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    The Lawletter Blog

    Nicole Prysby

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    APPELLATE PRACTICE:  Sanctions Including Dismissal and Fines Imposed over Noncompliant Briefs

    Posted by Nicole Prysby on Mon, Dec 16, 2019 @ 09:12 AM

    The Lawletter Vol 44 No 6

    Nicole Prysby—Senior Attorney, National Legal Research Group

                The appellate process is already an expensive and difficult process. Why sink your chances of a win by presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules?

                In very egregious cases, a noncompliant brief may result in the denial of the appeal. In 2019, a North Carolina court concluded that dismissal was an appropriate sanction. In Ramsey v. Ramsey, 826 S.E.2d 459 (N.C. Ct. App. 2019), the appellant failed to file the record on appeal within 15 days of the date the record was settled and included a discussion of relevant facts in the argument section, instead of in a separate fact statement. He included the standard of review in only one of his three argument sections and had a litany of minor errors, such as a failure to identify the specific names of persons served in the Certificate of Service. And although the brief met word limits, the Certificate of Compliance stated the word count, rather than the required statement that the brief contains no more than the permitted number of words. The court declined to make its own "voyage of discovery through the record" in order to glean the relevant circumstances for the appeal and dismissed the appeal. Id. at 464.

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    Topics: appellate procedure, appeal dismissal, Nicole Prysby, noncompliant brief, sanctions

    FRAUD: CFTC Sues Bitcoin Ponzi Scheme Operator

    Posted by Nicole Prysby on Mon, Jan 8, 2018 @ 11:01 AM

    The Lawletter Vol 42 No 10

    Nicole D. Prysby, Senior Attorney, National Legal Research Group

                The price of Bitcoin has soared in recent months, from approximately $900 in January 2017 to a current price of over $15,000. But even before the 2017 increase, Bitcoin had periods where its value rose sharply. For example, in 2013, it went from about $15 to $800. Bitcoin’s short-term gains have made it a very attractive hook for would-be Ponzi scheme developers. In fall 2017, the Commodity Futures Trading Commission (“CFTC”) sued Gelfman Blueprint, Inc. (“GBI”), and GBI’s Chief Executive Officer (“CEO”) for operating a Bitcoin Ponzi scheme that allegedly defrauded investors out of more than $600,000.

                In early 2014, the company’s CEO opened a Bitcoin fund and sought customers. He claimed to have a high-frequency, algorithmic, trading strategy (using a bot named “Jigsaw”) and advertised the fund as having monthly returns of 7%-11% with zero downside risk because “trading results are maximized during price drops.” He was able to attract at least 80 customers, who contributed between a few hundred dollars and tens of thousands of dollars each. Once the customers signed up and paid into the fund, the CEO provided them with various reports and materials purporting to show that they were earning 7%-9% per month, that the customers owned specific amounts of Bitcoin, and that the company’s assets and performance were audited by a CPA.

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    Topics: fraud, Bitcoin, Ponzi scheme, jigsaw trading strategy

    EMPLOYMENT DISCRIMINATION: Long-Term Leave Is Not a Reasonable Accommodation

    Posted by Nicole Prysby on Tue, Oct 17, 2017 @ 12:10 PM

    The Lawlettervol 42 No 8

    Nicole D. Prysby, Senior Attorney, National Legal Research Group

                On September 20, 2017, the Seventh Circuit Court of Appeals affirmed a decision by a district court, holding that the failure to provide an employee with long-term medical leave is not a violation of the Americans with Disabilities Act ("ADA"). The decision, Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir. Sept. 20, 2017), rejects the Equal Employment Opportunity Commission ("EEOC") position that long-term medical leave may qualify as a reasonable accommodation.

                Severson worked for Heartland Woodcraft, Inc., in a position for which heavy lifting was an essential function. In 2013, he took 12 weeks of Family and Medical Leave Act ("FMLA") leave due to back pain. On the last day of leave, he had back surgery, which required that he take another two to three months of leave from work to recuperate. He asked if he could continue his medical leave, but because he had exhausted his FMLA leave, Heartland denied the request and told him that he could reapply for a position once he was medically cleared to work.

