Posted on January 08, 2014 in Victim's Rights

A tragic national trend continued Sunday in the latest incident of police killing an unarmed individual suffering from mental illness or disability. After allegedly stating "I don’t have time for this," a police officer shot unarmed North Carolina resident Keith Vidal, 18, in the chest, fatally wounding the 5’3″, 90-pound teen. Vidal, who suffered from schizophrenia, had been experiencing a psychotic episode and his family was unable to calm him down.

During the episode, Vidal’s stepfather, Mark Wilsey, called 911 for help and reported that Vidal had refused to take his medication and was attempting to fight his mother. Wilsey requested that police take Vidal somewhere he could receive help. According to the family, three officers from three different police departments then arrived on the scene.

The first two officers spoke with Vidal and apparently had some success in calming him down, when the third officer, from the Southport Police Department, arrived 14 minutes later. As stated in a police report obtained by a local news station, one of the officers informed the 911 dispatcher multiple times that that everything at the scene was okay. According to Wilsey, however, when the third officer arrived, he suggested that a Taser be used on Vidal, at which point Vidal attempted to run from the officers.

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 Posted on January 06, 2014 in Business Counseling, Litigation & Transactions

Companies and individuals who are weighing the "pros" and "cons" of entering into arbitration agreements consider a whole host of factors in making this complex, and significant decision. Arbitration is often a good choice for parties who have a strong desire to keep their disputes confidential. An arbitration is also typically resolved faster than a civil lawsuit, usually with streamlined discovery and motions practice, resulting in the added benefit of lower litigation costs. Parties who choose arbitration typically prioritize these anticipated benefits over what is typically more exhaustive collection of information and presentation of issues in a civil lawsuit.
When a party chooses arbitration, however, it is critical that counsel express that choice with absolute clarity in a written agreement. A new decision from Maryland’s top court holds that after a civil lawsuit is filed, and a responding party is unsuccessful in moving to compel the arbitration it thought was agreed to, there is no immediate appeal of the denial of the motion to compel arbitration. Instead, the party must add the denial of the motion to compel arbitration to issues raised on appeal after trial.

This decision is a turning of the tide in Maryland’s judiciary regarding arbitration clauses, and a retreat from prior pro-arbitration decisions. This retreat may stem, at least in part, from the growing chatter in legal circles about the perceived overuse of arbitration clauses, particularly in cases where one side imposes the clause on another who has lesser bargaining power.
In Am. Bank Holdings, Inc. v. Kavanagh, No. 21, Sept. Term 2013, two former employees of a mortgage company sued the company to recover sums they claimed they claimed to be owed after ending their employment. American Bank petitioned the Court to compel arbitration pursuant to clauses in their ex-employees’ employment agreements. When the motion to force arbitration was denied, the company appealed the ruling. The Court of Special Appeals refused to even consider the lower court’s refusal to order arbitration, finding that denial of a motion to force arbitration is not a final judgment that is ripe for appeal. Md. Code, Cts. & Jud. Proc. § 12-301.
Maryland’s highest court agreed to take a fresh look at the issue. The Court of Appeals notes that Maryland’s version of the Uniform Arbitration Act, as enacted in 1965, states that an appeal can be taken from the denial of a motion to compel arbitration "in the same manner and to the same extent as from orders or judgments in a civil action." The American Bank Court interpreted this language as simply reaffirming the status quo that denials of motions to compel arbitration were not immediately appealable because they were not final judgments. As such, American Bank was required to incur the cost, expense and delay of litigating the underlying suit to a final judgment before it would even have the opportunity to argue for enforcement of its arbitration in the appellate Court – at which time, the efficiencies and cost saving benefits of arbitration would have been lost.
The practical effect of this decision is that a party who loses a motion to enforce arbitration typically loses the primary benefits, if not the legal right, to arbitrate. Parties who choose arbitration thus must be absolutely certain that their arbitration provisions are as ironclad as possible. For assistance with these issues, contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or bsinclair@silvermanthompson.com.

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 Posted on December 23, 2013 in Business Counseling, Litigation & Transactions

Companies often develop complimentary services that can enhance the consumer experience and build customer loyalty to their brand. Shrewd businesses recognize that these freebie benefits should come attached with exculpatory and indemnification agreements, so a courtesy for customers doesn’t end up being a colossal burden of additional liability. Even when faced with heartbreaking injuries to a small child, Maryland’s highest court recently ruled that exculpatory agreements are binding on children in Maryland, creating new law on an issue of first impression in BJ’s Wholesale Club, Inc. v. Rosen, No. 99, Sept. Term 2012.

The stage for the case was set when the Rosens permitted their 5-year-old son, Ephraim, to play at a free "Incredible Kids Club" area at a BJ’s Wholesale Club in Owings Mills, Maryland. Before Ephriam was permitted to play, Mr. Rosen had to execute an agreement releasing and indemnifying BJ’s from any related injuries that might arise. Cut to 15 months later, when Ms. Rosen returned to BJ’s to do a little shopping. Mrs. Rosen again dropped Ephraim off at BJ’s Incredible Kids Club, which featured a large toy hippopotamus to climb on.

