NBC News Age-Discrimination Suit Trial Start Postponed – Update

By Patrick Hipes and Dominic Patten
(Deadline.com)

UPDATE, 11:40 AM: Looks like Frank Snepp’s age-discrimination battle with NBC News will not be going to trial today as scheduled. The proceedings never really started on Monday morning as L.A. Superior Court Judge Rolf Treu said he will not be overseeing the matter. A new judge is now going to be named in the case and a new start date for the trial is expected at the same time.

The now 72-year old former CIA analyst and award winning producer first sued NBCUniversal and Comcast on October 1, 2013 claiming that he had been dropped from LA affiliate KNBC in late 2012 due to his age. NBC News lost an attempt to dismiss the case back in August.

PREVIOUS, NOV. 6PM: A November 9 trial date in Los Angeles Superior Court has been set for ex-KNBC TV investigative producer Frank Snepp’s age-discrimination lawsuit Printagainst NBC News and parents NBCUniversal and Comcast. Snepp, now 72, filed suit in October 2013 after he was fired the year before by KNBC News Director Steve Carlston, who cited no cause and who informed him his “content producer position” was being eliminated. But Snepp claims the local L.A. affiliate still was producing investigative news stories and was keeping its three much-younger investigative producers on staff.

In August, Judge Stephen Moloney refused the media giant’s best efforts to have the Emmy- and Peabody-winning journalist’s case thrown out. Moloney said in a motion for summary judgment hearing that Snepp, a former CIA analyst, had provided enough evidence that a “discriminatory motive” was a factor to be able to move forward.

NBC claims Snepp was let go from KNBC because he was no good at his job. Since being hired in 2005, his worked help win the station three Emmys, a Peabody and a Western Region Edward R. Murrow Award.

Snepp seeks compensatory damages and punitive damages for wrongful termination. He is repped by Suzelle M. Smith and Archibald “Ames” Magill Smith IV of Howarth & Smith. NBC is repped by Bart Williams of Munger, Tolles & Olson.

Too Old for NBC?

By Christen Kalkanis
(The Hofstra Labor & Employment Law Journal)

The Age Discrimination in Employment Act of 1967 (hereinafter “the ADEA”) was enacted by Congress to forbid employers from treating someone less favorably because of their age. It further prevents employers from hiring or firing potential or current employees specifically over the age of forty.¹ In order for a Plaintiff to recover in an age discrimination suit, they were required to satisfy these four elements: (1) he is within the protected class, i.e., is over forty; (2) he was qualified to have been retained; (3) he suffered from an adverse employment action; and (4) the employer retained a sufficiently younger and similarly situated individual to permit a reasonable inference of age discrimination.² Since then, tens of thousands of cases have been filed by various people alleging age discrimination by their employers.³ One specific case seen recently has further enforced the Supreme Court decision that element four, outlined in the ADEA, is no longer required to prevail in such a suit.⁴

One case currently being investigated is between reporter Frank W. Snepp and NBC Universal Media LLP.⁵ On October 3, 2013, it was reported that Snepp, a Peabody-Award Winning reporter, sued his former employer, NBC, for firing him because he was simply too old.⁶ Snepp alleged that the “youth movement” occurring at NBC was forcing out investigative reporters older than forty years old, in order to replace them with younger, more vivacious journalists.⁷ At sixty-nine years old, Snepp was a victim of the so-called “youth movement,” and therefore was discharged from his job.⁸ The complaint also included statements claiming that NBC hired reporters under forty years old to replace Snepp soon after he left the station.⁹ NBC fired back arguing that Snepp was discharged from his decade-long stint at the news station for “poor job performance” and not because of his age.¹⁰ They also argued that there is no evidence to prove that Snepp was in fact replaced by a younger reporter, and thus moved for a summary judgement motion.¹¹ NBC relied on Hersant v. Dep’t of Soc. Servs., a California Appellate Court case from 1998, to support their argument that the claimant must “present evidence that his demotion was based on age discrimination” specifically showing that a younger replacement was indeed forthcoming.¹²

Recently, a California Superior Court ruled that the case will not be thrown out, and instead will proceed to trial.¹³ In his holding, Judge Moloney stated that NBC’s dependence on the Hersant case was invalid because “Hersant expressly stated that it was unclear whether replacement by a younger person is a required element of the prima facie case.”¹⁴ In fact, the United States Supreme Court clearly outlined in a 1996 holding that the McDonnell Douglas test will be what one must adhere to when claiming age discrimination.¹⁵ More precisely, the test states that “adequate evidence is required to create an inference that an employment decision was based on illegal discriminatory criterion.”¹⁶ Finding that the Defendant hired a younger employee as one’s replacement is not necessary nor a requirement. The holding further discloses that asking a Plaintiff to prove that he was replaced by a younger employer would go against the protections Congress tried to build; it would create situations in which it is acceptable to discriminate as long as the employee fired was replaced by a person age forty or older.¹⁷ Therefore, in November when this case proceeds to trial, we will find out if Mr. Snepp’s claim against NBC will prevail.

---

¹ See 29 U.S.C. § 631(a).

² Elwell v. PP & L, 47 Fed.Appx. 183 (3d Cir.2002)(quoting Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.1995)).

³ See, e.g., Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir. 1998); DiMascio v. Gen. Elec. Co., 27 A.D.3d 854, 812 N.Y.S.2d 145 (2006).

⁴ See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134, 120 S. Ct. 2097, 2101, 147 L. Ed. 2d 105 (2000); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

⁵ Frank W. Snepp v. Comcast Corp., 2013 WL 5469508 (Cal.Super. 2013).

⁶ See id; See Bonnie Eslinger, NBC Can’t Nix Peabody-Winning Reporter’s Age Bias Suit, Law 360 (Aug. 28, 2015, 7:47 PM), http://www.law360.com/employment/articles/696886/nbc-can-t-nix-peabody-winning-reporter-s-age-bias-suit-?about=employment.

⁷ Frank W. Snepp, 2013 WL 5469508 at 2.

⁸ See id.

⁹ See id.

¹⁰ Frank W. Snepp, 2013 WL 5469508 at 2; see also Eslinger supra, note 6.

¹¹ See id.

¹² Hersant v. Dep’t of Soc. Servs., 57 Cal. App. 4th 483, 485 (1997).

¹³ Frank W. Snepp, 2013 WL 5469508 at 2; see also Eslinger, supra note 6.

¹⁴ See id (explaining that the standard requiring an actual replacement of an older employee by a younger employee is ambiguous).

¹⁵ McDonnell Douglas Corp., 411 U.S. at 796.

¹⁶ O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S. Ct. 1307, 1310, 134 L. Ed. 2d 433 (U.S. 1996), quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

¹⁷ See id.

NBCUniversal Headed to Trial Over Reporter's Age Discrimination Claims

by Eriq Gardner
(The Hollywood Reporter)

Frank Snepp, former KNBC investigative reporter, was fired at the age of 69.

At age 72, Frank Snepp is quietly having a remarkable year and now could be on the verge of a trial against NBCUniversal.

Snepp was once an analyst for the Central Intelligence Agency whose Vietnam-focused book Decent Interval triggered a dispute with the U.S. government over whether he could publish without pre-approval. The case resulted in a landmark 1980 Supreme Court ruling upholding his confidentiality obligations over the First Amendment rights of a whistleblower. The decision was leaned upon by a retired naval officer who sued over Citizenfour, the Edward Snowden doc that won an Oscar for Best Documentary Film. At the Academy Awards earlier this year, Citizenfour beat out Last Days in Vietnam, which featured Snepp as one of the primary interviewees.

The interesting year for Snepp may have started with connections to two celebrated documentary films, but it may end with a notable trial.

After working at the CIA, Snepp became an investigative journalist, breaking news about the Iran Contra scandal, Monica Lewinski, SEAL Team 6, and more. In his career, he's won many prizes including a Peabody.

In 2006, he was hired by LA's KNBC as a field producer. Two years later, he was re-hired as a content producer. Despite his career achievements, Snepp was terminated in 2012.

In a lawsuit against KNBC, NBCUniversal and Comcast, Snepp asserts that the reason for his firing was his advanced age. He was terminated just six weeks after NBC resolved a lawsuit with AEG stemming from his investigative piece about fire protection failure issues at the Staples Center. He alleges a new team had come in to lead news at the NBC station and that he was subjected to comments from superiors like "some people just see you as a grumpy old man who oughta just quit."

The defendants brought a summary judgment motion that argued that to establish discriminatory motive, Snepp had to show a younger person replaced him.

Judge Stephen Moloney responded that it's not clear "whether replacement by a younger person is a required element of the prima facie case" and further rules that Snepp has raised a triable issue over the reasons for his termination.

NBC is arguing Snepp was fired for inadequate performance while Snepp alleges such a review was a pretext.

According to the judge's ruling: "Here, Plaintiff has submitted evidence that suggests age-animus based on the believed reason why Plaintiff was removed as an on-air commentator and new leadership wanting to phase out older employees. Additionally, Plaintiff has submitted evidence of ageist-statements that Plaintiff should quit or retire because of his age. Defendants argue that the ageist-statements are stray remarks; however, the probative value of challenged remarks turns on the facts of each case."

Maloney does allow NBC to escape Snepp's claim for retaliation. The judge finds there's no evidence presented that the decision makers knew that Snepp made had made complaints to the station's human resources department.

