1. Litigation of Intellectual Property Issues

Lead trial and appellate counsel.   From 1994 to 2001, a small electronic publisher fought a long term and complex battle against the giant West Publishing--to establish the right of publishers, lawyers, students and researchers to use the text of (and citations to) published judicial decisions without restrictions, and without paying fees to West.  In two separate 1998 decisions, the Second Circuit affirmed federal district court decisions in favor of HyperLaw, holding that West did not have any copyright in either the judicial decisions or the citations in West’s Reporters.  The U.S. Supreme Court then denied certiorari.

In HyperLaw v. West Publishing VI (Appeal-Text), 158 F.3d 674, 48 U.S.P.Q. (BNA) 1560 (2d Cir. 1998) the Court of Appeals stated:

The district court found that the elements of the West case reports for which West seeks copyright protection lack sufficient originality or creativity to be protectable--whether considered separately or together. * * * * Our decision in this case does not mean that an editor seeking to create the most accurate edition of another work never exercises creativity. As West argues, our [prior] decisions establish a low threshold of creativity, even in works involving selection from among facts. But those cases involved the exercise of judgments more evaluative and creative than West exercises in the four elements of the case reports that HyperLaw intends to copy.

Co-plaintiff, Matthew Bender, did not participate in the portion of the case related to the text of judicial decisions.  Thus, HyperLaw alone established that West and other legal publishers cannot stop (or charge for) the copying and use of the judges’ decisions, citations, names of counsel and other information in Reporters they did not specifically author.  Nor can West and others stop the use of those decisions by lower cost and on-line publishers who provide access to the public for free or at greatly reduced cost.  While West and Lexis produce excellent products with many additions which add extra value – such as headnotes and the ‘key number’ indexing system -- it is no longer mandatory that one must buy those additions simply to freely copy, use or make collections of judicial decisions. 

In the companion decision, HyperLaw v. West Publishing V (Appeal-Citation), 158 F.3d 693; 1998 U.S. App. LEXIS 28024 (2d Cir. 1998) that same Court held

In expressly controverting the 8th Circuit’s pre-Feist decisions in West Publishing Co. and Oasis, the Court stated

The Eighth Circuit in West Publishing Co. adduces no authority for protecting pagination as a "reflection" of arrangement, and does not explain how the insertion of star pagination creates a "copy" featuring an arrangement of cases substantially similar to West's--rather than a dissimilar arrangement that simply references the location of text in West's case reporters and incidentally simplifies the task of someone who wants to reproduce West's arrangement of cases. It is true that star pagination enables users to locate (as closely as is useful) a piece of text within the West volume. But this location [**36]  does not result in any proximate way from West's original arrangement of cases (or any other exercise of original creation) and may be lawfully copied.

As the federal trial judge who heard both issues commented,

judicial opinions are a highly sought-after commodity in the legal, literary, and news markets. Hyperlaw's action in this case served the public good because West was maintaining a monopoly over the market for several thousand judicial opinions based on a tenuous copyright claim. West was not the author of an original work seeking only to prevent another from making fair use of a portion of a work it had authored. West was attempting to use the fact that it had made inconsequential modifications to judicial opinions to maintain a monopoly in the publication of those opinions. Thus, rather than invoking the Copyright Act as a shield to protect legitimate creative work, West used it as a sword to perpetuate a monopoly over important government works.
*    *    *    *
When David vanquished Goliath, the Israelites rewarded him by making him their King. While Hyperlaw's vanquishing of West's monopoly over judicial opinions may be far less impressive, all it asks for its efforts is that it be reimbursed for the substantial legal fees West forced it to incur in order to vindicate the public's right of access to judicial opinions. It prevailed against an adversary that did all that it could to make this litigation as expensive as possible, no doubt hoping that a small company such as Hyperlaw would not stay the course. In these circumstances, the court continues to be of the view that Hyperlaw is entitled to an award of the entirety of its attorneys' fees.

HyperLaw persisted -- in what that same judge referred to as “litigation which threatened to leave whole forests bare because of the size and number of pleadings.”

a. The original district judge recused herself from hearing the case after HyperLaw’s arguments and a petition for mandamus to the Second Circuit.  HyperLaw v. West Publishing I (Recusal of Judge Preska) 1995 U.S.Dist.Lexis 3820 (S.D.N.Y. 1995). 

b. West unsuccessfully challenged the right of HyperLaw and the other plaintiff Matthew Bender to bring the suit. HyperLaw v. West Publishing II (Justiciability), 1996 U.S. Dist. LEXIS 5871; 39 U.S.P.Q.2D (BNA) 1079; Copy. L. Rep. (CCH) P27,505; 24 Media L. Rep. 1972  (S.D.N.Y. 1996).

c. HyperLaw pursued West through its antitrust efforts to purchase other publishers and ‘license’ judicial decisions to its competitor, Lexis. West Antitrust Decision III, 1998 U.S. App. LEXIS 12921 (D.D.C. May 29, 1998); West Publishing, - Antitrust Decision I, 1997 U.S. Dist. LEXIS 1893; 42 U.S.P.Q.2D (BNA) 1867; 1997-1 Trade Cas. (CCH) P71,735 (D.D.C. February 27, 1997); -and- West Antitrust Decision II --   The Subsequent Consent Judgment for Licensing Citations, 1997 U.S. Dist. LEXIS 2790; 1997-1 Trade Cas. (CCH) P71,754 (March 7, 1997).

d. The trial court decided for HyperLaw on the text issues following a trial.  HyperLaw v. West Publishing IV (Trial-Text of Opinions), 1997 U.S. Dist. LEXIS 6915;  42 U.S.P.Q.2D (BNA) 1930; Copy. L. Rep. (CCH) P27,638; 25 Media L. Rep. 1856  (S.D.N.Y. 1997).

e. The trial court granted summary judgment to both plaintiffs on the citation issues. HyperLaw v. West Publishing III (Summary Judgment-Citation), 1997 U.S. Dist. LEXIS 2710  (S.D.N.Y. 1996).

f. West appealed the $800,000+ fee award to HyperLaw’s counsel.  HyperLaw Fee Decision II, 2001 U.S. App. LEXIS 896, (January 23, 2001); HyperLaw Fee Decision III (July 2, 2001); HyperLaw Fee Decision I, 1999 U.S. Dist. LEXIS 19387 (January 16, 2000).

To read more about this case, see the following articles:

‘West Publishing Loses a Decision on Copyright’, David Cay Johnston, The New York Times, May 21, 1997, Page D-1.

‘How West Was Won’, The American Lawyer, September, 1996, p. 73, John E. Morris.

‘Fending Off the Future’, The American Lawyer, September, 1994, Susan Hansen.

‘Who Owns the Law?’, Wired , Gary Wolf, May, 1994, p. 94.

