law

By South Carolina Wrongful Death Attorney Gary Christmas, a senior partner and founding member of the law firm Christmas Law Firm.

A recent fatal Amtrak accident has been blamed on the freight railroad CSX and the Federal Government’s failure to install Positive Train Control on the track in question by Amtrak’s president and CEO.

Richard Anderson, CEO of Amtrak, claimed in a statement that the accident was the result of a CSX crew redirecting the main line to a side track where the CSX train was parked, and not switching it back.

Additionally, said Anderson, this portion of track was not equipped with Positive Train Control (PTC), which is designed to automatically slow or stop a train in situations where it is speeding or heading down the wrong track. Anderson said that the accident, which claimed the lives of three Amtrak employees, could and should have been avoided.

“The NTSB (National Transportation Safety Board) is currently investigating this accident, and hasn’t reached any conclusions about who was at fault,” said Gary Christmas, a Mount Pleasant personal injury attorney with the Christmas Law Firm. “However, the NTSB Chairman has been quoted as saying that PTC would have eliminated most, if not all, of the recent fatal train accidents.”

Though statements like this certainly support the claims of Amtrak’s CEO, any probable cause findings issued by the NTSB are specifically barred from use in civil litigation by Federal law. What is not barred are the findings of fact included in the NTSB report, which can assist a claimant in making his or her case regarding any claim for injuries.

“Accidents such as these,” said Christmas, “raise questions about the best approach to take in filing suit from a wrongful death standpoint.” As employees of Amtrak, the three individuals that lost their lives would be covered by the Federal Employers Liability Act (FELA), which is much more favorable to claimants than standard workers’ compensation claims.

FELA allows recovery for pain and suffering and uses the pure comparative negligence standard as opposed to contributory negligence. Pure comparative negligence allows recovery for an individual claimant even if their own negligence contributed to their injuries. This is better than South Carolina’s standard, which says that if a claimant is more than 50 percent responsible for their own injuries, they are barred from recovery.

Many elements go into any claim for injury, including choice of law, the order in which to file claims, and how to use evidence provided by other parties. The involvement of a South Carolina Personal Injury Attorney can be incredibly beneficial.

By Washington D.C. Criminal Defense Attorney Matthew Wilson with Price Benowitz LLP.

Recent attempts at drug reforms have been blocked in Washington D.C. by a subcommittee in Congress. The city is working to expand its current law for the legalization of marijuana.

The legislation passed recently by the House Appropriations Subcommittee on Financial Services and General Government would also put restrictions on how funds can be used for safe consumption sites.

The legislation was passed by the subcommittee at the end of May and it is known as the funding legislation for Fiscal Year 2019. The provision that deals exclusively with marijuana clearly states that none of the funds from the federal government from the act, or funds raised by the local government, can be used to reduce the penalties for marijuana use or help enact any laws that legalize the use of marijuana.

During the election cycle of 2014 voters in Washington D.C. approved a measure that would have legalized the possession of low-level marijuana and even approved homegrown marijuana plants at a small amount.

The City Council was planning to move forward following the vote with a system for legalizing, taxing and selling marijuana. The City Council has not been able to move forward following the public vote because of the roadblocks enacted by Congress.

On a separate issue, the bill from the House Subcommittee would also prevent the use of funds for safe injection sites.

The language in the bill expressly bans the use of federal funds for paying for syringes or needles in an effort to prevent blood borne pathogens at supervised drug consumption locations. The language about the drug consumption locations is new to the legislation, while the other language has been present in the bill for years.

The legislation only mentions federal funds when it comes to safe injection sites, not local funds. Presumably, this would allow the City Council to use tax dollars raised to help fund safe injection sites if it wanted to do so.

“The opioid epidemic continues to grow in Washington D.C. and around the country,” Matthew Wilson, a drug charges attorney for Price Benowitz LLP, said. “Fighting drug charges on your own can be difficult if you don’t know the law or courtroom etiquette. Don’t risk your freedom by representing yourself in court.”

Advocates of safe injection sites claim that these sites help to save lives since users will be monitored by medical personnel who can help them should they overdose.

By Washington D.C. Immigration Attorney Natalia Segermeister of The Visa Firm of Price Benowitz LLP.

