Disaster

Describes motivation process for creativity with emphasis on intrinsic motivation by Corey K Katir

Listen as Clio co-founder Jack Newton talks with special guest, Attorney Paul “Woody” Scott, founder of The Scott Law Firm, based in Louisiana. Jack and Woody talk about Dropbox and its integration with Clio, disaster recovery and how digital and the cloud can save on overhead in your firm.

2011 has been a year filled with devastating disasters from a record number of deadly tornadoes in the U.S., including Alabama, Missouri, and Massachusetts to the earthquake and tsunami that ravaged Fukushima, Japan. Hear attorneys and co-hosts Bob Ambrogi and J. Craig Williams on Lawyer2Lawyer talk with Attorney Randy J. Aliment, Chair-Elect of the American Bar Association’s Tort Trial & Insurance Practice Section (TIPS) and Attorney Dennis D. Palmer from the law firm Polsinelli Shughart out of Kansas City, Missouri, about the legal issues that victims can face, disaster preparedness and how lawyers deploy to help those affected.

In light of the recent tornado damage sustained across the country, this monthas episode of the Legal ToolKit will cover aDisaster Recovery and Disaster Planninga. Host Jared Correia, Law Practice Management Advisor with Mass. LOMAP, welcomes Attorney Nerino J. Petro, Jr., the Practice Management Advisor for the Law Office Management Assistance program of the State Bar of Wisconsin, to discuss ways in which law firms affected by disaster can get back up and running, and how those unaffected can prepare for future potential disasters. Nerino talks about resources available to attorneys who have suffered practice interruptions due to natural disasters and the importance of having a disaster recovery plan and backup attorney(s) in place.

As the world anxiously watches the nuclear crisis unfold in Japan, there are growing concerns about the safety of nuclear power plants right here in the United States. Attorneys and co-hosts Bob Ambrogi and J. Craig Williams welcome Attorney Martin G. Malsch, a partner with Egan, Fitzpatrick, Malsch & Lawrence, PLLC and Geoffrey H. Fettus, a senior project attorney for the Natural Resources Defense Council (NRDC’s) nuclear program, to discuss the aftermath of the nuclear crisis in Japan and the safety of nuclear plants here in the States. Marty and Geoff question if American plants are safe, who would be held legally responsible in case of a nuclear accident in America and how this recent disaster has affected the environment. Later in the program, Bob and Craig visit the great debate over the iPhone v. Android.

Beasley Allen recently filed a lawsuit against BP and others on behalf of several cities and municipalities for losses in revenue. On this edition of Ringler Radio, host Larry Cohen welcomes colleague, Tony Robinson and guest, Attorney Jere Beasley from Beasley, Allen, Crow, Methvin, Portis & Miles, P.C, to take a look at the recent lawsuit and look ahead to compensation for those affected by this disastrous spill. Larry, Tony and Jere look at the spillas impact on the economy and environment, the Oil Protection Act, how this disaster could have been prevented and the fight to get compensation for the people of the Gulf.

Millions of gallons of oil have spewed into the Gulf since an oil rig, operated by British-Petroleum (BP), exploded and later sank off the Louisiana coast on April 20, 2010. On this edition of Ringler Radio, host Larry Cohen welcomes Attorney Daniel E. Becnel, Jr., to discuss the litigation from the oil spill in the Gulf of Mexico. They look at the kind of lawsuits that could be filed and the impact this oil spill could have on the fishing industry, tourism and ultimately the environment.

Seeing the people of Haiti suffer from the effects of a devastating earthquake is heart-wrenching. On Lawyer2Lawyer, co-host Attorney J. Craig Williams welcomes Attorney Brian Concannon Jr., Director of the Institute for Justice & Democracy in Haiti (IJDH) and Ben Hemingway, Deputy Director of Operations for International Medical Corps, to discuss the enormous response by the medical profession and what lawyers are doing or can do to help. At the top of the show, Craig chats with Dan Rea, host of the radio talk show, NightSide on WBZ 1030 radio in Boston, about the historic election in Massachusetts.

