Blog

UFC’s Copyright Infringement Enforcement

Tonight’s stacked card is a good opportunity to remind hospitality businesses that the UFC is a litigious entity when it comes to copyright enforcement. Restaurants, bars, and private individuals who pirate UFC pay-per-view fights have come within Mr. White’s crosshairs along with insubordinate fighters, insolent agents, and up-and-coming promoters.

Although UFC has enjoyed limited success against these pirates, UFC and other pay-per-view promoters must plead and prove exacting statutory elements. Furthermore, their damages are generally limited by statute and judicial discretion. Establishments receiving demands from the UFC should consult with an experienced federal litigator before responding.

BREAKING: Supreme Court Rules in Favor of Masterpiece Cakeshop That Refused to Bake Cake for Gay Wedding

This morning, the United States Supreme Court ruled 7-2 that the Colorado Civil Rights Commission violated the religious rights of Jack Phillips, owner of the Masterpiece Cakeshop, when it purported to require the shop to bake a wedding cake for a same-sex couple. Phillips, an expert baker and a devout Christian, told the couple he would make them a birthday cake but not a wedding cake due to his religious opposition to same-sex marriages. Notably, Metro Denver has numerous shops available to bake wedding cakes.

After being abused by the state regulator, Phillips sought administrative and judicial relief in Colorado to no avail before petitioning the United States Supreme Court for review.

As expected, the Masterpiece Cakeshop opinion was authored by “swing vote” Anthony Kennedy, who may retire this year. Although the result was previously predicted by Attorney Beltran and other commentators, it was expected to be a narrow decision. Surprisingly, liberal Justices Kagan and Breyer sided with the conservative wing and voted against Colorado. The justices were appalled at the clear anti-religious animus of the Colorado Commission and its previously capricious rulings.

The separation of church and state presupposes that the state can neither advance nor inhibit religion. Moreover, the state must always respect citizens’ right to exercise and articulate their honestly held religious beliefs. If you believe you have been subject to religious discrimination by a state regulator, please contact the office.

Executive Privilege in the Age of Political Witch Hunts

The Special Prosecutor’s proposal to interview President Trump would violate executive privilege. Executive privilege has been asserted in one form or another for over two centuries by Presidents including Washington, Jefferson, Jackson, Nixon, Reagan, Clinton, Bush, and Obama.

Like many privileges, the executive privilege is a qualified privilege and the touchstone is substantial need. Mere probable cause does not suffice. In cases involving testimony, the President and his staff generally prevail, but subpoenas duces tecum (requiring production of documents or physical evidence) are generally enforced allowing investigators to obtain this nontestimonial evidence. The physical act of providing evidence is less burdensome than the indignity of questioning.

Persons enjoying legal privileges are again reminded that an investigator with a subpoena is an adversary intent on incriminating the recipient and not merely a “public servant” trying to “clear things up so we can move on.”

Prosecutor’s Animus Against Trump

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The mainstream media previously claimed that the administration’s culpability was somehow self-evident because investigators raided attorney Michael Cohen’s office instead of issuing dignified subpoenas. Such an absurd assertion reduces to the argument that the quality of a case can be judged based on the ruthlessness of the prosecutor.

Investigators previously claimed that information showing their improper methods could not be released without compromising “sources and methods.” Apparently their “sources” were Democratic Party hacks and their “methods” were leaks and unauthorized disclosure. In any event, the “investigators” responsible recently “resigned” to pursue other “opportunities.” Mainstream reporters fail to identify which private sector employer provided an “opportunity” to use those dubious talents.

Yesterday, a judge in the Manafort case concluded that the Special Prosecutor’s aim is to hurt Trump. Although prosecutors are pursuing a myriad of pretextual and technical violations of otherwise upstanding Republicans, they fail to pursue any Russians with similar vigor. Although President Trump is the most investigated man in history, his detractors fail to show any prosecutable substantive misconduct.

Unable to prove a case against the administration, and unwilling to seriously pursue extradition or rendition of the Russians responsible for the substantive misconduct, the prosecutors are now attempting to “flip” President Trump’s advisers. Although this is unfortunately standard operating procedure for desperate prosecutors, it will prove as ineffective as it is unethical.

 

 

Scott Administration Obtains Stay of Voting Rights Ruling

Last week, a federal appeals court stayed a previously discussed decision by a Tallahassee Florida judge to preempt the Florida constitutional process by inventing federal constitutional objections to Florida’s system for restoring felons’ civil rights. Because this opinion ran sharply athwart settled constitutional law, its chief effect was to change the optics of a Florida constitutional amendment expected on the ballot in November. The Eleventh Circuit Court of Appeals rejected the trial court’s attempt to legislate from the bench and ensured that any changes to current law will be orderly and only through the democratic process.

The trial court’s implicit holding that reinstatement of felons’ right to vote is an entitlement rather than an act of mercy is bizarre when placed within its historical context. At common law, the term “felony” denoted an offense for which the convicted would either be executed or ousted from his property. In either event, he would be ineligible to vote. The Fourteenth Amendment, passed in the wake of reconstruction to secure civil rights for all, specifically contemplated that felons would forfeit their right to vote along with their freedom. All felons are warned of this consequence during plea and/or sentencing.

Article IV, Section 8 of the Florida Constitution provides a mechanism to restore civil rights to felons. Because this process requires an individualized assessment, discretion is vested in our democratically elected officials to determine which felons are sufficiently rehabilitated to exercise this weighty power. The federal trial court purported to usurp this power and supervise the Florida Cabinet in exercising this constitutional duty despite admitting its lack of expertise.

This office has represented many convicted felons and routinely attempts to reduce, mitigate, or avoid punishment. However, no criminal defense client has ever sought legal services because he made good choices. Exercise of the vote impacts the lives of millions of other people. Convicted felons also lose their (constitutionally enumerated) right to own firearms upon conviction. Few would argue that this right should be restored automatically without an individualized assessment. The vote should be treated with similar care.

This shameless attempt to legislate from the bench, and the correction of that abuse by the 11th Circuit, underscores the vital work of Governor Scott and President Trump in selecting humble judges who will interpret the law without imposing their will.

Legal Analysis of Cohen Raid

Clients are once again warned about unethical prosecutors in the wake of the raid on Attorney Michael Cohen’s offices.

Attorney-client privilege and confidentiality are the oldest recognized privileges, dating back to 17th Century England. According to the United States Supreme Court, the assurance of confidentiality encourages clients to provide “full and frank” information to their lawyers, who are then able to provide candid advice on how clients may conform their conduct to the law.

The DOJ has undermined this centuries-old tradition and thwarted politicians’ attempts to obtain quality legal advice and ensure good government.

As Lavrentiy Beria (the Soviet counterpart to J. Edgar Hoover) said, “show me the man, and I’ll show you the crime.” Given the ease with which a grand jury will indict the proverbial ham sandwich, these tactics are not only unethical, they are strikingly ineffective.

For nearly a year, these investigations have monopolized resources needed for counterterror, counterintelligence, or enhanced background checks necessary to prevent school shootings. Sloppy case management and myopia continue to squander precious investigative time.

Any prosecutor can put any witness in a position where they either look stupid or lie (sometimes both). Now that prosecutors have shown bad faith, Trump should refuse to cooperate with this blunderbuss fishing expedition.