Tuesday, September 14, 2021

Attorney General James and DOI Commissioner Garnett Announce Indictment of Four Asbestos Investigators for Filing Fraudulent Inspection Reports

NY State Attorney General Letitia James

September 2, 2021
Attorney General’s Press Office/212-416-8060

Attorney General James and DOI Commissioner Garnett Announce Indictment of Four Asbestos Investigators for Filing Fraudulent Inspection Reports 

Defendants Filed Reports Claiming to Be Inspecting Residential and Commercial Sites While They Were Out of the State and Country, Jeopardizing New Yorkers’ Health and Safety

NEW YORK- New York Attorney General Letitia James and New York City Department of Investigation (DOI) Commissioner Margaret Garnett today announced the indictment of four Certified Asbestos Investigators (CAI) for repeatedly filing false asbestos inspection reports, putting the health and safety of workers and New York City residents at risk. A joint investigation conducted by the Office of the Attorney General (OAG) and the DOI found that over several years, the defendants — who were independent contractors certified by the New York State Department of Labor (DOL) and the New York City Department of Environmental Protection (DEP) — submitted fraudulent reports for inspections that took place on days when they were out of the state and country. 

The defendants — Valentino Buono (50), Jeff Ezulike (48), Russell Goss (42), and Kostas Kamberis (54) — were arraigned before Supreme Court Judge Toni Cimino in Queens County on a total of 19 counts, including Offering a False Instrument for Filing in the First Degree, a Class E Felony, which carries a maximum jail sentence of up to four years. 

“By filing these blatantly false health and safety reports, the defendants violated the public trust, as well as the law,” said Attorney General James. “These individuals failed to do their jobs to properly inspect sites for asbestos, putting the health of New Yorkers at risk, while exploiting the state and the system. No matter how big or small, we will continue to root out corruption at every level. I thank the DOI for its commitment to this cause.” 

“Filing fraudulent asbestos reports with New York City is a crime and, as these charges show, can also threaten New Yorkers' health and safety,” said DOI Commissioner Garnett. “The reason the city requires certified asbestos inspectors to file reports with the city is to confirm that dangerous asbestos is identified and abated correctly. The DEP reported allegations of potential fraudulent filings to DOI and we worked hand-in-hand with the state attorney general to uncover this charged illegal conduct. This kind of collaboration within the city and with our law enforcement partners is crucial in holding accountable those who seek to defraud New York City.” 

Asbestos is a naturally occurring mineral that is hazardous to human health and is known to cause a type of cancer known as mesothelioma. The DOL authorizes CAIs to conduct field inspections of residential and commercial sites to determine if dangerous asbestos is present, where it is located, and how much there is. Upon conducting their inspections, CAIs are required to file an Asbestos Assessment Report with the DEP. The report requires the inspector to certify that the inspection took place at the location, date, and time listed on the report and whether asbestos was present. Asbestos survey records must accurately reflect the site conditions at the time of the investigation. 

In February 2020, the OAG and the DOI began the investigation following the DEP identifying and reporting potentially fraudulent filings to the DOI. The investigation uncovered the fraudulent reports by comparing inspection dates to domestic and international travel dates recorded by U.S. Customs and Border Protection. The OAG and the DOI then reviewed airline records, such as ticket purchases and boarding documentation, as well as bank records, to confirm the discrepancies. On days that the defendants claimed to have inspected sites throughout the city for asbestos, Buono was actually in Mexico, Ezulike was in Nigeria and Texas, Kamberis was in Italy and Greece, and Goss was in Bermuda, Denmark, Puerto Rico, and Italy. 

The charges are merely accusations and the defendants are presumed innocent unless and until proven guilty in a court of law. 

Attorney General James and DOI Commissioner Garnett would like to thank the New York City Department of Environmental Protection and the New York State Department of Labor for their assistance during this investigation. 

“Our mission is to protect the health and safety of all New Yorkers, and we have zero tolerance for those who jeopardize others and put them at risk,” said New York State Department of Labor Commissioner Roberta Reardon. “We are fortunate to have law enforcement partners like the Office of the New York Attorney General and the New York City Department of Investigation to help us reinforce those protections. I commend them for their efforts to upholding the safety of all New Yorkers.” 

“Rigorous enforcement of New York’s asbestos rules is absolutely necessary to protect both the public health and the safety of workers,” said New York City Department of Environmental Protection Commissioner Vincent Sapienza. “Our enforcement team first identified these four individuals and brought them to the attention of our law enforcement partners, and we thank them for this successful indictment.” 