"Harry the Hippo" sat atop a thin layer of carpet, which, unbeknownst to Mrs. Rosen, sat atop a hard concrete floor, as opposed to foam padding that was under carpet elsewhere in the Club. When Ephraim tumbled off, he landed on his head, and developed a hematoma that required life-saving surgery to remove part of his skull. The Rosens filed suit against BJ’s in the Circuit Court for Baltimore County, alleging that BJ’s was negligent.

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 Posted on December 23, 2013 in Business Counseling, Litigation & Transactions

Many of you have seen the following disclaimer made in connection with films or books: "All characters in this book are fictitious, and any resemblance to real persons, living or dead, is coincidental." The line between fact and fiction may not always be so clear, however, as Maryland’s Court of Special Appeals discovered in addressing the issues raised in Publish America, LLP v. Stern, No. 2965, September Term 2010.

Stern was a librarian at the Ludington Library in Ludington, Michigan. During her tenure at the Library, Stern developed a manuscript about some of the interesting people in her community. In 2008, Publish America offered to publish Stern’s manuscript. Publish America insisted that Stern either obtain waivers from the people appearing in the book or appropriately "fictionalize the work." Publish America’s concern was that the book disparaged real-life people who were recognizable within Stern’s community. Publish America instructed Stern to "make sure that all names, places, and events have been changed" so as to truthfully comply with the disclaimer and to "take care that there are no real-life people that are in the least bit recognizable." Stern agreed to fictionalize her characters, and she even confirmed via e-mail that she had done so.

When Publish America released Stern’s book, The Library Diaries, there was a nearly immediate flood of complaints from people who felt that the book had a little too much fact, and not quite enough fiction. The Director of the Library suspended Stern from work and her employment was terminated ten days later.

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 Posted on December 20, 2013 in Medical Malpractice

It should go without saying that a person who enters a hospital has certain expectations of the level of care they will receive and how the medical staff will behave. Hospitals can be frightening and intimidating, and patients rely on their physicians to ease their apprehensions and concerns. Above all, patients expect to receive the highest level of care, both quickly and meticulously. In this same vein, doctors are expected, and even trained, to make the proper decisions when the time comes to make a diagnosis or recommend the appropriate treatment.

Unfortunately, this standard of care sometimes is taken for granted. Across the country, surgical errors, misdiagnoses and hospital negligence happen all too often. The consequences of such mistakes vary widely – from no injury to the patient to sometimes permanent injuries. When a doctor misses important information, or ignores crucial signs, the result can be a serious misdiagnosis, often leaving a patient in a worse condition. No matter how small the error or resulting injury may be, these medical mistakes cannot be overlooked.

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 Posted on December 17, 2013 in Business Counseling, Litigation & Transactions

The technology questions and options surrounding cybersecurity and data storage in "The Cloud" can overwhelm even the savviest of CEOs. The legal issues, however, are often overlooked. Various federal and state laws govern certain types of data storage in the cloud and dictate what your business is required to do if your website or cloud storage is breached and customer data is lost. Failure to comply with breach notification laws can result in statutory damages of hundreds of thousands if not millions of dollars.

For these reasons, it is well worth the time and minor front end cost to review these laws and your online practices with a qualified attorney, but the brief checklist below provides common sense tools to make your employees, your online business activities and your cyber data practices more secure.

At SilverMcKenna, we recommend you turn to independent cyber-security experts to develop a secure infrastructure for your data and online practices, but we also urge our business clients to take the following SIX PRACTICAL STEPS to protect business data in the cloud, to secure customers’ data and sensitive information, and to make sure employees and management are working together to do so effectively and efficiently while preserving employee and customer privacy.

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 Posted on December 16, 2013 in Real Estate

Governments in recent years have developed some ingenious ways of financing huge real estate projects without having to front the money for it. One such method is so-called "ground lease financing" arrangements, in which private companies pay for the construction and then lease the improvements back to the government for some period of time. It’s a great way for governments to get new digs and spread out the cost, but it can lead to sticky questions when the taxman comes to collect.

Such issues were recently tackled by the Court of Special Appeals of Maryland in Townsend Balt. Garage, LLC v. Supervisor of Assessments of Balt. City, No. 2922, November 19, 2013. The wheels of the case were set in motion when the State of Maryland decided to build that big "BioPark" research complex in downtown Baltimore. As what typically happens in these ground lease financing deals, there was a mountain of leasing and subleasing arrangements in play, so try to bear with us here as we work through them…

To get the project off the ground, the State acquired some land from the City of Baltimore and leased it to UMB Health Sciences Research Park Corporation ("RPC") – a tax-exempt non-profit organization created by the University System of Maryland – under a ground lease. RPC then subleased a parcel of the property Baltimore LSRP One Business Trust ("BLSRP"), a for-profit entity that agreed to finance and construct an office building and laboratory that would be leased back to the State of Maryland to house the University of Maryland, Baltimore, School of Medicine. Another parcel was subleased to Townsend Baltimore Garage, LLC ("Townsend"), another for-profit entity that agreed to finance and construct a parking garage.

