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Military Courts-Martial: What lies ahead?

Lawyer Blog Post 2011/01/26 14:37

Its a normal Tuesday morning. You report for work as usual but soon after your immediate supervisor pulls you aside and says to you: “NCIS (or OSI, CID, or base police) is here and wants to see you now.” You are ushered into an office, the door is closed behind you and two agents identify themselves as law enforcement and show you their badges. What do you do?

The first thing you need to be aware of is that if you are suspected of having committed a criminal offense in the military, you have the right to remain silent and not answer any questions regarding the alleged offense. You also have the right to speak to a military defense lawyer before making any statement to investigators. These rights are guaranteed by the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Of course, simply being aware of and invoking your rights does not guarantee that charges will not be brought against you. In many instances, attempting to interrogate the suspect in an effort to gain a damaging confession or admission is the last step taken by criminal investigators after perhaps many weeks or months of investigation.

If you find yourself in this situation, the early assistance of an experienced military defense lawyer is essential to presenting your best defense in court. Criminal charges in the military can be prosecuted at many levels depending on the severity of the allegations. Minor infractions may be handled by administrative means or through non-judicial punishment (NJP or Article 15) while more serious charges may be referred to a special or general court-martial. Assuming the allegations are serious enough to bring to court, the likely next step is preferral where an individual (usually a legal clerk or technician) swears to the charges before an officer authorized to administer oaths. You are entitled to receive a copy of the sworn charges.

What happens next depends on whether the government intends to refer the charges to a special or general court-martial. In the military, final charging and forum decisions are made by the Convening Authority (normally the commander of the unit or organization you are assigned to). The Convening Authority is usually not a lawyer but may have a judge advocate assigned to the staff to provide legal advice. Typically, if the commander is a Flag or General officer, they will have a staff judge advocate (SJA). Smaller commands may have a non-lawyer officer who has received some training as a collateral duty legal officer. In addition, the command may receive advice from the prosecutor (called a Trial Counsel) and various law enforcement agencies.

As you can see, the government has a wide array of resources at its disposal and the odds may seem stacked against you. The government, however, always has the burden of proving guilt beyond a reasonable doubt and there are other procedural and Constitutional safeguards you are entitled to. It is therefore essential that you have the assistance of counsel to assist you in defending your case. If you have been charged with a criminal offense in the military or know that you are under investigation, contact an experienced military defense lawyer to protect your rights.

http://ericroperlaw.com/blog/military-courts-martial-what-lies-ahead/55/

There Is No Bar to Bringing a 23(b)(3) Class Action and a FLSA Collective Action Together

Lawyer Blog Post 2011/01/19 23:00

January 19, 2011

Yesterday, the Seventh Circuit held that there is nothing in federal law that prevents a party from seeking class certification under Rule 23(b)(3) and a collective action under the FLSA in the same lawsuit in Ervin v. OS Restaurant Services, Inc., Case No. 09-3029. In reaching this decision, the Court reversed a decision by the district court, which found a "clear incompatibility" between the FLSA proceeding and the proposed class action. The Seventh Circuit is the first federal appellate court to weigh in on this issue.

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The plaintiffs in this case were restaurant employees who brought wage and hour claims against their employer under both the FLSA and state law. The plaintiffs moved for conditional approval of a federal collective action under 29 U.S.C. § 216(b), which authorizes employees to act together to seek redress for violations of the statute's minimum wage and maximum hour provisions. A collective action allows potential plaintiffs the opportunity to opt into the action. At the same time, the plaintiffs sought certification under Rule 23(b)(3) of three different classes alleging state-law claims, all of which would have been opt-out classes. The district court found a "clear incompatibility between the 'opt out' nature of a Rule 23 action and the 'opt in' nature of a Section 216 action," which automatically meant that the class action device was not a superior mechanism for resolving the plaintiffs' state-law claims. It, therefore, permitted the collective action to proceed, but denied class certification.

On appeal, the Court concluded that there is no categorical rule against certifying a Rule 23(b)(3) state-law class action in a proceeding that also includes a collective action brought under the FLSA.

In combined actions, the question whether a class should be certified under Rule 23(b)(3) will turn — as it always does — on the application of the criteria set forth in the rule; there is no insurmountable tension between the FLSA and Rule 23(b)(3). Nothing in the text of the FLSA or the procedures established by the statute suggests either that the FLSA was intended generally to oust other ordinary procedures used in federal court or that class actions in particular could not be combined with an FLSA proceeding.

The district court recognized that allowing the two types of actions to proceed together would mean that some of the people included as part of the state-law classes (those who did nothing) would be excluded from the FLSA collective action. It then apparently determined that this outcome would undermine the intention of Congress expressed in the FLSA.

In our view, the court jumped too quickly to congressional intent. Before taking that step, we must examine the text of the FLSA itself. Nothing we find suggests that the FLSA is not amenable to state-law claims for related relief in the same federal proceeding.

While reaching this conclusion, the Court criticized the district court for suggesting that it might treat combined actions that are first filed in a state court and then removed to federal court differently from comparable cases that originate in federal court.

There is no reason for any such distinction, however. An original filing and a proper removal are each appropriate ways to reach federal court. Once a suit is removed from state court to federal court, it is governed by the federal court's procedures, there is no exclusion for Rule 23 or for any other rule. If there is a problem with combined actions, as the district court suggested, then the problem exists for all cases within the federal court's jurisdiction.

Finally, the Court made one point that litigators should remember when preparing for any oral argument. At one point, the employer argued that having an opt-in and opt-out notice sent to the same set of employees carries too high a potential for confusing notice to potential group members.