Nevertheless, represented by Howarth & Smith, Snepp advances on the larger discrimination allegation. A trial is currently scheduled for November 2.

NBC Can’t Nix Peabody-Winning Reporter’s Age Bias Suit

By Bonnie Eslinger
(Law360, Los Angeles)

A California judge on Friday refused to toss age discrimination claims against NBCUniversal Media LLC brought by a fired investigative journalist, saying the Peabody Award-winning reporter needn’t show he was replaced by someone significantly younger to prove older workers in the newsroom were treated less favorably.

Los Angeles Superior Court Judge Stephen Moloney’s ruling keeps journalist Frank W. Snepp’s suit on track for a Nov. 2 trial. A reporter for the network's Los Angeles affiliate, KNBC-TV, Snepp sued in October 2013, alleging he was the victim of the station's efforts to appeal to a younger demographic when he was terminated in October 2012 at age 69.

In its motion for summary judgment, NBC argued that Snepp's claims of age discrimination failed because he couldn’t prove he was performing competently in his position when he was fired. He also couldn’t establish he was replaced by someone significantly younger, the network said.

Judge Moloney said in his Friday ruling that NBC’s reliance on another age discrimination case, Hersant v. Dept. of Social Services, to make that point was misguided.

“Hersant expressly stated that it was unclear whether replacement by a younger person is a required element of the prima facie case,” Moloney wrote in his ruling. “Indeed, the prima facie case only requires circumstances that suggests discriminatory motive ... for which the analysis is whether otherwise similarly situated employees were treated more favorably.”

NBC claims Snepp was terminated for poor job performance, not for being too old.

Judge Moloney said while Snepp couldn’t establish pretext by “simply disputing the legitimate reasons” the network put forward for his firing, the journalist had presented sufficient evidence raising triable issues of fact on his claim that age was the real reason NBC dumped him.

Snepp, who was a chief intelligence analyst for the Central Intelligence Agency in North Vietnam during the Vietnam War, has decades of television news experience under his belt. He was hired by NBC in 2005 at the age of 61. One year later, he earned the prestigious Peabody Award for a four-part series that investigated environmental and safety hazards at the site of commercial-residential development in southwest Los Angeles.

According to Snepp's complaint, around 2009, NBC started focusing on its online content, and began marginalizing Snepp and other older employees. In August 2010, there was a change in leadership at the station: Vickie Burns, the new news director, frequently stated her desire to appeal to a young audience of 20-somethings, Snepp said.. Once, at a morning staff meeting, Snepp alleges that Burns turned to him and said, ‘Some people just see you as a grumpy old man who oughta just quit.'"

Burns also allegedly scolded another manager, NBC Platform Manager Todd Reed, after he put Snepp on air to provide commentary for the breaking story of Osama bin Laden’s death in May 2011.

"Mr. Reed believed he had been instructed to pull plaintiff because he was an old 'veteran' employee,” Snepp’s suit states. “Plaintiff and Mr. Reed agreed that older employees seemed to be losing out in the newsroom.”

Snepp's civil complaint says his experience with ageism was not unique. Throughout his employment, he made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences to his superiors. Snapp's suit also claims he was retaliated against for speaking out about the age discrimination at the station.

That cause of action, however, was struck Friday by Judge Moloney, who agreed with NBC that Snepp failed to show a causal link between his complaints about age discrimination to the network’s human resources and legal departments and the news managers who fired him.

“Even if the Court considered Plaintiff’s ... self-assessment as protected activity, no evidence is presented to support knowledge by the decision makers of any protected activity asserted by Plaintiff,” Judge Moloney wrote.

Representatives for the parties could not be reached for comment on Friday.

Snepp is represented by Suzelle Smith and Ames Smith with Howarth & Smith.

NBC is represented by Janice P. Brown, Stacy L. Fode and Meagan E. Garland of Brown Law Group.

The case is Frank W. Snepp v. Comcast Corp. et al., case number BC523279, in the Superior Court of the State of California, County of Los Angeles.

NBCUniversal Heading To Trial In Age Discrimination Case From Award-Winning Ex-KNBC Producer

By Dominic Patten
(Deadline)

It’s looking more and more certain that Frank Snepp is going to get the trial he wants against NBCUniversal and Comcast. A L.A. Superior Court Judge today refused the media giant’s best efforts to have the Emmy and Peabody-winning journalist’s nearly 2-year old age discrimination case thrown out. That means the November 2 jury trial start date is still on the calendar – and approaching probably too fast for Comcast.

The former CIA analyst first filed suit on October 1, 2013 claiming that he had been pink slipped from LA affiliate KNBC the year before due to his age. Hired by the station in 2005 at the age of 61 as an investigative reporter and producer, Snepp was canned on October 1, 2012. In his 2013 lawsuit, the then 70-year old journalist claims that the tone and leadership really changed at KNBC after Comcast announced its acquisition of NBCUniversal in late 2009.

Judge Stephen Moloney said in a motion for summary judgment hearing on Friday that Snepp had provided enough evidence that a “discriminatory motive” was a factor to be able to move forward to a wrongful termination trial. NBC claims Snepp was let go from KNBC because he was no good at his job. Which is a very odd thing to say about a guy who helped bring the very prestigious Peabody to the station soon after joining them in May 2005.

Snepp also alleged in his 2013 filing that he was punished for being “outspoken” and complaining about the treatment older employees were subjected to. “Plaintiff was replaced by investigative reporter(s) either under 40 or who were substantially younger than he,” said the complaint that also sought unspecified damages for retaliation as well as the claim of discrimination against Comcast, NBCUniversal, NBC News and NBC 4 (AKA KNBC). Snepp claimed that his direct supervisors knew of his complaints to human resources at KNBC and decided to finally fire him because of it. That part the judge wasn’t having and trimmed it from the case. “No evidence is presented to support knowledge by the decision makers of any protected activity asserted by Plaintiff,” said Judge Moloney’s ruling today.

Last August, Snepp filed a very similar second wrongful discrimination suit against basically the same parties. At the time, it looked like his first case might have come to a quick end. But that didn’t happen and it didn’t happen again today.

A protective order hearing is set in the matter on September 21 and then a Final Status conference on October 22. If they go to plan and Comcast and NBCU don’t make any more significant filing, there’s going to be a trial starting 11 days later. Of course, doubt KNBC will have their cameras in there filming the proceedings.

CEO Should Not Be Part of Lawsuit, Company Maintains

By Lois A. Bowers
(McKnight's Senior Living)

Forrest Preston

Some media reports about the ongoing False Claims Act lawsuit involving Life Care Centers of America have been misleading, according to the company.

Life Care Centers of America says that the company's founder, CEO and chairman, Forrest Preston, has not been named a defendant in the case; rather, the government has asked that he be added as a defendant, Life Care Centers' Beecher Hunter tells McKnight's Senior Living.

The government originally filed the lawsuit against the company in 2008. Prosecutors asked that Preston—the sole shareholder of the Cleveland, TN, provider of independent and assisted living, Alzheimer's and memory care, inpatient and outpatient rehabilitation and skilled nursing at more than 220 locations in 28 states—be added as a defendant in early August. They maintain that he personally saw financial gains from overbilling the federal government for medical services provided to residents. In a 20-page motion filed in a U.S. District Court, however, attorneys for Life Care Centers say that the request comes too late, is without merit and would delay resolution of the case.

"The motion to include Mr. Preston as a named defendant in the case adds no new claims whatsoever," attorney Don Howarth of Howarth and Smith, said in a statement posted on the Life Care Centers website. "It is puzzling that the government would seek to include Mr. Preston as a party at this late date when it made a conscious choice not to do so at the outset. Life Care continues to believe in the best interest of its patients and in its important therapy programs. Life Care will not bow to government pressure by way of including Mr. Preston in the case or otherwise, and will continue to vigorously defend the lawsuit and stand up for the rights of its patients to obtain full rehabilitation therapy."

A judge in the case is waiting for a response from the government before ruling on Life Care Center's motion that Preston not be added to the lawsuit.

Supplement Marketer EFT Holdings Mired in Pyramid Scheme Lawsuit

by Josh Long
(Natural Products Insider)

A company that markets U.S.-made nutritional products through affiliate members in China is fighting a pyramid scheme lawsuit.

EFT Holdings Inc. sells 27 different nutritional products including oral sprays and operates through 1.26 million registered affiliate members, most of whom reside in China and Hong Kong, according to an annual filing with the Securities and Exchange Commission.

A second amended lawsuit, filed in May against EFT and several officers and directors, claimed the defendants have perpetrated an endless chain scheme in violation of California law. The plaintiffs Yunxia Wang, Fengqin Xu and Qun Xu—all citizens of China—also alleged violations of California’s False Advertising Law, California’s Unfair Competition Law, the common law, and the Racketeer Influenced and Corrupt Organizations (RICO) Act.

On July 21, federal judge Dale Fischer dismissed the plaintiffs’ RICO claim. Fischer also granted defendants’ motion to dismiss the claims against the officers and directors, but she gave the plaintiffs another chance to amend their non-RICO claims.

In a separate ruling last week, Fischer found that one of the law firms representing the plaintiffs, Locke Lorde LLP, wasn’t suitable class counsel. She pointed out that the law firm’s predecessor in interest had failed to file for class certification within a deadline, and that Locke Lorde was being sued as a result of the prior conduct. But the court rejected the argument that a separate law firm, Howarth & Smith, couldn’t serve as class counsel.

