Monday, December 19, 2016

Can the Government Make a Band Change its Name?

Simon Shioa Tam has been described as an "Asian-American musician, lecturer, and political activist." He also performs in a bank known as The Slants. In his own words, the band, by using that name, is "following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride."

As any savvy bandleader hoping to hit the big time would do, Mr. Tam filed a trademark registration for his band's name. However, the U.S. Patent and Trade Office denied his application due to the "disparagement clause" in the federal trademark statute, which bars the registration of "matter which may ... disparage person, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." 

Mr. Tam appealed the denial of his trademark application -- several times. His case is currently schedule for argument before the U.S. Supreme Court on January 18, 2017. The case has drawn considerable attention, especially considering the political climate over the past year and the President-elect's propensity to make broad generalizations based on people's race.

The Cato Institute and a "basket of deplorable people and organizations," including Ralph Steadman and the Flying Dog Brewery, have filed an amicus curiae brief arguing in favor of The Slant's trademark application. The "friends of the court" make several compelling arguments against governmental involvement, including that disparaging language serves an important role in our society, that rock music has a long tradition of pushing the boundaries of expression, and that the First Amendment prevents the Government from dictating what is or is not an offensive slur.

I wanted to share the brief for several reasons. First, it is not every day that you see citations to the U.S. Supreme Court from works by South Park, Seinfeld, Chris Rock, Dr. Dre, N.W.A., Cypress Hill, and the Geto Boys. Also, I wonder how many Supreme Court Justices have songs on their iPods by the Queers, Hillbilly Hellcats, Rapeman, Snatch and the Poontangs, Dying Fetus, or some of the other offensively-named bands listed in the brief.

Lastly, for my practicing lawyers out there, the brief is beautifully written. From the simple question presented to the plain-spoken summary of the argument, the brief is a persuasive, direct, and well-organized gem of legal writing. HERE is a link to brief and it is embedded below. 

Thursday, October 6, 2016

Drug Dealers Can't Win the Lottery

Illinois law allows the Government to seize your property even if you have not been charged or convicted of a crime. This heavy-handed system is generally known as civil asset forfeiture. The Government only has show by a preponderance of the evidence (51% likely) that the assets in question are traceable to violations of certain laws. This relaxed burden of proof is much lower than that needed to convict someone of a crime, which is beyond a reasonable doubt. As a result, millions of dollars of property are seized every year from people who are never convicted of any crimes, including $190,000 from two brothers in Aurora several years ago, neither of whom had a criminal record at the time

Even if a person admits to committing a crime, or is eventually convicted, the question then becomes what assets can be traced back to the criminal activity? Or put another way, how creative can the Government get in trying to squeeze someone for every penny? They got pretty creative recently when police officers in Macon County, Illinois raided a house and seized marijuana, cocaine, a digital scale, and a $3 scratch-off lottery ticket, which turned out to be a $50,000 winner. 

Predictably, the Government instituted civil forfeiture proceedings against the lump sum payout, or $35,315. The Government reasoned that the defendant was unemployed and had no source of income other than drug sales, so the $3 must be attributed to drug sales. The Government further reasoned that the $3 was actually worth $35,315 because it was in the form of a winning lottery ticket, so the whole amount should be for forfeited.  

Following trial, the trial court very logically ruled in favor of the drug suspect. The court ruled that the $3 probably came from the sale of drugs, but that the civil asset forfeiture laws were not intended to capture a windfall. The court stated "What if, for instance, some cannabis dealer had earned $10,000 selling cannabis, and he decided to he was going to put himself through medical school, earned a medical degree, and was out successfully working? Is his income then forfeitable? At some point, the connection has to stop."

Predictably, the Government appealed. The appellate court reversed the trial court. The appellate court found that the purpose of the forfeiture law was to deter people from drug trafficking and should be "liberally construed so as to effect their remedial purpose." The court then ruled that "all proceeds" traceable drug trafficking are subject to forfeiture, even if they are increased due to a windfall.

Wednesday, August 10, 2016

Presidential Candidates’ Views on Jury Service

Thanks to Jur-E Bulletin (National Center for State Courts) for finding two articles shedding some light on the presidential candidates’ views on jury service. A Time magazine article from August 2015, reported that Mr. Trump was “one for six for fulfilling his jury duty summonses. A judge fined him $250 earlier this year for ignoring every summons for nearly a decade.”