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    Topics: employment discrimination, ADA, FMLA, long-term leave, reasonable accommodation

    EMPLOYMENT LAW: Are Gay, Lesbian, and Bisexual Employees Protected from Discrimination Under Title VII?

    Posted by Nicole Prysby on Thu, Jul 20, 2017 @ 11:07 AM

    The Lawletter Vol 42 No 6

    Nicole Prysby, Senior Attorney, National Legal Research Group

                In interpreting the coverage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, appellate courts have held that the prohibition against discrimination based on sex does not encompass discrimination based on sexual orientation. E.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). In December 2012, however, the Equal Employment Opportunity Commission ("EEOC") took the opposite position in a Strategic Enforcement Plan that prioritized enforcement of discrimination against lesbian, gay, bisexual, and transgender employees under the sex discrimination provisions of Title VII. Since that time, the EEOC has filed a number of lawsuits alleging discrimination against gay and lesbian employees and has consistently maintained that Title VII's prohibition of discrimination based on sex protects employees against discrimination based on sexual orientation. See, e.g., Complainant v. Anthony Foxx, Secretary, Dep’t of Transp. (Fed. Aviation Admin.), Agency, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2016).

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    Topics: employment law, sexual orientation, discrimination

    Vanguard Profiles NLRG

    Posted by Nicole Prysby on Wed, Apr 5, 2017 @ 11:04 AM

         The Vanguard Law Magazine recently profiled the National Legal Research Group in its national magazine, focusing on the attorneys that make up the firm and the specific benefits NLRG provides to its attorney clients. The staff of 35 attorneys assists attorneys in all 50 states and does some international work. President John F. Buckley explained that the key to NLRG’s success is the deep experience of the staff—NLRG attorneys typically have 20-25 years of experience, working on projects in multiple jurisdictions. That experience allows NLRG attorneys to act as consultants for its clients, helping attorneys determine if they have a case, and then assisting with drafting of pleadings, arguments, and briefs. Since the firm was founded nearly 50 years ago, NLRG attorneys have worked on over 173,000 cases, in every jurisdiction. In additional to litigation-related work, many NLRG attorneys write books on various area of the law, including family law, local government, and human resource law.  Read the full story at https://www.vanguardlawmag.com/case-studies/national-legal-research-group/.


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    APPELLATE BRIEF WRITING: Mistakes Can Be Fatal to Your Case

    Posted by Nicole Prysby on Wed, Jun 1, 2016 @ 10:06 AM

    The Lawletter Vol 41 No 5

    Nicole Prysby, Senior Attorney, National Legal Research Group

         "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). The frustration evident in this quote is shared by many appellate judges. The appellate process is already an uphill battle, and presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules makes it even harder. The vast majority of appeals are resolved without oral argument, which means that the brief is likely the only chance an attorney will have to present a client's case on appeal.

         The consequences of an inadequate or noncompliant brief range from frustrating the court to having the appeal dismissed. In egregious cases, sanctions may even be imposed. For example, sanctions were imposed against counsel in one case involving the failure to observe line spacing, font, and footnote rules. Kano v. Nat'l Consumer Co-op. Bank, 22 F.3d 899 (9th Cir. 1994). In another case, the court suggested that counsel should be liable for malpractice for a brief that was egregiously noncompliant with court rules. Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404 (3d Cir. 1980). In Kushner, failure to comply with federal rules for the brief and appendix not only led to dismissal of the appeal but also prompted the court to suggest that a client facing this situation "may wish to proceed against his or her counsel in an action for malpractice." Id. at 408. The court also stated that "[w]e note with extreme melancholy that this case is not an isolated example." Id.

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    Topics: noncompliance consequences, Lawletter Vol 41 No 5, appeal dismissal, Nicole Prysby, appellate brief writing

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