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June 19, 2009
Jammie Thomas file-sharing case: Virgin Records et al. win again.
So justice really is hard--even harsh. We've followed and written about this one for over two years: Virgin Records America, Inc. v. Thomas, 06-1497, D. Minn. 2006. Yesterday, the same result--and we think the right one--was obtained in the re-trial of the case against a sympathetic defendant. Jammie Thomas is single mother of modest means who was sued for downloading music in violation of copyright laws. Music industry plaintiffs focused on only twenty-four out of hundreds of likely infringements by Thomas.
Seven record companies claimed against her, alleging willful infringement, and exposing Thomas, then about 30, to big penalties. U.S. District Judge Michael Davis presided over the first trial in 2007; he ordered a new trial after deciding he had erred in jury instructions. We hope to write more later about the dispute--and what it means for hundreds just like it. In the meantime, there's no shortage of news coverage. See Associated Press:
Jury Rules against Minnesota Woman in Download Case
MINNEAPOLIS (AP)--A replay of the nation’s only file-sharing case to go to trial has ended with the same result, finding a Minnesota woman to have violated music copyrights and ordering her to pay hefty damages to the recording industry.
A federal jury ruled Thursday that Jammie Thomas-Rasset willfully violated the copyrights on 24 songs, and awarded recording companies $1.92 million, or $80,000 per song.
Thomas-Rasset's second trial actually turned out worse for her. When a different federal jury heard her case in 2007, it hit Thomas-Rasset with a $222,000 judgment. [more]
Posted by JD Hull at 11:47 PM | Comments (0)
Financial regulation in America: A British view.
See an opinion piece entitled "Better broth, still too many cooks" in this week's The Economist. It is a critique of the Obama administration's plans (and new white paper) for U.S. financial reform. The article hits a high note in the beginning: a portrait of a vast, clumsy, and myopic animal that is our current system of financial regulation:
There is both too much of it and too little. Multiple federal agencies oversee the financial system: five for banks alone, and one each for securities, derivatives and the government-sponsored mortgage agencies. They share these duties with at least 50 state banking regulators and other state and federal consumer-protection agencies.
Yet all these regulators failed to anticipate and prevent the worst financial crisis since the Depression, because risk-taking flourished in the cracks between them. Toxic subprime mortgages were peddled by lenders with little federal oversight and shoved into off-balance-sheet vehicles. The greatest leverage accumulated in firms that avoided the capital requirements of banks.
TriStar Pictures, Inc.
Posted by JD Hull at 05:31 PM | Comments (0)
June 17, 2009
Patten on UK redundancies.
Whenever two good people argue over principles, they are both right.
--Marie von Ebner-Eschenbach, Austrian novelist (1830-1917)
Or "terminations", or firings, to Yanks. To mediate, or not to mediate? asks London's capable Justin Patten, in his Human Law Mediation Ezine for June. I met Justin, a solicitor and ADR consultant, in early 2007 near the Marble Arch. We have followed him and kept in touch ever since. A few days before meeting Justin, we had mentioned him, and a few other notable Brit lawyer-writers in "UK Bloggers: The Good, the Erudite and the UnHoly."
Posted by JD Hull at 08:22 PM | Comments (0)
June 16, 2009
"Mexico: Working With The Mañana Culture"
By Fernando E. Rivadeneyra, Puebla, Mexico
Editor's Note: Fernando Rivadeneyra is a talented and highly-regarded business lawyer who works literally all over the world. In fact, Fernando and his firm were "international" back in those days when international "wasn't cool" or trendy; he's been a pioneer in working in global legal and business markets.
And he is also a colleague, and a close friend. My partner Julie McGuire and I have met with Fernando and other members of his firm, Rivadeneyra, Treviño & de Campo, countless times over the past twelve years in Europe, Latin America, and the United States. We have worked together on client projects. Like our firm, Rivadeneyra, Treviño is an active member of the International Business Law Consortium, a working alliance of law and accounting firms based in Salzburg, Austria.
A founding partner of Rivadeneyra, Treviño, Fernando works in mergers and acquisitions, corporate structuring, foreign investments, and private international law. He is a member of the International Bar Association, the Mexican-American Law Institute, and its Export Support Group, and is Vice-President of the United States-Mexico Chamber of Commerce--Puebla Chapter. Jodie Paula Cohen, head of Client Relations at Rivadeneyra, Treviño & de Campo assisted in the preparation of this article.
Mexico: Working With The Mañana Culture
Be well informed and work with the right partners.
There are myriad differences between Mexican business culture and legal practice and those in the rest of the world. Nevertheless, by being well-informed and working with the right partners, it is entirely feasible for foreign companies to carry out fruitful business endeavors in this country.
