Law And More

Shootout over American Dream: CA AG Brown vs. Kotkin in WSJ

The most powerful threat to the American Dream of home ownership is not the subprime meltdown.  It's the ideology of Christopher Leinberger, articulated in his manifesto "The Option of Urbanism," that the city will again become the center of civilization. High energy prices, the realization what gas emissions are allegedly doing to the environment, and a hunger for community [no more bowling alone] are the prime movers in this move back to the city, from the "Father Knows Best" suburbs.   

According to the article "Trading Places" by Alan Ehrenhalt in the August 13th edition of THE NEW REPUBLIC, that end of the American Dream of a single-family house and yard is already happening.  The only thing holding up a full migration from the suburbs to multi-unit apartments in Hartford, Chicago, and Atlanta is a lack of supply.

Of course, not every one is buying into that ideology.  If they did, suburbs like Darien, Connecticut and Lincoln, Massachusetts would soon be slums with untended McMansions that no one can heat or commute from. The debate between the liberal supporters of high-density urban living and the conservatives championing the privacy and symbolism of the home in the suburbs became mainstream as California Attorney General Jerry Brown and Chapman University fellow Joel Kotkin duke it out. In LEGAL NEWSLINE, Scott Sabatini reports on this high-profile brawl.

Brown has been advocating, some might say arm-twisting, high-density residential and commercial building to save energy, reduce GHG emissions and help us to know our neighbors. In an opinion-editorial in THE WALL STREET JOURNAL, Kotkin attacked Brown. Brown responded in THE WALL STREET JOURNAL today.  In that response Brown says he's not waging war on suburbs but just trying to get his state to smart energy policies.

Currently, the media, which has been accused of being held hostage to liberal thinking, have given lots more space to Leinberger's contention that those who have the resources to return to the city will. It's those without those resources - the poor - who can't.  However, if you check the highways and freeways during rush hours, there are still many many cars heading from the suburbs in the AM and back to them in the PM.

How this suburb vs. high-density city debate will play out depends, of course, a lot on the cost of energy, both for heating/air-conditioning and transportation.  If prices go down to double digits, as some analysts predict, Darien, CT might still be a place to live folks dream about.  If not, as Leinberger's apostles preach, by 2030, those tony places could morph into slums or ghost towns.

State Farm Investigating: Was Trent Lott one of the All the King's Men

Former U.S. senator and current lobbying consultant Trent Lott has been suffering because of guilt by association for a time now.  His brother-in-law is Dickie Scruggs, so his nephew is Zach Scruggs.  But now that suffering might be more concrete, e.g. criminal charges.

State Farm Insurance, through its attorney Jim Robie, is investigating whether Lott urged witnesses to give false statements. That allegation, of course, is very serious.  Robie deposed the Scruggs in regard to an alleged fraudulent claim his law firm filed in regard to State Farm's processing of Hurricane Katrinia homeowners' claims.  One of those claims, as we recall, was Lott's. That deposition was taken last week and soon enough the Scruggs filed a motion to have its contents sealed.

During that deposition, reports Scott Sabatini in LEGAL NEWSLINE, Zach took the Fifth Amendment when asked by Robie, "Has it been your custom and habit in prosecuting litigation to have Senator Lott contact and encourage witnesses to give false testimony?"  The focus of this deposition was, says Sabatini, "to get to the bottom of former Mississippi senator's role in a scheme to defraud the insurance company [State Farm] in the aftermath of Hurricane Katrina."   That role could have been for Lott to contact and persuade them to give information that was not true.

There's more. Some time ago, Lott's name also emerged in connection with an alleged bribery plot. During the Scruggs' legal problems which culminated in his being sentenced for five years, one of the other convicted attorneys testified that Dickie told him to attempt to bribe a county circuit judge with Lott's influence. The bait was supposed to be that Lott could put him on a list for a federal vacancy.  The aftermath of that was that Lott did contact the judge.  However, he did not actually nominate him for a federal vacancy. After that, as many of us remember, Lott suddenly resigned from the Senate. Shortly after that he launched his lobbying consulting firm The Breaux Lott Leadership Group.

Will this new shadow cast over Lott be a hit to his business?  Or, worse, will Robie be able to dig up concrete evidence to charge Lott with a number of criminal acts?  Although Robie has a handful of dust right now in terms of the deposition with Zach taking the Fifth, he has other avenues to explore.  As a results of Scruggs' post-Katrina suits, State Farm's reputation suffered immensely. Given that, Robie is probably determined to, as he said, "get to the bottom" of any Lott's alleged illegal activities.

