courthousenews--2020-09-24--Tennessee Man Who Plotted to Burn Down a Mosque Resentenced

CHATTANOOGA , Tenn. ( CN ) — A federal judge on Wednesday resentenced Robert Doggart , a Tennessee man convicted on charges surrounding a plot to burn down a New York mosque , to 120 months in prison after an appeals court determined the house of worship was not involved in interstate commerce .
The former congressional candidate was charged in 2015 for soliciting others to destroy the mosque of Islamberg , New York , a small community in the Catskill Mountains near the Pennsylvania state line .
After Assistant U.S. Attorney Perry Piper argued a terrorism enhancement applied , @ @ @ @ @ @ @ Clinton appointee , said the underlying facts of the case remained unchanged and handed down the 120-month maximum statutory sentence for the conviction of solicitation to commit a civil rights offense .
During the hearing partially conducted over telephone due to Covid-19 , Collier said he had received many letters from the residents of Islamberg describing the long-lasting impact Doggart ’ s plot had on their peaceful community .
The excerpts of more than a half-dozen letters that Collier read said some members of Islamberg started locking their doors and become anxious whenever @ @ @ @ @ @ @ .
They also worried about Doggart ’ s accomplices .
According to phone recordings of Doggart , he had said he did not “ want to have to kill children , but there ’ s always collateral damage.
” According to court documents , Doggart thought the community was planning an attack on New York City , so he began talking with others about attacking it , using Molotov cocktails , guns with silencers and machetes .
Originally sentenced to 235 months on two counts in 2017 , Doggart appealed to the Sixth @ @ @ @ @ @ @ his arson solicitation conviction because the house of worship had a more local and spiritual connection , and typically states prosecute instances of arson .
“ In everyday English , one does not think of a mosque that serves a 200-person local community as a building used in commerce , much less interstate commerce , ” the Sixth Circuit wrote in its 13-page decision .
“ There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan .
But the words of this statute are not one of them.
@ @ @ @ @ @ @ , Doggart said the time he spent in prison gave him a “ more developed level of humility ” and if he were released he would use his engineering skills to better the world .
“ I am deeply sorrowed and contrite , ” Doggart said , adding he prays the futures of the residents of Islamberg would be fulfilling and joyful .
Furthermore , he said he is not obsessed with the town in New York .
Myrlene Marsa , the federal defender representing Doggart , said Doggart was experiencing health problems @ @ @ @ @ @ @ job and had recently come up short in his 2014 congressional run when he began interacting with people on Facebook and the internet that he now recognizes held dangerous views .
Mara had argued that given Doggart ’ s lack of previous criminal history , he should have been resentenced to 51 to 63 months .
She told the court Doggart had almost served 47 months at the time of the hearing .
But Collier said he “ rather vividly ” remembered Doggart ’ s allocution years before where Doggart said the reason @ @ @ @ @ @ @ was an old , white male , and not , for instance , bragging about military tactics .
“ He really didn ’ t have any insight into his action and what he had done , ” Collier said .
Brian Levin , director at the Center for the Study of Hate and Extremism at California State University , San Bernardino , said the Sixth Circuit ’ s January ruling came at a time when houses of worship have been facing higher levels of risk from extremist violence .
The Sixth Circuit ’ @ @ @ @ @ @ @ was mostly a technical one , Levin said , but was narrower than how the courts decades ago looked at the commerce clause and did not consider Congress ’ interest in protecting houses of worship .
In the 1990s , Levin noted , the Bureau of Alcohol , Tobacco and Firearms investigated church arsons .
“ This has implications also to use of arson in current political protests , ” Levin said .
“ And I think it ’ s strange credulity to say that arson is merely a personal vendetta or insurance @ @ @ @ @ @ @ seeing it under the auspices of conflictual political events and particularly the history we ’ ve had with arsons and explosives used against Black churches .
”

A federal judge on Wednesday resentenced Robert Doggart, a Tennessee man convicted on charges surrounding a plot to burn down a New York mosque, to 120 months in prison after an appeals court determined the house of worship was not involved in interstate commerce.
CHATTANOOGA, Tenn. (CN) — A federal judge on Wednesday resentenced Robert Doggart, a Tennessee man convicted on charges surrounding a plot to burn down a New York mosque, to 120 months in prison after an appeals court determined the house of worship was not involved in interstate commerce.
The former congressional candidate was charged in 2015 for soliciting others to destroy the mosque of Islamberg, New York, a small community in the Catskill Mountains near the Pennsylvania state line.
After Assistant U.S. Attorney Perry Piper argued a terrorism enhancement applied, District Judge Curtis Collier, a Bill Clinton appointee, said the underlying facts of the case remained unchanged and handed down the 120-month maximum statutory sentence for the conviction of solicitation to commit a civil rights offense.
During the hearing partially conducted over telephone due to Covid-19, Collier said he had received many letters from the residents of Islamberg describing the long-lasting impact Doggart’s plot had on their peaceful community.
The excerpts of more than a half-dozen letters that Collier read said some members of Islamberg started locking their doors and become anxious whenever a strange car drives through the neighborhood. They also worried about Doggart’s accomplices.
According to phone recordings of Doggart, he had said he did not “want to have to kill children, but there’s always collateral damage.”
According to court documents, Doggart thought the community was planning an attack on New York City, so he began talking with others about attacking it, using Molotov cocktails, guns with silencers and machetes.
Originally sentenced to 235 months on two counts in 2017, Doggart appealed to the Sixth Circuit. In January, it reversed his arson solicitation conviction because the house of worship had a more local and spiritual connection, and typically states prosecute instances of arson.
“In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce,” the Sixth Circuit wrote in its 13-page decision. “There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.”
Delivering his allocution statement by phone, Doggart said the time he spent in prison gave him a “more developed level of humility” and if he were released he would use his engineering skills to better the world.
“I am deeply sorrowed and contrite,” Doggart said, adding he prays the futures of the residents of Islamberg would be fulfilling and joyful. Furthermore, he said he is not obsessed with the town in New York.
“Let mercy triumph this fine day,” Doggart urged the court.
Myrlene Marsa, the federal defender representing Doggart, said Doggart was experiencing health problems, underwent a divorce, lost his job and had recently come up short in his 2014 congressional run when he began interacting with people on Facebook and the internet that he now recognizes held dangerous views.
Mara had argued that given Doggart’s lack of previous criminal history, he should have been resentenced to 51 to 63 months. She told the court Doggart had almost served 47 months at the time of the hearing.
But Collier said he “rather vividly” remembered Doggart’s allocution years before where Doggart said the reason he was being prosecuted is because he was an old, white male, and not, for instance, bragging about military tactics.
“He really didn’t have any insight into his action and what he had done,” Collier said.
Brian Levin, director at the Center for the Study of Hate and Extremism at California State University, San Bernardino, said the Sixth Circuit’s January ruling came at a time when houses of worship have been facing higher levels of risk from extremist violence.
The Sixth Circuit’s ruling in Doggart’s case was mostly a technical one, Levin said, but was narrower than how the courts decades ago looked at the commerce clause and did not consider Congress’ interest in protecting houses of worship. In the 1990s, Levin noted, the Bureau of Alcohol, Tobacco and Firearms investigated church arsons.
Furthermore, Levin said the Sixth Circuit’s ruling has implications for how federal arson statutes are used in response to the current political protests. “I think it strains credulity to say that arson is merely a personal vendetta or insurance fraud crime when we’re increasingly seeing it under the auspices of conflictual political events and particularly the history we’ve had with arsons and explosives used against Black churches,” Levin said.


courthousenews--2020-09-23--Trump Refuses to Commit to Peaceful Transfer if He Loses Election