The investigation was conducted by DOI Investigators Alaina Infantino, John Bourke, and Katherine O'Toole, under the supervision of Deputy Inspector General Michael Antolini and Inspector General Andrew Brunsden. 

The criminal case is being prosecuted by Assistant Attorneys General Russell Satin and Aida Vernon, of the OAG’s Public Integrity Bureau, under the supervision of Bureau Chief Gerard Murphy. Additional investigative support was provided by Legal Support Analyst Crystal Bisbano. The Public Integrity Bureau is a part of the Division for Criminal Justice, which is led by Chief Deputy Attorney General José Maldonado and is overseen by First Deputy Attorney General Jennifer Levy.

Wednesday, September 1, 2021

Tanner Cross, Teacher in Loudoun County, Wins Court Ruling Allowing Him To Refuse To Use Transgender Students' Pronouns

Byron "Tanner" Cross

Court Backs A Teacher Who Refused To Use Transgender Students' Pronouns

August 31, 2021, AP

RICHMOND, Va. — The Supreme Court of Virginia has upheld a lower court ruling that ordered the reinstatement of a northern Virginia gym teacher who said he won't refer to transgender students by their pronouns.

Loudoun County Public Schools appealed to the state Supreme Court after a judge ruled that the school system violated the free speech rights of teacher Tanner Cross by suspending him after he spoke up at a school board meeting.

Cross, a teacher at Leesburg Elementary, cited his religious convictions at a May board meeting in which the school board debated proposed changes to its policies in treatment of transgender students. Cross said he would not use transgender students' pronouns.

School boards across the state have been revising their policies to be more inclusive of transgender students in accordance with a new state law. But Loudoun County, outside the nation's capital, has been a particular flashpoint in the debate over not just transgender students but also how students learn about racism and race relations.

The school system said it suspended Cross in part because his comments caused a disruption at the school. But the lower court judge, James Plowman, and the state Supreme Court agreed that the handful of calls fielded by school administrators did not cause the type of disruption that warranted a suspension.

Tuesday's ruling leaves in place a temporary injunction that bars the school system from suspending Cross. A trial is scheduled for next week in Loudoun County to settle the issue permanently.

Since Cross filed his lawsuit in May, two additional teachers in Loudoun County have joined him as plaintiffs.

In this April 30, 2021, file photo, Florida Gov.Ron DeSantis speaks at 

the end of a legislative session at the Capitol in Tallahassee, Fla.

Wilfredo Lee/AP

On The First Day Of Pride Month, Florida Signed A Transgender Athlete Bill Into Law
June 2, 2021, AP

TALLAHASSEE, Fla. — Florida's Republican governor signed a bill Tuesday barring transgender females from playing on public school teams intended for student athletes born as girls, plunging the state into the national culture war over transgender rights.

"In Florida, girls are going to play girls sports and boys are going to play boys sports," Gov. Ron DeSantis said as he signed the bill into law at a private Christian academy in Jacksonville that would not be subject to the law. "We're going to make sure that that's the reality."

The new law, sure to be challenged as unconstitutional, inflames an already contentious discussion unfolding nationally as Republican-controlled states move to limit the rights of LGBTQ people, whose advocates were particularly annoyed that the legislation was signed on the first day of Gay Pride Month.

The NCAA, which oversees college athletics, has said it has "a long-standing policy that provides a more inclusive path for transgender participation in college sports." The NCAA currently requires transgender women to get treatment to lower their testosterone levels before they can compete in women's sports.

When the Florida Legislature was considering the measure in April, the NCAA said it would commit championship games to "locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination."

High-profile athletic events, such as football bowl games and basketball tournaments, generate millions of dollars for local communities.

The measure approved by the GOP-led Legislature takes effect July 1. It says a transgender student athlete can't participate without first showing a birth certificate saying she was a girl when she was born. It's not clear whether all females must show their birth certificates, or only those whose gender is questioned. The proposal allows another student to sue if a school allows a transgender girl or woman to play on a team intended for biological females.

The final wording of the "Fairness in Women's Sports Act" stripped away some of its most contentious elements, including a requirement that transgender athletes in high schools and colleges undergo testosterone or genetic testing and submit to having their genitalia examined.

But the legislation signed by the governor advances an underlying principle asserted by supporters: Biological differences between males and females make it unfair for athletes identified as boys at birth to compete on teams for girls and women. The law would not bar female athletes from playing on boys' or men's teams.

