Bail bonds

In case there was any doubt about this absconding to a foreign embassy and claiming asylum will result in a forfeiture of bail.  That is what happened this week to the people that served as bail sureties for Julian Assange.  His actions will cost them about $150,000.

http://www.abc.net.au/news/2012-10-09/assanges-bail-guarantors-ordered-to-pay-out/4302318

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Linkedin Account Lawsuit

A federal judge in Pennsylvania ruled that an employer's taking of a former employee's Linkedin account did not constitute a violation of the federal Computer Fraud and Abuse Act. 
http://lawyerist.com/linkedin-account-stolen-by-employer/

That is not surprising as this case is more of a case in state privacy law.  The blog post cited above refers to the Plaintiff's remaining state law claim as one for conversion.  However, the tort of conversion probably isn't the most applicable here.  A right to publicity claim under privacy tort law for misappropriation of her linkedin profile might be more appropriate.  The case facts assert that after the Plaintiff was fired from her job the employer changed the password on her Linkedin account and replaced her name and picture with that of her successor leaving the rest of the profile intact.  It would be a more clear-cut claim if the company had left the Plaintiff's name or photo on the account, but the screen name did not change and it appears neither did the other content on the profile.  So there is probably still enough there for a misappropriation of right of publicity tort assuming that the Plaintiff did not give the employer ownership of or continuing consent to use her right of publicity. 

Privacy tort laws vary from state to state.  Pennsylvania has both statutory and common law versions of the right to publicity tort.  She would have to prove damages as well by showing that account had commercial value and her losses from the misappropriation or she could seek an injunction.  There is also a separate invasion of privacy by misappropriation of name or likeness tort that does not require proof that the misappropriation is commercial in nature.  http://www.citmedialaw.org/legal-guide/pennsylvania-right-publicity-law 

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Alien Tort Statute

The Supreme Court reheard arguments in Koibel v. Royal Dutch Shell this past week.  I discussed this case on this blog back in February.  The issue before the court now is whether the alien tort statute can be used when the parties and the case have no connection to the United States. 

http://www.npr.org/2012/10/01/162110683/high-court-takes-up-human-rights-on-first-day-back

Previous Posts on the Alien Tort Statute:

http://koehlerlegal.blogspot.com/2012/03/alien-tort-statute-revisited.html
http://koehlerlegal.blogspot.com/2012/02/corporate-liability-under-alien-tort.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Federal Student Loan Collections Article

The Detroit Free Press has an interesting article today about the methods the federal government uses to collect student loans in certain jurisdictions including the Eastern District of Michigan.  In jurisdictions where the federal government hires private lawyers on a contingency basis (based on money actually collected) to file student debt default lawsuits there are far more lawsuits filed than in jurisdictions where it does not.  The article notes that the government collects about 80 cents on every dollar owed when the cases go into the court system.  The fact that student loan debt cannot be discharged in bankruptcy likely contributes to this number.

http://www.freep.com/article/20121007/NEWS06/310070254/Beware-metro-Detroit-The-feds-are-out-and-looking-for-payback-on-late-student-loans?odyssey=tab|topnews|text|FRONTPAGE

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

FICA Tax on Severance Payments

In United States v. Quality Stores, Inc.  the United States Court of Appeals for the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) ruled that supplemental unemployment benefit payments (severance payments) are not subject to FICA (social security and medicare) taxes.  By statute Supplemental unemployment benefit payments are not wages and are only treated as wages for federal income tax withholding only. 

While the government argued that an explicit exemption from withholding was required for income to not be subject to the FICA tax, the court disagreed.  It held that as the benefits were not wages they could not be subject to FICA withholding as there was no explicit allowance for withholding as there was for federal income taxes.  The severance payment could not be compensation for services rendered.  Instead they must be compensation for the loss of employment and must be contingent on the loss of employment whether temporary or permanent. They are still subject to federal and state income taxes.

As half of the FICA tax is paid by the employer and half by the employee both the employer and the employee stand to recover a refund.  In this case Quality Stores sought a one million dollar refund.  The government's total liability could be over four billion dollars. 

