Archive for year: 2016

By: Mike Ozanian 

Last night, the Borough of Carteret in New Jersey filed a class action complaint on behalf of itself and others against FieldTurf USA and its parent, Tarkett.

According to the suit, “Plaintiff purchased six defective Synthetic Grass Fields, defined below, from FieldTurf between late 2006 and 2010, at a time when FieldTurf knew that its marketing claims and sales campaign were grossly exaggerated, and that the Synthetic Grass Fields were defective.”

U.S. Senators Cory Booker and Robert Menendez have urged the Federal Trade Commission to open an investigation into FieldTurf’s conduct, noting the need for government officials to be “vigilant against deception and misuse of taxpayer dollars.”

This is the second big suit filed against the artificial turf company in recent days. Several days ago, Newark, New Jersey schools filed a class action suit against againstFieldTurf, the nation’s leading maker of artificial sports fields, alleging the company defrauded more than 100 public and private schools and municipalities in the state.

Two years ago I wrote that schools that have replaced their grass fields with artificial turf are finding out the hard way that the plastic stuff doesn’t always last as long as advertised.

The Newark complaint capped followed an NJ Advance Media investigation that revealed the company sold high-end turf for years after executives knew it was falling apart.

Click here for the original article.

Miami’s Janet Reno, the first woman to be United States attorney general, died Monday at 78 from complications connected to Parkinson’s disease.

Her eight-year tenure in that office brought some of the country’s most high-profile issues to her desk including the seizure and return of Elián González to Cuba, the capture of the Unabomber Theodore Kaczynski and the 51-day Waco siege standoff in which 76 people died.

More Gladesman than Washingtonian, Reno grew up in a Miami that’s increasingly hard to find today, earning her the nickname “swamp woman.” Valedictorian at Coral Gables High School, she was raised in a house her parents built near the Florida Everglades. She would walk around barefoot surrounded by animals, peacocks and donkeys that would come in and out of the house. Living near the Everglades she learned to be independent and developed thick skin.

“That house is a symbol to me, that you can do anything you really want to if it’s the right thing to do and you put your mind to it,” said Reno in 1993.

In 1978, she was appointed state attorney for what was then Dade County and held the office through four elections. In that “wonderful and rambunctious city,” she called Miami later in her Senate confirmation hearing, she cut her teeth handling high-profile cases, including Arthur McDuffie’s.

Four Miami-Dade police officers were acquitted by an all-white jury of charges in the beating death of McDuffie, a black man, in 1980. The tension surrounding that case broke out in a full-scale three-day riot that left much of Miami’s Liberty City smoldering.

 

“I have lost what little faith I’ve been able to maintain in this system as of today,” said Marvin Dunn to Chanel 4 news after the announcement of the verdict. He and others in the black community blamed Reno and called for her to stand aside while an investigation of her office was conducted. She refused to leave her post despite ongoing criticisms from Dunn and others.

Today, Dunn says he admired the way she handled the case–coming in person to every community meeting he can remember during and after the riots and facing her critics.

“Janet Reno would have prosecuted her own mama if she felt she had a reason to do it. She was the most objective, tough-minded, fair-minded person I’ve ever known,” said Dunn after hearing the news of her passing.

But the backlash from the McDuffie case gave her a taste of what was to come in the other high-profile cases she oversaw.

In her 1993 confirmation hearing for U.S. attorney general she gently acknowledged the ground she was breaking – she would become the first woman to hold that office.

“I want to remember what it was like not to be able to get a job because I was a woman,” said Reno, “and do everything I can to see that Americans have equal opportunity.

Reno first challenge was an inherited problem in Waco, Texas. A religious group suspected of weapons violations and child abuse was engaged in a standoff with the FBI. Reno ordered them in after 51 days, leaving almost 90 people dead.

In 2000, Reno authorized agents to storm the Little Havana home where González was living with relatives in order to return him to his father in Cuba.

Shortly before Elián González was rescued in an inner tube in the Atlantic Ocean off Fort Lauderdale just before Thanksgiving 1999, Miami Cuban-Americans had shut down the city. Furious at the Coast Guard’s apprehension of Cuban rafters close to Miami’s shores, they blocked off the city’s major thoroughfares for an entire day.

Then Attorney General Janet Reno was all too mindful of that volatility when Elián suddenly became an international custody dispute – the little boy’s Cuban father vs. Miami Cubans who insisted he remain with relatives in Little Havana. The legal issue was clear: Under international law, Elián had to be returned to his dad in Cardenas, Cuba. But to Miami Cubans it was an apocalyptic moral issue – and a means of sticking it to their mortal enemy, Fidel Castro.

Most legal observers today believe Reno made a serious error, albeit with good intentions. In order to avoid another Miami conflagration, she decided to give the Cuban exiles their day in court. But that day turned into months – a bizarre, seven-month long debacle that became 24/7 cable news fodder and made Miami look like a rogue republic in the Everglades as the exiles refused at every turn to give Elián up.

In the end, Reno’s strategy backfired. Realizing the exiles had no intention of handing the boy over, she had to order U.S. agents into Little Havana in the middle of the night in April 2000 to seize him in a raid that sparked massive protests in Miami. The legal battle, however, would last another three months before Elián and his father could finally fly back to Cuba.

She angered both Cuban exiles – who never forgave her for the raid – and the rest of the nation and the world, which came to view Miami if not the U.S. as an international scofflaw bowing to an unhinged swing-state voter bloc. Some say national sentiment about Elián González’s case contributed to the outcome of the 2000 presidential elections, which handed a victory not to the incumbent party but to Republican George W. Bush.

