Archive for April, 2009

Chinese Labor Laws Evolve in the Wake of Financial Crises

Thursday, April 30th, 2009

Shanghai, China—American law firms are helping implement major changes in employment practices in China.

Paul, Hastings, Janofsky & Walker’s employment practice, opened in Shanghai in 2006, has seen dramatic alterations in the centuries-old country’s outdated labor laws. Last year China introduced three laws that guarantee employees the right to long-term contracts, safe workplaces, non-discriminatory environments. Additionally, Chinese workers are guaranteed redress if these obligations are not met by their employers.

The Labor Contracts Law, which went into effect in 2008, has been a nexus of litigation in China. The measure entitles every worker to a written contract stipulating length of employment, terms of employment, and pay scale. It also addresses issues of overtime pay, pension and insurance programs, and severance pay.

Initially, the law caused companies to rethink their policies and their compliance with those policies, says K. Lesli Ligorner, of Paul, Hastings, Janofsky & Walker, which also has an office in Beijing. Then the U.S. and global financial crises hit. “Starting in September,” says Ligorner, “we started to see a regular flow of inquiries into how to conduct a mass layoff and the procedures to terminate.”

Chinese businesses, like those worldwide, are struggling to maintain both employee rights and economic survival. Companies are looking to any legal means to cut costs, especially when it comes to personnel, and layoffs are a big part of their frugality.

That’s where the U.S.-based law firms come in. There has been a rash of suits brought by Chinese employees against their employers or former employers. Says Ligorner, “More people know their rights, and more foreigners are folded into the workplace now, and those individuals do not hesitate to bring actions.”

The labor laws have created a more equitable environment for employees to bring such actions, including better infrastructure for lawsuits, and the elimination of fees for filing.

China has been praised by the U.S. And other countries for not only the implementation of fairer labor laws, but also for involving the public in policy decisions surrounding labor. The Labor Contract Law was enacted after extensive consultation with the U.S.-China Business Council, as well as solicitation of comments from the Chinese public.

Employment laws in China are still not up to American standards, say lawyers who practice abroad. For example, even though there are sexual harassment laws on the books, such harassment is only acknowledged legally when it is perpetrated by men against women. Yet employee—and human—rights are being more widely embraced by both the Chinese public and its business sector.

DA says NY Mortgage Fraud had Link to S&M Club

Thursday, April 30th, 2009

SOUTHAMPTON, NY—In Suffolk County on Wednesday, a woman said to be a dominatrix and a former county legislator were among five people facing charges because of their participation in a $50 million mortgage fraud scheme. The scheme, which is said to have ties to a sex fetish studio, involved several dozen properties in the Hamptons over the past seven years.

“Straw buyers,” who use their name and credit information to falsely obtain mortgages, were instrumental in the scheme. Authorities say that straw buyers for dozens of Long Island properties were paid for their involvement in this frauds. Similar scams have surfaced around the nation in recent years, but hardly in such a high profile location.

The Hamptons are popular as a lavish and expensive summer retreat for the rich and famous. Prosecutors reported that some of the mansions and other summer rentals rented to vacationers were fraudulently purchased through the mortgage fraud scheme.

“The damage these defendants single-handedly caused to our local economy is simply appalling,” Suffolk County District Attorney Thomas Spota said. “We found the defendants repeatedly ignored the obligation to pay off existing mortgages and instead funneled the money into their personal accounts to finance their businesses and lifestyles.”

Spota said that the straw buyers would either claim they were employed by corporations controlled by some of the schemers or would fill out false loan application claiming higher or nonexistent incomes. One of the straw buyers claimed an annual salary of nearly $450,000.

Two of the companies involved were named. One source of straw buyers was a company called Maximum Restraint films and the other was identified as Arena Studios, Inc., a Manhattan business that at one time provided dominatrix services. The dominatrix, who was named as Carrie Coakley, once appeared in a film called “Whipped.”

Prosecutors reported that Coakley and her husband, Donald MacPherson, were the proprietors of the Manhattan S&M studio that offered handcuffs, gags, and paddles as props.

Several of the clients for the studio were recruited to pose as the homebuyers who could afford Hamptons vacation homes.

