Author: Jack Marshall

Now THIS Is As Close To Genuinely Frivolous Lawsuit As You Are Likely To See…And Naturally, It Is An Attack On The President

/ Jack Marshall / 5 Comments

Publicity stunt? Whatever would make you think this lawsuit is a publicity stunt???

As we have discussed here before, though we often complain of frivolous lawsuits,  even the worst law suits seldom meet the technical standard of what is “frivolous.”

The D.C. bar’s ethics rules state that…

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.

This provides what I sometimes call “stupid lawyer” protection, on the theory that a stupid lawyer may have a sincere belief that an absurd action has a chance of prevailing, thus avoiding the rule’s rock bottom standard for “frivolous.” The recently filed lawsuit in Washington, D.C. against President Trump and the local Trump hotel, however, may be that rarest of legal birds, the truly frivolous lawsuit.

The married couple that owns  the Cork Wine Bar in Washington claim that the Trump International Hotel and the  restaurants similarly located in the Old Post Office building have an illegal advantage over other nearby establishments, like theirs, because of the association with the President.  Essentially the law suit claims that it’s all so unfair.

In addition to the res ipsa loquitur factor, which is to say that the lawsuit screams abuse of process to harass the President, we also have these suspicious factors: Continue reading →

A Very Bad Month For Price Waterhouse Coopers

/ Jack Marshall / 14 Comments

Earlier this month, Big Four accounting firm Price Waterhouse Coopers sustained a high-profile hit to its reputation when  the senior accountants the firm sent to ensure the integrity of the Oscars broadcast, a job the firm has had for more than half a century,  couldn’t manage to hand out the correct envelope at the televised ceremony’s surrounding.  Now it looks like the chaos that this botch created was a prelude to far, far worse.  For years, federal investigators have been scrutinizing Catapillar’s overseas tax affairs, examining the complex maneuvers involving billions of dollars and one of the company’s Swiss subsidiaries.

Now, a report commissioned by the government accuses the equipment manufacturing giant of carrying out a massive tax and accounting fraud involving billions of dollars. And the accounting firm Caterpillar employed to perform its audits?

The envelope please?

You guessed it.

The report, part of a wide investigation being undertaken by the United States attorney’s office for the Central District of Illinois, the IRS and the Inspector General of the F.D.I.C., thus far is neither public nor made available to Caterpillar for review.  It  describes an illegal company strategy to bring in billions of dollars from offshore affiliates while avoiding federal income taxes.  Leslie A. Robinson, an accounting professor at the Tuck School of Business at Dartmouth College and the author of the report, concluded that…

“Caterpillar did not comply with either U.S. tax law or U.S. financial reporting rules. I believe that the company’s noncompliance with these rules was deliberate and primarily with the intention of maintaining a higher share price. These actions were fraudulent rather than negligent.”

Dr. Robinson’s 85-page analysis, based on publicly available and internal financial data from Caterpillar as well as bank data tracking wire transfers from Switzerland into the United States, found that Caterpillar brought back $7.9 billion into the U.S. structured as loans, over and beyond the income that had already been taxed overseas. The company failed to report those loans for tax or accounting purposes, though under U.S. law those profits would be subject to federal taxes.

For example, the professor  found  correspondence between the company and the Securities and Exchange Commission in which Caterpillar said it had $2.5 billion  in income eligible to be brought to the United States tax-free. The company, she wrote, did not have “anywhere near” that much money still available to be brought in tax-free.

No charges have been filed yet. Last week, federal agents raided three Caterpillar buildings near its headquarters in Peoria, Ill., as part of the investigation. Caterpillar said it was cooperating with law enforcement, but denied wrongdoing. The Internal Revenue Service is currently seeking more than $2 billion in income taxes and penalties on profits earned by the Swiss unit.

Continue reading →

Ethics Train Wreck Update: Now The Dictionary People Have Boarded The Post-2016 Election Freakout

/ Jack Marshall / 26 Comments

It’s really depressing. I did not expect to see so many professions and professionals debase themselves and their ethical principles because they couldn’t deal with the results of a presidential election. . Historians. Judges. Scientists. Professors. College presidents and administrators. Performing artists. Intelligence community professionals. Judges. Journ–well, no, that one wasn’t a surprise.