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 Posted on December 16, 2013 in Complex Civil Litigation

Would you like to be identified by name in a federal court case that alleges you illegally downloaded, watched and shared pornography? Probably not.

Would it affect your job, your career, your reputation? Probably so.

Suing Marylanders by the hundreds, Malibu Media is using strong-arm litigation tactics to intimidate unsuspecting Marylanders to pay money to settle alleged copyright violations they may not have even committed. Malibu Media, LLC, is a California company that produces and/or owns the copyright to adult "soft-porn" movies and video content. Much of this content is available for viewing on the Internet.

Hundreds of Marylanders have received or will receive a letter from their Internet Service Provider (ISP), such as Comcast or Verizon, telling them that they’re being sued for copyright infringement by Malibu Media. Attached to the letter you receive from your ISP is a subpoena that requires the ISP to give Malibu Media your name, address and account information unless you "move to quash" the subpoena by a certain date. Also attached is a Complaint suing the "John Doe" account holder of a certain IP address. That "John Doe" IP address is linked to your Internet account with your ISP. The Complaint alleges that the "John Doe" has downloaded Malibu Media-owned porn films and seeks hundreds of thousands of dollars in damages. Once the ISP turns over the account information and your name, your name ends up on the pleadings as the named defendant.

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 Posted on December 13, 2013 in Criminal Defense

As an Aggressive Baltimore Maryland Criminal Defense Attorney I have represented hundreds of people charged with Sex Offenses. Many of these case deal with adults (typically men) having sexual contact with underage victims (typically girls) – so call Statutory Rape Cases – although Maryland Law does not use that specific terminology. The basic rule is that if a child is under the age of 16 – which is the age of consent in Maryland – it is illegal for an adult who is at least 4 years older than the child to have an form of sexual contact with the child. These crimes are prosecuted very aggressively throughout Maryland and typically result in jail time as well as requirement to register as a sexual offender for 15 to 25 years or even for life.

What makes these cases even more difficult to defend is that they are so called "Strict Liability" offenses, which means that it does not matter if the adult was aware that the child was underage. This applies even in circumstances in which the child affirmatively lies about or conceals her age. As unfair as this may sound, it is the law in Maryland and in many other states. It also does not matter who initiates the sexual contact. The adult will be held liable even if he was aggressively pursued by the child to have sex. I successfully resolved a case that falls into this latter description last week in Baltimore County Circuit Court. Here are the facts:

My client was accused of having sexual intercourse with a 13 year old girl. On its face this fact may conjure up mental images of Chester the Molester or some other equally despicable pervert or dirty old man. The truth, however, in this case was that my client is 18 years old and doesn’t look (or act) most older than 15. In fact, the incident occurred just the night after his 18th birthday and involved a young girl who didn’t act so young. In most people’s view, there is a big difference between an 18 year old boy having sex with a 13 year old, and a 40 year old man doing so, but the law technically makes no such distinction. It is up to the prosecutor to exercise her discretion as to how aggressively she wants to prosecute these cases. Indeed the Legislature necessary counts on prosecutors to do just that as each case is different and must be viewed in light of the facts and circumstances of that case.

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 Posted on December 10, 2013 in Business Counseling, Litigation & Transactions

On December 9, 2013, STSW lawyers Bill Sinclair and Ned Parent obtained a half million dollar judgment in a complex construction arbitration before the American Arbitration Association. After pre- and post-arbitration briefing and a four-day hearing before Arbitrator J. Snowden Stanley, which included a comprehensive site visit and fact and expert witness testimony, Sinclair and Parent convinced Mr. Stanley that their client, the Edgewood American Legion Service Post 17, should receive money and credits from the architect and general contractor who failed to complete a re-build of the Legion’s hall in Edgewood, Harford County, Maryland.

This case began during the "Snowmageddon" of February 2010, when record Maryland snows caused the roof of the Edgewood American Legion hall ("Hall") to collapse. The Legion obtained bids from several local contractors to re-build the Hall and ultimately went with Burton Pfund, Inc. to design and rebuild the Hall. Burton Pfund agreed to do this work through two trade names — Burton Pfund Architecture would design the re-build, while MasterPlan Design Build (collectively, "Burton Respondents") would perform the reconstruction services. The parties signed a guaranteed maximum price contract for the Burton Respondents to perform the necessary work for $840,000.00, plus selective demolition services for a GMP of $50,000.00. Work began in the Fall of 2010 and continued through Spring 2011.

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