The couples’ lawyers report they are innocent.

“Anybody involved in the purchases of these houses were legitimate people,” he said. “Foreclosure doesn’t mean a crime was committed.”

Spota said that a major participant in the scheme was Ethan Ellner, an attorney and operator of a title company that used forged documents, false employment and income information on applications, as well as straw buyers, among other schemes. Ellner pleaded not guilty and was released on $25,000 bail. Neither he nor his attorney commented after court.

Sexting: Students Sue Prosecutor in Cellphone Photos Case

Wednesday, April 29th, 2009

A high school cheerleader in northeastern Pennsylvania learned she may face criminal charges after investigators reported finding a nude photo of her on someone else’s cellphone.

“Sexting,” the increasingly popular phenomenon of sending nude or seminude photos over wireless phones, has parents and others worried.

“They said they had a full-bodied naked picture of me, but I knew I’d never had any naked picture taken of me,” said 15-year-old Marissa Miller. The student’s mother, Maryjo, received a telephone call as the two were eating lunch together at Tunkhannock Area High School, where Maryjo is a special education teacher and Marissa is a freshman.

Investigators from the office of District Attorney George P. Skumanick of Wyoming County said the picture, apparently taken two years before at a slumber party, showed Marissa and a friend from the waist up. Both girls were wearing bras.

Mr. Skumanick considered the photo provocative enough to tell the girls that if they did not attend a 10-hour class dealing with pornography and sexual violence, he would consider filing a charge of sexual abuse of a minor against both girls. If convicted, the girls could face possible prison time as well as having to register as sex offenders.

“Prosecutors should not be using a nuclear-weapon-type charge like child pornography against kids who have no criminal intent and are merely doing stupid things,” said Witold J. Walczak, a lawyer with the American Civil Liberties Union of Pennsylvania, which represents the families.

Seventeen other students—13 girls and 4 boys—also received the same accusations by the end of February. All had either been caught with semi- or fully-nude cell-phone pictures.

Marissa, her friend, and a third girl appeared in court along with their mothers. On Wednesday, they filed a lawsuit in Scranton, Pennsylvania federal court against Mr. Skumanick.

They asked the court to stop the district attorney from filing charges against them, which they believed was retaliation for the families exercising their First and Fourth Amendment rights to oppose the deal.

Mr. Skumanick said he opposes the lawsuit and that he was not acting in a retaliatory fashion. He states he had given the girls an option, but not forced them to do anything. Furthermore, he expressed his sadness that the parents didn’t realize what their children did was wrong, and said they should be encouraging the girls to take the classes.

Judge Admits Ethical Breach in Sending Romantic Emails

Wednesday, April 29th, 2009

Mercer County, NJ—A Superior Court judge has admitted to breaches of judicial ethics policies by sending romantic emails to a former law clerk, and by helping her to land a job at the public defender’s office.

Judge Lawrence DeBello, 51, admitted in statements earlier this week that he used his judiciary e-mail account to send the emails to an unnamed clerk who worked with him from September 2006 to August 2007.

DeBello had previously been questioned about the communications. In a December 2007 meeting with Hudson County Trial Court Administrator Joseph Davis and Hudson County Assigment Judge Maurice Gallipoli, he admitted that the emails were inappropriate. Two exchanges, copies of which were obtained by Gallipoli and Davis, used “offensive language” and concerned “personal matters.”

Although he was advised to discontinue this behavior, DeBello admitted to continuing the email exchange and complicity in “the escalation of the intimate tone and nature of those email exchanges, which concerned their respective romantic feelings for one another.”

In January of 2008, DeBello was transferred from Hudson County to Mercer County, but continued his contact with the former clerk and even attempted to help her gain a position as a law guardian. He “used the power and prestige of his office,” he said, and made an unsolicited telephone call to Deputy Public Defender Edward Marable, head of the Office of Law Guardian for the northwest New Jersey region, recommending the former clerk.

By doing so, DeBello admitted that he was ignoring guidelines regarding judges’ recommendations, which say that such recommendations should be given only when solicited. DeBello also said that, given his romantic feelings for the former clerk, it was unethical for him to act as her reference.