Attorneys can be more than lawyers, when the next disaster strikes. In part two of this emergency management series on Legal TIPS, host Barbara J. Gislason interviews two visionary lawyers, with unique perspectives. First, lawyer Richard Friedman, President of the National Strategy Forum, discusses the dangers he sees on the horizon, and how lawyers can prepare. And Melissa Rubin, Vice President of Field and Emergency Services of the Humane Society of the United States shares a compelling story about pets in a disaster, and offers legal and practical advice.

In part one of this two part emergency management series on Legal TIPS, host, Attorney Barbara J. Gislason welcomes Attorney Leo Jordan, Chair of the ABA TIPS Task Force on Disaster Insurance Coverage to deconstruct the complexities of knotty wind and rain insurance. Gislason and Jordan also discuss the task forceas concerns and recommendations to improve the way insurance coverage is offered in an emergency, which have been adopted as policy by the American Bar Association.

On December 22, 2008, there was a major coal ash spill at the Tennessee Valley Authority’s Kingston Fossil Plant, which poured 1.1 billion gallons of toxic material over 300 acres. Join Law.com blogger and co-host, J. Craig Williams as he turns to the experts, Attorney Robin Greenwald, head of Weitz & Luxenberg’s Environmental Toxic Tort practice and Attorney Lisa Evans from Earthjustice, as they discuss the aftermath of this disaster. They will take a look at the TVA disaster, environmental litigation and get a first-hand account of the damage and the effect on the surrounding residents.

2011 has been a year filled with devastating disasters from a record number of deadly tornadoes in the U.S., including Alabama, Missouri, and Massachusetts to the earthquake and tsunami that ravaged Fukushima, Japan. Hear attorneys and co-hosts Bob Ambrogi and J. Craig Williams on Lawyer2Lawyer talk with Attorney Randy J. Aliment, Chair-Elect of the American Bar Association’s Tort Trial & Insurance Practice Section (TIPS) and Attorney Dennis D. Palmer from the law firm Polsinelli Shughart out of Kansas City, Missouri, about the legal issues that victims can face, disaster preparedness and how lawyers deploy to help those affected.

As the world anxiously watches the nuclear crisis unfold in Japan, there are growing concerns about the safety of nuclear power plants right here in the United States. Attorneys and co-hosts Bob Ambrogi and J. Craig Williams welcome Attorney Martin G. Malsch, a partner with Egan, Fitzpatrick, Malsch & Lawrence, PLLC and Geoffrey H. Fettus, a senior project attorney for the Natural Resources Defense Council (NRDC’s) nuclear program, to discuss the aftermath of the nuclear crisis in Japan and the safety of nuclear plants here in the States. Marty and Geoff question if American plants are safe, who would be held legally responsible in case of a nuclear accident in America and how this recent disaster has affected the environment. Later in the program, Bob and Craig visit the great debate over the iPhone v. Android.

Seeing the people of Haiti suffer from the effects of a devastating earthquake is heart-wrenching. On Lawyer2Lawyer, co-host Attorney J. Craig Williams welcomes Attorney Brian Concannon Jr., Director of the Institute for Justice & Democracy in Haiti (IJDH) and Ben Hemingway, Deputy Director of Operations for International Medical Corps, to discuss the enormous response by the medical profession and what lawyers are doing or can do to help. At the top of the show, Craig chats with Dan Rea, host of the radio talk show, NightSide on WBZ 1030 radio in Boston, about the historic election in Massachusetts.

On December 22, 2008, there was a major coal ash spill at the Tennessee Valley Authority’s Kingston Fossil Plant, which poured 1.1 billion gallons of toxic material over 300 acres. Join Law.com blogger and co-host, J. Craig Williams as he turns to the experts, Attorney Robin Greenwald, head of Weitz & Luxenberg’s Environmental Toxic Tort practice and Attorney Lisa Evans from Earthjustice, as they discuss the aftermath of this disaster. They will take a look at the TVA disaster, environmental litigation and get a first-hand account of the damage and the effect on the surrounding residents.

