Claims And Issues

5 ODD ENDS FROM STORY THAT S.S. DELETED 1/6 TEXTS.

    1.    Didn't the Secret Service think that 1/6/21 was an important date to preserve texts?  And  EMails and any communications  in fact?

 

    2.    The Secret Service apparently says that it changed cellphones which caused texts from previous cellphones to be deleted.  The S.S. knew that from changeovers in the past, of course.   Why not save important texts such as 1/6 knowing that the important texts would otherwise be deleted in their cellphone changeover?

 

    3.    Some say that the Secret Service was taken over by The Grievance Boy in the previous administration.  Deleting 1/6 texts, if true, could be  unrebuttable  evidence of that.

 

    4.    An unknown, unnamed person who claimed to be a Secret Service employee apparently said yesterday that what Cassidy Hutchinson testified under oath was not true about the Grievance Boy lunging at the steering wheel and then at an agent in his armored limo on 1/6.  (Just as they counted on, the American corporate media published the S.S. story as if the employee had come forward and testified openly and under oath, of course).

    This is not good enough to contradict Hutchinson's sworn and open testimony.  If 1/6 Secret Service texts would have contradicted the testimony of Cassidy Hutchinson, they would not have been deleted.

 

    5.    Deleted texts do not stay deleted for long. They will be found and published.  It is only a matter of time.

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WHEN SEEING IS not BELIEVING.

When human beings see things, we tend to believe what we see.  That is one reason why eye-witness testimony is so valuable in court.

          Many of the things we see have changed, however.  The things we see now are largely videos produced by someone else, and broadcasts that are made to fit a television screen.

          Videos can be doctored and seemingly, they often are. 

          Broadcasts that are made to fit a television screen necessarily leave anything out that is not photographed by a camera.  This phenomenon is not limited to televisions.  It is familiar to anyone who has taken a picture that could not capture the complete scene of what was being photographed.

          Seeing may not be believing any more.  Or to put it another way, "Seeing is believing?"  Not so much.

          So why do many of us still say it is?

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TIME TO PULL PLUG AND DRAIN DURHAM'S DESTRUCTION, MERRICK & CONGRESS.

DEFUND DURHAM NOW.

Recall that one of the final acts of Bill Barr's tenure in the department of justice was to appoint John H. Durham to investigate whether Democratic lawyers and campaign workers erroneously tied the former guy's organization to a bank in Russia.

          "To date, there has been no publication that he has found any such evidence."  Charlie Savage, Adam Goldman, Michael S. Schmidt and William K. Rashbaum, Special Counsel on Russia Said to be Seeking Charges Against Lawyer, NEW YORK TIMES, Thursday, September 16, 2021, at A17.

          To the contrary.  All the evidence revealed so far says that there is nothing to it.   If Mr. Durham has any hidden evidence, now would be a good time to show it to the grand jury; if he does not have any hidden evidence, now would be a good time for Mr. Durham to shut it down.

          Apparently undeterred by any lack of evidence, and wanting to show something for his expenses, Mr. Durham is reportedly planning to ask a grand jury to indict a lawyer, Michael Sussman.  Mr. Sussman met with the FBI's General Counsel before the former guy was made the Occupant of the Oval Office.

          The idea behind the indictment is that the lawyer lied to the FBI's General Counsel, James Baker, about whether he, the lawyer, was representing a client or not when he met with the General Counsel.  The lawyer, Mr. Sussman, met with the General Counsel to tell the FBI that there was cybersecurity information indicating that the former guy's organization and a Russian bank may have been "pinging" each other's computer servers.  Mr. Sussman told the General Counsel that the information came from a cybersecurity expert or experts.  Mr. Sussman's defense lawyers say that Mr. Sussman was representing a cybersecurity expert when he met with Mr. Baker of the FBI.

          Here is the evidence we know that Mr. Durham has turned up after all this time on the case.  Mr. Baker, the FBI General Counsel, testified under oath in 2018 that he did not remember the lawyer, Mr. Sussman, specifically saying that he was acting on behalf of a particular client when they met together.

          However, not to be shown up as investigators, Mr. Durham's team surfaced some "handwritten notes" written by an unidentified person who supposedly wrote down that Mr. Baker told him that Mr. Sussman said, or did not say, something about representing, or not representing, a client at the time Mr. Baker and Mr. Sussman met.

          This is not admissible; it is not even evidence.  But it doesn't have to be, if the goal is to destroy and not to convict.

          Mr. Durham is also reportedly deciding whether to bring "some sort of action" against Mr. Sussman's law firm, Perkins Coie.  The Perkins Coie firm has been a target of the former guy and his minions for years.  Expect more destruction if Mr. Durham is allowed to continue his campaign.

          In the meantime, Mr. Durham has been operating with the blessing but without any oversight of the current department of justice and the current attorney general, MERRICK GARLAND.  Mr. GARLAND of course "has the authority to overrule Mr. Durham but is said to have declined to" overrule him.  Charlie Savage, et al., NEW YORK TIMES, supra.

          Why is MERRICK GARLAND tolerating this sloppy performative destruction that characterizes Mr. Durham's "investigation"?  The task of the department of justice ought to be to surface evidence that is likely to lead to a criminal conviction.  Until now, perhaps until the advent of the regime of the former guy and of Mr. Barr's reign over the department of justice, the task of the department has never been to surface supposed hearsay for the purpose of destroying political opponents.

          Regardless if he thinks otherwise, MERRICK GARLAND does not come off appearing unbiased or even-handed by tolerating the destruction that Mr. Durham is causing.  MERRICK GARLAND's tolerance of destruction comes off as something much smaller.  Perhaps he should consider resigning if the job of attorney general is beyond his powers.

          Moreover, Mr. Durham's so-called investigation for destruction has not been paid for by the former guy, or by Mr. Barr, or in fact by Mr. Durham.  Federal taxpayers like you and me have paid and continue to pay for this humiliating display of incompetence.  It is past time to defund Durham.

          Defund Durham now.  Call upon your Members of Congress and Senators to act in defense of justice, when the department of justice will not, and tell them to defund Durham now.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

BRING CLOSURE TO JEFFREY EPSTEIN'S VICTIMS.

The victims of Jeffrey Epstein deserve to have questions asked about his death.  This does not mean that he must have been murdered.  It means that questions about his death have not been asked, still need to be asked, and should be asked, including:

• Why was he left alone in his cell when he was on suicide watch?
• Why was he not watched, for that matter? Every person who is on suicide watch is supposed to be checked at least every 30 minutes.  Epstein's guards said they did not check on him for 3 hours.  Why not?
• Epstein had two guards. They both claim to have fallen asleep.  A forensic pathologist is a doctor who investigates deaths under these circumstances.  An expert forensic pathologist who specializes in unexplained prison deaths says that he has never had two people fall asleep at the same time who were keeping an eye on a supposed suicide risk.  Not in his entire career.  Not once.  What happened here?
• The surveillance videos of the area surrounding Epstein's cell, including the hallways, are corrupt and show no pictures. What happened to the surveillance videos?
• Bill Barr infamously said that the New York City jail where Epstein was incarcerated was not safe for him. That is the reason Barr gave for moving Epstein into a federal prison, where Epstein died.  What was the reason, really, that Epstein was moved?

There is a new government in town.  The department of justice has a second chance now.  It has a chance to be a Justice Department.  The FBI also has a second chance now.  Second chances are rare indeed, but they too have one.  The FBI can and should investigate now; it did not investigate before.

"The government has an obligation to investigate this part of the story, if for no other reason than to bring closure for all the women he abused."  Julie K. Brown, Perversion of Justice 566 (2021).

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DOJ UNFATHOMABLE SECRECY: WHY TRY TO SHIELD HER FROM TESTIFYING?

On February 8, 2021 -- 19 days after Joe Biden was inaugurated as President of the United States -- the justice department filed a motion to quash a subpoena for the testimony of Betsy DeVos.

          They didn't have to.

          But they did.

          In fact, there was and still is a lawsuit pending in federal court in California in which Ms. DeVos was likely to be deposed.  The lawsuit in California was filed on behalf of students who alleged lots of things went wrong in the loan program administered by then-Secretary of Education Betsy DeVos, to make a long story short.

          Ms. DeVos was no longer the Secretary of Education when the justice department filed its motion to quash a subpoena in the California case for her deposition.  So the justice department did not have to try to shield her, a private citizen, from testifying in a judicial proceeding.

          But they did.

          Beyond that, the federal judge in California had already expressed his willingness that Ms. DeVos should be deposed in that case.  The federal judge in question happens to be one of the most respected judges in the federal court system, let alone in the Northern District of California.

          But the justice department filed its motion anyway.

          In Florida.  They filed their motion in Florida.  Why?

They went about as far away as you can get from California and still be in the continental United States.  To say again, they filed their motion in Florida on February 8, 2021.  Look it over here:  Download In re Subpoena Served on Elisabeth DeVos Doc. No. 1 Motion to Quash Subpoena on Betsy DeVos filed Feb. 8 2021 (S.D. Fla. No. 21-mc-14073).

          I have read the motion.  It is snarky at times; it is snide on occasion.  The opposing parties took the unusual step of calling it "inappropriate."  That would not be an unusual description in most of today's lawsuits.  However it is not something that is often said about pleadings filed by the U.S. Department of Justice.

          The motion was signed by KEVIN P. HANCOCK, Esquire, a person who identified himself as a Trial Attorney in the Federal Programs Branch of the DOJ Civil Division.

          MR, HANCOCK, the one who signed the motion, was previously a law clerk at the Third Circuit Court of Appeals for Judge Maryanne Trump Barry.

          If this kind of game-playing had taken place in private practice, there would almost certainly have been unpleasant consequences as a result.  To say again, they did not have to try to shield Betsy DeVos from testifying, but they did.  They filed their motion despite the fact that the federal judge in the California case had already expressed his willingness for Ms. DeVos to testify.  And they filed their motion in Florida, not in California where the case was pending.  Above all, they got paid for it, at our expense, at the expense of the federal taxpayer.