My own profession, legal ethicists, booked a seat on the ethics train wreck, a development that was profoundly disappointing. Wrote one member of the profession who has remained clear -eyed while keeping his integrity, Steve Lubet in Slate,  “As a liberal Democrat, I have no sympathy for Conway’s habitual disregard for truth. As a professor of legal ethics, however, I think this complaint is dangerously misguided and has the potential to set a terrible precedent…The professors no doubt have faith in the professionalism of the District of Columbia Office of Disciplinary Counsel, but the bar authorities in other states may not always be reliably even-handed or apolitical. It is hardly inconceivable that lawyer discipline might somewhere be used as a weapon against disfavored or minority candidates, or as a means to squelch protest movements and insurgent campaigns. In the 1940s and 1950s, suspected Communists and alleged “fellow travelers” found their law licenses in jeopardy in many states. In the 1960s and 1970s, civil rights lawyers were hauled before the bar authorities in the South. The complaint against Conway is an unfortunate step back in the direction of using lawyer discipline against political enemies….”

Bingo.

Now “America’s dictionary,” Merriam-Webster, has decided that it is within its mission and purview to attack and mock the President of the United States..

Almost immediately after his election, the dictionary’s editors began trolling Trump and his administration, defined, by Merriam-Webster, as “to antagonize (others) online by deliberately posting inflammatory, irrelevant or offensive comments or other disruptive content.”

The website Acculturated has observed that on social media and its website Merriam-Webster has ridiculed the President  “for his every spelling mistake, grammatical error, and verbal gaffe. In honor of the election, they changed their header photo to a picture of a German word defined as the “collapse of a society or regime marked by catastrophic violence and disorder.” Then they highlighted what they claimed was the word most frequently looked-up, “fascism.” On Inauguration Day, they tweeted “Welp,” a word that conveys dismay or disappointment. The company also derided Betsy DeVos, Sean Spicer, Steve Bannon, and, of course, Kellyanne Conway.

This, needless to say, is not their job, their mission, or responsible professional conduct. It is, as it is for the other derailed professionals, smug virtue signalling and tribalism. Acculturated again:

[T]he dictionary’s editors are clearly partisan. They didn’t harass Hillary Clinton, and they don’t needle sports stars, celebrities, or, well . . . anyone else like they needle the President and his people.Theoretically, even that could be okay—a good, playful, occasional joke from the dictionary could have the whole country laughing. But if you mock one person too often, you start to reveal a pattern. If that pattern persists, the fun and games lose their light-hearted feel, and begin to betray bias instead.

Ya think???

Continue reading →

Coincidence, Ethics Violation, Or A Playground Rhyme Come True: The Lawyer’s Burning Pants

/ Jack Marshall / 17 Comments

I love this story!

 Miami defense lawyer’ Stephen Gutierrez shocked onlookers when his pants burst into flames mid-trial as he was addressing the  jury. Gutierrez was defending a client  accused of intentionally setting his car on fire in South Miami. Yes, it was an arson case. He had just begun his closing argument when smoke started billowing from his pants pocket.

By sheer coincidence I’m sure, the lawyer was arguing that the defendant’s car spontaneously combusted—just like the lawyer’s trousers!— and was not intentionally set on fire. Observers told police that Gutierrez had been fiddling in his pocket right before his pants ignited. He ran out of the courtroom, and the jurors were ushered out as well. After  Gutierrez returned unharmed, he told the judge that  it wasn’t a staged  demonstration gone horribly wrong, but just a coincidence. A faulty battery in his e-cigarette had caused the fire.

In an arson trial.

During closing argument.

Where the defense was “spontaneous combustion.”

Okay!

Jurors convicted Gutierrez’s client of second-degree arson anyway. Miami-Dade police and prosecutors are now investigating the episode, and Miami-Dade Circuit Judge Michael Hanzman is deciding whether to hold him in contempt of court.

Comments: Continue reading →

Boy, I Bet That Cruel, Xenophobic, Trump Administration Will Deport This Poor Kid…

/ Jack Marshall / 30 Comments

None of my captions for this photo of Oliver Funes-Machado are in good taste. Pass.

I don’t know about you, but I’m thoroughly sick of the daily media stories about the hardship of illegal immigrant families being “torn apart” when a parenty finally is held accountable for breaching our borders and breaking U.S. laws. Here is a refreshing story about a likely deportation that everyone can get behind.

I hope.

ICE officials in North Carolina confirmed that Oliver Funes-Machado is an illegal immigrant, and I bet the news media makes sure the “illegal” is included when reporting on his case, if they do.  The 18-year old has been charged with cutting off his mother’s head with a butcher knife.

This is unethical, by the way.

Originally from Honduras, Oliver is accused of repeatedly stabbing his 35-year-old mother before beheading her. He then walked outside, holding her head in one hand and the knife in the other, as he waited for Franklin County deputies to arrive. He  called 911 to report the crime, just like a good citizen should .

Well, that’s a mitigation, I guess.

The teen told the 911 dispatcher that he killed his mother “because I felt like it.”

I don’t think Honduras is sending us their best people.