Don Howarth, a partner and co-founder of Howarth & Smith, described EFT as “a complete pyramid scheme."

“They take advantage of gullible individuals by selling them junk that they label as mineral supplements," Howarth said in a phone interview. “That’s dirt and lead. That isn’t good for mineral supplements. That isn’t good for these people. We want to get this stopped and we want to get damages for them."

The plaintiffs sampled four EFT products and discovered that they were mislabeled, containing substances including alcohol content that was not referenced on the label, and less than the stated amounts of other ingredients, according to the May 11, 2015 complaint. The lawsuit also referenced a 2009 warning letter that FDA sent to EFT Biotech Holdings Inc. In the letter, FDA said a product known as Celprotect I was adulterated because it contained lead.

In May, the plaintiffs moved to certify as a class individuals who purchased EFT products and paid money to become EFT affiliates. EFT hasn’t responded yet to the motion.

Neal Marder, a Los Angeles-based lawyer who represents EFT, said in a phone interview that the company planned to mount a vigorous defense and believed the “case has absolutely no merit." He denied that the company is a pyramid scheme and that the products are misbranded.

“Those allegations are completely meritless, and we intend to prove that during the discovery phase of the case, which is coming up," said Marder, a partner with the global law firm Winston & Strawn LLP.

The parties are exchanging documents and are scheduled to take depositions in August and September, added Marder, whose law firm represents all the defendants other than EFT chief executive Jack Qin. Qin is represented by a separate law firm, Scheper Kim & Harris LLP. Marc Harris, a lawyer representing Qin, did not immediately respond to a request for comment.

While pyramid schemes take many forms, the Federal Trade Commission’s former general counsel Debra Valentine described the classic characteristic of a pyramid scheme in a 1998 speech: promising “consumers or investors large profits based primarily on recruiting others to join their program, not based on profits from any real investment or real sale of goods to the public."

“There are two tell-tale signs that a product is simply being used to disguise a pyramid scheme: inventory loading and a lack of retail sales," Valentine explained.

EFT, a publicly traded company (ticker: EFTB) whose shares are quoted on the OTC (Over-The-Counter) Bulletin Board, only sells its nutritional, personal care and other products to its affiliates and through its website, according to its annual regulatory filing.

The company said on its website that its consumers hail from more than 100 countries.

A person cannot become an affiliate unless he is recommended by another affiliate and makes a minimum purchase of $600, excluding $60 in shipping and handling fees, the filing explained. EFT said it pays affiliates a commission on products that they order from the company, representing 58 percent of the order’s dollar amount.

The company has reported declining sales and millions of dollars in tax liabilities. For the year that ended March 31, 2015, EFT’s sales orders fell from $2.6 million to $1.3 million, while the company was encumbered with California and federal tax liabilities totaling $5.4 million, according to its annual filing. However, EFT plans to challenge $3.6 million (plus accrued interest and penalties) in taxes that the Internal Revenue Service believes is due after the agency audited the company’s previous returns.

EFT raised a “substantial doubt" that it could “continue as a going concern." The filing noted EFT’s continuing operations is “dependent upon obtaining further long-term financing, successfully appealing the proposed adjustment of $3.6 million with the IRS, collection of the Company’s prepayment on development in progress of $20.7 million and achieving a profitable level of operations."

EFT said it has no sales activities in the United States. In China, where the named plaintiffs and many of EFT’s affiliates are based, the government has imposed some of the world’s strictest controls on direct selling. Global nutritional companies including Herbalife Ltd. operate a different business model in China due to the government regulations.

Family Lobs Appeal Over Being Barred In NYC Tower Suit

By Natalie Rodriguez
(Law360, New York)

In the latest turn in a New York federal court suit over the sale of Iran's interest in a federally seized Manhattan tower, a family that was recently denied a request to intervene in the action filed an interlocutory appeal on Tuesday, contending that they should have an equal opportunity at taking a bite out of the proceeds.

Jeremy Levin, who was kidnapped in 1984 by terrorists allegedly funded by Iran, and Lucille Levin transmitted the notice to the U.S. Court of Appeals after having a motion to intervene denied by U.S. District Judge Katherine B. Forrest. In that denial, the judge called the Levins' motion untimely and argued that the court lacked the jurisdiction to entertain the request since the case over 650 Fifth Avenue is currently on appeal before the Second Circuit and it would be wrong for the family to jump in while that appeal is pending.

The Levins, however, argue that it is wrong that 650 Fifth Avenue's existing summary judgment creditors can take a piece of the forfeited funds and that the Levins are left out because they allegedly did not get proper notice about the opportunity to join in several years ago. The Levins hold a $28.8 million judgment against the Islamic Republic of Iran, the Iranian Ministry of Information and Security and the Iranian Islamic Revolutionary Guard Corps, according to court documents.

“The seizure of Iranian funds by the government is premised on the idea that it will fairly distribute them to all victims with valid claims. The government will have to explain to the Second Circuit why it is denying the Levins, who without question are victims of Iranian terrorism, any share whatsoever of this forfeiture fund. Equals should be treated equally,” Suzelle Smith of Howarth & Smith, an attorney for the Levins, told Law360.

Judge Forrest, however, has argued that it would be wrong to let the Levins in at this stage in the suit.

“If the court grants the motion to intervene, the Levins would have standing to participate in the appeal and could disrupt the appellate proceedings, which have been ongoing for nine months,” the judge said on March 12, denying the Levins' motion.

Forrest went on to add, however, that even if the court had jurisdiction, the Levins' motion must be denied for the same reasons why she denied a similar motion by Akbir Associates LLC in 2014 — namely that the family is too late to the table given that the suit is six years in and that the court granted summary judgment to existing judgment-creditor plaintiffs about a year ago.

The judge has argued that it would be unfair to existing parties in the 650 Fifth Avenue case, who have already entered into a settlement for the funds.

In February, U.S. Department of Justice attorneys argued that the Levins' motion to intervene should be denied for untimeliness, the potential prejudice to current plaintiffs and failure to show a legally protectable interest.

The government also blasted the Levins’ argument that it had failed to properly notify them that they were potential claimants to the suit, noting that the published notice allowed vigilant parties with an interest to intervene and that more than a dozen judgment creditor claimants were able to do so.

“The Levins, like the judgment-creditor plaintiffs in this action, were entitled to notice by publication and no more,” Judge Forrest said in her March 12 order denying the motion to intervene.

The Levins are represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

The case is In re: 650 Fifth Avenue and Related Properties, case number 1:08-cv-10934-KBF, in the U.S. District Court for the Southern District of New York.

B-Movie King Roger Corman Ripped Off by Ponzi Schemer for $60 Million?

By NATIONAL ENQUIRER online staff

Hollywood’s legendary B-movie king ROGER CORMAN is embroiled in his own personal “Little Shop of Horrors” after a Ponzi schemer allegedly scammed $60 million from him, according to a blockbuster new lawsuit.

Roger, 88, who famously launched the acting careers of such stalwarts as Jack Nicholson and filmmaking legends Martin Scorsese and Francis Ford Coppola after striking drive-in gold with his series of Edgar Allan Poe/Vincent Price films may be facing financial ruin.

Roger who netted an honorary Oscar in 2010 for his no-holds-barred style of low budget filmmaking and his mentoring of fresh talent like Robert DeNiro and Ron Howard was also responsible for introducing Europe’s biggest filmmakers like Ingmar Bergmann to U.S. audiences through his distribution company.

The NY Post reported that Roger and his producer wife Julie's finances could be imperiled after $73 million of it was unwittingly invested by a hedge-fund manager, according to a bombshell lawsuit filed this week.

According to legal papers, the money was funneled into a Ponzi scheme run by Alphonse “Buddy” Fletcher in 2008 despite finance company Citco’s promise to keep the money “safe (and) secure”.

While $13 million has been recovered another $60 million is still reputedly unaccounted for.

Roger’s attorney Don Howarth told the NY tab, “He doesn’t have any idea he has his own ‘Little Shop of Horrors’ brewing with his investment manager.

“It’s like something right out of his horror movies — a nightmare.”

A Citco spokesman declined to comment to media on the lawsuit.

Roger Corman Lawsuit Blames Citco for Losing $60 Million of Family's Money

By Eriq Gardner
(The Hollywood Reporter)

Larry Busacca/Getty Images

The famed filmmaker says he wasn't told that his money was being managed by troubled hedge fund manager Buddy Fletcher.

Roger Corman and his wife Julie Corman, together responsible for hundreds of films and the mentoring of some of Hollywood's biggest directors and actors, have filed a lawsuit that says they put money in an investment fund managed by George Soros before the money was moved and they ended up losing up to $60 million.

According to the complaint filed in Los Angeles Superior Court on Monday, the administrator of the Soros fund was the Citco Group. The Cormans' primary contact there was Ermanno Unternaehrer.

In 1996, Unternaehrer convinced the Cormans to put money in a fund managed by Citco, instead of with Soros, alleges the complaint. The Cormans say they were told that "the Citco fund was a safe, secure place to invest their moneys, and that Citco would administer and manage the fund to ensure continued high performance."

For the next six years, things seemed fine. In 2002, Unternaehrer is said to have recommended that a vehicle named "Pasig, Ltd" be set up in the British Virgin Islands for tax reasons. Corman says he initially was a director of the newly incorporated company, but a few months later, upon advice, Corman says he resigned, becoming only a signatory on the account. By 2008, the lawsuit says that there was $73 million under Citco's "complete control" and management fell to Alphonse "Buddy" Fletcher.

