To successfully assert a claim under New York General Business Law § 349 (h) or § 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice" 

A claim is brought under GBL § 349 to allege misleading and deceptive trade practices and under GBL § 350 to allege false advertising.  Typically, these two sections are pled in tandem, both in single plaintiff cases and in class action litigation seeking relief from consumer fraud. 

In their NYLJ article (12/28/12) looking back at the significant New York State class action decisions that were handed down during 2012, authors Thomas A. Dickerson, Jeffrey A. Cohen (both Second Department judges) and Kenneth A. Manning devote special attention to the Court of Appeals decision in Koch v. Acker, Merrall & Condit, in which the court clarified that justifiable reliance is not an element of a GBL § 350 claim. Prior decisions had already done away with any reliance requirement on a GBL § 349 claim

The element of reliance had always seeming been an important defense weapon in deceptive trade practice class action litigation. In Koch, plaintiff alleged that the auction house described its wines as "extraordinary, " "absolutely stunning," and among the "greatest wines...ever experienced"  when, in fact, these wines were undeniably nothing of the kind. But the First Department made short shrift of plaintiff's claims.  The court gave considerable deference to the disclaimer language in the auction house's brochure which provided an "as is" disclaimer.

In addition to the "as is" caveat, the "Conditions of Sale/Purchaser's Agreement" made "no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value" of the wine.  Should not a  reasonable consumer, the appellate court reasoned, been alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant's alleged misrepresentations concerning the vintage and provenance of the wine it sells?  In this instance, according to Decanter.com, the plaintiff was Florida billionaire, William "Bill" Koch, who apparently believed that the auction house had sold him the proverbial "bill of goods".  If anyone was to read and understand the "fine print" in the disclaimer, surely a sophisticated investor like Mr. Koch would.

In answer, the  Court of Appeals held that the "as is" provision does not bar the claim (at least at the pleading stage) and does not establish a defense as a matter of law. 

As Messrs. Dickerson and  Cohen explained in an earlier NYLJ article (4/19/12), the Koch ruling may be a "game changer" in deceptive and misleading business practices class action litigation.  They cite a long series of prior appellate cases, which had established reliance as a basis for obtaining a recovery under GBL § 350, which clearly is no longer good law. In the past, New York courts were reluctant to certify GBL § 350 claims because they found that reliance was not subject to class wide proof. 

When the Appellate Division issued its decision, wine industry attorney Brian Pedigo in Irvine California expressed concern to Decanter.com that it would set bad precedent if all prospective bidders had to satisfy themselves by inspection rather than to trust in the auction house's represenations.  In pertinent part, he commented, "A regular Joe consumer is not going to fly overseas [or across the country] to inspect wine. A reasonable consumer will rely on the representation of the seller, and will not read or understand the fine print disclaimers".  An adverse decision for the auction house, he believed, would be "horrible for consumer trust in the online auction environment; it could possibly destroy this niche market sector".  Would  internet commerce beadversely affected if the e-consumer was not able to trust the e-seller?

The Court of Appeals apparently agreed with Mr. Pedigo that the risk of authenticity should not entirely shift to the consumer, regardless of whether the consumer is Joe consumer or Bill Koch. 
The claim against Acker Merrall is not Mr. Koch's only wine-related lawsuit.  He previously brought a RICO claim against Christie's, another auction house, after purchasing four bottles of wine that he believed were connected to Thomas Jefferson, but turned out were not really that old.  That Koch wine auction case ended up in the Second Circuit; but that's a story for another time. 
At the end of the day, Koch serves to harmonize GBL § 349 and GBL § 350; there is no reliance pleading requirement under either statute. 

However, all is far from lost for the defendants in these cases.  As discussed at the outset of this article, plaintiffs must prove  (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice".  Accordingly, although reliance need not be shown, the plaintiff must still prove causation.  Proof of causation remains plaintiff's critical hurdle in succeeding in these claims.  