The California wildfires ripped through parts of Southern California last week destroying anything in their path and leaving many homeless. Join Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi, as they get first-hand accounts from three San Diego Lawyers affected by the fires: Attorney Mark C. Zebrowski and Katherine L. Parker both from Morrison & Foerster LLP and Attorney Dan Hull, from Hull McGuire PC. On Lawyer2Lawyer, we will take a look at Morrison & Foeresteras, aHelping Handbooka, which provides legal information for victims of the fires, discuss how law firms are coping with this disaster, the legal issues surrounding the fires, and take a look ahead at what is next for firms affected by the fires and how they are dealing with the aftermath of the fires legally.

A wave of litigation followed in the wake of the April 2010 Deepwater Horizon oil spill. Among this litigation were several shareholder derivative suits filed against certain directors and officers of BP and of its U.S. subsidiary. At the time these cases first arose, I asked whether or not these suits involving (and ultimately for the benefit of) an English corporation and even asserting claims under English law would be permitted to go forward in U.S. courts.  

A September 15, 2011 ruling from Judge Keith Ellison of the Southern District of Texas determined that, notwithstanding the fact that the Deepwater Horizon disaster took place in the U.S. and caused extensive environmental damage here, “the English High Court is a far more appropriate forum for this litigation,” and accordingly he granted the defendants’ motion to dismiss the cases.  Judge Ellison’s September 15 decision can be found here.

As discussed here, plaintiffs filed the first of several derivative lawsuits in connection with the Deepwater Horizon oil spill in May 2010. Though many of the lawsuits were first filed in the Eastern District of Louisiana, the cases were ultimately consolidated through the multidistrict litigation process in the Southern District of Texas. However, while the lawsuits were filed in U.S. courts, they asserted claims under the English Companies Act of 2006 (about which refer here). The defendants moved to dismiss the consolidated derivative litigation in the grounds of forum non conveniens.

In his September 15 ruling, Judge Ellison granted the defendants’ motion to dismiss. He summarized his ruling by saying that “this case is a shareholder derivative action brought under a recently enacted U.K. statute on behalf of an English Company against numerous English defendants and other foreign nationals.” The Court, he said, is “persuaded that the Complaint should be dismissed under the doctrine of foreign non conveniens, as the English High Court is the more appropriate forum for this case.”

Judge Ellison found that considerations of public interest “most strongly favor England as the appropriate forum in which to proceed with this case.” He noted that the focus would not be the events in the Gulf that led up to the oil spill, but rather the actions of the company’s board, which took place in England. He commented that “this lawsuit is not intended to redress the devastating impact of the Deepwater Horizon disaster in the Unites States. Instead the lawsuit is intended to compensate BP for the financial and reputational harm the company suffered as a result of its high level management’s alleged disregard for the safety of its operations.”

Judge Ellison noted that “the primary concern of this derivative litigation is the internal affairs of an English corporation, and the suit seeks to recover damages for the benefit of BP only.” He concluded that England “has a far greater interest in the resolution of this dispute.”

Judge Ellison was particularly concerned that were the case to remain in a U.S. court, the court would have to interpret and apply the recently enacted Companies Act. If the case were to go forward in a U.S. court, “the Court would be faced with the formidable exercise of interpreting and applying a still nascent and evolving body of law.”

Judge Ellison did condition his dismissal on the defendants proferring adequate proof that they are amenable to service of process in England or submitting a stipulation that the will submit to the jurisdiction of the appropriate English court.

Although the claimants clearly would have preferred to pursue their mismanagement claims against the BP officials in the U.S., where the disastrous oil spill occurred, Judge Ellison found that the allegations in this case involve alleged actions or inactions that took place in England. The fact is that though the shareholders chose to file their action here in preference to England, with full awareness that English courts presented an alternative forum. The decision to file here rather than there undoubtedly had something to with a perception that a court in closer proximity to the damages cause by the spill might prove to be a more receptive forum. The selection of a U.S. court over an English one also reflects the more general advantages a plaintiff enjoys here by comparison to English courts – for example, the absence in the U.S. of a “loser pays” model, among other things.