The biggest cultural obstacle for many foreign investors in Mexico can be described in one word: “mañana.” Processes will likely be slower and appear more drawn-out than in your home country. It is important to accept this difference and not become impatient. There are many savvy business-people and lawyers in Mexico, and your business affairs will be dealt with (eventually) to a high standard.
If your investment in Mexico includes spending time there, be aware that certain parts of Mexico are less safe than your home country; and eating food from street-stalls is asking for trouble. Your Mexican business partners will be able to inform you of the many safe places to visit and the high-quality restaurants in which to eat.
Work With The Right Lawyers
There is no central source of information to help you choose a lawyer in Mexico. Many of our clients have found us through word-of-mouth recommendations, which can be a very reliable way to initiate contact with a new law firm. Similarly, lawyers from your home country who have carried out work in Mexico will likely have contacts here and will be able to make trustworthy recommendations.
Clients have also found us through the organizations in which we participate, such as the IBLC or IBA, or through the Martindale Hubbell directory. By approaching the members of respected international groups, clients can be assured that they are contacting reputable and highly-respected firms.
Unless your Spanish is fluent, make sure that your lawyers have a thorough working knowledge of your language (many Mexican lawyers speak English, and some also speak other languages). This will make your work eminently easier, especially when discussing the nitty-gritty of legal processes or contracts.
In Mexico, your lawyers need to maintain good relationships with government officials. A direct line to such officials will enable them to speed up legal processes on your behalf.
Carrying Out Projects In Mexico
The golden rule when doing business in Mexico is to get good, solid contracts and comprehensive legal assurances that your projects will be completed on time. Don’t leave anything to chance.
Health and safety standards have tended to be lower in Mexico than in many other countries. This situation is improving thanks to new environmental laws, and standards are now equal to those in many developed countries.
Do’s And Don’ts
* Do become familiar with the relevant laws and rules before you start. A good lawyer and a good accountant will be able to inform you about these.
* Do be patient. Time frames won’t be the same as in your home country, and deadlines may not be adhered to as closely.
* Do explain in detail what you want and expect so that you, your law firm and your local partners are reading from the same page from day one.
* Do respect the Mexican “way”. If you become frustrated, remember that a smile and a friendly gesture will always get you the best results when dealing with Mexicans.
* Do enlist the help of locals. As in many countries, locals sometimes receive preferential treatment over foreigners. For this reason, it can be worthwhile engaging local lawyers to carry out certain business tasks for you.
* Don’t get involved in corrupt practices; this will only spiral into bigger problems. If you are asked for a bribe, consult with a good law firm which will be able to advise you on how to deal with the situation.
* Don’t flaunt your wealth, either in business negotiations or in public.
* Don’t use risky legal or fiscal strategies. To safeguard your operations, it is best to stay well within the limits of the law.
Old Mexico City
Note: A version of this article originally appeared in December 2008 in The Complete Lawyer.
Posted by JD Hull at 11:59 PM | Comments (1)
Notes from the Breadline (Part V)
We got busy and we missed it. This is Part V of Above The Law's "Notes from the Breadline" by "Roxanna St. Thomas". It's about her adventures, and all manner of newly-discovered emotions, after losing her job at a law firm some months ago in NYC. For a lawyer, she writes pretty well--especially about all those different colors of angry out there. Below are excerpts from her weary yet simmering interview last week with a solo, zombie-like little man from a David Lynch set:
One day, I get an e-mail from a solo practitioner who has seen my resume online and wants me to come in for an interview.... When I arrive at his office, which is in one of the old, ornate buildings near Grand Central, my spirits are buoyed by the momentary sense that I am part of the bustle of commerce. A gilded chandelier in the lobby hangs over polished marble floors, and when I get out of the elevator upstairs my footsteps are cushioned by thick, red carpet. It feels anachronistic, but vaguely comforting.
But when I arrive at the suite I have written down, a door opens on a shared office space that is distinctly less grand. In fact, it reminds me of the war room I recently occupied, and I half-expect Mr. Potato Head to pop out from behind a plant, trailing a string of sausages. I try to ignore the sinking feeling that creeps through me as I sit in the reception area, waiting.
When the lawyer, a thin, cadaverous man who looks as though he escaped from the wax museum, comes out to fetch me, I quickly determine that I probably could toss him through the window, even without superhuman strength. He extends a limp hand and introduces himself as Asa, a name I have always associated with donkeys.
Once I am seated across from his desk, he tells me that he is looking for one associate to assist him in his solo practice. He takes out my resume and begins to pore over it. Silence descends. Minutes tick by. He tells me that he handles a lot of regulatory matters for shipping companies. Have I ever worked on such matters?