Republished with permission from  www.toxictortslitigationblog.com
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Last June, Drake and Chris Brown found themselves on opposite sides of a New York City nightclub scuffle.  Now, according to reports by TMZ, they are suing each other over the fight in the hopes of receiving a judicial determination of who was responsible for the brawl.  The fight began after an argument broke out over the pop singer Rihanna.  Eventually, punches and bottles were thrown, leaving the club in shambles and Brown with a gash on his chin.  After a model named Romain Julien was also injured in the fight, he sued Brown, Drake, and the club for damages stemming from his cuts, “cosmetic defects,” and emotional distress.  Most likely, Brown and Drake are seeking this determination in order to avoid paying damages should Julien win his lawsuit.

Other notable lawsuits stemming from that particular fight include Entertainment Enterprises Ltd.’s $4 million lost licensing deal claim, along with a $20 million eye injury claim brought by NBA star Tony Parker.  Surprisingly, the incident resulted in no criminal charges against either party due to a lack of conclusory evidence.

As originally published at Sports Law Insider

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Do you talk or text while driving? If so, you better check out the status of the law in your state. Here are two links that will give you important information on these laws. And local governments are getting in on the act. For example, this Wednesday Mission, Kansas, begins the process of enacting an ordinance allowing only hands-free phones while driving.

 

 http://www.distraction.gov/content/get-the-facts/state-laws.html

 

http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html

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On Tuesday October 30th, the NCAA Board of Directors announced the adoption of a new enforcement structure that, among other things, creates additional levels of infractions, enhances accountability for head coaches, and seeks to punish violators with sanctions that more appropriately align with the actions that occurred.  The most striking of these new initiatives, to be implemented beginning in August of 2013, is the creation of the new four-tiered structure for violation classification.  

Under the current model, violations are classified as either major or secondary.  The new system sets forth violations as follows: Level I, Severe breach of conduct; Level II, Significant breach of conduct; Level III, Breach of conduct; and Level IV, Incidental issues.  A copy of the NCAA’s press release may be found here.  This new structure is the product of a year-long effort by the thirteen-member Board comprised of presidents, athletic directors, and conference commissioners.   President Mark Emmert described the changes as part of a devotion to “protecting the collegiate model,” in part by “remov[ing] the ‘risk-reward’ analysis that has tempted people.”   

These changes come on the heels of increasing external pressure for a more consistent and transparent process, with a number of major infractions cases serving as the backdrop for this magnified criticism.   Greater accountability and stricter sanctions is undoubtedly a step in the right direction when it comes to enforcement of what would be considered major infractions under the current framework.  The NCAA should be applauded for taking measures to ensure consequences for coaches who plead ignorance while violations blatantly occur on their watches.  But at the same time, the new violation structure is troublesome.   Despite admirable efforts to construct a better system, this new four-tiered structure for violation classification fails to ameliorate many of the common concerns expressed with respect to NCAA Bylaws and enforcement of the same.  Hopefully, this will be cleared-up with the upcoming changes to the substantive “rules” in the Bylaws.    

The NCAA Bylaws are often denounced as too lengthy and too complex, and deservedly so.  Moving from a two-tiered violation structure to a four-tiered system, if not matched-up with more common sense in rule substance, is an obvious step backward, and is counterintuitive if the desired outcome is a more workable framework.  Increased confusion is even more likely when one considers the near endless interpretations that could be attributed to the definitions describing each tier.  For example, consider the difference between a violation that “threatens the integrity of the NCAA,” versus a violation that merely “provides more than a minimal, but less than a substantial…advantage.”  One definition classifies a Level I violation, while the other corresponds with Level II, but is there really a difference?   The definitions may mean something different to a coach versus someone in compliance at a school or enforcement at the NCAA, so how then is the goal of deterrence met for the problem that President Emmert describes as a calculation of risk vs. reward made by coaches who currently do not have sufficient risk to their livelihoods or respective programs.