Human Rights Campaign President Alphonso David said the new law would not only harm transgender girls. "All Floridians will have to face the consequences of this anti-transgender legislation — including economic harm, expensive taxpayer-funded legal battles, and a tarnished reputation."

Democrats and LGBTQ advocates said the law is discriminatory and will be challenged in court as unconstitutional.

"This is yet another hate-driven attack from the governor and Republican legislators, and it's insulting that they've staged this morning's photo-op on the first day of Pride Month," said state Sen. Shevrin Jones. "At the end of the day, transgender kids are just kids."

The ban was tucked at the last minute of the legislative session into a measure allowing public universities and colleges to sponsor charter schools — a point the governor did not mention during the bill signing. It was the transgender athletes provision that was front and center in Tuesday's rhetoric.

"This bill is very simply about making sure that women can safely compete, have opportunities and physically be able to excel in a sport that they trained for, prepared for and work for," said state Sen. Kelli Stargel, a Republican who championed the bill.

"This is nothing about anybody being discriminated against," she said. "It's solely so that women have an opportunity to compete in women's sports."

The Florida law mirrors an Idaho law, the first of its kind when enacted last year, that is now mired in legal challenges. GOP governors in Arkansas, Mississippi and Tennessee recently signed similar measures.

Efforts by conservatives to restrict rights of gay, lesbian and transgender people have spawned numerous battles in key arenas — not only in legislatures and courtrooms but also across the economy, and critics warned of looming consequences.

According to a 2017 Associated Press study, North Carolina stood to lose $3.8 billion over a dozen years because of a so-called "bathroom bill." Those losses were averted when a 2019 settlement kept the state from barring transgender people from using bathrooms that conformed to their gender identity.

"Let me say very clearly: In Florida, we're going to do what's right to stand up to corporations, they are not going to dictate the policies in this state," DeSantis said while flanked by students at the religious school. "We will stand up to groups like the NCAA who think that they should be able to dictate the policies in different states. Not here, not ever."

A Connecticut track athlete, Selina Soule, joined the Florida governor at the news conference to talk about how she failed to advance in competitions because she competed against transgender athletes. She called it unfair.

That Soule was from out of state was not lost on critics who contend that the matter was not an urgent one for Florida, noting that just 11 athletes applied for screening by the Florida High School Athletic Association since adopting its transgender participation policy in 2013.

"This is not out of need or necessity," said Orlando Gonzales, the executive director of SAVE, a South Florida gay rights advocacy group, during a news conference. "This is really just to throw red meat out there to really rally the base of people who are anti-LGBT."

Friday, August 27, 2021

As Elizabeth Holmes Goes To Trial, The Issue of David Boies' Attorney-Client Privilege Looms


Elizabeth Holmes

What Other Firms Can Learn From Boies Schiller's Role in the Elizabeth Holmes Saga

Law.com, August 21, 2021

An attorney-client privilege dispute between Elizabeth Holmes and Boies Schiller Flexner looms over the Theranos founder’s criminal fraud trial set to kick off Aug. 31, but attorneys say the saga also serves as a cautionary tale for the legal community.

In a trial expected to last about 13 weeks in the San Jose courtroom of U.S. District Judge Edward Davila of the Northern District of California, lawyers from Williams & Connolly and a San Francisco solo practitioner are set to defend Holmes against the government’s allegations that the former executive defrauded investors, doctors and patients with faulty blood-testing technology.

David Boies

David Boies
, Boies Schiller’s managing partner and chairman, and partner Heather King could also be central players in the courtroom drama. Boies and King, Theranos’ former general counsel, are listed as possible witnesses in court documents. A magistrate judge found that 13 emails on the government’s exhibit list were not protected by Holmes’ attorney-client privilege with the firm.

Some lawyers say the haziness of the high-profile firm’s relationship with Holmes has caused the rest of the industry to sit up and stress the fundamentals. Schiff Hardin partner Adam Diederich in Chicago said the attorney-client privilege dispute certainly got the attention of attorneys, who expect the advice and information they provide clients to remain confidential.

“It’s pretty clear something fell through the cracks, but it’s not directly known exactly what happened here,” Diederich said. “So I think most law firms and lawyers who are aware of this are going to be more careful, with this in mind, to document the scope of the relationship.”

