Clymer & Musser, Brown & Conrad Civil Law

Elena Kagan and the Religion Clauses

2010-06-25T05:03:00.001-07:00

Elena Kagan and the Religion Clauses
The National Law Journal

Many assume that if Elena Kagan is confirmed as a Supreme Court justice, her votes on the Court will come out pretty much the same way as those of her predecessor, John Paul Stevens. But two separate reports issued Wednesday suggest that Kagan may part company with Stevens in cases involving religious liberty. The reports highlight her views on the Establishment Clause and the Free Exercise Clause of the First Amendment, suggesting she may chart a different course.

Discussion on Standards for Bringing a Lawsuit

2010-06-21T03:28:00.000-07:00

Assessing the Changing World of Civil Procedure Post-'Twombly,' 'Iqbal'
The National Law Journal

The impact of two landmark Supreme Court rulings that changed the standards that civil lawsuits must meet to proceed is still unclear, legal professionals said Friday during a discussion at the American Constitution Society's annual conference. One plaintiffs lawyer said the resulting plausibility requirement has forced her to reject some cases that she might have taken on prior to the high court's rulings in Twombly and Iqbal because "often the truth is implausible on its face."

Supreme Court Denies Case on Legal Work Papers

2010-05-24T13:19:00.001-07:00

Supreme Court Denies Case on Legal Work Papers
The National Law Journal

The Supreme Court this morning denied review in Textron v. United States, a closely watched case testing the privacy of legal work papers. The Court's denial of review leaves in place a lower court decision that challengers said would threaten the relationship and candor between lawyers and clients. A range of legal groups including the American Bar Association, the Association of Corporate Counsel, the Reed Smith law firm and the Defense Resources Institute urged the high court to review the issue.

3rd Circuit Spikes Football Fans' Signal Videotaping Suit

2010-05-20T05:31:00.000-07:00

3rd Circuit Spikes Football Fans' Signal Videotaping Suit
Shannon P. Duffy

The Legal Intelligencer

May 20, 2010

A ticket to a football game doesn't come with any promise that the contest will be an honest one, a federal appeals court ruled on Wednesday, rejecting an appeal by fans who said they were defrauded in the recent New England Patriots "Spygate" scandal.

In Mayer v. Belichick, the 3rd U.S. Circuit Court of Appeals held that a lower court correctly dismissed the suit on the grounds that fans cannot claim any "cognizable injury" that stems from paying to watch a game that is later deemed to have an element of cheating.

"Ticket-holders and other fans may have legitimate issues with the manner in which they are treated. However, the one thing they cannot do is bring a legal action in a court of law," Senior U.S. Circuit Judge Robert E. Cowen wrote.

"No one in the past has ever brought a legal action quite like this one," Cowen wrote in an opinion joined by 3rd Circuit Judge D. Michael Fisher and visiting U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania.

At issue in the appeal, Cowen said, was "the alleged existence of a very specific but very different and unusual right: namely, the right of a ticketholder to see an 'honest' game played in compliance with the fundamental rules of the NFL itself."

Although the case was unique, Cowen found that the courts have consistently rejected comparable claims, such as the ruling that said boxing fans weren't cheated when Mike Tyson was disqualified for biting a chunk out of Evander Holyfield's ear. As the New York Appellate Division explained in that case: "that there was nothing in any contract promising a fight that did not end in a disqualification."

Cowen and Fisher had aggressively questioned lawyers for the NFL when the case was argued in April, suggesting to some court watchers that the 3rd Circuit might be poised to revive the suit.

But Wednesday's ruling slammed the door shut on any such claims.

"A ruling in favor of [the ticket-holders] could lead to other disappointed fans filing lawsuits because of 'a blown call' that apparently caused their team to lose or any number of allegedly improper acts committed by teams, coaches, players, referees and umpires, and others," Cowen wrote.

"This court refuses to countenance a course of action that would only further burden already limited judicial resources and force professional sports organizations and related individuals to expend money, time, and resources to defend against such litigation," Cowen wrote.

In the suit, a proposed class action, lead plaintiff Carl Mayer, a New York Jets fan, claimed that he and other ticket holders were cheated out of what they had paid for -- an honest game, played under NFL rules -- when the New England Patriots surreptitiously filmed the signals of their opponents.

Plaintiffs lawyer Bruce I. Afran of Princeton, N.J., argued that U.S. District Judge Garrett Brown of the District of New Jersey erred in tossing the suit out on the grounds that the Patriots' violation of the rule didn't harm the fans.

In his appellate brief, Afran said the case was about "a massive, systematic organizational scheme to steal opponents' signals and cheat ticket-holders of a contest played according to NFL rules."

