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Sunday, May 27, 2012

That Pesky International Lawsuit! (Series 1 of 3)

International Service of Process 

It is increasingly common for US companies to do business with entities around the globe. For many, international trade is critical to remaining competitive in the US marketplace. But what if something goes wrong with a foreign product? What if a new line of office chairs the company imported from India collapses under its customers? What if the factory machine it purchased in Taiwan injures a company employee on the job? What if subsequent letters to the foreign manufacturer demanding compensation or indemnification go unanswered? The answer is that the US company faces some tough choices, including whether to file a claim or – if the US company is itself being sued – a cross-claim that will bring the foreign manufacturer into US court. How is this done? Once a complaint is filed in the appropriate venue, the US plaintiff is required to notify the foreign defendant that a lawsuit is pending against it. Until this service of process takes place, the action cannot proceed. Domestically, this type of notice is a relatively straightforward matter: a process server, constable or sheriff typically hand-delivers the court papers to an officer of the defendant corporation and swears out an affidavit of service. Internationally, however, who may serve process and how service may be effected is a complex matter, governed by multiple (often conflicting) sets of legal rules. 

In my next edition we'll get into the particulars and some examples, until then, here is a list of states/countries that as of January 2012 have signed the Hague Service Convention.

They include 54 of the 72 Hague Conference on Private International Law member states, plus Antigua and Barbuda, Bahamas, Barbados, Belize, Botswana, Kuwait, Malawi,Pakistan, Saint Vincent and the Grenadines, San Marino, and Seychelles. If you company your doing business with isn't in either of these lands....buyer/seller BEWARE!
  • Albania
  • Antigua
  • Barbuda
  • Argentina 
  • Albania
  • Antigua and Barbuda
  • Argentina
  • Australia
  • Bahamas
  • Barbados
  • Belarus
  • Belgium
  • Bosnia and Herzegovina
  • Belize
  • Botswana
  • Bulgaria
  • Canada
  • China
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Egypt
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Iceland
  • India
  • Ireland
  • Israel
  • Italy
  • Japan
  • Korea
  • Kuwait
  • Latvia
  • Lithuania
  • Luxembourg
  • Macedonia
  • Malawi
  • Malta
  • Montenegro
  • Mexico
  • Monaco
  • Kingdom of the Netherlands
  • Morocco
  • Norway
  • Pakistan
  • Poland
  • Portugal
  • Romania
  • Russian Federation
  • Saint Vincent and the Grenadines
  • San Marino
  • Serbia
  • Seychelles
  • Slovakia
  • Slovenia
  • Spain
  • Sri Lanka
  • Sweden
  • Switzerland
  • Turkey
  • Ukraine
  • United Kingdom of Great Britain and Northern Ireland
  • United States of America
  • Venezuela

Thursday, May 24, 2012

FDE Fashion Week's Huge Success!

FDE Models Lydia and Janelli
Miami, FL - Fashion Designers Expo Week was more than just another Fashion Week. Excitement filled the air as Celebrities, Politicians, Athletes, Socialites, and the Community came together to "Let the Runway Meet the Cause. " Co-founder and CEO of Fashion Designers Expo, Karine Melissa said, "It's more than just another Fashion Week, it's giving the emerging industry a secure platform to bring their dreams to reality all while using the power and glamour of the runway in support of non profit organizations to impact our world." That's exactly what FDE did last week during their Spring event.

FDE's opening night at the luxurious Fontainebleau Miami Beach Hotel was one to remember. Even though the original poolside location was moved due to the unpredictable Miami weather, FDE didn't miss a beat. The elegance of the decor was a perfect fuse of fashion and heart; the heart of the beneficiary for the week, Outside the Huddle Foundation founded by NFL Player Kennard Cox. FDE Week featured the launch of Cox's Foundation. The night hosted by 99Jamz's very own Miss Kimmy, was highlighted by a Proclamation presentation to Cox by the City of South Miami Vice Mayor Josh Leibman. The famous quote that resounded throughout the night was what compelled Dwayne Wade Sr. and other guests to get involved. Cox says, "I'm not just teaching kids how to tackle on the field but how to tackle life." Models dressed in Yasser Faraco couture gowns mingled with the guests celebrating the occasion and enjoying sounds by M2G.