Eleven supposed members of the group of individuals fleeing violence in Central America (called a “caravan” by certain members of the media and certain politicians) have been arrested and charged in San Diego, CA for attempting to cross the border into the United States at a location not designated for such crossing and attempting to elude inspection by Customs and Border Patrol (CBP) agents.

These individuals have been charged in the United States, and according to a recent Supreme Court ruling, may be detained until such time that a hearing may occur on their charges.

Whether they actually are members of the large contingent is unknown. About 150 members of the caravan presented themselves to the CBP agents at the San Ysidro entry point and requested asylum.

Procedurally, the request for asylum begins at the point of entry. From there, individuals must prove that they have a “well-founded fear” of persecution due to their race, ethnicity, religion, political opinion, or membership in a particular social group in the country from which they are fleeing.

Unfortunately, this process can take years, and no claim for asylum is guaranteed. For these 150 or so asylum seekers, they may be detained by Immigration and Customs Enforcement or released into the U.S. with ankle monitors.

“Asylum seekers such as the members of the caravan are looking to the United States for protection in times of fear and uncertainty,” said Asylum Attorney Natalia Segermeister, with The Visa Firm in Washington, D.C. “They have rights, just as anyone else does, and those rights must be respected and the rule of law followed — especially by immigration enforcement officials.”

The “caravan” has been well publicized and has presented an opportunity for the current administration to stake out its position on undocumented immigrants.

Representatives of the administration have indicated that the US Government will seek to charge anyone attempting to enter the country without proper documentation, and to deport anyone found to be in the country and undocumented.

By an attorney with the New Jersey Bankruptcy firm Garden State Bankruptcy.

On December 20, the Securities and Exchange Commission (SEC) accused Woodbridge Group of Companies and its former CEO, Robert Shapiro, of fraud by running a Ponzi scheme and sued them in federal court in Florida.

The company has reached an agreement with the SEC and admitted that it ran a $1.2 billion Ponzi scheme since August 2012 and maybe prior to that. Woodbridge is now in Chapter 11 bankruptcy protection.

The Ponzi scheme stemmed from thousands of small family-owned retail businesses who were told that their investments would be secured by a luxury real estate portfolio in the most real estate expensive markets in the US. However, not all of the real estate was valuable. The cash from new investors would be used to pay older investors.

Woodbridge paid for Shapiro’s opulent lifestyle, including credit cards — he charged $16,000 at Macy’s the day he left the company in December, as well as country club fees and other personal expenses. His wife received $3.9 million from the company last year, and other relatives also received payments.

Bankruptcy laws allow a company to liquidate their assets to pay off its debts and use those funds to pay its outstanding debts and to create a new repayment plan. Woodbridge is now selling off more than 130 luxury properties in its portfolio and those proceeds — which could be worth $650 million — may make it to those affected investors.

While normally this process would take years, according to an accelerated payment plan is in place and the mostly elderly victims can see money by December. However, it won’t be 100 percent of their investment; more likely, it will be 45 percent to 76 percent of it.

However, Shapiro has severed ties with the company he founded and is fighting the SEC’s charges. He resigned from his position as CEO a few days before the company filed for Chapter 11 bankruptcy on December 4.

Although he agreed to stay at the company with the title of consultant at a $2 million salary, but that did not last after the SEC filed its charges against him and the company.

“Ponzi schemes can result in financial catastrophe for its victims,” said a Chapter 7 Business Bankruptcy attorney at Garden State Bankruptcy. “Often the best way for a victim investor to recover their money is to make claims against other victims so everyone will share equally in the financial recovery of funds from the company. In addition, they may be sued in clawback lawsuits, where any money they were paid by a company must be paid back in certain situations.”

The company was also being investigated by securities regulators for selling unregistered securities and using unlicensed agents in Arizona, California, Colorado, Iowa, New Jersey, Oregon and South Carolina.

By Virginia Immigration Attorney Natalia Segermeister with The Visa Firm of Price Benowitz LLP.

As more people request protection from persecution through asylum at the United States border, Attorney General Jeff Sessions has implemented new policies to make it even more difficult for them. The moves that are being made may not only violate international laws, they are also being touted as being ‘morally bankrupt.’

It was in May that the attorney general with the Department of Homeland Security implemented the zero-tolerance policy for those found to be trying to cross the United States border illegally.

It was this policy that has seen many prosecuted for crossing between ports of entry and has separated children from their family members. When the children are removed from the family, parents are left with no recourse and no way to contact or reunite with their children.