The brief said that "such pervasive cheating has consistently given the Patriots an unfair, illegal advantage over its opponents and systematically deprived plaintiffs of the right to witness football matches played fairly as advertised and according to NFL rules, which is what plaintiffs contracted for."

The NFL hit Patriots coach Bill Belichick with a $500,000 fine and the team lost a first-round draft choice.

Now the 3rd Circuit has ruled that the NFL should be left to enforce its rules without any interference from the courts.

"It is not the role of judges and juries to be second-guessing the decision taken by a professional sports league purportedly enforcing its own rules. In fact, we generally lack the knowledge, experience, and tools in which to engage in such an inquiry," Cowen wrote.

The NFL was represented in the appeal by attorney Shepard Goldfein of Skadden Arps Slate Meagher & Flom. The Patriots and Belichick were represented by Daniel L. Goldberg of Bingham McCutchen in Boston.

Mayer and his lawyer, Bruce Afran, both worked for consumer advocate Ralph Nader earlier in their careers and consider "Spygate" a consumer-fraud case.

"It's a clear issue of consumer fraud. The mere fact that this is in the context of football doesn't mean that the people who pay to see the game have no rights," Afran told the Associated Press on Wednesday.

Many NFL ticket holders struggle to pay the high ticket price and deserve an honest game in return, he said.

The court's ruling, Afran said in the AP interview, "seems to suggest that no matter how much ticket holders pay, they can be defrauded by NFL teams. And it puts the NFL on the same level as professional wrestling."

NFL spokesman Greg Aiello declined to comment except to say the ruling speaks for itself.

Podcasts by the Federal Court on Confirmation

2010-05-17T05:07:00.000-07:00

Federal Courts’ Introduce Podcasts in a Pinch and Resources for Supreme Court Confirmations

Podcasts in a Pinch are video and audio narrated by judges and students. They are geared for high school teachers, students, and interested adults. In addition to the podcasts, a featured resource is an explanation and interactive exercises about the process of confirming nominees for the Supreme Court of the United States and other positions on the federal bench.

The podcasts, and classroom-ready information about the confirmation of Supreme Court nominees, are featured in the Educational Outreach Resources section of the federal courts' newly redesigned website at www.uscourts.gov. Podcasts in a Pinch stimulate involvement, information sharing, and inspiration among high school teachers and their students. For teachers, the podcasts can be a quick infusion of new media to stimulate classroom conversations.

She signed away her farm - CMBC Attorney helps

2010-05-14T12:03:00.000-07:00

May 09, 2010 00:21 EST

Washington Boro

By GIL SMART, Associate Editor

Beneath an expansive blue sky, Georgia Fry gave a quick tour of the Washington Boro farm that used to be hers.

he signed away her farm

Exposed stonework at the rear of the fading brick farmhouse reveals its age. "Part of the house was built 200 years ago," said Fry. "I have pictures of it before my parents bought the farm 60 years ago."

At the top of a hill is an empty hog barn where she once kept as many as 250 sows. And to the north, a tractor rolls over loose, dark-brown earth. A tenant is farming this field, paying money not to Fry but to the neighbor who now owns the land.

Fry lawsuit document

Fry said she never meant to give up the family farm. But in in 2005, facing mounting debts, she considered selling the land.

It was then, according to a lawsuit filed late last month, that a neighbor stepped forward and said he wanted to help.

The lawsuit, filed April 30 in the Lancaster County Court of Common Pleas, alleges that Fry's neighbor, Marvin D. Slaymaker, of Washington Boro, offered to buy the farm and lease it back to her. She would have the right to repurchase the farm for a period of five years.

Fry, trusting in her neighbor, agreed. But two years later, she fell behind on the monthly lease payment. Slaymaker then offered to "do her a favor," according to the complaint: He would drop the monthly payment. Fry signed a new agreement — one that, unbeknownst to her, according to the lawsuit, stripped her of the right to repurchase the farm.

In addition, according to the complaint, Slaymaker then filed legal paperwork declaring an interest in Fry's "equipment, fixtures, accounts, inventory, instruments, documents" and more.

"Not only does [Slaymaker] come away with the farm," said Len Brown, of Clymer Musser Brown & Conrad, the attorney who is representing Fry, "he comes away with everything she owns other than the contents of the house."

Slaymaker and his attorney declined comment, both saying they had not seen the lawsuit.

Meanwhile, as new tenants plow the fields once belonging to her, Georgia Fry hunkers down in the old brick farmhouse, at the end of her rope. With little money and no income, her phone was recently turned off; there was virtually no money for heating oil this past winter.

"I didn't want to go this route, I've never taken anybody to court or anything like that," said Fry. "But I'm almost 60 years old, and this farm was my retirement. I worked all my life, I don't have a pension.

"I don't have anything."