Complimenting FDE's multicultural Fashion Week, Agadir Moroccan Cuisine was the host venue for Thursday night's Live Poetry and dinner. Agadir donated a portion of the proceeds made that evening to the cause. D' Poet hosted the night while guests enjoyed sounds by DJ Bankz and poetry by Enamali and Rebacca Butterfly Vaughns. The night went on into the wee hours of the morning as FDE presented their Signature Model Party at Gryphon Nightclub in Seminole Hard Rock Hotel and Casino sponsored by The Majestic Group and hosted by Jacksonville Jaguars Mike Sims-Walker and Kennard Cox. 

The Main Event on Friday night was the epitome of fashion and philanthropy. Guests had never seen anything like it. From the over-sized gobo projection of FDE and OTH logos on the wall to the extra long white covered runway, FDE set the tone for the evening. Not to mention to beautiful ice sculptures with the FDE and OTH logos finely carved in them. M2G were the guest DJ's of the night and they were fabulous along hostess Aliyah Cherrisse. Designers hit the runway to showcase their masterpieces; Francisco Azucar, Young Fresh Society by Royallayn, J-Rod Designs, Stacy Lawes International, Abnormal Ariginals, Jennafer Ashley, Julia Feng of Julia Sera Fashions managed by M. Joseph Miller II. of M & A Management and Bella Fashions who sponsored clothing along with V74 Boutique for the kids involved in the Outside the Huddle Foundation programs. The evening was highlighted by kid models all bedazzled in green to honor Kennard Cox and Outside the Huddle Foundation. Alizdair Ray also hit the runway as one of FDE's kid models. Alizadair plays a role as an innocent Iraqi boy in All Wars End. The film will begin the rounds at film festivals in July of 2012. You could feel the excitement in the air as everyone "Let the Runway Meet the Cause." To top off the evening was a fabulous performance by Hip Hop Kidz. The audience could no longer stay seated! Music filled the air and everyone was happy to be a part of this amazing event. 

VIP appearances throughout FDE Week included Dwayne Wade Sr., South Miami Vice Mayor Josh Leibman, Miami Dolphins Players Nolan Carroll and Roberto Wallace, Jacksonville Jaguars Mike Sims-Walker, Celebrity Designer Tanya Marie, Tennis Pro Neha Ubeori, Canadian Artist Karian Sang, ANTM British Invasion Annaliese Dayes, 99Jamz Radio Personality Miss Kimmy, and Vice President of Raaw Foods Paul Gregg to mention a few. Guests ended the night at Club Play for the official FDE After Party.

FDE sends a special thanks to everyone who made this event possible. Please visit their website for a complete list of sponsors.

FDE, you did it again! What an amazing Fashion Week with a cause that impacts our communities. Can't wait for the FDE Fall shows on October 15-20, 2012.

See video coverage from the week of events here:

Tuesday, May 22, 2012

Using Social media to Win in Court (Part 3 of 3)

Now that you've been made aware of how helpful social media can be in winning your case, here is how to get the information you need without finding yourself on the receiving end of a counter-suit.

There are strategic considerations to make when requesting the information directly from litigants. The following steps address the key considerations:

1. Determine whether any social networking information is publicly available and gather the publicly available data before making a request directly to the opponent.
2. Consider the best time to make the request.
3. Prevent existing data from being lost or deleted.
4. Get a court order compelling production of the information.