          On April 7, 2021, the federal judge in Florida sent the motion to the federal judge in California to decide.  Here is the order from the federal judge in Florida:  Download In re Subpoena Served on Elisabeth DeVos Doc. No. 28 Order Granting Transfer to California filed April 7 2021 (S.D. Fla. No. 21-mc-14073).  The justice department has not brought its motion to the California judge's attention or asked for their motion to be heard.  They have not dared.

          It only took the justice department two months to lose.

          We can expect that the justice department will lose motions.  However we have a right to expect that the lawyers in that department will behave professionally.

          Particularly since we are the ones paying his salary.

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DEMONSTRATING THE GUTS TO CONFRONT THE CAPTAIN ... NOT this MR. ROBERTS.

In the classic movie Mr. Roberts, the title character had the guts to stand up to the Captain of the ship.

 

Not so much this Mr. Roberts.

Certainly not when women are involved.

Some background is in order before we talk about what he did -- or did not do -- most recently.

At first, the current leader attacked the forewoman of the jury. John Roberts did not protect her. He had nothing to say.

Then the current leader attacked U.S. District Judge Amy Berman Jackson. John Roberts did not protect her either. Again he had nothing to say.

Then the current leader attacked two of the Justices of the U.S. Supreme Court, Justices Ruth Bader Ginsburg and Sonia Sotomayor. John Roberts did not protect them. By now it seems to be a pattern: Again he had nothing to say in defense of either woman who both serve on the Court that bears his name.

And then a U.S. Senator used the words of another Justice to call out that Justice, Brett Kavanaugh by name, along with Justice Neil Gorsuch. The Senator had the audacity to repeat Kavanaugh's words that opponents of his nomination would cause the U.S. "to reap the whirlwind." The Senator told Kavanaugh that it was Kavanaugh who "released the whirlwind and you will pay the price!" That moved John Roberts to speak. He chastised the U.S. Senator for hurling the words of Kavanaugh against Kavanaugh and Gorsuch.

We do not expect a Chief Justice of the United States to rule in favor of our cherished positions, certainly not every time and perhaps not any time. But we do reasonably expect a Chief Justice of the United States to stand up for judges who may have no-one else to stand with them in the face of such harassment.

When the Chief Justice of the United States does not behave like a Chief Justice of the United States, it is good to recognize the behavior of the person for what it is, rather than continue to hold him in high regard because of his title and in spite of all the evidence.

Including in the press.

 

Image of Henry Fonda and Jimmy Cagney in the movie Mr. Roberts via imdb.com.

Image of Chief Justice Roberts by Erin Schaff / New York Times.

 

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'MR. SCHIFF, TEAR DOWN THIS WALL!'

It seems clear as of this writing that the U.S. Senate will not subpoena John Bolton to testify in an Impeachment Trial.

It is already clear that Mr. Bolton will not testify voluntarily.  For whatever reason (some suggest that the reason lies in hyping sales once his book is finished), Mr. Bolton will not testify  under oath without a subpoena.

  (White House Photographic Office - Ronald Reagan

Presidential Library, ID C12449)

Cut through it.  Adam Schiff, subpoena him.  He needs to testify under oath and in  his own words. Adam Schiff, stop the posturing and get to it.  At least take his deposition in closed session away from any opportunity for a TV performance.

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KNOWN SUICIDE RISK LEFT ALONE UNCHECKED, NOW NO VIDEO EITHER.

Oh, please.  We're supposed to believe this? Reis Thebault, Video From Epstein’s First Apparent Suicide Attempt Lost Due to ‘Technical Errors,’ Prosecutors Say, WASHINGTON POST ONLINE (posted January 9, 2020).

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SO WHAT WERE WE TALKING ABOUT? THE UNREDACTED EMAILS?

So what were we talking about before the drone exploded?

It is hard to recall, which is a measure of distraction in itself.

As best I recall, we were talking about the unredacted emails. An online blog or zine or whatever called Just Security published some totally redacted emails which the current regime had filed in a court file in response to a court order to release those emails. Just Security says that it "viewed" many of those emails, unredacted, and it published them along with the redacted version.

The emails evidenced communications between political appointees in the current regime, and officers in the Department of Defense and in the Department of State, over the illegality of impounding funds which Congress had already appropriated and ordered spent, and over who ordered this action.

One of the more significant emails, which the regime had blacked out, revealed that the head of our government directed it.

That is what we were talking about before the drone exploded.

Since the drone exploded, it is hard to find any reporting in any medium anywhere about the message in the unredacted emails. Keep your eyes on the ball, media. Keep your focus, publishers and editors and reporters. The people could use your help and we are not getting it.

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"THE GREAT AND POWERFUL OZ HAS SPOKEN."

From Behind A Curtain, Naturally.

It started and ended with a tweet.  The Secretary of the Navy and the Admiral in charge of the SEALS thought that a trophy photograph clearly displayed conduct unbecoming.  In it, the individual in question is photographed standing on top of the body of an unarmed man.  Parenthetically, I tried to get you that photo, but it is much, much easier to find photos of the individual smiling at his good luck than it is to find the trophy photo.

The Secretary of the Navy said that the Navy does not act on a tweet.  He wanted an order to keep the individual in the photo in the Navy SEALS.

The Navy Secretary wasn't fired, apparently.  At least that's how the story goes.  The Secretary of Defense asked the Secretary of the Navy to voluntarily resign.  So, the Secretary of the Navy voluntarily resigned over the weekend.  Read his resignation letter here.

The chair of the Joint Chiefs says that ends the matter.

Except it really doesn't, you know.  That photo doesn't even come close to displaying what the SEALS stand for.  The individual in question is standing in a trophy photo on the dead body of his unarmed victim.  (Is he the next Secretary of the Navy?)

That leaves the Admiral in charge of the SEALS who doesn't want this individual in his command, either.  No word yet on what has happened to him.

My best guess?  Plan on the Secretary of Defense asking him, too, to "voluntarily resign."  There appears to be nothing that the current Secretary of Defense will not do.

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SO IF EVIDENCE IS AGAINST YOU, STOP USING EVIDENCE.

If that worked, some of my cases would have ended differently.  Discouraging evidence is exactly what the Environmental Protection Agency intends with a new rule.  See Lisa Friedman, E.P.A. Plans Limit on Evidence Used For Health Rules, NEW YORK TIMES, Tuesday, November 12, 2019, p. A1 (online here; The New York Times may charge for online access).

But it doesn't work.  Not if you want results you and other people can believe.

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Download CI 11.13.19.

SPEAK, MR. BARR, SPEAK.

A guest article by John K. DiMugno, Esquire, a California attorney, legal educator, and the author or coauthor of multiple legal treatises and legal periodicals published by Thomson Reuters.

William P. Barr, Attorney General of the United States, recently spoke at the American Law Institute’s Annual Meeting in Washington, D.C. The ALI likely extended the invitation shortly after Mr. Barr’s confirmation when there was hope that he would play a role similar to that of the departed General Mattis and General McMaster and place guardrails on the President’s more authoritarian instincts. By the time of the Annual Meeting, those hopes had evaporated. Mr. Barr’s dissembling about the contents of the Mueller Report raised serious concerns about the Attorney General’s complicity in administration efforts to undermine the rule of law.

This Blog highlighted the incongruity between Mr. Barr’s conduct in office and the core mission of the ALI. Notably, Mr. Wall’s post made no attempt to silence Mr. Barr, a solution that would have satisfied the wishes of many in the ALI who were rightfully appalled by Mr. Barr’s transparent attempt to mislead the American public. But barring Mr. Barr from speaking would have entangled the ALI in partisan politics, something the organization scrupulously avoids for good reason. Staying above the political fray insulates the ALI’s Restatements of the Law against charges of political bias and broadens their influence on courts and legislatures around the country.

Mr. Wall’s proposed solution—letting Mr. Barr speak while contributing the ALI’s earnings from the speech to legal aid societies around the country—perfectly balanced those competing concerns. It had the salutary effect of simultaneously benefitting public interest groups that desperately need the money while drawing attention to questions about Mr. Barr’s integrity.

Mr. Barr’s penchant for making transparently misleading and often contradictory statements has left some wondering what he hopes to achieve other than aggrandize power and influence in the Trump administration. Sharon LaFraniere, Charlie Savage and Katie Benner, People Are Trying to Figure Out William Barr. He’s Busy Stockpiling Power, New York Times on line, June 9, 2019. 

He misled the American public about the contents of the Mueller Report knowing full well that when the report was released several weeks later his lies would be evident to everyone.

When Mr. Barr sought confirmation as Attorney General, he told the U.S. Senate that he had known Robert Mueller for years and did not believe that Mr. Mueller would engage in a “witch hunt.”  Yet, shortly before his confirmation hearings, he sent a memo to the Justice Department characterizing the obstruction of justice charges against the President as “asinine” and sent an e-mail stating he saw far less reason to scrutinize the Trump campaign’s ties to Russia than to investigate whether donations to Hillary Clinton’s family foundation had influenced her actions as secretary of state. Once he was confirmed, he enabled the President’s attempts to distract from the contents of the Mueller Report by opening an investigation of those who investigated him.

When Mr. Barr was seeking confirmation, he told the U.S. Senate Judiciary Committee that he was willing to reconsider the Justice Department’s decision not to defend the Affordable Care Act (ACA).  But, when he became Attorney General, he put the resources of the Justice Department behind litigation in Texas federal district court seeking to invalidate the entire Affordable Care Act.

As the song goes, “There’s something happening here. What it is ain’t exactly clear.” Buffalo Springfield, For What It’s Worth.  I say let Mr. Barr speak. Listen closely to what he says and watch what he does. Only then will whatever is happening start to become clear.

Download John DiMugno 06 13 19 Blog Article for IC Also (2)

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WOULD YOU SIT STILL FOR A LECTURE FROM MIKE PENCE?

Well, neither would the Brits, the Germans, or the Belgians, among many others.  Mike Pence is apparently spearheading the current Federal Government’s drive to get other countries not to use Huawei telecommunications equipment.  The current Federal Government’s approach is, well, not very productive to say the least:

1. Mike Pence and Secretary of State Mike Pompeo and others lecture other countries that they should not use the Chinese manufacturer’s equipment because it is a security risk.  Pompeo has reportedly threatened to withhold intelligence reports from nations that use Huawei equipment.
2. Scolding is all they do.  Figures like Mr. Pence and Mr. Pompeo have not provided “concrete evidence that Huawei poses a real risk.”
3. Last but not least, the current boss of the current Federal Government has suggested in his own way, that he would make criminal charges against Huawei go away “as part of a trade deal with China.”