Under this system, inconsistencies may abound to an even greater degree than under the current model.  This is likely to complicate the NCAA’s investigative measures, which is problematic given the Association’s already limited resources; resources so limited that some have even suggested that the NCAA get out of the enforcement business altogether (for a more in depth discussion of this proposal, see this well-done piece by Attorney Stephen A. Miller, recently published in The Atlantic).  Finally, if the NCAA is really student-athlete first, then this measure does nothing to address the countless Bylaws that punish student-athletes for technical violations that provide no competitive advantage, and do little more than burden an already overwhelmed enforcement staff.  Again, it is worth pondering, is an “incidental issue” even worth sanctioning?  I hope that reforms not just in terms of a scholarship enhancement, but in terms of rules affecting student-athletes’ behavior on a day-to-day basis are addressed in the coming months.

Since the NCAA has chosen to divert its attention first to the method in which these intricate and often superfluous regulations are classified, my worry is that dealing with the substance later will lead to a continuance in seeing violations shoe-horned into a rigid framework that sometimes, but does not always fit.  For those that desire more consistency in results, do you want the NCAA to have something akin to Federal Sentencing Guidelines, or more common sense in results?  I am not yet convinced that the new enforcement structure will get us more common sense in results, which many (myself included) would like to see as opposed to more rigidity.

Over time, perhaps this will prove to be a positive step toward a streamlined, consistent, and fair process.  For now though, a more detailed systemization of the NCAA’s enforcement structure only seems to complicate matters further if there is not significant overhaul to the substance of the rules themselves.  While my experiences may leave me a bit biased, until we see a comprehensive reassessment of the actual Bylaw language (promised in the next few months), I foresee this self-proclaimed “overhaul” as little more than a re-branding exercise.

Originally published on Sportslawblog *Hat tip to Brian Konkel for his work on this piece.

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Ethics 20/20: The Impact of Technology

Posted on August 30, 2012 03:19 by J. Logan Murphy

Every day, we see the impact of technology on the practice of law. Blogs, social networking, electronically stored information, and other legal resources create enormous economies and unprecedented depth in our field. But with these advantages come unrecognized perils. The transparency and mobility of electronic information creates significant risks to clients, unless properly controlled. As part of the project to rein in technology in the practice of law, the American Bar Association launched an ambitious multi-year project called Ethics 20/20. One of the major goals of Ethics 20/20 was to modernize the rules of ethics and bring them into congruence with the state of technology.


At its most recent meeting, the ABA passed multiple resolutions amending the Model Rules of Professional Responsibility to reflect the evolution of technology in the practice of law. This article provides a brief overview of those amendments. Those who are more interested in the details of the amendments can click here to read the reports online.


Confidentiality When Using Computers
Resolution 105A makes changes to help lawyers understand how to protect client confidences when using new technology, including cloud computing, tablets, and smartphones. Though small, one of the most significant changes is included in Comment 6 to Rule 1.1 (Competence). The Rule now includes a requirement that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” No longer can attorneys simply ignore developments in favor of staid methods of practice. To be competent, an attorney must work effectively with technology and keep alert to technological improvements and changes.

The amendment to Rule 1.6 (Confidentiality of Information) is probably the largest and most impactful rule change related to confidentiality. Now, Rule 1.6(c) requires attorneys to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating the representation of a client.” The comments make it clear that attorneys are required to utilize reasonable safeguards to protect confidential information. These changes are geared toward the protection of electronic data, especially given the innumerable bits of sensitive information flying around every day.


