Author: TSA Press

Several months ago, we all learned about one of the biggest attorney shakedowns ever perpetrated.  Indeed, this website and many news outlets reported that lawyer Michael Avenatti allegedly attempted to shake down Nike for millions of dollars for claims relating to illicitly paying college athletes.  Rather than comply with Avenatti’s requests, Nike got the feds involved, and Avenatti has been charged with a number of crimes related to this alleged scheme.

Many members of the public and numerous legal practitioners were left scratching their heads about this whole ordeal.  Surely the line between diligent representation and illegal conduct is at least somewhat gray, and many lawyers have probably seen tactics like those allegedly used by Avenatti employed at some point or another.  Of course, there is a major difference between pursuing even frivolous claims and allegedly extorting a major company into forking over millions of dollars to prevent harmful information from coming to light.

In any case, I was recently on the receiving end of a nasty attorney shakedown.  In addition, I am willing to bet that most attorneys have been subject to an effort by another lawyer to force a client to fork over money in order to eliminate annoying and somewhat meritless claims.  Although I do not want to condone attorney shakedowns, and Avenatti’s story broke months ago, recently dealing with an attorney stickup myself has shown me a few things lawyers can learn from Avenatti’s ordeal.

Don’t be greedy

The less money that is requested in an attorney shakedown, the more likely a stickup will succeed.  Of course, if you demand millions of dollars from a major company like Avenatti allegedly did with Nike, the company is probably going to do everything in its power to oppose you.  However, if you simply demand a small amount of money that is less than a defendant would spend litigating a case, and refrain from illicit tactics, you are much more likely to succeed.  Indeed, people usually call this amount “nuisance value” and if this sum or less is requested in an attorney shakedown, it is more probable that the stickup will be successful.

I recently settled a matter for peanuts, since the attorney only requested a sum that was far below what I considered to be nuisance value.  Even though I had extremely strong defenses, it was much cheaper to just pay off the lawyer than to spend money litigating the case.  Pretty much every bank robbery movie I’ve ever seen including “Point Break” (the original one!) and I think “Baby Driver” and “Going in Style” advises that bank robbers should be satisfied with the money in the drawers and not waste time going for more money in the vault.  Although this is admittedly not the best analogy, if an attorney demands a small enough amount of money, a lawyer shakedown is more likely to succeed without the other party doing much to oppose a claim.

Stick to Legal Causes of Action

In order to have the best chances of success in an attorney shakedown, lawyers should stick to discussing their legal claims and not tangential effects legal action could have on a defendant.  For instance, during his shakedown of Nike, Michael Avenatti allegedly discussed how disclosing damaging information could have a substantial impact on the market capitalization of the company.  However, it was unclear how this was related to meritorious causes of action that could be brought in a legal action.  In addition, threatening to cause greater harm to a defendant other than the headache of litigation will usually motivate individuals and companies to do everything in their power to oppose a claim.

In every instance I have been on the receiving end of an attorney shakedown, the attorneys always stuck to discussing their legal causes of action.  Sure, some of the lawyers mentioned the expense of litigating a case, but this is still related to the legal claims that will be prosecuted by the lawyer conducting the shakedown.  So long as attorneys remember that they are legal professionals, and should focus on their legal claims, they will have a greater chance at success with their shakedown.

Due Diligence

Some attorneys who conduct lawyer shakedowns are pretty lazy, and they just want a quick recovery without having to do much work.  If the attorney has to spend hours preparing legal papers, paying filing fees, and dealing with motions to dismiss, it might not be worth it for the lawyer to even go the distance with the shakedown.  When I am on the receiving end of a attorney stickup, I always ask to see a draft complaint before I consider settling a matter.  If the attorney refuses to provide me with a draft complaint, I can usually tell that they are full of malarkey and will not go the distance with any claims.

As a result, it is important that attorneys executing a lawyer shakedown fully prepare to file suit.  These attorneys should draft all required legal papers, conduct necessary research, and otherwise take all advisable steps to go the distance with a claim.  I am not sure how much work was done in Avenatti’s case, but working up a matter will make an attorney shakedown much more likely to succeed.