WASHINGTON ( CN ) — When asked directly if he would commit to a peaceful transition of power should the 2020 election not fall in his favor , President Donald Trump refused to answer before exiting a White House press briefing for an “ emergency call.
” “ We ’ ll have to see what happens .
You know that .
I ’ ve been complaining very strongly about the ballots and the ballots are a disaster , ” Trump said to reporters gathered for the semi-regular press conference held at the White House .
Brian Karem , a senior @ @ @ @ @ @ @ question succinctly , asking Trump “ win lose or draw ” if he would ensure the tradition of a peaceful and democratic transferral of power would occur .
Appearing to reference mail in ballots — which the president has baselessly and ubiquitously alleged are entirely rife with fraud — Trump fumbled over his response to Karem .
“ Get rid of the ballots and you ’ ll have a very trans — you ’ ll have a very peaceful — there won ’ t be a transfer frankly .
There will be a @ @ @ @ @ @ @ control .
You know it and you know who knows it better than anyone else ?
The Democrats know it better than anybody else , ” Trump said .
Without much warning , Trump then exited for an “ emergency call.
” He did not elaborate .
The White House did not respond to requests for comment .
Trump has made comments in the same vein before , challenging not only social norms around the American presidency but the constitutional law enshrining it .
In Wisconsin on Aug. 17 , Trump told a @ @ @ @ @ @ @ to win four more years and then after that , we ’ ll go for another four years because they spied on my campaign.
” That allegation was debunked by former Department of Justice inspector general Michael Horowitz .
“ We should get a redo of four years , ” Trump said .
He made an identical comment during a stump in Arizona a day later .
Weeks before , Trump tested the idea on Twitter stating mail-in voting would trigger the most “ inaccurate & fraudulent Election in history.
” “ It @ @ @ @ @ @ @ USA .
Delay the election until people can properly , securely and safely vote , ” Trump tweeted .
The Constitution bars presidents from serving beyond two consecutive terms .
Trump has been undeterred .
Historically , the former reality-TV-star has brushed off criticism of his comments , saying he was “ joking.
” Last June , on “ Meet the Press ” Trump told host Chuck Todd he references abolishing term limits for the presidency to drive the media “ crazy.
” But a year before that , in private remarks recorded @ @ @ @ @ @ @ to embrace the idea .
At a Florida fundraiser in the wake of China ’ s President Xi Jinping ’ s successful move to abolish presidential term limits in the country , Trump remarked : “ He ’ s president for life now .
President for life .
No , he ’ s great .
And look , he was able to do that.
” Texas Democrat Al Green , the first lawmaker in the House calling for Trump ’ s impeachment , said in a phone interview Wednesday that given the number @ @ @ @ @ @ @ in office beyond his term , people are right to have a “ good deal of consternation.
” “ This is unhealthy for our democratic institutions , democracy , for our republic .
It is , at some point , more than what I would call fatuous folly or silliness .
At some point you have to start to take the president seriously when he continues to say these things , ” Green said .
He considered the administration ’ s push to overturn the Affordable Care Act .
Trump has vowed no @ @ @ @ @ @ @ But in a matter of weeks — right after the U.S. election — the Supreme Court will hear arguments for his administration ’ s request to overturn the Affordable Care Act altogether .
With Justice Ruth Bader Ginsburg ’ s death and Republicans in the Senate moving ahead on nominations , Green said if Trump is successful in placing a justice on the high court of his choice , the U.S. could risk seeing the ACA totally eviscerated .
Election Day is 41 days away and in the United States , Green reflected @ @ @ @ @ @ @ a means of transferring power , not the bullet .
“ The people of this country and the will of the people must be respected , ” Green said .
“ The president would take us back to what I would call the status quo antebellum .
This was all resolved long ago with a civil conflict .
We ’ re not going to return to that form of behavior .
We can not allow ourselves to do this .
We have to take him seriously and we have to prepare for this @ @ @ @ @ @ @ the Constitution and be prepared to take the constitutional measures necessary to deal with his behavior.
” Trump ’ s divisive comments Wednesday night were not limited to term limits .
With protests already forming in Louisville , Trump praised Kentucky Attorney General Daniel Cameron following a grand jury decision there not to charge officers involved in the shooting of Breonna Taylor , a young Black woman who was killed by police as she lay sleeping in her bed .
“ She committed no crime .
She had a companion with her .
@ @ @ @ @ @ @ weapon he had .
He had a right to stand his ground .
She was a person who fired no shots .
Although she was a person who lost her life , ” Green said .
These circumstances should force Americans to ask themselves questions “ no one wants to ask , ” Green added .
“ If Breonna Taylor were a 26-year-old white female with all of the facts the same and had three African American officers intrude into her home the way these officers did — a 26-year-old white female — @ @ @ @ @ @ @ ” That ’ s the question we have to ask , he said .
Much like he wants to see Trump ’ s words taken seriously , Green said the same must apply to the national conversation on systemic racism .
Green has called for the creation of a Department of Reconciliation to focus on these issues .
It would have a secretary spearheading it , like other federal agencies .
Separately Wednesday night , Trump announced his intent to nominate Allen Souza for inspector general for the intelligence community .
Souza is @ @ @ @ @ @ @ , a California Republican and Trump stalwart who unsuccessfully sued Twitter for defamation after he was parodied online .
Souza was close with Nunes at the start of Trump ’ s presidency , working with the lawmaker and other Republicans conducting their investigation into the IC ’ s assessment of Russian interference in Trump ’ s campaign .

When asked directly if he would commit to a peaceful transition of power should the 2020 election not fall in his favor, President Donald Trump refused to answer before exiting a White House press briefing for an “emergency call.”
WASHINGTON (CN) — When asked directly if he would commit to a peaceful transition of power should the 2020 election not fall in his favor, President Donald Trump refused to answer before exiting a White House press briefing for an “emergency call.”
“We’ll have to see what happens. You know that. I’ve been complaining very strongly about the ballots and the ballots are a disaster,” Trump said to reporters gathered for the semi-regular press conference held at the White House.
Brian Karem, a senior White House reporter for Playboy framed the question succinctly, asking Trump “win lose or draw” if he would ensure the tradition of a peaceful and democratic transferral of power would occur.
Appearing to reference mail in ballots — which the president has baselessly and ubiquitously alleged are entirely rife with fraud — Trump fumbled over his response to Karem.
“Get rid of the ballots and you’ll have a very trans — you’ll have a very peaceful — there won't be a transfer frankly. There will be a continuation. The ballots are out of control. You know it and you know who knows it better than anyone else? The Democrats know it better than anybody else,” Trump said.
Without much warning, Trump then exited for an “emergency call.” He did not elaborate. The White House did not respond to requests for comment.
Trump has made comments in the same vein before, challenging not only social norms around the American presidency but the constitutional law enshrining it.
In Wisconsin on Aug. 17, Trump told a faithful crowd: “We are going to win four more years and then after that, we’ll go for another four years because they spied on my campaign.”
That allegation was debunked by former Department of Justice inspector general Michael Horowitz.
“We should get a redo of four years,” Trump said.
He made an identical comment during a stump in Arizona a day later.
Weeks before, Trump tested the idea on Twitter stating mail-in voting would trigger the most “inaccurate & fraudulent Election in history.”
“It will be a great embarrassment to the USA. Delay the election until people can properly, securely and safely vote,” Trump tweeted.
The Constitution bars presidents from serving beyond two consecutive terms. Trump has been undeterred.
Historically, the former reality-TV-star has brushed off criticism of his comments, saying he was “joking.”
Last June, on “Meet the Press” Trump told host Chuck Todd he references abolishing term limits for the presidency to drive the media “crazy.”
But a year before that, in private remarks recorded and shared with CNN, he seemed to embrace the idea.
At a Florida fundraiser in the wake of China’s President Xi Jinping’s successful move to abolish presidential term limits in the country, Trump remarked: “He’s president for life now. President for life. No, he’s great. And look, he was able to do that.”
Texas Democrat Al Green, the first lawmaker in the House calling for Trump’s impeachment, said in a phone interview Wednesday that given the number of times Trump has referred to staying in office beyond his term, people are right to have a “good deal of consternation.”
“This is unhealthy for our democratic institutions, democracy, for our republic. It is, at some point, more than what I would call fatuous folly or silliness. At some point you have to start to take the president seriously when he continues to say these things,” Green said.
He considered the administration’s push to overturn the Affordable Care Act.
Trump has vowed no American would lose their health care. But in a matter of weeks — right after the U.S. election — the Supreme Court will hear arguments for his administration’s request to overturn the Affordable Care Act altogether.
With Justice Ruth Bader Ginsburg’s death and Republicans in the Senate moving ahead on nominations, Green said if Trump is successful in placing a justice on the high court of his choice, the U.S. could risk seeing the ACA totally eviscerated.
Election Day is 41 days away and in the United States, Green reflected, the people choose the ballot as a means of transferring power, not the bullet.
“The people of this country and the will of the people must be respected,” Green said. “The president would take us back to what I would call the status quo antebellum. This was all resolved long ago with a civil conflict. We’re not going to return to that form of behavior. We cannot allow ourselves to do this. We have to take him seriously and we have to prepare for this eventuality. We have to clearly examine the Constitution and be prepared to take the constitutional measures necessary to deal with his behavior.”
Trump’s divisive comments Wednesday night were not limited to term limits.
With protests already forming in Louisville, Trump praised Kentucky Attorney General Daniel Cameron following a grand jury decision there not to charge officers involved in the shooting of Breonna Taylor, a young Black woman who was killed by police as she lay sleeping in her bed.
“She committed no crime. She had a companion with her. He had a right to have the weapon he had. He had a right to stand his ground. She was a person who fired no shots. Although she was a person who lost her life,” Green said.
These circumstances should force Americans to ask themselves questions “no one wants to ask,” Green added.
“If Breonna Taylor were a 26-year-old white female with all of the facts the same and had three African American officers intrude into her home the way these officers did — a 26-year-old white female — would we get the same results?” That’s the question we have to ask, he said.
Much like he wants to see Trump’s words taken seriously, Green said the same must apply to the national conversation on systemic racism.
Green has called for the creation of a Department of Reconciliation to focus on these issues. It would have a secretary spearheading it, like other federal agencies.
Separately Wednesday night, Trump announced his intent to nominate Allen Souza for inspector general for the intelligence community.
Souza is the former aide to Representative Devin Nunes, a California Republican and Trump stalwart who unsuccessfully sued Twitter for defamation after he was parodied online.
Souza was close with Nunes at the start of Trump’s presidency, working with the lawmaker and other Republicans conducting their investigation into the IC’s assessment of Russian interference in Trump’s campaign.


courthousenews--2020-09-25--Criminal Trial Over Chemical Plant Meltdown in Texas Resumes After Covid Delay