Standing offer
Once, Georgia Fry could have had a nice, stable retirement.

Neighbors say she had had a long-standing offer from a nearby farmer who was prepared to pay as much as $1.3 million for her hilly, 87-acre parcel off Prospect Road.

"He'd been trying to buy that farm for 10 years," said another neighbor who asked that his name not be used. "She should have cashed out and given [farming] up. But she wanted to keep farming. She's stubborn."

In addition to the hogs, Fry grew tobacco and rented out some of the land to other farmers.

Fry grew up at the farm and, with the exception of a four-year spell before she married in 1971, she lived there all her life. She and then-husband Larry began working the land the year they married. They divorced in 1995; he died in a 2005 car crash.

Three of their four children live out of state; her youngest son had thought he might one day want to work on the farm. "But when all this began to happen," Fry said, "he went and got another job."

It all "began to happen" around 2003, when, according to the lawsuit, the price of feed for her hogs rose, and the value of the hogs and her tobacco crops fell precipitously.

She declared bankruptcy, but voluntarily dismissed her action in January 2005 and continued to make payments to her creditors. But she kept falling further and further behind; her financial troubles "became known in her close-knit community."

Sometime in early January 2005, Slaymaker, a member of Blue Rock Mennonite Church, approached Fry and told her, "I don't think you should sell the farm. I want to help you save it," according to the complaint.

"Because of Slaymaker's association with the Mennonite church, Mrs. Fry trusted" Slaymaker, the complaint continues.

"Slaymaker proposed that he purchase Mrs. Fry's farm for $600,000 and that he would lease back the farm to her and she would have the right to purchase the farm back from him for five years," according to the complaint. Fry signed the sales agreement Jan. 15, 2005.

But after paying more than $159,000 in settlement charges, paying off a $164,000 mortgage with Bank of Lancaster County and another $100,000 mortgage with the U.S. Department of Agriculture — along with other fees — Fry wound up with just over $151,000 from the sale.

The agreement, according to the complaint, deeded Fry's farm to Slaymaker. Fry paid Slaymaker's attorney fees and title insurance, a total of $6,383.75; she paid transfer fees of $12,000, and all taxes and a "tobacco loan" of more than $9,500.

She would have five years to repurchase the property, at $750,000; and she was to pay rent of more than $5,100 per month.

"She was desperate," attorney Brown said. "She wanted to keep this farm she was shedding so much sweat on."

Fry said: "I was going to turn things around, I wanted to hold onto the farm and [Slaymaker] kept saying he wanted to help me save it."

On Friday, a reporter stopped at Slaymaker's business, Slaymaker Electric Motor & Supply Co., and was told by an employee that Slaymaker was referring all comment to his attorney, Michael Grab, who works out of the Columbia office of the Lancaster firm of Nikolaus & Hohenadel.

Grab, reached Friday afternoon, said he had not seen the complaint and couldn't comment on it.

"This is a very straightforward landlord-tenant matter," he said.

When her neighbors saw the deed transfer listed in the newspaper in August 2005, "they were incredulous," according to the complaint — and asked Fry what was going on. She said she could still buy the farm back if she wanted. "Still thinking that defendants had taken advantage of Mrs. Fry," Brown writes in the complaint, "neighbors approached Slaymaker to ask why he did what he did. Slaymaker informed the neighbors that he was just trying to help and did not want Mrs. Fry's farm."

And for nearly two years, Fry continued to work the farm as if it were still hers. But she struggled to make the $5,100 monthly payment, and stopped buying heating oil, did not go anywhere, had no hot water because her furnace heated the water and was unable to purchase basic life necessities," according to the complaint.

Said Fry, "when the temperature got down to 8 or 10 degrees I'd put a little [oil] in just to get the temperature up." Mostly, she relied on a space heater, and bundled up.

Still she fell behind.

At 8 a.m. on May 31, 2007, according to the complaint, Slaymaker showed up at Fry's farm as she was caring for her hogs. He wanted to talk, Brown wrote in the complaint; "he wanted to do her a favor and reduce the monthly payment to $4,500 per month." Fry, desperate, trusted Slaymaker because "he was a member of a plain Mennonite church, and held himself out as a religious man," according to the complaint.

"Slaymaker than asked Mrs. Fry if she would go with him to his attorney immediately to sign paperwork lowering her monthly rent," the complaint asserts. Fry cleaned up and went.

"Upon arriving at Attorney Grab's office, Slaymaker and Mrs. Fry were seen immediately," the complaint says. Fry was handed a nine-page, single-spaced lease agreement; the first page "contained the 'condensed terms' of the agreement and reflected what Slaymaker had told Mrs. Fry: her rent was decreased to 'only' $4,500 per month," the complaint asserts.