‘A Tilting of the Tables, A Federal Judge Tells West -- A Company Famous For Getting the Law Right -- That its Pet Theory for Owning the Contents of its Books is a Legal Loser’, Thomas Scheffey, The Connecticut Law Tribune, February 3, 1997.

‘Judge Rules Against West Publishing in Legal-Research Copyright Lawsuit’, Frances A McMorris, Wall Street Journal, May 21, 1997.

‘Some Decision Reports Denied Copyright Protection’, Danial Wise, New York Law Journal, May 23, 1997, page 1.

‘Copyright and the Courts’, Editorial, Washington Post, March 22, 1997, (‘Public access to that most common possession, the law, is probably worth quite a lot of inconveniences.’ )

‘Watch Cost of Law Library Drop With CD-ROMs, WEB and OnLine’, The National Law Journal, December 16, 1996, Wendy R. Leibowitz.

‘West Dealt Second Blow in New York Copyright Case’, Dan Goodlin, The Recorder, May 22, 1997.

‘Universal Citation: The Fullest Possible Dissemination of Judgments’, Jol Silversmith, College Hill Internet Legal Practice Newsletter, May 19, 1997. (An excellent comprehensive discussion of the citation issues, written by a third year student at Harvard Law School.)

‘Now we're cooking with gas...’, Molly Ivins, syndicated April 20, 1997, (discussing Vance Opperman political contributions and Department of Justice).

‘Vance Opperman's Donations Under Scrutiny’, Greg Gordon, Minneapolis Star Tribune, April 15, 1997.

‘The Cheerful Giver’, Viveca Novak and Michael Novak, Time Magazine, April 21, 1997, Page 80.

‘Electronic Citations: Witnesses Support ABA Proposal For Universal Citation System’, BNA Electronic Information Policy and Law Report, Janet L. Benedetti, April 11, 1997, (paraphrasing HyperLaw, ‘The proposed system will benefit solo practitioners and small firms the most.’)

‘Brave New Briefs’, Tom Scheffey, Connecticut Law Tribune, March, 1997. (Quoting HyperLaw ‘The EDGAR system forced even the stuffiest corporate lawyers to change their ways, and created a better system.’)

‘Still No Merger Ok for West, Thomson’, Harvey Berkman, National Law Journal, February 24, 1997. (Lexis ended its opposition, leaving judge Friedman to fret that there would be no party to appeal his merger approval ... He invited HyperLaw, Inc. to refile a motion to be granted intervenor status.’)

‘Appeal May Delay West-Thomson Deal’, Anthony Aarons, Los Angeles Daily Journal, February 26, 1997.

‘A See No-Evil Merger Probe?’, Connecticut Law Tribune, February 24, 1997, (‘HyperLaw Contends the public needs to see secret Lexis-West pact to fathom the West-Thomson mergers, and that Justice went soft on antitrust investigation.’)

‘A Tilting of the Tables', The Connecticut Law Tribune, February 3, 1997.

‘Ruling May Open Market for Digital Law Libraries’, New York Times on the Web, December 27, 1996, Wendy Liebowitz.

‘Crack in the West 'Monopoly’, Connecticut Law Tribune, December 2, 1996, Thomas Scheffey.

‘West Publishing Company has lost critical court fight’, Legal Times (Washington, DC), December 2, 1996, Krysten Crawford.

‘Legal Publisher Loses Copyright On Page System’, New York Law Journal, November 29, 1996, Daniel Wise. (Statements of HyperLaw's lead counsel, Carl J. Hartmann III regarding the import of Judge Martin's decision.)

‘West Loses Long Copyright Fight Over Pagination’, The Recorder, November 25, 1995.

‘What's At Stake in West Deal’, Legal Times, November 18, 1996.

‘Operation of Shepard's May Hold Up Deal - DOJ Review Ongoing’, Los Angeles Daily Journal, November 5, 1996. (Anthony Aarons feature story describes the intervention of the Department of Justice in slowing down the acquisition of Shepard's by Times-Mirror -- Matthew Bender -- and the joint venture between Bender and Lexis to operate Shepard's.) 

‘WWW.Block_That_Merger.com’, The American Lawyer November, 1996.

‘Washington Post Editorial’, November 3, 1996. (The Washington Post asked that the Clinton Administration not include database protection in the WIPO upcoming treaty negotiations in Geneva.)

‘It Ain't Over 'Til the District Judge Rules’, Connecticut Law Tribune, October 7, 1996.

‘Merger Fallout’, California Law Business, March 18, 1996, Anthony T. Aarons.

‘Foreign-owned West may see Clout Fizzle’, Pioneer Planet, February 29, 1996.

‘Publishing Deal Faces Hurdle’, San Francisco Recorder, February 27, 1996.

‘Easing Limits on Legal Publishing’, New York Times, October 9, 1995, Laura Mansnerus.

‘U.S. Justices took Trips form West Publishing Company’, Minneapolis Star-Tribune, March 5, 1995 - March 7, 1995. (Multi-Part Series by Sharon Schmickle and Tom Hamburger reporting the Devitt Award under which West awarded annual $15,000 prizes to federal judge sitting on West case, and Justices who met at luxury resorts at West's expense.)

‘WEST: A Study in Special Interest Lobbying’, The Hill, February 22, 1995, Doug Obey and Albert Eisele. (Very Important article discussing defeat of West promoted bill to obtain database protection legislation.)

‘For West Publishing Company, the Gavel is Coming Down Hard and Loud’, Minneapolis Star Tribune, November 28, 1994, By John J. Oslund.

‘Whose Public Records? Companies Battle for Electronic Access’ Dayton Daily News, September 25, 1994.

‘West Publishing Disputes Benefits of ECS Proposal Leader's’, Legal Tech Newsletter, July 1992.

‘Another View of Copyright of Case Reporters’, Alan D. Sugarman, New York Law Journal, July 28, 1992.

2. Representation of Employees in Labor, Employment and EEO Actions

Lead trial and appellate counsel.  The City of Albuquerque alleged that its most senior African-American administrator had sexually harassed several women.  He was publicly suspended without pay, and then terminated after several of those witnesses described numerous incidents.  In the feeding frenzy that followed, Jackson was castigated weekly by stories leaked to the local press by City and police officials.  However, discovery and a lengthy trial revealed a well-planned scheme by those City officials, the police department and various of those alleged 'victims' to fabricate a story -- in an extensive and wide-reaching effort to terminate someone who complained about how he and other minority officials were being treated.  Later, having lost at the trial and appellate levels, the City would be the subject of additional contempt proceedings before a federal judge, and be forced to reinstate the Plaintiff -- with large monetary awards and attorneys fees.