Holmes argued that Boies—who also served on the defunct company’s board of directors—and his firm had acted as counsel not just to the company but to Holmes in an individual capacity. She claimed they had represented her starting in 2011 in an intellectual property dispute, according to case filings. In a 2018 interview in the U.S. Attorney’s Office in San Francisco, Boies told federal investigators he represented solely the company up until the summer of 2016, according to a memo on the docket.

Boies represented Theranos as it came under fire from reporting by The Wall Street Journal’s John Carreyrou, who unwound the alleged scheme at the center of the government’s case against Holmes and Theranos’ former president and chief operating officer, Ramesh “Sunny” Balwani, who is set to stand trial beginning Jan. 11.

Federal prosecutors asserted that Holmes could not pass the circuit court’s test to show that counsel was communicating to her in an individual capacity or that the communications’ dealt with matters particular to Holmes instead of the general affairs of the company, whose assignee had waived Theranos’ corporate privilege to specific documents.

Noticeably absent from the record is a Boies Schiller engagement letter—with Theranos or Holmes. Boies himself had told investigators he was “virtually certain” that there must be an engagement letter establishing the legal relationship with Theranos, as required by the firm. Holmes has admitted in court documents that she has no knowledge of an engagement letter directed toward her or Theranos, or one delineating or limiting Boies’ representation to Holmes or the company.

In a June order, U.S. Magistrate Judge Nathanael Cousins of the Northern District of California found Holmes was “unable to point to any documents supporting this allegedly obvious joint representation.”

Emily Ward, a white-collar associate at Smith, Gambrell & Russell in Atlanta, said if she were to merely speculate about the possible effects of the 13 emails on the trial, the communications—which have been described in filings as related to Theranos’ response to the media, investors and regulators—it’s possible the testimony of Boies and King could speak to the intent or aspects of the alleged scheme to defraud.

“If there were any sort of false or misleading omissions in communications to investors and regulators, that could be part of the prosecution’s case, but of course, we’re just guessing until we know what’s in those emails,” Ward said.

Ward said the lack of any engagement letter is a little surprising, “especially for parties that are as sophisticated as one of the more preeminent law firms in the country and Theranos.”

On the other hand, she said, not having an engagement agreement with regard to each specific area in which a law firm is offering advice is not that surprising. “When senior executives or officers within a company have a question, they might just run down the hall to their in-house counsel or call up their friend who’s the outside counsel, and there’s not going to be an engagement agreement for each one-off situation where legal advice is given,” she said. “So you can see how something like this may have organically developed, but it is definitely a risk to not have an engagement agreement when you do have both the corporate and personal legal interest at issue.”

Kevin Allen, of Eckert Seamans Cherin & Mellott in Pittsburgh, said the lack of an engagement letter was uncommon but not unheard of. “To the extent that it happens, it’s my experience, typically, just a delay, where the engagement letter would just catch up to the actual engagement,” he said. “A firm may be doing work for some finite period of time without an engagement letter yet having been issued, but I think particularly in larger law firms and prominent law firms that have systems in place, in my experience, it’s unusual.”

Allen said that Boies’ role on the board and the “multiple hats” he wore in connection to Theranos further complicated the privilege issue. “Then the question becomes, ‘OK, person who holds a law degree but is on the board of directors, when you were talking and there were communications with you, which hat were you wearing?’” he said. “It doesn’t mean that a lawyer who is on the board can never have confidential, privileged communications, but it just makes it more complicated.”

To maintain clear lines of communication when an attorney is acting both as a business adviser and legal representative, Ward suggested keeping a separate email account or only discussing certain personal matters when that person is physically in their law office.

Ward said prior to its representation of Theranos, Boies Schiller was regarded as one of the top law firms in the country—and still is—but it has lost more than hundred attorneys since.

“I think this is a cautionary tale because it’s just a quick reminder that whether it’s the most powerful law firm in the country, or a solo practitioner that hung up their own shingle, all types of lawyers and all types of law firms need to make sure that they are documenting everything having to do with attorney-client privilege and making sure their clients understand who they represent, especially when you’re talking about a corporation that has founders, executives and other employees,” she said.

When a company is built around a founder, as was the case with Theranos, it can be even more difficult to have a clear demarcation between individual representation and the company, Ward said.

“I think that that’s something that we will continue to see litigated over the next 10 or 20 years with all of these dot-com and app companies,” she said. “There’s going to be a question as these companies grow: When did lawyers start representing the company as opposed to the founders who were just trying to make it work?”