For their part, other nations respond:

1. They test Huawei’s products in labs in their own countries. What they see, they can handle.  They don’t have an attitude, they have the test results.
2. Based on the evidence they have in hand, these other nations can control the risk – which is not nearly as great as people like Messers. Pence and Pompeo claim. Britain’s National Security Adviser, for example, says that any problems with Huawei equipment can be controlled through regulation, transparency, and standards (three things that are in short supply in the current Federal Government, so no wonder it says that it sees a threat of invasion here too).
3. They may not say so out loud, but if criminal charges mean so little, other countries understandably ask what does the rest of this routine mean anyway?

So there you have it:  This is your foreign policy now.  See Julian E. Barnes and Adam Satariano, Allies Spurning Campaign by U.S. to Block Huawei / Questioning Data Risk, New York Times, Monday, March 18, 2019, at A1 (New York Times may charge for online access at www.nytimes.com).

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THE ICING ON YOUR CAKE. TREATS OR "GRATUITOUS CRUELTY?"

In our names, and with our dollars, Federal immigration officials are force-feeding immigrants in response to at least one hunger strike.  The force feeding is paid for with Federal tax dollars and administered by agents of ICE, Immigration and Customs Enforcement.   They force plastic nasal tubes down the throats of hunger-striking migrants during a hunger strike that has involved somewhere between 11 and 30 detainees.  These hunger strikers have concluded that they have no other way to express their resistance to cruelty inside a Texas detention facility. ICE is force-feeding immigration detainees on hunger strike, Los Angeles Times Online (Associated Press story, January 31, 2019).

It is not reported however what training the ICE agents have in force feeding, if any. 

Nor do we have any idea what training ICE agents get for this next story, reported by among others, Sarah Mervosh, ICE Created Fake School to Uncover Visa Fraud, New York Times, p. A19, Friday, February 1, 2019.  In this story, ICE agents conducted what amounts to a "sting" operation to ensnare evil falsely documented migrants who applied to become students at a fake university set up by ICE itself.

Separate from the story of what training, once again, these ICE agents have in this kind of activity -- as distinct, say, from professional law enforcement operations conducted by the FBI -- there is another question:  Who said that spending our tax money on ensnaring would-be students who applied to "the (fake) University of ICE," was better than spending our tax money on catching drug dealers, for example?  Recently, Customs and Border Patrol disrupted the importation of drugs into the U.S., but ICE is not CBP.  

So, to say again as the title of this article already suggested:   Are these operations treats paid for by our tax dollars?  Or are they unnecessary or low priority uses of our money?  

Please Read the Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

THE NEXT INSTALLMENT: BANK DEREGULATION GROWS MASSIVE "CROSS-SELLING CLAIMS."

This is the second of three articles in a series revealing secret financial and credit practices that affect us all.

 

"Cross-selling" or selling new products to existing customers has been called "the core of modern-day banking[.]"  Wells Fargo in particular led the way in cross-selling "mortgages, credit cards and auto loans," thereby saving all the costs of acquiring new customers which would have to be incurred before the bank would even have the opportunity to sell them additional products.^[1]

  A reporter, E. Scott Reckard, broke the story of what went wrong when he reported in a newspaper article that in order to meet their sales quotas, Wells Fargo employees opened accounts and ordered credit cards for customers that the customers did not request, did not need, and did not even know about.^[2]

Mr. Reckard's reporting was based, as he himself wrote, on reviewing "internal bank documents and court records" and interviewing "28 former and seven current Wells Fargo employees who worked at bank branches in nine states, including California."  Even a casual reader would also have taken note that the article mentioned at least 10 lawsuits against Wells Fargo as a result of the "cross-selling" quotas Wells imposed on its employees and inflicted on its customers.^[3]

The complaint filed by the City Attorney's Office against Wells Fargo in May, 2015 alleged essentially the same things that were reported in the newspaper a year-and-a-half before.^[4]

Administrative actions opened by two federal agencies, the Consumer Financial Protection Bureau ("CFPB") and the Office of the Comptroller of the Currency ("OCC"), were similarly based on what was reported in the newspapers.^[5]

Both of these federal agencies opened their administrative actions with "Consent Orders" in which they announced their respective settlements with Wells Fargo.^[6] 

In the settlements in September 2016, Wells Fargo only put numbers on "unauthorized deposit accounts" and "unauthorized credit cards," however.  According to Wells Fargo in late 2016, 1,534,280 deposit accounts were opened at Wells Fargo in the names of Wells customers that had not authorized them, between May, 2011 and July, 2015.  The Wells Fargo customers had no idea that this was happening.  It was all done in secret.

Continuing to put numbers on some of these practices, Wells Fargo also told the regulators in September 2016 that "roughly 85,000 of those accounts incurred about $2 million in fees, which [Wells Fargo] is in the process of refunding."^[7]

Wells Fargo was to say later that even more of its customers may have been affected.  Wells wrote later that its internal investigation and reform of cross-selling practices "could lead to, among other things, an increase in the identified number of potentially impacted customers."^[8]

Second, Wells Fargo also informed the regulators that there were 565,443 credit card applications supposedly made by Wells Fargo customers.  Wells's customers did not actually authorize those credit card applications.  At the time the credit card applications were made, hardly any of Wells's customers knew what was going on.

Later, after the settlements of September 2016 with the regulators were all final, Wells announced that it had found another possibly 1 million to 1.5 million more fake accounts, for a total of approximately 3.5 million sham accounts, "a nearly 70 percent increase over the bank's initial estimate" which it had previously stated to the government agencies before it settled with them.^[9]

In September 2016, Wells Fargo agreed with the three government regulators -- the L.A. City Attorney's Office, the CFPB and the OCC -- to pay a total of $185 million in fines and penalties.  As one person described it:  "Wells is paying what amounts to a couple of parking tickets for each of the 1.5 million accounts."^[10]

In a somewhat unusual twist, the information available to the public about Wells Fargo's conduct in this matter was essentially what was reported in the newspapers in the first place.  Wells Fargo did not admit to any wrongdoing in any of its settlements.  Wells Fargo did not admit to any wrongdoing in its settlement with the Los Angeles City Attorney,^[11] or with the CFPB,^[12]  or with the OCC.^[13] 

The allegations that the government regulators made against Wells Fargo tell nothing apart from what was already in the newspapers.  The unusual fact of these settlements is that the alleged perpetrator admitted anything.

However, the City Attorney's Office, at least, had more evidence against Wells Fargo.  Presumably, the City Attorney's Office would have been willing to extend professional courtesy to the CFPB and OCC and share the evidence.  That would have given evidence against Wells Fargo to two federal agencies investigating Wells Fargo in this matter as well as the City Attorney.

We do not know for certain whether the City Attorney shared the evidence.  Nor do we know what the evidence was.  It was kept secret.  The City Attorney agreed with Wells Fargo to keep the evidence secret.  The City Attorney and Wells Fargo further agreed to ask a judge to approve their secrecy agreement.^[14]

The court's electronic docket is a record of everything that was filed in the case.  These events are all listed on that record, such as Wells Fargo's motion to keep its interrogatory responses (written questions with written answers) a secret in June, 2016.  On the other hand, none of the actual materials is publicly available from the court.  The author has sent EMails to the City Attorney's Office requesting copies.  As of the date of this publication, the author has received copies of two Stipulations and two Protective Orders approving them in the case.  One of the orders was entered on February 2, 2016,^[15] and the other order was entered on June 14, 2016.^[16]  Wells Fargo and the City wrote some of their own rules of procedure especially for themselves particularly on the subject of keeping evidence secret in this case.

It is reasonably certain that Wells Fargo was served with written questions to which it would ordinarily be required to respond.   In the Los Angeles City Attorney's case, the questions came in special interrogatories. 

No-one outside of the City Attorney's Office and Wells Fargo, perhaps, knows much about what was in the special questions that the City Attorney served on Wells Fargo in this case.  The City Attorney's special interrogatories must have been very "special."  These questions were specially crafted by the City Attorney's Office to serve on Wells Fargo in this particular case.

Both sides agreed on keeping much of the evidence a secret.  Both sides presented the proposed order to the judge.  Both sides asked the judge to sign it.

The City Attorney's Office and Wells Fargo agreed a second time on keeping the evidence secret.  It may be that Wells Fargo was not convinced that the February Secrecy Order went far enough to keep all of the evidence secret.  For whatever reason, both sides again agreed on keeping evidence a secret, both sides presented another proposed secrecy order to the judge, and both sides asked the judge to sign this one, too.  She did.  Again without changing anything that was proposed to her.

The agreements and the secrecy orders are not available in the Court file.  The author received copies only because the City Attorney's Office provided me with copies of the orders, which no-one can make sense of without having the stipulations too, since the orders did nothing more than approve the stipulations and make them the judge's rulings.

In fact, nothing in the Court file is available that was filed after August, 2015.  It is a fact nonetheless that various documents were filed with the Court in that case from August, 2015 until the case was closed thirteen months later with a judgment agreed upon by the parties.^[17] 

We do not know what Wells Fargo said or how Wells Fargo answered the questions.  Instead, first Wells Fargo asked for confidentiality of its answers and then the City Attorney stipulated to keep this evidence a secret.

The author could not access the motion on the Court's electronic docket, as noted.  The City Attorney's Office sent me copies of the orders and stipulations, but they did not send me copies of Wells Fargo's motion or of Wells Fargo's answers to the special interrogatories, either.  They believed that they could not make Wells's motion publicly available since it might be different from the copy that Wells filed in the Court file.  This is certainly a pickle, to say the least.  Needless to say, perhaps, but the L.A. City Attorney's Office also refused to make Wells Fargo's answers publicly available including to the author.

 

To be continued later this week with THE FINAL INSTALLMENT:  BANK DEREGULATION GROWING MASSIVE "CROSS-SELLING CLAIMS."

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

[1] See Michael Corkery, "DealBook / Wells Fargo Fined $185 Million for Fraudulently Opening Accounts" (New York Times Online posted September 8, 2016).