No, I answer, not specifically. How about admiralty? No again.
Posted by Rob Bodine at 04:54 PM | Comments (0)
June 15, 2009
The Economy: Europe moving right-ward--for now.
See "A United Europe?" by Michael Gates at Richard Lewis's Cross-Culture. Excerpts:
The recent European elections saw a significant lurch to the far right, which took many by surprise.
From a cultural perspective this was entirely predictable.
In difficult times like ours, when people have lost their jobs, feel political power is out of their control (Brussels), and that the cultural landscape of their own country is changing (immigration), it is easy to cling to what we first learned – our national values and beliefs – and to reject violently anything ‘other’ which threatens that.
Posted by Rob Bodine at 11:59 PM | Comments (0)
Mañana at What About Clients?: Fernando Rivadeneyra
The biggest cultural obstacle for many foreign investors in Mexico can be described in one word: 'mañana.'
--Fernando E. Rivadeneyra, Puebla, Mexico.
Tomorrow, we'll feature a second appearance here by our friend and colleague Fernando Rivadeneyra, a partner at Rivadeneyra, Treviño & de Campo, a Mexican corporate law firm with a serious global reach. It is based in Puebla, Mexico, 100 kilometers southeast of Mexico City. Like Hull McGuire, Rivadeneyra, Treviño for many years has been a mainstay and leader in the International Business Law Consortium, based in Salzburg, Austria.
In March, we ran Fernando's two-part article, "Reinventing" the Latin American Law Firm . It was very popular for weeks. It detailed specific changes Rivadeneyra and his partners made to their respected Mexican law firm. Tomorrow's piece is about lawyering for clients in Mexico and Latin America: "Mexico: Working With The Mañana Culture" .
Posted by JD Hull at 11:38 PM | Comments (1)
Breaking: Local Boy Makes Good
Scott Greenfield of Simple Justice. NY Law Journal: "Free: Court Finds Attorney's Unsolicited Faxes Did Not Violate Communications Act".
Greenfield (client cropped from picture) celebrating.
Posted by JD Hull at 11:37 PM | Comments (1)
The Ninth Circuit: Banks, Credit Cards and Collections.
If you’re a bank, consider writing your contracts under New Hampshire law. (If you’re a cardholder, pay your bills).
If you have a credit card agreement with a choice of law clause subjecting any disagreements to New Hampshire law, there doesn’t seem to be a statute of limitations that applies. So says the U.S. Court of Appeals for the Ninth Circuit in Avery v. First Resolution Management, No. 07-35726 (decided April 2, 2009; amended May 22, 2009), reviewing a decision of the U.S. District Court for the District of Oregon. The decision was adverse to an Oregon credit card holder who was sued under the Fair Debt Collection Practices Act (FDCPA) after three years--the length of time limiting credit card disputes in New Hampshire.
Despite amicus briefs by advocacy groups warning of the consequences, the suit was allowed because New Hampshire law also tolls (essentially, suspends) the statute of limitations if the defendant wasn’t available for service of process in the state. The Ninth Circuit interpreted that the statute’s use of “state” referred to New Hampshire itself. But defendant Avery, like many credit card holders, had never even visited the state in question--so the statute of limitations could be tolled forever. The Ninth Circuit acknowledged this possibility in a footnote (at page 6097), but left it for the lower courts and, possibly, the New Hampshire legislature to hammer out.
In another debt-collection case interpreting the FDCPA itself, Hyde, et al. v. Midland Credit Mgmt., et al., 07-55326 (June 9, 2009) (factually unrelated to Avery), the Ninth Circuit reversed the U.S. District Court for the Central District of California. It held that the FDCPA does not permit a court to award attorney's fees against a plaintiff's attorney where the plaintiff brought a frivolous claim for alleged violations by a creditor. In the absence of specific language to the contrary, the customary presumption applies: if a plaintiff's attorney is to be held liable for a defendant's attorney's fees (or vice versa), then it would have to come through traditional means (e.g., Fed. R. Civ. P. 11).
Posted by Rob Bodine at 10:29 PM | Comments (1)
Wanted: One Huntin' Dog.
One gift of The Recession is that it has improved the work ethic of people of all ages, including people born after 1978. That's the idea, anyway. And it does make sense. Not sure I buy it, though.
For more than two decades, I've worked closely (i.e., every work day at least for a year) with dozens of associates with very fine resumes assigned tough things to do. It's always interesting to see who "gets it" the fastest, and who catches on fire with a yen for more. Practicing under constant pressures is not for everyone--but it's a great way to learn, grow and grow up.
