Legal Blogs

04 December 2022

Legal Blogs Legal Blogs
  • Finnish Salmonella outbreak linked to frozen tomato product
    04 December 2022

    Frozen tomato cubes were behind a Salmonella Typhimurium outbreak in Finland in 2021, according to a new study.

    It is thought to be the first outbreak in the country linked to a frozen tomato product and the implicated strain had not been detected in Finland before.

    Several people reported symptoms following meals in late January 2021 at a restaurant in western Finland, according to the study report published in the journal Eurosurveillance.

    The Finnish Institute for Health and Welfare (THL) was informed of 44 outbreak-related patients. THL and the Finnish Food Authority (Ruokavirasto) joined the local outbreak investigation team to help with the epidemiological and microbiological work.

    Altogether, 393 meals were sold and 101 people who ate 142 meals participated in the study. Exposure took place in one restaurant over three days.

    There were 49 patients; 23 were laboratory-confirmed infections with multidrug-resistant Salmonella Typhimurium. More men than women were affected and patients ranged in age from 16 to 77 years old. Two patients were hospitalized and one had a Salmonella-positive blood culture but there were no deaths. Two asymptomatic staff members were positive for Salmonella.

    The outbreak strain was resistant to multiple antibiotics, including fluoroquinolones. 

    Imported tomato cubes are likely to source
    A local environmental health authority inspected the restaurant in early February 2021. Most food items were bought from one wholesaler. A nearby grocery store was occasionally used for purchases. During the visit, there was ongoing renovation. Meals served in the buffet were cooked in the morning on the day of serving, and they were placed next to each other.

    The agency advised the restaurant to intensify cleaning. It was asked to replace fabric towels in the staff bathroom with disposable ones and advised to freeze food samples in the future.

    There were no samples of the salads containing frozen tomato cubes left for analysis but tomato cubes from different batches were tested. One of two samples taken from the local wholesaler in February was positive for Salmonella. However, scientists could not trace the origin of the contamination.

    Salmonella Typhimurium isolates from patients and frozen tomato cubes used uncooked in two different salads were closely related. These salads were consumed by three-quarters of patients.

    Frozen tomato cubes came to Finland via intra-EU trade and the wholesaler was the importer. They were not sold directly to consumers. The wholesaler issued a withdrawal and stopped selling the product until the producer updated the labeling.

    No national recommendations for cooking frozen tomato products exist in Finland. Following the outbreak investigation, the producer decided to advise cooking such products before consumption.

    (To sign up for a free subscription to Food Safety News, click here.)

  • RIP Justice Fybel (1946-2022)
    04 December 2022


    From 4/3’s PJ yesterday:

    It is with a very heavy heart that I share with you the news of the death of Justice Richard D. Fybel (Ret.). Justice Fybel passed peacefully from this world this morning at 2AM. after a courageous battle with an aggressive form of cancer.  He was surrounded by his family when he passed. Justice Fybel was a loving husband, a wonderful father, a caring grandfather, a treasured friend, an extraordinary colleague, a generous mentor, and a brilliant legal mind.  He will be greatly missed by so many.

     Richard David Fybel was born in 1946 in Los Angeles, the oldest of the three sons of Ernest and Ruth Fybel.  He attended the University of California at Los Angeles and received his bachelor’s degree in political science in 1968.  After graduation, Justice Fybel immediately matriculated at the University of California at Los Angeles School of Law where he served on the Law Review and was elected to the Order of the Coif.  He graduated in 1971 and later he served as the President of the UCLA Law Alumni Association.

    Justice Fybel began his legal career at Nossaman, Waters, Scott, Krueger & Riordan in 1971.  He was recruited to the San Francisco based firm Morrison Foerster in 1981. The values of MoFo were consistent with Justice Fybel’s own beliefs regarding meritocracy, service to community, and nondiscrimination.  During Justice Fybel’s four-year term as the office’s managing partner, the office grew to 138 lawyers and took a decided turn toward increasing representation among women and persons of color. Justice Fybel later served as the firmwide managing partner for attorney personnel and on the firm’s management committee.  According to former MoFo firm chairman Carl Leonard, despite Justice Fybel’s powerful and important position, one of his greatest assets was his humility.

    In April 2000, Justice Fybel was appointed by Governor Gray Davis to the Orange County Superior Court.  In February 2002, his appointment as an Associate Justice of the Court of Appeal, Fourth District, Division Three was confirmed by the Commission on Judicial Appointments.  During his twenty-year tenure as a justice of the Court of Appeal, Justice Fybel made significant contributions to the development of California law, the pursuit of justice, and the advancement of judicial ethics.  Justice Fybel authored some 260 published opinions.  His opinions display a mastery of diverse areas of law and are a valuable contribution to jurisprudence.  Justice Fybel firmly believed in the fair and evenhanded application of the law and the responsibility of the court system to promote justice.

