Jonathan B. Wilson

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Jonathan Wilson is an Atlanta attorney with more than 19 years of experience guiding growing private and public companies.  He currently serves as the outside general counsel of several companies and is the former general counsel of (NASDAQ: WWWW) and EasyLink Services (NASDAQ: ESIC).  He is also the founding chair of the Renewable Energy Committee of the American Bar Association's Public Utility Section.

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Sunday, April 29, 2007

Oklahoma Govenor Vetoes Tort Reform
Reversing a number of campaign pledges, Oklahoma Governor Brad Henry on Saturday vetoed S.B. 507, a measured passed by both houses of his legislature to reform Oklahoma's tort law.
Glenn Coffee, the Republican Co-President pro-tem of the Senate said, "The governor missed a grand opportunity to send a message to the nation that Oklahoma is pro-jobs, pro-doctor, and pro-business.  Instead, he sent a message that millionaire trial lawyers are still running the show.”
7:53 am edt 

Thursday, April 26, 2007

Oklahoma Tort Reform Roundup

Oklahoma's tort reform bill, S.B. 507, is now sitting on Governor Brad Henry's desk. The Governor has stressed the need for tort reform several times in the past, in 2004 outlining 28 "key areas" that needed to be reformed in the law.

According to the National Association of Manufacturers' blog, S.B. 507 addresses 18 of those 28 "key areas". The Oklahoma Chamber has a detailed fact sheet on the bill here

The Governor's office has not yet made any statements concerning S.B. 507.

Cross-posted at PointOfLaw

8:18 am edt 

Monday, April 23, 2007

HIPAA's Absurd Results

Walter Olson describes some of the outrageous outcomes that HIPAA's obsessive treatment of "privacy" creates:

Under HIPAA, it would have been unlawful for the psychiatric hospital that treated student Cho Seung-Hui, who shot 32 people at Virginia Tech university this week, to compare notes on his therapeutic progress, or lack thereof, with his counselors or dean. So effectively did the various privacy laws bottle up information that even a Virginia Tech official tasked with the monitoring of problem students is said to have known little or nothing about Cho’s lurid history of psychotic symptoms until after the fact.

* * *

Infringement of medical privacy is a lamentable thing, but experience soon suggested that other things can be even worse. After a Washington, D. C. pedestrian was fatally struck by a car, his family learned nothing of it for two weeks until a $17,000 hospital bill arrived in the mail. In rural Colorado, where ambulance dispatchers had been casually accustomed to naming the family whose home needed a run (get over to the Wilson ranch, Vern is having chest pains) it was thought advisable to rely on unfamiliar street addresses instead, leaving drivers to fumble.

Much social collaboration with the aim of better care has become legally hazardous. Doctors have been reported hesitant to draw relatives aside with advice that elderly parents need help with pill-taking or ought to stop driving. Opinions differ on whether a doctor can safely ring up other practitioners to check whether a new patient reporting unverifiable pain is known for a pattern of narcotic-seeking.

11:17 am edt 

Jonathan Kellerman on the Virginia Tech Shooter

The psychologist and prolific novelist opines that the law makes it too difficult to have a person involuntarily committed: 

Diagnosis from afar is the purview of talk-shows hosts and other charlatans, and I will not attempt to detail the psyche of the Virginia Tech slaughterer. But I will hazard that much of what has been reported about his pre-massacre behavior--prolonged periods of asocial mutism and withdrawal, irrational anger and hatred, bizarre writing and speech--is not at odds with the picture of a fulminating, serious mental disease. And his age falls squarely within the most common period when psychosis blossoms.

No one who knew him seems surprised by what he did. On the contrary, dorm chatter characterized him explicitly as a future school-shooter. One of his professors, the poet Nikki Giovanni, saw him as a disruptive bully and kicked him out of her class. Other teachers viewed him as disturbed and referred him for the ubiquitous "counseling"--an outcome that is ambiguous to the point of meaninglessness and akin to "treatment" for a patient with metastasized cancer.

But even that minimal care wasn't given. The shooter didn't want it and no one tried to force him to get it. While it's been reported that he was involuntarily committed to a "Behavioral Health Center" in December 2005, those reports also say he was released the very next morning. Even if the will to segregate an obvious menace had been in place, the legal mechanisms to provide even temporary "warehousing" were absent. The rest is terrible history.