On October 20, 2008, Advisory Committee on Judicial Conduct (ACJC) Executive Director John Tonelli and investigator Jennifer Endrzajewski questioned DeBello under oath about the frequency of his communications with the law clerk, and his decision to maintain contact with her after the December 2007 meeting.

DeBello also admits a breach of ethics took place when he used his judicial email account to send personal messages. DeBello was appointed to the bench by Governor Christine Todd Whitman in 1997 and given full tenure in 2004.

Adelphi pays $300K to Settle Sex Discrimination Suit

Tuesday, April 28th, 2009

The United States Equal Employment Opportunity Commission announced on Tuesday that Adelphi University has agreed to pay salary increases totaling more than $300,000 to several female professors as part of a settlement of a federal gender discrimination lawsuit.

The lawsuit was filed in 2007 on behalf of Judith Cohen, a professor of education and attorney. Cohen, who had taught at Adelphi for thirty years, alleged that the school paid female professors less than male professors at the same level. A complaint was originally filed with the EEOC in 2005.

The Adelphi settlement will pay 37 women a total of $305,889 and give raises to 30 of them. The agreement also monitors and includes training for anti-discrimination laws for three years.

“Working women should never be shortchanged by receiving unequal pay for performing equal work,” Stuart J. Ishimaru, acting chairman of the EEOC, said in a statement.

The Equal Pay Act of 1963 requires employers to provide equal pay to men and women for jobs that are “substantially equal.”

Cohen still teaches at Adelphi and could not be reached for comment.

“Federal law makes it crystal clear that an employer must pay employees performing substantially equal work in an equal manner, regardless of gender,” said EEOC attorney Louis Graziano.

Adelphi University has more than 8,000 undergraduate and graduate students at its main campus in Garden City and facilities in New York City, Hauppauge and Poughkeepsie.

“Adelphi University’s compensation practices are lawful, fair and equitable, and it intends to vigorously defend them,” said spokeswoman Lori Duggan Gold.

Adelphi denied any wrongdoing in a statement. “Adelphi University is pleased to reach a voluntary resolution to this matter,” the statement said. “This negotiated settlement enables us to close this matter without prolonged and costly litigation. . . . The university admits no wrongdoing and will continue to adhere to policies based on fairness and equity.”

The statement said the lawsuit does not take into consideration other factors that go into setting a salary, including “seniority, market demand, experience, [and] areas of expertise.”

Police: Woman Posed as Immigration Officer to Take Child

Tuesday, April 28th, 2009

Police in Florida reported that a woman accused of kidnapping an infant by posing as an immigration officer is refusing to speak about the case. She returned the baby to authorities on Tuesday.

Ten hours after a statewide Amber Alert was issued, the infant was returned and appeared to be in good health.

“We may never know what she was thinking or what she was planning to do with the baby,” Plant City, Florida, police spokesman Capt. Darrell Wilson said Wednesday.

“She invoked the right to remain silent, so all questioning stopped,” Wilson added.

Bond was set at $750,000 on Wednesday for 43-year-old suspect Amalia Tabata Pereira, during a hearing in Manatee Country court. Pereira is the wife of a minor-league baseball player in the Pittsburgh Pirates organization. She faces charges of interference with child custody, false imprisonment, child abuse and kidnapping, authorities said.

A woman who claimed to be an immigration official spoke to migrant worker, Rosa Sirilo-Fransisco, at the Hillsborough County Health Department and told her that if she did not turn over her two-month-old daughter, Sandra Cruz-Fransisco, she would face deportation, police said. According to Wilson, both the parents of the child are from Mexico and took the child to the clinic for a routine check-up.

Sirilo-Francisco and her husband, Andres Cruz, declined to speak to the press. They are undocumented residents. Immigration and Customs Enforcement have not disclosed if they would be investigating them.

The mother confided in a relative in Georgia after giving up the child, and was told that federal immigration officials would never follow such a procedure. The parents then reported the child as missing.

After ten hours, Pereira turned the child over to Manatee County sheriff’s deputies.