I’m sure he is a Dreamer, but I still think he should be deported.

Comment Of The Day: “Double Standards, Hypocrisy, News Media Bias, “Bias Makes You Stupid” And Cognitive Dissonance—This One Has Them All! Thanks, Ben Carson!”

/ Jack Marshall / 18 Comments

Literally everyone I told about Ben Carson equating slaves with immigrants made a face like they had bitten on a lemon. The comparison is distasteful at a visceral level, because what we think of as immigration does not include being captured and shipped in chains to a strange land for sale, raping and breeding. Once it was pointed out that Barack Obama, rather than only Trump’s notoriously clueless HUD Secretary ( He believes, for example, that Egypt’s pyramids were built to store grain, not dead pharaohs), also championed this false equivalency, many rushed to defend it. The default argument was  that old standby of the desperate, the dictionary, asserting that the most common definition of  immigrant,  “a person who comes to live permanently in a foreign country,” applies to those who arrived in slave ships too. It is an intellectually dishonest position. Wikipedia accurately describes what immigrant means in common parlance–and it isn’t slavery:

Immigration is the international movement of people into a destination country of which they are not natives or where they do not possess citizenship in order to settle or reside there, especially as permanent residents or naturalized citizens, or to take-up employment as a migrant worker or temporarily as a foreign worker

In discussing “push and pull factors,” the article notes:

Push factors refer primarily to the motive for immigration from the country of origin. In the case of economic migration (usually labor migration), differentials in wage rates are common. If the value of wages in the new country surpasses the value of wages in one’s native country, he or she may choose to migrate, as long as the costs are not too high. Particularly in the 19th century, economic expansion of the US increased immigrant flow, and nearly 15% of the population was foreign-born, thus making up a significant amount of the labor force.

How odd, then, that the Africans slaves were pushed to “migrate” to a land where they received no wages at all! Of course, the “costs” were paid for by others, so that was one incentive, I guess…

Non-economic push factors include persecution (religious and otherwise), frequent abuse, bullying, oppression, ethnic cleansing, genocide, risks to civilians during war, and social marginalization..

Wow, those African “immigrants” were strange. They immigrated to get more persecution, terrible abuse, and ultimate social marginalization!

I confess I find the defense of this intentional blurring of material distinctions for cynical demagoguery as annoying as the demagoguery itself.

Fortunately, texagg04 managed to be more restrained, and approaches the issue from a different and interesting perspective. Here is his Comment of the Day on the post, “Double Standards, Hypocrisy, News Media Bias, “Bias Makes You Stupid” And Cognitive Dissonance—This One Has Them All! Thanks, Ben Carson!”: Continue reading →

Ethics Dunces In Arms: Gloria Steinem And The New York Times Demonstrate How “The Star Syndrome” Works

/ Jack Marshall / 24 Comments

Gloria 2017 (right), with her ghostwriter, Gloria 2007 ( left)

Last week, Gloria Steinem authored an op-ed in The New York Times headlined, “Women Have Chick-Flicks. What About Men?”.

It was standard issue male-bashing; biased and badly researched junk, but more interestingly, at least half of it was ten years old, substantially lifted from a piece Steinem wrote for the Women’s Media Center website in 2007. This kind of lazy self-plagiarism is a major ethical breach that respectable publications do not suffer gladly, at least when the miscreant isn’t a feminist icon that their editors worship, or at least feel has earned immunity from those annoying ethical principles lesser mortals have to deal with.

As an aside, it really is a silly op-ed, not worthy of publication the first time, much less plagiarizing now. Some excerpts:

I was on a flight from New York to Seattle when a long delay on the tarmac prompted the airline to offer us a free movie. As the flight attendant read the choices aloud, a young man across the aisle said, “I don’t watch chick flicks!” I knew what he meant, and so did the woman sitting next to me. A “chick flick” is one that has more dialogue than car chases, more relationships than special effects, and whose suspense comes more from how people live than from how they get killed.

Translation: “Men are morons, women are sophisticates.” No generalizations or stereotypes there…

Think about it: If “Anna Karenina” had been by Leah Tolstoy, or “The Scarlet Letter” by Nancy Hawthorne or “A Doll’s House” by Henrietta Ibsen — if “The Invisible Man” had been “The Invisible Woman” — would they have been hailed as classics? Suppose Shakespeare had really been the Dark Lady who some people still think he/she was. I bet most of her plays and all of her sonnets would have been dismissed as ye olde Elizabethan chick lit and buried until they were resurrected by stubborn feminist scholars of today.