    At the time of his retirement, Fourth Appellate District, Division Three, Presiding Justice Kathleen O’Leary stated, “I can honestly say as far as colleagues go, Justice Fybel is the gold standard.”   The Chief Justice of California, Tani G. Cantil-Sakauye commented, “The arc, scope and depth of Justice Richard Fybel’s extraordinary professional contributions to justice in California for his 22 years as a jurist are breathtaking and will guide us for years to come.”  She went on to express her deepest gratitude and admiration and described him as her “dear, brilliant, kind, and gentle friend.”

     A noted expert on judicial ethics, Justice Fybel chaired the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics from 2004 until his retirement in 2022.  As chair, he successfully navigated the elimination of the Code’s controversial exception to the prohibition against judicial membership in discriminatory organizations.  Based on his mastery of the topic of judicial ethics, Justice Fybel was tapped to co-write the 4th edition of the California Judicial Conduct Handbook, the 1000-page treatise on judicial ethics used by virtually every judge in California.  He also chaired the advisory committee that made recommendations to the Supreme Court about the creation of the Court’s Committee on Judicial Ethics Opinions.

    Justice Fybel wrote and spoke extensively on the German Legal System between 1933 and 1945 and the Nuremberg Trials.  He was an Adjunct Professor at the Fowler School of Law at Chapman University, where he co-taught a seminar with Professor Michael Bazyler on The Holocaust, Genocide and the Law.  Justice Fybel was a member of the Holocaust Program Planning Committee for “How the Courts Failed Germany,” cosponsored by the United States Holocaust Memorial Museum, the University of California and the Judicial Council, and was a panel member in the program at UCI.

    Justice Fybel was a member of the Boards of Advisors of the Fowler School of Law and The Rodgers Center for Holocaust Education at Chapman University.  He was also a member of the Board of Visitors of the UCI School of Law, and of the Jewish Law Institute Advisory Board of the Touro Law Center in New York.  He was a member of the JSerra Catholic High School Pre-Law Magnet Advisory Board.

    Justice Fybel viewed his Jewish faith as a blessing and took to heart basic Jewish values of justice, healing the world, charity, and kindness to others. Justice Fybel was the President of the Board of Directors of University Synagogue in Irvine from July 2010 through June 2012.

    Justice Fybel was a prolific author and frequent speaker on judicial ethics, professionalism in the law, and other topics.  He also was the recipient of many, many awards.  A few of those awards are the President’s Award from the California Judges Association for selflessly providing time and counsel to aid the CJA’s president in advancing the association’s goals, the Franklin G. West Award presented by the Orange County Bar Association (OCBA) to outstanding attorneys and judges whose lifetime achievements have advanced justice and the law, and the 2005 UCLA Law School Alumnus of the Year for Public and Community Service Award.

    Justice Fybel believed he led a charmed and blessed life, and he was grateful to all the people who helped him be in a position to make contributions in the areas he believed were important.  As a person, an attorney, and a judge, he showed empathy and understanding of the impact judicial decisions have on litigants and lawyers, and he exemplified the virtues of honesty and kindness.  Justice Fybel’s theory of jurisprudence was this: Fair, just, and correct results are obtained by impartially and rigorously applying the relevant principles of law to the record in light of the relevant standard of review.

    When speaking at one of Justice Fybel’s many award ceremonies, Berkeley Law Dean Erwin Chemerinsky remarked if you were to look up the word “mensch” in a dictionary, you should see a photo of Justice Fybel. The following day, the Southern California Appellate News blog posted a photograph of Justice Fybel with the caption: “MENSCH Yiddish: מענטש‎ mentsh: A particularly good person, full of integrity and honor, with the noble qualities one would hope for in a dear friend or trusted colleague; a gentleman. Someone like Justice Fybel.”

    Justice Fybel is survived by his wife Susan, daughter Stephanie, son Dan (Garland Testa), and four grandchildren who were the greatest joys of his life.  May his memory be a blessing. 

    K.O. Kathleen E. O’Leary

  • It’s Not That SIMPLE—Selecting an Employer-Sponsored Retirement Plan
    04 December 2022

    Bruce A. Tannahill recently authored the article, It’s Not That SIMPLE— Selecting an Employer Sponsored Retirement Plan, ABA Probate & Property, November/December 2022. Provided below is the introduction to the paper: The “Great Resignation” that resulted from the COVID-19 pandemic…

  • Spotlight: Swiss Federal Council Approves Creation of an Independent Commission on Nazi Looted Art
    04 December 2022

    By Nikki Vafai

    In September of 2022, the Swiss Federal Council, the executive body of the federal government of the Swiss Confederation, voted to create an independent commission on Nazi looted art. The independent expert commission’s purpose is to make recommendations regarding the return of “cultural property seized as a result of Nazi persecution.”