When we asked at oral argument whether Outback's lawyers could provide any concrete examples of confusion resulting from this type of notification, they were unable to point to a single instance.

While the Court noted the "commendable concern for [the] employees' interests" by their employer, it did not find the possibility of this confusion to be dispositive.

Lessons:

A plaintiff may bring a 23(b)(3) class action and an FLSA collective action within the same lawsuit.
Application of federal procedure does not rest upon whether the case was removed to federal court or originally brought in that court.
If you are going to argue a practical problem with your opponent's argument, make sure to have a real-life example of that problem in action.

http://indianalawupdate.com/entry/There-Is-No-Bar-to-Bringing-a-23b3-Class-Action-and-a-FLSA-Collective-Action-Together

Nathaniel D. Johnson - Maryland Attorney

Legal Marketing 2011/01/19 22:56

Experience

Civil Rights Attorney for the Michigan House of Representative Judiciary Committee.

• Drafted statewide civil rights and anti-discrimination legislation.
• Advised State of Michigan elected officials on the political and policy implications of proposed legislation.
• Served as a liaison to special interests and community groups inviting their participation in the formation of public policy.

Bar Admissions

• Maryland
• U.S. District Court District of Maryland
• U.S. District Court of the District of Columbia
• U.S. Court of Appeals Federal Circuit
• U.S. Court of Appeals 4th Circuit
• U.S. Court of Appeals District of Columbia Circuit

Education

• Thomas M. Cooley Law School, Lansing, Michigan J.D.
• Wayne State University Law School, Detroit, Michigan LL.M. (pending)
• Bowie State University, Bowie, Maryland B.S.

The Law Firm of Nathaniel D. Johnson L.L.C. represents both private and public sector employees across the United States. The law firm’s representations range from negotiating severance and settlement agreements to litigation on behalf of employees in a variety of forums that include the following:

- Appellate actions.
- Group and class actions.
--State and federal court jurisdictions.

http://www.nathanieldjohnson.com/attorney-profile

The Securities Law Firm of Menzer & Hill, P.A. Files an Arbitration Claim Against E*Trade Securities, LLC.

Press Release 2011/01/19 12:56

The Securities Law Firm of Menzer & Hill, P.A. www.suemyadvisor.com, announced
today it has filed an arbitration claim against E*Trade Securities, LLC (“E*Trade”), a
subsidiary of E*Trade Financial Corporation (NASDAQ: ETFC ), for its failure to execute
a customer’s sell order after failing to deliver the customer his shares gained from a
forward split. E*Trade did not deliver the shares until several days after the shares
traded on a split adjusted basis, during which the customer’s position lost over 50% of
its value.

Investors who have sustained losses due to the negligence or misconduct of their
brokers and/or broker-dealers are urged to explore their legal rights and options. The
attorneys at the Securities Law Firm of Menzer & Hill, P.A. are dedicated to pursuing
claims on behalf of investors who have suffered investment losses.

For a free case evaluation or to discuss any other investment losses, please contact the
Securities Law Firm of Menzer & Hill, P.A. at 888-923-9223, or visit us on the web at
www.suemyadvisor.com

Court won't stop class-action suit against Pella

Headline Legal News 2011/01/19 02:56

The Supreme Court won't stop the class-action certification of a lawsuit against Pella Corp. over a purported defect in one of its windows.

The high court on Tuesday refused to hear an appeal from the window-maker.

The lower courts have certified a class-action lawsuit against Pella. The lawsuit alleges that Pella's aluminum clad wood "Proline" casement windows have a design defect that allows water to seep behind the aluminum cladding. They claim that allows the wood to rot at an accelerated rate, and that Pella committed consumer fraud by not declaring publicly the role that the purported design flaw had in the rot.

But Pella fought the class-action certification, saying consumer fraud claims are inappropriate for class treatment.

Court to issue ruling on Berlusconi's immunity law

Legal Business 2011/01/17 22:57

Judges of a top Italian court began deliberating Thursday on whether to uphold a law shielding Premier Silvio Berlusconi from two trials in Milan.

The Constitutional Court must decide if the legislation complies with the constitution, including the principle that all are equal under the law. It is expected to issue its ruling later Thursday.

If the court rejects the law, Berlusconi's two trials, on corruption and tax fraud charges respectively, will resume.

Berlusconi insisted this week that his government's stability will not be affected by the decision, and that he is "totally indifferent as to whether the trials are suspended or not." He called the trials "ridiculous."

But any decision will be fraught with political repercussions, and a rejection would deal a blow to a premier already weakened by sex scandals, a fight with an ex-ally and a shaky parliamentary majority.

The legislation suspends court proceedings for up to 18 months if the defendant has a "legitimate impediment" stemming from being premier or a member of government.

The law drew accusations that it was tailor-made for the premier, but Berlusconi's lawyer told the Constitutional Court in a hearing this week that the legislation is necessary to safeguard the right to a fair defense and that the Italian criminal code already envisages cases of legitimate impediment, such as grave sickness.

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Military Courts-Martial: What lies ahead?

There Is No Bar to Bringing a 23(b)(3) Class Action and a FLSA Collective Action Together

Nathaniel D. Johnson - Maryland Attorney

The Securities Law Firm of Menzer & Hill, P.A. Files an Arbitration Claim Against E*Trade Securities, LLC.

Court won't stop class-action suit against Pella

Court to issue ruling on Berlusconi's immunity law

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