HOUSTON ( CN ) — The criminal trial of a chemical company and its CEO over a hurricane-triggered meltdown at its Houston-area plant resumed Thursday after the pandemic forced a six-month delay .
Defense attorneys for Arkema Inc. and three company officials have accused Harris County District Attorney Kim Ogg , the chief prosecutor in Houston , of trying to “ criminalize a natural disaster , ” of conducting a “ political prosecution in search of a theory ” and presenting a case “ dumber than a bucket of hair.
” Hurricane Harvey , the largest storm in recorded history @ @ @ @ @ @ @ havoc on the region ’ s petrochemical industry when it stalled over Houston in August 2017 and dumped as much as 50 inches of rain in some areas .
ExxonMobil ’ s 3,200-acre refinery and chemical-production complex in Baytown , an east Houston suburb , spilled 457 million gallons of oily wastewater into a creek .
Magellan Midstream Partners reported to the U.S. Coast Guard that 42,000 gallons of gasoline had spilled from its tank farm in east Houston .
But the incident at Arkema ’ s plant in Crosby , a small @ @ @ @ @ @ @ most publicity as company officials warned first responders on Aug. 30 , 2017 that organic peroxides there would soon combust and an explosion was imminent .
Organic peroxides are used to make plastic , rubber , polyester , silicone and fiberglass and must be kept cool or they will decompose and catch fire .
Harvey flooded the plant with 6 to 8 feet of water , knocking out power to air-conditioned warehouses where Arkema stored the chemicals .
Arkema moved them to refrigerated trailers , but some of the trailers lacked telemetry equipment @ @ @ @ @ @ @ them .
A unified command with law enforcement , fire marshal ’ s office , state and federal environmental agents was set up near the plant and they established a 1.5-mile evacuation zone to keep people away .
Peroxides in one of the trailers burst into flames early the next morning , forcing 205 residents to evacuate their homes and hospitalizing 21 first responders after they were exposed to the smoke .
The U.S. Chemical Safety Hazard and Investigation Board analyzed the incident and its May 2018 report seemed to exonerate Arkema .
@ @ @ @ @ @ @ would not have been averted ” even if Arkema had followed flood-preparation guidelines of the Federal Emergency Management Agency and chemical trade groups .
( see pg .
88 attached report ) No company could have prepared for Harvey , the chemical safety board concluded , and even though Hurricane Rita ( 2005 ) and Hurricane Ike ( 2008 ) had made landfall closer to Arkema ’ s plant , they had not produced the same amount of flooding on the property .
( pg .
86 report ) So Arkema was blindsided @ @ @ @ @ @ @ grand jury had returned a felony air pollution indictment against Arkema Inc. , its CEO Richard Rowe and plant manager Leslie Comardelle .
That was followed by a felony assault indictment in April 2019 , against Arkema and its now-retired vice president of logistics , Michael Keough .
Arkema ’ s defense team says the prosecution makes no sense because Arkema officials did everything right .
They kept emergency responders in the loop about conditions at the plant , even telling them they should wear protective equipment because they may be exposed to @ @ @ @ @ @ @ late February and was postponed in early March due to the coronavirus pandemic .
Jurors returned to the case Thursday and learned the DA ’ s office had dismissed the assault charges after Ogg ’ s Environmental Crimes Division Chief , Alex Forrest , decided he could not prove them beyond a reasonable doubt .
After the dismissals , Keough ’ s attorney Dan Cogdell told reporters the state ’ s theory was Keough had committed reckless assault against two sheriff ’ s deputies who suffered lung damage from the incident , by @ @ @ @ @ @ @ to monitor the chemicals on conference calls with unified command while Keough was at the company headquarters in Pennsylvania .
“ Theory was you can commit assault by not providing info…It ’ s dumber than a bucket of hair , ” Cogdell said .
Given the long break , Belinda Hill , a senior judge presiding over the case by special assignment , let both sides Thursday summarize previous testimony to refresh jurors ’ memories .
Though Forrest is overseeing the prosecution , Ogg tapped two civil attorneys , Michael Doyle and Grant @ @ @ @ @ @ @ Doyle told jurors Thursday that despite the fact organic peroxides are so volatile they are classified as potential weapons of mass destruction , Arkema officials had made up their minds they were never going to move the chemicals out of a storm ’ s path .
They were going to keep them on site , Doyle said , just as they had done through dozens of tropical storms and hurricanes that hit the Houston area going back decades .
Arkema attorney Letitia Quinones , of Quinones & Associates PLLC , said its employees @ @ @ @ @ @ @ problem as meteorologists were predicting on Aug. 26 it would produce 10 to 15 inches of rain over five days .
So it was not worth it for Arkema to truck the more than 300,000 pounds of organic peroxides at the plant away from it , she said .
Besides , Quinones said , Arkema employees thought it was safer to keep the chemicals at the plant then take them out in trucks that could get stranded on flooded freeways where they would essentially become ticking time bombs .
But Harvey dumped 20 @ @ @ @ @ @ @ hours , and the water rose to the level of stop signs at Arkema ’ s plant , Quinones said .
“ These allegations Arkema was criminally reckless for leaving chemicals on site rather than moving them are ridiculous , ” she continued .
“ It is much safer leaving them on site based on history , through 20 storms Arkema never had an issue with them .
But there had never been a 5,000-to-20,000-year storm.
” She said no one at Arkema knew law enforcement was in the evacuation zone when the @ @ @ @ @ @ @ s reckless emissions case centers on Harris County sheriff ’ s lieutenant David Klozik , who Doyle said suffered permanent lung injuries when he drove his patrol car through a gray vapor cloud emitted from Arkema ’ s plant .
But Quinones said Klozik ’ s boss was to blame for not being aware the evacuation zone had been set up .
Before the trial restarted , the defense asked Judge Hill to dismiss the remaining charges due to alleged prosecutorial misconduct .
They said Assistant DA Forrest had lied to a grand @ @ @ @ @ @ @ company in the Houston area that produces organic peroxides , had prepared for Hurricane Harvey by trucking all the organic peroxides from its plant to storage in upstate New York .
According to the defense , prosecutors recently revealed AkzoNobel had in fact kept more than 75 % of the chemicals at its plant during Harvey because , like Arkema , it had decided it was safer to keep the chemicals on site .
Before she seated the jury Thursday , Hill said she would not dismiss the indictments because “ appellate courts @ @ @ @ @ @ @ drastic and rare.
” She said she will issue a ruling soon on the prosecutorial misconduct allegations .
The proceedings , expected to last another two weeks , have been moved from the Harris County Criminal Courthouse to the NRG Center to accommodate social distancing .
Comardelle now manages an Arkema plant in Luling , Louisiana .
He is represented by Houston attorneys Paul Nugent and Heather Peterson of Nugent & Peterson .
Arkema CEO Rowe is represented by Tim Johnson of Locke Lord LLP .
Arkema is represented by Quinones , Derek @ @ @ @ @ @ @ of the Houston defense bar who has represented numerous professional athletes .

The criminal trial of a chemical company and its CEO over a hurricane-triggered meltdown at its Houston-area plant resumed Thursday after the pandemic forced a six-month delay.
HOUSTON (CN) — The criminal trial of a chemical company and its CEO over a hurricane-triggered meltdown at its Houston-area plant resumed Thursday after the pandemic forced a six-month delay.
Defense attorneys for Arkema Inc. and three company officials have accused Harris County District Attorney Kim Ogg, the chief prosecutor in Houston, of trying to “criminalize a natural disaster,” of conducting a “political prosecution in search of a theory” and presenting a case “dumber than a bucket of hair.”
Hurricane Harvey, the largest storm in recorded history of the continental United States, wreaked havoc on the region’s petrochemical industry when it stalled over Houston in August 2017 and dumped as much as 50 inches of rain in some areas.
ExxonMobil’s 3,200-acre refinery and chemical-production complex in Baytown, an east Houston suburb, spilled 457 million gallons of oily wastewater into a creek.
Magellan Midstream Partners reported to the U.S. Coast Guard that 42,000 gallons of gasoline had spilled from its tank farm in east Houston.
But the incident at Arkema’s plant in Crosby, a small town northeast of Houston, received the most publicity as company officials warned first responders on Aug. 30, 2017 that organic peroxides there would soon combust and an explosion was imminent.
Organic peroxides are used to make plastic, rubber, polyester, silicone and fiberglass and must be kept cool or they will decompose and catch fire. Harvey flooded the plant with 6 to 8 feet of water, knocking out power to air-conditioned warehouses where Arkema stored the chemicals.
Arkema moved them to refrigerated trailers, but some of the trailers lacked telemetry equipment used to remotely monitor the temperature inside them.
A unified command with law enforcement, fire marshal’s office, state and federal environmental agents was set up near the plant and they established a 1.5-mile evacuation zone to keep people away.
Peroxides in one of the trailers burst into flames early the next morning, forcing 205 residents to evacuate their homes and hospitalizing 21 first responders after they were exposed to the smoke.
The U.S. Chemical Safety and Hazard Investigation Board analyzed the incident and its May 2018 report seemed to exonerate Arkema.
The report found “the incident likely would not have been averted” even if Arkema had followed flood-preparation guidelines of the Federal Emergency Management Agency and chemical trade groups.
No company could have prepared for Harvey, the chemical safety board concluded, and even though Hurricane Rita (2005) and Hurricane Ike (2008) had made landfall closer to Arkema’s plant, they had not produced the same amount of flooding on the property. (pg. 86 report)
So Arkema was blindsided in summer 2018 when Ogg announced a grand jury had returned a felony air pollution indictment against Arkema Inc., its CEO Richard Rowe and plant manager Leslie Comardelle.
That was followed by a felony assault indictment in April 2019, against Arkema and its now-retired vice president of logistics, Michael Keough.
Arkema’s defense team says the prosecution makes no sense because Arkema officials did everything right.
They kept emergency responders in the loop about conditions at the plant, even telling them they should wear protective equipment because they may be exposed to hazardous fumes.
The trial started in late February and was postponed in early March due to the coronavirus pandemic.
Jurors returned to the case Thursday and learned the DA’s office had dismissed the assault charges after Ogg’s Environmental Crimes Division Chief, Alex Forrest, decided he could not prove them beyond a reasonable doubt.
After the dismissals, Keough’s attorney Dan Cogdell told reporters the state’s theory was Keough had committed reckless assault against two sheriff’s deputies who suffered lung damage from the incident, by making misrepresentations about Arkema’s ability to monitor the chemicals on conference calls with unified command while Keough was at the company headquarters in Pennsylvania.


courthousenews--2020-09-25--‘Not the Time for Small Ball’: Climate Leaders Tout Ways to Lead California Through Crises

