OTHERWISE: Plea Bargaining: Innovative Remedies for Ineffective Assistance of Counsel

OTHERWISE: Plea Bargaining: Innovative Remedies for Ineffective Assistance of Counsel:

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I still don't believe Wilpon and Katz "knew" about Madoff - George Vecsey

The great Times sports writer George Vecsey has been around New York baseball for a long time.  He has s somewhat sympathetic view of Fred Wilpon and Saul Katz.  I don't know them.  At my distance I think they "should have known" that their good buddy Bernie Madoff was a creep: doesn't character show when you see people up close and over a long period of time?  
But I am nonetheless inclined to agree that greed blinded them - the Madoff constant (high) rate of return was rationalized: and they put themselves and their families at enormous risk - and, ultiamtely, great loss. - GWC
I Still Don’t Believe Mets’ Owners “Knew” - George Vecsey: "I think I am old enough to recognize a stricken look.

That is what I have seen on the faces of Fred Wilpon and Saul Katz in the past two years. They are of my generation – although a tad more wealthy – and I think I can tell the look of two people who felt betrayed by a friend. They have seen ruin and even death up close, to people they know.

Now they have settled their case, and perhaps they and the Mets can move on. Or not. But I come to this stage still unconvinced that Wilpon and Katz “knew” Madoff was cheating.

My belief is not based on their including Sandy Koufax in the Madoff web. That’s just one small piece of it.

I have read documents filed by the trustee, listing all the accounts held by Wilpon and his brother-in-law, Katz. The accounts are in the names of Wilpons and Katzes and other people clearly related to these two partners. The next generations, living mostly in favored suburbs of New York. "

Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ - NYTimes.com

Old Memo Casts More Doubt on Rehnquist’s View of ‘Separate but Equal’ - NYTimes.com:

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Mets Owners and Madoff Trustee Allies Now

No way to know but I see the invisible hand of mediator Mario Cuomo, baseball fan, onetime prospect.  - GWC

After a Settlement, the Mets and Trustee Irving H. Picard Become Allies - NYTimes.com:

by Ken Belson

"The settlement between the owners of the Mets and the trustee representing the victims of the fraud orchestrated by Bernard L. Madoff ends a rancorous legal fight between two parties that were willing to dig in their heels and openly point fingers.

But in a twist, the former adversaries are now on the same side. That is because the settlement calls for Fred Wilpon and Saul Katz, the Mets’ owners, to receive $178 million from the trustee for money they lost in some of their Madoff accounts. That money will be used to pay back the trustee to cover the $162 million in fictitious profits that Wilpon and Katz received in other accounts."

Mets’ Owners and Madoff Trustee Settle Suit - NYTimes.com

Saul Katz and Fred Wilpon at Mets training camp.  NY Times

The Times reports that Fred Wilpon, Saul Katz, et alii have settled with Irving Picard the SIPC trustee trying to recover funds lost by investors in the Madoff ponzi scheme:

The $162 million [settlement] includes the $83 million that the Mets owners had already been ordered to pay the trustee, is to be paid out of money Wilpon and Katz expect to recover as a "net loser" of the Madoff scheme. Recovery chances are good, said David J. Sheehan, counsel to Picard.  

I have had trouble grasping the theory that trustee Picard was relying on to recover from Mets owner Fred Wilpon and his partners and family.  He alleged in the complaint 

The Sterling partners, their family members, their related trusts, and various entities they own, operate, and control were collectively one of the largest beneficiaries of Madoff’s fraud, reaping hundreds of millions in fictitious profits over their quarter-century relationship with Madoff.  The Sterling partners, their family members, trusts and Sterling-related entities made so much easy money from Madoff for so long that despite the many objective indicia of fraud before them, the Sterling partners chose to simply look the other way...

It's not collusion, it's not aiding and abetting, it is...what is it?   Dishonest advice to friends?   Maybe negligent misrepresentation.  Unclean hands? That seems closer to it.  And the settlement works that way.  In the end Wilpon & Katz lost money with Madoff.  But they are entitled to recover a proportionate share of the money the trustee recovers from culpable wrongdoers - like the feeder funds with whom significant settlements are being achieved, such as the $1 billion settlement wit Tremont Group Holdings, Inc.  
Now Wilpon & Katz's recovery will be reduced by the amount of their share of such settlements.  So even though they lost money, their constructive knowledge of the scheme, their conduct in recommending Madoff's fund to friends and others, disentitles them to recovery.      

More dubious are claims like that against J.P. Morgan who, Picard charged, aided and abetted the fraud.  There the trustee's efforts have been limited.  Picard may not assert claims, the District Court held, on behalf of investors.  It is BMIS - Madoff's firm- that he is liquidating and as SIPC trustee Picard he stands in its shoes.   

Mets’ Owners and Madoff Trustee Settle Suit - NYTimes.com:

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SEC v. Citigroup - 2d Cir.: Rakoff settlement rejection unlikely to succeed

John Walker, Circuit Judge

Ruling Gives Edge to U.S. in Its Appeal of Citi Case - NYTimes.com: 
A panel of the United States Court of Appeals for the 2d Circuit sharply scored District Judge Jed Rakoff's rejection of the settlement proposed by the SEC and Citigroup Global Markets.  The case arises from Citigroup's work as an investment bank.  Citi did not disclose to buyers of CDOs - bets on residential mortgage backed securities - that Citigroup Global Markets itself was on the other side of the bet.
Rakoff had ordered the parties to proceed to a June trial.  On March 15 that order was stayed by the 2d Circuit which found that Rakoff's order was unlikely to  prevail on appeal. 