If the name rings a bell, it's because Fletcher's financial troubles have been well detailed by the financial press. A court-appointed bankruptcy trustee once said that Fletcher's failed hedge fund "had many of the characteristics of a Ponzi scheme." Fletcher is also married to Ellen Pao, the former junior partner at venture capital firm Kleiner Perkins who is currently suing the firm for gender discrimination. Pao is now the chief executive at Reddit. The judge in Pao's headline-making lawsuit wouldn't let Kleiner Perkins bring up Fletcher's financial troubles at trial.

The Cormans say they were not informed that the Pasig moneys were being transferred to Fletcher's management.

"Citco did not make this transfer of management to Fletcher in good faith based on the business or financial interests of the Cormans, but rather to further its own interests," they say in the complaint. "Citco was facing criticism from other clients for its conflicting role as both a bank and the manager of investment funds, and the transfer to Fletcher allowed Citco to mitigate this criticism. In addition, Citco obtained a payout to itself of at least $28 million for the transfer of management, along with other benefits for Citco and its representatives."

The lawsuit further alleges that Citco was familiar with Fletcher's operations, that Unternaehrer obtained $6.6 million in cash from Fletcher in a side deal, and that "Citco knew or should have known at the time of the transfer that Fletcher would be a poor manager of the fund, and that he was already engaged in fraud and mismanagement of other funds under his control."

The Cormans say their money got invested in the same Fletcher entity as the Louisiana Firefighters pension fund, which is currently subject to ongoing litigation over asset management. However, the Cormans imply they were even in a worse position. "Fletcher promised the Louisiana Firefighters pension fund that it would always obtain at least a 12% return on its investment," states the lawsuit. "Citco agreed to subordinate the rights of the Cormans' fund in the Fletcher entity to those of the Louisiana Firefighters Pension fund, even allowing Fletcher to reduce the value of the Cormans' funds in the entity in order to ensure that 12% return to the Firefighters."

The Cormans say that just four months after the money landed in Fletcher's hands, Citco removed the Cormans as signatories to the Pasig count, thus taking away their last remaining control over the money. By 2009, the Cormans say they were no longer receiving account statements. And when the "red flags" came, the Cormans say that Citco "intentionally concealed" material information.

Only $13 million of the $73 million was recovered, say the Cormans in a lawsuit that alleges 12 causes of action including breach of fiduciary duty, fraud, misrepresentation and unjust enrichment. The Cormans are represented by Don Howarth and Suzelle Smith at Howarth Smith. A rep for Citco wasn't immeidately available for comment.

B-Movie King Sues Citco Over $60M Ponzi Scheme Loss

By Brandon Lowrey
(Law360, Los Angeles)

Legendary B-movie director Roger Corman on Monday sued Citco Group Ltd. alleging it tricked him and his wife into withdrawing millions from a successful fund managed by George Soros and investing it in what turned out to be a Ponzi scheme, resulting in a $60 million loss.

In a complaint filed in Los Angeles Superior Court, Corman and his wife, film producer Julie Corman, allege Citco and related companies convinced them to invest millions with the financial services company, which later secretly put the funds under the control of a Ponzi schemer. Citco discovered the Ponzi scheme and removed its own funds but left the Cormans' money there to "go down with the ship," Corman's attorney Don Howarth of Howarth & Smith told Law360 on Tuesday.

"This gives new meaning to breach of fiduciary duties," Howarth said. "This is as extreme as I've seen. ... The whole point of [being] a fiduciary is putting your interests not ahead of your clients' interest but behind it. They reversed that."

According to the complaint, a Citco representative convinced the Cormans to invest with the company in late 1996. In 2002, Citco recommended setting up a corporation in the British Virgin Islands for tax purposes, and created Pasig Ltd. to manage the Corman's funds.

Roger Corman was initially a director of Pasig, but Citco employee and defendant Ermanno Unternaehrer told Corman that he should resign for tax purposes. In June 2008, Citco transferred control of the Cormans' funds to Alphonse "Buddy" Fletcher without telling the Cormans.

Citco obtained a payout of $28 million from the transfer. Unternaehrer allegedly arranged a side deal with Fletcher that netted him $6.6 million, the complaint says.

Meanwhile, Citco was an administrator for Fletcher's funds and knew he was struggling — he had not made a single profitable investment in the 10 months preceding the transfer and was having trouble paying back loans, the complaint said.

In addition, the $28 million that Fletcher paid Citco for the transfer of the Pasig funds came from money invested by the Louisiana Firefighters Pension Fund, which is also suing Citco over the Ponzi scheme, according to the complaint.

Citco had withdrawn its own funds from Fletcher's management without telling the Cormans, the suit says.

"Had Citco told the Cormans that it was pulling its money out of the Fletcher funds, the Cormans would not have left their own funds invested with Fletcher at the time," the suit says.

Citco later tried to withdraw the Cormans' funds in May 2010, but was unable to do so. In the summer of 2013, the Cormans were able to recover just $13 million of the $73 million that had been invested in Pasig, the complaint said.

Corman's suit alleges Citco breached its contract and fiduciary duties, committed fraud, negligence and other claims.

Representatives for Citco did not immediately respond to a request for comment Tuesday.

Corman is represented by Don Howarth, Suzelle M. Smith, Padraic Glaspy, and Jessica L. Rankin of Howarth & Smith.

Counsel information for the defendants was unavailable.

The case is Roger W. Corman et al. v. Citco Group Ltd. et al., case number BC576379, in the Superior Court of the State of California, County of Los Angeles.

--Editing by Emily Kokoll.

Filmmaker Roger Corman Sues Over Losses From Buddy Fletcher

by Edvard Pettersson
(Bloomberg)

Filmmaker Roger Corman sued a hedge-fund administrator that he blames for losses of as much as $60 million when money manager Alphonse “Buddy” Fletcher’s master fund went bankrupt.

Corman, whose movies include Edgar Allan Poe adaptations “House of Usher” and “The Raven,” and his wife claim that Citco Group Ltd. in 2008 transferred its management of $73 million in a Virgin Island entity to

Fletcher without telling them, and should have known better. “Citco did not inform the Cormans that Fletcher would be a poor manager or that he was already engaged in fraud and mismanagement of other funds under his control,” the Cormans said in a complaint filed Monday in state court in Los Angeles.

Fletcher is the husband of Ellen Pao, the former junior partner at Kleiner Perkins Caufield & Byers whose gender discrimination lawsuit against the Silicon Valley venture capital firm is on trial in San Francisco state court.

The U.S. trustee in charge of liquidating Fletcher International Ltd. said in 2013 that Fletcher’s company was a fraud that didn’t make a single profitable investment after Aug. 31, 2007. According to the trustee, Fletcher funnelled money out of the fund before it went bankrupt with the intent to defraud investors.

Corman accuses Amsterdam-based Citco Group of breach of fiduciary duty, constructive fraud and negligence, among other claims. He seeks unspecified damages.

Andrew G. Gordon, a lawyer who represents Citco Group in a lawsuit brought by three Louisiana pension funds over losses from their investments in Fletcher’s fund, declined to comment on Corman’s lawsuit.

Fletcher didn’t immediately respond after regular business hours to a phone message left for him at a number listed in court records.

Gov’t, Court Slap Down Claimant Hopefuls in NYC Tower Suit

By Natalie Rodriguez
(Law360, New York)

The U.S. government on Wednesday blasted a family looking to intervene in a suit over the sale of Iran's interest in a Manhattan tower as being too late to the table, on the heels of a New York federal judge denying another party looking to become a claimant to the assets.

In a letter to U.S. District Judge Katherine B. Forrest, U.S. Department of Justice attorneys argued that a motion to intervene by Jeremy Levin, who was kidnapped in 1984 by terrorists allegedly funded by Iran, and Lucille Levin should be denied for untimeliness, the potential prejudice to current plaintiffs and failure to show a legally protectable interest.

The objection was filed after Judge Forrest denied on Wednesday another would-be claimant’s motion to consolidate his case with the suit over 650 Fifth Ave.

In the letter, the government blasted the Levins’ argument that it had failed to properly notify them that they were potential claimants to the suit. The family holds a $28.8 million judgment against Iran from a 2009 Washington, D.C., case.

“The government provided notice to such reasonably ascertainable potential claimants … But the law contains no support for the proposition that the government must provide direct notice to any entity that may have a potential judgment against Iran, which itself was not even a potential claimant with a clear stake in the action at the time of its inception,” the U.S. government said.

It argued under the Levins’ interpretation, the government would have had to assume the outcome of a Terrorism Risk Insurance Act litigation question that did not exist when the government filed its action in the 650 Fifth Ave. case. Further, it noted that the published notice allowed vigilant parties with an interest to intervene and that more than a dozen judgment creditor claimants were able to do so.

“The government takes seriously the tragic circumstances that led to the Levins’ judgment against the government of Iran, and the frustration that holders of such judgments often encounter in getting those judgments enforced. The recognition of such sympathetic factors does not, however, excuse an untimely bid for an easy judgment, at the expense of other litigants — including other victims of terrorism — who actually acted timely in vindicating their interests,” the government said in its letter.

The Levins have argued, though, that it would be a “miscarriage of justice” to allow other judgment creditors in a similar position to be paid out from the asset sale, while their judgment is left unfulfilled.