Friday, August 13, 2021

Dominion Voting Systems File Lawsuits Against Conservative Media Outlets Accusing It Rigged the 2020 Presidential Election Against Donald Trump


In this Jan. 4, 2021, file photo a worker passes a Dominion Voting ballot scanner while
setting up a polling location at an elementary school in Gwinnett County, Ga.
                                           (AP Photo/Ben Gray, File)

minion files $1.6B lawsuits against Newsmax, OAN, former Overstock CEO

Dominion files $1.6B lawsuits against Newsmax, OAN, former Overstock CEO

Dominion files $1.6B lawsuits against Newsmax, OAN, former Overstock What You Need To Know

  • Dominion Voting Systems on Tuesday continued its suing spree against conservative media outlets and other prominent figures it says spread baseless claims about it rigging the 2020 presidential election against Donald Trump

  • The Denver-based voting machine company filed three separate defamation lawsuits against the cable TV networks Newsmax and One America News and against former Overstock.com CEO Patrick Byrne

  • Citing lost profits and other damages, the lawsuits each seek more than $1.6 billion

  • Dominion says its reputation has been damaged so badly by the false claims that it has lost at least $70 million in profits as a result of contracts that have been canceled or not awarded since the presidential election

Dominion Files $1.6B Lawsuits Against Newsmax, OAN, former Overstock CEO

PUBLISHED 2:38 PM ET AUG. 10, 2021

Dominion Voting Systems on Tuesday continued to file lawsuits against conservative media outlets and other prominent figures it says spread baseless claims about it rigging the 2020 presidential election against Donald Trump.

The Denver-based voting machine company filed three separate defamation lawsuits against the cable TV networks Newsmax and One America News and against former Overstock.com CEO Patrick Byrne. Citing lost profits and other damages, the lawsuits each seek more than $1.6 billion.

"The defendants in today's filings recklessly disregarded the truth when they spread lies in November and continue to do so today,” Dominion CEO John Poulos said in a statement. “We are filing these three cases today because the defendants named show no remorse, nor any sign they intend to stop spreading disinformation. This barrage of lies by the Defendants and others have caused—and continue to cause—severe damage to our company, customers, and employees. We have no choice but to seek to hold those responsible to account."

The Newsmax and OAN filings borrow much of the same language. In them, Dominion’s lawyers wrote that the networks “helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.”

Dominion alleges the networks “manufactured, endorsed, repeated,  and  broadcast  a  series  of verifiably  false  yet  devastating  lies  about Dominion.” The claims included that Dominion’s software and algorithms manipulated vote counts to help Joe Biden, that the firm is owned by a company founded in Venezuela to rig elections for the late dictator Hugo Chavez and that Dominion was involved in voting irregularities in cities where its machines are not even used.

In a statement to Spectrum News, Newsmax said it had not yet reviewed Dominion’s complaint but asserted that the network “simply reported on allegations made by well-known public figures, including the President, his advisors and members of Congress.”

“Dominion’s action today is a clear attempt to squelch such reporting and undermine a free press,” the statement said.

The OAN lawsuit also names as defendants Herring Networks CEO Robert Herring and President Charles Herring, as well as reporters Chanel Rion and Christina Bobb. Herring Networks is OAN’s parent company.

OAN has not responded to an email from Spectrum News seeking comment.

Byrne is accused of bankrolling false “forensic” reports that claim Dominion’s machines were intentionally designed to create systemic fraud and influence election results. Dominion says he also enlisted and promoted conspiracy theorists and misrepresented their credentials.

Byrne, who has previously said he did not vote for Trump, has not commented publicly on the lawsuit.

Dominion says its reputation has been damaged so badly by the false claims that it has lost at least $70 million in profits as a result of contracts that have been canceled or not awarded since the presidential election, a trend the company predicts will continue to play out over the coming years. Dominion claims some election officials have told its representatives that the company is losing business “because of the ‘Dominion’ name.”

The lawsuit against Newsmax was filed in state court in Delaware, while the other two cases were filed in the U.S. District Court for the District of Columbia.

Trump and some of his prominent supporters continue to push false claims that widespread election fraud cost him re-election in November. 

All but one of the more than 60 legal challenges filed by Trump and his allies have failed in the courts, including two tossed out by the Supreme Court.

The Department of Homeland Security's Cybersecurity and Infrastructure Security Agency and the National Association of State Election Directors described the election as "the most secure in American history.” And before resigning in December, Attorney General William Barr said the Justice Department found no evidence of widespread voter fraud that could have changed the outcome of the election.