    The proposal to create this commission was the by-product of ongoing national debate and most recently criticism sparked by the long-term loan display of the Emil G. Bührle collection in the newly opened wing of the Kunsthaus Zürich. Emil G. Bührle (1890-1956) was a German-born art collector, patron, and arms manufacturer. Bührle used slave and child labor in his factories to manufacture weapons and sold these arms to the Nazi regime.[1] With his rapidly growing wealth, during his lifetime, Bührle purchased several works that were looted from Jewish families. As an aficionado of the arts, Bührle did contribute greatly to Kunsthaus Zürich. Bührle was a member of Kunsthaus Zürich’s collection committee, financed an exhibition wing, and in 1952, he donated two large Monet water-lily paintings to the museum.[2] After his death, Bührle’s heirs set up a foundation, the Emil Bührle Collection, which oversees display of a third of the works he collected.

    The Emil Bührle Collection claims that none of the items on display were looted from Jewish individuals.[3] However, there are accusations that the provenance of some of the works in the collection may have been whitewashed and that the collection may still include Nazi looted art. The newly installed display of the Emil G. Bührle collection in Kunsthaus Zürich as of 2021 resulted in an online petition, calling for more transparency in the museum’s Bührle displays.[4] The exhibition also drew criticism from former members of the Bergier Commission.[5] The Bergier Commission was an international panel of scholars formed by the Swiss Federal Assembly in 1996 to research Swiss financial dealings before, during, and after the Second World War.[6] The commission dissolved in 2001.[7] Due to the vast amount of criticism, the city of Zürich pledged to conduct an independent investigation of the Bührle Foundation’s provenance research and to work with Kunsthaus Zürich to develop the museum’s Bührle displays.[8]


    In response to the Bührle controversy and the resulting public pressure, lawmaker Jon Pult submitted a motion in December of 2021, urging parliament to set up an independent commission to assess claims for “cultural property lost as a result of Nazi persecution.”[9] Such a commission would follow in suit of only a handful of countries, Germany, Austria, France, the Netherlands, and the United Kingdom, which have created independent panels to make recommendations and assess claims for Nazi-looted art.

    In February of 2022, the Swiss Federal Council partially approved a parliamentary motion to establish the independent expert commission to make recommendations on the returning cultural property lost in the aftermath of Nazi persecution. However, concerns were raised with the use of the term “cultural property seized as a result of Nazi persecution.” Pult expressed concern that the approved but modified motion did not create a strict distinction between “looted art”—art stolen by the Nazis, and “escapee art”—works that Jewish people were forced to sell under duress at low prices. The Swiss Federation of Jewish communities (SIG/FCSI) and the Platform of Liberal Jews in Switzerland (PLJS) joined in Pult’s concerns and they continue to demand the use of the term “Nazi-confiscated cultural property.” The SIG/FCSI and PLJS have also expressed disappointment in the rejection of their proposed framework conditions.[10]

    In September, following the National Council of Switzerland (the lower house of the Federal Assembly of Switzerland), the Council of States of Switzerland (the upper house), adopted a corresponding motion on Monday. However, the motion was shortened and six guidelines for the design of the commission were deleted. The Council of States also decided to establish a national database to collect and research the provenance of artworks traded, collected, or exhibited in Switzerland.[11] Due to the changes to the motion, it must go back to the National Council before the commission can be set up by the Swiss Federal Council.

    About the Author: Nikki Vafai is a law student at the University of Maryland Carey School of Law and holds a B.A. in International Affairs and Art History from the George Washington University. Nikki is a 2022 fall legal intern at the Center for Art Law.

    1. Catherine Hickley, A Nazi Legacy Haunts a Museum’s New Galleries, NY Times, October 11, 2021.
    2. Catherine Hickley, An Arms Dealer Casts a Shadow over Kunsthaus Zurich, The Art Newspaper, January 27, 2021.
    3. Catherine Hickley, Swiss Parliament Urged to Take Action on Nazi-Looted Art Amid Kunsthaus Zurich Controversy, The Art Newspaper, December 10, 2021.
    4. IG Transparency, An: Zürcher Regierung Licht in die Kunstsammlung Bührle!, Act.Campax, December 2020.
    5. Catherine Hickley, An Arms Dealer Casts a Shadow over Kunsthaus Zurich, The Art Newspaper, January 27, 2021.
    6. Bergier Commission: Independent Commission of Experts Switzerland, Second World War (ICE)1996 – 2001,
    7. Id.
    8. Catherine Hickley, Swiss parliament urged to take action on Nazi-looted art amid Kunsthaus Zurich controversy, The Art Newspaper, December 10, 2021.

    9. Parlament Will Unbhängige Kommission Zu NS-Raubkunst, The Federal Assembly — The Swiss Parliament, September 26, 2022.​​
    10. Le Conseil fédéral approuve en partie la motion demandant que soit créée une commission pour les biens culturels spoliés par les persécutions nazies, SIG FSCI, February 17, 2022.
    11. Swiss Council of States approves creation of commission on Nazi-looted art, European Jewish Congress, September 28, 2022.