After the zero-tolerance policy was implemented, Jeff Sessions then changed the policies on what is considered valid reasons for claiming asylum.

While gang and domestic violence were once allowed as a basis for asylum if one could demonstrate that the harm suffered was on account of a membership in a particular social group, Sessions is stating that those claims should no longer be considered. The reasoning being that these claims founded on violence inflicted by non-governmental actors does not satisfy the requirement that the motivation for the persecution is group membership.

“This change is one that many are pointing to, stating that it violates international law. In most of these cases, those claiming these kinds of persecutions are not being given a chance to state their case and address the group membership component.” says Asylum Attorney Natalia Segermeister of the Visa Firm of Price Benowitz.

The new policies are meant to deter others that wish to cross the border illegally, but it does not seem to be working. In fact, the amount of arrests made for crossing between ports of entry has increased every month for the past three consecutive months.

But that is secondary to the serious consequences pediatricians say the children taken from their families will endure. Not only do they not know where their parents are or when they will see them again, they are also being held in detention centers with substandard care.

In addition to these new policies, Republicans in Congress have stood behind the new policies intended to deter all immigration. In a new proposed bill, they also continue to make it more difficult for asylum seekers that are trying to get the protection their families need.

By Maryland homicide lawyer Kush Arora with Price Benowitz, LLP.

The 16-year-old suspect in the death of Baltimore County Officer First Class Amy Caprio was ordered to be held without bail by a local judge. The judge, ordering Dawnta Anthony Harris of Baltimore be held without bail called the teen “a one-man crime wave.”

The body camera Officer Caprio was wearing during the incident shows Harris accelerating a stolen Jeep he was driving as he approached the officer in a cul-de-sac. Officer Caprio was responding to the report of a suspicious vehicle in the cul-de-sac when the incident occurred.

The suspect held in the death of the officer was waiting in the Jeep as three others were burglarizing a home in the Perry Hall community, which is just northeast of Baltimore. According to officials from Baltimore County, three other teens have also been taken into custody in relation to the case.

As Officer Caprio attempted to get Harris to exit the vehicle he sped up and ran over her. The police have not confirmed Officer Caprio’s cause of death but witnesses claimed they heard a popping sound prior to the officer being run over by the Jeep. A brother of a witness, who is a local volunteer firefighter, ran out of his home and began giving Officer Caprio CPR.

Other residents of the neighborhood said they heard Officer Caprio scream, “Get out of the car,” three times before hearing a pop. Another neighbor also ran from her home and helped in attempts to resuscitate Officer Caprio, who would have celebrated her four-year anniversary on the force this coming July.

The death of Officer Caprio was ruled a homicide by the medical examiner assigned to the case. The medical examiner said that Officer Caprio died from trauma to the torso and to the head. They also noted that there were no gunshot injuries on Officer Caprio’s body.

Harris has been charged as an adult with first-degree homicide. The identities of the three other teens arrested in connection with the incident have not been released and it is not yet clear how the three teens will be charged.

“Crimes involving juveniles are intricate and can become even more complex when the juvenile is charged as an adult,” Kush Arora, a Montgomery County criminal defense attorney, said.

By Virginia criminal law attorney Steve Duckett with Price Benowitz, LLP.

“What constitutes personal information?” is the question that the Virginia Supreme Court wants answered by lower courts, according to a decision issued by the Court in April.

The case involved the data collected by Automated License Plate Readers — the devices on the trunk lids of many police vehicles that take pictures of thousands of license plates per hour and check those numbers against list of plates stolen or wanted vehicles.

A Washington Post investigation discovered that several state agencies were not complying with the nonbinding opinion of the state’s Attorney General, who had determined that retention of the photographs for an extended period was not allowed. The Virginia State Police currently purges its photo database every 24 hours.

The Fairfax County Police Department — the defendant in the case in question — had a policy of retaining the information for one year and claimed that the information was not “personal” because the plate information generated did not have an owner’s name associated with it.

However, the Supreme Court felt that this was too narrow an interpretation, finding that the other information in the photograph — the type of vehicle, the time of day, and the surroundings in the photograph, were of a nature that might allow individuals to determine more personal information.

Additionally, when combined with the other resources available to the department, the photographs could quickly become personal in nature. It sent the case back to the lower court to make a determination based on that definition of “personal information.”