On Wednesday, however, the court also leaned on similar arguments in blocking Amir Reza Oveissi, whose grandfather was an Iranian general killed during the 1979 Iranian revolution, from consolidating his Washington, DC., case — which has a $307.5 million claim against Iran — with the New York case.

Judge Forrest contended that the consolidation would be unfair to the current plaintiff-claimants who have a settlement agreement to distribute funds from the property’s sale on a pro rata basis.

“Consolidation would complicate the current settlement agreement between the judgment-creditor plaintiffs and the government … Consolidation at this stage would also undermine plaintiffs’ extensive efforts over several years, including significant discovery, preparation for trial, and ultimately winning summary judgment in their favor,” the order said.

Oveissi had offered to agree to be bound by certain stipulations if he was let in on the case, including not seeking to reopen discovery in the long-running New York suit and being bound by a decision from the U.S. Court of Appeals for the Second Circuit, as well as any further appeal.

"Allowing Mr. Oveissi to participate in the distribution of the forfeited assets would have only had a negligible impact on the amounts received by the other terrorist victims, and it was very disappointing that the court did not allow Mr. Oveissi to participate in that distribution. The outcome of this case will favor some terrorist victims over others, and that is disappointing," James W. Spertus of Spertus Landes & Umhofer LLP, an attorney for Oveissi, told Law360.

He added that the outcome would have made sense if the property was privately located by the plaintiffs, but since the government located and forfeited it, more should have been done to more equally protect citizens' rights.

Oveissi is represented by James W. Spertus of Spertus Landes & Umhofer LLP.

The Levins are represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

The U.S. Government is represented by United States Attorney for the Southern District of New York Preet Bharara and Assistant United States Attorneys Michael D. Lockard, Martin S. Bell and Carolina A. Fornos.

The case is In re: 650 Fifth Avenue and Related Properties, case number 1:08-cv-10934-KBF, in the U.S. District Court for the Southern District of New York.

Family Asks For Spot In Iran-Held NYC Tower Dispute

By Natalie Rodriguez
(Law360, New York)

The family of a terrorist hostage victim who holds a $28.8 million judgment against Iran asked a New York federal court on Wednesday to be let in on a lien priority dispute related to the sale of Iran's interests in a Manhattan tower.

Jeremy Levin, who was kidnapped in 1984 by terrorists allegedly funded by Iran, and Lucille Levin motioned to intervene in the case, arguing that a 2009 Washington, D.C., district court judgment that was registered in New York late last year allows them a spot at the table with other creditors looking to score a piece of the stake sale proceeds.

“It would be a miscarriage of justice to allow the other judgment creditors in the same position as the Levins to recover all of the assets from this action, while the Levins’ judgment is left unsatisfied,” the family argued in a memorandum supporting their motion.

The Levins contend they were informed about the seizure of 650 Fifth Ave. through media reports and were wrongfully not put on notice as potential claimants by the U.S. government. They blasted a 2014 settlement agreement with certain judgment creditors in the New York case that would essentially distribute all the net proceeds of the sale of the building after litigation expenses and sales costs are taken out.

“Thus, the Levins are in the position of having relied upon the rules and upon the representations of the U.S. government in claiming their rights as victims, but having been cut out of any recovery with no due process at all. The court should therefore grant the Levins’ motion to intervene and allow the Levins to pursue their claim to some of the funds in the civil forfeiture action,” the family said in its memorandum.

The Levins are not the only family looking to carve out a spot in the case. The Hegnas, the family of a U.S. diplomat killed by Iranian terrorists, have been fighting for a piece of the proceeds for several years and recently urged the court to consider new evidence that the family contends is sufficient to warrant the renewal of a real property docketing lien, according to court documents. The Hegnas currently have an outstanding motion for partial summary judgment as to the enforcement priority in the long-running case.

With that motion pending, the Levins contend their motion to intervene causes no prejudice to the current litigation parties by delaying the case further and argue that their motion should take less than a month to resolve.

Other plaintiff-claimants, however, have been pushing a motion for summary judgment against the Hegnas’ claimed lien on 650 Fifth Ave.

The Levins are represented by Suzelle M. Smith and Don Howarth of Howarth & Smith.

The case is In re: 650 Fifth Avenue and Related Properties, case number 1:08-cv-10934-KBF, in the U.S. District Court for the Southern District of New York.

The Sheer Force of an Idea

by Cullen Couch
(UVA Lawyer, Fall 2014)

Salisbury Cathedral's Magna Carta

They say that to do injustice is, by nature, good; to suffer injustice, evil; but that the evil is greater than the good. And so when men have both done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither. —THE REPUBLIC, Plato (360 BC)

39– No freeman shall be taken, imprisoned, disseized, outlawed, banished, or any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his Peers or by the Law of the land.

40– To no one will We sell, to none will We deny or delay, right or justice. —MAGNA CARTA (AD 1215)

In June 2015 Magna Carta will turn 800. Its age alone is a wonder. Only by a lucky accident of history did it survive the bloody tumult of its birth, and then centuries of war, revolution, and political upheaval. Magna Carta’s animating principles, derived from ancient concepts of justice, evolved to become the totem for the rule of law in an empire that spanned the globe.

In the 17th century, America’s colonists found in Magna Carta a guarantee. They built legal arguments to redeem it. In the 18th century they fought a war to implement it and wrote a constitution to embed its ideals in a uniquely American form of government. In the 20th century, they stored an early copy of Magna Carta for safekeeping at Fort Knox during World War II. The surviving written copies of the original Charter now reside in damage-proof viewing boxes in Lincoln Cathedral, Salisbury Cathedral, and the British Library, where viewers find inspiration, just as our Bill of Rights to the U.S. Constitution found its inspiration centuries ago.

Magna Carta continues to inspire. Researchers at King’s College London are re-examining rival versions of clauses proposed but ultimately rejected during the negotiations at Runnymede, casting new light on Magna Carta’s meaning. Just this past July a committee of the House of Commons published a report, “A New Magna Carta,” in response to a parliamentary inquiry into the question of a written constitution. And Carlyle Group CEO David Rubenstein paid $21.8 million to own one of the four existing copies.

A. E. Dick Howard ’61, White Burkett Miller Professor of Law and Public Affairs and a noted authority on Magna Carta, is advising the Library of Congress on its forthcoming exhibit, “Magna Carta: Muse and Mentor.” In 2015 Howard will give lectures in London under the auspices of the American Embassy, and will lecture at Oxford’s Bodleian Library, at Salisbury Cathedral (which has one of the four extant copies of the 1215 Charter) and elsewhere in England.

“The 800th anniversary is not so much about celebrating Magna Carta’s origins as it is about explaining how and why the Charter survived and what its legacy is for our time,” he says. “Magna Carta could have died entirely, and yet it didn’t. Instead, it has become a universal symbol of the rule of law, of due process of law, and of limits on government power.”

“Given by Our hand in the meadow which is called Runnymede …”

Magna Carta arose out of the chaotic reign of King John whose profligacy, inept statecraft, and military incompetence had infuriated his barons. Forced by the barons’ might and lacking any popular support, John agreed in 1215 at Runnymede to 63 “chapters” that granted “to all the free men of our realm for ourselves and our heirs for ever, all the liberties written below.”

Almost immediately, John sought to have Magna Carta annulled, and Pope Innocent III issued a papal bull declaring it “null and void of all validity for ever.” The deceit of John and an irate Pope came close to smothering Magna Carta in its crib, but the king died in 1216 of dysentery and a young Henry III succeeded him. Henry’s regents, needing the barons’ support, reissued Magna Carta in 1216 (and again in 1217 and 1225). In 1297 Edward I entered Magna Carta into the statutes of the realm.

An engraved 19th century illustration of King John signing the Magna Carta

It continued to evolve over the centuries through statutory amendments and royal proclamations, some repealing its feudal anachronisms, others restating its fundamental principles (just four of the original chapters remain today—the last few were repealed in 1971).

Magna Carta lay largely dormant during the Tudor period. It was in the seventeenth century that the Stuart kings’ notions of “divine right” brought renewed reliance on the Charter. Sir Edward Coke, the greatest jurist of his time, brought forth Magna Carta as authority for his opposition to the Stuart claims of royal prerogative.

Meanwhile, colonial charter companies were assuring prospective settlers that they would enjoy in America the same rights and privileges of their homeland, understood by them to mean the principles contained in Magna Carta for justice according to “the law of the land.”

Originalism and Historical Meaning

Were the barons who forced a tyrannical king to sign the document thinking of timeless values? No. Were they trying to establish fundamental rights for all? Certainly not. Were their words open to interpretation? Absolutely, and therein hangs a tale.

“It was a bargain struck between King John and the barons who had their own interest at heart,” says Howard. “They were not concerned about posterity, and they certainly weren’t concerned about the common good. A very reluctant King John sealed the document. He would have surely broken his promises. He never intended to keep them.”

Ted White, David and Mary Harrison Distinguished Professor of Law, agrees: “It is less a charter of individual liberties than a rebellion against absolute powers of the monarch by a group of persons interested in preserving their own economic and political and social autonomy against the Crown.”

“Magna Carta was intended to give relief to a handful of angry male barons, but the word ‘barons’ was changed to ‘any freeman,’ and that made all the difference in law,” says Suzelle Smith ’83, co-founder of litigation boutique Howarth & Smith, a visiting fellow at Lady Margaret Hall at Oxford, and an elected fellow and member of the board of directors of the International Academy of Trial Lawyers. “In 1215, there were very few ‘freemen.’ But as time passed, the clause was applied in England to guarantee ‘due process of law’ universally, including to women.”