Amalia Tabata Pereira has used the alias Alalia Rivera, Amalia Segui and Almalia Maldonado. Pereira spent 3 years in prison on an arson conviction and was released in 2003. Prior to her marriage to Jose Tabata, she had 4 children, who are now teens and adults.

Pereira’s husband, Jose Tabata, is confused, frustrated and hurt by his wife’s shocking actions. Pirates President Frank Coonelly said that the organization will continue to assist and support Jose during this difficult personal time. Police say Tabata is not a suspect.

Sex Discrimination Case Against Wal-Mart Back in Court

Monday, April 27th, 2009

San Francisco—The nation’s largest retailer is back in court, awaiting a decision by the Ninth Circuit Court of Appeals in San Francisco regarding a class-action lawsuit involving two million current and former female Wal-Mart workers.

A lower court had previously ruled that the women could bring a class-action suit against Wal-Mart for sexual discrimination, but now the retail giant wants this ruling overturned. This case would constitute the largest sexual discrimination lawsuit in the country’s history.

Class-action lawsuits tend to make it easier for large groups to sue corporations. Previous class-action suits have led to large settlements by tobacco makers, food companies, and chemical companies.

This lawsuit contends that gender discrimination pervaded Wal-Mart’s corporate atmosphere, leading to lower wages and fewer promotions for female employees at over 3,000 U.S. Stores. Says Brad Seligman, one of the plaintiffs’ attorneys, “This is conduct that was approved of and acquiesced for years.”

Wal-Mart attests that its store managers acted with discretion, promoting workers based on merit, and that class action is unwarranted.

In 2001, a Wal-Mart worker named Betty Dukes sued for sexual discrimination with six other plaintiffs. A trial judge certified the case as a class-action matter in 2004. Wal-Mart has lost two appeals. If the Ninth Circuit court, which has jurisdiction in nine mostly Western states, upholds the ruling, Wal-Mart will be forced to appeal the matter in the U.S. Supreme Court.

The plaintiffs are seeking an undetermined amount in punitive damages and lost pay. Additionally, they are requesting injunctive and declaratory relief, which means that Wal-Mart would be required to rectify inequities in pay and promotion. On Tuesday, the 11 judges on the Ninth Circuit panel questioned the plaintiffs’ lawyers about how Wal-Mart would compensate for the discriminatory situations, including administering back pay. Chief Judge Alex Kozinski aksed, “Are you saying there was discrimination at all stores?”

Answered Seligman, “We’re maintaining there was a pattern of discrimination.”

Attorneys for Wal-Mart attested that the court should hold a higher standard when deciding whether a class-action suit was appropriate, given the costly punitive damages involved.

Wal-Mart is the largest private employer in the world, and the largest grocery retailer in the United States. According to the 2008 Fortune Global 500, Wal-Mart is the world’s largest publication corporation by revenue.

Liberal Group’s Ad Attacks Supreme Court Candidate

Monday, April 27th, 2009

MADISON, WI—The first attack ad in the Wisconsin Supreme Court race was launched Tuesday by a liberal group, targeting Jefferson County Circuit Judge Randy Koschnick.

The Greater Wisconsin Committee Spokeswoman Michelle McGrorty would not say where or how long the ad would be running but the ad was on the air in Milwaukee and other markets exactly two weeks prior to the April 7 election.

Koschnick is up against Chief Justice Shirley Abrahamson for a 10-year term on the high court.

The ad, which runs for 30 seconds, begins with a female narrator supporting Abrahamson, saying she protected victims, including children poisoned by lead paint, patients injured by negligence and consumers harmed by corporate wrongdoing.

The pro-Abrahamson comments in the ad refer to her decisions in allowing a boy to sue over lead paint exposure and injuries although he could not identify the company that made the product. The product that poisoned the boy overturned the state’s $350,000 cap on medical malpractice damages.

The second half has a different tone, with a male narrator talking over ominous music, and accuses Koschnick of siding with corporate special interests, the wealthy and powerful, and against victims.

“It looks like the left wing smear machine is getting active on Shirley Abrahamson’s behalf,” said Koschnick’s campaign adviser, Seamus Flaherty. He had not seen the ad.

Abrahamson’s campaign manager Heather Colburn declined immediate comment.