Politico reported the following e-mail exchange between Secretary Clinton and a staff member:

In one exchange from August 2011, Clinton gives a thumbs up to aide Jake Sullivan’s apparent attempt to not get picked for a trial when called for jury duty. “Look and sound eager--you'll be viewed as too crazy for either side to pick, according to Kurt,” Clinton emails Sullivan. He then replies with his own approach: “My prosecutor friend told me I simply have to say I trust cops.” Clinton seemed to approve. “Perfect!” she replied.

Monday, July 11, 2016


John Wright is a State Farm insurance agent in Joliet, Illinois. His neighbor, Rick Papp, is also a State Farm insurance agent in Joliet, Illinois. They are competitors. If you watch Modern Family on ABC, just picture Phil Dunphy and his nemesis/arch-rival, Gil Thorpe, although they are realtors, not insurance agents, on that show. 

John Wright and Rick Papp are involved in one of the most ridiculous lawsuits that I have ever seen, and I've seen some good ones. According to the lawsuit, some unknown individual or individuals had been repeatedly ringing the doorbell at the Wright residence for several weeks prior to June 26, 2016. When Mr. Wright would answer the door, no one would be there. The lawsuit alleges that this practice is commonly known as a "ding, dong, ditch."

According to the lawsuit, the Shorewood Police Department subsequently questioned Rick Papp's minor son, who admitted that he ding, dong, ditched John Wright on June 26, 2016. The lawsuit alleges that the June 26, 2016 ding, dong, ditching occurred after curfew, at a time when the minor ought to have been in his own home. Therefore, Mr. Wright sued Mr. Papp for failure to exercise reasonable care so as to control his minor son and prevent him from intentionally harming others.

The lawsuit seeks damages in excess of $50,000. The lawsuit alleges that Mr. Wright suffered severe emotional distress, severe anxiety, sleeplessness, extreme and rapid weight loss, and that he required medical treatment in order to function in his daily living, all as a direct result of the minor's alleged ding, dong, ditching. According to the lawsuit, Mr. Wright also failed to earn an employment incentive worth $30,000, which he had achieved in each of his last twenty years of employment, as a direct result of the minor's ding, dong, ditching. 

The lawsuit is ridiculous for several reasons. First, the lawsuit is about ding, dong, ditching (Ha!). Next, the lawsuit doesn't allege that Rick Papp's minor son committed the several weeks of ding, dong, ditching that occurred in early June. The lawsuit only alleges that the minor committed one ding, dong, ditching on June 26, 2016. All of the alleged injuries, including the $30,000 in lost income, resulted from a single ding, dong, ditching on June 26, 2016. Of course, the implication is that the kid was behind it all, but the lawsuit never says that, even on information and belief. Lastly, the lawsuit was filed on June 23, 2016. I know I'm nitpicking and it must just be a typo or clerical error, but the lawsuit uses the June 26th date in eight different paragraphs and the case was filed on June 23rd. Come on! If you're going to file a ding, dong, ditching lawsuit you must dot your I's and cross your T' know you're going to get huge media attention! 

Here is a copy of the complaint if you are interested:

