Originally published by Texas Lawyer.
A group of cardiac monitoring companies and an executive have agreed to pay a combined $13.45 million to settle allegations they overbilled Medicare.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Amy Starnes.
Scammers targeting the elderly have set up a fake law firm website as part of an elaborate scam designed to trick the public, according to a lawsuit filed by the Houston Bar Association.
The scam reportedly involved sending letters to elderly people informing them that they are due to receive life insurance proceeds as a way to gain bank account numbers and financial information. The law firm depicted in the website is fictitious and the lawyer photos and bios were stolen from other websites.
The State Bar of Texas is concerned about this news and wants the public to be cautious about this and other potential scams.
To check the credentials of someone who claims to be a licensed Texas attorney, you can do an easy “Find A Lawyer” search on the front page of the State Bar’s website, texasbar.com. Your search will reveal whether a lawyer by that name exists, his or her eligibility to practice in Texas, any public disciplinary history, and more. Similarly, you can search for law firms in Texas by using this form and typing in a keyword used in the firm name. You can also call the State Bar membership department at (800)-204-2222 ext. 1383 if you’re concerned about whether a lawyer is licensed.
Also keep in mind there restrictions on how and when an attorney may make contact with a member of the public.
Generally speaking, an attorney can send a member of the public a solicitation when a specific legal event has occurred. For example, if someone received a traffic ticket. The attorney must be very specific about how he or she received the information about the legal event and must prominently display the word “Advertisement” on the information sent.
If you believe you have been the victim of a scam, immediately contact your local police department.
If you believe someone is practicing law without a license, the Supreme Court of Texas has created the Unauthorized Practice of Law Committee, which is charged with preventing, investigating and prosecuting unauthorized practice of law. You can file a complaint for the committee to investigate here.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Guest Blogger James G. Cramp.
The National Defense Authorization Act for Fiscal Year 2016 defined a modernized retirement system, or MRS, for individuals entering military service on or after January 1, 2018. Service members with less than 12 years of service on December 31, 2017, have the option of remaining with the current military retirement system or switching to the new one. (NDAA 2016, Sec. 631) The decision window in which an eligible service member may opt in is one year, starting January 1, 2018, and ending December 31, 2018. Id.
Under the new system, the retired pay multiplier is reduced from 2.5 percent to 2 percent times the number of years of creditable service at retirement, which factors in determining the service member’s monthly retired pay. (NDAA 2016, Sec. 631) Thus, a service member retiring with 20 years of creditable service will receive 40 percent (instead of 50 percent) of his highest 36 months’ base pay. Id. This reduction is blended with automatic enrollment in the Thrift Savings Plan, a defined contribution plan, with the opportunity for matching contributions from the government. (NDAA 2016, Sec. 632) Thus, a service member in the MRS is referred to as a “full TSP member.” (NDAA 2016, Sec. 631)
Full TSP members receive an automatic government contribution to their TSP account of 1 percent of basic pay. (NDAA 2016, Sec. 632) These members are enrolled automatically at the default rate of 3 percent contribution from the member’s base pay, which can be adjusted up or down by the member, and the government will then match a member’s own contributions up to a maximum 5 percent match, ceasing at 26 years of service. Id. Full TSP members are vested in the government match after two years’ service.
The National Defense Authorization Act for Fiscal Year 2017 expanded the 2016 legislation’s use of continuation pay, a form of retention bonus, for full TSP members. Continuation pay may be offered to these members between the eight- and 12-year point if the member contracts to serve not less than three additional years. (NDAA 2017, Sec. 632) Continuation pay will be not less than 2.5 times the member’s basic pay for active duty or not less than half basic pay for reserve and guard members, as determined by the secretary of defense. Id. Presumably, differences in continuation pay will be driven by retention levels among military occupational specialties. The compensation may be taken in either a lump sum or a series of not more than four payments.
Service members in the new system will have options on how they wish to receive their military retired pay beyond the normal monthly installments commencing at retirement and continuing until death of the member. Under the MRS, the member may take a lump sum (discounted to net present value) equal to 50 percent of the monthly retired pay they would receive from the date of military retirement until the date of eligibility for social security retirement, plus 50 percent of monthly military retired pay the member otherwise would receive, according to the law. Alternately, the member may opt to take a 25 percent lump sum, plus 75 percent of the monthly military retired pay the member otherwise would receive.
The secretary of defense will determine the assumptions used in computing the net present value. No adjustment to the lump sum is permitted should, over time, the secretary’s assumptions in computing the net present value prove to have been to the member’s disadvantage. Before any lump sum payment may be made, any reduction for Veterans Affairs disability compensation must be factored. Retirees who have opted for a lump sum and reduced monthly retired pay are restored to full retired pay at their Social Security retirement age.