"It's too bad the EPA took so long to develop these [lead paint] regulations in the first place," Sue Gunderson, CLEARCorps

Howard Shultz's commentary on the new EPA lead paint regulations has been stirring up a hornet's nest. 

Shultz's analysis was posted last night on this blog. Today, Walter Olson's Pointoflaw.com linked to it.  Traffic has been non-stop. And more than the usual number of comments have come in by phone, email and on the blog post.

Shultz is a Senior Fellow at the Senior Housing and Planning Council [CHPC].  The organization's deconstruction of those new regs is here.  And, those wishing to contact Shultz directly can reach him at hshultz@chpcny.org, 212-286-9211, Ext. 110.

One of those responding to Schultz's opinion is Sue Gunderson, head of CLEARCorps, a non-profit whose mission is keeping children healthy.  Its primary target is preventing lead poisoning among children.  And CLEARCorps has been accomplishing this through education, community-building, research and legislative advocacy on the federal, state and city levels.  The organization was founded by the National Paint and Coatings Association.

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Sue Gunderson, head of CLEARCorps, on the new EPA regulations:

"Jane - and your readers - to me it's really too bad that the EPA took so long to develop these regulations in the first place.  The lack of action on the EPA's part has created a vacuum which state and local jurisdictions have stepped in to fill for years now.

"Therefore, it is true that going from different cities to different states there are a variety of lead-related laws that landlords and contractors must know and fulfill, depending on the size and geographic location of your dwellings.  If the EPA had done its job 10 years ago when this was required, we could have had a reasonable set of national standards that everyone could have followed without a massive guidebook.

"Now we have a set of EPA regulations that are good tools for preventing the contractors and maintenance staff from accidentally poisoning children when they are renovating or performing maintenance on their pre-1978 housing.  While the new regulations are not perfect, they will hopefully reduce the rising number of children who are lead-poisoned by well-intentioned but clueless landlords and contractors as they go about their usual business.

"Unfortunately, there are several issue that will make these new regs somewhat frustrating for all.  First, they do not adequately protect the contractors and landlords at the end of the project because they only require a 'white glove test' to determine if lead dust exists.  Second, there is no money made available by Congress to provide the states with the necessary resources to integrate these new standards into their existing regulations and produce appropriate educational materials and classes for the entities which are meant to comply. 

"The next few years will be a test of patience and a lot of discussion among the EPA, states, and the local landlords and contractors to successfully implement the new regulations with the least amount of confusion."

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Sue Gunderson can be reached at CLEARCorps at Sue@clearcorps.org.

"CPSC's report on synthetic turf may not carry much weight," Legal Journalist opines

I smell lack of credibility in the CPSC announcement that synthetic turf, although it contains lead, is safe.  So does a legal journalist in the Northeast. 

This journalist opines, "Yes, the CPSC has issued a report indicating that its study of synthetic turf fields reveals 'no risk.'  But the troubles at the CPSC during the current administration, as well as the administration's curious relationships regarding environmental issues, as well as the science related to those issues, the CPSC's report may not carry much weight. Furthermore, the CPSC has been under fire ever since the lead toys from China debacle.  This turf war will continue, I predict, at least for a little while."

That Synthetic Turf - CPSC says it's safe, but that might not be end of it

Today, reports Ross Kenneth Urken in THE WALL STREET JOURNAL, the Consumer Products Safety Commission issued a report stating that artificial turf used in sports field, although containing lead, was not a hazard to health. But it is calling for synthetic-turf producers to voluntarily eliminate the lead in the product. In West Haven, Connecticut, it was also announced that the synthetic turf for athletic fields is safe.

Several political leaders such as U.S. Senator Robert Menendez from New Jersey asked the CPSC to investigate this product for possible threats to children's health. This has been an issue also in California.

But, given the distrust of government in some circles, I don't see this as reassuring activists, NGOs, plaintiff attorneys and perhaps even some related industries.  My experience covering the raw-milk users, who break or get around the law and/or pay premiums for this product, showed me how poor the credibility of government is to a growing number of people. [Marler Clark' blogs covers this raw-milk counterculture movement.] 