Using Technology for Marketing
Resolution 105B was designed to help lawyers understand how the principles of attorney advertising already incorporated into the Rules are affected by the growth of Internet-based marketing and social networking. This particular resolution accomplishes three main goals. First, changes to Rule 1.18 offer guidance on how to market online without inadvertently forming an attorney-client relationship. Recent cases have demonstrated confusion on behalf of the general public regarding whether an attorney-client relationship is formed when the potential client emails the attorney or fills out a communication form on the attorney’s website. The amendments to Comment 2 of Rule 1.18 address the concern by stating that a person becomes a prospective client by “consulting” with a lawyer. While the existence of a consultation depends on the circumstances, the Comment eliminates potential passive liability to prospective clients. A consultation “does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest.” But, if the lawyer actively invites information about a possible representation, the lawyer is probably stuck with a prospective client.

Second, the Rules contain a prohibition against paying others for a “recommendation,” and this Resolution modifies that prohibition to account for online lead generation services through chances to Comment 5 of Rule 7.2. Lawyers may now pay others for generating client leads, as long as the Internet-based lead generator does not “recommend” the lawyer. The lawyer is also responsible for the representations of the lead generator, with Comment 5 placing the onus on attorneys to ensure that the lead generator is not making statements that are inconsistent with the rules.

Finally, amendments to Rule 7.3 assist attorneys in determining when communications on the Internet, particularly through social networking sites, may constitute a “solicitation.” Only a “target communication initiated by the lawyer” directed to a “specific person” that “offers to provide” legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations, so feel free to jump on that Facebook advertising spot.


Outsourcing
Lawyers have been slow to adopt the economies of scale that outsourcing can provide, in part because of the perceived ethical dilemmas presented in outsourcing. Outsourcing can endanger confidential client information and presents a quandary over legal work being performed by attorneys not licensed in the United States. Resolution 105C encourages attorneys to ensure the efficiency, competence, and ethics of any outsourcing process. An entirely new comment is added to Rule 1.1, requiring the informed consent of the client to contract with any lawyer outside of the lawyer’s own firm. And, lest we forget, lawyers are always charged with supervising non-lawyers; that requirement does not abate simply because work is being outsourced to a foreign country. Comments 1 and 3 to Rule 5.3 incorporate this concept and apply the general rule to all non-lawyers outside of the lawyer’s own firm. The basic gist of the changes in Rule 105C is to encourage lawyers to keep a sharp eye on professionals hired from outside their own firm, and to work closely with clients in determining the proper scope of outside contracting and supervision. No surprise there—constant communication with the client is a harbinger of a durable and responsible attorney-client relationship.


Mobile Lawyers
A prevalent by-product of an informationally small, but geographically large, practice is the tendency of lawyers to move their practice. The world does indeed get smaller every year. No longer do lawyers move down the street; more and more, attorneys are moving their practice to different jurisdictions, and virtual law offices are sprouting in all states. The remaining resolutions that passed enable attorneys to establish a practice in another jurisdiction—subject to stringent information protection requirements—while pursuing admission in that jurisdiction. Resolutions 105D and 105E address the ABA Model Rule of Practice Pending Admission and the ABA Model Rule on Admission by Motion, respectively. With a few states signaling their intent to adopt a uniform bar exam, these model rules and their amendments continue the progress toward a more uniform practice of law. In case you have never encountered these model rules, or their state versions, their purpose is to allow experienced lawyers who have moved into a different jurisdiction to continue to practice while awaiting an expedited admission to the Bar. 

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With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game.  Legal observers will have their own action to watch although this is likely to last several seasons.    

In 2011, several former players suffering a variety of neurological disorders sued the NFL for negligence and fraud relating to whether the NFL knew and withheld that knowledge that concussions and other head injuries incurred during the playing of football could lead to long term brain damage and related side effects (no comment).  Many of these suits received class action status and were removed to the United States District Court for the Eastern District of Pennsylvania. 