Third party groups have been heavily involved in the past two Supreme Court races, but remained silent in this election until Tuesday. Abrahamson has run two ads that do not mention Koschnick. He has not run any ads yet due to lack of money. Through February 2nd, Koschinik had only raised $50,000, compared to more than $1 million for Abrahamson.

It was reported that the release of an ad attacking Koschnick shows that Abrahamson’s backers are worried and that Judge Koschnick’s message is resonating with the voters.

Abraham, age 75, has been on the court since 1976 and has served as chief justice since 1996.

Koschnick has been a judge for 10 years and previously worked as a public defender.

Nancy Pelosi on ‘Un-American’ Immigration Law

Friday, April 24th, 2009

At a recent San Fransisco event, Speaker of the House Nancy Pelosi denounced the Immigration and Customs Enforcement arrests of illegal immigrants. The raids, which included ICE officials separating children from their parents, was denounced by Pelosi as “un-American.”

Nancy Pelosi also recently told a group of both legal and illegal immigrants and their families that enforcement of existing immigration laws, as currently practiced, is “un-American.”

“Who in this country would not want to change a policy of kicking in doors in the middle of the night and sending a parent away from their families?” Pelosi told a mostly Hispanic gathering at St. Anthony’s Church in San Francisco. “It must be stopped….What value system is that? I think it’s un-American. I think it’s un-American.”

In 2003, Pelosi accused ICE of terrorizing workers after agents raiding numerous Wal-Mart stores for hiring and contracting undocumented janitors. During the 2008 primary elections, Barack Obama also reported that some communities were terrorized by ICE “raids. ”

At a news conference last week, Pelosi clarified her explanation that ICE raids that separated parents from their children in the middle of the night are un-American, and she still stands by that.

In the past years, ICE’s efforts have targeted ‘immigration fugitives,’ people who have violated a judge’s deportation order.

“You are special people. You’re here on a Saturday night to take responsibility for our country’s future. That makes you very, very patriotic,” said Pelosi on Saturday night in front of a cheering crowd at St. Anthony’s. The crowd was chanting “Si, se puede” which means “Yes we can.”

Surveillance Cameras Lead to Charges Against Law Enforcement

Friday, April 24th, 2009

New York, NY—Although video evidence captured by surveillance cameras is a common factor in the capture and indictment of criminals, recent cases have shown that the knife cuts two ways. Police officers, detectives and other law enforcement officials are finding that video surveillance may disprove their testimony against a criminal, and even lead to charges against them.

The latest instance of a law enforcement official being caught on tape was brought to light on Monday, when NYC Detective Debra Eager was indicted on three felony perjury charges. Eager, 41, had testified before a grand jury in 2007 that she and a partner had entered an apartment building in the Bronx and recovered a quantity of marijuana. Video surveillance stood in stark contrast to Eager’s testimony, however, in that it shows that she and her partner entered the building separately and did not, in fact, recover the marijuana themselves. Other details of her testimony were also contradicted by the video, claims the Bronx district attorney’s office, and the disparity eventually led to felony and misdemeanor charges against the drug suspects being dropped.

Several instances in recent months have caused prosecutors either to drop charges against suspects, or to develop a criminal case against the arresting officer.

In September of last year, the Manhattan district attorney’s office dropped charges of assault, resisting arrest and disorderly conduct that had been levied against a bicyclist named Christopher Long. The arresting officer in the case, Patrick Pogan, was later indicted on charges of assault and filing false paperwork, after videotape showed him knocking Long from his bicycle. Pogan has resigned from the force.

Truck driver Michael Cephus had been similarly charged with assault, but cleared of charges after video surveillance showed that he had been beaten 10 times with a metal baton by a police officer.

Such surveillance tapes have become invaluable as evidence against police officers who have been accused of filing false reports, lying on the witness stand, or other acts of misconduct.

Although Detective Eager pleaded not guilty to the perjury charges, and described the discrepancies between the video evidence and her statements as honest mistakes made while recalling the details of the case. Eager, a 15-years’ veteran with the force, faces up to 21 years in prison if she is convicted on all three counts. She was released on a $15,000 personal recognizance bond and her case adjourned until May.