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    The post Spotlight: Swiss Federal Council Approves Creation of an Independent Commission on Nazi Looted Art appeared first on New.

  • Circle K Pays $8 Million to Settle Sex / Pregnancy, Disability and Retaliation Claims
    04 December 2022

    Circle K will pay $8 million as part of a nationwide settlement agreement to settle claims that the company denied reasonable accommodations to and retaliated against pregnant employees and those with disabilities, according to an announcement from the EEOC.

    Circle K was alleged to have subjected employees who requested accommodations to involuntary unpaid leave, required them to be 100% healed in order to return to work and terminated some of the workers. The investigation stemmed from charges filed between 2010 and 2015. The EEOC tracks Charges of Discrimination filed with the agency nationwide and may start an investigation if it detects a larger pattern of wrongful conduct.

    Employers are required by law to ensure that all individuals with disabilities or those who are pregnant are given an opportunity to request an accommodation and are granted reasonable accommodations under the law. These accommodations can include actions such as additional leave beyond FMLA leave, modified work schedules, modified duties, modified policies, equipment, and reassignment, as a last resort.

    When employers have rigid maximum leave policies with no flexibility to give additional leave for a disability or pregnancy-related reason, they are in serious danger of running afoul of the law. Employers who don’t give current employees a reassignment to an open position after the employer decides there is no reasonable accommodation available in the current position are also in danger of violating the law.

    If you are a current or former employee of Circle K who sought a reasonable accommodation such as leave for a disability and/or pregnancy, and were terminated at some period between July 10, 2009, and September 26, 2022, you can contact the EEOC v Circle K Settlement Administrator, JND Legal Administration, by mail at PO Box 91243, Seattle, WA 98111, by phone toll-free number at 1-844-633-0691, or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.. Additional information is available on the settlement website at where individuals can file a claim. You could be eligible for compensation.

  • How To Write A Good Deposition Summary
    04 December 2022
    Have you ever been involved in a deposition? If so, you should know the importance of a deposition summary.

    A deposition summary is important because it contains the relevant details from the witness in a case.

    When you’re writing a good deposition summary, it’s important to make sure that you’ve done your best to capture what the witness said word-for-word.

    This will help ensure that there are no discrepancies between what was said during the deposition and what’s written down in your summary.

    What Is A Deposition Summary?

    A deposition summary is a document that summarizes the testimony and evidence presented during a deposition. It’s usually created by an attorney or paralegal who is working on a case, and it’s meant to be used by attorneys when they’re preparing for trial.

    What Is The Purpose of A Deposition Summary?

    The purpose of a deposition summary is to make it easier for attorneys to prepare for trial by giving them all the important information from depositions in one place. They don’t have to read through all the transcripts and reports; they just need to read this summary.

    Key Features of A Deposition Summary

    Deposition Summaries are a great tool for attorneys to use in the litigation process. They provide a summary of the testimony from a deposition, along with key evidence that was introduced during the deposition.

    The summary should include a description of what happened during the deposition, including:

    • The date and time of the deposition
    • A list of all attorneys involved in the case, including their addresses and phone numbers
    • The name of each party involved in the case
    • The name of each witness who testified during the deposition
    • A brief description of what took place during the deposition 
    • What questions were asked by each side?
    • How did the witness respond?
    • Was there any cross-examination?
    • It should include any exhibits or documents that were used during questioning.
    • Include any objections made by counsel during questioning and whether the court reporter or judge presiding over proceedings sustained or overruled them.
    • It should include any questions asked by each side’s attorney and whether they were answered directly or evasively (e.g., “I don’t recall” or “I’m not sure”).
    The Importance of Writing An Accurate Deposition Summary

    When you are preparing for a deposition, it is important to start with an accurate summary of the events in question. This can be helpful in many ways, including:

    • It will help you prepare for your own testimony by giving you a clear understanding of what happened during the incident or event in question.
    • Allows you to make sure that your client understands what happened during the incident or event in question, so that they can give their own testimony as accurately as possible.
    • It will allow your client to prepare any questions they may have about the experience so that they can ask those questions during their deposition.
    • It will allow opposing counsel to understand what happened during the incident or event in question, so they can prepare their own questions accordingly and make sure they are getting all the information necessary from their own witness.
    7 Steps To Write A Good Deposition Summary
    1. Make a list of all the important facts you want to include in your summary.
    2. Write down the main points of each witness’s testimony, including any important information that was left out of their direct examination.
    3. Note down any questions that were asked but not answered during direct examination, and make sure those questions are answered in your summary.
    4. Write down any objections made by opposing counsel during direct examination, even if they were overruled by the court or withdrawn by opposing counsel later on in cross-examination.
    5. Write down anything that was said by a witness that would be helpful to write down, but isn’t necessarily important enough to include in your summary (like “um”s and “uh”s). These should be noted at the bottom of the page as “unclear” or “inaudible.”
    6. Note who said what so you can refer back to it later on if needed (e.g., “John Smith testified that he saw the defendant stab the victim”).
    7. Make sure you cite properly all facts using footnotes or endnotes (e.g., John Smith testified that he saw the defendant stab victim [footnote 1]).
    Why You Should Hire An Expert To Write Your Deposition Summary?