In the end, one of the realities of legal practice is that attorneys will oftentimes attempt to threaten others with annoying, and sometimes meritless, legal claims to make a quick buck.  Of course, there is a difference with the type of conduct attorneys commonly see from adversaries, and the allegedly illicit conduct perpetrated by Michael Avenatti.  In any case, by keeping a few things in mind, lawyers can ensure they are more successful when executing an attorney shakedown.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.

Former special counsel Robert Mueller is testifying in front of Congress. Congresspeople are speaking fast, Mueller has said, “I refer you to my report,” approximately 20 times in the first hour. Everything is going according to this (extremely stupid) plan.

I am watching, and tweeting. As are others. Here’s some of what people are saying:

I’ll be here all day. I’ll keep updating this post.

(Sorry, I just needed some Beyonce.)

Meanwhile… in Puerto Rico, this is how they roll:

AND NOW FOR HEARING NUMBER TWO. This time in front of House Intel.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Here’s what we already knew about the state of affairs at the Biglaw firm of LeClairRyan — partners are leaving in droves. We’ve reported on this extensively in the past, what with the firm losing almost 10 percent of its headcount in 2018 due to lateral moves, and partners are continuing to depart for greener pastures in 2019. Indeed, its been reported that at the end of 2015 the firm had 156 equity partners, but by June of 2019, that number was down to 45.

The firm responded to these departures by reorganizing around “law firm 2.0” and embarked on a partnership with alternative legal service provider, UnitedLex. But there’s been some indictions that law firm 2.0 wasn’t an immediate cure for what ailed the firm — last month we reported that the firm was barred by its lender from returning the capital contributions of former partners. And the rumors about the future of the firm have continued to swirl.

Now Above the Law is hearing from multiple sources that the firm issued Worker Adjustment and Retraining Notification (WARN) Act mass layoff notices earlier this week to staff. That federal law requires employers with 100+ to provide a 60 calendar-day notification of mass layoffs of employees. So, yikes.

What happens next is still speculation. Will the firm formally dissolve? Attempt to spin of into a new entity? What we have heard from folks on the ground is that LeClairRyan attorneys and other professionals are eager for a way out. Just today, Fox Rothschild confirmed they were taking on a 15-attorney group from LeClairRyan — the aviation group led by Mark Dombroff. With the writing seemingly on the wall, you have to imagine more departures are imminent.

Above the Law reached out to LeClairRyan for comment but have received no response. We will update the story should they provide a comment.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

While the fight for President Donald Trump’s federal income tax returns continues, his state tax returns could be an easier target.

When the Democrats took control of the House of Representatives earlier this year, one of their top priorities was to get a copy of the president’s tax returns. And if they were to be handed over to the House Ways and Means Committee, it is presumed that they would be leaked to the public.

Last April, the Democrats formally demanded Trump’s tax returns from 2013 to 2018 pursuant to Section 6103(f) of the Internal Revenue Code. That section requires the IRS to give a copy of an individual’s tax return to the chairman of the House Ways and Means committee. To no one’s surprise, Treasury Secretary Steven Mnuchin politely told them to pound sand. He argued that the Democrats’ request was unconstitutional because it had no legislative purpose.

But instead of pounding sand, the Democrats pounded the courthouse doors. A few weeks ago, the House Ways and Means Committee sued to enforce a subpoena demanding the tax returns. But no matter who wins, the other side will appeal with the likelihood that the case will end up before the Supreme Court. And no one knows whether the returns will be released before the 2020 presidential election.

Days after the lawsuit was filed, the state of New York passed Senate Bill S5072A also known as the TRUST Act. This would require the New York Department of Taxation and Finance to turn over an individual’s state tax returns at the written request of the House Ways and Means Committee, the Senate Finance Committee, or the Congressional Joint Committee on Taxation, so long as the request had a legitimate legislative purpose.

Yesterday, President Trump filed a lawsuit against the House Ways and Means Committee, the New York Attorney General, and the Commissioner of the New York State Department of Taxation and Finance. The complaint seeks a permanent injunction preventing the president’s state tax returns from being given to Congress. The complaint cites that the committee has no legislative purpose for seeking Trump’s state tax returns. Also, the TRUST Act violates the First Amendment because it is seen as retaliation for President Trump’s policy speeches.