“Retention of certain personal information by law enforcement agencies may be considered an invasion of privacy when that information is not related to a crime or investigation,” said Steve Duckett, an Alexandria traffic lawyer.

The license plate data is being legally collected. It is only being used to determine whether the plate number in question is associated with any outstanding stolen or wanted vehicles. It is not being used to identify the individual in the vehicle.

However, retaining that information in a database for an extended period creates another pool of information that can be used to identify individuals and their activities. The lower court will need to decide whether that constitutes an invasion of an individual’s privacy.

By New York family and matrimonial attorney Mario D. Cometti, a partner with Tully Rinckey PLLC.

The Tax Cuts and Jobs Act (TCJA), which was passed at the end of 2017 and went into effect for the 2018 tax year, has a multitude of new provisions that will have both positive and negative impacts on millions of individuals, including those paying and receiving alimony.

Under previous tax laws, alimony payments under a divorce settlement or decree were deductible for the party making the payments and taxable income for the receiving party. This effectually shifted the tax burden to the lower-earning individual and reduced the taxes owed on that alimony payment, thereby opening a bigger pool of money to pay alimony from.

“Under the TCJA, alimony payments are no longer deductible for the paying party, nor or they considered taxable income for the recipient party in any divorce entered after December 31, 2018,” said Albany matrimonial attorney Mario D. Cometti with the law firm Tully Rinckey, PLLC.

Although this may seem like a win for the recipient and an increase in tax receipts for the government, the actual effect may be less positive.

Alimony payments were an “above the line” deduction, meaning they reduced the taxable income of the individual making the payment. This could provide recipients with leverage in negotiating amounts by showing the tax savings associated with the payments. The result was that an individual could make alimony payments without feeling the full impact of those payments on their net income.

With the new law, the recipient no longer must show alimony as taxable income, but the actual result puts the leverage into the hands of the paying party. The paying party will now be able to argue there is a smaller pool to make payments from because of the lost deduction, while also being able to argue the recipient should be able to do more with a smaller amount because it is tax-free.

If you have questions about this shift in tax law, or alimony and divorce in New York, contact a knowledgeable attorney with Tully Rinckey, PLLC today to schedule your initial consultation.

By Alexandria criminal defense attorney Thomas Soldan with Price Benowitz, LLP.

According to the Virginia Department of Transportation (VDOT), few drivers cheat the toll fares while driving inside the Capital Beltway on Interstate 66.

On December 4 the interstate expanded the HOV — or High Occupancy Vehicles, requiring two people in the car to avoid a toll – restrictions on the road by increasing HOV hours and adding tolls solo drivers must pay during rush hours.

The toll changes according to how much traffic there is — that fare can range from $5-$40; the goal of the tolls is to keep traffic moving as quickly as possible. The new toll rules have increased driving speeds during the morning commute, but conversely has had little effect on travel times during the afternoon commute.

Since then, only 171 drivers have been caught cheating by using the lanes when they were not supposed to, and not paying the required toll. This equals only .0007 percent of all trips taken on the Interstate between December 4, 2017 and March 30 of this year.

VDOT estimates that before the toll was put into place at least half of the drivers on the road were cheating and misusing the HOV lane.

Now that all drivers on the road are required to have an E-ZPass, all solo drivers either pay or are billed for the toll (plus penalties unless they pay online), so the number of cheaters is drastically reduced compared to before. Now, VDOT says that 12 percent of the drivers did not have an E-ZPass.

To use the HOV lane, in addition to having two people in the car during the expanded hours (5:30 a.m. to 9:30 a.m. in the direction of Ballston and Rosslyn/ 3 p.m. to 7 p.m. in the direction of the Beltway), drivers must also have an E-ZPass Flex transponder in HOV mode to ride free.

The only way for a driver to cheat the system now is to switch their E-ZPass Flex to HOV mode while driving solo, but it is in one’s best interest to obey the restrictions.

“Virginia is vigilant about prosecuting traffic violations to protect public safety, including using the HOV lanes according to traffic laws” said Thomas Soldan, a Virginia traffic lawyer at the law firm Price Benowitz, LLP. “Penalties for cheating include fines that double per repeated offense which can lead to suspension or even revocation of your license. In extreme cases it can include jail time.”