Friday, June 10, 2016

Illinois Real Estate Tax Sales

A real estate tax sale can be aside aside in bankruptcy court if it was for less than "reasonably equivalent value." In re Smith, 2016 U.S. App. LEXIS 934 (7th Cir. 2016). The Smith case dealt with several technical bankruptcy and fraudulent transfer issues, which will not be explained here, but I wanted to pass along this section of the opinion that explains the Illinois real estate tax sale process. I do not have any prior experience with tax sales and I did not know that potential buyers actually bid downwards on the redemption interest rate they'd be willing to accept. This case says that 85% of winning bids are at zero percent. If no one redeems the tax bill, plus the prevailing interest rate, the winning bidder gets an unencumbered deed to the property. Here is how the 7th Circuit explained the two most common methods for selling delinquent real estate taxes, including the system used in Illinois:
States generally choose one of three methods for collecting delinquent property taxes: the overbid method, the interest rate method, and the percentage ownership method. Georgette C. Poindexter, Lizabethann Rogovoy & Susan Wachter, Selling Municipal Property Tax Receivables: Economics, Privatization, and Public Policy in an Era of Urban Distress30 Conn. L. Rev. 157, 174 (1997). This case requires us to compare the overbid and interest rate methods, so we focus on them. 
The overbid method is probably the auction system more familiar to most readers: the bidding price begins at the total amount of taxes and interest due, and potential buyers then offer higher bids up to the total price they are willing to pay in return for (eventual) fee simple title. See, e.g., Colo. Rev. Stat. Ann. § 39-11-115 (West 2015). The fair market value of the property is at least in theory the ceiling for amounts that might be bid. The winner of this competitive bidding receives rights to the property. See In re Grandote Country Club Co., 252 F.3d 1146, 1152 (10th Cir. 2001) (explaining the competitive nature of the Colorado overbid system). A redemption period typically follows, during which the delinquent taxpayer or a mortgage lender may pay off the tax debt and reclaim the property. If the property is not redeemed, the winning bidder may bring an action for quiet title to the property. See, e.g., Colo. Rev. Stat. Ann. § 39-11-120 (West 2015). 
The interest rate method used by Illinois is quite different. At the county tax auction, bidders vie to purchase the tax lien, not the property itself. They do so by bidding down. See BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750, 752-53 (7th Cir. 2011). Bids are expressed not as a total price for the property but rather as decreasing interest percentages. Id. These percentages are the penalty interest rates that the buyer may demand from the delinquent taxpayer (or mortgage lender) to redeem the property. Id. In Illinois, the bids therefore work down from a statutory ceiling of eighteen percent. Zero percent is the floor. 35 Ill. Comp. Stat. 200/21-215 (2015). 
Under this system, the lowest bidder wins and is granted the lien and a certificate of purchase. In re LaMont, 740 F.3d 397, 400-01 (7th Cir. 2014). And if the delinquent taxpayer and any mortgage lenders fail to redeem in the subsequent two years, the buyer takes the property free and clear. Id., citing 35 Ill. Comp. Stat. 200/21-350 (2015). 
In the vast majority of tax sales in Illinois, the penalty percentage paid by the winning bidder is zero percent. BCS, 637 F.3d at 752 (almost 85 percent of the winning bids). The purchase price of the property, taking into account the risk of redemption, is therefore usually nothing more than the sum of the delinquent taxes.

Saturday, May 14, 2016

Cook County Evictions

                 As a Landlord attorney, my job is to help my clients navigate the eviction process in a manner that minimizes stress and is also cost effective. In Cook County, this goal is almost impossible. I have been practicing in this area of the law for many years now, but I am still amazed at how inefficient Cook County is when it comes to handling these matters. Whenever I receive an inquiry from a potential Cook County client, I always have to provide a long explanation upfront of what difficulties the landlord is sure to encounter. Yet, even after providing a thorough and exhaustive explanation, I find my Cook County clients are still stunned by the unbelievable waste of time and money that accompanies the eviction process in Cook County. This is very disappointing because so many of my clients are not big management companies, but rather small time investors with one or two rental properties. In many cases, the delays they encounter in Cook County impose significant financial burdens on them. And, these problems are really so unnecessary when you consider that the law relating to evictions is not rocket science, and it is the same for all of Illinois. Unfortunately, it is the actual execution of the law that varies from county to county. My practice covers Cook and all of the collar counties (Will, Kane, Dupage, Lake, Kendall, McHenry).                                                            
                   In my experience, all of the collar counties are fairly similar. I can usually give a good estimate of how long an eviction will take from start to finish assuming that a tenant takes advantage of all their rights under law. You typically have a couple months in court if a tenant wants to go to trial and then another couple of weeks or month until the Sheriff get can get out to the property to execute the order if the tenant does not leave on their own accord.  Unfortunately, it is not so in Cook County. First, in Cook, you have to use the Sheriff for the first round of service of process attempts. In the collar counties, I go straight to a private process server. For $75-$150, my server will at a minimum, make 7 attempts at service before the first court date. If they fail to get service on a tenant who is avoiding, I can at least ask the judge for permission to do a posting which is usually granted. This alone saves three weeks and a couple hundred dollars. But, it is not so in Cook. In Cook County, my clients fork out anywhere from $120-$180 to the  Sheriff who gets first dibs on service attempts. In my experience, the Sheriff makes one or two attempts and usually fails to get the defendant served. So, when I go back to court, I can't usually get a posting because the Sheriff hasn't made enough attempts. So, I have to get permission to use a private server and waste more of my client's time and money before getting service or permission for a posting. If you ask the Sheriff's office why this is the case, you will hear an explanation about how big Cook County is and how they have a lot going on. Of course, this is as good an argument as any why the law should not require that you use the Sheriff on the first round of service attempts. Revoking that rule alone would save time and money.                                                                                                                                                                                           Second, in Cook County, once you have your order of possession, you take it to the Sheriff for execution. This is the same as in all of the other counties. But, unlike the other counties, Cook does not schedule a specific date. Rather, they give you a number to check on the Sheriff's website, and when you see your number that means it is supposed to be executed "soon." "Soon" however, is a very vague term and usually means nothing as I have on many occasions seen my number pop up, and the eviction still didn't take place for many weeks after that. Furthermore, even after your number pops up, you never get an actual date. You get a call the day or night before the eviction from the Sheriff saying they will be there the next day, and that you have to meet them at such and such time or your eviction will be canceled. This practice is a huge problem for most small time landlords because they don't have a management company to coordinate all of this. And, the Sheriff requires you to have four able bodied people with you to move the tenant's property off the premises and on to the front lawn/driveway. Now, a management company can usually pull this off even the night before because they have a crew they can assemble or hire. This is a very difficult for normal people who have jobs and have to scramble last minute to hire movers or assemble relatives or friends. To be fair, all of the counties require you to have helpers to move the property off the premises. The Sheriff isn't going to carry stuff out, they are just there to keep the peace and ensure the landlord can get the property back. But, at least in the other counties, they give you an exact date so you can prepare a few weeks ahead of time to have people in place to coordinate this effort. But, not so in Cook County.                                                                                                                                                                                                                                                                                                                           Finally, the biggest and most serious problem in Cook County is the amount of time it takes the Sheriff to execute these orders. In Dupage, it is almost always about three weeks after the date given by the judge on the order of possession. In Cook County, it is anyone's guess. In the winter, it is even worse because they have to cancel and reschedule some days due to extremely cold weather. It is not uncommon for the Sheriff to take 4-6 months to get these orders executed. This last fall/winter was taking about 4 months for my clients. I filed one order in October that got executed in February. Keep in mind, that this is 4 months with no rent being paid. Unfortunately for most of my clients, they are still paying the mortgage and property taxes while rent is not being paid. And while they are waiting for the Sheriff, they often have an angry tenant in the property who may being doing significant damage to the premises.                                                                                                                                                                                                                                                                                                   Even though I warn my clients, they are always frustrated and desperate when this actually unfolds. Some of the tips that I offer are as follows: 1) I try to encourage them with the fact that not every tenant waits until the Sheriff arrives to leave the property. Many leave on their own. Because there is no certain date when the Sheriff arrives, many tenants don't want to take the chance of having their possessions put out on the lawn. Nevertheless, many do wait until the very last minute. 2) I try to get my clients to consider "cash for keys." For small time landlords, this is a very bitter pill to swallow. Even though it makes economic sense, some just can't even consider this option. This is especially true if the tenant already owes unpaid rent and if there are hard feelings between the parties. But, if the Sheriff is going to take 4 months to get the tenants out, it makes more sense to either forgive the rent owed or even offer a couple thousand dollars to get the tenants out quicker. If you can get the tenants out in a couple weeks and get the place re-rented quicker, you are likely in a better financial situation. Of course, the tenant has to be willing to leave quickly in exchange for the money. This is not always an option tenant are willing to accept.    