But there is still a steady decline in young "huntin' dogs" in my shop and others. They talk a good game, especially at the interview--but weeks later they are never eager to help, or even around, when things get really tough. A customer or client emergency. A backlog in work. The unexpected--but that which can be solved. They are not there at midnight the two or three times a year you need that problem-solving.
Nice kids...but not people you want in the foxhole. To even the most irreverent or laid-back Boomer, it's a character thing.
The Recession? It's not changing anything. That's not their problem. It will "go away". Someone else will fix it for them. We're not just talking about associates, law students and legal assistants here. Maybe (a) the vast majority of younger workers never expected that work (or life) would be that "hard", and (b) high schools, colleges and graduate schools aren't helping to prepare them for the challenges of working for a good customer or client no matter what.
Life and Work do cruelly collide. You are sick. You are exhausted. Depressed. Your wife just left you. You were in a bad car accident two weeks ago. A close friend suddenly dies. Your boyfriend just confessed that he's been cheating on you. Your husband loses his job.
A child has trouble adjusting to a new school. A sibling is dying over a period of months or years while you, helpless, watch. A scare: You or yours may have cancer. Parents are failing. Your youngest may have some degree of autism.
These things will be part of anyone's--everyone's--life at work. And for a professional, and those key people who assist them, you can't call in and say "sorry, just too much life today--I can't make it".
The unexpected, the jarring, the tragic or the just plain annoying happens to you. This is part of the "terrain" of being a professional. No unemployed pseudo-consultant, or W-L balance proponent, can look you in the eye and tell you that, at those times, you can ever separate Work from Life.
I don't mean to be morose, or dramatic. But these days do happen. You are impaired, distracted, despairing. Sure, you get a few breaks from loved ones and colleagues.
But know this: On those very same days, you will have a deadline, an appearance in court, a deal, or a promise to keep. And the only prayer a good client may have is you. You are it.
I simply do not see people coming out of American schools these days who remotely understand the pain (and greatness) of being a professional on those isolated days--the ones that really define us. Those people are not currently in the pipeline. Don't expect many huntin' dogs for a long, long while. We bred and raised generation weenie. And weenies, of course, are all we're getting.
One Solution: "Buy Boomer". Time to solve the problem. Think a bit. How can you be sure that new recruits--even part-times and temps--aren't just wasting your time? Well, at my firm, we may "Go Old". Boomers. Say what you want about us. But we are there when you need us--and you don't even have to ask. We feel your pain. We never ever give up. Our parents and grandparents fought in horrible and important Great Wars. Working Well. Doing Our Job. It's the least we can do to pay them back.
Nothing beats having a Boomer in your office when it's time to get things done. We're irreverent, and fun, too. Energy, hustle, charm. Do-or-die. Have a nearly overwhelming sense of cultural identity. Loyal. Hardworking. Generation Moxie. You want something done? Done right? Then Buy Boomer.
Consider going straight to the top, for the best, and work from there:
HELP WANTED: Of counsel for growing and energetic Pittsburgh-based boutique business law firm with publicly-traded clients to die for. Candidate must have at least 8 years of highest level federal Exec. Branch experience, world-wide connections, Yale Law degree, one year at Oxford, own money and people skills. Crowd-pleaser. Must be able to sell anything to anyone.
And be originally from Hope, Arkansas. State government experience preferred but not required. Same for participation in Renaissance weekends, and fund-raising. United Nations experience also a big plus. You don’t need to re-locate. Happy to set up the office for you. Wherever you want. Harlem or Chappaqua, New York are okay. Or DC. You decide. You can work out of your house. Whatever.
NOTE: No previous private law practice experience necessary. Not a problem–no problem at all. Excellent benefits package.
Source of Help Wanted Ad: An earlier WAC? post, when the economy was better.
Posted by JD Hull at 01:31 AM | Comments (3)
June 14, 2009
John Hope Franklin
And Bill Clinton does Duke--but let's not miss the point. On Friday Bill Clinton gave a eulogy in the Duke Chapel for John Hope Franklin, the historian and civil rights figure who died in late March at 94. See The Miami Herald. Franklin wrote From Slavery to Freedom: A History of African-Americans, a classic first published in 1947. As is often the case with Clinton, his arrival on campus eclipsed his reason for being there. Nathan Freeman, a columnist at The Chronicle, the school's enduring student daily, certainly liked the idea of having the ex-president in the Gothic wonderland that is Duke University. Even before Clinton spoke, Freeman wrote: "Bring Bubba Back Again".
The real deal at Duke last week: John Hope Franklin
Posted by JD Hull at 02:17 AM | Comments (0)