Friday, June 27, 2008

NRA v. San Francisco and SAF v. Chicago complaints

Well, now that DC v. Heller was handed down by SCOTUS, all hell will be breaking loose in order to push the Heller opinion to its limits. Right on cue, the NRA (and Second Amendment Foundation) has filed suits in multiple cities challenging their gun laws: Chicago, Oak Park, Evanston, Morton Grove, and my own special city of San Francisco. I couldn't find the suburban complaints, but I found the Chicago and San Francisco complaints fairly easily. As SCOTUS blog points out, this is only a complaint, so there isn't a fleshed out argument in defense of the Second Amendment just yet. But it'll be interesting to see where the arguments go.

Even still, the complaints are interesting. The Chicago complaint revolves around three Chicago gun ordinances (1) ban on hand guns (2) registration of all guns, and (3) if a gun owner's registration lapses, the gun is left unregistrable. The plaintiffs are folks who either (i) have to store their handguns outside the city limit or (ii) have had their rifle registration lapsed. Plaintiffs assert that (A) the Second Amendment be incorporated as against the states via the Fourteenth Amendment, (B) the handgun ban, registration requirement, and registration lapse penalty deprives a person the right to possess the handgun within city limits.

The San Francisco complaint seems like more of the same. The SF attack is ban of firearms in SF public housing. Agreeing to the firearms ban is a stipulation to signing a lease agreement to live in SF public housing. It features one plaintiff, anonymous, who is a homosexual who keeps a gun for defensive purposes against people who might want to harm him for his sexual orientation. The other plaintiffs are just, assumedly, heterosexual folks who want firearms for defensive purposes unrelated to assaults on their sexual orientation. Essentially, they are asking for relief from the firearms ban.

From being initially hesitant about bringing DC v. Heller, looks like the NRA/SAF is taking full advantage of its newfound situation. Despite what they believe Heller might have said, one thing it didn't say was that the right to own a gun was incorporated onto the states via the Fourteenth Amendment. Thought Volokh Conspiracy makes a good argument for it.

The plaintiffs in the San Francisco case are being represented by C.D. Michel, of Trutanich, Michel, LLP.

And the plaintiffs in Chicago are being represented by none other than Alan Gura, of Gura & Possessky, PLLC. The very same attorney who successfully argued Heller in front of SCOTUS. Gee, for all the talk about Heller being a "middle of the road" opinion, looks like we know who the real winner in Heller is.

CORRECTION: As was correctly pointed out to me in the comments section by the Webmaster at, the NRA has nothing to do with the Chicago suit. Rather, the Second Amendment Foundation is leading the charge on that one. Thank you Mr. Taff.

UPDATE: SCOTUS Blog has posted the additional complaints for the three Chicago suburb gun cases: Evanson, Ill. Oak Park, Ill. Morton Grove, Ill.

Friday, June 20, 2008

USF Law Makes the News in Bear Sterns Case

Well, not really. But, it's come to my attention that former Bear Sterns hedge fund manager/ current 10b-5 violator suspect, Matthew Tannin is a 1994 law grad of USF. Who knew? Gives hope to all of us aspiring bond traders... I suppose it's nothing to be proud of. But proof that USF Law grads can change the world.

Mr. Tannin now joins the ranks of despised Wall St'ers: Michael Milken (Berkeley undergrad/Wharton MBA), Frank Quattrone (Wharton undergrad/Stanford MBA), Henry Blodget (Yale undergrad), Ivan Boesky (Michigan St., JD), and, of course, Gordon Gekko (City College). Well done, sir! And welcome to the club.

Thursday, June 19, 2008

US v. Bear Sterns Hedge Fund Managers

Today, the United States arrested Ralph Cioffi and Matthew Tannin, hedge fund managers for Bear Sterns. They ran two funds, the High Grade Structured Credit Strategies Master Fund (High Grade fund) and High Grade Structured Credit Strategies Enhanced Master Fund (Enhanced fund). The funds were leveraged and invested, according to the indictment, in primarily collateralized debt obligations (CDOs).

Although the complaint does a terrible job of explaining a CDO, the basic premise (really basic) is this:

A collateralized debt obligation seeks to take a debt (both principal and interest) and make it attractive to investors. As a basic premise, the one thing investors like is consistency. Loan repayments, such as homes, are notorious for being inconsistent. People pay back their loans too early, or the default, etc. This means that an investor, who purchases a bond, can't depend on a steady stream of income. As such, pre creation of CDOs, mortgage loans were a poor investment.

In the 80s, Salomon Brothers (now part of Citi Group) found a way to package mortgage loans and make rain come from the sky. (for a more detailed explanation, I recommend reading, Lair's Poker). They did this by creating CDOs. CDOs are mortgage bonds. Massive groups of mortgages are pooled together and divided into groups, called "tranches." There are potentially an unlimited number of tranches, but the tranches are generally split into durations, similar to bonds. For example 3-5 years, 7-10 years, and 15-20 years.

The shorter duration CDOs receive all the early pre-payments (those who pay off their mortgage early) and the longer CDOs receive all the regular payments (those people who keep the whole mortgage to the end). Naturally, the longer someone keeps a mortgage, the more likely that person is likely to default. As such, investors with the longer durational CDO take bigger risks. Naturally, their CDOs receive higher interest rates and shorter CDOs receive lower interest rates. The CDOs are priced accordingly.