Saturday, April 30, 2016

Captain Kirk v. Iqbal

Star Date 93795.09 (thanks to star date calculator here): Today, paramount Pictures filed an amended complaint (here) against Axanar Productions in a copyright infringement suit in the U.S. District Court for the Central District of Florida. Paramount charges Axanar with “unauthorized exploitation of Star Trek, one of the most successful entertainment franchises of all time.” And it would be difficult to deny that allegation since Star Trek has spawned 6 television series and 12 movies with a new movie planned for release this year and a new T.V. series planned for 2017.

To Trekkies, the most important aspect of the Amended Complaint is the Star Trek photographs and trivia included in the pleading. For example, you may know that the Klingons are a warrior race from the planet Qo’noS and first appeared in a 1967 episode of the original series, but did you know that the Klingons’ planet was not seen until a 1990 episode (Amended Complaint at 11-12, 20)? Or that “Dilithium is a crystalline substance used in warp propulsion systems to regulate the matter/antimatter reactions that provide the energy necessary for faster-than-light speed (Amended Complaint at 29)”? The photographs and factual trivia take up 28 pages of the 48 page amended pleading.

To non-Trekkie lawyers, the importance of the Amended Complaint lies in the fact that it demonstrates (to the extreme) the change from simple “notice” pleading to the factually demanding “plausibility” pleading now required in federal courts by Ashcroft v. Iqbal (here). The case will likely demonstrate another fact of modern day litigation— discovery is unlikely to move at warp speed.

Thursday, March 10, 2016

A party who represents herself... You know the rest...

I'm reading a case about a pro se plaintiff who was sanctioned for her behavior at trial. The case is somewhat interesting and may stand for the proposition that a party can be liable for the opposing party's legal fees based upon his or her misconduct, even in the absence of a contract or statute providing for legal fees. The case is Harvey v. Carponelli, 117 Ill.App.3d 448 (1st Dist. 1983). There's also good language in there about holding pro se litigants to the same procedural standards as attorneys.