    There are many reasons why you should hire an expert to write your deposition summary. 

    The first reason is that they know how to do it. They have been doing this for years and know what the best way to summarize a deposition is. This can be helpful for any company because it will save them time and money in the long run.

    Another reason why you should hire an expert is that they know how to write a summary that will help you win your case. They will write a summary that shows what was said in the deposition and helps you convince a judge and prove that it happened or didn’t happen.

    The last reason why you should hire an expert is that they will make sure that everything is accurate and correct, which is very important when writing a deposition summary for court purposes.

    Final Thoughts on Deposition Summary

    It’s important to remember that a deposition summary is not just a summary of testimony—it’s also a representation of that testimony. In other words, if the summary isn’t done well, it can be more damaging than helpful. 

    If you’re thinking about writing a deposition summary yourself, it’s time to reconsider. You can’t do this alone. It’s not enough for you to understand the deposition—you need to know how to put it in words that will be easy for others to understand.

    The best way to ensure that your deponent’s information is accurately conveyed is by hiring an expert who knows how to write professionally and creatively.

    Author bio-

    Sheila LaCivita is the owner of 4 Corners Depo. She got a paralegal degree with distinction from UCLA and has been helping lawyers with deposition summaries. She wants to share her knowledge and experience with others.

    The post How To Write A Good Deposition Summary appeared first on Law Truly.

  • “A Cautionary Tale for Everyone”: The Media Mob Turns on Taibbi
    04 December 2022

    There was a time when the disclosure of a back channel for politically motivated censorship would have generated widespread acclaim and called for awards. This is not that time. Just ask Matt Taibbi.

    No one is suggesting that the New York Post should receive a Pulitzer Prize for its long fight to prove the truth about the Hunter Biden laptop. Despite an alliance of most of the media and political establishment arrayed against it, the New York Post fought censorship and unrelenting attacks to bring this massive influence peddling operation to light.  (Of course, the New York Times and Washington Post can keep Pulitzer Prizes for reporting on debunked Russian collusion claims created and pushed by the Clinton campaign).

    In the case of journalist Matt Taibbi, his analysis of thousands of documents has met with the standard scorched earth campaign from liberal reporters and pundits.

    As discussed in today’s Hill column, the document dump confirmed what had long been suspected: Biden and Democratic party officials succeeded in getting Twitter to block the New York Post story and suspend those who even tried to retweet or link to the story before the election.

    I will not repeat the content of those emails on how Twitter “handled” demands from the Biden campaign and the DNC for censorship. Musk gave the material to Taibbi to synthesize the voluminous record.  That is when the familiar media flash mob formed.

    NBC Reporter Ben Collins attacked Taibbi on Twitter and said “Imagine throwing it all away to do PR work for the richest person in the world. Humiliating s***.”

    New York Times contributor Wajahat Ali also attacked Taibbi:

    “Matt Taibbi…what sad, disgraceful downfall. I swear, kids, he did good work back in the day. Should be a cautionary tale for everyone. Selling your soul for the richest white nationalist on Earth. Well, he’ll eat well for the rest of his life I guess. But is it worth it?”

    So Taibbi’s reported downfall as a writer is due to his role in disclosing a massive censorship system operated at the direction or behest of one political party and one political family. He is “disgraceful” because he is suggesting that the media and social media companies should not have censored a story on a multimillion dollar influence peddling scheme run by the Biden family.

    Taibbi is not alone in such disgrace, according to Ali. He has also attacked former New York Times writer Bari Weiss, including for her statement that she was tired of the pandemic as being somehow racist. (“It reflects America’s cruelty, right?…we have also had cruelty, White supremacy, misogyny. America says go ahead and die, but just don’t die on my lawn.”)

    Of course, Ali may be right on what it takes today to be accepted as a journalist. Taibbi is now persona non grata as opposed to Ali, who is routinely invited to write for publications like the New York Times and the Daily Beast despite a litany of controversies.

    In one column, Ali suggested white Republican voters would prefer to burn down their own homes then rent to a minority member and compared them to the Al Qaeda terrorists on Flight 93 . He then wrote off most of them as “lost. It’s going to be a long, ugly, violent death rattle of a death cult.”

    In today’s world, the New York Times bans Sen. Tom Cotton for his view on the use of the military to quell violent protests, but publishes Ali who told people not to “waste your time reaching out to Trump voters as I did.”

    “Reaching out” apparently means calling them virulent racists storming an airplane cockpit. That is the model of real journalism and commentary, not some journalist detailing a politically driven censorship system on social media.