The federal circuit concluded that severance payments were subject to FICA taxes in 2008 so there is now a circuit split on this issue and the government will likely request a hearing en banc before the entire Sixth Circuit.  The case may be ripe for review by the United States Supreme Court.  Given the amount the government might have to refund if this decision stands an appeal is likely.  The government had argued that congress had "decoupled" withholding of federal income tax from withholding of FICA taxes in 1983 and that income not subject to withholding for federal income taxes was not

http://www.ca6.uscourts.gov/opinions.pdf/12a0313p-06.pdf

http://www.forbes.com/sites/ashleaebeling/2012/09/13/severance-pay-fica-tax-refunds-for-employers-and-employees-back-on-the-table/

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Child Support Nonpayment - Impossibility Defense

The Michigan Supreme Court issued an opinion supported by a 4 justice majority in People v. Likine on July 31, 2012 that allows a defendant to raise the common law defense of impossibility in felony non-payment of child support cases.  The court did not adopt an inability to pay defense.  Three justices dissented and would have adopted the broader inability to pay defense.   Likine combined three separate appeals of felony non-payment of child support convictions into one appeal.  In one instance the defendant had been unemployed for over three years and was on social security for mental illness.  Her child support payment was over $1,000 per month at one point.  

Felony non-payment of child support under MCL 750.165 is a strict liability offense.  The statutory maximum for a conviction of felony non-support is 4 years in prison and or a $2,000 fine.  The impossibility defense is a high standard to meet.  The defendant must make a prima facie case of impossibility or the defense will not be submitted to the jury.  This means that the defendant must establish facts at trial sufficient for a reasonable jury to find impossibility or the judge will not send the defense to the jury.  If the defense goes to the jury the defense must prove impossibility by a preponderance of the evidence.

To do this the court ruled that the defendant must show that he or she acted in good faith and made all reasonable efforts to pay the amount due, but was unable to do so through no fault of his or her own.  Efforts to seek employment or borrow money are needed, but the court made clear that the defendant must go beyond that and use all resources at the defendant's disposal to pay the child support.   It must have been impossible for the defendant to obtain the resources to pay. 

The court included a non-exhaustive list of factors including that the defendant: 1) "diligently sought employment", 2) attempted to secure additional employment; 3) whether investments were liquidated; 4) whether the defendant received gifts or an inheritance; 5) whether the defendant owns a home where refinancing is possible; 6) whether assets can be sold or used as loan collateral; 7) the priority the defendant placed on paying child support over the purchase of luxury or non-essential items; 8) whether reasonable precautions were taken to guard against "financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one's parental responsibility to one's child;" 9) the existence of "unexplored possibilities for generating income for payment of court-ordered support; and 10) major unexpected circumstances preventing payment.  The court explicitly stated that passivity, neglect, and failure to plan will not excuse non-payment of child support.  Hiding or being untruthful about resources or assets or the failure to seek a timely change to the child support order when circumstances indicate it is impossible to pay may also prevent the defendant from using the defense. 

Overall this is a very narrow defense that must be carefully presented at trial or the defense may never get to the jury.  Individuals in a situation where they cannot pay child support must be aware that they must exhaust every possibility or option they have to make good on their obligation if they are to avail themselves of this defense.


http://www.freep.com/article/20120802/NEWS05/308020123/Michigan-Supreme-Court-clarifies-child-support-ruling

http://courts.michigan.gov/supremecourt/Clerk/11-12-Term-Opinions/141154-141181-141513-Opinion.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Plain Language

Below is an amusing article about legislative attempts to make administrative agencies and Departments of the federal government write in plain language. The Plain Writing Act of 2010 attempted to mandate this, but that is not likely to happen quickly especially in the military related departments. Passive language and acronyms tend to obscure things very quickly. The legal profession isn't much better at it. 

http://usnews.msnbc.msn.com/_news/2012/07/19/12840181-government-gobbledygook-its-dying-a-slow-painful-death?lite
http://www.cantondailyledger.com/news/x1914867724/Plain-language-law-off-to-a-spotty-start
http://www.plainlanguage.gov/plLaw/index.cfm
http://centerforplainlanguage.org/resources/plain-writing-laws/plain-writing-act-of-2010/
Executive Order 13563 http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf
Executive Order 12866 http://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf
Executive Order 12988 http://www.plainlanguage.gov/populartopics/regulations/eo12988.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)