SACRAMENTO , Calif. ( CN ) — Leading 40 million residents through a brutal stretch of disease , death , wildfires and financial ruin , to Governor Gavin Newsom , the source of California ’ s summer of distress is obviously manmade .
Newsom has spent much of his first term as governor leapfrogging calamities , trying to keep pace with compounding disasters — specifically wildfires he believes are growing bigger and more deadly due to global warming .
With the “ smashmouth realities ” of decades of warming temperatures taking shape , the Democratic governor is pressing to make @ @ @ @ @ @ @ through the weight of its $ 3 trillion economy .
It ’ s not the time for small ball , ” Newsom said Thursday .
Newsom ’ s remarks came Thursday during a virtual climate showcase hosted by media personality Van Jones , in which the governor and other state officials detailed steps California must take to clean its air , electrical grid and economy .
Kicking off the so-called California Climate Action Day , Newsom told Jones that there was no longer any need for prognosticators to give their predictions about how @ @ @ @ @ @ @ in the Golden State .
He said prolonged droughts , intense storm cycles , burn scars and flooding have all plagued the state in recent years as a result of increasing temperatures and irregular weather patterns .
“ These were projected to happen in the future but have all taken shape now , ” Newsom told Jones , a California resident .
In his boldest climate move as governor , Newsom 24 hours earlier ordered a crackdown on traditional cars and trucks and issued a ban on the sale of new gas vehicles @ @ @ @ @ @ @ mandatory replacement of gas guzzlers as the “ most impactful step ” California could take to reduce smog and protect its coastline .
In addition , Newsom urged the Legislature to enact a swift prohibition on new hydraulic fracturing — fracking — permits .
With major implications for two titanic industries , the executive order made headlines around the world and reverberated throughout Thursday ’ s climate forum .
David Hochschild , chair of the California Energy Commission , said the state ’ s current wildfire season likely played a key role in @ @ @ @ @ @ @ What ’ s happened in the last few weeks , with the fires , is you have 40 million people in California struggling to breathe for weeks on end , ” Hochschild said .
“ It really elevated the importance of [ the ban ] ; climate is everybody ’ s issue now.
” With over 3.6 million acres charred this year by a combined 8,000 wildfires , Newsom has warned on multiple occasions that the scenarios playing out on the West Coast are headed to the rest of the country soon .
@ @ @ @ @ @ @ fuels , the state will be forced to make major investments and changes to its electrical grid , not to mention buffer the associated loss of oil industry jobs .
Environmental justice groups largely applauded Newsom ’ s order but say they remain skeptical .
They want assurances that the state ’ s push for “ green jobs ” will benefit disadvantaged communities and that Newsom ’ s plan will have real teeth .
Miya Yoshitani , executive director of the Asian Pacific Environmental Network , said community leaders in places like the @ @ @ @ @ @ @ the planning of California ’ s climate strategy , unlike previous state mandates .
“ We ’ re looking at more of a trickle-down effect of the benefits of the climate economy , rather than directed investments , ” Yoshitani said .
As the Legislature considers how to chart the state ’ s path to carbon neutrality over the next few decades , Assemblyman Eduardo Garcia , D-Coachella , said a clear focus must be placed on job training for low-income communities .
He said public and private investments need to be more @ @ @ @ @ @ @ to really turn the formula upside down , ” Garcia said .
“ Our investments need to be headed in places where historically they ’ ve been at the bottom of the list.
” Along with training for green jobs , the state has work to do on its own grid .
Last month during a statewide heatwave , the grid overheated and utilities were forced to execute rolling blackouts for the first time in decades .
Hochschild said electrifying public transportation and building microgrids will help prevent the August blackouts that left @ @ @ @ @ @ @ limiting dramatic spikes in energy .
He said an updated grid — even with the addition of electric trains and cars — could also lower household utility bills .
“ The more things you connect to the grid , interestingly , it actually has a downward force on electric grids , ” Hochschild explained , noting California currently gets 63 % of its electricity from renewable sources .
“ Two-thirds of your costs in the electric system are fixed so you ’ re spreading that cost.
” To accommodate the expected wave of @ @ @ @ @ @ @ Hochschild estimated the state will need to install at minimum 1 million new charging stations .
With over two dozen major wildfires still raging throughout the state , Thursday ’ s event also featured a panel on ways to limit the devastation of future infernos .
The Yurok tribe , which has reimplemented traditional burns on its reservation near the Klamath River in Northern California , says the state must change its outdated approach to preventing and fighting wildfires .
Margo Robbins , the executive director of the tribe ’ s Cultural Fire @ @ @ @ @ @ @ only minimize the spread of uncontrolled wildfires , they are vital to increasing biodiversity , improving soil and purifying streams .
Robbins said the tribe ’ s controlled burns , none of which have escaped , have lessened the likelihood of megafires by removing brush and downed fuels .
“ We need to change the narrative about fire ; there is such a good thing as good fire , ” Robbins said .
“ Indigenous people have the knowledge to lead us out of this global warming crisis we ’ re facing , @ @ @ @ @ @ @ ” To cap off the event , Newsom announced the creation of a volunteer corps with a focus on assisting “ local climate action projects ” across the state .
“ From fires and smoke to record high temperatures , nearly every Californian has been impacted in some way these last several weeks by climate change .
Even with the bold climate policies our state has enacted , we must — and can — do more at every level , ” said Newsom of the Climate Action Corps .
Newsom also signed legislation @ @ @ @ @ @ @ of recycled material in plastic drink containers .
By 2030 , all containers sold in California must be made from at least 50 % recycled content .
With the signing of Assembly Bill 793 , California becomes the first state with such a threshold for plastic drinks .
“ At the rate we were going , plastic waste would outnumber the fish in our oceans by 2050 , ” said bill author Assemblyman Phil Ting .
“ The governor ’ s signature means the time has come for companies to step up and @ @ @ @ @ @ @ By boosting the market for used plastics , fewer containers will end up as litter .
”

Leading 40 million residents through a brutal stretch of disease, death, wildfires and financial ruin, to Governor Gavin Newsom, the source of California’s summer of distress is obviously manmade.
SACRAMENTO, Calif. (CN) — Leading 40 million residents through a brutal stretch of disease, death, wildfires and financial ruin, to Governor Gavin Newsom, the source of California’s summer of distress is obviously manmade.
Newsom has spent much of his first term as governor leapfrogging calamities, trying to keep pace with compounding disasters — specifically wildfires he believes are growing bigger and more deadly due to global warming. With the “smashmouth realities” of decades of warming temperatures taking shape, the Democratic governor is pressing to make California the vanguard of fighting climate change through the weight of its $3 trillion economy.
It’s not the time for small ball,” Newsom said Thursday.
Newsom’s remarks came Thursday during a virtual climate showcase hosted by media personality Van Jones, in which the governor and other state officials detailed steps California must take to clean its air, electrical grid and economy.
Kicking off the so-called California Climate Action Day, Newsom told Jones that there was no longer any need for prognosticators to give their predictions about how the ravages of climate change would manifest in the Golden State. He said prolonged droughts, intense storm cycles, burn scars and flooding have all plagued the state in recent years as a result of increasing temperatures and irregular weather patterns.
“These were projected to happen in the future but have all taken shape now,” Newsom told Jones, a California resident.
In his boldest climate move as governor, Newsom 24 hours earlier ordered a crackdown on traditional cars and trucks and issued a ban on the sale of new gas vehicles within 15 years. He cast the mandatory replacement of gas guzzlers as the “most impactful step” California could take to reduce smog and protect its coastline. In addition, Newsom urged the Legislature to enact a swift prohibition on new hydraulic fracturing — fracking — permits.
With major implications for two titanic industries, the executive order made headlines around the world and reverberated throughout Thursday’s climate forum.
David Hochschild, chair of the California Energy Commission, said the state’s current wildfire season likely played a key role in Newsom’s thought process.
“What’s happened in the last few weeks, with the fires, is you have 40 million people in California struggling to breathe for weeks on end,” Hochschild said. “It really elevated the importance of [the ban]; climate is everybody’s issue now.”
With over 3.6 million acres charred this year by a combined 8,000 wildfires, Newsom has warned on multiple occasions that the scenarios playing out on the West Coast are headed to the rest of the country soon.
But in the process of ditching fossil fuels, the state will be forced to make major investments and changes to its electrical grid, not to mention buffer the associated loss of oil industry jobs.
Environmental justice groups largely applauded Newsom’s order but say they remain skeptical. They want assurances that the state’s push for “green jobs” will benefit disadvantaged communities and that Newsom’s plan will have real teeth.
Miya Yoshitani, executive director of the Asian Pacific Environmental Network, said community leaders in places like the Central Valley need to be involved in the planning of California’s climate strategy, unlike previous state mandates.
“We’re looking at more of a trickle-down effect of the benefits of the climate economy, rather than directed investments,” Yoshitani said.
As the Legislature considers how to chart the state’s path to carbon neutrality over the next few decades, Assemblyman Eduardo Garcia, D-Coachella, said a clear focus must be placed on job training for low-income communities. He said public and private investments need to be more calculated going forward.
“We have to really turn the formula upside down,” Garcia said. “Our investments need to be headed in places where historically they’ve been at the bottom of the list.”
Along with training for green jobs, the state has work to do on its own grid.
Last month during a statewide heatwave, the grid overheated and utilities were forced to execute rolling blackouts for the first time in decades.
Hochschild said electrifying public transportation and building microgrids will help prevent the August blackouts that left hundreds of thousands in the dark by limiting dramatic spikes in energy. He said an updated grid — even with the addition of electric trains and cars — could also lower household utility bills.
“The more things you connect to the grid, interestingly, it actually has a downward force on electric grids,” Hochschild explained, noting California currently gets 63% of its electricity from renewable sources. “Two-thirds of your costs in the electric system are fixed so you’re spreading that cost.”
To accommodate the expected wave of clean cars, trucks and buses, Hochschild estimated the state will need to install at minimum 1 million new charging stations.
With over two dozen major wildfires still raging throughout the state, Thursday’s event also featured a panel on ways to limit the devastation of future infernos.
The Yurok tribe, which has reimplemented traditional burns on its reservation near the Klamath River in Northern California, says the state must change its outdated approach to preventing and fighting wildfires.
Margo Robbins, the executive director of the tribe’s Cultural Fire Management Council, said planned burns not only minimize the spread of uncontrolled wildfires, they are vital to increasing biodiversity, improving soil and purifying streams. Robbins said the tribe’s controlled burns, none of which have escaped, have lessened the likelihood of megafires by removing brush and downed fuels.
“We need to change the narrative about fire; there is such a good thing as good fire,” Robbins said. “Indigenous people have the knowledge to lead us out of this global warming crisis we’re facing, it’s written on our DNA.”
To cap off the event, Newsom announced the creation of a volunteer corps with a focus on assisting “local climate action projects” across the state.
“From fires and smoke to record high temperatures, nearly every Californian has been impacted in some way these last several weeks by climate change. Even with the bold climate policies our state has enacted, we must — and can — do more at every level,” said Newsom of the Climate Action Corps.
Newsom also signed legislation requiring manufacturers to incrementally increase the amount of recycled material in plastic drink containers. By 2030, all containers sold in California must be made from at least 50% recycled content.
With the signing of Assembly Bill 793, California becomes the first state with such a threshold for plastic drinks.
“At the rate we were going, plastic waste would outnumber the fish in our oceans by 2050,” said bill author Assemblyman Phil Ting. “The governor’s signature means the time has come for companies to step up and help us be good environmental stewards. By boosting the market for used plastics, fewer containers will end up as litter.”