On August 13, 2012, the roster of players on this legal gridiron expanded to include the NFL’s insurance companies.  Alterra America Insurance Company, an excess insurance provider, filed suit in New York State Supreme Court in Manhattan seeking a declaratory judgment stating that Alterra
1) does not have a duty to defend the NFL against player lawsuits
2) does not have a duty to indemnify the NFL against player lawsuits

Two days later, the NFL and NFL Properties filed suit against 32 insurance companies (or nearly every major insurer in the country as reported by Reuters)  including Alterra asking the Court to require these insurers to defend and indemnify the NFL from the players’ suits.  Why so many insurers?  Because the NFL sued nearly every insurer that it has ever had regardless if a current business relationship currently exists.  This is mostly a dispute about when duty to defend triggers.  The NFL in its papers argues it’s when the injury occurs. National Football League v. Fireman’s Fund Insurance, BC490342, California Superior Court, Los Angeles County at 12.  This becomes a bit of problem because different insurers insured the NFL at different times going back to 1963. Determining which injury (if only one) caused the long term damage, when that particular injury occurred and which policy was in effect at that particular time is going to be messy to say the least. 

However, the more interesting story here takes place nearly a week later.  On August 21, Travelers’ Insurance followed “suit” and filed its own action against the NFL and the other insurance companies seeking a declaratory judgment with roughly the same arguments as Alterra.  What makes this interesting is the fine distinction that Travelers’ makes in its papers which is how the other insurance companies become involved.  

Travelers' argues that its only obligation is to NFL Properties and not to the NFL itself (both the NFL and NFL Properties have been parties to these suits).   Travelers’ argues that it never insured the NFL (whom we guess Travelers’ believes is going to take the brunt of any payout either in the form of a judgment or settlement) and therefore shouldn’t have to bear any of the NFL’s costs. Traveler’s suit against the other insurance companies is a pre-emptive strike against its peers who “may dispute Travelers’ position with respect to some or all of the foregoing matters, and make seek contribution from Travelers’ with respect to defense costs and/or indemnity paid under the policies they issued to the NFL and/or NFL Properties with respect [to the players’ law suits].” Discovery Property & Casualty Co. v. National Football League, 652933/2012, New York State Supreme Court, New York County (Manhattan) at 19.

It looks like all the players are in their respective formations… and there’s the kickoff.

[1] Ben Berkowitz, “NFL Sues Dozens of Insurers Over Player Injury Claims.“ Reuters.  08/16/12.  Accessed on 08/28/12.  Available at: http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932.

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As reported by InsideCounsel, the American Bar Association House of Delegates (“ABAHD”) recently approved an amended model rule stating that it is ethical for lawyers to disclose client information when trying to move from one firm to another.

Specifically, the rule states that it is ethical for an attorney in negotiations for a different job, as well as attorneys in merging firms, to disclose the identities of clients and the amount of business they generate because the information can help point out any conflicts of interest that might exist.  However, the model rule states that lawyers still should not reveal clients' financial information.

Although the model rule has been approved by the ABAHD, the rule is simply an advisory rule.  In addition, the rule provides little guidance for attorneys faced with the question of how much client information can be ethically revealed in states whose bar associations do not have rules covering this topic.  Thus, prior to revealing any information, lawyers should carefully consider and weigh this model rule against Model Rules of Professional Conduct 1.6 and 1.9.

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New Google Service - Creative or Creepy

Posted on July 30, 2012 01:57 by Chad Godwin

Google recently launched a new service called Google Now that is available to users of its most current mobile operating system, Android Jelly Bean.  Google Now automatically creates and presents a series of “cards” that try to organize your life by presenting information Google thinks you’ll need at a given moment.  The information presented via the cards is based on data Google collects based on how you use various Google services - such as Google searches and Gmail.  For example, a recent Tech Crunch article notes that the cards may present you with information relevant to your current location, such as nearby restaurants, weather, schedules for nearby mass transit or how long it will take you to drive home from your given location.  Similarly, the cards may present you with flight schedules and currency exchange rates if you’re in a foreign country.  The first time you click on the Google search box within Jelly Bean, Google pops up an introductory screen to provide more information about Google Now.  Users can then explore the topic further.  To use Now, users must explicitly opt in.