    Most critics like MSNBC host Mehdi Hasan attacked Musk or Taibbi while omitting any discussion of the details in these documents. Hasan simply declared that the full transparency ordered by Musk is just one of those “nakedly and cynically right-wing narratives . . . But sure, the laptop! The laptop! The laptop!”

    There is a simple reason for this evasion and enmity. The media is too invested in the suppression of this story to now acknowledge that this was a scandal involving both massive influence peddling and massive censorship to cover it up.

    I previously wrote a column on the one year anniversary of the Hunter Biden laptop story that marveled at the success of the Biden family in making the scandal vanish before the 2020 election. It was analogized to Houdini making his 10,000-pound elephant Jennie disappear in his act. The Biden trick, however, occurred live before an audience of millions.

    The key to the trick was involving the media in the original illusion. Both Twitter and these reporters became invested in the trick. It is like calling audience members to the stage to assist in the performance. Reporters have to insist that there was nothing to see or they have to admit to being part of the original deception. The Bidens were able to make this elephant of a scandal disappear because Twitter and the media wanted it to disappear.

    Musk has now pulled away the cover and revealed the elephant. Rather than acknowledge the beast, the media is turning on those who made it visible. The Bidens forced many liberal reporters and pundits to excuse the raw corruption of influence peddling. They are now getting the same figures to dismiss censorship. The alternative is simply too bear, let alone explain. After all, if it is still on the stage, it was there all along . . . and that can only be a “nakedly and cynically right-wing narrative.”

    As for Taibbi, it remains (as Ali said) “a cautionary tale for everyone.” The message is clear: see the elephant at your own peril.
  • “Krasner asks court to declare impeachment unlawful; The state Senate voted Wednesday to formally accept articles of impeachment against Krasner, setting the stage for a January trial on whether to remove Philadelphia’s district attorney”
    04 December 2022

    “Krasner asks court to declare impeachment unlawful; The state Senate voted Wednesday to formally accept articles of impeachment against Krasner, setting the stage for a January trial on whether to remove Philadelphia’s district attorney”: Robert Moran of The Philadelphia Inquirer has this report.

    You can access the filings in the case via this link.

    The post “Krasner asks court to declare impeachment unlawful; The state Senate voted Wednesday to formally accept articles of impeachment against Krasner, setting the stage for a January trial on whether to remove Philadelphia’s district attorney” appeared first on How Appealing.

  • A bungled house sale, a bankrupt couple, and a statutory puzzle involving debts incurred through fraud
    04 December 2022


    The court will hear its second bankruptcy case of the week next Tuesday, with Bartenwerfer v. Buckley following close on the heels of the Monday argument in MOAC Mall Holdings LLC v. Transform Holdco LLC. The cases could hardly be more different. MOAC Mall Holdings involves the assignment of a shopping-center lease in a large corporate reorganization. Bartenwerfer presents a single impecunious debtor attempting to discharge a debt incurred through the fraud of her husband.

    The case involves the sale of a house in San Francisco from David and Kate Bartenwerfer to Kieran Buckley. Dissatisfied with the purchase, Buckley eventually obtained a judgment in a California state court based on the failure of the Bartenwerfers to disclose information about the house on the standard-form Transfer Disclosure Statement. Under California law (which is not the least bit unusual on this point), both of the spouses are jointly responsible for that judgment, even though David was much more directly involved than Kate in the repairs and renovations related to the deficient disclosures.

    Later, the Bartenwerfers filed for bankruptcy relief. The Bankruptcy Code offers debtors a broad discharge of obligations that they incurred before filing for bankruptcy, but an exception (Section 523(a)(2)(A)) protects – and thus preserves – any claim for “money … obtained by … actual fraud.” Reasoning that Buckley’s claim falls under that exception, the bankruptcy court held that David could not discharge it.

    The bankruptcy court thought Kate’s situation should be different, because she lacked any “actual knowledge” of the deficiencies in the disclosure statement. Because Buckley’s claim did not involve money obtained by her fraud, the bankruptcy court ruled that Kate could discharge that claim. The court of appeals, by contrast, concluded that the discharge exception protects any claim for money obtained by fraud; it does not matter if the debtor committed the fraud. The question before the Supreme Court, then, is whether Section 523 turns on the state of mind of the debtor (is this an honest or fraudulent debtor?) or the state of the claim (was this debt incurred legitimately or fraudulently?). The arguments on the two sides are crisp and logical.

    Bartenwerfer points first to the court’s articulation of a clear-statement rule, under which the exceptions to discharge are narrowly limited to those that are “plainly expressed” in the statute. Because the statute bars the discharge of “an individual debtor from any debt … for money … obtained by … fraud,” it is natural, Bartenwerfer argues, to read the text as describing the fraud of the individual debtor rather than the fraud of a third party that the statute does not mention.