These kinds of advantages often encourage plaintiffs with claims involving non-U.S. companies to try to pursue their claims in U.S. courts. But the outcome of the dismissal motion in the BP derivative suit represents just one more example of the many ways prospective litigants are finding it increasingly more difficult to pursue corporate and securities claims against non-U.S. companies in U.S. courts. Courts interpreting the U.S. Supreme Court’s Morrison decision have significantly narrowed the circumstances in which securities claims involving foreign companies can go forward in U.S. courts. Judge Ellison’s decision in the BP case underscores the difficulties prospective claimants may fact in pursuing derivative suits involving non-U.S. companies here as well.

Alison Frankel’s September 16, 2011 Thomson Reuters News & Insight article about Judge Ellison’s decision can be found here. Victor Li’s September 16, 2011 Am Law Litigation Article about the decision can be found here.

For Whom the Statute Tolls: Under Section 13 of the ’33 Act, liability actions alleging a violation of the statue must be brought within one year of “discovery of the untrue statute or omission.” Section 13 provides further that in no event shall the action be brought more than three years after the security was first offered to the public. The one year provision represents a statute of limitation and the three year provision represents a so-called “statute of repose.”

Questions of statutes of limitation and repose might seem obscure, but they can often be critical in determining whether or not a case will go forward. A September 15, 2011 decision by Southern District of New York Judge Laura Taylor Swain in the Morgan Stanley Mortgage Pass-Through Certificates Litigation (here) presents interesting and potentially significant rulings on both the statute of limitations and statute of repose issues.

The case involves claims asserted by investors who purchased certain mortgage-backed securities issued by various Morgan Stanley related entities. The plaintiffs allege that the offering documents related to these securities misrepresented and omitted material facts regarding the underwriting standards applied by the loan originators. As detailed in Alison Frankel’s September 16, 2011 article in Thompson Reuters News & Insight (here), this lawsuit has a convoluted procedural history, in part due to the plaintiffs’ efforts to assemble a group of prospective class representatives whose claims were not time-barred. This latest dismissal motion round involved amended allegations and additional named plaintiffs. The defendants again moved to dismiss based on the statute of limitations and the statute of repose.

Judge Swain’s 40- page opinion reflects a number of interesting rulings, particularly with respect to the timeliness questions. First, she rejected the defendants’ arguments, based on information that was publicly available more than a year before the initial complaint was filed, that the claims of the Public Employees’ Retirement System of Mississippi (MissPERS) were untimely. Judge Swain said that though there was ample publicity on issues pertaining to circumstances relevant to the securities, none of the various items of publicity “addresses, even at a speculative level, the disregard of underwriting practices, neglect of appraisal standards, or consequent LTV ration misrepresentations alleged in the [amended complaint]”

Nevertheless, though she found that the early warnings were not sufficient to trigger inquiry notice, she also found that the plaintiffs had not alleged with sufficient specificity the time and circumstances of their discovery of the conduct alleged in their claims. Accordingly she allowed the plaintiffs leave to replead to establish the circumstances of their discovery in order to establish compliance with the one year statute of limitations.

Perhaps even more interesting is Judge Swain’s ruling on the question of the three-year statute of repose, and in particular her application of what is known as the American Pipe tolling doctrine. Under this doctrine, which derives from a 1974 U.S. Supreme Court opinion, the initiation of an earlier class action suit tolls the running of the statute of limitations for other purported class members who may later seek to intervene and represent the class. The application of the American Pipe tolling doctrine to the running of the statute of limitations is well established. A long standing question has been whether American Pipe tolling also applies to the statute of repose. Judge Swain held that American Pipe tolling does apply to the statue of repose, and denied defendants’ argument that the claims of certain new plaintiffs were barred by the statue of repose in the ’33 Act.

In holding that American Pipe tolling applies even to the three-year statute of repose, Judge Swain declined to follow two recent decisions by other Southern District of New York judges. She reasoned that the tolling doctrine is equitable in nature and “permits a court – after weighing the equities in the discrete case before it – to authorize plaintiffs to bring actions outside the limitations period.”

Judge Swain’s ruling about the statute of repose represents a potentially big deal. If followed by other courts, it could potentially be very significant in cases where an initial plaintiff’s purported class action is dismissed for the plaintiff’s lack of standing. Other prospective claimants who might want to come forward at that point might find their claims blocked by the statute of repose, if the initial filing did not toll the statute’s running.