OK, now that we know what they were investing in, we can talk about how they did it. CDOs don't really bring in a lot of money on a small scale- i.e. dollar for dollar. In order to generate returns, the managers leveraged their investment. This means they borrowed the money, using the fund money as their margin requirement. The complaint suggest they leveraged up to 20 times the fund's investment money. Essentially, the managers were playing with money they didn't have. If their fund did well, then they would be rewarded handsomely. If not....bankruptcy. [it's the difference between 1x20 (fund does well) and 1x(-20)(fund not so good)].

So, as you can guess, things went bad, and eventually the fund went "el busto" and lost the funds' combined value of $1.4 billion. The indictment states that the managers made misrepresentations to investors (huge institutional investors, the type who can invest $5-$10 million, not folks who can only invest $100,000), by saying they thought the fund was looking at sunny skies, when, in fact, it was thunder and lightning was all around. In short, the Feds are charging the duo with breach of fiduciary duty to its investors.

The breach of fiduciary duty standard, essentially, states that those with the duty have to act with reasonable care towards those who they have a duty towards. They have to have act in their best interests, and must act in good faith.

The counts in the complaint are as follows:

Count 1 - Conspiracy to commit securities fraud and wire fraud
Count 2 - Securities fraud - High Grade Fund
Count 3 - Securities fraud - Enhanced Fund
Count 4 - Securities fraud - Ralph Cioffi, insider trading
Count 5-9 - Wire fraud

Looking at the indictment...I kinda think its weak. There are a lot of allegations that are based on partial comments. The basic pattern is that the indictment sets up a situation, and then throws in a partial comment, like 5-6 words, as proof. The problem is that these quotes can easily be taken out of context and manipulated. As such, it's kinda hard to accept them as weighty evidence. Maybe the actual trial will have real evidence. But from what I can see, it's kinda thin.

Secondly, there is a clear difference between making a bad business decision and acting in bad faith. There doesn't appear to be a clear plan that that was what they were up to. I think they might have made some trades, those went sour, they, like any trader, might try and trade their way out, and instead, ended up making it worse (see Long Term Capital Management- which lost $4.5 billion in 5 weeks- a pretty similar story as these two defendants, yet no criminal charges against them, see When Genius Failed). I don't think this qualifies as bad faith. It's more consistent with someone, rather than being sure of the market, is confused with the situation. It's just a bad business decision.

As for the insider trading charge against Mr. Cioffi, well, that seems a little more tenable. I could buy that before I thought there was a 10b-5 breach with the actual funds. If he did move his money without disclosing to his investors, that does cause some concern. Even if he moved his money for legitimate reasons, it still needs to be disclosed.

I do have a question about their redemption policies though. I'm not sure why the investments weren't able to be redeemed. It's possible, like in LTCM, a condition of investment was that the shares could not be redeemed for a set period of time. But that's something I'm sure the evidence will show.

There are some other problems I have with this indictment, outside of the law. First, it makes the investors out to be like they were just some innocent folks who got boondoggled by these fast talking New Yorker, Wall St. types. Absolutely ridiculous. Those who lost money in the fund were institutional investors who, likely had billions of dollars to play with. You don't get into a position of being able to trade in blocks of $57 million by happenstance. You ain't no rube. They were sophisticated investors who had the tools to make a sound analysis. They just made a bad investment. It happens. Lately, it's been happening a lot. But just because they made a poor investment, doesn't mean that someone should be held criminally liable for it.

Second, this is a terrible charade. Hundreds of billions of dollars, potentially trillions of dollars of investor value have been post in these credit crisis. I think it's silly that these two managers be the symbol of this mess. Do the Feds intend to go after Morgan Stanley, Citi, Goldman, JP Morgan, and other banks who lost out? They all contributed. They all had the same sales pitches. Feds might as well put out some more indictments. Too bad Elliot Spitzer has such a prostitute problem.

Third, I think this sends a bad message. It sends the message that these two men are responsible for the credit crisis when, instead, it was ALL of America. We, with our copious consumption, let this happen. If people hadn't hid their eyes to the realities of their mortgages, we all wouldn't be in this mess. If, instead of refinancing to buy tvs and cars, people had simply built up the equity and paid of their homes, the crush in equity might not be as great. If people hadn't simply bought homes with the intent to flip, it might not have driven prices up.

UPDATE: I just read about the 400 arrests regarding mortgage fraud on the ground level. Dubbed operation "Malicious Mortgage" (what a lame name), the FBI has investigated 144 mortgage fraud cases leading to 406 arrests over the past few months. Way to go FBI! Let's keep up the good work. I'm glad the FBI is targeting the fraud at all levels, and not just at the trading level. Spread the wealth.

True, Wall St. folks provided the tools for these people to take out these loans, but that was it. Main St. still needed to take out the loans. In short, Wall St. was merely the middle man. As everyone was involved in this collapse, we should all be held accountable, not just these hedge fund managers.

In sum, sure, I think there is the possibility of misrepresentations and insider trading, etc., but I hope the Feds have more evidence. I guess, by their nature, indictments are pretty slim. But with such a high profile case, you'd think the Feds would want to come out "guns a blazing." Here, it seems the brought a water pistol to a knife fight. Since history always seems to repeat itself on Wall St., remember that the Feds couldn't convict Frank Quattrone on the basis of emails. Pretty similar circumstances here. The Feds have a tough road ahead of them.

