.

Plaintiffs’ Claims, Relief Sought

Title III prohibits discrimination on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). Title III applies to virtually any business that sells its goods and services directly to consumers.

Section 504 prohibits discrimination on the basis of a disability, providing that “[n]o otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any [federal] Executive agency ….” 29 U.S.C. § 794.

The plaintiffs base their claims on two more specific obligations under Title III and Section 504. The first requires a public accommodation to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. The second prohibits the use of criteria or other eligibility standards that have the effect of discriminating on the basis of a disability.

The plaintiffs seek declaratory and broad injunctive relief, as well as the appointment of a Special Master at the defendants’ cost to oversee the facility and to make recommendations on preventing the spread of COVID-19 at the facility. They also seek reasonable attorneys’ fees and costs, which are generally mandated by these statutes to a prevailing plaintiff. While damages are not available under Title III, compensatory damages are available under Section 504. The plaintiffs have not expressly claimed relief in the form of awards for compensatory damages.

Potential Problems with Claims

The plaintiffs appear to face an uphill battle with their novel claims. They contend Title III requires QACC to adopt policies or have better policies during the COVID-19 pandemic to safeguard the health and safety of its disabled residents.

However, Title III has not been held to require public accommodations to adopt any policies, let alone the litany of policies the plaintiffs cite in their complaint, including testing, social distancing, isolation measures, and other policies recommended or required by the Centers for Disease Control and Prevention (CDC), the Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS), and other federal and state regulations governing long-term care facilities, nursing homes, and assisted living facilities.

Section 504 regulations require covered entities and programs to have anti-discrimination policies, grievance procedures, and other procedural requirements in place. See, e.g., 45 C.F.R § 84 (HHS Section 504 regulations). However, the applicable regulations do not expressly impose the kinds of policies and procedures the plaintiffs contend Section 504 requires.

Further, to the extent that the complaint alleges QACC has policies concerning COVID-19, it does not allege a policy resulted in the denial of the services QACC offers based on an individual’s disability status.

Likewise, the plaintiffs’ contention that QACC used eligibility criteria that violates Title III and Section 504 would appear to fare no better. The complaint does not appear to allege what eligibility criteria QACC applied to the residents other than the eligibility criteria required by applicable New York law.

The complaint also does not appear to allege that any eligibility criteria screened out or tended to screen out persons with disabilities from using the services QACC offers, which is a requirement to establishing a Title III violation based on the use of unlawful eligibility criteria. The complaint appears to allege precisely the opposite. QACC provides its services mainly to disabled residents and, therefore, the plaintiffs contend that Title III and Section 504 require the facility to provide certain services the plaintiffs allege QACC does not currently provide.

However, by its plain terms, Title III’s prohibition against discrimination on account of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” regulates access to the goods and services of a public accommodation, but not the type of goods or services offered by the public accommodation. See McNeil v. Time Ins. Co., 205 F.3d 179, 188 (5th Cir. 2000); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115-16 (9th Cir. 1999); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999); Lenox v. Healthwise of Kentucky, Ltd., 149 F.3d 453, 457 (6th Cir. 1998); Ford v. Schering-Plough Corp., 145 F.3d 601, 613 (3d Cir. 1998); Funches v. Barra, No. 14-cv-7382, 2016 WL 2939165, at *4 (S.D.N.Y. May 17, 2016). An owner denies the full and equal enjoyment of offered goods or services if they deny or inhibit access to those goods and services. However, “[t]he goods and services that the business offers exist a priori and independently from any discrimination. Stated differently, the goods and services referred to in the statute are simply those that the business normally offers.” Thus, the plaintiffs’ contention that Title III or Section 504 requires QACC to provide different and additional services than it allegedly currently provides would not appear to be an issue that Title III or Section 504 was meant to regulate.