courthousenews--2020-09-24--Biden Posts Gains With Voters in Ohio, Nevada and Pennsylvania

( CN ) — In a stunner of a poll released Thursday , Democratic presidential candidate Joe Biden currently leads President Donald Trump in Ohio and two other states — and all three could prove crucial in deciding the outcome of November ’ s election .
As both candidates enter the final few weeks before Election Day , all eyes are on a series of critical battleground states that will likely determine who claims victory come November .
According to the Fox News poll , Ohio , Nevada and Pennsylvania have begun to shift in Biden ’ s favor .
@ @ @ @ @ @ @ tightest in Thursday ’ s poll but represents a slight edge for the former vice president in a state that ’ s been reliably red for years .
Biden leads the president by 5 points in the Buckeye State , 50 % -45 % , polling well among women and non-white voters .
Trump continues to do well among white and rural voters in all three states and holds a small edge overall among male Ohioans .
In Nevada , a state Trump lost to Hillary Clinton four years ago , Biden currently @ @ @ @ @ @ @ 52 % -41 % , thanks to overwhelming support — 30 points over Trump — from Hispanic voters .
Biden also leads in the Silver State among voters under 35 , women voters and seniors .
Trump , for his part , manages to hold a two-point lead over Biden among white Nevada voters , as well as holds small leads among white voters without a college degree and rural voters .
The candidates see a similar story in Pennsylvania where Biden leads Trump by seven points , 51 % -44 % , @ @ @ @ @ @ @ women and suburbanites .
Pennsylvania ’ s numbers are notable given Trump won the Keystone State albeit narrowly four years ago .
“ Trump ’ s surprise 2016 win in Pennsylvania was driven by his mobilization of voters in the northern and central regions of the state , ” said Republican pollster Daron Shaw with the release of the poll .
“ He needs that kind of support again and a slight tick-up among suburban voters to pull even here.
” Pollsters also asked voters in the three states to gauge which candidate @ @ @ @ @ @ @ some of the major crises and issues the United States faces today .
Many throw their support behind Biden .
Regarding the coronavirus , most voters said they trust Biden to do a better job at managing the pandemic than Trump , with Biden leading Trump by double-digits in this regard in all three of the polled states .
The poll also found a plurality of voters believe that Covid-19 is “ not at all ” under control in the United States .
A majority of voters in all three states also say @ @ @ @ @ @ @ job of filling the vacancy on the Supreme Court following the death of Justice Ruth Bader Ginsburg .
A smaller majority say they believe Biden can do a better job on the issue of policing and criminal justice .
Trump , as has been the case in previous polls , continues to do well on the issue of the economy , with slim majorities of voters in each state saying they prefer the president on this issue over Biden .
On the issue of his overall job approval , however , Trump remains @ @ @ @ @ @ @ in each of three states polled say they disapprove of the job he has done in office , including a majority of voters who feel that way in Ohio — a state Trump won by roughly 8 points in 2016 .
As voters prepare to cast their ballots in an election fundamentally changed by the Covid-19 pandemic , Thursday ’ s poll found that which candidate voters prefer seems to corelate with how they plan to vote .
The poll reports that most voters who support Trump say they plan to cast their @ @ @ @ @ @ @ voters who support Biden say they intend to vote by mail .
Regardless of which candidate voters support , nearly 9 in 10 of voters across the political spectrum say are either very or extremely interested in the upcoming presidential contest .
Thursday ’ s poll was conducted in interviews with 810 likely voters in Nevada , 830 likely voters in Ohio , and 856 likely voters in Pennsylvania and contains a 3 % margin of error in each state .

Democratic presidential candidate and former Vice President Joe Biden speaks at the Constitution Center in Philadelphia, Sunday, Sept. 20, 2020, about the Supreme Court. (AP Photo/Carolyn Kaster)
President Donald Trump speaks on the environment at the Jupiter Inlet Lighthouse and Museum, Tuesday, Sept. 8, 2020, in Jupiter, Fla. (AP Photo/Evan Vucci)
(CN) — In a stunner of a poll released Thursday, Democratic presidential candidate Joe Biden currently leads President Donald Trump in Ohio and two other states — and all three could prove crucial in deciding the outcome of November’s election.
As both candidates enter the final few weeks before Election Day, all eyes are on a series of critical battleground states that will likely determine who claims victory come November. According to the Fox News poll, Ohio, Nevada and Pennsylvania have begun to shift in Biden’s favor.
The race in Ohio stands as the tightest in Thursday’s poll but represents a slight edge for the former vice president in a state that’s been reliably red for years. Biden leads the president by 5 points in the Buckeye State, 50%-45%, polling well among women and non-white voters. Trump continues to do well among white and rural voters in all three states and holds a small edge overall among male Ohioans.
In Nevada, a state Trump lost to Hillary Clinton four years ago, Biden currently leads the president by 11 points, 52%-41%, thanks to overwhelming support — 30 points over Trump — from Hispanic voters. Biden also leads in the Silver State among voters under 35, women voters and seniors.
Trump, for his part, manages to hold a two-point lead over Biden among white Nevada voters, as well as holds small leads among white voters without a college degree and rural voters.
The candidates see a similar story in Pennsylvania where Biden leads Trump by seven points, 51%-44%, with strong support among non-white voters, women and suburbanites. Pennsylvania’s numbers are notable given Trump won the Keystone State albeit narrowly four years ago.
“Trump’s surprise 2016 win in Pennsylvania was driven by his mobilization of voters in the northern and central regions of the state,” said Republican pollster Daron Shaw with the release of the poll. “He needs that kind of support again and a slight tick-up among suburban voters to pull even here.”
Pollsters also asked voters in the three states to gauge which candidate they feel is best equipped to manage some of the major crises and issues the United States faces today. Many throw their support behind Biden.
Regarding the coronavirus, most voters said they trust Biden to do a better job at managing the pandemic than Trump, with Biden leading Trump by double-digits in this regard in all three of the polled states. The poll also found a plurality of voters believe that Covid-19 is “not at all” under control in the United States.
A majority of voters in all three states also say they believe Biden will do a better job of filling the vacancy on the Supreme Court following the death of Justice Ruth Bader Ginsburg. A smaller majority say they believe Biden can do a better job on the issue of policing and criminal justice.
Trump, as has been the case in previous polls, continues to do well on the issue of the economy, with slim majorities of voters in each state saying they prefer the president on this issue over Biden.
On the issue of his overall job approval, however, Trump remains in the red. Majorities of voters in each of three states polled say they disapprove of the job he has done in office, including a majority of voters who feel that way in Ohio — a state Trump won by roughly 8 points in 2016.
As voters prepare to cast their ballots in an election fundamentally changed by the Covid-19 pandemic, Thursday’s poll found that which candidate voters prefer seems to corelate with how they plan to vote. The poll reports that most voters who support Trump say they plan to cast their ballots in person, while majorities of voters who support Biden say they intend to vote by mail.
Regardless of which candidate voters support, nearly 9 in 10 of voters across the political spectrum say are either very or extremely interested in the upcoming presidential contest.
Thursday’s poll was conducted in interviews with 810 likely voters in Nevada, 830 likely voters in Ohio, and 856 likely voters in Pennsylvania and contains a 3% margin of error in each state.


courthousenews--2020-09-24--Trump Signs Health Care Executive Order at North Carolina Campaign Stop