Following the trial (which saw the Deputy Chief of Police admit to three covert operations intended to smear Jackson) a unanimous jury found for him.  However, the trial court, while awarding all of the monetary relief available, declined to reinstate the Black manager because he felt the workplace would simply be too hostile toward that manager.  City of Albuquerque I, 715 F.Supp. 1048 (D.N.M. 1987)

Plaintiff has requested to be reinstated to his prior position or to an equivalent position or in the alternative to receive front pay until such time as he can be reinstated. Defendants counter plaintiff's motion with an offer of front pay of six months. Reinstatement is an element of the remedy for violation of a plaintiff's civil rights. EEOC v. Prudential, supra at 1166; Banks v. Burkich, 788 F.2d 1161, 1164 (6th Cir. 1986); Abbott v. Thetford, 529 F.2d 695, 701 (5th Cir. 1976). While reinstatement is the preferred remedy, it is not an absolute right. Banks, supra at 1164. Reinstatement may not be appropriate, however, when the employer has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible. EEOC v. Prudential, supra at 1172.

Front pay is an alternative remedy where there is no job available or where there is a hostile relationship. Cassino v. Reichhold, 817 F.2d 1338, 1346 (9th Cir. 1987); Whittlesey v. Union Carbide Corp., 742 F.2d 724, 728 (2d Cir. 1984). I would also note that this decision is a discretionary one:  The trial court has a broad discretion in fashioning relief to achieve the broad purpose of eliminating the efforts [sic] of discriminatory practices and restoring the plaintiff to the position that she would have likely enjoyed had it not been for the discrimination. Fitzgerald v. Sirloin Stockade, 624 F.2d 945, 957 (10th Cir. 1980) citing Franks v. Bowman Transportation Co., 424 U.S. 747, 47 L.Ed. 2d 444, 96 S.Ct. 1251 (1976).

But Mr. Jackson wanted more than money.  He wanted to return to the job.  Calling the litigation below a classic jury trial, in Jackson v. City of Albuquerque II, 890 F.2d 225 (10th Cir. 1989) the 10th Circuit agreed that an employer should not be allowed to benefit by its discriminatory actions – to refuse reinstatement.  There would be no paying off the plaintiff to get rid of him.

Our review of the evidence reveals that certain parties, including the named defendants within the city administration, were determined to run plaintiff Carl Jackson off the job. If he is denied reinstatement, they will have accomplished their purpose.  While some might wonder why plaintiff would want to return to a hostile working environment, we recognize, as did the court in Allen v. Autauga County Bd. of Education, supra, that sometimes money alone cannot make a person whole. Actual or expected ill-feeling cannot justify denial of reinstatement here. "If an employer's best efforts are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights." Allen v. Autauga County Bd. of Educ., supra, 685 F.2d 1302 at 1306.

The appellate court noted what had been happening -- and why the jury, despite the massive effort by the City, found for Plaintiff:

Our review of the evidence reveals that certain parties, including the named defendants within the city administration, were determined to run plaintiff Carl Jackson off the job. If he is denied reinstatement, they will have accomplished their purpose. While some might wonder why plaintiff would want to return to a hostile working environment, we recognize, as did the court in Allen v. Autauga County Bd. of Education, supra, that sometimes money alone cannot make a person whole. Actual or expected ill-feeling cannot justify denial of reinstatement here. "If an employer's best efforts are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights." Allen v. Autauga County Bd. of Educ., supra, 685 F.2d 1302 at 1306.

As noted, the source of all of the hostility present in this particular case appears to stem from persons within the city administration. There is no evidence that plaintiff himself has ever taken any action which would exacerbate the situation other than his lawful filing of a complaint with the E.E.O.C. and the retention of legal counsel to guide him through the administrative hearings and appeal from the notice of termination.

The litigation and appeal of this case took several years, involved extensive discovery and was marked by often bizarre efforts on the part of the City, its officials, the police department and others to discredit the Plaintiff, his friends and anyone that dared support him, and to obscure the evidence.

The record discloses that during the trial a problem arose because of an anonymous letter received by the Office of the City Attorney and that an investigation was being conducted of plaintiff's associates by a private detective and members of the police department. . . .the letter had been sent to the Civil Litigation Division of the Police Department * * * [and] the hostility of an expert witness should carry no weight in determining plaintiff's entitlement to reinstatement * * * and -- in any event -- it is not surprising that defendants or other city officials were not pleased with the verdict.

*      *     *     *

When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored. Yet at the same time, there is a high probability that reinstatement will engender personal friction of one sort or another in almost every case in which a public employee is discharged for a constitutionally infirm reason. Unless we are willing to withhold full relief from all or most successful plaintiffs in discharge cases, and we are not, we cannot allow actual or expected [**33] ill-feeling alone to justify nonreinstatement. We also note that reinstatement is an effective deterrent in preventing employer retaliation against employees who exercise their constitutional rights. If an employer's best efforts to remove an employee for unconstitutional reasons are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights." (685 F.2d at 1306).

The hostility perceived by the trial court appears to be all one-sided and on the part of officials now removed from city employment, disgruntled fellow workers, unknown persons who send anonymous messages to the City Attorney or statements appearing through [*235] the media.

In the end, the Plaintiff returned to his position, later becoming the head of the entire Department from which he had been fired -- and was extremely successful. 

In  Lasso v. Woodmen of the World, 741 F.2d 241 (10th Cir. 1983) (appellate counsel only) the trial court had declined to allow a statistical disparate impact case to be pursued on behalf of a single plaintiff.  This followed a line of decisions in which individual employees were not allowed to pursue 'class' injuries by themselves.  The Court of Appeals reversed. 

On appeal, plaintiff does not challenge the trial court's ruling on the disparate treatment issue. Rather, he argues that the trial court failed to make findings on his disparate impact theory. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). Plaintiff reasons that the trial court's findings are therefore insufficient under Rule 52. Fed. R. Civ. P. See Brief for the Appellant at 10 ("It is from [the court's [**5] disregard of the disparate impact theory] that the appellant here appeals."). Plaintiff seeks to have this case "reversed on the basis of his having shown disparate impact and the employer's having failed to prove business necessity; or remanded for consideration of his second cause of action -- disparate impact." Id. at 11-12.
*     *     *     *
We are not persuaded by defendant's argument that a disparate impact claim may not be asserted in a private, non-class action. We are convinced that a plaintiff like Lasso may assert such a Title VII claim in a case like this.
*     *     *     *
We must agree that the findings were deficient in not treating the disparate impact claim. There is no discussion in the court's opinion which can fairly be read as having considered that claim. The rejection of plaintiff's case gave no consideration to "the more exacting 'business necessity' standard established in Griggs" which is applied in judging a defense to a disparate impact claim. Williams v. Colorado Springs, Colorado School District, supra, 641 F.2d at 842; see also EEOC v. St. Louis-San Francisco Railway Co., now Burlington Northern Railroad Company, 743 F.2d 739, slip op. at 6 (10th Cir. 1984).