First, Get Publicly Available Content
Depending on each user’s privacy settings, some information is available to any person with an account on the particular website. On Facebook, a user can customize the privacy settings to allow groups of friends to view certain content while restricting the content from other friends. The user can restrict content to a network of users, such as other users who went to their high school or college. Some users make basic profile information publicly available but restrict photos and comments. To find publicly available information on your opponent in litigation, the best  place to start is often by Googling the person’s name. If the party has an uncommon name or an unusual spelling, you will frequently find links to that person’s online profiles. A Google search can provide links to the person’s social networking profiles, blogs the person publishes or to which he contributes, news stories about him or on which he has commented, or countless other websites that either reference that person or that are written by him. It can also be helpful to search for the person’s name in individual websites’ search engines. In Facebook, the majority of users have some basic information such as a name and photo publicly available. Only registered Facebook users can conduct searches using Facebook’s own search engine. When a search is conducted in Facebook, the results are prioritized by the searcher’s own information. Thus, when a registered user in Salt Lake City, Utah who attended the University of Utah searches for a John Doe who also lives in Salt Lake City and attended the University of Utah, that John Doe will be at the top of the search results. Other John Does will show up lower on the list of matches. It is also possible to filter search results by various identifiers such as location, school, or workplace. If your opponent’s social networking data is publicly available, simply save the relevant information as PDF documents. Bookmark the websites and periodically check them for new information.

Strategically Time your Request

Search engines will not conclusively reveal whether a particular individual has an account on the website in question. Some people use aliases and other people have common names that make them difficult to find. If social networking data on your opponent is not publicly available, or if you cannot determine whether the individual has any social networking accounts, you will have to ask for the information from the party. Some attorneys ask whether a party uses any social networking websites in their first set of interrogatories and request copies of the data in their requests for production of documents. The best timing for such requests depends on the nature of the case. In some cases it is better to wait until after taking the party’s deposition to ask about social networking. The party being deposed will then have already detailed his claims and there is a better chance that social networking data can later be used for impeachment purposes.

Make Sure Information is Preserved

Plaintiffs and defendants have a duty to preserve evidence when they learn that the materials are relevant to an investigation or litigation. The requesting attorney should, at the least, remind his opponent of his duty to preserve evidence when he makes a request for social networking data. Consider petitioning the court for a “freeze” order compelling the party to preserve the information. You can also directly contact the websites to request that content a user deletes is preserved by the website.

Get an Order Compelling Production

If your opponent will not voluntarily provide the social networking data requested, move the court for an order compelling the party to produce the requested documents. Motions to compel discovery of social networking content have been successful in several courts.4 These courts have found that there is no expectation of privacy in the posting of Facebook and MySpace information, even when the user limits access to selected online friends.You may consider subpoenaing the information directly from the website in question, but you will likely run into difficulty. Facebook has interpreted the Stored Communications Act, 18 U.S.C. § 2701 et seq., as prohibiting them from disclosing the contents of a user’s Facebook account to any non-governmental entity even pursuant to a valid subpoena or court order. They have had some success defending this position in court. The better approach is to get an order compelling the individual user to produce the information or give authorization for the information to be released from the website. An order for the plaintiff to turn over his user name and password may go further than necessary. This order is akin to ordering a homeowner to turn over the keys to his house rather than simply to make the property available for inspection. Instead, courts can order parties to produce printed copies of the websites’ content. Courts can also order parties to allow opposing counsel access to their social networking websites by adding the attorneys as “friends.” Recently Facebook has provided an option for users to download a compressed file of their entire history of Facebook activity. The compressed file contains PDF documents of every piece of content the user has posted. Courts can order production of Facebook content by ordering users to produce their account history files. Parties can then be required to periodically supplement the disclosure with updated files as the case goes on. Beware of the temptation to become an opponent’s fake online “friend,” as this action would likely violate the rules of professional conduct prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation. The New York City Bar Association’s Committee on Professional Ethics issued an opinion specifically prohibiting actions such as creating a false Facebook profile for the purpose of making a friend request to an opponent.