CHARLOTTE , N.C. ( CN ) — President Donald Trump and Democratic candidate Joe Biden held back-to-back campaign events in North Carolina , where the president signed an executive order he claimed would protect those with pre-existing conditions .
Vying to win over voters in the crucial swing state ahead of Nov. 3 , Biden and Trump visited Charlotte on Wednesday and Thursday , respectively , bringing vastly different appeals .
“ As long as I am president , no one will lay a hand on your Medicare , ” Trump said on Thursday during his 14th official visit to @ @ @ @ @ @ @ crowd in the Duke Energy hangar near Charlotte ’ s international airport , the president vowed that his health care plan will protect patients with pre-existing conditions .
The executive order states it ’ s government policy to protect such people , but fails to specify how it will do so .
Under the Affordable Care Act , which was signed into law a decade ago , insurers have already been required to give care to patients with pre-existing conditions .
Trump said his plan will give Americans “ more choice ” when @ @ @ @ @ @ @ pricing transparency from large pharmaceutical companies , lower drug prices , better care for seniors and families and “ taking on the lobbyists.
” “ Today I ’ m laying out my vision for the future of American healthcare with the America First Healthcare Plan , ” Trump said .
“ As we restore America to full strength , the first healthcare plan will be the core part of our national renewal.
” It ’ s unclear how his executive orders would have the force of law should the ACA be overturned by @ @ @ @ @ @ @ to pick up a conservative justice after the death of Ruth Bader Ginsburg last week .
“ If President Trump cared at all about people with pre-existing conditions , he would drop his lawsuit to overturn the Affordable Care Act in the middle of a pandemic , ” she said in a statement .
White House Chief of Staff Mark Meadows , a North Carolina native , attended the event on Thursday .
Trump told the crowd that Meadows is currently negotiating with “ big pharma ” to “ make a deal.
” @ @ @ @ @ @ @ bashed the ACA , naming the individual mandate as the “ worst part ” of it .
“ Obamacare is no longer Obamacare , ” he said , claiming that his administration ’ s “ good management ” has reduced prescription drug and insurance costs .
Trump also spent time touting his administration ’ s response to the Covid-19 pandemic and thanking those who have been involved in treatment and vaccine development .
Overall , Europe has seen a greater coronavirus-related fatality rate than all of the U.S. , Trump said without mentioning @ @ @ @ @ @ @ Biden , during his Tarheel State talk a day earlier , expressed a different appeal to voters more than a month ahead of the election .
During his first in-person stop to the key battleground state since before the primaries , Biden visited Charlotte to host a Black Economic Summit and lay out the steps he plans to take in order to help Americans who have been systematically marginalized .
On a stage at the city ’ s Camp North End , Biden announced a plan to form the Small Business and Entrepreneurs @ @ @ @ @ @ @ bolster Black Americans .
The former vice president said his initiatives include investing more than $ 70 billion over the course of 10 years in historically Black colleges and universities and in other programs that benefit minority populations .
In addition , Biden aims to leverage $ 150 billion in new capital and opportunities for Black-owned small businesses and other small businesses .
Both Biden and the incumbent this week told North Carolinians that they are looking out for underserved communities .
“ No one in America should be working a 40-hour a @ @ @ @ @ @ @ , ” Biden said during his talk , noting his plan to raise minimum wage to $ 15 an hour .
He also mentioned his goal to make college free for students whose family makes less than $ 125,000 per year .
Charlotte Mayor Vi Lyles and NBA star Chris Paul spoke before Biden on Wednesday .
“ Despite repeatedly promising to release a health care proposal , President Trump has never offered a plan of his own , ” Biden said in a statement .
“ As President , I will bring @ @ @ @ @ @ @ the Affordable Care Act , lower health care costs for working families and seniors , and ensure that all Americans have access to the quality , affordable coverage they deserve .
”

President Donald Trump and Democratic candidate Joe Biden held back-to-back campaign events in North Carolina, where the president signed an executive order he claimed would protect those with pre-existing conditions.
CHARLOTTE, N.C. (CN) — President Donald Trump and Democratic candidate Joe Biden held back-to-back campaign events in North Carolina, where the president signed an executive order he claimed would protect those with pre-existing conditions.
Vying to win over voters in the crucial swing state ahead of Nov. 3, Biden and Trump visited Charlotte on Wednesday and Thursday, respectively, bringing vastly different appeals.
“As long as I am president, no one will lay a hand on your Medicare,” Trump said on Thursday during his 14th official visit to the state.
While speaking to a crowd in the Duke Energy hangar near Charlotte’s international airport, the president vowed that his health care plan will protect patients with pre-existing conditions.
The executive order states it’s government policy to protect such people, but fails to specify how it will do so. Under the Affordable Care Act, which was signed into law a decade ago, insurers have already been required to give care to patients with pre-existing conditions.
Trump said his plan will give Americans “more choice” when it comes to picking providers, more pricing transparency from large pharmaceutical companies, lower drug prices, better care for seniors and families and “taking on the lobbyists.”
“Today I’m laying out my vision for the future of American healthcare with the America First Healthcare Plan,” Trump said. “As we restore America to full strength, the first healthcare plan will be the core part of our national renewal.”
It’s unclear how his executive orders would have the force of law should the ACA be overturned by the Supreme Court, which is likely to pick up a conservative justice after the death of Ruth Bader Ginsburg last week.
House Speaker Nancy Pelosi called the executive order “bogus” on Thursday.
“If President Trump cared at all about people with pre-existing conditions, he would drop his lawsuit to overturn the Affordable Care Act in the middle of a pandemic,” she said in a statement.
White House Chief of Staff Mark Meadows, a North Carolina native, attended the event on Thursday.
Trump told the crowd that Meadows is currently negotiating with “big pharma” to “make a deal.”
Not long into his talk, Trump bashed the ACA, naming the individual mandate as the “worst part” of it.
“Obamacare is no longer Obamacare,” he said, claiming that his administration's “good management” has reduced prescription drug and insurance costs.
Trump also spent time touting his administration's response to the Covid-19 pandemic and thanking those who have been involved in treatment and vaccine development.
Overall, Europe has seen a greater coronavirus-related fatality rate than all of the U.S., Trump said without mentioning that dozens of countries comprise Europe.
Biden, during his Tarheel State talk a day earlier, expressed a different appeal to voters more than a month ahead of the election.
During his first in-person stop to the key battleground state since before the primaries, Biden visited Charlotte to host a Black Economic Summit and lay out the steps he plans to take in order to help Americans who have been systematically marginalized.
On a stage at the city’s Camp North End, Biden announced a plan to form the Small Business and Entrepreneurs Advisory Council and detailed his plan to bolster Black Americans.
The former vice president said his initiatives include investing more than $70 billion over the course of 10 years in historically Black colleges and universities and in other programs that benefit minority populations.
In addition, Biden aims to leverage $150 billion in new capital and opportunities for Black-owned small businesses and other small businesses.
Both Biden and the incumbent this week told North Carolinians that they are looking out for underserved communities.
“No one in America should be working a 40-hour a week job and be living in poverty," Biden said during his talk, noting his plan to raise minimum wage to $15 an hour. He also mentioned his goal to make college free for students whose family makes less than $125,000 per year.
Charlotte Mayor Vi Lyles and NBA star Chris Paul spoke before Biden on Wednesday.
"Despite repeatedly promising to release a health care proposal, President Trump has never offered a plan of his own," Biden said in a statement. "As President, I will bring people together to protect and build on the Affordable Care Act, lower health care costs for working families and seniors, and ensure that all Americans have access to the quality, affordable coverage they deserve."


courthousenews--2020-09-24--California Courts Covid Update

California Courts Covid Update

Sept. 24 , 2020 : Court expects e-filing to be restored by end of day Friday and is accepting hard @ @ @ @ @

The technical storage or access that is used exclusively for statistical purposes.
The technical storage or access that is used exclusively for anonymous statistical purposes. Without a subpoena, voluntary compliance on the part of your Internet Service Provider, or additional records from a third party, information stored or retrieved for this purpose alone cannot usually be used to identify you.


courthousenews--2020-09-24--Sixth Circuit Tosses Class Approval in Sprawling Opioid Settlement

CINNCINATTI ( CN ) — The Sixth Circuit ruled Thursday against the use of a novel form of settlement class devised to pursue opioid manufacturers for their role in the U.S. opioid addiction crisis .
The appellate court found that the class , which would have brought every city and county in the U.S. to the negotiating table for a settlement over racketeering and state-law claims , violated federal civil procedure rules .
The class , referred to as a “ negotiation class , ” would have required any city and county that did not want to be involved in @ @ @ @ @ @ @ group of opioid manufacturers and distributors to opt out of it before the settlement .
U.S. District Judge Daniel Polster of the Northern District of Ohio approved the class in September 2019 , saying it would expedite relief to municipalities and counties involved in over 1,300 lawsuits filed against pharmaceutical companies for their role in the rapid expansion of opioid abuse and overdoses across the U.S. in the last 20 years .
The negotiation class would have required 75 % of voting class members in several categories to approve any settlement , with @ @ @ @ @ @ @ Its proposal also included an allocation map for any potential settlement that would have allowed political subdivisions to compute their share based on addiction cases , distribution and overdose deaths .
A coalition of six Ohio cities opposed this model and joined with the drug companies to the Sixth Circuit , where a three-judge panel heard arguments in July .
Senior U.S .
Circuit Judge David McKeague , a George W. Bush appointee , wrote Thursday that the class “ is not authorized by the structure , framework or language of Rule 23 @ @ @ @ @ @ @ Procedure , which governs the qualifications required to certify class actions .
Polster and the plaintiffs , McKeague found , had overstepped .
“ The Supreme Court has specifically cautioned that ‘ a mere negative inference does not in our view suffice to establish a disposition that has no basis in the rule ’ s text , ’ ” he wrote .
Beyond noncompliance with Rule 23 , McKeague wrote that the negotiation class would have negotiated issues well beyond the common federal claims used to certify it and that the plaintiffs had @ @ @ @ @ @ @ class were not feasible options .
“ While there are drawbacks to both approaches , the opioid crisis MDL [ multidistrict litigation ] might be amenable to either , ” McKeague found .
“ There is no apparent reason why some of the procedural elements of the negotiation class , such as the supermajority voting scheme and county-level allocation formula , could not be used to facilitate the participation of more plaintiffs in a lawful settlement class.
” U.S .
Circuit Judge Eric Clay joined McKeague in the opinion , but U.S .
@ @ @ @ @ @ @ .
Both are Bill Clinton appointees .
In the dissent , Moore argued that “ texts and canons of construction should not ensnare our interpreting and applying a Federal Rule of Civil Procedure .
Rather , courts should contemplate a liberal reading that fulfills the rules ’ broader design and that does justice for the parties.
” She also argued that the six cities and the defendants should not have been granted appellate review at all .
Attorneys for the plaintiff cities issued a statement lamenting the decision and saying that they were @ @ @ @ @ @ @ priority through this litigation … is to find effective , pragmatic methods to reach resolution in court and at the negotiation table to address the immediate needs of communities around the country impacted by the significant and ongoing harm from the opioid epidemic .
The negotiation class was one such method , ” attorneys Paul Farrell , Paul Hanly and Joe Rice wrote .
They emphasized that they would still be seeking a national agreement alongside more local models .
“ Defendants must deliver funding that will provide communities the resources they need @ @ @ @ @ @ @ toward a full resolution , ” the attorneys wrote .
The group Lawyers for Civil Justice , which filed an amicus brief with the Sixth Circuit opposing the class , celebrated the decision in a statement .
“ Today ’ s decision affirms the longstanding principle that a district court that goes outside the lines of the federal rules abuses its discretion and its rulings can not stand , ” attorney Mary Massaron , who authored the brief , wrote .
“ It reinforces that the Federal Rules of Civil Procedure are the @ @ @ @ @ @ @ cases , including MDLs .
”