Anyway, all I really wanted to point out is the following paragraph from the case. For some reason this description of the trial made me laugh out loud. I'm just glad it wasn't me who had to oppose this lady.
"Plaintiff's first witness was called and examined. The trial judge found that the entire line of questioning by plaintiff as pro se counsel indicated a lack of awareness of the issues raised by [her] in her fourth amended complaint. The entire testimony of this witness was stricken as irrelevant. Next, plaintiff called herself as a witness. After taking the stand, she was allowed to read questions to herself from her notes for 1 1/2 days. She asked herself at least one question to which she answered "I don't know." 
Oh man... One and half days? And she was answering "I don't know" to her own questions!! I would have had a heart attack. 

Friday, February 12, 2016

$2,000 per hour?

Gibson, Dunn & Crutcher LLP is a global law firm with more than 1,000 lawyers spread between 18 offices. Ted Olson is one of their managing partners. Mr. Olson is widely regarded as one of the best lawyers in the country, if not the world. He has argued 62 cases before the U.S. Supreme Court, including Bush v. Gore, Citizens United, and the case that overturned California's ban on same-sex marriages. His biography on the law firm's website says that he has prevailed more than 75% of the time before the U.S. Supreme Court.   

Mr. Olson was also involved in the Tony Bostic case that overturned Virginia's ban on same-sex marriages. Mr. Bostic and his spouse, as the prevailing parties in a civil rights lawsuit, became entitled to reimbursement of their legal fees. As part of that process, Gibson Dunn's bills have recently become public and are now making the rounds on the legal blogs. I have embedded them below.  

These guys know how to bill, holy cow. Gibson Dunn was only involved in the case for approximately 14 months. Their final bill was $1,378,771.00. The invoices are categorized by partner time, associate time, and paralegal time. The partners' rates run from $795 to $1,800 per hour. The associates' rates are between $425 and $740 per hour. The paralegals' rates are between $255 and $385.

Mr. Olson is the only lawyer on these statements billing at $1,800 per hour. However, I found articles on the internet from 2012 that set Mr. Olson's billing rate at $1,800 per hour back then. His rate was still $1,800 on these invoices and his time entries end in September 2014. It is reasonable to conclude that he has increased his billing rate since September 2014, especially considering that he had been billing at the same rate at least as far back as 2012. I wonder if he's now at $2,000 per hour.

If you've ever wondered what it would cost to have one of the best law firms in the world on your side, today is your lucky day. Just imagine receiving this bill in the mail at the conclusion of your case. If you are unable to view the file below, I have also linked to the bills HERE.

Friday, February 5, 2016

ISBA Issues Report on Recent Law School Graduates

The Illinois State Bar Association has issued its Report and Recommendations of the Special Committee on the Impact of Current Law School Curriculum on the Future of the Practice of Law in Illinois (here). The Report explores ways to ensure that law school graduates are “prepared for the realities facing new lawyers in today’s legal marketplace.” According to the Report, the top complaint of experienced attorneys about their new colleagues is the inability to write clearly, concisely, and accurately. The Report also concludes that graduates fall short in:

Drafting Legal Documents
Recognizing Legal Issues
Performing Legal Research
Organizational Skills
Exposure to Alternative Dispute Resolution Methods
Problem Solving
Professionalism and Work Ethic
Understanding Civil Case Chronology:
Business Skills
Practical Application of Evidence Rules

Friday, January 15, 2016

Gambling Bankruptcy Court

When a person files bankruptcy, all of his property is transferred into a theoretical pot known as the bankruptcy estate. The bankruptcy trustee can then sell items from the bankruptcy estate to pay back the creditors, subject to certain limitations and exemptions.

A 73-year-old man from Michigan recently filed bankruptcy. One of his assets at the time was his right to receive $1,000 per month for life pursuant to a Michigan Lotto "Cash for Life" jackpot that he won back in 1984. The cash payments for life became part of the bankruptcy estate and were subsequently auctioned by the trustee. The catch, however, is that as soon as the debtor dies, the payments will stop

How much would you pay to receive $1,000 per month for the rest of a 73-year-old bankruptcy debtor's life? The winning bid was $40,026. It's kind of ironic that gambling is probably what lead the old dude into bankruptcy to begin with, but then his creditors had to gamble in an attempt to get their money back. If he lives for another 20 years, the winning bidder will have hit the jackpot.

HERE is a link to a news article about the bankruptcy sale.