Once a user opts in, Google collects and aggregates even more information about you on a daily basis: accessing your email, your calendar, your contacts, your text messages, your location, your shopping habits, your payment history, as well as your choices in music, movies and books.  In other words, what Google Now does is simply take the new, unified privacy policy you had to opt into a short time ago and regurgitates that information to you in what it considers to be useful ways.  When Google first introduced its new privacy policy, at the beginning of this year, more than 30 U.S. state attorneys general protested.  Now, by opting in to this program, users are providing even more information to Google, including the GPS coordinates for their home.  Nonetheless, there has not been a great deal of attention placed on Google Now or its accompanying privacy implications. Although users may appreciate the convenience of the features that are transparent, they may not consider the significance of the information they are providing access to and what Google may elect to do with their data in the future.  A case can be made that Google essentially “forced” users into agreeing to its new privacy policy, as you could not continue to use Google services without doing so.  However, by actively “opting in” to the new Google Now program, it becomes more difficult to argue that you did not willingly provide Google with access to your data.  So for now, users need to be aware of what they are providing access to.

 

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As to whether the punishment fit the crime in the imposition of punishment on current student-athletes and coaches that had no fault here, it is difficult to equate Jerry Sandusky's heinous actions and subsequent cover-up with standard NCAA violations that go to competitive advantage. Therefore, I can see why many people are having trouble with the punishment being levied against the innocent members of the football program in Happy Valley. Let's put that aside for the moment, though, to clear away some of what I consider to be misinformation and misinterpretations of this latest NCAA headline. In addition to punishment itself, Mark Emmert's executive declaration of Penn State's punishment on Monday left many on the sidelines enraged over (1) a lack of "due process" and (2) setting a bad precedent for future NCAA enforcement matters. As to (1), "due process" is not accorded to member institutions in the NCAA process, and I do not believe that (2) should concern current and future alleged rule-breakers in standard areas of violation such as recruiting, benefits, academic eligibility, amateurism, etc.


As to the due process issue, the NCAA administrative law process does not accord Federal or state constitutional due process protection for those parties that go through enforcement proceedings, be it student-athlete reinstatement (SAR) or infractions. The U.S. Supreme Court made it clear that the NCAA is not a governmental actor and thus is not obligated to provide due process. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 179 (1988). The NCAA is a private association made up of members that include schools and conferences. Those schools and conferences agreed to abide by the Association rules, including potential punishments for violations of Association rules, analogous to a country club and its members. (Bylaw 3.3.4.1). Schools and conferences are voluntary members of the NCAA, and therefore must abide by the associated rules and regulations. See, Hispanic Coll. Fund, Inc. v. Nat’l Collegiate Athletic Ass’n, 826 N.E.2d 652 (Ind. Ct. App. 2005) (holding that the NCAA’s decisions regarding organization were not subject to trial court’s review absent allegations of fraud or illegality, because the organization was a voluntary member of NCAA). Furthermore, “[t]he articles of incorporation and bylaws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.” Id, at 658. Therefore, member schools are under an enforceable contract with the NCAA and subject to its rules, regulations, and any punishment it may sentence. Bylaw 19.5.2 lists all the appropriate penalties for major violations, including (l): other penalties as appropriate. 