The Sixth Circuit ruled Thursday against the use of a novel form of settlement class devised to pursue opioid manufacturers for their role in the U.S. opioid addiction crisis.
CINNCINATTI (CN) — The Sixth Circuit ruled Thursday against the use of a novel form of settlement class devised to pursue opioid manufacturers for their role in the U.S. opioid addiction crisis.
The appellate court found that the class, which would have brought every city and county in the U.S. to the negotiating table for a settlement over racketeering and state-law claims, violated federal civil procedure rules.
The class, referred to as a “negotiation class,” would have required any city and county that did not want to be involved in a potential class action settlement against a group of opioid manufacturers and distributors to opt out of it before the settlement.
U.S. District Judge Daniel Polster of the Northern District of Ohio approved the class in September 2019, saying it would expedite relief to municipalities and counties involved in over 1,300 lawsuits filed against pharmaceutical companies for their role in the rapid expansion of opioid abuse and overdoses across the U.S. in the last 20 years.
The negotiation class would have required 75% of voting class members in several categories to approve any settlement, with population weighting for each government entity. Its proposal also included an allocation map for any potential settlement that would have allowed political subdivisions to compute their share based on addiction cases, distribution and overdose deaths.
A coalition of six Ohio cities opposed this model and joined with the drug companies to the Sixth Circuit, where a three-judge panel heard arguments in July.
Senior U.S. Circuit Judge David McKeague, a George W. Bush appointee, wrote Thursday that the class “is not authorized by the structure, framework or language of Rule 23” of the Federal Rules of Civil Procedure, which governs the qualifications required to certify class actions.
Polster and the plaintiffs, McKeague found, had overstepped.
“The Supreme Court has specifically cautioned that ‘a mere negative inference does not in our view suffice to establish a disposition that has no basis in the rule’s text,’” he wrote.
Beyond noncompliance with Rule 23, McKeague wrote that the negotiation class would have negotiated issues well beyond the common federal claims used to certify it and that the plaintiffs had not shown why a litigation or settlement class were not feasible options.
“While there are drawbacks to both approaches, the opioid crisis MDL [multidistrict litigation] might be amenable to either,” McKeague found. “There is no apparent reason why some of the procedural elements of the negotiation class, such as the supermajority voting scheme and county-level allocation formula, could not be used to facilitate the participation of more plaintiffs in a lawful settlement class.”
U.S. Circuit Judge Eric Clay joined McKeague in the opinion, but U.S. Circuit Judge Karen Moore penned a dissent. Both are Bill Clinton appointees.
In the dissent, Moore argued that “texts and canons of construction should not ensnare our interpreting and applying a Federal Rule of Civil Procedure. Rather, courts should contemplate a liberal reading that fulfills the rules’ broader design and that does justice for the parties.”
She also argued that the six cities and the defendants should not have been granted appellate review at all.
Attorneys for the plaintiff cities issued a statement lamenting the decision and saying that they were looking at other options.
“Our priority through this litigation … is to find effective, pragmatic methods to reach resolution in court and at the negotiation table to address the immediate needs of communities around the country impacted by the significant and ongoing harm from the opioid epidemic. The negotiation class was one such method,” attorneys Paul Farrell, Paul Hanly and Joe Rice wrote.
They emphasized that they would still be seeking a national agreement alongside more local models.
“Defendants must deliver funding that will provide communities the resources they need for full abatement to move this case toward a full resolution,” the attorneys wrote.
The group Lawyers for Civil Justice, which filed an amicus brief with the Sixth Circuit opposing the class, celebrated the decision in a statement.
“Today’s decision affirms the longstanding principle that a district court that goes outside the lines of the federal rules abuses its discretion and its rulings cannot stand,” attorney Mary Massaron, who authored the brief, wrote. “It reinforces that the Federal Rules of Civil Procedure are the law and must govern in all civil cases, including MDLs.”


courthousenews--2020-09-24--Genocide Descendants Halted From Seeking Reparations From Germany

( CN ) — Descendants of the victims of the first genocide of the 20th century seeking reparations from Germany can not do so in New York , the Second Circuit affirmed Thursday .
The case was first brought by indigenous Ovaherero and Nama people and the descendants of the roughly 100,000 people killed by colonizing Germans from 1904 to 1908 in what is now Namibia .
The slaughter was carried out by orders from General Lothar von Trotha , who had said that his goal was to annihilate the Ovaherero people .
Those who survived the slaughter were taken @ @ @ @ @ @ @ subject to rape .
Richard Carranza with The International Center for Transitional Justice said Germany should feel an obligation to make amends with these indigenous people .
“ Germany at the very least should recognize a moral if not legal obligation to provide reparations .
It has given at least $ 70 billion in reparations to victims of the Holocaust and Nazi persecution , adding $ 88 million more as recently as two years ago , ” said Carranza in an email .
“ Why should tens of thousands of Africans who were @ @ @ @ @ @ @ 35 years before the start of World War II be denied what Germany has recognized as its obligation to others ?
” Lead plaintiffs Vekuii Rukoro and Barnabas Veraa Katuuo , with the Association of The Ovaherero Genocide in the USA , filed the lawsuit in New York on the notion that the bones of their ancestors killed in the genocide ended up in the basement of the American Museum of Natural History in Manhattan .
The remains had been taken during the genocide by colonizers in a research effort to prove that @ @ @ @ @ @ @ claimed that Germany had purchased property in New York with some wealth it acquired from property it seized from Ovaherero and Nama , giving New York jurisdiction to hear the case .
A federal judge disputed that argument and threw out the case last March for lack of jurisdiction under the Foreign Sovereign Immunities Act .
The three-judge panel for the Second Circuit affirmed that decision , finding it to be a stretch that just because Germany owns property in the U.S. that would give them jurisdiction to hear these claims .
“ @ @ @ @ @ @ @ trace the proceeds from property expropriated more than a century ago to present‐day property owned by Germany in New York , ” said U.S .
Circuit Judge Rosemary Pooler .
Representing Germany , Jeffrey Harris with Rubin Winston Diercks Harris & Cooke , expressed gratitude for the ruling , noting that the outcome has been obvious this whole time .
“ The last line in the court ’ s opinion makes the point that regardless of the wrongs alleged , they ‘ must be addressed through a vehicle other than the U.S. court @ @ @ @ @ @ @ an email .
“ This is a point we have stressed throughout this litigation.
” Indeed , the ruling brings a halt , at least in the U.S. , to potential reparations for the Ovaherero and Nama people .
University of Connecticut professor Katharina von Hammerstein said that despite the setback , it still helps the cause .
“ The cases in the courts have , even if dismissed , created publicity for the Herero and Nama cause , ” said von Hammerstein in an email .
“ Calling for public debate of @ @ @ @ @ @ @ caused detrimental long-term damages to both communities is as much a legal as a political battle.
” The 23-page ruling further noted that the Ovaherero and Nama people failed to prove that the remains in the museum are in connection with any German commercial activity in the U.S. “ Even assuming for argument ’ s sake that Germany engaged in an international commercial market for bones when it sold the remains to the AMNH , there are no allegations that Germany continues to engage in such sales , ” wrote Pooler , a @ @ @ @ @ @ @ that the commercial activity be ‘ carried on in the United States by the foreign state ’ , which requires the activity at issue be current.
” Carranza says the appellate court got this all wrong , noting that the judges are “ blind ” to the impact this has for other slaves seeking reparation .
“ The appellate court ’ s reasoning is that the assets of Germany in New York are too distantly connected to what assets they took from the Namibian communities subjected to genocide .
This is short-sighted , @ @ @ @ @ @ @ “ It erroneously conflates property with profit , ignoring the fact that Germany as a colonizer , just like other European colonizers , profited on a scale beyond what can be measured in buildings , money or other property .
They built their entire economy , including both their public and private enterprises , on colonization and in many cases slavery.
” The Ovaherero and Nama people were represented by Kenneth McCallion , who did not immediately respond to an email seeking comment .
Judge Pooler was joined on the ruling by U.S @ @ @ @ @ @ @ a Ronald Reagan nominee , and Michael Park , a Donald Trump nominee .