    Turning from the literal text to the broader statutory context, Bartenwerfer emphasizes the next subparagraph of the statute. Section 523(a)(2) as a whole provides a discharge exception for “money, property, services, or an extension, renewal, or refinancing of credit,” but only “to the extent obtained by” one of three forms of misconduct – described in subparagraphs (A) (at issue in Bartenwerfer), (B) and (C). Within the provision, where subparagraph (A) deals generally with “false pretenses, a false representation, or actual fraud,” subparagraph (B) deals with financial statements (“a statement respecting the debtor’s or an insider’s financial condition”). In subparagraph (B), the exception to discharge applies only if “the debtor caused [the statement] to be made or published with intent to deceive.” Thus, Bartenwerfer emphasizes, liability under subparagraph (B) plainly is limited to the debtor’s own conduct. It would be “bizarre,” she contends, for the liability under subparagraph (A) to leave a debtor unable to discharge a debt incurred through the fraud of another when the parallel provision for fraudulent financial statements clearly is limited to the debtor’s own malfeasance.

    More broadly, as a policy matter, Bartenwerfer emphasizes how burdensome it would be to limit the discharge in cases like this: Under Buckley’s reading of the statute, a spouse who learns of fraudulent behavior of her husband and responds by immediately divorcing her husband and distancing herself from his financial affairs would remain forever unable to discharge her responsibility for the debt.

    Buckley, by contrast, argues that the plain and literal meaning of the statute compels the protection the claim from discharge. The statute refers to the discharge of “any” debt obtained by “fraud.” Not a word of subparagraph (a)(2)(A) suggests that the identity of the fraudster is relevant. If state law holds a party responsible to compensate the victim of the fraud, Buckley reasons, the Bankruptcy Code must protect the claim from discharge.

    Buckley also emphasizes a Supreme Court decision from 1885 (not a typo), Strang v. Bradner. Strang rejected the discharge of a debt in strikingly similar circumstances: Debtors were obligated to victims for fraud perpetrated by the debtors’ partner on behalf of a partnership. Even though the statute of the time (the Bankruptcy Act of 1867) required actual fraud “of the bankrupt” to protect a claim from discharge, the Supreme Court held that such a debt was “created by [the debtors’] fraud [because the fraud of one partner is] imputed … to all.” Strang brings into play Buckley’s interpretive canon – under which the Supreme Court reads the Bankruptcy Code as incorporating jurisprudence under older bankruptcy statutes unless the Bankruptcy Code directly rejects it. (For what it’s worth, I’m pretty sure the Supreme Court has never considered application of that principle to its cases under the ancient Bankruptcy Act of 1867!) In this case, if anything the language of Section 523 is broader than the language at issue in Strang, because it omits the limitation of the exception to fraud by the individual debtor. Accordingly, Buckley reasons, the court should read Section 523 as carrying forward the rule of Strang that the discharge exception turns on the fraudulent basis for the claim rather than the conduct of the individual debtor.

    The preceding discussion pitches the case as a debate between a clear-statement rule calling for narrow interpretation of discharge exceptions and a clear-statement rule calling for preservation of pre-Code practice. I should throw one more idea in the mix: the trope of the “honest but unfortunate debtor,” a phrase from the Depression-era Supreme Court decision in Local Loan Co. v. Hunt. Hunt’s conception of the Bankruptcy Code as designed to protect the “honest but unfortunate debtor” has been an almost ubiquitous feature of the court’s opinions in bankruptcy cases involving individual debtors; the court has referred to Hunt in more than two dozen of its later cases. Justices wedded to that conception well might come down in favor of a discharge here for Kate.

    Competing interpretive canons. A fact pattern worthy of a law-school classroom. And, while I’m at it, a pair of experienced advocates familiar to the justices (Lisa Blatt and Zachary Tripp). What’s not to love. It is fair to expect that the justices will have a good time with this one on Tuesday.

    The post A bungled house sale, a bankrupt couple, and a statutory puzzle involving debts incurred through fraud appeared first on SCOTUSblog.

  • Justices to consider jurisdiction of appellate courts to review bankruptcy orders
    04 December 2022


    The Supreme Court turns its attention to bankruptcy next Monday when it hears argument in MOAC Mall Holdings LLC v. Transform Holdco LLC. The case involves the authority of a court of appeals to review a bankruptcy order authorizing a bankrupt tenant to sell its interest in a lease. The lower court found its jurisdiction to review that order lacking, but the justices well might take a different view.

    The dispute is easy to understand. Sears filed for bankruptcy in the fall of 2018 after it failed to adapt its business model to the competitive pressures posed by electronic commerce. A major issue in the bankruptcy proceeding was which (if any) store locations a reorganized Sears would retain. Section 365 of the Bankruptcy Code provides a detailed framework for how a bankrupt company resolves that situation. Generally, the debtor decides with respect to each contract if it wants to assume the contract or reject it. Section 365 also includes statutory rules that in some (but not all) cases permit the debtor to assign its interest in the contract to a third party. Several aspects of those rules include detailed exceptions for shopping-center leases like those under which Sears operated many of its stores.