Thursday, June 12, 2008

NASCAR Workers Like to Make Crude Jokes

So it's finally come out: NASCAR workers like to make crude jokes about sex and race. Who knew? Who knew that a business whose drivers and fans, being predominately White and male (and probably not the most sophisticated) would have employees were...well, White, male, and not particularly sophisticated. And who would have thought they wouldn't go around making crude sexual and racial jokes?

Well, apparently someone got fed up with it and filed a sexual harassment and racial discrimination lawsuit. In it, plaintiff, Mauricia Grant, a $30,000/season NASCAR Official (Technical Inspector), responsible for checking race cars before, during and after each race to ensure safety and full compliance with NASCAR rules, has filed a sexual harassment and racial discrimination complaint to the tune of a cool $225 million. According to the complaint, Ms. Grant was NASCAR's first African American official.

Among the many instances in which she was the butt of a discriminatory joke:

49. Throughout her employment from approximately January 2005 until her unlawful termination on or about October 27, 2007, Plaintiff MAURICIA GRANT was dubbed with a series of racist and racially degrading nicknames, including: “Mohammed;” “Nappy Headed Mo;” “Queen Sheba;” “Al Qaeda;” “Black Sisters Revenge;” “Mo from the Block;” “Molicious;” and “Simpleton.”

50. Throughout her employment from approximately January 2005 until her Wrongful termination on or about October 27, 2007, approximately weekly during the NASCAR Busch Series season, Plaintiff MAURICIA GRANT’s White co-workers made ignorant racist comments regarding her pigment and hair, such as: “You can’t possibly sunburn so you should work out in the sun!”; “How do you fix that hair?”; and “How come the palms of your hands are white?” Plaintiff was shocked.

60. During approximately the week of April 8, 2006 while working the Texas
Motor Speedway, Plaintiff MAURICIA GRANT overheard Official Carl Simmons mention to Official Dennis Dillard his seeing a car hood ornament resembling Fred Flinstone. When Carl Simmons responded that he could not remember the hood, Official Dennis Dillard replied: “Which hood, your Klan hood?” The group of White Officials laughed except Carl Simmons, who turned red and looked suspiciously guilty.

64. On or about the week of May 5, 2006, while working the race at the Richmond International Speedway in Richmond, Virginia, Plaintiff MAURICIA GRANT drove with Director Scott French to a store to purchase some work pants for Official Todd Shultz. During this trip, Mr. French “confided” that his step-mother was Black and that he “grew up in the hood” and loved hip-hop, and then said: “Let me mentor you. It’s tough being in the garage with all these guys.” Plaintiff felt relieved to know that someone in a position of authority not only was not a racist, but could actually relate to Black people. In turn, Plaintiff MAURICIA GRANT disclosed that she was raised with three siblings by a single mom in the projects of the Bronx. Much to her disgust, Plaintiff later discovered that Mr. French had lied: he did not have any Black relatives nor did he ever live in an urban, inter-racial neighborhood.

81. On or about the week of July 7, 2007 while they were working at the Daytona
International Speedway, White Official Bud Moore asked Plaintiff MAURICIA GRANT how it felt to be Black. When Plaintiff responded that being Black is “a privilege,” Bud Moore looked aghast and asked her: “How could you possibly feel that being Black is a privilege?” When Plaintiff MAURICIA GRANT was non-responsive, Moore feigned exaggerated confusion, wondering aloud in Plaintiff’s presence: “How can she be proud of being Black?”

86. On or about November 21, 2007, Plaintiff MAURICIA GRANT received a text
message from White Official David Duke which read:
I love all Yall mofos
i am that nigga
Plaintiff was offended.

First, before I get into my thoughts of the complaint, I think it's incredibly ironic that
one of the alleged offenders is fellow technician by the name of David Duke.

Second, I love the way jokes are explained in complaints. No set up or anything, just straight sanitation. And told and told as curtly as possible.

Those are a few of the many allegations in the complaint. I'm not entirely sure how sexual harassment and racial discrimination suits work, but the complaint seems almost entirely based on circumstantial evidence. It seems the plaintiff just seems to be the butt of a lot of jokes- racial and sexual ones, albeit. There doesn't seem to be a systematic method of organizational discrimination - like her not being promoted, etc. No paper trail. Which doesn't necessarily make the situation right, per se, but I'm not sure if it meets the right legal standard. Again, I'm not sure what standard is necessary, but I would hope it relies a lot more on allegations.

Although Ms. Grant does a fairly good job of documenting her verbal discrimination, they're just jokes....which they might have a hard time proving in court. Unless there is video or something to that effect, it's all circumstantial evidence, so it'll come down to a "he said-she said." I wonder how likable a plaintiff she is to a New York jury (compliant was filed in the Southern District of New York)?

I suppose the best comparison might be to that of the sexual harassment complaint against Isiah Thomas and the New York Knicks. Of course, one difference between this case and the Isiah case is that here, the suit is for $225 million, and the Isiah case was for $10 million (Isiah lost). It kinda makes me suspect the sexual and racial harassment, though probably did happen in some form, is probably a weak legal case, and Ms. Grant's attorneys are using the enormity of the damages amount to garner press, which it did, so that it'll force a settlement for a (likely) significantly reduced amount. But, even a 90% discount, so - $22.5 million, is tremendously high. In short, the damages asked of $225 million is leverage. [Although I can imagine the frat boy mentality at Madison Square Garden to be similar to NASCAR, I'm not entirely sure what the facts were in the Isiah case, so I can't really make factual comparisons. Though I'm sure someone in the media will.]