This possibility is not merely theoretical, particularly with respect to the many mortgage-backed securities class action claims that have been asserted in the wake of the financial crisis. In many of these cases, the claimants have had some of their initial claims dismissed because the named plaintiff did not actually buy securities in all of the offerings in which the securities were sold. Judge Swain’s ruling, if followed, would remove one potentially significant impediment that might other wise exist for other prospective claimants who did buy securities in the other offerings and who might want to come forward and assert class claims on behalf of other investors who bought those securities.

The question is whether other courts will follow Judge Swain on these issues, or will follow the other two Southern District of New York decisions that recently went the other way and held that American Pipe tolling does not apply to the statute of repose.  In her September 16, 2011 Am Law Litigation Daily article about Judge Swain’s ruling in the Morgan Stanley case (here), Susan Beck identifies and links to the two other recent Southern District of New York rulings that Judge Swain declined to follow. She also speculates that the Second Circuit will likely weigh in on these issues, given that the two prior cases (which resulted in dismissals) are on appeal to the Second Circuit and have been consolidated for one hearing before that court.

Special thanks to a loyal reader for sending me a copy of Judge Swain’s decision in the Morgan Stanley case.

When Words Fail: Here in the blogosphere, the deadline is always right now. Because of the need for speed and the fact that I work alone (often late at night or very early in the morning), mistakes sometimes make their way into my blog posts. Because I don’t the benefit of an editor’s surveillance, I am always grateful when readers point out the errors to me, so that I at least have the opportunity to make a correction.

Massive media organizations publishing on a regular weekly basis with the benefit of a large editorial staff have fewer excuses for errors. For that reason, I am always appalled at the slips that make their way into print in some traditional print publications.

This week’s candidate for the boo-boo that someone really should have caught appears in the current issue of Time Magazine (cover date September 26, 2011). In an article entitled “After Three Years and Trillions of Dollars, Our Banks Still Don’t Work” (here, subscription required), Stephen Gandel writes, with reference to comments by analyst Meredith Whitney about the banking sector, “Eventually, Whitney says, growing litigation issues and a continued drop in housing market were bound to burst the levy.” I am pretty sure Whitney meant that eventually the “levee” was bound to burst, as a “levy” might be on a ballot or be imposed but I have never heard of one bursting. In addition, I feel pretty confident that if this were pointed out to Gandel, a “damn” would burst out as well.

In the blink of an eye, Jimmy Leewardas P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of … Continue reading →

A(c) Max Kennerly. The original for this post is Accountability After The National Championship Air Races Disaster at Litigation & Trial.

In the blink of an eye, Jimmy Leewardas P-51 Galloping Ghost went from rounding the last turn at National Championship Air Races in Reno to sharply pitching upward, rolling over, and then diving straight down into box seats full of spectators. Strange as it is to say, there are reasons to be grateful a had his airplane hit the grandstands, there would have been hundreds, not dozens, of injuries.

Flying in general and P-51s in particular have a special place around our firm; Jim Beasley, Sr., was an FAA-certified flight instructor who flew several WWII-vintage planes, including P-51s, and Jim Beasley, Jr., flies his Mustang with a P-51 acrobatic team and with the Air Force Heritage Flight team. (We litigate aviation accidents, too.)

Air shows are a big deal in America a attendance is around 17 million visitors to the 400 or so air shows each year, roughly around the same attendance as the NFL a and, apart from the causal attendees, thereas a sense of community around types of planes, types of shows, and locations. They know the history of the sport; the Ramstein disaster, for one, still lingers in the minds of many in the air show community, and the frequency of fatal and near-fatal crashes is not lost on anyone. The casualty numbers are lower, but they still look more like a major air disaster than a simple crash; Reno will likely take a similar place to Ramstein in the minds of the air show community, and may end the National Championship Air Races, at least in their current form.

As always, when a crash happens, the media attention shifts quickly to the National Transportation Safety Boardas aGo Teama investigation. Maybe itas something about the allure of governmental rapid response teams, or maybe itas the idea that, with an investigation and findings will come some sort of closure. The NTSB is a good organization with talented and dedicated personnel, and itas no stretch to say that NTSB Aviation Accident Reports and other recommendations have saved countless lives, but one thing needs to be understood about the NTSB.