 

[2] Id.

 

[3] Id. 

[4] "In May, 2015, following an extensive investigation precipitated by this [December, 2013] report in the Los Angeles Times, the Office of City Attorney Mike Feuer sued Wells Fargo over allegations of opening unauthorized accounts."  Press Release by Mike Feuer, Los Angeles City Attorney, "Protecting Consumers" (undated), available online at http://www.lacityattorney.org/allegations-against-wells-fargo.

 

[5] There were a few scattered news reports that the OCC was investigating Wells Fargo, along with the Federal Reserve, another agency of the federal government.  There was also rank speculation that if other federal agencies were investigating Wells Fargo, then the CFPB might also be investigating Wells Fargo.  There were no details offered in any of these news reports.  See, e.g., Dan Freed, "U.S. Regulators Probe Wells Fargo Sales Practices - WSJ" (Reuters Online, posted at www.reuters.com on Monday, November 30, 2015); Catherine Phillips, "Wells Fargo Faces Federal Investigation Over Sales Tactics" (posted in the "Northern Californian," posted on Tuesday, December 1, 2015 at www.northerncalifornian.com/local/california); "Wells Fargo's Sales Tactics Are Reportedly Under Investigation" (posted by Bay Area News Group online at www.bayareanewsgroup.com, on Tuesday, December 1, 2015).

 

[6] See the OCC's "Statement Regarding Revocation of Relief to Wells Fargo Bank, N.A., from Certain Regulatory Consequences of Enforcement Actions," dated November 18, 2016, posted online at www.occ.gov/topics/laws-regulations/enforcement-actions/statement-wellsfargo-111816.pdf.  This "Statement" was not easy to find and, to the author's knowledge, it will not be found anywhere else, other than online on the OCC's website. 

 

[7] Consent Order signed September 4, 2016, filed September 8, 2016, in In re Wells Fargo Bank, N.A. (United States of America Consumer Financial Protection Bureau Administrative Proceeding No. 2016-CFPB-0015, paragraph 16 on page 5.  The Consent Order is available online at http://files.consumerfinance.gov/f/documents/092016_cfpb_WFBconsentorder.pdf .

 

[8] Laura J. Keller, "Wells Fargo Warns it May Find More Clients Bilked" (Bloomberg News posted on March 2, 2017), quoting an unidentified Wells Fargo "annual regulatory filing."

 

[9]  Stacey Cowley, "DealBook / Wells Fargo Review Finds 1.4 Million More Suspect Accounts" (New York Times Online, August 31, 2017).  In addition, see, e.g., James Rufus Koren, "Wells Fargo May Have Created 1.4 Million More Unauthorized Accounts Than We Thought, Attorneys Say" (Los Angeles Times Online, May 12, 2017); Kartikay Mehrotra and Laura J. Keller, "Wells Fargo's Fake Accounts Grow to 3.5 Million in Suit" (Bloomberg.com, May 12, 2017); Brian Tayan, "The Wells Fargo Cross-Selling Scandal" (Harvard Law School Forum on Corporate Governance and Financial Regulation, posted on December 19, 2016), available at https://corpgov.law.harvard.edu/2016/12/19/the-wells-fargo-cross-selling-scandal.

 

[10] The author takes sole responsibility for the calculations in the text; they are his alone.  The quote is from Cornell Law School Professor Robert Hockett, quoted by Michael Corkery, "DealBook / Wells Fargo Offers Regrets, But Doesn't Admit Misconduct" (New York Times Online, posted on September 9, 2016).

 

[11] [Proposed] Stipulated Final Judgment signed by the City Attorney and by Wells Fargo on September 1, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court), at ¶ 5 on page 3, & ¶ 49 on page 13.

 

[12] Stipulation and Consent to the Issuance of a Consent Order, filed on September 8, 2016 in In re Wells Fargo Bank, N.A. (United States of America Consumer Financial Protection Bureau Administrative Proceeding No. 2016-CFPB-0015), ¶ 2, on page 2. 

    

[13] September 6, 2016 Consent Order for a Civil Money Penalty in In re Wells Fargo Bank, N.A., OCC #2016-079, at 1; Stipulation and Consent to the Issuance of a Consent Order in OCC No. AA-EC-2016-66, signed by the Wells Fargo Board of Directors and dated September 1, 2016, but signed by the OCC on September 6, 2016, "Article II / Consent," ¶ (1) at p. 2.

 

[14] The Los Angeles County Superior Court's Online Docket shows the following entry for June 14, 2016:

06/14/2016 Stipulation and Order (REGARDING DEFENDANTS' MOTION TO PRESERVE CONFIDENTIALITY DESIGNATION OF SPECIAL INTERROGATORY RESPONSES (FIRST SET)

Filed by Attorney for Plaintiff/Petitioner[.]

 

[15] Stipulation and Protective Order entered and filed on February 2, 2016 in People v. Wells Fargo & Co., Case No. BC 580778 (Los Angeles County Superior Court).

 

[16] Stipulation signed May 26, 2016 with Order entered on June 14, 2016, filed together on June 14, 2016 in the same case.

 

[17] See EMail from the Los Angeles City Attorney's Office to the author, Wednesday, March 1, 2017, on file with the author.

 

To be continued later this week with THE FINAL INSTALLMENT:  BANK DEREGULATION GROWING MASSIVE "CROSS-SELLING CLAIMS."

 

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

ANOTHER CHILD DIES IN FEDERAL CUSTODY AT THE BORDER: ....

How Many Deaths Will It Take Till We Know That Too Many Children Have Died?

An eight-year old boy in Federal custody at the border died on Christmas Day.  See Laura King, An 8-Year-Old Guatemalan Child Dies in U.S. Custody on Christmas Day After Being Treated For a Cold, Los Angeles Times Online December 25, 2018.

A seven-year old girl died in Federal custody at the border a week ago.  See The U.S. Border is a Dangerous Place.  Not by Mistake, Claims and Bad Faith Law Blog December 18, 2018.

Both times they told us that the children had been examined and that there were no signs of illness, but then the children died.

Who told us?  The Federal agents responsible for the children's safety.

We only know that the children were "treated."

Tell us.  Who treated the children?  And how did they treat them?

Did Doctors treat the children?

Trained medical personnel?

More employees of the Federal Government?

Has anyone talked to them other than agents of the Federal Government?

Members of Congress and reporters have allowed themselves to be turned away from places where the children were housed and where other children are still kept.

The places like those where now children are dying.

What will it take for Members of Congress and reporters to get into these places, inspect them, and photograph them, for the sake of the children still held there if for no other reason?

For anyone to inspect these places other than the same Federal Government which imposes the cruel conditions under which children die now?

If they do not gain entry to these places, then the answer to the next question is pretty clear:  Is the death of children the latest anti-immigration policy?

And if the answer to that question is "yes," then what in the name of Christmas are you going to do?

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

 

GOOD CAUSE OR NOT GOOD CAUSE, THAT IS THE QUESTION.

The federal courts have held that what is "good cause" for a protective order to keep a document or testimony from seeing the light of day is essentially the same amount of "good cause" needed to seal that evidence.  The good cause must be shown by evidence in the record and not merely contended by assertions of counsel or their clients whether in litigation between businesses or in any other type of litigation.  See, e.g., Villery v. Beard, No. 1:15-cv-00987-DAD-BAM (PC), 2018 WL 6304410, at *4 (E.D. Cal. December 3, 2018) (in civil rights action filed by a state prisoner, McAuliffe, USMJ, recognized that "good cause" is the standard "which applies to [sealing] non-dispositive discovery type motions" and holding that good cause was shown regarding "confidential health information and confidential investigatory information obtained from witness interviews, and in the absence of any objection");  Contour IP Holdings, LLC v. GoPro, Inc., No. 17-cv-04738-WHO, 2018 WL 6574188, at *1 n.1 (N.D. Cal. December 12, 2018) (Orrick, USDJ, holding in a patent infringement action that good cause was not provided "to warrant preserving the secrecy of sealed discovery material attached to nondispositive motions.").

It's all in the showing of good cause.  Or the lack of a showing of good cause.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

EVEN EINSTEIN WOULDN'T GET IN NOW.

TODAY is the deadline, Monday, December 10, 2018, for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because of that, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

 

"USCIS [U.S. Citizenship and Immigration Services] Evidentiary Requirements" proposals are set out by the "parent" of USCIS, the Department of Homeland Security in new proposed rules changes.  One of these proposed changes, published at 83 FR at 51196, mandates "[e]vidence of the alien's most recent history of employment" in any consideration of "education and skills."  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(A), in 83 FR at 51291.  This mandated evidence simply does not relate to a consideration of education and skills.  If it did, the DHS would have put on evidence in its rationale to support this, but the DHS did not support this mandate with any evidence linking these separate concepts.

             A good example -- evidence if you will -- of how education and skills simply do not depend on the four factors mechanically proposed on 83 FR at 51196 -- "the alien's most recent history of employment;" her or his "academic degree or certifications[;]" "occupational" skills or certificates, and "proficiency in English" -- was provided by the real-life experience of Albert Einstein.  He famously failed mathematics, not because he was dull, but to the contrary he was too intelligent for the teacher.  The DHS's rigid rules for considering the statutorily mandated evidence of "education and skills" do not allow for considering the actual circumstances of experience.

             In particular, Congress's word, "skills," would be transformed by the DHS proposed rules into "occupational skills."  (Emphasis added.)  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(C), in 83 FR at 51291.

             The DHS's proposed rules refashioning Congress's words, here, refashioning both "education" and "skills," are unauthorized, contrary to Congressional intent, unsupported by any evidence, and to the contrary the available evidence militates against adoption of such proposed rules.

 

----------------------------------------------------------------------------------------------------This is reproduced from a Comment on the DHS proposed rules changes, titled IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID:  Comments to DHS Proposed Public Charge Rules 12.04.18.  The complete Comment is available here as a pdf:  Download IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID. Comments to Proposed DHS Public Charge Rules. 12.04.18..

 

Leave your own Comments on the changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

 

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

THE IMMIGRANT'S TALE. A TRUE STORY.