Descendants of the victims of the first genocide of the 20th century seeking reparations from Germany cannot do so in New York, the Second Circuit affirmed Thursday.
(CN) — Descendants of the victims of the first genocide of the 20th century seeking reparations from Germany cannot do so in New York, the Second Circuit affirmed Thursday.
The case was first brought by indigenous Ovaherero and Nama people and the descendants of the roughly 100,000 people killed by colonizing Germans from 1904 to 1908 in what is now Namibia.
The slaughter was carried out by orders from General Lothar von Trotha, who had said that his goal was to annihilate the Ovaherero people. Those who survived the slaughter were taken to concentration camps and surviving women were subject to rape.
Ruben Carranza with The International Center for Transitional Justice said Germany should feel an obligation to make amends with these indigenous people.
“Germany at the very least should recognize a moral if not legal obligation to provide reparations. It has given at least $70 billion in reparations to victims of the Holocaust and Nazi persecution, adding $88 million more as recently as two years ago,” said Carranza in an email.
“Why should tens of thousands of Africans who were slaughtered, starved and experimented on just 35 years before the start of World War II be denied what Germany has recognized as its obligation to others?”
Lead plaintiffs Vekuii Rukoro and Barnabas Veraa Katuuo, with the Association of The Ovaherero Genocide in the USA, filed the lawsuit in New York on the notion that the bones of their ancestors killed in the genocide ended up in the basement of the American Museum of Natural History in Manhattan.
The remains had been taken during the genocide by colonizers in a research effort to prove that the white race was superior.
Rukoro claimed that Germany had purchased property in New York with some wealth it acquired from property it seized from Ovaherero and Nama, giving New York jurisdiction to hear the case.
A federal judge disputed that argument and threw out the case last March for lack of jurisdiction under the Foreign Sovereign Immunities Act. The three-judge panel for the Second Circuit affirmed that decision, finding it to be a stretch that just because Germany owns property in the U.S. that would give them jurisdiction to hear these claims.
“We find plaintiffs’ allegations insufficient to trace the proceeds from property expropriated more than a century ago to present‐day property owned by Germany in New York,” said U.S. Circuit Judge Rosemary Pooler.
Representing Germany, Jeffrey Harris with Rubin Winston Diercks Harris & Cooke, expressed gratitude for the ruling, noting that the outcome has been obvious this whole time.
“The last line in the court's opinion makes the point that regardless of the wrongs alleged, they ‘must be addressed through a vehicle other than the U.S. court system’,” said Harris in an email. “This is a point we have stressed throughout this litigation.”
Indeed, the ruling brings a halt, at least in the U.S., to potential reparations for the Ovaherero and Nama people.
University of Connecticut professor Katharina von Hammerstein said that despite the setback, it still helps the cause.
“The cases in the courts have, even if dismissed, created publicity for the Herero and Nama cause,” said von Hammerstein in an email. “Calling for public debate of and reparations for the genocide that has caused detrimental long-term damages to both communities is as much a legal as a political battle.”
The 23-page ruling further noted that the Ovaherero and Nama people failed to prove that the remains in the museum are in connection with any German commercial activity in the U.S.
“Even assuming for argument’s sake that Germany engaged in an international commercial market for bones when it sold the remains to the AMNH, there are no allegations that Germany continues to engage in such sales,” wrote Pooler, a Clinton nominee. “The statute requires that the commercial activity be ‘carried on in the United States by the foreign state’, which requires the activity at issue be current.”
Carranza says the appellate court got this all wrong, noting that the judges are “blind” to the impact this has for other slaves seeking reparation.
“The appellate court’s reasoning is that the assets of Germany in New York are too distantly connected to what assets they took from the Namibian communities subjected to genocide. This is short-sighted,” said Carranza in an email.
“It erroneously conflates property with profit, ignoring the fact that Germany as a colonizer, just like other European colonizers, profited on a scale beyond what can be measured in buildings, money or other property. They built their entire economy, including both their public and private enterprises, on colonization and in many cases slavery.”
The Ovaherero and Nama people were represented by Kenneth McCallion, who did not immediately respond to an email seeking comment.
Judge Pooler was joined on the ruling by U.S. Circuit Judges Ralph Winter Jr., a Ronald Reagan nominee, and Michael Park, a Donald Trump nominee.


courthousenews--2020-09-24--Blogger Who Won Copyright Fight Now Battling Pro Bono Attorneys Over Fee Award

ATLANTA ( CN ) — A Florida woman who scored a win in the 11th Circuit against a minority owner of the Miami Heat in a copyright dispute appeared again before the Atlanta-based appeals court Thursday , this time in a clash against her pro bono attorneys over their $ 115,000 award .
Irina Chevaldina may have gotten her way in a 2015 copyright infringement fight against her former landlord Raanan Katz , but she has returned to the 11th Circuit as part of a tug-of-war over legal fees her pro bono attorneys from the Center for Individual Rights say @ @ @ @ @ @ @ The center represented Chevaldina in Katz v. Google after Katz sued her for using an unflattering photo of him in a series of critical blog posts .
Michael Rosman , an attorney for the center , told a three-judge 11th Circuit panel Thursday that Chevaldina breached her retainer agreement by settling the case for just $ 10,000 in attorney ’ s fees , an “ unreasonable ” amount , and by persuading the center to drop its challenge of the award .
Florida-based attorney Christopher Haddad , arguing on behalf of Chevaldina , @ @ @ @ @ @ @ breach the contract and asked the panel to overturn U.S. District Court Judge James King ’ s award of $ 114,865 in attorneys ’ fees to the center in 2018 .
Haddad argued Thursday that the entire retainer contract between Chevaldina and the center should be tossed out .
The agreement should be voided “ on public policy grounds ” because it was presented as a pro bono agreement but actually contemplated payment from Chevaldina upon settlement or resolution of the claims , Haddad said .
He also told the panel that King @ @ @ @ @ @ @ judgment to the center , was too hasty .
Haddad argued Chevaldina wasn ’ t afforded an opportunity to show that negotiations were ongoing between the center , Katz ’ s attorneys , and her settlement attorneys .
“ There were material questions of fact regarding the reasonableness of the money , the settlement amount , ” Haddad said .
The panel appeared to agree some loose ends remain in the case .
Senior U.S .
Circuit Judge R. Lanier Anderson III , a Jimmy Carter appointee , acknowledged Thursday that there seem @ @ @ @ @ @ @ of material fact that could preclude summary judgment , ” including the fact that the center has said it never advised Chevaldina not to enter into the settlement or told her the settlement was unreasonable .
Anderson also pointed out that exhibits of emails and phone calls in the record show that Rosman authorized the settlement negotiations on behalf of the center .
Rosman acknowledged the center knew Chevaldina was breaching her retainer agreement when she ordered them to withdraw their petition for attorneys ’ fees and planned to sue her for that @ @ @ @ @ @ @ t have to tell the other party that they ’ re breaching the contract .
A breach is a breach , ” Rosman told the panel .
“ Ms .
Chevaldina was being represented by lawyers in state court .
The whole negotiation was a negotiation of a settlement in another lawsuit .
We had no obligation to advise her about whether to enter into that agreement or not.
” It is not clear when the panel will issue a decision in the case .

A Florida woman who scored a win in the 11th Circuit against a minority owner of the Miami Heat in a copyright dispute appeared again before the Atlanta-based appeals court Thursday, this time in a clash against her pro bono attorneys over their $115,000 award.
ATLANTA (CN) — A Florida woman who scored a win in the 11th Circuit against a minority owner of the Miami Heat in a copyright dispute appeared again before the Atlanta-based appeals court Thursday, this time in a clash against her pro bono attorneys over their $115,000 award.
Irina Chevaldina may have gotten her way in a 2015 copyright infringement fight against her former landlord Raanan Katz, but she has returned to the 11th Circuit as part of a tug-of-war over legal fees her pro bono attorneys from the Center for Individual Rights say she owes them for defending her.
The center represented Chevaldina in Katz v. Google after Katz sued her for using an unflattering photo of him in a series of critical blog posts.
Michael Rosman, an attorney for the center, told a three-judge 11th Circuit panel Thursday that Chevaldina breached her retainer agreement by settling the case for just $10,000 in attorney’s fees, an “unreasonable” amount, and by persuading the center to drop its challenge of the award.
Florida-based attorney Christopher Haddad, arguing on behalf of Chevaldina, told the panel that Chevaldina did not breach the contract and asked the panel to overturn U.S. District Court Judge James King’s award of $114,865 in attorneys’ fees to the center in 2018.
Haddad argued Thursday that the entire retainer contract between Chevaldina and the center should be tossed out.
The agreement should be voided “on public policy grounds” because it was presented as a pro bono agreement but actually contemplated payment from Chevaldina upon settlement or resolution of the claims, Haddad said.
He also told the panel that King’s order, which granted summary judgment to the center, was too hasty. Haddad argued Chevaldina wasn’t afforded an opportunity to show that negotiations were ongoing between the center, Katz’s attorneys, and her settlement attorneys.
“There were material questions of fact regarding the reasonableness of the money, the settlement amount,” Haddad said.
The panel appeared to agree some loose ends remain in the case.
Senior U.S. Circuit Judge R. Lanier Anderson III, a Jimmy Carter appointee, acknowledged Thursday that there seem to be “considerable, genuine issues of material fact that could preclude summary judgment,” including the fact that the center has said it never advised Chevaldina not to enter into the settlement or told her the settlement was unreasonable.
Anderson also pointed out that exhibits of emails and phone calls in the record show that Rosman authorized the settlement negotiations on behalf of the center.
Rosman acknowledged the center knew Chevaldina was breaching her retainer agreement when she ordered them to withdraw their petition for attorneys' fees and planned to sue her for that action afterward.
“You don’t have to tell the other party that they’re breaching the contract. A breach is a breach,” Rosman told the panel. “Ms. Chevaldina was being represented by lawyers in state court. The whole negotiation was a negotiation of a settlement in another lawsuit. We had no obligation to advise her about whether to enter into that agreement or not.”
It is not clear when the panel will issue a decision in the case.