    In the spring of 2019, a few months after Sears entered bankruptcy, Sears agreed to transfer most of its assets to Transform Holdco LLC, a company formed by a former Sears executive. Because that transaction was not in the ordinary course of business, Section 363(b) of the Bankruptcy Code required Sears to seek approval from the bankruptcy court, which it readily obtained. The purchase agreement with Transform, executed shortly after the bankruptcy filing, did not contemplate that Sears and Transform would finalize treatment of the leases before that agreement became effective. Rather, it authorized Transform in the months after it acquired the tangible assets of Sears to identify the leases that it wished to acquire and then to seek approval from the bankruptcy court under Section 365 for the leases to be assumed by Sears and assigned to Transform.

    MOAC Mall Holdings involves a Sears store located in the Mall of America – the largest shopping center in the United States, if not the world (more than four million square feet). Eventually, Transform decided that it wanted to retain that store. The landlord (MOAC Mall Holdings is the entity that owns the Mall of America) objected, arguing that Section 365 barred an assignment of the Mall of America lease to Transform because Transform could not provide (in the language of Section 365) “adequate assurance” of its performance under the lease, in part because Transform was not “similar to the financial condition and operating performance” of Sears as Sears existed when the lease originally was signed. The bankruptcy court rejected the landlord’s argument.

    When the landlord appealed, the U.S. Court of Appeals for the 2nd Circuit declined to address the landlord’s complaint, holding that Section 363(m) deprived the appellate court of jurisdiction over the appeal. That provision (be patient, I’m finally getting to the issue before the justices) states that the “reversal or modification on appeal of an authorization under subsection (b) … of this section of a sale … of property does not affect the validity of a sale … under such authorization to an entity that purchased such property in good faith.” Because earlier 2nd Circuit precedent had interpreted Section 363(m) as a jurisdictional bar, the panel found itself powerless to address the appeal.

    Perhaps, gentle reader, you are thinking that you just read a post on SCOTUSblog about a stunningly similar argument. And if you have nothing better to do than read every post I craft, then you will be thinking of Wilkins v. United States, argued last Wednesday. As I explained in my preview in Wilkins, that case involves a statute of limitations that makes no textual claim of “jurisdictional” status. A fair reading of the court’s modern line of cases well might call for a reversal of the lower court ruling that the Wilkins statute is jurisdictional.

    The argument here is quite similar. The landlord points to cases establishing a clear-statement rule for treating a statute as jurisdictional (the leading case in this context being the Supreme Court’s 2006 decision in Arbaugh v. Y&H Corp.). Nothing in Section 363(m) comes close to satisfying that standard. Indeed, because the text of the statute describes the effect of an appellate court’s “reversal or modification on appeal of an authorization under subsection (b),” the statute on its face pretty directly contemplates appellate jurisdiction: How can the appellate court reverse or modify an order that it has no jurisdiction to review?

    Moreover, the landlord explains, Section 363(m) refers to challenges seeking to reverse or modify an approval under 363(b) – a claimant might argue, for example, that the sale violated Section 363(e) because it did not provide “adequate protection” to some creditor of the debtor. This case, though, involves a ruling under Section 365 about the characteristics of the assignee of the lease, which has nothing to do with Section 363(b) or, indeed, with anything that the bankruptcy court considered at the time it approved the sale to Transform under Section 363.

    Like the government in Wilkins, Transform (the purchaser of the lease) barely addresses the question on which the court granted review – whether Arbaugh can be reconciled with the 2nd Circuit’s treatment of Section 363(m) as jurisdictional. The question presented starts with a statement of the holding in Arbaugh and the landlord cites the case two dozen times in its brief; the first mention of the case in the argument section of Transform’s brief is less than a page from the signature line at the end of the brief. Rather, Transform presents a variety of reasons why that question is not directly relevant.

    For example, Transform first argues that the court should dismiss the petition because the interest that the bankrupt debtor (Sears) formerly held in the lease has been transferred to Transform and thus is no longer within the reach of the bankruptcy court. Then, on the merits, it argues that Section 363(m) is best read as jurisdictional because (in Transform’s phrasing), the statute directly “withdraws … authority to hear appeals challenging” a transfer under Section 363. As to the landlord’s argument that the relevant order was entered under Section 365 (with regard to the assignability of the particular lease) rather than under Section 363 (with regard to the validity of the overall sale), Transform argues that the key point is the relief that the landlord seeks. Because the ultimate relief the landlord wants is to invalidate the transfer of the lease to Transform, Transform urges that Section 363(m) should bar appellate review.

    As I suggested in the parallel circumstances in Wilkins, the most common reason for a skilled advocate to file a brief that spends little or no time directly confronting the question on which the court granted review is that the advocate has little that is compelling to say on that point. If I’m correct in reading this case and Wilkins as a matched set, the argument on Monday should present more than a hint of that sentiment.

    The post Justices to consider jurisdiction of appellate courts to review bankruptcy orders appeared first on SCOTUSblog.

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