What Magna Carta’s provisions mean, taking into account their context, is not the same as what Coke understood them to mean when he fashioned his arguments against the Stuart claims. “But the language is broad and a potential source of authority to be interpreted in purposive ways by subsequent interpreters,” says White. “That dimension of Magna Carta can’t be underestimated. It is out there as a legacy of a kind, even though its meaning may not be obvious.”

Magna Carta is interesting for what it meant at the time it was adopted and how it summed up important principles, but its modern legacy flows in part from the uses made of it by later generations. “Magna Carta has been glossed in a way that John or the barons in the 13th century might not recognize,” says Howard, who sees “due process of law” as the actual textual connection between Magna Carta and the U.S. Constitution. The phrase “law of the land” in English history very quickly became interchangeable with due process.

“They’re the same concept,” he says. “Due process has been perhaps the most powerful single organic concept in constitutional law. Throughout the centuries people have poured their contemporary understandings into what due process is all about.

“If I wanted to respect the so-called ‘original meaning’ interpretation of the Constitution, I could argue that, when the framers used the phrase ‘due process of law,’ they understood it to be a constantly evolving concept.” Unfortunately, the framers of the Constitution never made explicit how they wanted future generations to interpret their document; or put another way, their original intent about original intent. But we know they had a perspective framed by deep study of the rise and fall of governments and civilizations.

The American Bar Association’s Magna Carta Memorial at Runnymede.

“We tend to think of historical change as a qualitative development over time so that the meaning of a provision one day might not be the same at a later date in a different context,” says White. “But the framers’ perception was different. They saw history as a cyclical process that approximates the human condition going from early life to maturity to decay and ultimately disintegration. It’s not progressive change. It’s not qualitative change. Instead, it is the recurrence of fundamental principles as the course of a nation’s history evolves.”

When Chief Justice Marshall wrote in McCulloch v. Maryland that the Constitution is designed to be adapted to the various crises of human affairs, he wasn’t saying that the meaning of the Constitution would change over time. “Instead,” says White, “he meant that the foundational principles of the Constitution will need to be restated in different contexts as the context emerges. The crises that require constitutional interpretation are products of changed circumstances, and the interpreter is supposed to solve those problems by restating the original foundational principles. The problem is that that view of history has been abandoned for over a century.”

The Law of the Land in England

While the bones and sinew of Magna Carta dealt with the immediate and specific grievances of the barons in their feudal role, the heart and soul of the document is its Chapters 39 and 40. Those fifty words became the cornerstone of English common law, a nascent form of what would later inform part of the U.S. Constitution. But it took a long time and many turns to get there.

What does Magna Carta mean by “the Law of the land”? It doesn’t say, but over time it became consistent with the idea of the right to trial by jury of one’s peers, to confront accusers, and to appeal. “That’s important because you could imagine in a monarchy that there is no appeal, that everything is done at the pleasure of the monarch,” says White.

Later, in 1368, a statute of Edward III said if a law was in conflict with Magna Carta, it should be “holding for none,” or null and void, essentially treating Magna Carta as a “superstatute, in other words, as a constitution,” says Howard. “It didn’t turn out to be Marbury v. Madison. England still has Parliamentary supremacy, and they don’t have what we call judicial review, but the idea gets planted.”

But it was the ascent of the Stuart dynasty with James I in 1603 that became a “pivot point” in England and America that refined the meaning of “Law of the land.” The new king’s claim of divine right was clearly not a Parliamentary principle and was not consistent with English constitutional traditions.

Penumbras and emanations, brawlers and vagabonds: In researching her book on vagrancy law Professor Risa Goluboff came across a revealing artifact in the substantive due process debate in the mid-20th century U.S. Supreme Court.

In response, Parliament passed a series of acts, particularly the English Bill of Rights, which introduced principles beyond those found in Magna Carta. “Coke and his friends argued that Magna Carta laid down certain precepts which they built upon and enlarged in the quarrels between Parliament and the Crown,” says Howard.

“So, yes, you do have some open-ended language in Magna Carta,” says White, “but it is plain that at the time the United States declared independence from Great Britain, the British citizens did not have a full panoply of individual rights against the Crown. In fact, the Crown and Parliament are still dominant. The lawmaking authority in England is statutory. The British don’t have separation of powers in the full sense that the Americans do, so I think Magna Carta is susceptible of over-generalization.”

Smith notes another glaring difference. “The bedrock of American judicial process, the Constitutional right to a jury of one’s Peers, is straight from Magna Carta. Yet, the English, with no formal written Constitution, have virtually eliminated the right to a jury in civil cases.”

The Law of the Land in America

While Coke was leading the opposition to the Stuarts in England, the first English-speaking colonies were being planted in America, beginning with Virginia in 1607. The colonial charters introduced principles of Magna Carta by promising that those settlers who immigrated to Virginia would enjoy all the rights they would have had in England.

The promises helped soothe fears that the charter company would become a monarchical fiefdom with absolute power over them if they chose to settle in the new world. Still, “the theory was that these colonies ultimately would be governed by England,” says White, “so these provisions referencing Magna Carta were likely intended to be rhetorical.”

However, the Crown barely governed at all during the time between the original settlements in the early 17th century and the movement for independence that began in the 1750s. The colonies essentially governed themselves during this long period of “benign neglect” by Great Britain. “By the time that Great Britain attempted to tighten the administrative screws and raise some money [the stamp tax] after the end of the Seven Years War [in 1765], the barn door had been left open too long,” says White. “The colonists had grown used to the freedom to conduct their affairs economically, and to some extent politically, so this was deeply resented,” all of which ultimately led to war and separation.

Magna Carta Moves Temporarily to the Sidelines

After the Revolution, the new government became hopelessly gridlocked under the ineffective Articles of Confederation. Delegates from the 13 states met at the Philadelphia Convention to repair the Articles. But instead they created a new Constitution, which in manifest ways was fresh legal terrain. The frame of government went beyond anything the barons and King John were trying to accomplish, and they had no models to follow. “We are in a wilderness without a single footstep to guide us,” Madison wrote to Thomas Jefferson. “Our successors will have an easier task.”

“The issue in the 13th century and the 17th century was competing notions of who had what power within an existing government,” says Howard. “Nobody was trying to create a new government. In writing the federal Constitution, Americans were exploring new territory.”

Magna Carta resurfaced after the Philadelphia Convention, says Howard. The convention had rejected the proposal that the Constitution include a Bill of Rights. The Anti-Federalists charged that the federal government would be too powerful and threaten civil liberties. “The Federalists realized that they had a problem on their hands so they made the implicit promise that, if the states would ratify the Constitution, the first Congress would move to add a Bill of Rights.”

The political debate that followed was not about civil rights or civil liberties in the modern sense, according to White. The supporters of the 1789 Constitution realized they needed to sell a document that restricted the power of the states more than ever before.

“The debate about the Constitution is really about whether there should be a unit of government, including a judicial branch, that restrains the power of the state legislatures,” he says. “One of the things they do in the Federalist Papers is create this idea that sovereignty resides in the people, so it’s not a matter of transferring power from one set of elites to another. The people were the ultimate sovereign. But that was a rhetorical strategy, not a representation of the reality of American political culture at the time.”

If the Articles of Confederation did anything, they proved that the new country badly needed a stronger central government. “Madison was absolutely right in his diagnosis of the problem: that the states left to their own devices would be prey to European powers,” says Howard. “We had to have a functional central government.”

But the Anti-Federalists struck the cautionary note about the temptations of power and threat to liberty from a strong central government that still ignites debate today. “This has been a process of confrontation and cross-examination in debates over what’s the right balance,” says Howard. “It tends to swing back and forth, but I find it a fundamentally healthy process that began with the Federalists and Anti-Federalists.”

Only in America

The American contribution to constitutionalism, and what makes it distinctly American, arose from its several generations of colonial self-government in an environment abundant with natural resources and conducive to explosive economic growth.

White doesn’t find any comparable episode in the history of colonialism where a colony is given that much autonomy to regulate itself at the same time that it becomes prosperous. “When the British attempted to reassert authority, they were confronting 200 years of American history that tilted in the direction of autonomy for residents of America,” he says. “The British found themselves up against a powerful and singular historical experience.”

Thomas Jefferson’s copy of Edward Coke’s The Second Part of the Institutes of the Laws of Englandat the Library of Congress.

Moreover, while building the framework of their local governments, the colonial “creole elites” (third- or more generation settler families) had been listening to Lord Coke’s arguments. His foundational set of treatises, Institutes of the Lawes of England, overwhelmingly populated their libraries. They had time to develop powerful legal arguments supporting their cause.

The American innovation that the authority for government flows directly from the people emerged from the structural necessity of the moment. They needed government. It follows naturally that in forming that government the colonists intended to retain their inherent fundamental rights within it.

“One way of understanding American constitutional law is to realize that it flows from a common law tradition,” says Howard. “It’s not simply legislation. It is organic and has deep roots in English and American constitutional history. It evolves. It’s dynamic. It becomes, to borrow a phrase that today is very controversial, a living Constitution.”