The deadline is tomorrow, Monday, December 10, 2018 for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because the deadline of December 10 is so close, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

 

          The unnatural effect of the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, would if they were in effect have required the exclusion of immigrant Mary Anne MacLeod.  She arrived in the United States from Scotland with the skills of a domestic and several hundred dollars in currency at present-day values.

           However, she was allowed to come into the United States and eventually married one Fred Trump with whom she had several children.  One of those children became President of the United States.

           In sum, the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, are unauthorized by Congress.  In addition, they are contrary to Congress's statutory intent.  Finally, they are not supported with evidence provided by the DHS, but to the contrary, the available evidence proves them to be invalid.

 They are in short the product of still another Federal administrative agency's regulatory overreach. 

---------------------------------------------------------------------------This is the Conclusion of a Comment on December 4, 2018 on the DHS proposed rules changes, titled IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID:  Comments to DHS Proposed Public Charge Rules 12.04.18.  The complete Comment is available here as a pdf:  Download IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID. Comments to Proposed DHS Public Charge Rules. 12.04.18..

Leave your own Comments on the proposed changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

SNEAK ATTACKS AND REMEMBER PEARL HARBOR!

The deadline is this coming Monday, December 10, 2018 for leaving Comments on the Department of Security's proposed re-write of rules surrounding "who is likely to become a public charge" because they are "likely to receive public benefits" and should, the DHS says, be excluded from living in the United States.  Because the deadline of December 10 is approaching, this article will be published as widely as possible including  both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/. 

At the end of a week of leaving Comments, and following weeks of reading and researching 183 pages of DHS statements about its proposed "Public Charge" rules changes to exclude immigrants, I have come away with many definite impressions.  One of them is that the proposed rules changes and what the DHS says about them are really a manual for customs agents.

The DHS says that they wanted to "clarify" and standardize immigration determinations of who should be excluded from the U.S. because a person is likely to become a public charge if she or he is admitted, but that is not what these proposed changes do.  They make it much more complicated for customs agents and officers at the border to do their job if they admit people into the United States but easier if they default to excluding them.

All because the DHS equates "likely to become a public charge" with "likely to receive public benefits."  The DHS has invented many formulas which would have confused Einstein, let alone be confusing to officers at the border.  Here are the 183 pages of what DHS says about its proposed "Public Charge" changes:  Download DHS Proposed Public Charge Rule.101018..

It turns out that a manual is exactly what is being provided to other Federal bureaucracies including the State Department back in January.  I found this out in November from reporting about a lawsuit filed by the City of Baltimore in Federal Court:

The lawsuit, filed in U.S. District Court for the District of Maryland, challenges a change to the State Department’s Foreign Affairs Manual that took effect in January. The shift tells State Department workers evaluating visa applications abroad to consider whether applicants, their families or their sponsors have used a public benefit in the United States or might in the future.

Erin Cox, Baltimore Sues Trump Administration Over Legal Immigrants' Access to Public Benefits, The Washington Post Online (November 28, 2018).

Rewriting manuals and statutes.  Changing rules and regulations.  What is happening may sometimes appear in the light but it is done in the dark.

Lawsuits.  Comments.  We should not go quietly into their darkness.

There is no such thing as a free lunch, as they say.

It is December 7th.  Remember Pearl Harbor!

Leave your Comments on the changes through the preferred submission Federal eRulemaking Portal:  www.regulations.gov.  The federal government has assigned the following numbers to these proposed rules changes to identify your Comments on these particular rules:  DHS Docket No. USCIS-2010-0012; RIN 1615-AA22.

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

IT ALL COMES BACK TO MONEY. BUT THAT'S NOT WHAT CONGRESS SAID:

Comments to Proposed DHS Public Charge Rules. 12.04.18.

The deadline for leaving Comments is December 10, 2018.  Because the deadline of December 10 is approaching, my Comments of 12.04.18 will be published both on Claims and Issues Blog at https://claimsissues.typepad.com/ and Claims and Bad Faith Law Blog at https://insuranceclaimsbadfaith.typepad.com/.  As a result, this blog article may be longer than is usually the case here.

 The following are my full Comments of December 4, 2018 in response to the DHS Proposed Public Charge Rules:  IT ALL COMES BACK TO MONEY.  BUT THAT'S NOT WHAT CONGRESS SAID.  In the Comments below, I am providing the addresses for you to be able to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments on or  before December 10, 2018. 

December 4, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

Federal eRulemaking Portal:  www.regulations.gov.

 BY U.S. MAIL:

Ms. Samantha Deshommes

Chief, Regulatory Coordination Division

Office of Policy and Strategy

U.S. Citizenship and Immigration Services

Department of Homeland Security

20 Massachusetts Avenue NW

Washington, DC  20529-2140

 

Re:       DHS Docket No. USCIS-2010-0012.  RIN 1615-AA22.

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The previously filed Comments, UNAUTHORIZED AND MISDIRECTED filed on 12.01.18, are expressly incorporated herein by reference.

            DHS's proposal to redefine Congress' statutory standard, "likely to become a public charge," is unauthorized by Congress.  Instead of a permissible interpretation, the DHS proposed rules changes which set forth an impermissible re-write of the statute enacted by Congress.  The DHS's proposed rules changes are also invalid with regard to who is "likely to become a public charge" because DHS's proposed rules changes are not supported by evidence.  Further, they do not take account of catastrophic circumstances that can cause people to apply for admission to the United States.  For all these reasons, whether taken separately or together, the DHS's proposed rules are an invalid attempt to change the Congressional standard for excluding a person on the ground that she or he is "likely to become a public charge." 

            Likely to become a public charge does not mean what the DHS says it means.  The starting point for Courts and for administrative agencies interpreting a statute is the statute itself.  Here, the task of determining who is "likely to become a public charge" is principally set forth as one among many potential grounds for excluding people from the United States, in 8 USCA § 1182(a)(4)(A) & (B):

(4) Public charge

(A) In general

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) Factors to be taken into account

(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's--

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 1183a of this title for purposes of exclusion under this paragraph.

            The DHS's proposed rules changes, including proposed 8 CFR § 212.21(c) at 83 FR 51290, attempt to re-write the determination required by Congress to say that "likely at any time to become a public charge" instead "means likely at any time in the future to receive one or more public benefits[.]"   The Congressional statute has been transformed from considering the totality of the circumstances of who is "likely to become a public charge" to the totality of the circumstances of who is "likely to receive public benefits."

            The difference between the two is illustrated by the fact that the Congressional determination would take natural and man-made catastrophes into account; the re-written standard proposed by DHS would ignore disasters entirely even though catastrophes are a time when want is most keenly felt to paraphrase Charles Dickens.  Experience teaches -- the evidence shows beyond dispute -- that disasters frequently require people to turn to receiving public benefits, and yet the DHS would allow no discretion to consider the circumstances.

            Moreover, the DHS's proposed rules changes would place a burden of proof on applicants for admission which applicants currently do not face.  Evidence under existing law is not the same as the DHS's proposed changes.  It is irrational to impose a burden to prove a negative.  This would render the Congressional statute meaningless.  The proposed rules changes in this regard are therefore not a valid interpretation of the Congressional statute.

             For example, the DHS proposes by defining an "alien's household" such that an alien "would have to demonstrate that his or her own assets, resources and financial status and his or her parent's or legal guardian's assets, resources and financial status are sufficient to support the alien and the rest of the household."  83 FR at 51184, with the proposed rules change in 8 CFR § 212.21(d) at 83 FR 51290-51291.  It bears constant repetition apparently that under existing law whether a person is "likely to become a public charge" is determined by a consular officer or the Attorney General under the above-quoted statute.  "In determining whether an alien is inadmissible under this paragraph [8 USCA § 1182(a)(4)(A)] the consular officer or the Attorney General shall at a minimum consider" factors to be taken into account.  This is not a burden of proof on the applicant for admission but a requirement that the consular officer or the Attorney General -- or in this case the AG's designate,  the DHS -- must make a determination, that the FEDERAL GOVERNMENT'S representative must consider certain things including "at a minimum" those factors which Congress ordered to be taken into account.

             In law, the determination of whether a party has met its burden of proof, whether she or he has for example "demonstrated" certain things, is different from whether there is enough evidence to support the claim at bar.  In the case of a person applying for admission into the United States, Congress set the standard at whether there is enough evidence to support the application at issue.  DHS may not impose a burden that Congress itself chose not to impose.

            Another illustration of the DHS imposing burdens that Congress itself chose not to impose is in the DHS's proposed consideration of Congressionally mandated consideration of "education and skills."  The DHS proposals apparently conflate them with education and skills "if authorized for employment," to quote the DHS rationale for this proposal, 83 FR at 51189.  The proposed rule is 8 CFR § 212.22(b)(5), at 83 FR at 51291. 

            Labor certification is a separate and distinct ground for exclusion.  It is set out in 8 USCA § 1182(a)(5), not 1182(a)(4) which is the stated subject of DHS's proposals.  Subsection 1182(a)(5) governs both skilled and unskilled labor, which is a different consideration entirely.

            "USCIS Evidentiary Requirements" set out by the DHS at 83 FR at 51196 mandate "[e]vidence of the alien's most recent history of employment" in any consideration of "education and skills."  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(A), in 83 FR at 51291.  This mandated evidence simply does not relate to a consideration of education and skills.  If it did, the DHS would have put on evidence in its rationale to support this, but the DHS did not support this mandate with any evidence linking these separate concepts.

             A good example -- evidence if you will -- of how education and skills simply do not depend on the four factors listed on 83 FR at 51196 -- "the alien's most recent history of employment;" her or his "academic degree or certifications[;]" "occupational" skills or certificates, and "proficiency in English" -- was provided by the real-life experience of Albert Einstein.  He famously failed mathematics, not because he was dull, but to the contrary he was too intelligent for the teacher.  The DHS's rigid rules for considering the statutorily mandated evidence of "education and skills" do not allow for considering the actual circumstances of experience.

            In particular, Congress's word, "skills," would be transformed by the DHS proposed rules into "occupational skills."  (Emphasis added.)  The proposed rule is 8 CFR § 212.22(b)(5)(ii)(C), in 83 FR at 51291.

