LAW BLOG NEWSLETTER
from The Wall Street Journal Online
December 29, 2008 -- 5:58 p.m. EST
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TODAY'S POSTS
- Athletic, Maybe, But Cheerleading Not a Contact Sport, Court Rules
- Conditionally Accepted: Kill it as One L, and We'll See You Next Year . . .
- Mid-Day Law-Firm News Round-Up: Orrick Freezes; Heller Files
- Holiday Shopping & the Law: Black Friday and Wal-Mart's Blitz Sale
- Same-Sex Adoption Debate Rages on in Sunshine State
- In Texas, First Amendment Runs Up Against . . . Assault?
- 'Urgent. Code name: Equinox' -- The Story of Lehman's Bankruptcy
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Athletic, Maybe, But Cheerleading Not a Contact Sport, Court Rules
Is cheerleading a "contact sport"?
Not according to a Wisconsin appellate court, which is good news for the lawsuit brought by ninth-grade cheerleader Brittany Noffke, who reportedly fell while practicing a three-person stunt and suffered a head injury. Noffke sued Kevin Bakke, another cheerleader who allegedly failed to properly spot Noffke.
Click here for a report from the Marquette University Law School Faculty blog.
The appellate court ruled that cheerleading is not a contact sport for purposes of a Wisconsin statute, which provides that a participant in a recreational activity that includes physical contact between persons in a sport involving amateur teams is liable only for causing injury to another participant by acting recklessly or with intent to cause injury. Therefore, the statute did not bar Noffke's negligence claim against Bakke.
The court concluded, according to the Marquette blog, that, although "the risks and the athleticism involved in cheerleading are comparable to those in contact sports," cheerleading is not a contact sport because "it does not involve physical contact between opponents."
Huh. Seems reasonable enough to us. Law Blog Readers, any thoughts? (And please keep your comments respectful.)
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/athletic-maybe-but-cheerleading-not-a-contact-sport-court-rules?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Conditionally Accepted: Kill it as One L, and We?ll See You Next Year . . .
It's commonplace for One L's who've ranked highly in their class to consider transferring to a more prestigious law school after their first year. Prestige, experience, and career opportunities all play a role in the decision. But what if, based on your first-year GPA, you'd already been guaranteed a spot at, say, Northwestern.
Each year, 15 to 25 out of the 5,000 applicants that Northwestern Law School turns down receive so-called deferred conditional acceptances -- meaning that, if you achieve a certain GPA at your school of choice, there'll be a spot waiting for you. The December issue of the ABA Journal considers the issue.
Deans of lower-tier law schools argue that such recruiting is predatory, and helps top schools boost revenues while keeping up their LSAT and GPA averages, both of which are criteria in the U.S. News & World Report's annual rankings. We've reported similar practices -- such as admitting students with sub-par LSATs and GPAs into the part-time program only -- here and here.
Northwestern Dean David Van Zandt told the ABA Journal that he understands the poaching charge, and that its probably true. But top-performing students who have proved themselves should be entitled to transfer, and theres no harm in us facilitating that, says Van Zandt. Chrysler and General Motors dont agree not to poach each others customers. During the 2006-2007 academic year, Northwestern added 43 transfers to its 238-student first-year class.
Some legal educators worry that such recruiting is becoming increasingly more aggressive. David Yellen, dean at the Loyola University Chicago School of Law, told the ABA Journal: "If the U.S. News incentive went away tomorrow, transfer acceptance would drop."
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/conditionally-accepted-kill-it-as-one-l-and-well-see-you-next-year?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Mid-Day Law-Firm News Round-Up: Orrick Freezes; Heller Files
Action on the law firm front continues to reflect the tough market conditions. A couple quick items to note:
Heller Files: As expected, following its announcement in September that the firm would disband and dissolve, Heller Ehrman today announced it's filed for Chapter 11 bankruptcy.
This is not a result of the firms running out of money, said Peter Benvenutti, chairman of Heller's dissolution committee. On the contrary, due to the positive responses received from hundreds of former clients, collection of accounts receivable over the past three months has been strong. And going forward, we expect collection of tens of millions of additional dollars. Nevertheless the Committees fiduciary obligations to all creditors required it to file a Chapter 11 Petition at this time.