What will Trump’s state tax returns show? For starters, his total income for the year. The New York State Tax Returns — like most state tax returns — require the disclosure of income reported on the federal returns. This includes wages, dividends, business income, capital gains, and rental income. The return also requires the disclosure of the federal adjusted gross income.

Also, while the state tax returns do not show the exact amount of Trump’s federal income tax, it is possible to make a reasonable guess based on the numbers disclosed on the state tax returns. The New York tax returns have a form for itemized deductions and they look very similar to the federal Schedule A. The New York form allows deductions for charitable donations, mortgage interest paid, as well as state and local taxes. So with the adjusted gross income and itemized deduction amounts known, it is possible to calculate the federal taxable income with a reasonable degree of certainty.

Line 60 of the state tax returns will show if any donations were made to specific causes, such as the 9/11 Memorial, Prostate Cancer, or for Missing and Exploited Children. In case anyone was still curious about Trump’s generosity.

But the state tax returns will not show how much federal taxes were paid. They also won’t show whether he was eligible for (and took) any federal tax credits.

So will this lawsuit succeed? I will defer this to those who are more familiar with Congress’s subpoena powers. But I will note that Section 6013 of the Internal Revenue Code only governs the confidentiality rules of the federal income tax returns. And considering Congress’s very broad investigatory powers, including the use of subpoenas, requesting state tax returns is fair game.

On the other hand, it is well known that the TRUST Act was designed solely for the purpose of disclosing Trump’s tax returns and his personal financial information. While the legislative text does not mention Trump by name, the House Ways and Means Committee is not seeking anyone else’s tax returns at the moment. The lead sponsor of the TRUST Act, Senator Brad Hoylman, had this to say:

The State Assembly should responsibly and promptly move forward and take up the measure because no one is above the law.

House Ways & Means Chair Richard Neal formally requested President Trump’s federal tax returns earlier this month, setting an initial deadline of April 10. The White House also failed to comply with the second request, set for April 23. Earlier this week, Treasury Secretary Steven Mnuchin formally denied the committee’s request.

Under New York State tax law, sharing state tax return information is prohibited, except under certain delineated circumstances. The TRUST Act would create a new exception to authorize the sharing of state tax returns with a requesting Congressional committee when the request is made in the furtherance of a legitimate legislative purpose.

New York is a solid blue state and their residents would love to see Trump lose in 2020 by any means necessary. They are particularly upset because the new tax law limiting state and local tax deductions to $10,000 per year resulted in higher tax bills for many of their high-income residents.

I am almost certain that once the TRUST Act became law, a copy of Trump’s state tax returns has been prepared waiting for the formal request from the Ways and Means Committee. There will be no bureaucratic delays. The request and the returns can be sent by email. The exchange can be done in a matter of seconds. This can be crucial since the returns must be released before the 2020 presidential election.

It could be argued that such a narrowly tailored law had no purpose other than to harass or humiliate someone. This is not a legitimate legislative purpose and has the effect of punishing someone for their speech and beliefs. The federal and state governments share tax information for investigative purposes, but these are usually for suspected underreporting of taxes or possible criminal tax evasion.

What is surprising to me is that the New York state tax returns have not been leaked yet. I have to commend the New York Department of Taxation and Finance’s security procedures as I am sure there are a few people inside the agency who would be very tempted to leak the returns. For the good of the country, of course.

While a state tax return won’t disclose everything, it will disclose Trump’s total income and what his federal tax bill might be. Whether this will have an effect on President Trump’s approval rating or the 2020 presidential election remains to be seen.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

There was a senator, I think it was after my pancreatic cancer, who announced, with great glee, that I was going to be dead within six months. That senator, whose name I have forgotten, is now dead himself, and I am very much alive.

— Justice Ruth Bader Ginsburg, 86, recalling the words of the late Senator Jim Bunning (R-KY), amid giggles, during a wide-ranging interview with Nina Totenberg, NPR’s legal affairs correspondent, where she discussed her health. In 1999, Ginsburg underwent surgery for colorectal cancer; in 2009, she underwent surgery for pancreatic cancer; and in 2018, she underwent surgery for lung cancer.

Less than two weeks ago, Justice Ginsburg attended a conference with the late Justice John Paul Stevens, who retired from the Supreme Court at the age of 90. While traveling together, they had the following conversation: “I said that my dream is that I will stay at the court as long as he did. And his immediate response was, ‘Stay longer!’”