With the change of administration, Reno was replaced as U.S. attorney general. She unsuccessfully ran for Florida governor in 2002, defeated by a narrow margin in the primary. She continued on the lecture circuit talking about education and the justice system.

Attorney John Hogan worked at Janet Reno’s side for nearly 20 years, at the State Attorney’s Office in Miami and later at the Justice Department. Hogan says, Reno had a straightforward approach:

“As far as how the public may react, you’re damned if you do and you’re damned if you don’t, so you might as well just do what you think is right and then go from there,” said Hogan.

“She didn’t act like she couldn’t do the full job; she did everything” – John Kozyak, chairmen of the Parkinson Foundation

Hogan says Reno was a meticulous litigator with a flawless memory and a penchant for to-do-lists. His favorite story about Reno’s tenure as attorney general has to do with the Parkinson’s disease that ultimately took her life; she was diagnosed in 1995.

Every Thursday, Reno had a standing invitation to reporters to come to Justice Department with any questions they wanted to ask.

“About an hour before it was supposed to start, she called me and the press secretary in and said, ‘I went to the doctor’s yesterday. I’ve been diagnosed with Parkinson’s,and I’m going to announce it to the country right now,” recalls Hogan. “She said, You’ve noticed my hands shaking—it’s Parkinson’s disease. And then, let’s move on.”

Hogan says the press secretary and reporters both were flabbergasted, but Janet Reno thought the country deserved to know. And she wasn’t going to let anyone tell her otherwise.

Reno was diagnosed with Parkinson’s disease in 1995 and lived with it openly while in office, refusing to hide tremors in her hands as many others with the condition do. She would not put her hands in pockets or hold them behind her back. She refused, however, to be a spokesperson for the disease. But her normalization of Parkinson’s, people say, helped educate the public about the disease.

John Kozyak was Reno’s friend and chairman of the Parkinson’s Foundation. He said her living and continuing in her role as attorney general with Parkinson’s helped so many other struggling with the disease.

“She didn’t act like she couldn’t do the full job; she did everything,” said Kozyak, adding that she also faced criticism for this.

“You have to respect Janet Reno,” he said. “She was an amazingly bright, genius, kind, unassuming person. She was literally one of a kind and the whole country will miss her and the Parkinson’s community will probably miss her the most.”

Click here for the original article.

By Corali Lopez-Castro and David A. Samole

One of the rare legal issues in which bankruptcy practitioners usually are able to speak to clients in absolute terms to provide clear legal advice is the limitations period concerning the pursuit of avoidable transfers in bankruptcy proceedings. Section 546 of the Bankruptcy Code is clear that a trustee has two years after the order for relief to bring an avoidable transfer action. Section 548 of the Bankruptcy Code equally is clear that the trustee maypursue avoidable transfers that occurred within two years prior to the filing ofa bankruptcy petition. And Section 544(b) of the Bankruptcy Code provides thetrustee with “strong-arm” powers to avoid a transfer that is voidable “under applicable law” by a creditor holding an unsecured claim.

This means that the trustee may look to non-bankruptcy law (usually state law)and deploy any avoiding power that the trustee finds there. The most commonuse of Section 544(b) is to give the trustee a right of action under state fraudulenttransfer law. These are most often useful to the trustee because of the longerreach-back period available under state law, which generally range from three tosix years prior to the petition date.

So, for avoidable transfers that occurred outside the state law avoidable transfer period, generally the wisdom imparted to clients is that those are outside thereach of trustees and the bankruptcy court. That is, unless the Internal RevenueService is a creditor at the time of the transfer and has filed a proof of claim in thebankruptcy case. In such instances, the majority line of cases enable a trustee togo beyond the state law limitations period in order to use the IRS recovery period— which runs 10 years after the date of tax assessment — to pursue avoidabletransfers for the benefit of the bankruptcy estate.

Time-Barred

This issue is not some drop in thebucket merely for academia to ponder its theoretical implications. Theeffect is real and should be substantial to provide immediate improveddividends to creditors in bankruptcycases, as discussed in a recent bankruptcy case from the Southern District of Florida. Practice pointers alsoare relevant to discuss in relation tothis improved creditor recovery tooland potentially increased exposurefor debtors and their transferees.

Don’t Mess with the IRS

Section 6502(a)(1) of the InternalRevenue Code provides the IRS withauthority to collect taxes for 10 yearsafter the date of tax assessment. So,while the IRS may be owed money prior to the date of assessment for agiven tax year, this provision givesthe IRS that certain time frame topursue collection after assessment.In turn, Section 6901(a) of the Internal Revenue Code enables the IRSto pursue avoidance actions againsttransferees of the taxpayer’s property, subject to the same limitationsapplicable to collection from thetaxpayer; that is, subject to the same10-year post-assessment recoveryperiod. However, in order to establish transferee liability, the IRS mustrely substantively on applicable statelaw, since Section 6901 of the IRC only provides a procedural remedy.

This means the IRS has to showthat a transfer was actively or constructively fraudulent like any othercreditor. Still, the IRS is not limitedby state statutes of limitation topursue these recovery actions. U.S.v. Summerlin, 310 U.S. 414, 416(1940) (Summerlin) (holding it iswell settled that the United Statesis not bound by state statutes oflimitation whether the United States.

Corali Lopez-Castro and David A.Samole are partners at Kozyak Tropin &Throckmorton in Miami. Theyhandle local and national corporate bankruptcy litigation matters. Reachthem at clc@kttlaw.com and das@kttlaw.com, respectively.

 Click here for the original article.