The Stamp Act, the first time that Parliament had tried to impose an internal tax in America, outraged the colonists. They fashioned resolutions and tracts and pamphlets, repeatedly invoking Magna Carta. Echoing Coke, they argued that their ancestors had been promised the rights of Englishmen as found in Magna Carta, and that the tax violated its principles. “Magna Carta was front and center in this battle with the Parliament and the Crown,” says Howard.

Coke’s authority, the rhetoric of the creole elites, and the language in the charters themselves ultimately gave rise to the unique American insistence on a written Constitution based on concepts of natural law, common law, and the English constitutional system, sometimes pulling together and at other times apart, and still controversial today.

A “Baffling” Form of Government

It’s difficult to explain American constitutionalism to Europeans, says Howard. “The English don’t understand federalism because the notion that you can have dual sovereignties escapes them. Our mix of practices and ideas is also baffling to many people in other countries.

“American constitutional law has a dialectical quality. It’s a conversation among people, most of whom share some basic assumptions about liberty and freedom and order but have often very conflicting views of how to make it work.”

The American fealty to a written Constitution, partly British and partly American, comes from a long tradition of putting in writing documents reflecting the terms and balance of government power, from Magna Carta through the Petition of Right and the English Bill of Rights to the colonial charters and state constitutions.

“We like to look at a text and say, ‘There’s the answer,’” says Howard. “There’s a certain comfort in the assurance of the written word. But we also carry unwritten ideas about inherent rights, fundamental rights, natural law. We put different labels on them, and a dualism between the written and unwritten continues.”

Further, and particularly in New England, colonial Congregationalists and Presbyterians added to the mix their ideas about covenant theology. Originating in Europe and Scotland, covenant theology was based on a voluntary association between members of a congregation who make a compact between each other and with God. Covenant theology developed its modern form in New England in the 17th century, and the Constitution took on some of its flavor, says Howard.

Visitors tour the Library of Congress new exhibit, Magna Carta: Muse and Mentor, in Washington, D.C.

“I think it helps explains how, when the American Civil War erupted, the North had become committed to the notion of the Constitution as a covenant of the people that you couldn’t rip apart,” says Howard. “In the South, John C. Calhoun’s compact theory claimed that the states had made the Constitution and were free to leave it. These two fundamentally different ways of thinking about the Constitution are highlighted by the religious fervor of the North in the Civil War. Think of the ‘Battle Hymn of the Republic,’ that God was part of this plan.”

“There are many people today who will tell you that the Constitution was divinely inspired; that is distinctively American,” says Howard. “In most parts of the world, constitutions are thought to be useful but certainly not divine. They don’t have the enduring quality that the American Constitution has had.”

Still a Touchstone

Or that Magna Carta still has today. “It would be interesting to do a formal count of how many times Magna Carta has been cited in state and federal opinions,” says Smith. “My guess is hundreds of times. Magna Carta has been referenced as the keystone of the rule of law in many significant opinions in the 21st Century.”

In 2003 Justice O’Connor calculated that the Supreme Court alone had cited Magna Carta 50 times in the past 40 years. In Hamdi v. Rumsfeld, the 2004 case involving the holding of suspected terrorists indefinitely without charge or trial, they would do it again. Justice Souter wrote, in partial concurrence and partial dissent:

‘[W]e are heirs to a tradition voiced 800 years ago by Magna Carta, which on the barons’ insistence, confined executive power by ‘the law of the land.’”

Later in Boumediene v. Bush, another detainee rights case, Justice Kennedy wrote for the majority:

Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. [G]radually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.

And he linked it directly to Article I of the U.S. Constitution:

The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.

Aside from the Supreme Court, politicians and activists of all stripes from the earliest days of the Republic to this day, from the right and the left, have used Magna Carta as a tool to support very different understandings of what “liberty” and “freedom” mean.

“Curiously, I think we have made more use of Magna Carta’s legacy and symbolism in this country than they have in England, where it was first written,” says Howard.

Smith agrees. “My sense is that Americans, led by the Founding Fathers may have an even stronger reverence than the British for Magna Carta,” she says. “Our dedication to restrictions on government and protection of individual liberty by law is more a part of our societal structure than in Britain.”

If symbols mean anything, then Magna Carta really does mean more to Americans, and understandably so. The settlers leveraged it to build a working government and the framers to build a republic. So it is fitting that the only monument built at the Magna Carta memorial at Runnymede, a white portico cupola in the meadow by the Thames and a short royal barge trip from London, came courtesy of the American Bar Association in 1957. So happy 800th, Magna Carta. America might have been a very different nation without you.

Adamson Family Files $53.8-Million Suit Over Balloon Crash

By Melissa Caskey
(The Malibu Times)

The Adamson family is pictured here before a hot air balloon trip in Switzerland last August. Grant Adamson was killed when the balloon hit power lines and fell 165 feet, while each of his family members suffered serious injuries.

From left: Lauren, Terry, Megan and Grant Adamson

Malibu’s Adamson family is seeking $53.8 million in damages relating to a 2013 hot air balloon crash that killed family patriarch Grant Adamson and seriously injured his wife Terry and daughters Lauren and Megan.

A lawsuit filed in LA County Superior Court last week details the harrowing final moments of Grant Adamson’s life and accuses a travel agent, two travel companies and a Swiss hotel of major negligence in the events leading up to the August 2013 tragedy.

The suit also alleges that the man who piloted and survived the doomed hot air balloon trip, Christian Dupuy, has a long history of alcoholism and had been drinking the night before the early-morning balloon ride. According to evidence presented, Dupuy registered a blood-alcohol level between .01 and .02 percent after the crash, in violation of Swiss law. He is currently facing manslaughter charges in the Swiss court system, according to the suit.

Moments before the balloon crashed into power lines and fell 165 feet to the ground near the Swiss Alps, Grant Adamson is said to have “had his wife and daughters lay on the bottom of the balloon’s basket and he tried to shield them with his own body to protect them. The members of the family told each other they loved each other and prayed.”

Grant Adamson died of an aortic rupture on impact, while Terry, Megan and Lauren were knocked unconscious. Terry suffered a shattered jaw and pelvis and several internal injuries. Megan’s spine was broken and “severed from her pelvis,” and Lauren’s legs were broken. All three have undergone extensive surgeries on the road to recovery. Their medical bills have totaled $1 million to date, attorneys said, and each of them will likely continue dealing with medical problems the rest of their lives.

“None of them will ever get back to where they were before this accident,” said Suzelle Smith, an attorney for the Adamsons.

The suit seeks $10.2 million for Terry’s damages, $3.8 million for Lauren’s, $3 million for Megan’s and $36.8 million for the death of Grant Adamson.

Grand Hotel Park, Protravel International, Bucher Travel and travel agent Simone Rayden are named as defendants in the case filed by attorneys on behalf of the Adamson estate.

“[The hotel] advertises it as a top-of-the-line safe trip, you can count on them to supply a competent pilot and take you on a once in a lifetime experience, but that’s not what happened,” Smith said. “They put the Adamsons into the balloon, they had a pilot who was not competent...he devastated this family.”

The Adamsons travelled to Switzerland last summer for a family vacation after booking the trip with Grand Hotel Park through Rayden and the two travel agencies. Terry Adamson purchased the hot air balloon trip over the Swiss Alps after researching it as early as 2011 and being told by Rayden that it was a “must do,” according to court documents.

What the Adamsons did not know, the suit alleges, is that Dupuy had been fired from a previous piloting gig for allegedly drinking on the job and “visiting the pub during working hours.” He was hired by Grand Hotel Park and its manager, Dupuy’s brother-in-law, even though Dupuy’s rocky employment history was evident, according to Adamson attorneys.

The suit further alleges Dupuy had very little familiarity with the route the hot air balloon was flying but that hotel employees assured the Adamsons beforehand that Dupuy was experienced on the route. But as the trip neared its landing point in Montbovon, the Adamsons asked Dupuy to land the balloon early because constant shifts in altitude of the balloon were frightening them. Dupuy’s nephew was following the balloon from the ground and at one point radioed Dupuy to say he was flying too low.

“Approaching the landing site at Montbovon, Dupuy was flying too low,” the suit states. “Megan saw that the balloon was headed for power lines and cried out to Dupuy. Dupuy was looking in the opposite direction.”

Moments later, the balloon hit the lines and began falling.

“The Grand [Hotel] either did not properly investigate the condition of its pilot before entrusting the Adamson family to him,” the suit alleges, “or knew he had been drinking before the flight and ignored it.”

The great-grandson of Frederick and Rhoda May Rindge, who in 1892 purchased the land that is now Malibu, Grant Adamson descended from a family known as Malibu’s founders. He was an owner of the Mariposa Land Company, which managed the family’s real estate holdings, and was a founding member of Pepperdine University’s Crest Board, among other community involvements. He and his family resided in Serra Retreat.

A pretrial conference date has been set for Oct. 20, 2014.

Ex-NBC Reporter Says He Was Fired For Being Too Old

By Alex Lawson
(Law360, New York)

Fired NBC News reporter Frank W. Snepp sued his former employer in California state court Tuesday, alleging he was terminated because of his age and because he had complained about discrimination against older workers at the company.

The complaint against NBC News, a unit of Comcast Corp., alleged that the journalist was the victim of a so-called youth movement taking hold at the network when he was terminated in October 2012 at age 69, a policy that Snepp took steps to curb while he was still employed.

“Plaintiff is informed and believes, and thereon alleges, that a substantial motivation for his termination was because of his age, as well as retaliation for his engagement in protected activity by complaining to management about age discrimination and ageism at NBC News,” the suit said.

