Virginia Legal Trends and More

Tased, but not confused

Back in 2007, Sen. John Kerry was attending a forum at the University of Florida, when a student named Andrew Meyer started asking the former Democratic presidential candidate a number of agitated questions.

Why hadn’t President Bush been impeached, he asked. And why had he conceded to Bush? Meyer was so wound up that security officers started to escort him outside. Kerry started to answer Meyer, who demanded to hear the responses.

Meyer was wrestled to the ground, uttering these immortal words: “Don’t tase me bro!”

Millions of YouTube viewings later, this phrase became a pop cult fixture. Meyer was charged with disturbing the peace and resisting arrest; the charges later were dropped.

So whatever happened to Meyer? The Washington Post’s Lifestyle magazine asked that very question.

Answer: He’s going to be a lawyer. Meyer graduated from UF and was admitted to the Florida International University law school, where he is now a second-year student.

Give Meyer credit for being an entrepreneur: After the incident, he trademarked the phrase “Don’t Tase Me Bro” and has a website where you can buy a T-shirt for $15.

(T-shirt artwork above is from Meyer’s site, design by Phil Fung).

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Wednesday, September 07, 2011

Beneficiaries May Sue for Excessive Gifts

By Deborah Elkins

Published: September 7, 2011

Tags: Judge Raymond A. Jackson, U.S. District Court - Eastern District, Wills & Trusts

Beneficiaries of a family trust and will may sue decedent’s stepdaughter, their aunt and the executrix of the estate and holder of a durable power of attorney granted by decedent, for breach of contract and breach of fiduciary duty, for gifts she made to herself during decedent’s lifetime; a Norfolk U.S. District Court says plaintiff beneficiaries have standing to sue under North Carolina law.

This case involves a dispute over the management and execution of assets of the estate of Donald Clarke. On June 14, 2004, Clarke established a revocable inter vivos trust, the Donald Clarke Family Trust, and executed his will. The trust instrument identified the beneficiaries of the trust as Clarke’s deceased wife Claudine S. Camper’s daughter, Celeste Manning, and the children of Camper’s two deceased children, Jennifer C. Smith and Thomas B. Camper. The children of Mrs. Camper’s deceased children comprise the plaintiffs in this case.

The trust instrument also listed defendant Manning as trustee and directed defendant to accumulate the income and retain the principal of the trust during Clarke’s lifetime. Clarke’s will directed the residue of his estate be poured over into the Family Trust and disposed of in accordance with the provisions of the trust instrument. Under the trust instrument, upon Clarke’s death, the trustee was to distribute the remaining principal, along with any accumulated income as follows: two-thirds to defendant and one-third to plaintiffs in equal shares.

On Aug. 1, 2005, Clarke executed a durable power of attorney (DPOA) under N.C. Gen. Stat. Sec. 32A-8, listing defendant as his attorney in fact and giving her the power to act in his name, place and stead in any way in which Clarke himself could act. The DPOA granted defendant the power to make gifts of Clarke’s real or personal property or interest in such property to the living issue of Camper and their spouses, in amounts not to exceed the annual exclusion for federal gift tax purposes at the time the gifts were made. According to plaintiffs, defendant attorney in fact made gifts to herself from Clarke’s estate totaling $11,000, $297,000, $192,000, $192,000 and $208,000, from the years 2004 through 2009. Plaintiffs allege defendant, acting as attorney in fact, breached her duty to adhere to the express terms of the DPOA and plaintiffs seek for the court to order defendant to pay to the Family Trust the full value of the excess gifts, plus interest. Plaintiffs request defendant be ordered to pay the estate the value of the excess gifts, plus interest, to be distributed to the Family Trust.

Clarke died as a resident of North Carolina, and the Family Trust terminated and its assets became distributable. Plaintiffs filed suit on March 11, 2011.

Defendant argues that plaintiffs, as beneficiaries under Clarke’s will, had no legal interest in the transactions alleged to have occurred prior to his death on March 12, 2009. Defendant argues only Clarke and his personal representative may bring a cause of action to impeach personal property transfers made during Clarke’s lifetime.