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Wow. I just finished reading the new article in New York Magazine detailing the sex life and scandal of Harvard Law School professor Bruce Hay, and to say my mouth is agape is an understatement.

The article details Hay’s interactions with two women, Maria-Pia Shuman and Mischa Haider, which began when Shuman picked Hay up in a hardware store in 2015. What may have seemed like a standard start to a relationship — though it should be noted at the time Hay met Shuman he was living with his ex-wife Jennifer Zacks and co-parenting their children — over a four year period it devolved:

Over the next four years, the law professor would be drawn into a “campaign of fraud, extortion, and false accusations,” as one of his lawyers would later say in legal proceedings. At one point, Hay’s family would be left suddenly homeless. At another, owing to what his lawyer has described as the “weaponiz[ation] of the university’s Title IX machinery against Hay,” he would find himself indefinitely suspended from his job. He would accrue over $300,000 in legal bills with no end to the litigation in sight. “Maria-Pia and Mischa want money,” Hay told me last summer, “but only for the sake of squeezing it out of people — it’s the exertion of power.”

The article also contains a lot of details, maybe even some you don’t want, about Hay’s sex life. He says he had sex with Shuman twice, and though he didn’t ejaculate, found himself in a paternity situation:

Six weeks after they broke off contact, Shuman called Hay to tell him she was pregnant with his baby. She hadn’t had sex with another man in the past year, she said. Hay was stunned; he hadn’t ejaculated during either of their encounters, a side effect of his medication. But he understood that pregnancy was possible, if rare, without orgasm.

Soon after Hay was told he was the father of Shuman’s unborn baby, he learned she was moving to Cambridge and living with Haider, a trans woman Shuman called her “soul sister.” When Hay met Haider he says he had “a protective feeling for her” and, among other things helped Haider, who was a physics graduate student at Harvard, with her writing. Though Hay says the relationship with Haider wasn’t sexual, it was increasingly close:

Hay believed he’d identified a kindred spirit in Haider, so he was sensitive to her emotional state. They confided in each other about their depression and suicidal thoughts. Hay had been molested as a teenager, and he told Haider about the experience and the lingering trauma from it. Hay also struggled with drinking. He insists his friendship with Haider was more familial than romantic: “It wasn’t uncommon for us to say ‘I love you’ in texts. I just offered Mischa as much support as I could.”

The story gets even more convoluted from there, so I’m just going to hit the high (low?) lights. He says Shuman wouldn’t put him on the baby’s birth certificate because he was still in a relationship with Zacks. When Zacks eventually found out about the women and blocked their number, Hay says they came to the house he shares with Zacks and police had to be called. Hay even says Shuman and Haider orchestrated a complex scheme where they moved his family’s stuff out of their house, created fake lease documents, and moved into the house themselves. Then there was the time Hay says they hit his car with a Zipcar they rented. In May of 2018, after threatening to do so for a while, Haider filed a formal Title IX complaint against Hay with the university. (Hay is not currently teaching at Harvard while the Title IX investigation is ongoing.)

Hay has hired attorney Douglas Brooks to help disentangle him from this mess. As it turns out, Brooks has another client “Richard Roe” who Shuman said was the father of her son — the same son Hay believed he was the father of — which led them to more men, “John Poe” and “John Doe,” who have similar stories to tell.

With the university’s Title IX investigation ongoing, both sides have filed lawsuits:

Both sides have now filed suit against each other. In their complaint against him, Shuman and Haider claim he sexually assaulted Shuman and groped Haider and ejaculated on her while she slept, all of which he denies. After Hay filed his suit against them for the years of harassment, he finally asked for a paternity test. So far, they’ve refused. He hasn’t seen the baby since 2017, when the child was a year and a half old.

The women didn’t speak to New York for the story but denied most of Hay’s story saying it’s “a fantastical tale that conjures stereotypes and nativist tropes to exact revenge against Mischa Haider for filing a Title IX complaint against him.”

We may never know exactly what happened between Hay and Shuman and Haider. But, as even he acknowledges, it may be “ridiculous” for him to continue teaching the Harvard Law class on “Judgment and Decision-Making.”