Orrick Freezes: A couple weeks ago we asked whether Latham & Watkins' salary freeze could portend a legal ice age. Today, Orrick also froze over. In an e-mail to the firm, chairman Ralph Baxter said: "After careful consideration, we have decided that associates in the US and Europe, and associates, senior consultants and consultants in Asia, will receive the same salary in 2009 as you received in 2008. . . . We will ensure that our 2009 bonus program gives us additional flexibility to reward outstanding performance and remain competitive in the marketplace.
Last month, we noted a New York Law Journal report in which Baxter, whose firm had recently laid off 40 lawyers, called the current bonus system not sustainable.
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/mid-day-law-firm-news-round-up-orrick-freezes-heller-files?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Holiday Shopping & the Law: Black Friday and Wal-Mart's Blitz Sale
In the wee hours of . . . Black Friday, the defendant's seeds of chaos were bearing fruit, as the swarm of would-be shoppers was burgeoning. Badly hit by a grievous recession, these people had elected to barter sleep, in order to put substance in their Christmas stocking. The multitude was spilling out of the sidewalk and pouring across the parking lot . . . taped next to the [Wal-Mart] doors a handwritten sign saying, "Blitz Line Starts Here." -- from a Dec. 16 complaint filed against Wal-Mart for injuries allegedly suffered by a customer on Black Friday.
Shoppers climb over each other seconds after the yellow tape was cut at 5:00 a.m. to reach the 32 laptop computers that were on sale at a Wal-Mart store in Puyallup, Wash., Nov. 25, 2005. (AP/ Russ Carmack) Yesterday, the New York Times ran a front-page story about recession-hit retailers continuing to sweeten their discounts in an effort to off-load inventory.
Clearly, these are tough times for shoppers and stores alike. But will certain sale tactics risk consumer lawsuits? One has. Two women, Jennifer Jones and Alicia Sgro, have sued Wal-Mart and others for alleged injuries -- including punches to the face from an unknown assailant -- that took place during the stampede that preceded Wal-Mart's Black Friday 'Blitz' sale. (Black Friday is that day after Thanksgiving when the holiday shopping season officially kicks off.) Here's the complaint, via Courthouse News.
According to the complaint, Wal-Mart "strived very hard to create a menacing, unruly crowd," expecting "mayhem to occur." In an apparent effort to make out the element of foreseeability that's required for a negligence claim, the complaint states:
Upon information and belief, integral to the design of the sale was emplacing in the shoppers a feeling of anxiety. Each member of the crowd would experience fear of being smashed, while vertical, or trampled, while horizontal: that fall to the ground would be a prelude to burial thereunder. Afterwards, once inside the store each shopper would have a feeling of emotional freedom and release that would cause him or her to do more purchasing. The complaint -- alleging negligence, gross negligence, false imprisonment and assault -- claims that the plaintiffs sustained punches to the face from an unknown female assailant. They're represented by Brooklyn-based Bruce Baron. We're still waiting to hear back from Wal-Mart. We'll update the post when do.
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/holiday-shopping-the-law-black-friday-and-wal-marts-blitz-sale?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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Same-Sex Adoption Debate Rages on in Sunshine State
Florida, according to Florida's News-Press, is the only state with an outright ban on gay people adopting children. But the state's Supreme Court could change that.
Last month, a Miami-Dade judge declared that Florida's 1977 law violated equal protection rights. "It is clear that sexual orientation is not a predictor of a person's ability to parent," Judge Cindy Lederman wrote in a November 25th ruling. "The exclusion causes some children to be deprived of a permanent placement with a family that is best suited to their needs." Lederman said there is no moral or scientific reason for banning gays and lesbians from adopting, despite the state's arguments otherwise. Here's a CNN report on the ruling.
The latest news: Florida will appeal. The state argues that gays and lesbians have higher odds of suffering from depression, affective and anxiety disorders and substance abuse, and that their households are more unstable.
Dennis Baxley, executive director of the Christian Coalition of Florida, maintains allowing gay couples to adopt closes the door on the possibility of finding heterosexual parents, which for him is optimal. "I think it's more of a political battle than what's best for the child," Baxley, who has adopted two children, told the News-Press.
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/same-sex-adoption-debate-rages-on-in-sunshine-state?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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In Texas, First Amendment Runs Up Against . . . Assault?