            The DHS's proposed rules refashioning Congress's words, here, refashioning both "education" and "skills," are unauthorized, contrary to Congressional intent, unsupported by any evidence, and to the contrary the available evidence militates against adoption of such proposed rules.

Conclusion.

            The unnatural effect of the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, would if they were in effect have required the exclusion of immigrant Mary Anne MacLeod.  She arrived in the United States from Scotland with the skills of a domestic and several hundred dollars in currency at present-day values.

            However, she was allowed to come into the United States and eventually married one Fred Trump with whom she had several children.  One of those children became President of the United States.

            In sum, the changes proposed by the DHS to who is "likely at any time to become a public charge," including imposing new burdens of proof and re-defining "education and skills" to be taken into account in making the determination, are unauthorized by Congress.  In addition, they are contrary to Congress's statutory intent.  Finally, they are not supported with evidence provided by the DHS, but to the contrary, the available evidence proves them to be invalid.

           They are in short the product of still another Federal administrative agency's regulatory overreach. 

            Thank you for your consideration.

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

UNAUTHORIZED AND MISDIRECTED: Comments to DHS Proposed Public Charge Rules 12.01.18.

The following are significant excerpts from Comments of December 1, 2018 that the DHS Proposed Public Charge Rules are UNAUTHORIZED AND MISDIRECTED.  In the excerpts below, I am providing the address to which to send your own Comments, and the DHS Docket Number etc. that the federal government agency requires in order to process Comments.  The full UNAUTHORIZED AND MISDIRECTED Comments are accessible here, as well as of course on the DHS website or regulations.gov: Download UNAUTHORIZED AND MISDIRECTED. Comments to Proposed Public Charge Rules Changes.12.01.18.

 

December 1, 2018

BY POSTING TO FEDERAL eRULEMAKING PORTAL

AND BY U.S. MAIL

 

Federal eRulemaking Portal:  www.regulations.gov.

 [PLEASE NOTE THAT THE MAILING ADDRESS BELOW AND DOCKET NO. AND RIN ARE SEPARATED BY "/" BECAUSE TYPEPAD WILL NOT ALLOW SINGLE-SPACED ENTRIES HERE.  THE INFORMATION IS PROVIDED ANYWAY.  THANK YOU.]

BY U.S. MAIL:

Ms. Samantha Deshommes / Chief, Regulatory Coordination Division / Office of Policy and Strategy / U.S. Citizenship and Immigration Services / Department of Homeland Security / 20 Massachusetts Avenue NW / Washington, DC  20529-2140

Re:       DHS Docket No. USCIS-2010-0012. /  RIN 1615-AA22.

To the Department of Homeland Security:

            These Comments concern changes to Public Charge Rules proposed by the DHS.  The Department's proposed amendments are not authorized by Congress.

            The Department of Homeland Security can act only with authority delegated by Congress.  Here, the Department’s cited Legal Authority does not authorize the DHS to issue a regulation that redefines terms in ways they were not previously defined by statute or are misdirected from their stated purposes.

            These Comments address in particular the Department's proposed changes to 8 C.F.R. §§ 212.20 through 212.24 inclusive.

             To begin with, over all the DHS proposed rules changes are unauthorized and so they cannot state the law concerning the subjects they address.  The DHS's "Legal Authority" for its changes is cited in 83 Federal Register at 51124 (Wed., Oct. 10, 2018), and again at the beginning of the proposed rules changes at 83 FR at 51289.  No Congressional statute conveys authority to a federal administrative agency to rewrite the statute.  The statutes cited by the DHS are no exception.

* * *

            The 183 pages published in the Federal Register containing the rationales (83 CFR 51114-511289) and the proposed "Public Charge Rules" changes (83 CFR 51289-51296) offered by the DHS, substantially if not entirely rewrite statutes enacted by the U.S. Congress, particularly but not only 8 USCA § 1182(a)(4).  They are unauthorized and so they are invalid for that reason alone.

       For ease of reference, paragraph A of subsection 1182(a)(4) reads in full as follows:

(4) Public charge

(A) In general

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

       First and foremost, Congress did not give a definition of "public charge."  See 8 USCA § 1182(a)(4) and not just paragraph (A) quoted immediately above.

       As the DHS noted itself in footnote 21, 83 FR at 51123, the U.S. Senate Judiciary Committee in which this legislation originated in 1952 recommended adopting the phrase, "public charge," which had already been in use in immigration law for a long time as of 1952.  "The committee noted that there was no definition of the term 'likely to become a public charge[.]"  And the committee did not recommend a definition of the term.  Nor did Congress provide a definition of the term when Congress voted as a whole to enact this measure into law as a statute.  .In that process Congress displayed its clear intent not to provide a definition of "likely to become a public charge."

        Moreover, interpretation of a word or phrase in a statute requires a look at the structure of the entire statute to interpret it.  This is what a Court would look at, and it is how an administrative agency like the DHS is required to look at a statute as well.  The structure of Section 1182 reflects the intent of Congress to leave the determination of who is "likely to become a public charge" to a case-by-case process.

* * *

        The claim is made in the rationale for these proposed changes published in the Federal Register that the development of "public charge" in immigration law was framed by a "relationship between public charge and receipt of public benefits[.]"  83 FR at 51123.  This claim is false.

* * *

        DHS's second claim about the development of "public charge" in immigration law is that "public charge" has been framed by "consideration of a sponsor's affidavit of support within public charge inadmissibility determinations."  83 FR at 51123.

        This claim too is refuted by the clear language of subsection 1182(a)(4) and of every other statute written by Congress addressing immigration issues, particularly and uniquely 8 USCA § (a)(4)(B)(ii).

* * * :

          In particular, the DHS stated link between "public charge" and "receipt of public benefits" is unauthorized and misdirected.  The DHS proposes to invent and deploy a new definition of "public charge" different from and unlike those set out in the statute, 8 USCA § 1182(a)(4)(A), quoted in full above.  The most significant unrelated addition is the proposal that "public charge" exclusion from the U.S. applies to any person who "receives one or more public benefits[.]"  There are several problems with this addition, each of which invalidates the proposed change.

         It bears repeating that Congress did not equate the receipt of public benefits with a "public charge" liable to being excluded from the United States.  The statute as a whole refutes any misdirected attempt to conflate the two concepts.

* * *

        If public benefits were so important, they would have been listed in the immigration statutes as grounds for exclusion.  They were not.

 

Conclusion.

         It may be that the things that DHS asserts are true, but merely asserting them to be true does not make them so.  There must be evidence to support an administrative agency's proposed rules changes, and insufficient if any evidence is provided by the DHS for these proposed rules changes.

         In any case, Congress has seen fit to provide a different statutory procedure than the DHS is authorized to write in these proposed rules changes.

        All that has been pointed out above is obviously inconsistent with DHS's assertion of "nonexistent" legislative guidance and case language.  The guidance is there; DHS just does not want to follow it.

        Thank you for your consideration.

 

Now go and please leave your own Comments.  Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

GEORGIA "EXACT MATCH" VOTER LAW:  HOW IS THIS CONSTITUTIONAL?

The Georgia "exact match" voter registration law at first seems to depend on Identification Numbers, but then it doesn't.

          Under the Georgia law, a "board of registration" is required to verify identity before any voter registration application will be accepted as valid.  There are two ways for the board of registration to verify identity:

          One is to compare Identification Card Numbers provided by the voter registration applicant "with the applicant's record on file with the [Georgia] Department of Driver Services or the federal Social Security Administration[.]"  Ga. Code Ann. § 21-2-220.1(c)(1) (emphasis added).

          The way this is done is that "local county election officials take the information from the voter registration application" and input it into a Georgia-wide computer voter registration system called "Enet."  Georgia Coalition for the People's Agenda, Inc. v. Kemp, Order Granting Preliminary Injunction, Doc. No. 33, filed November 2, 2018 (N.D. Ga. Case No. 1:18-CV-04727-ELR).

          Verify a person's identity by comparing what "local county election officials" input into a computer against what employees of the Department of Driver Services have input into a computer?  Or by comparing the local county election officials' input against what employees or hourly-wage contractors of the Social Security Administration have input?

          Seriously?

          Who has not been at the receiving end of a harmful mistake or some other painful failure by say a bank?

          Or by a credit card company?

          Or by a department store?

          Or by the Social Security Administration?  (Which is notorious for declaring people dead when they are still very much alive, but the others and many like them are certainly no more reliable than the government.)

          The other way that the board of registrars can by statute verify a voter registration applicant's identity is by "[t]he applicant providing sufficient evidence to the board of registrars to verify the applicant's identity[.]"  Ga. Code Ann. § 21-2-220.1(c)(2) (emphasis again added).

          To say again, seriously?

          What does "providing sufficient evidence to the board of registrars" even mean?  It sounds like the ancient Courts of Equity in which the Chancellor would determine the measurement of a "foot" by measuring everything against the size of his own foot.  That led to substituting instead the standard measurement of a "foot" of 12 inches applicable to all.

          For a law to be constitutional, in basic and simple terms the statute must be a means to serve a legitimate purpose of the government enacting it, in a way which is either rational or compelling depending on the level of judicial scrutiny involved.  How is either subsection (1) or subsection (2) of the Georgia "exact match" voter registration law, both of which are quoted above, even rational?

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved. 

GEORGIA "EXACT MATCH" VOTER LAW: HOW IS THIS EVEN RATIONAL?

The Georgia "exact match" voter registration law at first seems to depend on Identification Numbers, but then it doesn't.

          Under the Georgia law, a "board of registration" is required to verify identity before any voter registration application will be accepted as valid.  There are two ways for the board of registration to verify identity.

          One is to compare Identification Card Numbers provided by the voter registration applicant "with the applicant's record on file with the [Georgia] Department of Driver Services or the federal Social Security Administration[.]"  Ga. Code Ann. § 21-2-220.1(c)(1) (emphasis added).