In the end, though I do agree that racial discrimination and sexual harassment have no place anywhere, I'm not sure if this particular case is that strong. If it actually goes to court, which I doubt, the facts discovered will likely show the weakness of her allegations. Remember, anyone can make a complaint. It takes a lot more to prove it in trial. Ms. Grant is likely just extorting NASCAR - indeed the compliant states NASCAR does over $2 billion in merchandising revenues annually. We'll see where it goes.

Wednesday, June 11, 2008

Judge Kozinski Likes Animal Porn

So, I'm sure you've all heard about this; but if you haven't: Chief Judge of the 9th Circuit, Alex Kozinski was discovered to have quite a collection of porn on his personal web page (obviously they've been taken down). And not just any porn, but PORN. Per the LA Times, who broke the story, Kozinski had no less than:

- a photo of naked women on all fours painted to look like cows
- a video of a half-dressed man cavorting with a sexually aroused farm animal
- a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair
- images of masturbation, public sex and contortionist sex
- a slide show striptease featuring a transsexual
- a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear
- themes of defecation and urination, though they are not presented in a sexual context

According to the story, Judge Kozinski considered the material "interesting or funny."

Now, personally, I find this all very humorous. In the big picture, this really isn't anything more than some supremely awesome gossip. The article seemed to suggest there was a controversy regarding whether Judge Kozinski was going to recuse himself from an obscenity case. I personally don't he should recuse himself. As someone I know put it, "no justice is served by having prudes hear obscenity cases." I think that's the line I'm going to stick with.

Issues With Your Student Loans?

I got this email the other day from a classmate who just graduated concerning her student loans. And, though not all of us may be confronting this right now, we'll likely be doing so in the near future. Her info seemed pretty well researched, so I thought I'd share it with you all:

Hi all,

For those of you who have taken out loans as a consequence of attending law school, I am volunteering some information. If you don't have loans disregard this email.

1. You may not have received any loan payment notices because the school has mistakenly assigned a graduation date of 2013 to all law students for all loan purposes. The law school financial aid office said it is an error by the undergrad financial aid office. They are "looking into it." According to the Direct Loans (Federal) customer service department at 1-800-848-0979, payments for Direct Loans would normally commence June 21, 2008. However, due to the school error, payment notices have not been sent. Although many of us would love to have a 5 year grace period on our loans, I am not counting on the school's mistake to cover my loan liability. In addition, even if the loans are magically deferred, the interest is not (see #2.)

2. Economic hardship: for those of you who are not currently working and need additional time before making Direct Loan payments, you can request up to a 12 month deferment. You can go to www.dlservicer. in order to download the form or call the number above in order to have one mailed. You can also see a summary of your Direct Loans and a payment schedule. In addition to asking for an economic hardship deferment, you can also request the loan to be extended in order to lower monthly payment. The loan is automatically set up as a ten year payment plan.

Note: automatic deferment can vary depending on whether you consolidated during school or not?
Another note: keep in mind that at any time during the life of any of your loans, you can call and ask for special consideration/ deferment/ lowered payments for any reason. Most loan providers would rather have some payment arrangement, than have someone default on their loan. It is up to the provider to give special consideration, etc. It is wise to ask before you fall behind!

3. Another helpful website is www.nslds.ed. gov. You can see an overview of all Direct Loans (including Plus Loans) and Standford Loans.

4. For those of you with private loans, the Access Group phone number is 1-800-282-1550. According to Access's customer service department, the private loans are automatically set up as 20 year loans (I imagine their interest is in raking in more interest, rather than in graciously lowering our monthly payments) and the private loans will automatically be deferred for 9 months from our date of graduation. Note: you may have private loans with a different provider, Access Group is just one of many.

5. A helpful resource is The Graduate Leverage Team, 1-877-844-9580 They can give advice on consolidation, etc. Apparently, there is going to be a significant drop in interest rates in July (see their website for details.)

6. If you move, remember to update your address information for every loan provider. If your deferment ends/payments start and the providers do not have your current address you could decrease your credit score by missing payments.


Law School Survivor

Thursday, June 5, 2008

What You Missed While Paying Attention to American Sports: British Shin-Kicking Championships

While everyone was out paying attention to American sports like the NBA Finals, most people forgot to pay attention to a particularly compelling sport in the world: shin kicking. (Courtesy of Epic Carnival) Yup. High drama, high skill, high stakes. Take a look for yourself. (I think the hay to cover their shins is a nice touch). Puts MMA to shame.

Tuesday, June 3, 2008

Hillary Doesn't Concede. Obama Doesn't Care.

Well folks. This is it. Barack Obama has claimed the Democratic nomination. The first African American to claim this distinct honor. Now, from those (few) of you who have been reading this blog, you'll know that I initially supported Hillary Clinton, but as it became apparent Hillary wasn't going to be able to unite the Democratic party, switched over to supporting Mr. Obama. That being said, I watched Mr. Obama give his speech tonight (more on that later) and I was actually pretty happy for both he and the party.

And yes, Hillary, stubbornly, did not concede the nomination. And no, despite what the chattering class says, it doesn't matter. It doesn't hurt the party. Either you were going to support Mr. Obama, and rally around the him for the good of the party, or you weren't. It had been apparent for quite sometime that Mr. Obama was going to win the nomination. I don't think Hillary giving her approval was going to change that.