3. Representation of Management in EEO and Employment Actions

Outside Supervising litigation counsel to other law firms.   Several radio stations in the Washington D.C. area came under a sort of coordinated attack -- being simultaneously charged with discrimination, sexual harassment and violations of employment law by employees of every race, age, level of employments and gender.  Assisted by well-placed articles in such publications as the Washington Post, this group sought to force management to accept contract renegotiations, promotions and other concessions.  Instead, the stations battled each case individually -- successfully.

In Laufer v. WWRC Radio,1996 WL 1061504 (D.Md. 1996),a well-known D.C. talk-radio personality alleged that his contract as a program director had not been renewed in retaliation for his defense of the rights of minority employees. (He was not a minority employee).  His employer maintained the lawsuit was just a scam to prevent his termination for poor performance.   After extensive discovery, the court found that there was a more than adequate basis for the termination.

Assuming that the plaintiff has proven a prima facie claim, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the discharge. Ross, 759 F.2d at 365. The ultimate burden of proving the employer's intentional discrimination always rests upon the plaintiff. Saint Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2747 (1993).

In this case, the defendants have shown that during Mr. Laufer's tenure as the program director at WWRC, the station's audience ratings deteriorated, thereby decreasing its profitability. WWRC's average ratings level in 1993 was the weakest year in the station's Arbitron history.  Mr. Longwell was hired in 1994 to improve the ratings. Moreover, according to the affidavit of Mr. Milewski, the executive vice-president and chief operating officer of Greater Media, Inc., he told Mr. Longwell on March 30, 1994 to fire Mr. Laufer as soon as possible. Mr. Milewski further swore he was not aware of the Reese/Holmes incident as of March 30, 1994. Mr. Laufer's internal memos and affidavit show he conducted a conference call concerning firing Mr. Laufer on March 4, 1994 and wrote two memos, one dated March 7, 1994, the other dated March 17, 1994, regarding the plaintiff's replacement. Both memos were written prior to the incident with Mr. Reese.  Accordingly, the plaintiff cannot rebut the legitimate reasons offered for his discharge, or establish causation. . . .

In Rankin v. WGAY et al., 28 F.Supp.2d 331 (D.Md. 1996), "plaintiff alleged that she was discriminatorily demoted, apparently with regard both to the decision to make her FM Local Sales Manager. . .[asserting] that these employment actions were taken against her because of her gender, age, and/or disability.  The plaintiff sued under just about every employment/EEO theory available including constructive discharge and violation of the ADA.  The After extensive discovery and depositions. the Court dismissed each claim in turn.

Additionally, the evidence shows that Plaintiff is an avid scuba diver, and a licensed scuba instructor. Plaintiff's medical records show that she had neck surgery while in the Defendants' employ, and that by March 31, 1994 she was "feeling great," and was making good progress recovering from this surgery. However, Plaintiff then injured her neck on a scuba diving trip in May 1994.

In a third case,Eaglin v. WGAY/WWRC Radio et al.,1996 WL 1061102 (D.Md. 1996), the plaintiff filed a six count complaint alleging that her employer had "discriminated against her on the basis of her race and her sex -- and sexually harassed her to such an extent that she ultimately was forced to resign from her position as an advertising sales executive."  The court noted that she was not fired, but had quit, and held that,

The plaintiff in this case alleges several setbacks and unpleasant conditions at the radio station. However, she has not proffered evidence sufficient to establish that a reasonable person in her position would have found the working conditions at the radio station so intolerable that they would feel "compelled to resign." Blistein, 74 F.3d at 1468. Nor has she identified a dispute of material fact regarding the intent of the defendants to force her to resign because of her sex.

As for the allegation that she was sexually discriminated against, and sexually harassed, the Court noted,

In her unsworn initial [EEOC] intake questionnaire, the plaintiff alleged only that past and present managers at the radio station had discriminated against her by transferring income-generating accounts from her. In her sworn charge of discrimination dated July 27, 1994, she alleges discrimination on the basis of race and sex in connection with the sales incentive contest in the spring of 1993. She also states that Reese's alleged lewd comment to her in May 1993 constituted sexual harassment and was a contributing factor to a hostile work environment.

The plaintiff concedes in her deposition that, because the winner of the sales incentive contest was a woman, her claim of discrimination related to that contest should be restricted to race discrimination. Moreover, she has proffered no other facts that might suggest that any actionable decision of the defendants was motivated by intentional discrimination on the basis of her sex.

4. Representation of Professionals 

Lead Counsel, Representation before Congress.   There was just one woman who was the National Park Service’s first female ranger, first female superintendent, and first female regional director.   She was the much decorated official who oversaw both the reintroduction of the wolves into the wilderness, and the controversial fire policies at Yellowstone.  Eventually, she became the regional director in charge of the prize NPS region -- the Rocky Mountain Region.  Then, suddenly, after 30 years of this type of service it seemed inconceivable that she was alleged to have illegally lobbied Congress (on behalf of the NPS) and threatened with an Inspector General’s investigation by a high-level DOI political appointee -- and later accused of being a potential threat to the President.  Coincidentally, this happened just as she was criticizing political tampering with environmental programs and secret deals to gut related scientific studies -- deals between politicians and commodity groups subverting environmental and scientific programs in the West.  What followed was a running battle in several forums -- involving many agencies and organizations -- and a bipartisan Congressional investigation with more than 45 witnesses and over 6,000 documents.    Nothing could describe the results of the Subcommittee’s investigations as well as the executive summary of the huge report prepared by the Subcommittee's investigators and staff -- following the issuance of bipartisan subpoenae, a hearing and extensive review.  "Interference in Environmental Programs by Political Appointees:  The Improper Treatment of A Senior Executive Service Official" - A Report by theSub-Committee on Civil Service,U.S. House of Representatives, Congressional Printing Office (July 1993).

Based on the evidence examined thus far, the Subcommittee concludes that the Department of Interior engaged in a politically motivated, underhanded operation to destroy an environmental document Ms. Mintzmyer headed. This activity resulted in the improper directed reassignment of Ms. Mintzmyer.

On September 24, 1991, the Subcommittee on the Civil Service, Committee on Post Office and Civil Service, held a hearing regarding alleged improprieties in the directed reassignments of two high-ranking career Senior Executive Service (SES) level civil servants, Ms. Lorraine Mintzmyer (National Park Service, Department of Interior) and Mr. John Mumma (Forest Service, Department of Agriculture).  That hearing was the first step in the Subcommittee's investigation to determine whether the directed reassignments of these two SES individuals were contrary to law or warranted additional legislative action by the Subcommittee.