For family law practitioners, ideally, the modernized retirement system should mean there will be considerable amounts in Thrift Savings Plans and less monthly retired pay, and, perhaps some remaining balance of continuation pay, to divide in divorce. From my experience practicing military divorce, reality may prove that there will be only modest amounts in Thrift Savings Plans and less monthly retired pay to divide in divorce.
By my observation, many junior and mid-grade military families live paycheck-to-paycheck or close to it. Without significant home budget adjustments, many might not be able to take maximum advantage of the government match for the TSP. It may also be prudent to consider adding language in a decree and domestic relations order that prohibits a service member from opting for a lump sum and reduced monthly retired pay that might disadvantage a former spouse if the secretary’s assumptions in calculating the lump sum, over time, prove detrimental. With respect to calculating the lump sum, the complexities of factoring the VA disability compensation offset are many given the backlog of claims still existing at the VA.
These are just a few areas for military divorce practitioners to consider as the body of knowledge about the modernized retirement system grows with its implementation.
James G. Cramp is a retired U.S. Air Force colonel and the founder of and principal in the Cramp Law Firm, which provides a spectrum of family-related legal services in the San Antonio region. Learn more at cramplawfirm.com.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Thomas G. Ciarlone, Jr..
In this week’s episode, you’ll learn about multiple decisions that came out of the Texas Supreme Court on Friday, which can directly impact your operations in the oil patch, as well as one of the first jury verdicts addressing the increasing trend of mineral lessors challenging the deduction from their royalties of affiliate fees for post-production transportation and processing.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by John Floyd.
In 1963, the U.S. Supreme Court in Brady v. Maryland held that criminal prosecutors must disclose evidence favorable to a defendant, upon his or her request, that is material to either guilt or punishment.
In 1985, the Supreme Court in United States v. Bagley held that “’overriding concern [is] with the justice of the finding of guilt.’”
Put another way, a guilty verdict must be constitutionally just.
Ensure Justice be Done
Ten years later the Court in Kyles v. Whitley said a prosecutor’s interest in the prosecution of a criminal case is not to “win a case, but [to ensure] that justice shall be done.”
These clear-headed principles are critical to maintaining a fair and just adversarial criminal trial process. There is no corner for cheating by manufacturing evidence indicating guilt or suppressing evidence that is exculpatory of guilt or withholding evidence that would impeach evidence seemingly supporting guilt.
The issue presented in every Brady case is, as the Court said in Cone v. Bell, whether the suppressed or withheld evidence is “material,” meaning that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”
So, what exactly is a “reasonable probability?”
Undermines Confidence of Trial
The Court in Bagley and Kyles defined reasonable probability as one in which the suppressed or withheld evidence “undermines confidence of the trial.”
Materiality
In 1999, the Court in Strickland v. Greene made it abundantly clear that a Brady violation demands a new trial only when a defendant can establish “the prejudice necessary to satisfy the ‘materiality’ inquiry.
U.S. v Turner
In a June 22, 2017 decision, United States v. Turner, the Supreme Court brought all these cases to the judicial mountain top to state exactly how and when the Brady rule applies.
Christopher Turner, and at least eight other defendants, was convicted in 1985 for the brutal physical and sexual assault that left Catherine Fuller dead in a Washington, D.C. alley on October 1, 1984.
The Government’s theory in the case was that Turner, and possibly twelve others, dragged Fuller off the street into an alley where the group beat, robbed, and sodomized her with a pole. The Government presented at least a half-dozen witnesses to the assault as well as incriminating statements by one or more of the participants in the attack.
Neither Turner nor any of the other defendants testified at trial. Each presented a “not me, maybe them” defense. This defense was advanced by defense attorneys attempting to impeach the witnesses who placed a particular defendant at the scene.
Government Withheld Favorable Evidence
Beginning in 2010, Turner and the other defendants began to challenge their convictions based on newly discovered evidence; namely, that the Government had either suppressed or withheld Brady evidence. The Government opened its files and turned all the Brady material over to the defendants. A federal district court conducted a 16-day evidentiary hearing.
During this evidentiary hearing, the Government did not contest that the withheld evidence was “favorable to the accused, either because it was exculpatory or because it is impeaching.” Nor did the Government contest that federal prosecutors had “suppressed” the evidence “either willfully or inadvertently.”
Materiality Issue Goes to SCOTUS
The Government, however, diverged paths with Turner and the other defendants by arguing they had failed to satisfy the materiality inquiry. In effect, the Government argued that even had the withheld been disclosed to the defense, there is no “reasonable probability” that any other verdict would have been returned at their 1985 trials.