Dominion says it’s impossible to program its voting software to switch votes because the machines print a paper ballot, which is reviewed by the voter and can be used to audit election results.

The company has previously filed a number of other $1 billion-plus defamation lawsuits against those who have accused it of working to fix the election, including Fox News, lawyers Rudy Giuliani and Sidney Powell, and MyPillow CEO Mike Lindell.

In a call with reporters Tuesday, Dominion attorney Stephen Shackelford did not rule out suing Trump, Reuters reported.

"We are still exploring options as to how to hold other participants in the campaign of lies accountable," Shackelford said.

Ryan Chatelain - Digital Media Producer

Ryan Chatelain is a national news digital content producer for Spectrum News and is based in New York City. He has previously covered both news and sports

FILE - Sidney Powell, right, speaks next to former Mayor of New York Rudy Giuliani, as
members of President Donald Trump's legal team, during a news conference at the Republican
National Committee headquarters on Nov. 19, 2020, in Washington.
                                           (AP Photo/Jacquelyn Martin, File)

Judge rules Dominion case can proceed against Trump allies

Judge Rules Dominion Case Can Proceed Against Trump Allies
PUBLISHED 10:46 PM ET AUG. 11, 2021

WASHINGTON (AP) — A federal judge cleared the way Wednesday for a defamation case by Dominion Voting Systems to proceed against Sidney Powell, Rudy Giuliani and Mike Lindell, allies of former President Donald Trump who had all falsely accused the company of rigging the 2020 presidential election.

U.S. District Judge Carl Nichols ruled that there was no blanket protection on political speech and denied an argument from two of the defendants that the federal court in Washington wasn't the proper venue for the case.

“As an initial matter, there is no blanket immunity for statements that are 'political’ in nature,” the judge wrote in the 44-page ruling.

While courts have recognized there are some hyperbolic statements in political discourse, “it is simply not the law that provably false statements cannot be actionable if made in the context of an election,” Nichols wrote.

The judge also rejected Powell and Lindell’s arguments that Dominion had failed to meet a legal burden that their statements were made with “actual malice.”

He outlined several instances where the trio made outlandish and blatantly false claims, including when Powell stated that the company was created in Venezuela to rig elections for the late leader Hugo Chavez and that it can switch votes.

In allowing the lawsuit to go forward, Nichols said Dominion had adequately proved that Powell made statements that could lead to a lawsuit "because a reasonable juror could conclude that they were either statements of fact or statements of opinion that implied or relied upon facts that are provably false.” Dominion has sought $1.3 billion in damages from the trio.

The judge used similar language against Lindell, the founder and CEO of MyPillow, saying Dominion proved Lindell had "made his claims knowing that they were false or with reckless disregard for the truth.”

Powell and Giuliani, both lawyers who filed election challenges on Trump’s behalf, and Lindell, who was one of Trump's most ardent public supporters, made various unproven claims about the voting machine company. Many of those statements came at news conferences, during election rallies and on social media and television.

There was no widespread fraud in the election, which a range of election officials across the country, including Trump’s attorney general, William Barr, have confirmed. Republican governors in Arizona and Georgia, key battleground states crucial to Biden’s victory, also vouched for the integrity of the elections in their states.

Nearly all the legal challenges from Trump and his allies were dismissed by judges, including two tossed by the Supreme Court, which includes three Trump-nominated justices.

The judge’s ruling came just a day after the vote-counting machine maker filed defamation lawsuits against right-wing broadcasters Newsmax Media Inc. and One America News Network, as well as Patrick Byrne, a prominent Trump ally and former chief executive of Overstock.com.

Copyright 2021 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed without permission.

Sunday, August 8, 2021

Ninth Circuit Rules That Sharing Your Password in a Federal Crime

 I bet you didn't know that in  the Ninth Circuit ruling you cannot share your passwords is valid in:

It also has appellate jurisdiction over the following territorial courts:

Sharing Your Password Is a Federal Crime, 9th Circuit Rules

By Jonathan R. Tung, Esq. on July 12, 2016 6:59 AM

The final decision from the Ninth Circuit case of United States v Nosal II has finally been filed and should make casual users of this thing we call the internet a little nervous. Nosal II involved accusations that a former employee who'd used other current employees' password information to access company information had violated the Computer Fraud and Abuse Act. Sounds harmless enough and even intuitive. That is, until you listen to the judge's language. This has all the eerie import of Matish III.