The Most Gullible Man in Cambridge [The Cut]

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

The southern African country is currently grappling with rocketing inflation, power cuts and shortages of everything from fuel and foreign currency to bread and medicine, prompting street protests earlier this year.

“Macro-economic changes… have resulted in erosion of disposable incomes and reduced consumer spending,” Delta, which is 40%-owned by Anheuser-Busch InBev, the world’s largest brewer, said in a trading update.

In a bid to tackle some of its economic problems, President Emmerson Mnangagwa’s government last month ended a decade of the use of the U.S. dollar and reintroduced a local currency, whose rapid loss of value pushed inflation up 175.66% in June.

In addition to the drop in lager sales, carbonated drinks revenue slid 79% in the quarter to June 30, Delta said but traditional sorghum beer sales were, however, 2% up in the quarter.

Dollar shortages have also hit the beverage maker, curbing its ability to import packaging materials and concentrates for soft drinks.

Delta reported a 92% increase in total group revenue, but only because the previous period’s reporting was valued in U.S. dollars and at the time there was still a one-to-one exchange rate between the local currency and the greenback. The company did not give a comparison in U.S. dollar terms.

Zimbabwe abandoned its currency in 2008 after hyperinflation hit 500 billion percent, wiping out pensions, savings and any vestiges of confidence in the currency.

After experimenting with a range of different currencies including the greenback and South African rand in the years since, Mnangagwa’s government surprised the market in June by bringing back a national currency. It made an interim unit the sole legal tender, renaming it the Zimbabwe dollar and banning the use of foreign currencies for local transactions.

The Zimbabwe dollar has slipped to an average of 8.9 against the U.S. dollar on the formal market since then, but black market traders said it was fetching around 10 Zimbabwe dollars on Wednesday. (Reporting by Nelson Banya; Editing by Jan Harvey and Emelia Sithole-Matarise)

Post published in: Business

Information minister Monica Mutsvangwa told a post-cabinet briefing on Wednesday that energy minister Fortune Chasi was currently visiting South Africa for energy talks with his South African counterpart.

In the face of the power shortages, Zimbabwe has been importing power from its neighbor South Africa but supplies have been stopped due to debt.

The country recently paid 10 million U.S. dollars towards its 33 million dollars debt to South Africa’s power utility Eskom.

“On the power front, it was reported that the Minister of Energy and Power Development is currently in South Africa for electricity supply negotiations with Eskom.

“The nation will be apprised of the outcome of the negotiations at an appropriate time. In the meantime, Cabinet resolved to set up an Inter-Ministerial Committee to work closely with the Minister of Energy and Power Development in order to facilitate a collective approach in the resolution of the prevailing power and energy supply challenges,” Mutsvangwa said.

She said the committee comprises ministers of energy, information, industry and commerce, tourism, agriculture, mines, and information communication technology.

Zimbabwe’s fuel shortages are due to foreign currency shortages to import the commodity while power supplies have been severely curtailed due to low water levels in Kariba Dam that supplies water to the country’s largest hydro power plant, Kariba.

Post published in: Business

The price of diesel rose to 7.19 Zimbabwe dollars per liter, up from 5.84 Zimbabwe dollars per liter, while that of petrol rose from 6.10 dollars per liter to 7.47 per liter. Operators did not increase fares the last time fuel prices went up on July 12.

Commuter Abednego Kamhoti, who resides in Domboshawa, about 30 km from Harare, said fares had been raised from 3.50 dollars to between 4 dollars and 5 dollars, depending on the time of day.

“Kombi drivers are now charging 4 dollars during off-peak hours and take advantage of the limited availability of transport during peak hours when they charge 5 dollars per fare,” he said.

The fare from Warren Park into the city center, which used to be 2 dollars, is now 2.50 dollars.

ZERA has been periodically hiking fuel prices to keep them in the region of the prevailing foreign currency exchange rate.

Finance and Economic Development Minister Mthuli Ncube said recently that fuel and electricity tariffs would be reviewed because the current pricing model was no longer sustainable.

Fuel prices have gone up several times in 2019, starting with a 150 percent increase in January which saw the price of petrol go up from 1.64 dollars per liter to 3.39 dollars when the local currency was still pegged at par with the U.S. dollar.

Post published in: Business