That is not to say that anyone who pens violence-laden poetry or lets slip the occasional hostile remark should be protectively incarcerated. But when the level of threat rises to college freshmen and faculty prophesying accurately, perhaps we should err on the side of public safety rather than protect individual liberty at all costs.

If the Virginia Tech shooter had been locked up for careful observation in a humane mental hospital, the worst-case scenario would've been a minor league civil liberties goof: an unpleasant semester break for an odd and hostile young misanthrope who might've even have learned to be more polite. Yes, it's possible confinement would've been futile or even stoked his rage. But a third outcome is also possible: Simply getting a patient through a crisis point can prevent disaster, as happens with suicidal people restrained from self-destruction who lose their enthusiasm for repeat performances.

8:20 am edt 

Oklahoma Passes Tort Reform
The Oklahoma legislature last week passed a comprehensive tort reform bill which, among other things:
  • reforms the rule of joint and several liability among joint tortfeasors;
  • caps punitive damages in most cases (greater of two times compensatory damages or $500,000);
  • requires opt-in class membership for most class actions;
  • restricts the admission of expert testimony and provides standards for the qualification of expert witnesses; and
  • creates a general immunity for volunteers and charitable organizations.
The measure has been sent to the Governor for approval.  Oklahoma's Governor, Brad Henry, has not yet taken a position on the bill. 
7:56 am edt 

Tuesday, April 17, 2007

Suit Against ADA Mill
Morse Mehrban, an attorney with a history of filing ADA suits to extract cash settlements, has been sued along with some of his clients in a new case in Orange County, California:
A business owner is suing an Anaheim man and his lawyer for filing at least 123 lawsuits that allege disabled-access law violations, saying the practice is "an effort to extort a quick and dirty settlement."
In a lawsuit filed last week in Orange County Superior Court, Huy Dinh accuses David Gunther and Morse Mehrban of filing "frivolous lawsuits" to extort money from small businesses. Dinh, is suing alleging malicious prosecution, fraud and abuse of process, and seeks punitive damages.
Dinh was sued last year by the pair, who alleged a work station at his business was too high for disabled persons. A jury sided with Dinh, according to the lawsuit.
Overlawyered has background coverage of other Mehrban suits.  More background from the OC Register here
8:19 am edt 

In Praise of Lawyers
Randy Barnett writes in today's WSJ:
The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.
Our criminal justice system does not rely solely on the fairness of the police and prosecutors to get things right. In every criminal case, there is a professional whose only obligation is to scrutinize what the police and prosecutor have done. This "professional" is a lawyer. The next time you hear a lawyer joke, maybe you'll think of the lawyers who represented these three boys and it won't seem so funny. You probably can't picture their faces and don't know their names. (They include Joe Cheshire, Jim Cooney, Michael Cornacchia, Bill Cotter, Wade Smith and the late Kirk Osborn.) That's because they put their zealous representation of their clients ahead of their own egos and fame. Without their lawyering skills, we would not today be speaking so confidently of their clients' innocence.
These lawyers held the prosecutor's feet to the fire. Their skillful questioning at pre-trial hearings revealed the prosecutor's misconduct that eventually forced him to give up control of the case and now threatens his law license. They uncovered compelling exculpatory evidence and made it available to the press; they let their clients and their families air their story in the national media.
There is no rule book for what prosecutors call "heater" cases like this one. Navigating the law, politics and publicity in such case is an art not a science. These fine lawyers displayed all the skills and tenacity that made me want to be a criminal trial lawyer after watching the television series, "The Defenders," when I was 10 years old.
Do you suppose that lawyers like these gained their skills only representing the innocent? Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone.
8:06 am edt 