Back to the speech. He gave a really good speech. Of course, there were moments when I felt inspired by his command of the audience and his communication skills, but, I wasn't...impressed. I think it's because I've watched so many of his speeches, and so recognize his speech pattern and his message that it doesn't quite ring the same bell. But, it was still an effective speech. He got out his message, gave his accolades to Hillary in an attempt to win over her voters, and compared John McCain to George W. Bush. Everything that he was supposed to say. And he said it all with that long, draw out flair of his, accompanied by his "thousand yard" stare switching back from the left side of the audience to the right side of th audience (no doubt to see the teleprompters stationed through out the building.)

He seemed presidential in stating, “Tonight, we mark the end of one historic journey with the beginning of another — a journey that will bring a new and better day to America. Because of you, tonight, I can stand before you and say that I will be the Democratic nominee for president of the United States.” And , indeed, I hope presidential is what Mr. Obama will become.

But the road to that point will be long. I have no doubt in my mind the difficulties that Mr. Obama will face against the Republican political machine. This election year was supposed to be a cake walk for the Democrats yet the most recent polls show a McCain-Obama match up a statistical tie.

Republicans will, no doubt, hammer in the points that have been haunting Mr. Obama: inexperience, personal ties (well, now severed, but that's irrelevant) to his church, etc. I'm also a little afraid of the things that might also pop up later. I don't think anyone believes he's been as well vetted as Mr. McCain. We know all of Mr. McCain's secrets (well, except the true extent his wife's tax returns) but there are still things about Mr. Obama that could exist.

Even still, I'm not sure this will even matter. I think the key to an Obama victory is the same strategy that got President Bush elected: turn out the vote. I think those factors are in favor for Mr. Obama (I think Hillary supporters will come to their senses just like I did, and just like Republicans who did not support McCain but now do, did). It'll be a helluv a ride for sure. And I intend to be there. And I hope you will as well. Democrats, Independents, and even Republicans, I think we can do it. In the words of Mr. Obama, as he closed his victory speech, as his voice rose in rolling, rhythmic cadence over the thunderous St. Paul crowd, "America, this is our moment. This is our time... Our time to offer a new direction for the country we love.... when we came together to remake this great nation so that it may always reflect our very best selves, and our highest ideals." Yes, we can.

Obama's Victory Speech in St. Paul + Video

Personally, I'm not a big fan of the U2 song they use, but...whatever. Enjoy some history:

Tonight, after fifty-four hard-fought contests, our primary season has finally come to an end.

Sixteen months have passed since we first stood together on the steps of the Old State Capitol in Springfield, Illinois. Thousands of miles have been traveled. Millions of voices have been heard. And because of what you said - because you decided that change must come to Washington; because you believed that this year must be different than all the rest; because you chose to listen not to your doubts or your fears but to your greatest hopes and highest aspirations, tonight we mark the end of one historic journey with the beginning of another - a journey that will bring a new and better day to America. Tonight, I can stand before you and say that I will be the Democratic nominee for President of the United States.

I want to thank every American who stood with us over the course of this campaign - through the good days and the bad; from the snows of Cedar Rapids to the sunshine of Sioux Falls. And tonight I also want to thank the men and woman who took this journey with me as fellow candidates for President.

At this defining moment for our nation, we should be proud that our party put forth one of the most talented, qualified field of individuals ever to run for this office. I have not just competed with them as rivals, I have learned from them as friends, as public servants, and as patriots who love America and are willing to work tirelessly to make this country better. They are leaders of this party, and leaders that America will turn to for years to come.

That is particularly true for the candidate who has traveled further on this journey than anyone else. Senator Hillary Clinton has made history in this campaign not just because she's a woman who has done what no woman has done before, but because she's a leader who inspires millions of Americans with her strength, her courage, and her commitment to the causes that brought us here tonight.

We've certainly had our differences over the last sixteen months. But as someone who's shared a stage with her many times, I can tell you that what gets Hillary Clinton up in the morning - even in the face of tough odds - is exactly what sent her and Bill Clinton to sign up for their first campaign in Texas all those years ago; what sent her to work at the Children's Defense Fund and made her fight for health care as First Lady; what led her to the United States Senate and fueled her barrier-breaking campaign for the presidency - an unyielding desire to improve the lives of ordinary Americans, no matter how difficult the fight may be. And you can rest assured that when we finally win the battle for universal health care in this country, she will be central to that victory. When we transform our energy policy and lift our children out of poverty, it will be because she worked to help make it happen. Our party and our country are better off because of her, and I am a better candidate for having had the honor to compete with Hillary Rodham Clinton.

There are those who say that this primary has somehow left us weaker and more divided. Well I say that because of this primary, there are millions of Americans who have cast their ballot for the very first time. There are Independents and Republicans who understand that this election isn't just about the party in charge of Washington, it's about the need to change Washington. There are young people, and African-Americans, and Latinos, and women of all ages who have voted in numbers that have broken records and inspired a nation.

All of you chose to support a candidate you believe in deeply. But at the end of the day, we aren't the reason you came out and waited in lines that stretched block after block to make your voice heard. You didn't do that because of me or Senator Clinton or anyone else. You did it because you know in your hearts that at this moment - a moment that will define a generation - we cannot afford to keep doing what we've been doing. We owe our children a better future. We owe our country a better future. And for all those who dream of that future tonight, I say - let us begin the work together. Let us unite in common effort to chart a new course for America.