Snepp was granted the prestigious Peabody Award in 2006 for his investigative work but was passed over for a critical promotion in favor of a younger and less qualified employee, the suit alleged.

Throughout his employment, Snepp made several complaints about the company's apparent age discrimination, including submitting a 150-page summary of his experiences at the network to his superiors. Snepp's experience with ageism was not unique, according to the complaint.

“Defendants know they have an issue with age discrimination and retaliation, but have done nothing to eradicate those issues, thus perpetuating and ratifying the unlawful discrimination,” the suit said.

After Snepp was let go by the network, the complaint said he was soon replaced by investigative reporters who were either under age 40 or “substantially younger” than Snepp.

Snepp's complaint seeks a jury trial and demands punitive and compensatory damages in an amount to be proven with evidence, along with attorneys' fees and expenses.

Ahead of bringing the suit, Snepp filed two separate administrative complaints with the California Department of Fair Employment and Housing alleging age discrimination.

Snepp's attorney, Joel W. Baruch, told Law360 that the company has faced several age discrimination lawsuits in recent years from its journalists and pointed to Snepp's efforts to reform the company's policies while he was still under employment there.

"Basically, they fired him, and I think that they fired him in retaliation for this," Baruch said. "They have a youth movement and that's what they want, but it's against the law."

In an e-mailed statement, a spokeswoman for NBC said the suit was "without merit."

Snepp began working for the network in 2005 and established himself with a feature series about methane gas hazards within a prominent California commercial-residential project and various other stories centered on public health concerns, according to the suit. Before his employment at NBC, Snepp served as an analyst for the Central Intelligence Agency during the Vietnam War.

Snepp is represented by Joel W. Baruch and Nikki Fermin of the Law Offices of Joel W. Baruch PC.

Counsel information for NBC was not immediately available.

The case is Frank W. Snepp v. Comcast Corp. et al., case number BC523279, in the Superior Court of the State of California for the County of Los Angeles.

Seniors Losing Savings to 'Pension Advance' Firms

by Melanie Hicken
(CNN)

A U.S. Senate committee is looking into pension advances to determine whether the deals come with "illegally high rates of repayment interest" and defraud investors.

Federal and state officials are looking into so-called "pension advances," deals they say are digging retirees and military veterans deep into debt, while also putting individual investors at risk.

The advances, in which retirees sign away a portion of their monthly pension check for an upfront cash payment, hit pensioners with hidden fees and interest rates of 35% or higher, critics say. Investors, who usually provide the upfront cash, can also face high fees as well as the risk of losing their investment if the pensioner stops paying.

On Monday, a U.S. Senate committee said it is investigating pension advances to determine whether the deals come with "illegally high rates of repayment interest" and defraud or mislead investors.

Pension advance firms use the Internet and ads in niche publications to market the deals (also called "pension sales" or "buyouts") to those with military, government or corporate pensions.

Here's how they work: In exchange for a lump sum cash payment, pensioners give up all or some of their monthly pension checks for a period of time, usually for between five and 10 years. In many cases, the upfront cash is provided by individual investors -- often retirees themselves -- who are drawn to the promise of a low-risk investment that provides monthly payments with an annual return of 7% or higher.

But there is a costly flip side to these deals: They often include additional fees that help push the effective interest rates on the loans to anywhere from 27% to 106%, according to an analysis by the National Consumer Law Center. Often, the retiree is required to purchase a life insurance policy -- with the firm or investor named as the beneficiary -- to insure that the pension payments continue.

The firms usually claim the advances do not qualify as loans so they do not need to follow banking regulations, such as providing written disclosures of the effective interest rates. Yet some state regulators, like New York's Benjamin Lawsky, say the advances appear to be "payday loans in sheep's clothing."

New York's Department of Financial Services announced this month that they are investigating 10 pension advance firms to determine if they committed fraud, used deceptive advertising or violated state usury laws, which limits the interest rates charged on loans. Massachusetts is also investigating many of the same firms.

Only one of the firms under investigation responded to requests for comment. That firm, Veterans Benefit Leverage, says that its transactions are legal and customers are aware of the costs.

And while federal law bans the "assignment" of a military veteran's retirement or disability pension to a third party, the firms say the transactions are legal since the pensioner retains control and makes payments out of their own bank account each month. Still, some judges have ruled that the advances are illegal and unenforceable, meaning pensioners have the right to stop payments -- leaving the investor high and dry. With his credit ravaged by money troubles and an earlier personal bankruptcy, Charles Steen, a 71-year-old Corona, Calif., resident, was unable to get a credit card or bank loan to help make ends meet.

To help him pay off payday loans, he took out an advance against his $1,028 monthly retirement pension from his years working at Hunt-Wesson Foods, now owned by ConAgra.

In exchange, he received an $8,000 payment from Cash Flow Investment Partners, a firm that is currently being investigated by the state of New York. Steen said he agreed to make monthly payments of $284 for five years. By the end of the advance term, he'll have paid $17,040, which works out to an effective APR of 35%.

Once the advance's $300 "origination fee" and the extra $86 a month he pays on the 10-year life insurance policy that he had to take out to secure the deal is added in, the effective interest rate tips even higher.

"It was my only option," he said.

Investors should also be wary of the deals, which are usually not subject to oversight by the Securities and Exchange Commission, can carry commissions of 7% or higher and are difficult to liquidate, federal officials said.

In April, the Arkansas Securities Commissioner issued a cease and desist order against Little Rock-based Voyager Financial Group, LLC, alleging it had illegally arranged the sale of pension payments to hundreds of investors without properly registering them as securities.

Less than a year after 50-year-old California resident Lawrence Vicari spent $62,574 to purchase $90,000 worth of pension payments over a decade through Voyager, the pensioner stopped making the monthly $750 payments, said his attorney Suzelle Smith.

"The investor pays out their money, and then that money is gone," Smith said. "He's lost what he had hoped would be a secure investment, largely for medical bills."

Vicari filed a class-action lawsuit against Voyager, alleging that he and other investors had been misled to believe that their investments would be "risk-free."

Christopher Shaw, Voyager's attorney, said that Vicari was clearly warned of the possible investment risk within the signed contracts.

K&L Gates Can't Escape KB Home's $9.4M Malpractice Suit

By Matthew Heller
(Law360, Los Angeles)

A California judge on Wednesday refused to toss a $9.4 million malpractice suit alleging K&L Gates LLP mishandled the defense of a consumer class action against developer KB Home, saying it was too early to decide whether the firm can be liable for strategic decisions.

Los Angeles Superior Court Judge Jane L. Johnson declined to rule that, as a matter of law, K&L Gates was immune from suit because KB Home had alleged negligent conduct consisting mostly of tactical decisions and professional judgments the firm and partner Matthew Ball made while representing the developer. The class action ended in a $7.1 settlement KB Home claims was avoidable.

“Even where 'strategic decisions' are involved, these decisions must still 'be based upon a rational, professional judgment that would have been made by other reputable attorneys in the community under the same or substantially similar circumstances,'” Judge Johnson said in a written order denying K&L's motion to dismiss. “This is a factual determination, not appropriate for a [motion to dismiss].”

At a hearing on the motion, K&L's attorney, Scott Garner of Morgan Lewis & Bockius LLP, argued that no matter what KB Home might allege, it could not meet the standard for malpractice.

“It's not clear what they could possibly say ... that would show that not filing a demurrer [in the class action] was malpractice,” he said. “Even if they got Mr. Ball to admit that, 'I didn't do any research on whether to file a demurrer' ... that's not going to get them to the point where, as a matter of law, the court would be able to find that was somehow below the standard of care.”

But Judge Johnson would not be swayed, concluding, “I really think these are issues for another day.”

KB Home, along with subsidiary KB Home Mortgage Co., filed suit in May, accusing K&L and Ball of misrepresenting their ability to handle class actions and failing to adequately represent the company in the suit.

Angela Bates, who had used KB Home's now-defunct subsidiary Homesafe Escrow Co., claimed in the class action that she and others were promised interest on house deposits that they never received and Homesafe had unlawfully provided and charged for escrow services.

According to the malpractice complaint, KB Home was forced to pay a "highly inflated settlement" of $7.1 million because of K&L's negligence. The suit challenged, among other things, the firm's decision not to file a motion to dismiss the complaint — or demurrer — as well as arguments it used in opposing the motion for class certification and its decision not to conduct discovery on the plaintiffs' class damages theory.

K&L said none of that alleged conduct could support a malpractice claim.

“California law gives attorneys, especially litigators, wide latitude in formulating case strategy and making tactical decisions,” it noted in its motion to dismiss, and “every instance of alleged misconduct involves the type of tactical and strategic decisions that California courts have deemed immune from liability.”

KB Home settled the class action, according to K&L, “based on a recognition of unfavorable facts surrounding its escrow practices, not any negligence on the part of K&L Gates.”

But Judge Johnson said she was not prepared to throw out the malpractice case “at this point, but I do realize — and I'm sure plaintiff knows — that they have a tough row to hoe” to prove negligence.

KB Home is represented by Don Howarth, Suzelle M. Smith and Padraic Glaspy of Howarth & Smith.

K&L Gates is represented by Robert E. Gooding, Scott B. Garner and Todd W. Smith of Morgan Lewis & Bockius LLP.

The case is KB Home et al. v. K&L Gates LLP et al., case number BC484090, in the Superior Court of the State of California, County of Los Angeles.