          The way this is done is that "local county election officials take the information from the voter registration application" and input it into a Georgia-wide computer voter registration system called "Enet."  Georgia Coalition for the People's Agenda, Inc. v. Kemp, Order Granting Preliminary Injunction, Doc. No. 33, filed November 2, 2018 (N.D. Ga. Case No. 1:18-CV-04727-ELR). Download Georgia Coalition for the People's Agenda Inc. v. Kemp Order Granting Preliminary Injunction Doc. No. 33 filed Nov. 2 2018 (N.D. Ga. Case No. 1.18.CV.04727.ELR)

          Verify a person's identity by comparing what "local county election officials" input into a computer against what employees of the Department of Driver Services have input into a computer?  Or by comparing the local county election officials' input against what employees or hourly-wage contractors of the Social Security Administration have input?

          Seriously?

          Who has not been at the receiving end of a harmful mistake or some other painful failure by say a bank?

          Or by a credit card company?

          Or by a department store?

          Or by the Social Security Administration?  (Which is notorious for declaring people dead when they are still very much alive, but the others and many like them are certainly no more reliable than the government.)

          The other way that the board of registrars can by statute verify a voter registration applicant's identity is by "[t]he applicant providing sufficient evidence to the board of registrars to verify the applicant's identity[.]"  Ga. Code Ann. § 21-2-220.1(c)(2) (emphasis again added).

          To say again, seriously?

          What does "providing sufficient evidence to the board of registrars" even mean?  It sounds like the ancient Courts of Equity in which the Chancellor would determine the measurement of a "foot" by measuring everything against the size of his own foot.  That led to substituting instead the standard measurement of a "foot" of 12 inches applicable to all.

          For a law to be constitutional, in basic and simple terms the statute must be a means to serve a legitimate purpose of the government enacting it, in a way which is either rational or compelling depending on the level of judicial scrutiny involved.  How is either subsection (1) or subsection (2) of the Georgia "exact match" voter registration law, both of which are quoted above, even rational?

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

OPEN THE EVIDENCE ENVELOPE, PLEASE.

In an Amended Order in Multidistrict Litigation against pharmaceutical manufacturers, one judge unintentionally perhaps highlighted the need for disclosure, not concealment, of evidence.  Insurance coverage questions may become difficult if not impossible to decide if this pattern continues.

The Amended Order came in this MDL case:  In Re:  Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914 (N.D. Fla. March 15, 2018).  It was an opinion denying motions for summary judgment because the Court ruled that there were genuine issues of material fact.

"Plaintiffs allege that, after taking Abilify as prescribed, they developed impulsive and irrepressible urges to engage in certain harmful behaviors, including impulsive gambling, eating, shopping, and sex.  Defendants deny the allegations and maintain that Abilify could not, and did not, cause Plaintiffs' impulse control problems."  In Re:  Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 (N.D. Fla. March 15, 2018).

The Court held that there were genuine issues of material fact surrounding these allegations and denials in a huge record of apparently conflicting evidence:

Now, having carefully considered the law, the voluminous record, and the parties' arguments, the Court concludes that Plaintiffs have satisfied their burden to demonstrate that a genuine dispute of material fact exists as to whether Abilify can cause uncontrollable impulsive behaviors in individuals taking the drug.

In Re:  Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 (N.D. Fla. March 15, 2018).

The problem is that the public cannot possibly know what the apparently conflicting evidence actually was.  The opinion is riddled with holes for redacted evidence, like this one:  "Moreover, the record reflects [*** REDACTED ***]."    In Re:  Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *26 (N.D. Fla. March 15, 2018).  Say again, please; what is it that the record reflects?

We simply do not know a lot of what witnesses testified and documents revealed.  "Portions of the briefing and record in this matter were filed under seal. This redacted version of the Court's Order omits references to information included in sealed materials."  In Re:  Abilify (Aripiprazole) Product Liability Litigation, No. 3:16-md-2734, 2018 WL 1357914, at *1 n.1 (N.D. Fla. March 15, 2018).  If a judge omits references to evidence, yet tells us that the Court's ruling is based on what appears to the Court to be contradictory evidence, what value does that serve and whose?

Arguably not the value of the public, who pay to maintain the judicial system.

In particular, how can insurance coverage questions be resolved in this situation?  Does the blacked-out evidence show that consequences or side-effects from using this drug were perhaps neither expected nor intended from the standpoint of the pharmaceutical companies, and thus not a covered "accident" or "occurrence"?

Is it possible that there is an exclusion applicable to this evidence?

How can we know answers to questions like these without seeing the evidence?

And whose interests are served by blacking out the evidence in cases like this?

Please Read The Disclaimer.  ©2018 by Dennis J. Wall.  All Rights Reserved.

EXPERTS ON ICE: EMPLOYMENT ALONE NOT IN THE STRIKE ZONE.

In Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773 (C.D. Cal. February 7, 2018), Immigration and Customs Enforcement ("ICE") and several of its officials are the defendants in the Gonzalez Action, hence, the Court refers to them as the "Gonzalez Defendants" in its opinion.

The Gonzalez Defendants filed a motion to strike the testimony of three of the plaintiff's experts.  Each of the three experts had been attorneys either with ICE or with the U.S. Citizenship and Immigration Services.  They listed their previous employment among their qualifications to express opinions concerning immigration detainers issued by ICE and at issue in the case. Immigration detainers are "holds" placed by ICE on the release of persons held in the custody of law enforcement agencies, usually for 48 hours allowing ICE that time to come and get them.

Unfortunately for the success of the Gonzalez Defendants' motion to strike the experts' testimony, they could not and did not point to any specific thing that the experts included in their testimony that should be kept secret as privileged.  Instead, the Gonzalez Defendants argued that the mere fact, standing alone, that the three experts were previously attorneys for ICE or for USCIS meant automatically that everything they could say in the case should be barred as privileged.

The District Court disagreed with that argument in this case.  Instead, the Court ruled that the Gonzalez Defendants assumed the burden to show that the plaintiffs' experts' testimony should be barred because of some specific privilege, but that the Gonzalez Defendants failed to meet that burden here:

    In the Gonzalez Defendants’ Motion to Strike, Defendants do not cite any particular statement from the expert witness declarations that are protected or privileged under any legal basis. (Mot. to Strike at 11–12.) Defendants argue that each of the expert witnesses had access to privileged information during their employment with DHS, and that DHS cannot tell whether their declarations include such information, and that therefore, the declarations should be stricken in their entirety. (Mot. to Strike at 11–12.)  However, the fact that Defendants cannot determine whether the declarations include any privileged or protected information highlights that Defendants have not met their burden of establishing that the declarations contain privileged information.

    It is Defendants’ burden “to demonstrate that the privilege applies to the information in question.” [Citations omitted.]   Defendants’ failure to identify any information contained in the declarations that is privileged or subject to the work product doctrine, and their admission that they cannot point to specific information that is protected or privileged, warrants denial of Defendants’ Motion to Strike on the basis of privilege or protection grounds. 

Roy v. County of Los Angeles, No. CV 12-09012-AB (FFMx), 2018 WL 914773, at *13 (C.D. Cal. February 7, 2018) (emphasis added).

If this ruling is applied to an insurance case, the roles of the Gonzalez Defendants might be played by an insurance company and officials in its branch, regional, and home office claims departments.  The plaintiff Gonzalez might be played by another plaintiff, perhaps also named Gonzalez, but in the role of a policyholder suing the insurance carrier.  If in that case Gonzalez retained experts who used to be employed at or retained by the carrier, then any motion by the carrier to strike their testimony would, under this ruling, have to specifically identify what if any portion of their testimony was based on specific information that is protected or privileged, or have the motion denied as it was in this case.

Please Read The Disclaimer.  ©2018 by Dennis J. Wall.  All Rights Reserved.

DEATH AND COVERAGE IN FLORIDA: A CONTINUING STORY.

First installment, "They Called But No-One Came:  Liability Insurance Coverage Questions":  Monday, 09.18.17.  The second of three installments focused on liability insurance coverage questions regarding the Florida power company, "IS YOUR GENERATOR WORKING?" also at http://insuranceclaimsissues.typepad.com/insurance_claims_and_issu/2017/09/is-your-generator-working-the-first-installment-they-called-but-no-one-came-liability-insurance-coverage-questions-monda.html .  In this the final installment, we will address liability insurance coverage questions concerning the Florida nursing home.

Here is the story that continues to develop behind our insurance coverage questions.  I cautioned from the beginning of the first installment that this is a developing story,  that we do not know all the facts, and that much more remains to be reported as time goes on.

Those cautions have been borne out in the past week since I posted my first article in this series.  There are now eleven people who reportedly died after Hurricane Irma struck Florida and specifically struck a Florida nursing home.   The nursing home's air conditioning went out.  It got hot.  Very hot.

Eleven people have died from the heat.

A number of people and corporations played a role in this story.  Together we addressed liability insurance coverage questions regarding the Florida governor in the first installment, and in the second installment we addressed some liability insurance coverage questions surrounding the Florida power company.  In this last installment, together we will address liability insurance coverage questions involving the Florida nursing home.  To write again what I wrote at the outset:  What follows is from the reporting so far on what happened.   The reporting is not complete even now.  There are competing stories on lots of points.  As yet, only some things have been finalized, but they are enough to see the outlines of some important liability insurance coverage questions.

The focus of this series of articles is not on whether there may be any good claims of potential liability, but on whether there are claims to potential liability insurance coverage.

1. The Florida nursing home: Questions of Liability.

The Florida nursing home seems to be a target of opportunity for placing blame on what went wrong at the nursing home that resulted in eleven people dying when the nursing home's air conditioning failed during Hurricane Irma.  Yet it should never be overlooked that there are many actors in this play.

"Somewhere in between, the misery of a nursing home teetering toward tragedy was reported to every official channel, but no attempt was made to transfer the residents to a safer place, or even to the air-conditioned hospital practically next door."  Ellen Gabler, Sheri Fink & Vivian Yee, "At Florida Nursing Home, Many Calls for Help, But None That Made a Difference" (New York Times online, posted Saturday, September 23, 2017), also available at https://www.nytimes.com/2017/09/23/us/nursing-home-deaths.html?hpw&rref=us&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well.

After so many people died, the Florida governor insisted that his Florida Agency for Health Care Administration adopt emergency rules requiring nursing homes to have backup generators.  But that is not the way it was before Irma and before so many people died.