In just a few short months, the Republican Party will arrive in St. Paul with a very different agenda. They will come here to nominate John McCain, a man who has served this country heroically. I honor that service, and I respect his many accomplishments, even if he chooses to deny mine. My differences with him are not personal; they are with the policies he has proposed in this campaign.

Because while John McCain can legitimately tout moments of independence from his party in the past, such independence has not been the hallmark of his presidential campaign.

It's not change when John McCain decided to stand with George Bush ninety-five percent of the time, as he did in the Senate last year.

It's not change when he offers four more years of Bush economic policies that have failed to create well-paying jobs, or insure our workers, or help Americans afford the skyrocketing cost of college - policies that have lowered the real incomes of the average American family, widened the gap between Wall Street and Main Street, and left our children with a mountain of debt.

And it's not change when he promises to continue a policy in Iraq that asks everything of our brave men and women in uniform and nothing of Iraqi politicians - a policy where all we look for are reasons to stay in Iraq, while we spend billions of dollars a month on a war that isn't making the American people any safer.

So I'll say this - there are many words to describe John McCain's attempt to pass off his embrace of George Bush's policies as bipartisan and new. But change is not one of them.

Change is a foreign policy that doesn't begin and end with a war that should've never been authorized and never been waged. I won't stand here and pretend that there are many good options left in Iraq, but what's not an option is leaving our troops in that country for the next hundred years - especially at a time when our military is overstretched, our nation is isolated, and nearly every other threat to America is being ignored.

We must be as careful getting out of Iraq as we were careless getting in - but start leaving we must. It's time for Iraqis to take responsibility for their future. It's time to rebuild our military and give our veterans the care they need and the benefits they deserve when they come home. It's time to refocus our efforts on al Qaeda's leadership and Afghanistan, and rally the world against the common threats of the 21st century - terrorism and nuclear weapons; climate change and poverty; genocide and disease. That's what change is.

Change is realizing that meeting today's threats requires not just our firepower, but the power of our diplomacy - tough, direct diplomacy where the President of the United States isn't afraid to let any petty dictator know where America stands and what we stand for. We must once again have the courage and conviction to lead the free world. That is the legacy of Roosevelt, and Truman, and Kennedy. That's what the American people want. That's what change is.

Change is building an economy that rewards not just wealth, but the work and workers who created it. It's understanding that the struggles facing working families can't be solved by spending billions of dollars on more tax breaks for big corporations and wealthy CEOs, but by giving a the middle-class a tax break, and investing in our crumbling infrastructure, and transforming how we use energy, and improving our schools, and renewing our commitment to science and innovation. It's understanding that fiscal responsibility and shared prosperity can go hand-in-hand, as they did when Bill Clinton was President.

John McCain has spent a lot of time talking about trips to Iraq in the last few weeks, but maybe if he spent some time taking trips to the cities and towns that have been hardest hit by this economy - cities in Michigan, and Ohio, and right here in Minnesota - he'd understand the kind of change that people are looking for.

Maybe if he went to Iowa and met the student who works the night shift after a full day of class and still can't pay the medical bills for a sister who's ill, he'd understand that she can't afford four more years of a health care plan that only takes care of the healthy and wealthy. She needs us to pass health care plan that guarantees insurance to every American who wants it and brings down premiums for every family who needs it. That's the change we need.

Maybe if he went to Pennsylvania and met the man who lost his job but can't even afford the gas to drive around and look for a new one, he'd understand that we can't afford four more years of our addiction to oil from dictators. That man needs us to pass an energy policy that works with automakers to raise fuel standards, and makes corporations pay for their pollution, and oil companies invest their record profits in a clean energy future - an energy policy that will create millions of new jobs that pay well and can't be outsourced. That's the change we need.

And maybe if he spent some time in the schools of South Carolina or St. Paul or where he spoke tonight in New Orleans, he'd understand that we can't afford to leave the money behind for No Child Left Behind; that we owe it to our children to invest in early childhood education; to recruit an army of new teachers and give them better pay and more support; to finally decide that in this global economy, the chance to get a college education should not be a privilege for the wealthy few, but the birthright of every American. That's the change we need in America. That's why I'm running for President.

The other side will come here in September and offer a very different set of policies and positions, and that is a debate I look forward to. It is a debate the American people deserve. But what you don't deserve is another election that's governed by fear, and innuendo, and division. What you won't hear from this campaign or this party is the kind of politics that uses religion as a wedge, and patriotism as a bludgeon - that sees our opponents not as competitors to challenge, but enemies to demonize. Because we may call ourselves Democrats and Republicans, but we are Americans first. We are always Americans first.

Despite what the good Senator from Arizona said tonight, I have seen people of differing views and opinions find common cause many times during my two decades in public life, and I have brought many together myself. I've walked arm-in-arm with community leaders on the South Side of Chicago and watched tensions fade as black, white, and Latino fought together for good jobs and good schools. I've sat across the table from law enforcement and civil rights advocates to reform a criminal justice system that sent thirteen innocent people to death row. And I've worked with friends in the other party to provide more children with health insurance and more working families with a tax break; to curb the spread of nuclear weapons and ensure that the American people know where their tax dollars are being spent; and to reduce the influence of lobbyists who have all too often set the agenda in Washington.

In our country, I have found that this cooperation happens not because we agree on everything, but because behind all the labels and false divisions and categories that define us; beyond all the petty bickering and point-scoring in Washington, Americans are a decent, generous, compassionate people, united by common challenges and common hopes. And every so often, there are moments which call on that fundamental goodness to make this country great again.