Potential Problems with Class Certification

Regarding the plaintiffs proceeding as a putative class, Rule 23(b)(2) classes are well-known to civil rights lawyers and apply where the party opposing the class certification has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

Certification under Rule 23(b)(2) is unique in its requirements, as compared to other bases for class certification under Rule 23. A plaintiff seeking to certify a 23(b)(2) class must establish, in addition to the Rule 23(a) prerequisites (numerosity, commonality, typicality, and adequacy), that a single injunction can be issued that applies to the whole class and complies with Rule 65(d) — namely, the injunction “state its terms specifically; and describe in reasonable detail … the act or acts restrained or required.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.”).

The wide-ranging and evolving recommendations and guidance offered by the CDC and other state and local governmental agencies, makes crafting a single injunction applicable to hundreds of residents with varying medical impairments and care needs problematic.

Given the individual nature of care residents typically need and their varying disabilities the complaint alleges they have, individual questions also appear more likely to predominate over common questions. This makes the plaintiffs’ claims unsuitable for class certification under Rule 23(b)(3) and failing to provide a superior method over proceeding and adjudicating on their individual claims.

Moreover, under the Rules Enabling Act, the plaintiffs’ decision to proceed as a class action cannot diminish the defendants’ substantive right to prove their defenses under Title III and Section 504 with respect to any member of the class. See 28 U.S.C. § 2072(b). Certain defenses, such as undue burden or fundamental alteration of the nature of services offered, tend to be fact-specific and may raise individual issues sufficient for a court to deny class certification.

This is not to suggest that the plaintiffs can establish all Rule 23(a) prerequisites. Numerosity would appear problematic for the plaintiffs because joinder of absent putative class members would not be impracticable. They are all residents at the facility, readily identifiable, and the court likely has personal jurisdiction over each of them. Aggrieved residents presumably have incentives to bring an individual action like the one filed by the plaintiffs given the potential individual stakes and the availability of an award of attorneys’ fees and costs if they prevail.

Merely identifying a common contention is insufficient for a plaintiff to establish commonality under Rule 23(a)(2) after Dukes. The U.S. Supreme Court explained in Dukes:

[The] common contention … must be of such a nature that it is capable of class-wide resolution — which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. “What matters to class certification … is not the raising of common questions — even in droves — but rather the capacity of the classwide proceeding to generate common answers apt to drive the resolution of the litigation.”

In order for a “contention” to constitute a “common question,” it must yield the same answer with respect to each member of the proposed class. Even if the plaintiffs pled valid claims under Title III or Section 504, the answer to the common question of whether QACC committed discrimination under these statutes may be that it depends on the resident, given a host of individual factors, including the resident’s care needs, disability, and level of assistance with daily activities. The resolution of such individual issues has a higher probability of yielding different answers for each of the putative class members, thereby defeating commonality.

***

This case has potentially far-reaching implications for all places of public accommodation and we will continue to monitor it.

Ohio Judge Strikes Down Biden's Ambiguous Tax Mandate in $1.9T Relief Package

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Then-Republican candidate Dave Yost gives his victory speech after winning the Ohio Attorney General race at the Ohio Republican Party's election night party at the Sheraton Capitol Square in Columbus, Ohio, on Nov. 6, 2018. (Justin Merriman/Getty Images)

Federal Judge Strikes Down Ambiguous Tax Mandate Provision in Biden’s $1.9 Trillion Relief Package
 
July 3, 2021 Updated: July 3, 2021

A federal judge issued a permanent injunction on Thursday to block the ambiguous tax mandate in President Joe Biden’s $1.9 trillion COVID-19 relief package.

U.S. District Judge Douglas R. Cole from the District Court for the Southern District of Ohio ruled that the tax mandate in the America Rescue Plan Act (ARPA)—which seems to tie the relief fund to the states’ authority to reduce tax—exceeds the Congress’s authority under the Spending Clause due to its ambiguity.

The Interim Final Rule (IFR) issued by the Treasury Department intended to clarify the tax mandate “does not cure that constitutional violation,” the judge stated.