Jed Rakoff, D.J.

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Jury Finds Va. Tech Negligent in '07 Shootings - NYTimes.com

Torts theorists and torts teachers generally underestimate the importance of vindication as a remedy in tort. - GWC
Jury Finds Va. Tech Negligent in '07 Shootings - NYTimes.com:

"It took jurors 3 ½ hours on Wednesday to find that university officials botched their response to the massacre on April 16, 2007, that left 33 people including the gunman dead. The jury determined that the Prydes and Petersons each deserved $4 million, but the award is likely to be sharply reduced. State law requires it to be capped at $100,000.
Still, the amount of the award mattered little to the two families.
"We were looking for truth for a long time," Harry Pryde said outside the courthouse that's less than 10 miles from Tech's Blacksburg campus. "We persevered and we got some truth today."
The parents' lawsuit argued that lives could have been spared if school officials had moved more quickly to alert the campus after the first two victims were shot in a dorm."

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ImmigrationProf Blog: The Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics

ImmigrationProf Blog: The Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics:
by Kevin Johnson
 "Just in time for the Mississippi and Alabama Republican primaries, Vanessa Cárdenas and Angela Maria Kelley of the Center for American Progress today released the "Top 10 Things You Should Know About Alabama’s Demographic Changes and Immigration Politics."  The Alabama legislature passed the toughest state immigration enforcement measure of them all."

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BP gulf oil spill: not a global settlement, but...

Despite the absence of a minimum participation trigger the BP oil settlement is likely to dispose successfully of the economic loss claims against the company.
Little is known about the BP settlement with the Plaintiffs Steering Committee in the BP gulf oil spill cases, but informed opinion is beginning to enter the public discussion.  Prof. Ed Sherman (Tulane) makes the observation that there is no trigger to actuate the BP settlement.  In the Vioxx cases it was 85% - not until that percentage of claimants signed on did Merck have to fund the settlement.  In the WTC cleanup cases it was even higher.  Absent in BP.  The problem is that the litigation barely got started!  Louisiana has a one year statute of limitations, but state claims proved insignificant.  Maritime claimants for personal injury or death have 3 years under the Uniform Statute of Limitations for Maritime Torts.  Same for Oil Pollution Act  claims.

So what will be the wedges to get wide acceptance?
First - cash on the barrel head.  Most claims are small claims.  Only aggregation makes the undertaking viable for lawyers.  And most of those claimants will take the money and run - reducing the viability of prolonged litigation.
Second - categorization of recognized claims in a "grid"will greatly increase certainty.  Recognized categories will be broader than any court has recognized.  That limits the appeal of litigation in hope of a broader scope of liability or higher damage award.  Likely not worth the time, expense, and uncertainty.
Third - exclusion of those not included will reduce the number of claimants. There are surely thousands of  "moratorium claims" for layoffs and lost sales during the U.S. mandated moratorium on deepwater drilling.  That exclusion will be loudly voiced at a "fairness hearing" but ultimately will be resolved in the United States Court of Appeals (or higher).  I wouldn't bet my boat on that if I were a plaintiffs lawyer in Louisiana.

Fourth -  there are going to be class certifications with damages  formulas.  A good definitional puzzle. FRCP Rule 23 commonality is hard to establish.  What about Amchem and the right to an individual day in court?  It's not like calculating losses in a securities fraud case.  Market prices and dates of disclosure make securities losses easy to frame.  Even pure economic claims here have a high degree of diversity.  Fishermen's losses have a lot of variability - because the catch varies year to year.  Averaging helps, and there will surely be a dose of that - extending the comparison period beyond the year 2009 and 2010 partial year used by Feinberg in the GCCF.   Many business losses will also be hard to show.  Such uncertainty inclines one toward the bird in hand.  - GWC

What BP bought in $7.8 billion deal with plaintiffs' lawyers: (Alison Frankel's On the Case, Thomson Reuters)

 "Defendants in recent mass tort settlements have typically insisted on provisions that call for deals to dissolve unless a certain percentage of plaintiffs sign on. The BP settlement, by contrast, has no such requirement. Edward Sherman of Tulane University Law School said that BP might have reckoned it wasn't worth holding out for certainty. (A spokeswoman for BP declined to comment.) "Rather than putting the whole settlement at risk if they didn't achieve that, I think they were just willing to believe there was not going to be massive opt-outs," he said.
We'll find out soon enough whether that turns out to be true"

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Rick Santorum’s Medical Malpractice Lawsuit - ABC News

Rick Santorum's wife won a $350,000 award against a chiropractor - reduced to $175,000 - though we don't know why.  The chiropractor caused a herniated disk is a pretty thin claim.  I have often observed that tort reformers turn into plaintiffs' lawyers as soon as they have a claim.  Florida's tobacco litigation is a case in point.    Santorum now says his support for a$250k cap in medmal cases is a bit low. Despite his commitment to home schooling, Santorum has a J.D. from Dickinson which is now part of Penn State. - GWC
Rick Santorum’s Medical Malpractice Lawsuit - ABC News:
"Rick Santorum has often called for limits medical malpractice lawsuits, but back in 1999, his wife Karen sued her chiropractor $500,000 for allegedly injuring her back.  Santorum testified in the case, telling the jury that the injury caused his wife pain and impaired her ability to campaign for him.
She “likes to be fit,” Santorum told the jury according to an December 1999 article in Roll Call.  “We have to go out and do a lot of public things. She wants to look nice, so it’s really difficult.”"

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