The district court and the D.C. Court of Appeals agreed with the Government’s position that the Bagley materiality test had not been met.
The issue before the Supreme Court was whether these two courts have reached both a reasonably factual and constitutional conclusion on the materiality issue.
Too Little, Too Weak, Too Distant
The Court concluded the correct procedure was to “examine the trial record, ‘evaluat[e]’ the withheld evidence ‘in the context of the entire record,’ …and determine in light of that examination whether ‘there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”
After reviewing the entire record, the Court found that the withheld evidence was “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.”
The real significance of Turner is this: favorable evidence, either deliberately or inadvertently, withheld by the prosecution a decade (or two or three) ago is “too distant” from the original trial to warrant a new trial absent a clear and convincing showing that the defendant was wrongly convicted.
In a nutshell, and for all practical purposes, only an innocent defendant wrongfully convicted because the prosecution withheld Brady material can satisfy the Bagley materiality test in old cases, while favorable evidence in old cases in which there is significant evidence of guilt is “too little, too weak, or two distant” in the past to be prejudicial in the present.
The Court essentially gave a constitutional blessing to prosecutors who betrayed the Brady rule with a win-at-all costs mentality years, or, as in this case, decades ago because guilty defendants are not entitled to have the rule of law applied to them.
The post Supreme Court Rules Brady Offers Little Relief to The Guilty appeared first on .
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Sim Israeloff.
The Supreme Court has held that class action tolling under American Pipe does not toll the time within which a suit must be filed under a statute of repose.
In American Pipe the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class.” American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). The open question was whether class tolling would also apply to statutes of repose.
In California Public Employees’ Retirement System v. ANZ Securities, No. 16–373 (June 26, 2017), a putative class action was filed under Section 11 of the Securities Act of 1933 concerning securities offerings of Lehman Brothers Holdings. Section 13 of the Securities Act contains a three-year statute of repose. More than three years after the securities were offered, the petitioner filed an individual action alleging identical violations. After a proposed settlement was reached in the putative class action, the petitioner opted out of the class. The respondents moved to dismiss the individual suit as untimely but the petitioner argued that American Pipe tolled limitations during the pendency of the putative class action.
The Supreme Court disagreed. It reasoned that American Pipe was based on “the judicial power to promote equity, rather than to interpret and enforce statutory provisions.” Whereas the statute at issue in American Pipe was a traditional statute of limitations, Section 13 of the Securities Act was held to be a true statute of repose whose purpose is to “create ‘an absolute bar on a defendant’s temporal liability.’” In light of their purpose, the court held that statutes of repose “override customary tolling rules arising from the equitable powers of courts” and are not subject to tolling without legislative direction.
The court therefore affirmed the dismissal of the individual suit over the vigorous opposition of a four-justice dissent, which would have held that American Pipe tolling applies to statutes of repose. Justice Gorsuch participated in the opinion and was in the majority.
California Public Employees’ Retirement System v. ANZ Securities, No. 16–373 (June 26, 2017)
The post Supreme Court Limits Class-Action Tolling appeared first on Reverse & Render.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Wayne Schiess.
We all procrastinate, right? I was going to post this yesterday.
But procrastination is a serious problem for some legal writers, and I’ve just finished a fascinating article that educated me about the subject. David A. Rasch & Mehan Rasch, Overcoming Writer’s Block and Procrastination for Attorneys, Law Students, and Law Professors, 43 N.M.L. Rev. 193 (2013). It’s a thorough treatment and showed me not only that some lawyers face career-threatening procrastination problems but that my my own problems aren’t actually that bad. If yours are, I recommend the full article; here are a few key points.
Procrastination is like many other serious problems—it has a cycle. I’ve captured the key components of that cycle here:
See 43 N.M.L. Rev. at 206.
To break out of this cycle, try these tips from the authors:
-Study your own avoidance techniques. See id. at 225. Figure out what you’re doing, and not doing, to sabotage your own ability to start and finish writing projects. In other words, identify the underlying problems.
-Be deliberate in setting times and places where you will write. See id. at 227. Make a plan. Arrange times and places where distractions are minimal.
-Schedule a regular time to write. See id. at 228. This is nearly universal advice for anyone who writes and wants to be productive. Set aside 30 minutes, 60 minutes, or more at the same time each day—or on as many days as you can—and write.
-Break up big projects into manageable chunks. See id. at 229. Writing a book seemed overwhelming to me, so I started with a chapter. The same idea can work for a memo, motion, brief, report, or any other legal document. Write one part, then another, and so on.
-Reward yourself when you’ve completed one of these other tips. See id. at 230.
-If procrastination is a big enough problem, seek professional help. See id. at 231 n. 94.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