Social networking websites are growing by hundreds of thousands of users per day. Savvy attorneys recognize the value of the information opposing parties are posting online and use it to the advantage of their clients.

Saturday, May 19, 2012

California's Proposition 29 is Flawed....

IPCPR header
and Set to Repeat Mistakes 

Sacramento, CA - May 17, 2012 - In California, a pending ballot measure to raise tobacco taxes is being scrutinized by citizens. The initiative, Proposition 29, proposes a $1 tax increase for cigarettes as well as tax increases for premium cigars and pipe tobaccos. 

The initiative proposes to create a committee of bureaucrats who will manage the supposed $735 million dollars a year that Prop. 29 will raise. Of that $735 million, hundreds of millions every year could go to out-of-state and for-profit corporations, while up to $125 million is earmarked to pay for salaries, buildings/real estate, and other administrative costs.

However, there is a surprising amount of discretion left to these bureaucrats and how they will spend the money. For one, none of this money will go to public schools, even though in California there is a voter-approved constitutional amendment that requires new taxes to help fund education. None of the money will go towards alleviating the state's $16 billion budget deficit, either. The research money may not even stay in California, as there is nothing that requires it to be spent in the state or even in the country.

Also, the proposition cannot be touched for 15 years. The governor and legislators are prohibited from making changes to it, even in the case of waste or mismanagement.

This proposition will potentially create a $735 million vacuum that takes money away from California citizens and redirects it at the committee's discretion. This smash-and-grab approach to taxation simply cannot be tolerated. At the end of the day it is taking money from California citizens without the requirement that it be spent in California. If the money is coming from the pockets of California citizens, it should stay in California. If this were a universal tax, it would never be allowed to be spent outside of the state.

Proposition 29 boils down to a poorly thought-out initiative that, at its core, is a fundraising project with no accountability. It will raise tobacco prices across the board and give the money to a bureaucratic council with no obligations to the state or the taxpayers. Rather, their obligations will be to their affiliated universities and for-profit partners, all lining up to get their check.
The proposition will be up for vote on June 5th. 

Tuesday, May 15, 2012

Using Social media to Win in Court (Part 2 of series)

Sexual Harassment Cases

Information on a social networking website can also be useful in defending sexual harassment cases. A Federal District Court case in Indiana granted the defendants access to portions of two plaintiffs’ Facebook and MySpace communications because the plaintiffs claimed they had experienced “depression and post traumatic stress” as a result of sexual harassment.  The court found that photos posted by the plaintiffs were discoverable because they might reveal the defendants emotional or mental status. 

Social networking content can also help to defend a sexual harassment case where the party who was allegedly harassed by coarse language or distasteful behavior has posted comments using the same language or photos depicting the same type of behavior that he or she has alleged were unwelcome in the lawsuit. In divorce cases, a party may be able to defeat a claim for alimony by proving through social media content that the spouse demanding alimony is cohabitating with another person. Rule 26 of the Federal Rules of Civil Procedure governs the scope of discovery and its limits. The Indiana sexual harassment case articulated limits to the discoverability of social networking communications in light of claims related to emotional and mental health. 
The court held that social networking website content is not shielded from discovery simply because it is “locked” or “private” and that social networking site content must be produced when it is relevant to a claim or defense in the case. However, the court also held that the plaintiffs’ allegations of depression, stress  disorders, and like injuries did not automatically render all social networking communications relevant. The court articulated several guidelines tailored to the specific allegations in the case. Plaintiffs’ counsel was directed to produce all content responsive to the defendants’ discovery requests that fell. Other courts have been more permissive and have not limited the scope of social networking information that must be made available to defense counsel. A trial court judge in Pennsylvania ordered a personal injury plaintiff to provide his Facebook and MySpace user names and passwords to counsel for defendants and directed that counsel could have “read-only” access to the entirety of the plaintiff’s accounts. The court also ordered that the plaintiff not delete or alter existing information or posts from the accounts. There are innumerable ways that social networking content can become the key evidence that wins your case, but the strategy for obtaining the information can be a tricky process.  