Courts have been, and remain, reluctant to accept challenges to the substance of NCAA enforcement decisions; the Oliver case being one of the few exceptions. See e.g. Justice v. Nat'l Collegiate Athletic Ass’n, 577 F. Supp. 356 (D. Ariz. 1983) (upholding NCAA sanctions for recruiting violations and denying student-athletes’ constitutiona land antitrust claims); but see Oliver v. Natl. Collegiate Athletic Assn., 2008-Ohio-7144, 155 Ohio Misc. 2d 1, 920 N.E.2d 190. Further, membership must tread lightly in either going to court to challenge a decision or, more likely, abiding by a court ruling overturning a NCAA decision pursuant to injunctive relief sought by a student-athlete, since the NCAA reserves the right to punish a member institution should an appellate court later reverse alower court’s ruling overturning a NCAA decision. See, e.g. Nat’l CollegiateAthletic Ass’n v. Jones, 1 S.W.3d 83 (Tex. 1999) (holding that the NCAA’s appeal from an injunction granted at the trial court level was not moot as to the applicability of retroactive penalties). Challenges to the NCAA administrative law process are for when the NCAA is not following its own “fair process.” So, the question applicable to Penn State is whether the NCAA did, in fact, follow its own fair process. 

The fair process established by the NCAA can be found in Article 32. From start to finish, including investigations and hearings, the infractions process takes over a year in most cases. The process includes a preliminary investigation, the possibility of summary-disposition, notice of inquiry, notice of allegation, institution investigation, written responses to the allegation, hearing, final Committee report and possible appeal. For example, allegations of impermissible recruiting and student-athletes receiving benefits from professional agents at the University of South Carolina first came to light in July 2010. The Public Infractions Report was issued two years later on April 27, 2012. On the other hand, the overall process with Penn State took about nine months. 

However, with Penn State, the NCAA did not follow the infractions process established in Article 32. So, does the NCAA's failure to follow its already-established process of investigation, enforcement, hearing, deliberation, decision, and possible appeal violate the fair process that it is bound to follow? Yes and no. A "quick look" analysis reveals that punishment was delivered by the NCAA President without regard for the existing NCAA enforcement structure; something not specifically articulated in NCAA bylaws, and certainly not something for which we see any precedent. However, the only party with standing to challenge the NCAA's declaration is Penn State, and Penn State consented to this punishment; ergo we now have a moot challenge.

As someone who regularly represents parties in NCAA processes, knowing what information is public thus far, if I am Penn State, I do not think going through the infractions process would have been a better process for the Penn State community. Sure, the punishments might not have been as severe, but Jerry Sandusky's actions were not just corruptions of the NCAA's principles of amateurism, competitive fairness, and academic integrity, but acts of profound evil. As such, as the infractions process drags on, Sandusky's acts and any cover-up of those acts would be continually relived. Further, there is a cost in terms of counsel like myself to be involved in the process. Let's go back to the South Carolina example. The school said that it spent $535,667.50 in connection with the NCAA investigation. Finally, as to those who believe that Penn State would find relief only at the appellate level in the infractions process, there is no guarantee that Penn State would have taken the case this far. My friend, Jerry R. Parkinson, who served as a member of the NCAA Division I Committee on Infractions from 2000 until very recently (including service as the committee’s first coordinator of appeals), cited in a law review article that only thirty-four of the ninety major infractions cases that went to a hearing from 2000 to 2009 were appealed. 

While I believe the less controversial route would have been an expedited infractions process that would necessarily include a summary disposition (the July 12, 2012 Freeh Report helps in this regard), for the Penn State community to heal, I have to think ripping the band-aid off quickly in the manner done here with Emmert's decision yesterday, while not ideal, is preferable to a drawn out infractions process.

Reposted with permission - orginally posted July 25, 2012 on Sports Law Blog 

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The iPad is becoming more common and much less a novelty in the everyday practice of law.  It’s advantages in the courtroom are highly praised.  The ability to make a voluminous file highly portable is unmatched.   The out of office connectivity give us an ability to work remotely and on a moment’s notice that has never before existed.  Yet it still is criticized for its inability to do the one thing that lawyers do most: draft documents.  In the iPad world, this is know as “generating content.”  This article in Time by Harry McCracken addresses the content creation “problem” and raises some interesting points. 

Do you use your iPad for more than quick email responses?  What drafting obstacles do you have with the iPad?  Is speech recognition on mobile devices like the iPad the end of the Dictaphone?

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