Thursday, April 12, 2007

On Civility
Daniel Henninger, commenting on the Bloggers' Code of Conduct, writes on the virtues of civility:
After news spread of the O'Reilly-Wales proposal, an (needless to say) angry battalion of bloggers counterattacked, crying "censorship." Now we're beyond the merely obnoxious culture of chin-dribble. Now we're talking politics and power. So the cry goes up: You can't tell us how to talk. That's "censorship."
The censorship claim is often made by political Web players who want to be "free" to use whatever means will achieve the end of driving their opponents over the cliff. Consider the Congressional Black Caucus. Its affiliation with Fox News to conduct presidential debates was fire-bombed recently on "progressive" Web sites. Example: "Guess it takes a whole lot of grease to fry CBC's chicken." Scared, the three major Democratic presidential candidates pulled out. Censorship? Try doublespeak. The strategy of deploying charged and hyper-aggressive language is now evident: First intimidate one's targets, then coerce them--into conformity or silence. And do it always under the banner of free speech and democracy.
There is no evident political coloration to the broader concern that's arisen about conduct on the Web. The anti-civility trolls are in restaurants, stadiums, theaters, planes, church, the airwaves, in dreams. This is merely a recognition that rules of the road can indeed enhance, not suppress, the flow of truly free expression and minimize the already ample frictions of daily life. Better late than never.
Henninger's argument, consistent with O'Reilly's thesis that "free speech is enhanced by civility", should ring true to the ears of conservatives in the mold of Edmund Burke.
Burke's democracy was not the rule of the mob but the rule of those who embraced the rights given them by a social constitution that was developed over time along with the responsibilities concomitant with those rights.  Too many today think that free speech means the freedom to shout anything, any time, any place. 
Civility is not censorship.  Civility is the recognition in others of value that merits deference, politeness, consideration and, at times, silence.  Speech isn't free if it must be shouted over the din of the mob.  Free speech has value if it can be addressed to an audience that will consider the speech on its merits.  Civility is the process that allows speech to be heard. 
The bloggers code of conduct is onto something here.  I hope that its advocates can find a way for its underlying principles to take root in our society at large. 
10:36 am edt 

Tuesday, April 10, 2007

How McCain Can Woo Conservatives
I don't pretend to be a political consultant, but I will offer some advice to the Senator from Arizona who wants to be the GOP nominee: admit that McCain-Feingold was a mistake.
When you ask conservatives why they cannot see John McCain as one of their own a consistent answer you hear is McCain-Feingold.  The law was intended to clean up a campaign fundraising system that is uniformly viewed with suspicion but, for conservatives, the McCain-Feingold cure was worse than the disease.
The law restricts how much money individuals may donate to political campaigns and creates loopsholes to those rules that carry the potential for too much mischief. 
As Brendan Miniter opines in today's WSJ, the law has not accomplished its goal of driving money out of politics.  Rather, the opposite has occurred.  In every election since passage of the law campaign spending has skyrocketed.  At the same time, there is still no instant Web-reporting of donations and loophole organizations (like 527 groups) can spend as much as they like on an election without any disclosure or accountability.
One measure of character is the ability to admit mistakes.  If John McCain would admit that the campaign finance law that bears his name was a mistake, it would go a long way towards mending his reputation with conservatives. 
8:10 am edt 

Monday, April 9, 2007

Civility on the Web
Today's NYT covers an emerging debate on the value of "civility" on the Web and the role of anonymous speech.  A group of bloggers has put together a proposed code of conduct for civil speech in forums and on blogs that discourages anonymous posts.
It quotes Tim O'Reilly saying, “That is one of the mistakes a lot of people make — believing that uncensored speech is the most free, when in fact, managed civil dialogue is actually the freer speech . . . Free speech is enhanced by civility.”
While there is an historic argument for anonymous speech, and I wouldn't favor government regulation to stop it, in my experience anonymous speech is both less valuable that non-anonymous speech but also more potentially dangerous.
Anonymous speech, like the kind discussed earlier involving law student rumors, has the potential to damage lives and careers.  Victims of that speech have little recourse, absent expensive litigation, to uncover the original speaker, to dispute the facts, to attack bias and (where appropriate) to seek redress for damation or libel. 
At the same time, as any Internet reader knows, you can find all manner of trash on the Internet.  Content is only as reliable as its author.  An astute reader will only trust content that comes from a trusted source and an anonymous source cannot be verified or trusted.
If discouraging anonymous posts improves the quality of information and debate on the Web it would be a welcome change. 
9:10 am edt 

Could Conservatives Win in Britain; Will Scotland Secede?
William Rees-Mogg ponders the latest polls on upcoming elections in England and in Scotland and the possibility that the Conservative Party might form a government in England and the Scottish National Party might take the majority in the Scottish parliament.
Among the SNP's long-avowed aims is to restore Scottish independence.  (Scotland was united with England under the Acts of Union in 1707). 
While Scottish independence is not a topic of much discussion in the U.S., it is hotly debated in the U.K.  One of the issues that grates on the nerves of many Scots is the sharing of revenues with the government in Westminster.
Substantial funds flow from the North Atlantic oil and gas fields, most of which are mined by businesses located in England although the reserves are geographically located in Scotland.  An independent Scotland, some claim, might be financially better off as the state would be better-positioned to take a larger share of those oil and gas revenues. 
9:00 am edt 