In the next segment, I'll explain the process of how to gather information and make it useful to your cause.

Friday, May 11, 2012

Using Social Media to Win in Court

Today everyone is online in one way or another...especially in the "Social" sector. Facebook, Twitter, MySpace, even Linked-In. I prefer Linked-In myself. We've all heard the stories about employers checking the profiles and updates of potential employees only to find something less than stellar and not offer employment as a result, but what about in court or even in an arbitration, a simple board meeting or your old fashioned take over!

Here, I'm offering a short series on USING SOCIAL MEDIA to "WIN IN COURT" as if anyone ever really wins.

Your adversary in litigation may be posting information online that could help you win your case. Social networking websites such as Facebook, Twitter, and Myspace have exploded in popularity in the past several years. Every month Facebook users post 30 billion pieces of content such as comments, photos, videos, new stories, and web links. Ninety-five million short messages or "tweets"are posted every day on Twitter. For example: "I had such a great run this afternoon. 5 miles today. I'm going to go for 6 miles tomorrow." This tweet would be a key piece of evidence to an attorney defending a personal injury case where the plaintiff claims he can no longer run due to his injuries. There is a good chance that many of your opponents are users of social media. They may be posting information that can make your case.

Personal Injury Cases

In personal injury cases the extent or existence of a plaintiff’s injuries is often disputed. Dishonest plaintiffs may post photos or videos online that contradict their injury claims. Personal injury plaintiffs who claim they are unable to do the activities they once enjoyed may post photos or publish comments that reveal that their claims are exaggerated or simply untrue. A defense attorney who knows how to search Facebook might find photos of a plaintiff lifting his child high in the air or playing golf. Where the same plaintiff alleges that the disputed accident caused him to sustain permanent, severe back injuries, the photos may defeat or significantly diminish the value of his personal injury case. In these cases, mining social networking websites for information can take the place of hiring a private investigator investigator to conduct surveillance.In a recent Federal District Court case in California, the plaintiff claimed that after the accident at issue, his life was constantly “hell on earth.” Yet, in one MySpace comment he wrote that painting is “a frustrating activity when his arm hairs would get caught in paint.” This post was written after the accident in the present tense, leading the court to conclude that the plaintiff actually could engage in activities he claimed the accident had precluded him from doing. Painting was on the plaintiff’s list of activities that were adversely affected by the accident. The court agreed that the plaintiff incurred some general damages attributable to the accident, but found that the evidence including his online postings about painting belied his claim of constant pain and rendered his testimony regarding the extent of his pain not credible.

So be on the look out, if your taking off a sick day and posting an amazing round of golf might just get FIRED....or worse, loose to your workman's comp claim....anyway be on the lookout for more in future posts, coming up.....THAT PESKY SEXUAL HARASSMENT CASE!

Monday, May 7, 2012


What has the season brought us? The Spring of 2012 is upon us and its time to get out and mingle and network, by this I don't mean Facebook, Twitter or any other of the many many "Social" networking sites. I mean lets get out and meet people face to face and have a real conversation, one of which we can engage in idle chat and actually see a persons facial expression, have a light meal and a cocktail or three! I started the Spring off in the traditional way, the opening of the Polo season with the Will Rogers Polo Club. May 5th, marked the opening chuckers for the 2012 Polo Season for the Club. I know, I know, I could have been at the M Resort in Las Vegas for the Cinco De Mayo festivals or even spending the night watching the "Big Fight", but that's not my style, I chose a short hop over to Beverly Hills and the Pacific Palisades to bask in the sunny skies of southern California with the ocean breeze blowing over the field while I sipped a ripe mojito and puffed on a fragrant Padron cigar. I welcome you to begin to enjoy life this SPRING!