“Accordingly, this Court GRANTS Ohio’s Motion for a Permanent Injunction (Doc. 38), and enjoins the [Treasury] Secretary from seeking to enforce the Tax Mandate, 42 U.S.C. § 802(c)(2)(A), against Ohio,” reads the ruling (pdf).

The judge also expressed concerns that the tax mandate has breached the separation-of-powers principles laid down by the framers.

The Ohio Attorney General Dave Yost applauded the ruling and criticized the Biden administration for overreaching.

“The Biden administration reached too far, seized too much, and got its hand slapped,” Yost said. “This is a monumental win for the preservation of the U.S. Constitution—the separation of powers is real, and it exists for a reason.”

The Epoch Times reached out to the White House and the Treasury Department for comments.

A stipulation in the $1.9 trillion sweeping relief package has caused considerable disputes between red states and the Biden administration.

“A State or territory shall not use the funds provided under this section … to either directly or indirectly offset a reduction in the net tax revenue of such State or territory resulting from a change in law, regulation, or administrative interpretation during the covered period that reduces any tax (by providing for a reduction in a rate, a rebate, a deduction, a credit, or otherwise) or delays the imposition of any tax or tax increase,” the bill reads.

Several red states argued that this paragraph may deprive their authorities to reduce tax after receiving the relief.

Ohio became the first state to sue Biden’s administration over his pandemic rescue plan, arguing on March 17 that the provision holds a “gun to the head of states” by blocking them from cutting taxes, and exceeds the authority of Congress.

Thirteen states followed Ohio and launched legal action against the tax mandate provision.

The lawsuit (pdf) by the 13 states says the provision is “one of the most egregious power grabs by the federal government” in the nation’s history. It argues that the provision, by stipulating how states use federal funds with regard to tax cuts, is akin to forcing states to relinquish control of their taxing authority, which is not allowed under the Tenth Amendment.

The lawsuit also accuses the federal government of violating the conditional spending doctrine and the anti-commandeering doctrine.

The tax mandate “disables States from decreasing taxes on their citizens for a period of over three years” and in doing so, “usurps” the ability of the states to reduce their tax burdens, the states alleged in the lawsuit.

Treasury Secretary Jenet Yellon asserted back in March that the American Rescue Plan Act doesn’t prevent states from enacting a broad variety of tax cuts.

“That is, the Act does not ‘deny States the ability to cut taxes in any manner whatsoever.’ It simply provides that funding received under the Act may not be used to offset a reduction in net tax revenue resulting from certain changes in state law,” Yellen wrote in a letter responding to 21 attorneys general. “If States lower certain taxes but do not use funds under the Act to offset those cuts—for example, by replacing the lost revenue through other means—the limitation in the Act is not implicated.

The Treasury Department issued an IFR (pdf) accordingly on May 7, 2021.

Isabel Van Brugen and Mimi Nguyen Ly contributed to the report.

Follow Allen on Twitter: @AllenZM

Thomas More Law Center Wins a Landmark First Amendment Case Against Former California Attorney General Kamala Harris

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Kamala Harris

Thomas More Law Center Wins Landmark First Amendment Case for Every American in the U.S. Supreme Court

Press Release July 1, 2021

Today, the U.S. Supreme Court (SCOTUS) issued a landmark First Amendment decision holding that Americans are free to support nonprofit organizations without fear of harassment. In 2015, a federal lawsuit was filed against then-California Attorney General (AG) Kamala Harris, who had threatened severe sanctions against the Thomas More Law Center (TMLC) if names and contact information of its major donors were not disclosed to her office.

In a 6-3 decision, the U.S. Supreme Court sided with TMLC, a leading national public interest law firm based in Ann Arbor, Michigan, in its case Thomas More Law Center v. Bonta. In doing so, SCOTUS held that California’s law requiring donor disclosure was facially unconstitutional.