At the time she was reassigned, Ms. Mintzmyer was the first and only woman to serve as a National Park Service (NPS) regional director and the most decorated female employee in its history. Mr. Mumma was the first and only wildlife biologist to become a Forest Service regional forester. The Subcommittee had received information that both individuals were subjected to strong political and special interest pressures to deviate from environmental laws and guidelines. When they refused to give in, Ms. Mintzmyer and Mr. Mumma received directed reassignments which substantially altered and effectively crippled their careers, harmed their families, and led them both into accepting forced retirements in the ensuing year.

The Subcommittee viewed those allegations with the utmost seriousness and concern, launching a bipartisan investigation in September of 1991. In the past fifteen months, the Subcommittee has interviewed more than 45 witnesses and reviewed over 6,000 documents in connection with this investigation. In addition, the Sub-committee has identified significant missing documents and evidence that the Department of Interior (DOI) has failed to provide. This staff report transmits the results of the Subcommittees investigation to date into alleged improprieties in the directed reassignment of Ms. Mintzmyer.

Ms. Mintzmyer's account of her directed reassignment centered around the wholly political revision of a joint National Park Service and Forest Service environmental document, referred to as the "Vision document." The preparation of this document was inspired by Congress, and Congress directed that the document should facilitate protecting the Greater Yellowstone Area's ecosystem by developing coordination guidelines between the National Park Service and the Forest Service. This document was intended as a prototype for protecting the National Parks from the Federal government misusing the public lands surrounding the parks.

The Subcommittee's investigation has revealed an improper concerted activity by powerful commodity and special interest groups and the Bush Administration to eviscerate the Draft Vision document because the commodity and special interest groups perceived it as a threat. The Department of Interior and special interest groups first destroyed the sixty page scientific document, turning it into a ten page "brochure." They then developed a story that would explain the revisions and keep their actions a secret. Finally, to protect their acts and in apparent retaliation against Ms. Mintzmyer, the Department of Interior effectuated a directed reassignment which moved Ms. Mintzmyer out of the Rocky Mountain Region and away from the Vision document process.

The plan to revise the Draft Vision document began to unravel, however, when the Subcommittee launched its investigation into the matter. The Department of Interior's explanation for the events leading up to the revision of the Draft Vision document are contradictory and unsubstantiated. Further, Ms. Mintzmyer was subjected to retaliatory acts after she was transferred to the Mid-Atlantic region, thus weakening the Department's position.

The Subcommittee's Conclusions

The Subcommittee concludes that the Department of Interior engaged in a politically motivated, underhanded operation to destroy the Draft Vision document because it was unacceptable to powerful and mooned commodity and special interest groups. This operation resulted in the improper directed reassignment and subsequent retaliation against Ms. Mintzmyer. The Subcommittee's conclusions are substantiated by the following evidence:

• An unusual, closed meeting was held on October 4, 1990, between high-ranking Department of Interior and Agriculture officials, a western U.S. Congressional delegation, and commodity and special interest groups. The sole purpose of this undocumented meeting appears to have been to deal with the Draft Vision document. (Chapter 2, 3 and 4)

• Mr. S. Scott Sewell, then Principal Deputy Assistant Secretary for Fish and Wildlife and Parks at the Department of Interior, effectuated the destruction of the Draft Vision document by revising and taking control of the DRAFT document in October of 1990 at the behest of John Sununu, former Chief of Staff for the White House. (Chapter 2 and 4)

• At the Department of Interior, Mr. Sewell and his staff revised the Draft Vision document outside of the public review process to accommodate special interest requests during the fall and winter of 1990, despite Mr. Sewell's denial, under oath, of revising or even reviewing the Draft document prior to June 1991. (Chapters 2, 3, and 4)

• Mr. Sewell tried to complete the operation by further neutralizing Ms. Mintzmyer in February of 1991 by demanding she be reprimanded for allegedly lobbying the U.S. Congress. His intent appears to have been to silence her or provide a basis for her directed reassignment. (Chapters 2 and 4)

• Following the false lobbying charge against Ms. Mintzmyer, the Department developed an explanation for how the Draft Vision document went from a sixty page scientific document to a ten page "brochure" and why the original drafting process for the Draft document was altered. They accomplished this by utilizing the following tactics: 1) closing previously planned national hearings to avoid anticipated positive public comment; 2) assisting outside groups to "rig' the appearance of negative public opinion at a few, select, local public meetings; 3) maneuvering the scientific interdisciplinary team, who had originally been responsible for drafting the document, out of the revision process; and 4) using the manufactured, negative, public comment to explain why the special interest revisions were necessary. (Chapter 3)

The inconsistencies in the Department's story were revealed on a number of fronts:

The participants at the October 4, 1990 meeting gave several contradictory explanations for the purpose of the meeting and could not substantiate those explanations with any documents. (Chapter 3 and 4)

Mr. Sewell originally denied, under oath, that he and his office revised the Draft Vision document. Document Exhibit # 122, written by Mr. Sewell's staffer, directly contradicted that assertion – specifically stating that Mr. Sewell's office was revising the Draft Vision document in line with special interest desires and Mr. Sewell was personally reviewing those changes. (Chapter 4)

Well after document # 122 was brought to his attention, Mr. Sewell changed his story in an unsworn statement and asserted that he had instead formed a "working group" in his office to review the Draft document, not to revise it. However, Mr. Sewell and members of the working group gave four separate, conflicting accounts of the group's mission. (Chapter 4)

The baseless attack on Ms. Mintzmyer for illegally lobbying Congress evaporated when Ms. Mintzmyer challenged the lobbying charge and the charge then disappeared. (Chapter 4)

The numerous shifting reasons for Ms. Mintzmyer's directed reassignment and the fact that Ms. Mintzmyer had announced her plans for retirement prior to her directed reassignment crippled the effectiveness of the Department's reasons for her transfer. (Chapter 5)

After the directed reassignment, the Department further retaliated against Ms. Mintzmyer by denying her a bonus and an SES step increase. Additionally, her subordinates in the Mid-Atlantic region were denied promotions and similar benefits and falsely told that Ms. Mintzmyer was to blame for them not receiving those benefits. (Chapter 5)

The commodity groups were stopped.  The facts about how the Vision document’s environmental and scientific provisions had been intentionally subverted by political appointees for the benefit of commodity interests had, therefore, been thoroughly exposed.  The congressional staff report contained footnotes to every major allegation and a huge attachment of documents detailing each fact.  Although that staff report was published, no further hearings or votes by the Sub-Committee were possible as the elections and the end of the session intervened.  Therefore, although the facts were out about the larger picture, Mintzmyer still had not been able to get the government to admit that Sewell’s statements about her had also been false -- an attempt to retaliate against her for speaking out.