Fry was asked to sign the agreement and did; the meeting lasted less than 10 minutes.

But, the complaint asserts, "Neither Attorney Grab nor Slaymaker informed Mrs. Fry that hidden in the lease was a provision that she was giving up the right to purchase her farm provided to her in the 2005 agreement."

The lease, a copy of which was attached to the complaint, states on page 7: "The option to purchase previously granted Tenant, pursuant to a Lease Agreement between Landlord and Tenant dated on or about July, 2005, is hereby terminated."

Fry went back home and worked the farm as usual. But agricultural prices didn't get any better, and again Fry fell behind. "With the counsel of her family, she finally concluded that she would not be able to save the farm despite her years of hard work," Brown wrote in the complaint.

In early April 2009 she spoke with a neighbor who knew of an interested buyer — who agreed to pay Fry $16,000 per acre, for a total sale price of $1.392 million.

She contacted Slaymaker and told him she'd be paying him off and selling the farm.

Slaymaker, according to the complaint, "informed Mrs. Fry that she did not own the farm but he owned the farm."

Astonished, Fry asked how that could be. Slaymaker, according to the complaint, told her she'd given up her rights to the farm in 2007 — when her monthly payment had been modified.

Fry's neighbors rallied around her. "That contract set her up to fail," said the neighbor who asked not to be identified.

One neighbor, according to the complaint, went with Fry to meet with attorney Grab, according to the complaint, and asked him to explain how Slaymaker came to be the owner of the farm.

"At this meeting," Brown wrote in the complaint, "Slaymaker offered Mrs. Fry $15,000 to just leave the property." She refused.

Meanwhile, wrote Brown in the complaint, Slaymaker had already taken out one "open-ended mortgage" — which allows a mortgagor to re-borrow against principal already paid — for $600,000 in 2005. He would take out two more, totaling $350,000, in June and November 2009.

Meanwhile, Fry continued to live in the house. But she got rid of her hogs, and no longer planted tobacco. On April 20, 2010, Slaymaker "notified Mrs. Fry that she was in default of her lease and ordered her off her property in five days."

Attorney Brown, noting that landlords are required to give 30 days notice, said: "She's in the house, she's not leaving until a sheriff comes and moves her out."

The complaint lists four counts. The first is declaratory judgment: Fry wants the court to declare the 2007 agreement null and void.

The second count alleges fraud and misrepresentation; the third, conversion; and the fourth, unjust enrichment. All ask that the court "[t]emporarily and permanently enjoin defendants from receiving any additional loans on Mrs. Fry's farm."

All four counts also seek judgment "in favor of plaintiff in an amount in excess of the arbitration limits of this court."

That limit is $50,000, said Brown.

Court costs, attorney fees and punitive damages are also sought. The complaint asks for a trial by jury.

Brown said that, ideally, Fry would like the farm back, but "she's also come to conclusion she's not going to be able to run it, and [Slaymaker] has leveraged it so much."

Georgia Fry managed a wan smile in the Friday morning sunshine as she showed a reporter around what used to be her farm.

"I've been very sad and stressed out," she said. "I've been trying to work with [Slaymaker], and my neighbors have been going to him. I keep thinking, 'He's gonna come to his senses. It's not happening.'

"Now — I've got to do something."

Gil Smart is associate editor of the Sunday News. E-mail him at gsmart@lnpnews.com, or phone 291-8817.

2 Attorneys Charged in $3 Million Real Estate Fraud

2010-05-14T10:09:00.000-07:00

2 Attorneys Charged in $3 Million Real Estate Fraud

Mark Fass

New York Law Journal

May 14, 2010

Two Queens, N.Y., lawyers have been charged with participating in a $3 million real-estate fraud ring. Trevor Rupnarain and Shawn Chand, both Richmond Hill, N.Y., solo practitioners, were among 17 defendants charged by the Queens District Attorney's Office with defrauding lenders and homeowners in a variety of fraudulent transactions involving 26 refinanced residential properties.

In some cases, the conspiracy's ringleaders allegedly convinced distressed homeowners in Queens, Brooklyn and the Bronx to put the title to their homes in the names of straw buyers for one year, during which the defendants promised to improve their credit ratings and obtain more favorable mortgages before returning the title. Instead, the group's leaders held the funds in escrow in order to siphon the proceeds.

Rupnarain and Chand allegedly represented many of the lenders, buyers and sellers at closings, hiding the fraud from the clients and distributing the loan proceeds to themselves and various codefendants.

Both men were charged with grand larceny, identity theft and falsifying business records, among other crimes, and face 15 years in prison, according to a spokesman for the district attorney's office. Twelve of the 17 defendants, including Rupnarain and Chand, have been arrested and are awaiting arraignment.