“When it comes to the freedom of association,” Chief Justice Roberts wrote in the Court’s opinion, “the protections of the First Amendment are triggered not only by actual restrictions on an individual’s ability to join with others to further shared goals. The risk of a chilling effect on association is enough, because First Amendment freedoms need breathing space to survive.”

Richard Thompson, TMLC’s President and Chief Counsel, hailed the Supreme Court’s ruling as a “landmark victory for the First Amendment.” He said, “Today’s victory is attributable to the superb legal work of attorney John J. Bursch and the Alliance Defending Freedom (ADF) legal team who represented TMLC in the Supreme Court, as well as San Francisco-based attorney Louis H. Castoria, who singlehandedly tried the case in the federal district court against a phalanx of California assistant district attorneys.”

Bursch, ADF senior counsel and Vice President of Appellate Advocacy, said, “The Court has confirmed that every American is free to peacefully support causes they believe in without fear of harassment or intimidation.”

On March 24, 2015, then-California AG Harris threatened in a letter to TMLC that if the Law Center did not provide her office with a list of its major donors within 30 days, the Law Center could lose its right to solicit donations in California and TMLC’s officers and tax preparers could be held personally liable for any penalties. Rather than comply under threat, TMLC filed a federal case claiming the AG was violating TMLC’s and its donors’ First Amendment rights of free speech, freedom of association, and the free exercise of religion, citing the 1958 SCOTUS ruling in NAACP v. Alabama as precedent.

A 3-day bench trial was held by Federal District Court Judge Manuel Real beginning on September 13, 2016. Auditors and investigators from the AG’s office testified that they never had a complaint against TMLC; they have never investigated TMLC; and they do not normally use major donation reports to start investigations.

On November 16, 2016, Judge Real permanently enjoined the AG from requiring TMLC to file a copy of its major donor list. The AG appealed Judge Real’s decision to the Ninth Circuit Court of Appeals, which vacated the injunction. On August 26, 2019, TMLC asked the U.S. Supreme Court (petition for certiorari) to review the Ninth Circuit’s ruling. The Supreme Court agreed, and on April 26, 2021, the Court heard oral arguments on the case.

In the Internet Age, where doxing one’s opponents has led to job loss, boycotts, ostracization, and violence, the fear of such repercussions should one’s charitable contributions become public could be enough to stymy giving, leaving the personal beliefs of many Americans to go unrepresented in the public square. While TMLC is considered by the media as a conservative Christian organization, an array of organizations across the political spectrum filed amicus briefs in support of the First Amendment arguments being made by the Thomas More Law Center.

To read the full opinion, click here.

SOURCE Thomas More Law Center

CONTACT: Tom Lynch, 734-707-5160, tlynch@thomasmore.org


            Photography via Creative Commons

Kamala Harris’ appointment is historic but don’t ignore her problematic past

The vice president-elect’s record as a prosecutor is more than troubling.
Shahed Ezaydi, 11 NOV 2020

After endless days of international anxiety, the United States finally elected a new president. Yet it’s his vice president-elect, Kamala Harris, grabbing the headlines around the world. The former prosecutor and attorney general of dual Black and South Asian heritage, has made history by becoming the first woman and person of colour to be America’s VP. And everyone is overjoyed – news outlets and social media are heralding her as the queen of feminism, the ultimate Girl Boss and an icon of representation. But beneath all the jubilation, there are people like me, wary of painting her as the epitome of progressiveness, given that Kamala Harris’ record is uncomfortable at best.

Remember all the memes about Kamala Harris being a cop? Though the sources of their dispersal were questionable at the time, it did highlight people’s legitimate concern around the senator’s tenure as San Francisco’s District Attorney and California’s Attorney General. The memes aptly summarised her problematic years of working in the criminal justice system, and told voters that she often used the law to harm people of colour, rather than helping them. Let’s not forget that she also once called herself a ‘top cop’.