In the case of Schubert v. Pleasant Glade Assembly of God, here's the question presented by Schubert's cert brief: Does the Free Exercise Clause of the First Amendment preclude the imposition of civil liability for the religiously motivated assault and false imprisonment of a non-consenting minor?
The backstory: Laura Schubert Pearson, who was 17 years old in 1996, claims that a forced exorcism left her so physically bruised and emotionally scarred that she later tried to commit suicide. A divided Texas Supreme Court ruled in June that the church's staff and members are protected by the First Amendment because the case involves an ecclesiastical dispute over religious conduct. Schubert has appealed to the U.S. Supreme Court. Here's the story from the Star-Telegram, and here's the cert brief, via the Supreme Court of Texas Blog.
Schubert, who's repped by Boies Schiller's Scott Gant, contends that religious beliefs do not excuse someone from being held accountable for assault and false imprisonment. The churchs attorney reportedly counters, in a brief, that "pursuing this tort path would take the courts into forbidden territory: protected religious conduct."
At trial, a jury found the church and its members liable and awarded Schubert $300,000 for mental anguish. An appeals court cut that to $178,000. But the church's appeal to the Texas Supreme Court raised the question of whether First Amendment rights prevent the church from being held liable for mental distress triggered by what it described as a "hyper spiritualistic environment." Justice David Medina wrote: For the court to impose any legal liability on members could have an unconstitutional "chilling effect" by compelling the church to abandon core principles.
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/in-texas-first-amendment-runs-up-against-assault?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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'Urgent. Code name: Equinox' -- The Story of Lehman's Bankruptcy
"We were a distraction to the Lehman people," Weil Gotshal bankruptcy lawyer Lori Fife tells the WSJ. "It felt like it was just a fire drill."
The front-pager, entitled "The Weekend That Wall Street Died," documents, in play-by-play fashion, the events of the second weekend in September, the one that ended with Lehman filing for bankruptcy.
Here's what happened: On the night of Thursday, Sept. 11, Weil Gotshal's Harvey Miller secretly began cobbling together a bare bones bankruptcy filing. By Saturday morning, Lehman's bankruptcy team had rolled into action. According to the WSJ, Miller, the firm's bankruptcy head, sent an email to several partners. Lehman's name didn't appear in the email. Its subject line read: "Urgent. Code name: Equinox. Have desperate need for help on an emergency situation."
The next day, Sunday, a senior Fed official reportedly asked Miller if Lehman was ready to file. "No," Miller answered. He continued: "You need more of a plan to prepare to do this." Lehman had tens of billions of dollars in derivative positions with countless parties. Unless these trades were unwound in an orderly way, it could shock all corners of the financial market. "This will cause financial Armageddon," he reportedly said.
According to a second WSJ story, this chaos caused the destruction of as much as $75 billion in value. A study by advisory firm Alvarez & Marsal, which was hired by Lehman's board just hours prior to its Sept. 14 bankruptcy filing, reveals that a less-hurried filing likely would have preserved tens of billions of dollars of value by enabling Lehman to sell some assets outside of bankruptcy protection, and would have given it time to try to unwind its derivatives portfolio.
Bryan Marsal, the co-CEO of the advisory firm who now serves as Lehman's chief restructuring officer, told the WSJ: "While I have no position on whether or not the federal government should have provided further assistance to Lehman, once the decision was made not to provide further assistance, an orderly wind-down plan should have been pursued. It was an unconscionable waste of value."
See and Post Comments: http://blogs.wsj.com/law/2008/12/29/urgent-code-name-equinox-the-story-of-lehmans-bankruptcy?mod=djemWLB&reflink=djemWLB&reflink=djemWLB
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LAW VIDEO
WSJ's Nathan Koppel looks at the fall of a major litigator now in jail and accused of selling bogus paper.
http://online.wsj.com/video/inside-the-marc-dreier-scandal/C8D95D60-B5F5-4A6F-9ED6-54EDC3FB7046.html?mod=djemWLB&reflink=djemWLB
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TOP LAW NEWS
The investigation into Bernard Madoff is starting to turn to the middlemen who attracted billions of investment dollars to his funds. - Complete Coverage: Madoff
http://online.wsj.com/article/SB123033797182136463.html?mod=djemWLB&reflink=djemWLB
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