Tuesday, April 3, 2007

Colorado Examines Loser-Pays
Colorado Senate Bill 117, recently passed by Colorado's lower house as well and expected to be forwarded to the Governor soon, would amend Colorado's existing labor laws in a way guaranteed to increase litigation in that state.
Colorado's current law awards attorneys' fees in an employment discrimination case to the prevailing party -- plaintiff or defendant.  By doing so it ensures that parties proceed to litigation only if they are sufficiently confident in victory to bear the risk of paying their opponent's attorneys' fees. 
S.B. 117 would replace that provision with a unilateral fee-shifting scheme:  winning employees would get their fees but prevailing employers would have to pay their own way. 
The Rocky Mountain News accurately predicts what would result if this bill becomes law:
[M]ost plaintiffs are represented by lawyers who work on a contingent- fee basis. They often don't even expect to go to court; all they're looking for is a settlement.  . . . Under SB 117,  . . . lawsuits will multiply because there will be little downside to bringing relatively meritless cases. You still might get a settlement. Meanwhile, employers will have an incentive to settle even when they know they're in the right. That's because their legal bills, which they'll have to pay even if they win, could very well exceed the cost of settlement - and in some cases most certainly will.
7:31 am edt 

Fabrice de Pierrebourg writes:
On Dec. 14, 1999, American border guards intercepted Ahmed Ressam as he tried to cross the U.S.-Canada border. In a spare tire well of his rented car, they found nitroglycerin and four timing devices. The target of this would-be terrorist, who came to be known as the Millennium Bomber, was Los Angeles International Airport.
But just as important as his destination was his origin: the French-Canadian city of Montreal, which sits just six hours north of New York City by car on I-87.
The arrest revealed to the world the existence of an active Islamic jihadist cell, then baptized the Montreal cell. It was in this Quebec metropolis that Ressam had stirred up his plot against the United States. Montreal was where he had been recruited into a radical Salafist mosque to subsequently train in an Al Qaeda camp in Afghanistan.
Eight years later, New Yorkers must face a startling, sobering reality: The threat of Muslim fundamentalism in Montreal is only growing. If left to fester, it could put New York City in the crosshairs of another major attack.
7:21 am edt 

Muslim Moderates Against Violence
One writes:
[I]t is ironic and discouraging that many non-Muslim, Western intellectuals--who unceasingly claim to support human rights--have become obstacles to reforming Islam. Political correctness among Westerners obstructs unambiguous criticism of Shariah's inhumanity. They find socioeconomic or political excuses for Islamist terrorism such as poverty, colonialism, discrimination or the existence of Israel. What incentive is there for Muslims to demand reform when Western "progressives" pave the way for Islamist barbarity? Indeed, if the problem is not one of religious beliefs, it leaves one to wonder why Christians who live among Muslims under identical circumstances refrain from contributing to wide-scale, systematic campaigns of terror.
7:16 am edt 

Monday, April 2, 2007

City of Atlanta Sponsors "Hate Art"
Among the works of "art" displayed in City Hall East in downtown Atlanta is a piece called "Formula for Hate" by Decatur, Georgia resident Alvaro Avilar.  The piece features a series of U.S. flags printed over the visible text, "Politically its OK to have the white man" and "Is it OK for me to have if I've been a victim."
Two Atlanta police officers have filed a grievance, claiming that the City's display of the piece creates a discriminating work environment for them.
While I would question the merits of a civil suit along those lines, the City's decision to display the work shows a stunning lack of understanding and incredible political stupidity.
Only a City Council that is utterly tone deaf to the offensiveness of these statements could allow such artwork a public forum.  Why would "the city too busy to hate" sponsor art that question when it is "OK" to hate? 
9:44 am edt 

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Jonathan B. Wilson is an Atlanta attorney at the law firm of Taylor English Duma LLP.  Jonathan B. Wilson provides legal advice to investors, companies and business executives involving corporate law, securities law, SEC matters, intellectual property, website and Internet legal issues, start-ups, limited liability companies, partnerships, 1934 Act matters, outsourcing, strategic alliance agreements, contracts, and other matters of importance to growing private and publicly-traded companies.