This ruling has petition written all over it. In the short term, we doubt this means that anyone within the Ninth Circuit will have to worry about sharing their email passwords with their friends. But the faintest hint of precedent is enough to send a chill down our spines.

Clear Shenanigans Leads to Slippery Slope?

The facts of Nosal I/II have been outlined simply by Orin Kerr of Volokh Conspiracy, so we won't really go into great detail here. The relevant gist is that a former employee (Nosal) got tired of his job and wanted to create a competing company. But he wanted to bring some proprietary information with him, so he conspired with other current employees within the company to access information. Two techniques were employed: getting the current employees to do the dirty work for him, and then later asking them for their login and access information so he and other conspirators could access the company database themselves.

The issue of the case hung on the following issue: Who "authorizes" access as envisioned under the Computer Fraud and Abuse Act? Was it Nosal's employer who owned the database? Or was it the employee who foolishly said, "Sure, go ahead"? The dissent thought that the employees' consent cleaned Nosal's actions of fraud under the CFAA. Too bad the majority thought otherwise.

Brekka Revisited

The Ninth Circuit majority relied on a previous case it heard called Brekka in which it ruled that an account cannot be lawfully accessed again after the license to use it is revoked. It's Brekka all over again, the circuit said.

Obviously, the circuit anticipated what a lot of practitioners were thinking, so it got right to the point. Allowing after-access by a former employee would create havoc:

[A]n employee could willy nilly give out passwords to anyone outside the company -- former employees whose access had been revoked, competitors, industrious hackers, or bank robbers who find it less risky and more convenient to access accounts via the Internet rather than through armed robbery.

Intuitively, consumers understand this. This would be tantamount to having a key to an old building one has moved out of. There is a reason former tenants are required to return keys as a condition of their return-deposit.

But the opinion's less than clincher language still leaves open the disconcerting possibility that your use of your cousin's Netflix login information could be criminal under the CFAA. The Ninth Circuit addressed this, but didn't appear too worried. In its view, letting your roommate use your Prime account bore "little resemblance" to the admittedly more dastardly ex-employee scenario.

Related Resources:

Tuesday, August 3, 2021

Attorney Joseph George Costello Resigns After Practicing Law For 60 Years


Brooklyn Lawyer Who Practiced Nearly 62 Years Disbarred After Appeals Panel Accepts Resignation; Lawyer Said He Couldn't Defend Against Escrow Account Allegations

Law.com., Jason Grant, August 2, 2021

An Appellate Division, Second Department panel wrote that the professional misconduct investigation arose from a client’s complaint, and that allegations included veteran lawyer Joseph George Costello’s alleged failure to safeguard funds as a fiduciary held on behalf of an estate, including an approximate shortfall of at least $170,000 that happened in the account.

A state appeals court has accepted the resignation of a Brooklyn-based attorney who practiced law for more than 60 years, after he admitted that he can’t defend against allegations he failed to safeguard funds held in an escrow account on behalf of an estate and that he disbursed at least one check from the account after he’d already been suspended for a year because of professional misconduct in the matter.

The lawyer, Joseph George Costello, was admitted to the New York state bar in 1959 and, according to an earlier 2019 disciplinary decision, practiced law in more recent years with his son at the Brooklyn firm of Costello & Costello. Legal website listings say his practice included business law, real estate law, landlord and tenant law and surrogate’s court practice, among other specialties. One site, Lawyers.com, listed him as also having worked in private practice serving Howell, New Jersey.

In an opinion from a per curiam panel of the Appellate Division, Second Department that accepted the resignation of the elder Costello, and disbarred him immediately, the justices wrote that Costello had acknowledged he was under investigation by the state attorney grievance committee for the Second, Eleventh, and Thirteenth Judicial Districts, covering Brooklyn, Queens and Staten Island.

The panel further explained that the investigation arose from a client’s complaint, and that there were allegations of attorney neglect and Costello’s failure to safeguard funds he’d held on behalf of an estate, including an approximate shortfall of at least $170,000 that happened in the account.

Moreover, the allegations said Costello disbursed at least one check from the account in his capacity as an attorney after he’d been suspended from practicing law for one year by the Second Department in 2019 for what appear to have been related allegations, according to the justices disbarment opinion issued July 28 and the 2019 suspension opinion.