Two words: Prove it. Since  very few  great female authors were writing similarly brilliant literature in those periods, Steinem’s bet is rigged. Where are those buried woman-authored masterpieces that stand up as the equals of “King Lear” and  “War and Peace”? I’ll make another bet: I bet if those works had been written by women, we’d know it, and they would be just as admired and immortal as the works authored by men. Has Gloria heard of Wuthering Heights? Jane Eyre? Frankenstein? Pride and Prejudice? Has she heard of Jane Austen?

But I digress.

The original article published referred to that airplane flight as taken by Steinem  “recently.” That word was taken out after Gloria’s cheat was discovered, and this “Editor’s Note” was added: Continue reading →

Comment Of The Day : “Incident At Big Bowl”

/ Jack Marshall / 9 Comments

John Billingsley has been participating here for less than two months, and this is his first Comment of the Day. He explores some of the broader labor, management and cultural  issues behind the curtain in my rueful account of  inept service at an airport fast food restaurant.

Here is John’s Comment of the Day on the post, “Incident at Big Bowl.”

I believe this is an issue that goes much deeper than it appears on the surface and Son of M and Tom M in their analyses have identified some of the issues at the root of the problem. Son of M said, “I don’t know that people at this level of employment have EVER cared or are ever going to.” There are some who care, and they can be identified when you are served by them, but I agree that most them appear not to. I think this is because our culture overall is not respectful of the people who do those jobs and so they have no reason to respect themselves as a person who performs that work.

I had the opportunity to live in Japan for about two years. That was over 40 years ago, and I still remember the complete professionalism of just about every service worker I encountered. Of course, it is a cultural thing. I wish people who provide services here could develop the attitude that it is not demeaning to be a service worker.

Tom asks, “Why is all of the blame on the employees?” Continue reading →

Comment Of The Day: “Gee, Would It Really Have Been So Hard For Democrats And The News Media To Just …Wow.”

/ Jack Marshall / 32 Comments

Spartan (“Sparty” to her friends) is a D.C. area lawyer  and professional woman, was well as the mother of girls. Thus her observations on the travails of women in the Halls of Power have special interest.

Here is Spartan’s “Comment of the Day” on post,  Gee, Would It Really Have Been So Hard For Democrats And The News Media To Just To Admit That Rep. Richmond’s ‘The President’s Female Counselor Looks Like She’s Used To Giving Blow-jobs’ Joke Was Wrong, Period? Apparently So. Wow:

I am going to criticize Ms. Conway for a minute, and I hope you all bear with me.

I am a career woman and, in fact, am the breadwinner for my family. Jack’s sister and I probably could exchange endless stories about the challenges of being a successful white collar female. I accept this as a fact in my life and recognize that I am held to a different standard without being bitter or loud about it. I did not wear red and stay home today despite the protest. In fact, I was supposed to be out of the office for meetings all day but deliberately came into the office so there would not be a presumption that I was taking part. I do not wear low cut dresses or stiletto heels. I do not sleep around the office — and never have. Continue reading →

I Can’t Resist: Another Restaurant Ethics Tale

/ Jack Marshall / 17 Comments

I’m sitting here in my office waiting for an important call from a potential client, so I don’t want to start a major post (as in “Trump’s Wiretapping Accusation”), so I’ll just note this strange episode from last night.

It was along day for ProEthics, so Grace and I decided to order out from a terrific Mediterranean place that delivers. We love their fattoosh, which is a salad that includes little pieces of dried pita bread. That was an item in the order.

When everything arrived, the fattoosh was missing the little pita bits. Now, this had happened once before, but I didn’t bother to make a big deal out of it. Still, fattoosh without the pita isn’t fattoosh. Now it had happened  again, making it 40% of the times we had ordered the dish that it was incomplete. I decided to call up and complain.

The owner said that I was right, but that the selection in the menu doesn’t specifically list the pita as an ingredient. Sometimes, he said, people don’t know what fattoosh is, and complain that is does have the pita bits.

Yes, I said, but fattoosh without the pita is just a salad.  To wit:

Fattoush (Arabic: فتوش‎‎, also fattush, fatush, fattoosh, and fattouche) is a Levantine bread salad made from toasted or fried pieces of pita bread (khubz ‘arabi) combined with mixed greens and other vegetables, such as radishes and tomatoes.

“Right! Right!” he said, “But people who don’t know that complain. So sometimes we leave the pita out. Sometimes we put it in.”

“You do know that if the menu says fattoosh, and fattoosh means “salad with pieces of pita bread in it,” you don’t have to specify that the pita is included?” I queried.  ” The name says that it’s included. Are you telling me that if I want fattoosh, I have to make a point of saying that I really want fattoosh?”

That’s right, he said.

I could not make the man see that there was anything wrong with this.