So it was for that band of patriots who declared in a Philadelphia hall the formation of a more perfect union; and for all those who gave on the fields of Gettysburg and Antietam their last full measure of devotion to save that same union.

So it was for the Greatest Generation that conquered fear itself, and liberated a continent from tyranny, and made this country home to untold opportunity and prosperity.

So it was for the workers who stood out on the picket lines; the women who shattered glass ceilings; the children who braved a Selma bridge for freedom's cause.

So it has been for every generation that faced down the greatest challenges and the most improbable odds to leave their children a world that's better, and kinder, and more just.

And so it must be for us.

America, this is our moment. This is our time. Our time to turn the page on the policies of the past. Our time to bring new energy and new ideas to the challenges we face. Our time to offer a new direction for the country we love.

The journey will be difficult. The road will be long. I face this challenge with profound humility, and knowledge of my own limitations. But I also face it with limitless faith in the capacity of the American people. Because if we are willing to work for it, and fight for it, and believe in it, then I am absolutely certain that generations from now, we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal; this was the moment when we ended a war and secured our nation and restored our image as the last, best hope on Earth. This was the moment - this was the time - when we came together to remake this great nation so that it may always reflect our very best selves, and our highest ideals. Thank you, God Bless you, and may God Bless the United States of America.

Great Moments in Legal History: Latrell Sprewell Sues the NBA Claiming to be a Slave

Yes, ladies and gentleman, the law, and the legal profession, has had a long and distinguished history. Litigation has often served as the marching point for balancing the inequalities society has often imposed upon its citizens. There are some moments, like Brown v. Board of Education of Topeka Kansas, where Oliver Brown courageously took on the segregationist educational system of America asking the Court, and indeed, America: Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment?

This was brave. This was bold. But it is nothing compared to this great moment in legal history: the day Latrell Sprewell, a professional basketball player, filed suit against the National Basketball Association claiming a violation of his 13th Amendment right; Mr. Sprewell was a slave, and the NBA was his slave master. Said Mr. Sprewell, later, in rejecting a three-year, $21 million contract with the Minnesota Timberwolves (while at the time making $14.6 million per year), an NBA team (and therefore one of his alleged "slave masters"), "they're not doing anything for me. I've got a lot at risk here. I've got my family to feed. If (team owner Glen) Taylor wants to see my family fed, he better cough up some money. Otherwise, you're going to see these kids in one of those Sally Struthers commercials soon (where she solicits donations for starving children in developing countries) ." Indeed, Mr. Sprewell, what slave could afford to feed his family on $14.6 million per year? Indeed.

The 13th Amendment, adopted in 1865, reads:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have the power to enforce this article by appropriate legislation.

The 13th Amendment was passed in order to legally ensure that the economic system upon which persons, known as slaves, are deprived of personal freedom and compelled to work. They are held against their will from the time of capture or birth, and are deprived of the right to leave, refuse work, or to receive compensation in return of their labor. They were generally horribly mistreated and worked in inhumane conditions. In sum, slaves were not people, but property, and were often cruelly treated as such.

Fast-forward to the year 1999, Mr. Sprewell and his team of "legal eagles" filed suit against the NBA for a host of offenses. In their complaint, Mr. Sprewell alleges the Golden State Warriors (the team employing him at the time) and the NBA, "conspired to violate Mr. Sprewell's civil rights and violated his freedom of contract, because of his race, which is Black and African-American."

The start of this incident occurred on December 1, 1997, when Mr. Sprewell and his coach/(and I'll assume, someone he views as a "slave master" of sorts) got into a physical altercation while in practice. The trial court, Sprewell v. Golden State Warriors, 1999 U.S. Dist. LEXIS 3875 (N.D. Cal. Mar. 26, 1999), described the altercation as such:

Plaintiff attacked Carlesimo after the coach repeated a request that plaintiff pass the ball with greater force. Plaintiff slammed the ball down and told Carlesimo to "get out of my face, get the fuck out of here and leave me the fuck alone." Carlesimo responded, "you're the fuck out of here." Plaintiff then either walked or lunged at Carlesimo, grasped his neck driving him backward and stated, "I will kill you." Carlesimo offered no resistance and the two were separated. As plaintiff left the practice floor he stated, "trade me, get me out of here, I will kill you," to which Carlesimo countered "I am here."

After showering and changing, plaintiff, apparently feeling the need to re-articulate his position, returned to the practice facility and stated to Carlesimo, "you better get my ass out of here, get me the fuck out of here." Despite the efforts of two assistant coaches to restrain him, plaintiff succeeded in approaching Carlesimo and throwing an overhand punch that grazed Carlesimo's right cheek. A second blow landed on Carlesimo's right shoulder but may have been inadvertently delivered by plaintiff in his attempt to break free from those who were trying to restrain him. As he left the facility, plaintiff again stated, "I will kill you."

To set up his point regarding the 13th Amendment violation, and the villainy of his "slave master." Mr. Sprewell, in his motion, described Mr. Carlesimo as a "Caucasian, [who] took over as head coach of Defendant Warriors. Mr. Carlesimo was presented to the public under the banner "No More Mr. Nice Guy." In advertisements, Mr. Carlesimo was dressed like a gangster and portrayed as a coach who enjoyed taunting and screaming at his team. Mr. Carlesimo was and is known to be an abusive and caustic coach who frequently uses foul and threatening language towards the players on his team."