Coincidentally, a few hours before the crash I conducted the deposition of the former fleet operations manager for a company involved in a fatal maritime accident. The NTSB Marine Accident Report recommended that her company areview existing safety management program and develop improved means to ensure that your company’s safety and emergency procedures are understood and adhered to by employees in safety-critical positions.a The fleet operations manager argued that the NTSBas finding that her company had at all contributed to the accident was merely apolitical.a

In one sense, sheas right: the NTSBas findings are apolitical,a in that they are made by the government for the benefit of everyone, rather than made for accountability among those involved in the crash. The NTSB reviews accidents primarily for the purpose of making recommendations for the future and secondarily for determining fault. In contrast, civil litigation exists to determine who should pay for the losses arising from an injury, and thus cases are reviewed by the judicial system primarily for determining fault.

This difference in focus isnat just a matter of word choice. Thereas an entire field of aroot cause analysisa that assesses the way in which accidents and other failures are investigated. Its lessons have been applied to aircraft safety as well, including in the federal regulations governing military aircraft safety, which direct audits towards the cause, not just the symptom, of safety deficiencies.

Thatas not to say the NTSBas process is flawed or that their conclusions are wrong (although itas always disturbing to me how the aparty systema always gives the likely culpable parties a seat at the table but never gives any voice to the victims). Itas just important to understand that they answer a different question a what can we, as a government agency, recommend to prevent this in the future? a from the question asked in a lawsuit: who, if anyone, was responsible?

Initial reports have focused on the trim tab of the Galloping Ghost. A remarkable photo just before the crash taken by Tim OaBrien, himself an air show organizer, shows the plane missing one of its left side trim tab entirely. Still images from video taken of the crash show the trim tab in the process of falling off.

It wouldnat be surprising if the flutter caused the trim tab to break off. (For those unfamiliar with flutter, Mike Danko dug up an old NASA video of trim tab flutter). Thatas a known problem with P-51s; consider this report regarding the P-51 Voodoo Chile at the Reno National Championship Air Races just a couple years ago:

a| Voodoo very abruptly pulled up; however, Hannah didn’t radio a distress call. a| Steve Hinton flew over to take a look Voodoo. “You OK Bob?” called Hinton. “Yea, this thing just popped big time,” replied Hannah. What Hannah didn’t mention is that the g-load from the quick pull-up had caused him to black out. He finally managed to reach the throttle and reduced Voodoo’s power. At that point Hannah radioed that he “(wasn’t) out of it yet,” but he wasn’t thinking clearly. Later, he declared a mayday and made a perfect landing. a| On the ground one could see what cause Voodoo’s problems during the race. The left elevator torque tube failed when the elevator trim fluttered and departed the plane. Fortunately, Bob Hannah’s skill and coolness in the cockpit saved day.

A(c) Max Kennerly. The original for this post is Accountability After The National Championship Air Races Disaster at Litigation & Trial.

This program will provide a brief overview of some of the main issues to be aware of when counseling Veterans and their families on elder Law Issues. It will include information on:

• The different laws for Guardianship when Veterans’ Benefits are involved, and the VA fiduciary process.
• Why your normal advance directives may not work with the VA.
• How to avoid creating a disaster when you plan for a client who is potentially eligible for Medicaid and VA benefit…

Federal, state and local governments face unique challenges when faced with a disaster, as do members of the judiciary. This program will include speakers who have faced these issues in the wake of Hurricane Katrina and will discuss what they learned in the process.

Throughout our history, past and recent, we have been plagued by disasters …

Federal, state and local governments face unique challenges when faced with a disaster, as do members of the judiciary. This program will include speakers who have faced these issues in the wake of Hurricane Katrina and will discuss what they learned in the process.

Throughout our history, past and recent, we have been plagued by disasters caused…

Personal Injury Lawyer Los Angeles – FREE CONSULTATION by Personal Injury Attorney Los Angeles – Legal Defenders, Los Angeles Personal Injury Lawyers – Law Offices of Burg and Brock, who have won over $100 million in verdicts and settlements for clients

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