There were calls to require emergency backup generators at Florida nursing homes long before Hurricane Irma was a little breeze somewhere in the Atlantic Ocean.  The expense of operating a Florida nursing home caused these calls to go without any meaningful response.  To put it another way, money talked and people in power listened.

"Very few nursing homes had generators powerful enough to keep the air-conditioning running. In 2006, Florida lawmakers considered requiring nursing homes to maintain generators to ensure comfortable temperatures during disasters. But the industry raised concerns about the cost, according to The Miami Herald, and the bill died. Last week, after the Hollywood Hills deaths, Mr. Scott announced new rules requiring those generators."  Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra.

Certainly, the Florida nursing home is experiencing its share of allegations that it was either the sole cause or a contributing cause of these people's horrible deaths.  The current owners of the Florida nursing home have run a facility that received below-average ratings from Medicare even before Irma.  And they have experienced allegations related to Medicare and nursing homes before Irma, as well, including allegations of kickbacks.  See Ellen Gabler, Sheri Fink & Vivian Yee, New York Times supra (reporting that the current owners of the Florida nursing home "were among defendants who paid $15.4 million in 2006 to settle federal and state civil claims that they had paid kickbacks to doctors in exchange for patient admissions.").

No evidence of previous wrongdoing including kickbacks, even if admissible, would prove the allegations of wrongdoing now.  What evidence there is to prove the allegations now will depend in the end on what evidence is uncovered or introduced in the inevitable lawsuits that are the result of these tragic deaths.  See, e.g., "Report:  Before Deaths, Nursing Home Called Rick Scott's Emergency Number Three Times, To No Avail" (Tampa Bay Times staff, posted online on Friday, September 15, 2017), also available at http://www.tampabay.com/news/politics/stateroundup/report-nursing-home-called-rick-scotts-emergency-number-three-times-to-no/2337665.

("On Friday, a Miami law firm filed a complaint against the Hollywood facility ....); "'Red Flag' Calls Signaled Post-Irma Deaths at Nursing Home" (Associated Press copyrighted story published online in The New York Times on Saturday, September 16, 2017), also accessible at https://www.nytimes.com/aponline/2017/09/16/us/ap-us-hurricane-irma-nursing-home-deaths-.html (reporting that a family member of a surviving resident "hired an attorney after her 93-year-old mother became severely dehydrated on Wednesday.").

Our focus here remains on the liability insurance coverage questions arising from this tragedy.  In this final installment of a continuing series of articles, our particular focus here is on liability insurance coverage questions which confront the Florida nursing home.

2. Liability Insurance Coverage Questions and the Florida nursing home.

The liability insurance coverage questions surrounding the Florida nursing home in this circumstance are similar to the liability insurance coverage questions that surround the Florida power company which were previously asked here.

The questions that follow are not all the questions that can or will be raised concerning the Florida nursing home's liability insurance coverages.  Some of these questions may not apply.

"Occurrence":  Was there an accident neither expected nor intended from the standpoint of the insured, in this instance, neither expected nor intended from the standpoint of the Florida nursing home?  This is where the history of Medicare inspections and evaluations of the Florida nursing home may prove relevant.

In the context of Directors and Officers coverage if any for the operators of the Florida nursing home:  Is there any covered conduct at issue on the part of the Florida nursing home's directors and officers?  Alternatively or additionally, is any potentially "covered conduct" excluded because of the availability of liability insurance coverage, if any, under other liability insurance policies available to the directors and officers?

The number of occurrences, if any.  Was there one or were there 11 or more "occurrences," if any?  Was there one occurrence (if any) because, say, there was at least arguably one practice and procedure at the Florida nursing home which resulted in the damages that might be complained of here?  Or were there at least 11 occurrences (again, if any) because so far 11 people have died?  Or if there were any occurrences under the insurance policies at issue, were there more than 11, counting all the people who were injured but who have not died?

Time will tell, and it bears repeating:   Over time the answers to liability insurance coverage questions like these will likely be given by the Florida courts.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

WHAT DOES THIS PROVE, EXACTLY?

American Security Insurance Company continues to be sued in many lender force-placed insurance ("LFPI") cases.  It continues to file a declaration signed by the same person in those cases.  A recently found example comes from a U.S. District Court File in the Western District of Washington.   Download Alpert v. Nationstar Mort. LLC Declaration of Rebecca H. Voyles dated 07.23.15 Doc. No. 19 Filed 08.13.15 (W.D. Wash. Case No. 15-cv-1164).

The declarant (f/k/a "affiant") testifies in this recurring declaration that ASIC's program for lender force-placed insurance was approved by the local Insurance Commissioner.  That testimony is followed by reference to "excerpts" of ASIC's "rate filing" attached to the declaration, as in this case.

Do you think that "excerpts" are evidence?

Are they evidence of the rate filing that ASIC filed with the Insurance Commissioner, or are they "excerpts" as the declarant testifies?

Why aren't these questions asked in the cases in which the same declaration is filed, one after another?

Parenthetically, it is always of interest when a declaration is printed on the letterhead, as it were, of the law firm that filed this testimony, as in this case.

Dennis Wall is the author of "Lender Force-Placed Insurance Practices" published by the American Bar Association.

Please Read The Disclaimer.  ©2017 by Dennis J. Wall.  All Rights Reserved.

INSURANCE COVERAGE NOT PROVEN BY "BIAS": Ventura v. American Sniper.

In Ventura v. Kyle, 825 F.3d 876 (8th Cir. 2016), former governor and former professional wrestler Mr. Jesse Ventura filed a suit for libel against an author, one Kyle, a Navy SEAL who wrote a book called "American Sniper."

Mr. Ventura also sued the author's publisher, HarperCollins, also for libel.  By the time of trial, Mr. Kyle was dead and his widow was substituted as a party defendant in his place as executor of the author's estate.

At trial, Ventura's lawyers attempted to establish bias on the part of two witnesses who were employees of HarperCollins.  The attempt went like this.  Over objection and in the face of a motion for mistrial (which the District Court overruled and denied, respectively), on cross-examination Mr. Ventura's lawyer asked the witnesses whether they knew about insurance coverage carried by HarperCollins, and if they knew that the author's defense lawyers were being paid under the publisher's insurance policy for libel and defamation.  "The district court permitted this cross-examination, by which Ventura's counsel ostensibly sought to show the HarperCollins witnesses were biased in favor of Kyle because HarperCollins and Kyle were covered by the same insurance policy."  Both witnesses said "no," they did not know.   Ventura v. Kyle, 825 F.3d 876, 882 (8th Cir. 2016).

Ventura's lawyer then mentioned HarperCollins "insurance" for libel and defamation during closing argument.

The author's estate and the publisher appealed the cross-examination and the closing.  The Eighth Circuit reversed, holding that the mention of insurance during questioning and during closing argument was not supported by evidence recognized by the law in the record.  There was insufficient evidence of bias to support the questioning in the first place, for one thing, the Eighth Circuit ruled:

 As a matter of basic evidentiary foundation, Ventura never established by direct evidence or reasonable inference that Rosenblum and Hubbard (the witnesses in question, employees of the publisher) even knew about any insurance coverage or possible insurance payment. Rosenblum and Hubbard had no personal knowledge on the topic and were not qualified to testify on the subject. See Fed. R. Evid. 602 (parenthetical omitted).

Ventura's counsel argued in closing, “It's hard to believe that [Rosenblum and Hubbard] didn't know about the insurance policy because it's right in Kyle's publishing contract.” The one-line mention of insurance contained in the lengthy small-print contract merely acknowledges HarperCollins “may carry” insurance. (Emphasis added). The publishing contract does not establish HarperCollins actually purchased insurance, much less that Rosenblum and Hubbard knew about it.

It is difficult to envision how Rosenblum and Hubbard could have been biased or even influenced by an insurance policy of which they were unaware. 

 Ventura v. Kyle, 825 F.3d 876, 883-84 (8th Cir. 2016) (material in parentheses added except for emphasis by the Court; otherwise, material in brackets by the Court).

The Eighth Circuit was undoubtedly right on the narrow merits of the appeal in this particular case, that "witness bias" could not be a legally recognized foundation or predicate to inject insurance into a trial where the existence of insurance was simply not proven.  In this view, bias was a pretext for injecting insurance into the trial.

But there is a larger issue embedded in this narrow ruling.  Insurance coverage cannot be proven by bias even if bias is proven.  Even more broadly stated, you cannot prove that someone has insurance coverage because they "may carry insurance" or a person who knows nothing about insurance testifies about it.  In this view, bias cannot be used as a pretext for establishing insurance coverage.

Please Read The Disclaimer.  ©2016 by Dennis J. Wall.  All Rights Reserved.

ARBITRATION OF INSURANCE COVERAGE?

Many States encourage the use of arbitration provisions in insurance policies.  Arbitrations rarely rely on a record.  They are mostly done in private (or in secret, depending on which moniker you prefer).

There is no transcript.  There is no record of the evidence.  The testimony and the documents are not recorded.

This can make for issues where courts are called upon to supervise the arbitration proceedings.   Whenever one party or another appeals an arbitration award and requests the review of a court, the court is effectively being asked to supervise the arbitration proceeding.

However, when there is no record there can be no review at least on the ground that the evidence was insufficient to support the award.  This is true even in an appeal from a trial to the court or bench trial, where there is no transcript nor any other record of the proceedings that the reviewing court can review.

Such was the ruling in a recent non-insurance-coverage case decided without a jury by a trial court.  Understandably, the appellate court simply could not review evidence when there was no evidence in the record:

Held: Judgment for the plaintiff was affirmed. This court did not reach the merits of the defendant's argument that the evidence was insufficient to establish negligence on its part. There was no transcript of the bench trial, and there was no evidence in the record that a stipulation by the parties' attorneys to the facts and testimony was submitted to the trial court.

Allstate Ins. Co. v. Wally's Auto Repair, 2016 IL App (1st) 142676-U, ¶ 1 at p. *1 (Ill. 1st DCA September 23, 2016) (UNPUBLISHED OPINION. Subject to citation in limited circumstances in Illinois).

The lesson is clear:  If you want any court to review the record in your proceeding, whether the court you ask to review the record is a trial court or an appellate court, make sure that they have a record to review.

Please Read The Disclaimer.  © by Dennis J. Wall.  All Rights Reserved.