After the altercation, Mr. Sprewell was fined, suspended for the remainder of the season, and was then fired (thereby losing privileges to his $6.4 million per year salary). Disputing his contract termination (indeed, Mr. Sprewell, in his complaint referred to the punishment as "harsh"), Mr. Sprewell and the Warrior, in accordance to the collective bargaining agreement, took the matter to arbitration where the arbitrator ruled in favor of Mr. Sprewell. Clearly, the arbitrator must have believed, choking your boss should get you fired.

After being reinstated, and then subsequently traded, Mr. Sprewell initiated litigation against the Warriors and the NBA. One ff the offenses disputed was a violation of Mr. Sprewell's 13th Amendment right to not be a slave.

In regard to the 13th Amendment complaint, Mr. Sprewell argued:

Defendants intentionally interfered with Mr. Sprewell's freedom to make and enforce contracts in violation of the Thirteenth and Fourteenth Amendments to the Constitution of the United States of America and Section 1981.

Defendants' conduct was based upon Mr. Sprewell's race, African-American and Black, in violation of Section 1981. Historically, the management of Defendant NBA are white. A majority of the management and owners of Defendant NBA teams such as Defendant Golden State Warriors are white. However, a majority of the players are African-American and Black, like Mr. Sprewell.

Mr. Sprewell's complaint included a violation of the Sherman Anti-trust Act.

At the district court, amidst tension and drama, the court ultimately sided against Mr. Sprewell, stating:

Whatever evidentiary value a predominantly white management afford of an intent to discriminate in hiring or promotion, plaintiff's allegations are directed toward wrongful termination and excessive employee discipline. In this context, the mere allegation that management is predominantly Caucasian and plaintiff is African-American does not support an inference that defendants intentionally discriminated against him in his capacity as a player...

Moreover, the mere assertion that "some" white players obtained favorable termination provisions fails to provide a ground for inferring racial animus against plaintiff. Such facts are equally consistent with non-discriminatory treatment. Finally, it is unclear how plaintiff has been harmed by a failure to obtain better termination rights given the arbitrator's rescission of the Warrior's contract termination.

Amazingly, this case was taken to the 9th Circuit, Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. Cal. 2001), but, on relevant issues, the 9th Circuit affirmed the district court.

In sum, the law has come down against Mr. Sprewell. Apparently, in the eyes of the law, Mr. Sprewell, a professional basketball player, is not a slave.

And that, folks, ends one of the greatest moments in legal history.

Post Script:

For folks who are interested, Mr. Sprewell is still alive and well. On August 30, 2006, Milwaukee police investigated a claim by a 21-year-old female who claimed that she and Sprewell were having consensual sex aboard his 70-foot yacht, named "Milwaukee's Best," when Sprewell began to strangle her. On January 31, 2007, Sprewell's long term companion sued him for $200 million for ending their relationship agreement. She claims Sprewell agreed to support her and their four children since they were in college. On August 22nd, 2007, it was reported by multiple news agencies that Latrell Sprewell's yacht ("Milwaukee's Best") was repossessed by federal marshals after Sprewell failed to maintain payments and insurance for the vessel, for which he reportedly still owed approximately $1.3 million USD. In May 2008 a Milwaukee area home owned by Sprewell went into foreclosure status. He also owes $72,000 in unpaid taxes while his company Sprewell Motorsports hasn't paid its credit card bills. Mr. Sprewell is considering rejoining the NBA.

Monday, June 2, 2008

Brian Fantana, J.D.?

I was watching Anchorman the other night and it occurred to me that Brian Fantana might be an attorney. While watching the "Sex Panther" scene, which shows Fantana's office, I noticed....Federal Reporters in the background!?!?! Is Brian Fantana an attorney? Judge for yourself...

PS: I checked the CalBar Attorney Search, nobody by the name of "Brian Fantana" is licensed in California.

How Not To Succeed As A Summer Associate

Found this great post on Above the Law the other day about a memo put out by NYU Law on "how not to succeed as a summer associate." The memo entailed a few real life examples on some improper things summer associates did. While I'm working for the government this summer so I won't have the joy of expensing out a strip club bill (or get paid much, for that matter), I still learned a few valuable lessons (such as don't do skinny dipping with your boss) and learned how to avoid problems (bring your own laptop). Keep that last one in mind... Anyhow, here is my top ten, but be sure to check out the entire list.

1. Summer associate complains about having a windowless office and then claims to have been "promised" a window during the interview process.

2. Summer associate shows up at all firm events involving food, and is so busy eating that they fail to socialize with anyone else.

3. Summer associate sleeps 12 hours a day during the firm's three-day sailing trip.

4. Summer associate engages in public display of affection with co-clerk in library.

5. Summer associate throws up after a firm cocktail party as a result of excess consumption of alcohol.

6. Summer associate visits Internet porn sites at the office.

7. Summer associate organizes summer associate outing to strip club and bills firm.

8. Summer associate tells a partner that the way he is trying to make a fire during a firm canoe trip is "dumb"; same summer associate, later on the canoe trip, goes skinny dipping with senior associate.

9. Summer associate extends disingenuous lunch invite to attorney in order to dine at an expensive restaurant.

10. Summer associate says to a British-trained senior associate "I don't know where you went to law school, but in America summer associates get more sophisticated work assignments".