A federal trial Mintzmyer v. DOI I, 1995 U.S. Dist. LEXIS 1182; 66 Fair Empl. Prac. Cas. (BNA) 1804 (D.D.C. 1995), and MSPB proceedings Mintzmyer v. DOI II, 84 F.2d 419, 1996 U.S.App.LEXIS 11369 (Fed.Cir. 1996) followed.  What was crucial to the litigation, and what Ms. Mintzmyer still had not gotten, went beyond the findings about compromising the Vision Document -- she sought the government’s explicit admission ‘on the record’ that Sewell’s statements were false regarding the numerous accusations he leveled against her -- particularly when he gave testimony to investigators about her under oath.  After its own internal review, the government finally conceded this in written responses to interrogatories, and again when the government’s own lawyer, an Assistant U.S. Attorney, admitted this in an exchange with Judge Kessler.

Consistent with the Subcommittee investigators’ published staff report, Judge Kessler made the following Finding of Fact at pages 4-5 of the federal district court decision,

Because early drafts of the Vision Document contained controversial recommendations, S. Scott Sewell, the Principal Deputy Assistant Secretary for Fish, Wildlife and Parks at the Department, took control of the drafting process in October [*5] of 1990. n1 It is fair to say that Plaintiff and Sewell had very different, and incompatible, views about the Vision Document. On March 21, 1991, Sewell, a political appointee, demanded that Plaintiff, a career Civil Service employee, be reprimanded for allegedly lobbying members of Congress in February of 1991, while attending briefings on the Hill with legislative aides and committee staff members to discuss activities in their area of interest. Upon investigating the serious charges made by Sewell, the Director of the Park Service concluded that Plaintiff had not been lobbying, had instead been engaged in appropriate informational activities, and that there was no basis for such a reprimand.

Judge Kessler ruled that Mintzmyer had been retaliated against by senior NPS officials because of her efforts -- by denial of the SES step increase (as the Subcommittee investigative report had found.)  Her voluntary retirement from the NPS, which was not addressed by the Subcommittee, did not constitute EEO discrimination.  Finally, in closing, Judge Kessler made special reference to the type of tactics employed against Ms. Mintzmyer -- and the officials who had been involved:

The incident involving security for President Bush was of an entirely different nature. It was offensive and deeply insulting to a loyal American who had spent her life in service to her government. It was unfathomable to the Court.

5. Real Estate and Real Estate Related Litigation

Merrill Lynch, through its high net worth subsidiary Merrill Lynch Private Capital, lent funds to a number of businesses for the purchase of land and the construction of a golf course resort with a major condominium development.  After Mahogany Run Golf Course & Resort and the associated Mahogany Run Condominiums were built, the borrowers failed to repay the loans, and instead brought lender liability and RICO actions against Merrill Lynch.  This required extensive litigation, and eventually a massive effort to recover, re-survey, and quiet tile to a huge portion of the St. Thomas' North side.  The many related transactions and cases involved federal and territorial litigation as well as bankruptcy proceedings. Merrill Lynch Private Capital v. Lovenlund Resort Associates, et al., Civ. No. 88-402 (D.V.I.).  The records at the Office of the Recorder of Deeds had to be reconstructed for hundreds of parcels--and traced historically.   Critical issues in the effort involved

defeating adverse ownership claims to the water, sewer and utility systems which served the resort and neighboring property. Carl's feel for the case, as evidenced by his highly novel and creative use of a motion compelling crucial testimony from an attorney with serious conflicts, created the opening for a resolution of the matter months earlier than anticipated. At the end of the first year of Carl's involvement, much of the focus inthis matter had shifted to the impending defense of a $32 Million RICO claim, brought against MLPC and others. . .by investors in a real estate syndication. Again, he worked with one other attorney to create the successful theory of defense, plan the tactics, coordinate the legal and factual research effort, control the document analysis and computerization (from a universe of 2.5 million documents), prepare the pleadings, and appear at the hearings.

Because of his proven skills and his ability to manage the legal operation, I asked Carl to come to work directly for MLPC and our local subsidiaries, and to serve as the Director of the operational unit handling the legal and strategic components of the seven related cases. After the filing of 5 motions, 4 major components of the discovery effort, and his taking of a single day of depositions, the plaintiff offered a virtually complete capitulation within days. I considered this to be a total, and virtually unprecedented victory--due in large part to the legal skills and managerial ability of Carl Hartmann.

The last component of the process involved dealing with the foreclosure, purchase and title-related research with respect to 300 acres of the most confused real estate that any of the real estate professionals working on the matter had ever seen. This was completed, and the property readied for sale. In dealing with these matters, Carl directed the compilation of a complete database of references to Virgin Islands property law and conveyancing, dealt with the original developers, and co-managed a project which required integration of complex legal and cartographic issues and a sophisticated aerial computer mapping effort. He also directed a simultaneous analysis of hundreds of easements, title problems and related due diligence concerns. As the close of the project neared, Carl assisted me extensively in meeting with the two primary groups of potential buyers--meetings which resulted in the receipt by Merrill Lynch of two sets of bids within the parameters we had defined as being quite successful.

Letter from the Executive Director, Merrill Lynch Private Capital.  As noted above, Hurricane Hugo struck near the end of the project requiring on-site management of both the legal and operational aspects of the resort and projects leading up to the sale by Merrill Lynch.  As the sale progressed, and other MLPC workouts concluded, it became necessary to transfer to Merrill Lynch's New York operation and assist in other, similar matters.

6. Federal/Territorial Jurisdiction, Ethics and Professional Responsibility Proceedings

Challenges to the powers of courts, as well as confidential advice and representation of lawyers, judges and political office holders in administrative and legal proceedings -- including actions involving ethical complaints, allegations of malfeasance and abuse of authority. 

In Re Sanctions Reversal, 186 F.3d 403; 44 Fed. R. Serv. 3d (Callaghan) 1 (3d Cir July 30, 1999) (appellate counsel) both an attorney and his client were sanctioned for improper behavior during litigation.  In reversing those sanctions on appeal, the Third Circuit Court of Appeals found that the court below had acted too late and without proper notice. 

the Appellate Division, by entering a sanctions order approximately two and a half years after its final order, by imposing a monetary fine payable to the court, which is not an allowable remedy under either section 1927 or Rule 38, and by failing to inform the parties of its intention to use its inherent power, erred.

The appellate court then went beyond the technical discussion of the case to admonish the lower court to avoid vindictiveness and retribution toward a party or his attorney.

we feel the need to remind the Appellate Division that "because of their very potency, inherent powers must be exercised with restraint and discretion." Chambers, 501 U.S. at 44, 111 S. Ct. at 2132. A court cannot be motivated by vindictiveness or retribution when issuing sanctions. Indeed, courts must fight the temptation to find all losing arguments frivolous, and should only award sanctions in cases in which they are clearly justified.