Under the controlling North Carolina law, defendant’s alleged breach of the terms of the DPOA when she conveyed gifts to herself in amounts exceeding the annual exclusion for federal gift tax purposes created a cause of action for breach of contract or breach of fiduciary duty as to Clarke during his lifetime. Clarke’s legatees or distributes have standing to sue to recover personal assets of an estate when fraud, collusion or a refusal to sue on the part of the personal representative renders such action necessary for the protection of ultimate rights accruing to them under a will or the statute of distribution.

In this case, Clarke’s personal representative is also the same person who allegedly wrongfully gifted assets from the estate. In such a situation, the court finds that under the exception articulated in case law, plaintiffs, as distributees under the Family Trust and consequently under Clarke’s will, may bring a cause of action for breach of contract and fiduciary duties for acts occurring prior to Clarke’s death in place of the personal representative.

Further, defendant’s reliance on N.C. Gen. Stat. Sec. 28A-19-3(a) as the applicable statute of limitations is misplaced. That statute bars claims against a decedent’s estate, not claims to recover debt on behalf of the decedent’s estate. This case involves a claim to recover debt for the estate based upon allegations of breach of contract and fiduciary duties under the DPOA. Because the claim raised in count I is based on contract, the statute of limitations is three years.

Only claims based on the excess gifts for 2008 and 2009 were filed within the applicable statutory period. The court finds plaintiff’s claims based on excess gifts defendant allegedly received from 2004 through 2007 are time-barred.

Defendant also argues that because plaintiffs’ claims arose prior to Clarke’s death but were not timely presented to his personal representative, they are forever barred. This court finds the three-year statute of limitations in N.C. Gen. Stat. Sec. 1-52(a) applies. That period has not expired and plaintiffs are not barred from suit. They allege defendant gave herself gifts in excess of the annual exclusion amounts until March 22, 2010. Plaintiffs filed suit March 11, 2011, well before the earliest date of expiration for the statutory period. The court also declines to dismiss count II as to defendant in her individual capacity.

Camper v. Manning (Jackson) No. 2:11cv157, June 27, 2011; USDC at Norfolk, Va. VLW 011-3-349, 14 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Tuesday, September 06, 2011

Porn industry sues anonymous Hampton Roads users

LEGAL challenge

These lawsuits are being challenged by the “John Doe” defendants and civil liberty advocates who contend the industry is bullying people.

THE SUITS

Some of the cases have been dismissed, but many have settled out of court, with the “John Does” typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity, according to an attorney close to the case. No cases have gone to trial.

By Tim McGlone
The Virginian-Pilot
© September 4, 2011

NORFOLK

More than 100 Hampton Roads residents, identified only as John Does, are being sued in federal court here, accused of illegally downloading pornography.

And one John Doe is fighting to keep his identity private.

Pornography producers and distributors have started a nationwide campaign, much like in the music industry, to stop illegal downloads of XXX movies. The industry says it is losing millions of dollars a year as titles such as "Amateur Allure - Zoe" and "Cuties 2" get passed around the Internet for free.

Lawsuits targeting at least 20,000 people across the country have been filed. The first two cases in the Norfolk federal court landed here this summer.

These lawsuits are being challenged by the "John Doe" defendants and civil liberty advocates who contend that the industry is bullying people.

They have had some successes. A federal judge in Illinois refused to grant a subpoena that would have forced Internet service providers to identify 300 John Does named in a lawsuit there. The judge called the suit "ill-fated" and "ill-considered."

And a federal judge in Alexandria earlier this year refused to allow lawyers to obtain the names and addresses of the Internet users for more than 100 downloaders of porn. The case was ultimately dismissed.

Adult pornography is one of the biggest moneymakers on the Internet. Several tech websites list annual porn revenue in the billions. Some wonder why the industry is going after illegal downloaders for a few thousand dollars each.

"We think these suits are unfair. They're cutting corners, and they're not giving people due-process rights," said Rebecca Jeschke, a spokeswoman for the Electronic Frontier Foundation, a civil liberties group that has been helping defendants in these cases.

"These suits are often filed with the assumption that they're not going to go to trial," she said. "It's about settlement."

Jeschke and others on the John Does' side blame the lawyers more than the industry for this rising tide of lawsuits.