My perception has been confirmed in a seminal article in the June 2008 FORTUNE by Marc Gunter titled "Wal-Mart: the new FDA."  Gunther documents how consumers, industry and the plaintiff bar are ignoring government and deciding on their own what's safe, what's not, and what action should be taken.

Any group wanting to get headlines could jump on this CPSC report and sponsor its own independent testing. At the top of the list of must-dos for the next Administration is restore trust in government - federal, state and city.

OH Animal House still making headlines - That could help GOP AG Candidate Crites

Today, two "frat brothers" from Animal House in Ohio both made headlines.  One was former Attorney General Marc Dann.  He made a private-citizen request for all the documents associated with his time in office, including schedules.  He claims he needs them to restart his law office.

Later today that other well-known frat bro Anthony Guiterrez was also in the news.  Former director of general services in the OH AG's office Guiterrez was accused of sexual harassment.  Now, there's more, allegedly.

In the LEGAL NEWSLINE, Tami Kamin-Meyer reports that Guiterrez, when buying 94 new autos for state use, "allegedly [at least twice] tapped into a fund intended to cover the expenses of crime victims. That account is funded primarily from court costs and prisoner work programs. It is supposed to be used to pay lost salaries and other expenses of victims of assaults and other violent crimes."

This multifaceted scandal which isn't going away could be a gift from the universe for GOP AG candidate Crites.  Folks have to be asking:  Where was the adult supervision?

Lead in Synthetic Turf - It's there, but is it a health hazard

Is the lead in synthetic turf a political and not a health issue? 

Today, ABC-TV's Connecticut affliate carried a news segment on synthetic turf which has been used in athletic fields for years.  The turf in West Haven, CT was tested.  The lead was found not to be hazard, which confirms the local health department's findings.

On the other hand, U.S. Senator Robert Menendez, a New Jersey Democrat, stated MEALEY's July LEAD LITIGATION REPORT, sent a letter to the commissioner of the U.S. Consumer Product Safety Commission.  That was June 26th.  In that letter, the Senator asked the Commissioner to expand its investigation into the levels of lead in synthetic turf used in athletic fields.  In California, similar concerns have been made by political leaders such as Attorney General Jerry Brown.

What we know is that there is lead in synthetic turf.  But the jury is out if that lead is a hazard to those who play on it regularly.  Stay tuned for further research.

This blog thanks James Cordrey, Legal Editor at LexisNexis, for his report on synthetic turf in MEALEY's.

"If you want to paint an apartment in NYC, bring your paintbrush - and lawyer," Harold Shultz, CHPC

Planning renovations on your pre-1978 residence or the one your tenants occupy? You now face so much new red tape, thanks to the EPA's new layer of regs, that, Harold Shultz warns, "Bring your paint brush and your lawyer - you will need both."  Shultz is Senior Fellow at the Citizens Housing and Planning Council [CHPC] in New York and concerned about this additional burden.

Those new regs, being phased in between June 23, 2008 and April 22, 2010, make the maze of information and testimony presented at the Rhode Island lead paint public nuisance trial II seem like a text message. There are not only a lot of them. They're confusing.  And they actually add three categories of residential units which weren't previously been subject to lead-paint regulation, at least  not in NY. Those three are:

• Pre-1978 units where there is no child under 6
• One and two family houses, and
• Owner occupied coops and condos.

You can read CHPC's deconstruction of this curve ball in lead-paint abatement here.  It rightly decries that the regulations are so ponderous and ambiguous that they will have to be interpreted on a case-by-case basis. Think legal expenses.  Think delay in renovations.  But, most of all, think the children who won't be protected. This could represent a major setback in the public health success story of lead abatement.

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Harold M. Schultz, Senior Fellow, Citizens Housing and Planning Council, on EPA's new layer of lead-based paint rules, on the record:

"With the new EPA rules on repair and renovation of properties with lead paint, states and cities with their own lead paint laws now face a huge complicating factor in obtaining compliance.  TSCA 404(e) allows states and cities to have their own laws if they are more 'stringent' an the federal laws.

"But in the already highly complicated world of lead paint compliance, how is the average owner to figure out in jurisdictions that have their own legal overlays?  For instance, in NYC, if you start scraping and painting a post-1960 but pre-1978 apartment with a child under six, you are permitted to assume that the paint is not lead paint (NYC prohibited the use of lead paint in 1960).  However, under the new EPA rules, you will be required to test.  EPA rules will govern the testing since they are 'more stringent' than NYC in this instance.  However, once you test in NYC you will then 'know' that there is lead paint in the apartment.  Once you 'know' you will be required to follow the 'more stringent' NYC rules on work practices and clean up. Similar confusion will exist for coops and condos that are exempt from local law.