In Territorial Court of the Virgin Islands v. Estate Thomas Mall, (of counsel) the entire structure of the courts in the U.S. Virgin Islands was at issue. As the Third Circuit put it,

The Territorial Court argues that the language "not then vested by local law in the local courts" eliminates jurisdiction (of the District Court) over civil actions where the amount in controversy is between $500 and $200,000. Under this argument, jurisdiction in the District Court would be eliminated because V.I. Code Ann. tit. 4, §76(a) grants the Territorial Court "original jurisdiction concurrent with the District Court of all civil actions wherein the matter in controversy exceeds the sum of $ 500 but does not exceed the sum of $200,000." Id. Since 48 U.S.C. §1612(b) limits the general jurisdiction of the District Court to "all causes . . . the jurisdiction over which is not then vested by local law in the local courts," and V.I. Code Ann. tit. 4, §76(a) vests jurisdiction over civil actions in a local court, the Territorial Court concludes that the District Court lacks jurisdiction over civil actions within the specified range of the amount in controversy.

Estate of Thomas Mall, Inc. v. Territorial Court of Virgin Islands, 923 F.2d 258, 260 (3d Cir. V.I. 1991). In one of the oddest jurisdictional cases ever, the Territorial Court itself was the party (and the Appellant).

[T]he District Court has been exercising jurisdiction over civil actions where concurrent jurisdiction is vested by Virgin Islands law in the Territorial Court for the last six years. If we were to accept the Territorial Court's construction of section 1612(b) at this late date, we would throw into confusion hundreds or even thousands of civil actions that the District Court has processed over the last six years.

Fortunately, counsel for Estate Thomas Mall provided the solution to avoiding this chaos. The Third Circuit stated (at 923 F.2d 263):

In support of the argument that section 1612(b) does not divest the District Court of jurisdiction ex proprio vigore, in other words, without the Virgin Islands legislature acting sometime after the effective date of section 1612(b), Estate Thomas points to a different section of the legislative history of P.L. 98-454. In referring to section 22(b) [section 1612(b)], the Senate stated:

The decision as to whether jurisdiction over strictly local causes should be vested in the district court or the local courts will be made by local law.

130 Cong. Rec. S. 10527 (August 10, 1984). This portion of the legislative history contemplates that the Virgin Islands legislature will have to take some action in the future which divests the District Court of jurisdiction over local matters. As such, it provides strong support for Estate Thomas' contention that the language of section 1612(b) means "vested in local courts after the date of the amendment to the Revised Organic Act." "Not then vested" would mean "not hereafter vested" and so section 1612(b) would not ex proprio vigore divest the District Court of jurisdiction over local actions.

We are persuaded that this latter argument of Estate Thomas is correct. There is nothing in the language of section 1612(b) that suggests that Congress intended to divest the District Court of jurisdiction over local actions immediately. Surely Congress would have specified that the divestiture of jurisdiction was to be immediate if that is what it intended.

Id. at 923 F.2d 258, 263 (3d Cir. V.I. 1991). Eventually the Legislature did take such action -- but it occurred in an orderly way, and without the system meltdown proposed by the Territorial Court. Now, of course the Territorial Court has been replaced by the Superior Court and the USVI has its own Supreme Court -- although all decisions will still, for many years to come, ultimately be reviewed by the Third Circuit.

7. Securities

Co-Counsel.   In a bitter corporate action two controlling shareholders of a publicly traded, NASDAQ-listed corporation fought each other through three jurisdictions for control of a corporation -- with a divorce also putting the control into jeopardy.  The action involved allegations of securities violation by one of two business partners--and of collusion between the ex-wife and one of the partners.  This was punctuated by a lightning proxy takeover that had one faction thrown out of the corporate offices.  To start at the end rather than the beginning, in Heying v. Prior, 905 F.Supp. 248, Fed.Sec.L.Rep. P99,032 (D.V.I. 1997) the federal trial court found two types of violations of securities laws by the "Prior" faction:

Defendant Prior violated the federal securities laws by soliciting more than ten persons without complying with proxy registration requirements. n12 Defendants correctly note that plaintiffs bear the burden of showing that defendants solicited more than ten persons. Despite defendants' assertions to the contrary, the record supports a finding that plaintiffs have met that burden.

and

The rules concerning solicitation of proxies or consents apply to communications which "constitute a step in a chain of communications designed ultimately" to convince a stockholder to "furnish, revoke or withhold proxies," or are a direct or indirect method of accomplishing the same result. Long Island Lighting Co. v. Barbash, 779 F.2d 793 (2d Cir. 1985) (citing Securities and Exchange Comm'n v. Okin, 132 F.2d 784, 786 (2d Cir 1943)). A section 14(a) claim may be stated where a person solicits shareholders by making an effort to influence shareholder opinion by communicating certain information to the financial press and the greater financial community. Trans World Corp. v. Odyssey Partners, 561 F. Supp. 1315, 1320 (S.D.N.Y. 1983).

The Court is faced with the issue of whether plaintiffs can show the substantial likelihood of success on the merits on the conditioning of the market claim. The Court does not consider this issue dispositive. Nonetheless, the Court finds that Smith's research note conditioned [**29] the market, and that this was a violation of securities laws.

Prior met with Smith, one of only three securities analysts who followed ATN's stock, knowing that the meeting could lead to the publishing of the information that he provided to Smith. Smith testified about the widely-known industry practice of publishing research notes following a meeting between an analyst and a top company official where the official disclosed material information to the analyst. Before the May 16, 1995, Prior engaged in activities that evidenced a desire to engage in an impending consent solicitation. Bringing the $4 million loss to Smith's attention, which led to that information being published, served to influence shareholder opinion. That was part of Prior's continuous plan that culminated with the July 25, 1995 filing of the consents.

The court then refused to stay its decision.  James Heying, et. al v. Prior, 33 V.I. 199, 1995 U.S.Dist.LEXIS 16911 (D.V.I. 1997).

pending final judgment of this Court, the governance of ATN and its subsidiaries shall reflect the status quo on July 24, 1995 immediately before Prior filed his consents purporting to change the corporate governance of ATN, including without limitation: (i) the boards of directors of ATN and each of its subsidiaries shall be constituted as they were on July 24, 1995. . . .

But before that tumultuous conclusion there had also been a fight to stave off an ex-spouse's bid to obtain controlling shares 33 V.I. 32; 1995 V.I. LEXIS 38 (Terr. Ct. V.I. 1995).  At one point, a local court ordered the sale of the controlling stock--but the federal court enjoined that action, and issued an order prohibiting the local Marshal from proceeding with the sale.  This culminated in a showdown in the Marshal’s office with bidders trying to bid and counsel informing both the Marshal and the bidders that Judge Finch had promised to jail anyone that participated.  There is some dispute as to whether the sale continued, but there is no dispute that no one bid, and that the shares were never sold.