John Steele of the Chicago law firm Steele Hansmeier is the chief lawyer filing these suits around the country.

He said he enlisted Virginia Beach attorney Timothy Anderson to file the two suits here on his behalf.

Anderson did not respond to messages seeking comment.

"We have about 95 percent of the cases," Steele said in a phone interview. "We basically saw that there was a real problem with piracy of pornography."

He said the porn industry has filed about 135 such suits against more than 20,000 people, most of whom have remained unnamed in court proceedings.

Steele said some of the cases have been dismissed but many have settled out of court, with the Does typically paying $2,000 to $3,000 to make the suit go away and maintain their anonymity. No case has gone to trial.

Steele represents an industry that is largely shadowy. Porn companies and their owners are difficult to locate.

One suit in the Norfolk U.S. District Court was filed against 30 John Does by Hard Drive Productions Inc., which lists a home office in Phoenix. Google maps show the site at that address as a small ranch house surrounded by cactuses. The owner, listed in public records as Paul Pilcher, did not respond to a phone message.

Public records say the company has one to three employees and annual revenue of more than $2 million. No website could be located (except for other companies with similar names).

Little could be found on the second company that is suing 77 area John Does. AF Holdings, the plaintiff, is a limited liability company with headquarters in the Caribbean. No U.S. office or website could be found.

One John Doe in the Hard Drive suit filed an anonymous motion to keep his name out of the record. He asserted in the motion that he probably would lose his job and be subject to "blackmail and extortion risks." A judge has not ruled on the motion yet.

The Electronic Frontier Foundation and John Doe defense lawyers have complained about the tactics used by Steele and other lawyers. Such a large dragnet is bound to scoop up innocent people. Often cited is the case of a grandmother in her 70s accused of downloading porn; the case against her was dropped.

"The error rate is considerable," said Mike Meier, a Washington, D.C.-area lawyer handling a number of these cases.

But Steele said new software, which he said he helped develop, significantly lowered the error rate.

"It's one of the things we looked at very carefully."

Meier acknowledges the country's long-standing copyright laws but said the lawyers' tactics have been too aggressive.

"In my opinion, they are bill collectors for the movie industry," he said. "They're basically extorting money.

"Do I like their methods? No, not really," he said. "But I don't know what I would do if the shoe was on the other foot."

Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, September 01, 2011

Child's guardian ad litem immune from suit

Child’s guardian ad litem immune from suit

By Peter Vieth
Published: September 1, 2011

Tags: Domestic Relations, Federal Courts, Judge Samuel G. Wilson

It’s no surprise that lawyers appointed to represent the interests of children in hostile divorce cases can find themselves at odds with one or both parents of the child. In some cases, the parents even sue the lawyer acting as guardian ad litem.

A new decision from a Roanoke federal judge offers some reassurance that – in most such cases – the courts will protect a GAL who’s just doing the job.

U.S. District Judge Samuel G. Wilson held in Serdah v. Edwards that a guardian ad litem accused of violating a father’s constitutional rights was absolutely immune from suit in his role as GAL.

Roanoke lawyer Peter Edwards – as a GAL for a young boy – had sought a protective order against the boy’s father, fearing the father intended harm to his son as well as other family members.

The father filed a § 1983 action in federal court alleging Edwards conspired with the mother to violate the father’s rights.

Granting summary judgment for Edwards and the other defendants, Wilson found Edwards was shielded from the civil rights claims by both his independence from state government and by his role in the judicial process.

Wilson distinguished a 4th Circuit case allowing suit against a guardian of a ward who had custody of the ward and worked “in tandem” with state officials regarding the ward’s treatment.

“Edward’s role as a guardian ad litem is essentially that of an advocate,” Wilson wrote.

In the alternative, even if Edwards were deemed a state actor, he would be entitled to absolute immunity from § 1983 claims for duties performed in his role as GAL, Wilson held.

Wilson also found the father’s claim against Edwards lacked merit on factual grounds.

Roanoke lawyer Kevin Barnard, who represented Edwards, said Wilson’s decision follows the case law, but is welcome news for GALs. “It should be of comfort to guardians ad litem,” he said.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474