“Let’s not forget that she once called herself a ‘top cop'”

During her time as District Attorney, she brought in an anti-truancy programme criminalising the parents of children who skipped school, knowing full well that communities of colour would be hit the hardest. Instead of looking at the causes of truancy, Harris decided that the children would benefit from more disruption, in the form of their parents possibly going to prison.

It gets worse. Harris also fought to keep people in prison, even after their innocence was proven. The most well known example is the case of Daniel Larsen, who was serving a life sentence under California’s Three Strikes Law. However, a court later found that Larsen was innocent and ordered his release. A “progressive prosecutor” would probably just accept this ruling and go home, but Harris chose to appeal on technical grounds that he filed his petition too late. The court denied Harris’ appeal, but this also happened in a number of other cases.

Unsurprisingly, Harris fought to release fewer prisoners in the past. California’s prisons, like most US prisons, are overcrowded, and the federal courts ordered the state to establish a new parole programme that would release some non-violent prisoners. The courts even called the overcrowding “unconstitutional cruel punishment”. But Harris wasn’t happy with this, stating that “prisons would lose an important labour pool”, as though retaining labour is a good enough reason to ignore horrendous, overcrowded conditions.

There’s more. Harris also defended California’s decision to deny a trans woman incarcerated in a men’s prison the surgery for her diagnosed gender dysphoria, arguing that the surgery wasn’t necessary.

And of course, with Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for. She even rejected calls from these groups to investigate deadly police shootings in Los Angeles and San Francisco, following the killing of Micheal Brown in 2014. Even though she’s been vocal about racial justice following the Black Lives Matter protests this year, she’s also been accused of frequently siding with the police unions and not pursuing aggressive enough reforms. It’s safe to say she won’t be joining in the chants to abolish the police any time soon.

“With Black people significantly more likely to come into contact with the American criminal justice system, the positions she’s taken are in direct opposition to what racial justice and civil rights groups are fighting for”

During her presidential campaign, Harris said she’d “end the wars in Afghanistan and Iraq and protracted military engagements in places like Syria, but she’ll do so responsibly”. She’s also not denounced the possibility of future US invasions, evidenced in the fact she hasn’t co-sponsored the bill which would prohibit US intervention in Venezuela. This “responsible” rhetoric echoes Barack Obama’s stance, who promised a “responsible end” to the war in Afghanistan, whilst continuing the US intervention in the region.

A Black American president didn’t stop the mass bombing of countries in the Middle East or bring an end to imperialism. Just like a partially brown Tory cabinet in the UK hasn’t suddenly reformed the immigration system or stopped the high levels of stop and search against Black communities, highlighting that representation doesn’t always equate to progress.

Another area Harris doesn’t fare particularly well in is around sex work. In 2008, she was a vocal opponent of Proposition K – a measure to decriminalise sex work – and led operations against the ‘Backpage’, a site sex workers could safely use for adverts. For someone who prides herself on fighting for marginalised groups, she made life for sex workers more difficult and risky. However, in a 2019 interview, she stated she would be open to decriminalising sex work. Harris still seems to support criminalising the act of purchasing sex, which is a position that would negatively impact sex workers, by increasing surveillance and policing around their work.

“It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics”

The vice president-elect has argued that during her presidential campaign, she’s fought for racial justice reform, the reversal of incarceration and putting a stop to the death penalty. And she did manage a few policies that would be considered “progressive”, such as bringing in a scheme that would allow first time drug offenders to get an education and a job, instead of time in prison. Plus, she also refused to pursue the death penalty in a case where a police officer was shot, even when it was a widely unpopular stance.

However, we need to be careful in painting her as the beacon of progress and instead focus on her actions. It feels as though she’s being perceived as progressive because she’s a biracial woman, and not because of her politics. Yet we all know that not all Black and brown people are liberal by nature – look at Priti Patel.