"So, if you want to paint an apartment in NYC, bring your paintbrush and your lawyer.  You'll need both.

"Of course the real net effect of having two complex laws that interact in a confusing way is less compliance with both.  To really protect children we need a simple, clear regimen that all can understand and comply with."

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Readers can reach the Citizens Housing & Planning Council [CHPC] at 42 Broadway, NY, NY 10004, 212-286-9211, info@chpccny.org.  You can reach Harold Shultz at 212-286-9211, ext. 110, hshultz@chpcny.org

Cadwalader: 96 MORE Laid Off - What should we make of this

Today Cadwalader, Wickersham & Taft announced that it is laying off another 96 lawyers, not all of them associates.  Last January it laid off 35 associates. Most of the cuts are, no newsflash, in the real estate and securitization practices.

What should be make of this? Well, first of all the large number - 131 in just about two quarters - gives license to other firms to do a reduction in forces.  If they chop less, they will call less attention to themselves than Cadwalader is getting today from legal and business media.

Since this round includes partners, even more partners can expect to be let go.  This is nothing new, of course.  There have been stealth layoffs of partner-level attorneys for a while now, at least my intelligence network of ghostwriters who did books for them tell me. We don't hear about much about those reductions because attorneys at that level still tend to embrace the civility ethos of going quietly into the night.

The second issue is other jobs or a career change for the unemployed associates and partners.  Some will land on their feet in another law firm if they have experience in a marketable area. As you recall, gay associate Aaron Charney sued his former employer Sullivan & Cromwell for discrimination.  Well, he recently got hired in the M&A department of British Clifford Chance's New York office.  Law-employment watchers had written Charney off as forever unemployable in law.  Now they're saying he had the right skills at just the time Clifford Chance wanted to enhance its Manhattan presence.

For those who don't find a lateral position in BigLaw, there's the option of joining together and creating a new model of law firm such as Valorum and Bates & Tyde.  General Counsels are putting the screws to BigLaw about billing.  Some corporations even make the GC go through Central Purchasing.  So, if those lawyers can figure out how to offer excellent service at a lower rate than their competitors, they might live happily ever after.

There is also the option of searching for an in-house position.  GCs are taking in more work that they used to farm out. The compensation was excellent last year because of big bonuses as well as stock options. Basic salary has remained stagnant.

However, some will have to consider leveraging their legal background and contacts into another line of work.  Among those that pay well are public affairs, lobbying, legal marketing, legal executive search, and corporate anything.  Regarding the latter, so many functions in corporate now use compliance and actual legal help. The best bet is to try process-oriented and/or highly regulated industries such as insurance.

No question, it takes time to find anything, never mind something appropriate.  The laid-off at Cadwalader have severance until the end of the year.  That doesn't mean to take it easy.  The best first tactic is to get some type of employment, perhaps in the evening, that serves to widen perspectives and to keep you alert. The day is free for interviews. Looking for a whatever all day, all evening, all weekend is a loser's positioning.  Employers can smell the unemployment on you.

If you're in the Connecticut area, the best investment might be to swing by and check your coping skills out with cognitive behavioral therapist [CBT] Amy Karnilowicz, West Hartford [860-216-5116, family.therapist@comcast.net].  When my communications boutiques tanked more than five years, Karnilowicz got me up and running in five months. 

Her CBT approach is taking action, not exploring feelings.  She had me get a job, any job. That was the best advice I ever received. Working at a job, any job moved me from the problem towards a solution.  I was happily employed as a contract loss prevention guard at Home Depot.  I received two awards for crimestopping.  The contract employer wanted me to join management. That restored my confidence.  Within several months I was putting together a number of new businesses.  Two panned out.

Dann - He's Baaaaaaack

Whatever the real reason, former Ohio Attorney General Marc Dann is requesting, as a private citizen, to have access to all the records associated with his 17 months in office.  THE COLUMBUS DISPATCH reports that Dann, who has gone back to private law practice, claims those documents will help him restart his firm. 

Others speculate Dann might fear what's in those records. He is a subject of multiple investigations, including his use of state and campaign funds. For us lead paint watchers, Dann's legacy will always be that he inflicted the lead paint public nuisance suit on the Buckeye State.