And in the end, yet another securities case was lost by Prior -- this time punctuated by a federal judge friendly to Prior removing himself from the case--despite protestations that there was absolutely no bias.  Prior et al. v. ICC et al., 2000 U.S. Dist. LEXIS 12584 (D.V.I. August 16, 2000)  (Recusal of Judge Thomas Moore).

As I have explained [the] allegations are legally insufficient for judicial disqualification under 4 V.I.C. §  284. The same conclusion is appropriate under 28 U.S.C. §  455, for his affidavit contains no allegations that would lead reasonable, informed observers to question my impartiality.

The affidavit relies heavily on conjecture and multiple hearsay. It attempts to establish that my law clerks revealed confidential information to the Daily News by recounting a phone call between an unidentified reporter and one of [Plaintiff’s] employees. . . The obviously self-serving remarks of an unidentified reporter, related by a person who did not even overhear those remarks, is unworthy of credence. The hearsay allegation that I made "extrajudicial statements which suggest that [I] harbor[] hostile feelings". . .is equally implausible. I categorically reject the allegations of judicial bias. . .as grounds for my disqualification. As it has been suggested that my acquaintance with Mr. Prior would lead reasonable persons to question my impartiality, however, it is hereby: ORDERED that the defendants' motion for recusal is GRANTED

8. Criminal

Co-Counsel.  Second chair or co-counsel on a defense team in a number of criminal cases including white collar crimes, prosecution of a principal in an interstate auto theft ring (acquitted), trial of a young man who unknowingly carried drugs into the country in a suitcase someone had provided for him to take to a "friend" (hung jury).

Perhaps the two most interesting involved the very first major prosecution of computer hackers and the matter of the manslaughter case in which the police ate the cow.

Mark Abene and the Masters of Deception. Mark Abene, better known by his pseudonym Phiber Optik, was one of the first computer security hackers. Phiber Optik was once a member of the hacker groups Legion of Doom and Masters of Deception. In 1994, he served a one-year prison sentence for conspiracy and unauthorized access to computer and telephone systems. Stories about the case appeared in The New York Times, Harper's, Esquire, in debates and on television. (Phiber Optik is an important figure in the 1995 non-fiction book Masters of Deception — The Gang that Ruled Cyberspace (ISBN 0-06-092694-5).)

While still a minor, Abene became affiliated with the Legion of Doom (LOD), a loosely-knit group of  users interested in computers. Abene and other people in the LOD exchanged information about accessing others' computer systems.  Abene joining up with Masters of Deception marked the beginning of what has since been termed "the Great Hacker War."

In conjunction with the nationwide AT&T telephone system crash in the 1990's, Abene's home was raided by the Secret Service. Agents permanently confiscated computer equipment and other belongings. Phiber Optik and fellow MOD members Elias Ladopoulos ("Acid Phreak") and Paul Stira ("Scorpion"), were interrogated under the suspicion of causing the AT&T crash. Abene was later arrested and charged with Computer Tampering and Computer Trespass in the first degree, both state offenses in New York. He was also charged with a misdemeanor theft-of-service. The two more serious charges were dismissed and he pleaded to theft-of-service and received community service.

There was, however, a second arrest and indictment.  Abene and four other members of the Masters of Deception were arrested again and indicted by a Manhattan federal grand jury -- on an 11-count charge.  The indictment relied heavily on evidence collected by court-approved wire tapping of telephone conversations among MOD members. According to a quotation by U.S. Attorney Otto Obermaier, it was the "first investigative use of court-authorized wiretaps to obtain conversations and data transmissions of computer hackers" in the US. (Such tactics had been used by the Australian Federal Police in the early 1990's to gain evidence for the prosecution of members of an Australian elite hacker community called The Realm.)

A telling statement made by Obermeier was: "The message that ought to be delivered with this indictment is that such conduct will not be tolerated, irrespective of the age of the particular accused or their ostensible purpose." 

After months of research, motions and maneuvering by the defense team, a favorable plea was worked out and Abene pled guilty to a count each of conspiracy and unauthorized access to computers of federal interest. The plea also disposed of the allegations of illegitimately accessing Southwestern Bell computer systems.

When the case began, the defendants faced a maximum term of 50 years in prison and fines of $2.5 million -- if found guilty on all counts. The plea arrangement resulted in 8 months imprisonment at a minimum security facility, three years probation and 600 hours of community service.  

After some consulting and speaking engagements on the subject of security, Abene was recruited by Steve Lutz at Ernst & Young, LLP as a staff consultant and with a small hand-picked group, jumpstarted E&Y's tiger team practice.

The Case of the Missing Cow. As lead counsel in a recent case in the VI, a dismissal of manslaughter charges was obtained just before trial was to begin. Although the final outsome has a degree of humor involved -- it could have been otherwise, and a 15 year sentence could have been imposed.

A farmer whose cows had previously been involved in a minor car crash after wandering out of the fence (many years before) was charged with manslaughter when another occurrence, sadly, resulted in the loss of life. (The VI had grown, with faster cars and better roads -- so this time the car ran into the cow at a higher speed.)

Despite repeated efforts to reach a plea deal, none was forthcoming. The prosecution insisted on trial and serious jail time for the farmer. However, in the time leading up to trial, the defense suddenly (and correctly as it turned out) took the position that pictures of the offending cow were not sufficiently sharp to conclusively identify the ear tag -- and that the original evidence was necessary.

After several attempts to follow the facts, when the corpus bovine was demanded, it turned out the 'body of evidence' had gone missing. Subsequent lore has it that the offending animal had been cut up for steaks -- by persons unknown -- immediately after the accident.

The thankful farmer was released. The fences have been strengthened and no further incidents have occurred with those cows -- although others still wander the roads at times.

9. Other Cases of Interest

FCC Submarine Cable Action, 198 F.3d 921; 339 U.S. App. D.C. 174; 18 Comm. Reg. (P & F) 1259 (D.C. Cir. October 13, 1999).

Andersen v. Defendants, 947 F.Supp. 894, 35 V.I. 314 (D.V.I. 1996)

Feddersen I, 68 F. Supp. 2d 585; 1999 U.S. Dist. LEXIS 14240; 41 V.I. 230 (D.V.I. September 10, 1999).

AA&M Carting Serv. Et al. v. Town of Hempstead et al., 183 A.D.2d 738; 583 N.Y.S.2d 473; (NY S.Ct. App. Civ. 2d Dept. March 6, 1992).

Return to top