Kamala Harris has made history, and that is something we should absolutely celebrate. Representation of women of colour in top positions is really great to see, and to be honest, long overdue. But representation alone doesn’t help the communities being represented if they there aren’t policies in place to support them. Black and brown faces in politics won’t solve the deep-rooted and systemic issues that people of colour face every day, especially if those faces support policies that uphold white supremacy.

As we celebrate this historic milestone, we shouldn’t lose sight of Harris’ track record. Instead, let’s hold her accountable and allow her to prove to American society that she’s fighting for progress.

Inside Kamala Harris’ polarizing record as a prosecutor

Kamala Harris’ rampant prosecutorial abuses

Michael Avenatti Sentenced To 21/2 Years In Prison For Attmepting To Extort NIKE and Defrauding His Client

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FILE - In this Dec. 12, 2018, file photo, attorney Michael Avenatti, speaks outside
court in New York. (AP Photo/Julio Cortez, File) 
The Associated Press

Department of Justice
U.S. Attorney’s Office
Southern District of New York

Michael Avenatti Sentenced To Over Two Years In Prison For Attempting To Extort Nike And For Defrauding His Client

Audrey Strauss, the United States Attorney for the Southern District of New York, announced that MICHAEL AVENATTI was sentenced today in Manhattan federal court by United States District Judge Paul G. Gardephe to 30 months in prison for attempting to extort NIKE, Inc., and for defrauding a client.  AVENATTI was previously found guilty on February 14, 2020, following a three-week jury trial.

Manhattan U.S. Attorney Audrey Strauss said:  “Michael Avenatti used illegal and extortionate threats and betrayed one of his clients for the purpose of seeking to obtain millions of dollars for himself.  Not only did Avenatti attempt to weaponize his law license and celebrity to seek to extort payments for himself, he also defrauded his own client.  Avenatti will now serve substantial time in prison for his criminal conduct.”

According to the Complaint, Superseding Indictment, court documents, and evidence presented at trial:

In a scheme that unfolded in less than a week, AVENATTI used threats of economic and reputational harm to seek to extort NIKE, Inc. (“Nike”), while defrauding his client (“Client-1”), by promising to settle potential claims by Client-1 against Nike if Nike agreed to make extortionate payments to AVENATTI.  AVENATTI threatened to hold a press conference on the eve of Nike’s quarterly earnings call and the start of the annual National Collegiate Athletic Association (“NCAA”) basketball tournament at which he would announce allegations of misconduct by employees of Nike.  However, AVENATTI stated that he would refrain from holding the press conference and harming Nike only if Nike made a payment of $1.5 million to Client-1, who was in possession of information potentially damaging to Nike, and further agreed to “retain” AVENATTI and another individual to conduct a supposed “internal investigation” – an investigation that neither Nike nor Client-1 requested – for which AVENATTI demanded to be paid, at a minimum, between $15 million and $25 million.  Alternatively, in lieu of such a retainer, AVENATTI demanded a total payment of $22.5 million from Nike to resolve any claims Client-1 might have and to buy AVENATTI’s silence. 

AVENATTI never told Client-1, among other things, that AVENATTI planned to and did threaten Nike that, unless Nike paid AVENATTI, he would hold the press conference, or that AVENATTI planned to and did seek money for himself separate from, and to the financial detriment of, Client-1.

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In addition to the prison sentence, AVENATTI, 50, of Venice Beach, California, was sentenced to three years of supervised release. The Court deferred a determination as to restitution for a later date. 

Ms. Strauss praised the work of the FBI and the Special Agents of the United States Attorney’s Office for the Southern District of New York.

The case is being handled by the Office’s Public Corruption Unit.  Assistant United States Attorneys Matthew Podolsky, Daniel C. Richenthal, and Robert B. Sobelman are in charge of the prosecution.

Topic(s): 
Financial Fraud
Contact: 
NICHOLAS BIASE, JIM MARGOLIN (212) 637-2600
Press Release Number: 
21-167
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