In a June 2019 opinion from a Second Department, the Costello & Costello firm was retained in 2011 to represent a party in a real estate closing. After the closing, wrote the panel, $680,388 was deposited into the escrow account on behalf of that client. The Costello firm  later issued the client three escrow checks for $250,000, $200,000 and $1,638.70.  Two of the checks cleared when presented to a bank by the client, but when the $200,000 check was presented months later in June 2012 for payment, the escrow account balance was $106,878.23.

The elder Costello explained in testimony, wrote the 2019 Second Department panel, that after the firm issued the $200,000 check, the firm was under the mistaken belief the check had cleared, and that he had used funds in the account to pay the firm’s bills. Because of overdraft protection, the $200,000 check did clear but the 2019 Second Department panel of justices, in deciding to suspend Costello’s law license for one year, wrote in part that “although the respondent [elder Costello] restored those funds to the escrow account once his son alerted the respondent to the shortage, notably, he has not explained, nor made any serious effort to determine, the cause for the substantial shortage.”

In the disbarment opinion issued last week, that Second Department panel wrote that Costello has provided proof that he paid back a $170,000 shortfall in the estate account. Still, the panel also said Costello acknowledges that his resignation is “submitted subject to any future application by the Grievance Committee for an order directing he make restitution or reimburse the Lawyers’ Fund for Client Protection.”

Mark Longo, a partner at Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone in Brooklyn was listed in the July 28 opinion as representing Costello in the professional discipline matter. Longo didn’t return a call Monday seeking comment.

An effort to reach the elder Costello for comment was not successful.

Friday, July 9, 2021

Former Fox News Anchor Ed Henry Files Defamation Lawsuit Against Network


Ed Henry

Former Fox News Anchor Ed Henry Files Defamation Lawsuit Against Network
ADWEEK, June 30, 2021

Former Fox News anchor and correspondent Ed Henry was fired by the network on July 1, 2020 for “willful sexual misconduct in the workplace.”

Nearly one year to the day later, the former TV newser, who has vehemently denied the allegations of sexual misconduct. has filed a defamation lawsuit against Fox News chief executive officer Suzanne Scott and is making a number of explosive claims in the process.

Through a statement from his attorney Ty Clevenger, Henry claims that Scott “publicly smeared” him, and that he was fired “in order to divert attention from Scott’s long history of covering up actual misconduct.”

Henry expounds on that statement, accusing Scott of “covering up other incidents involving Fox News senior executives and program hosts, including an extramarital affair between Fox News President Jay Wallace and a subordinate.”

The former Fox Newser goes on to claim that the subordinate ended up getting a “plum assignment” at the company.

Henry states in his lawsuit  that Fox Business Network president (formerly Fox News morning programming chief) Lauren Petterson told him that Scott was tired of “carrying water” for then-President Trump during the 2020 campaign. His lawsuit also alleges that Scott instructed producers at the network to rein in coverage of the national anthem controversy that Trump had been pushing about NFL players kneeling during the anthem. His lawsuit further alleges that Scott shut down the story because Fox Sports was trying to secure a multi-billion-dollar contract with the NFL.

“As we stated one year ago, Fox News Media conducted a thorough independent investigation into Ed Henry immediately after we were made aware of a serious misconduct claim against him by a former employee,” said a Fox News spokesperson via statement. “Based on the results of those findings, we promptly terminated Mr. Henry’s employment for willful sexual misconduct and stand by the decision entirely. We are fully prepared to vigorously defend against these baseless allegations as Mr. Henry further embarrasses himself in a lawsuit rife with inaccuracies after driving his personal life into the ground with countless extramarital affairs in a desperate attempt for relevance and redemption.”

The network spokesperson also addressed the claims being made about Scott: “Under the leadership of CEO Suzanne Scott, Fox News Media has worked tirelessly to transform the company culture, implementing annual, mandatory in-person harassment prevention training, creating an entirely new reporting structure, more than tripling the size of our HR footprint, conducting quarterly company meetings and mentoring events, as well as executing a zero tolerance policy regarding workplace misconduct for which we engage outside independent firms to handle investigations. No other company has enacted such a comprehensive and continuous overhaul, which notably, earned Fox News Media recognition as a ‘Great Place to Work’ for the first time in its existence, a testament to the many cultural changes that Ms. Scott has instituted during her incredibly successful tenure as CEO.”

The network put out a third statement, this one concerning the claims Henry has made about Wallace.

“Fox conducted a full and independent investigation of the claims against Jay Wallace — he was cleared of any wrongdoing and the allegations are false,” said the spokesperson.

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


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.

*                *                *

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.

Financial Fraud
Press Release Number: