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Our phone issues have been resolved.  Calls to the switchboard and direct inward dial lines are all operational.

Cuyler Burk is pleased to announce that SuperLawyers magazine has included five of its lawyers in their 2009 issue.

Richard Crooker and Peter Petrou make their debut on the SuperLawyer list this year.  Joining them are returnees Stephen Cuyler (2007, 2008) and Barry Osmun (2008). 

For the second year in a row, Jaclyn DiLascio Malyk has been named as a “Rising Star.”

You can get futher infomation from the SuperLawyers site:  http://www.superlawyers.com

The Special Masters of the United States Court of Federal Claims issued its highly anticipated decisions today on the first three test cases in the Autism Omnibus Proceeding.  In all three cases, the court found insufficient evidence of a causal link between the vaccines and autism. 

The Omnibus Autism Proceeding consists of over 5,000 cases alleging that certain childhood vaccinations caused or contributed to the child’s diagnosis of autism or autism spectrum disorder.  As part of the proceeding, three test cases were selected and tried under two general causation theories:  (1) that the MMR vaccine and vaccines that contained thimerosal (a compound consisting of 49.6% mercury used as a preservative in certain vaccines) combined to cause autism; and (2) that thimerosal-containing vaccines alone caused the childrens’ autism.  The decisions on these two general causation theories will then be applied to the over 5,000 individual cases.

The three test cases decided today pertained to the first general causation theory.   The Special Masters issued separate decisions on each of the three test cases.  The lengthy decisions may be found on the United States Court of Federal Claims website.

Hearings on the three test cases on the second general causation theory, that thimerosal-containing vaccines alone can cause autism, were completed in July of 2008.  Decisions on the second general causation theory are not expected for a few months.

In recognition of the economic power of privately held businesses, DiversityBusiness.com, the nations’ leading business-to-business internet site, recently named Cuyler Burk, P.C. one of the Top 100 Women Owned Businesses in the State of New Jersey.

“Entrepreneurs are a growing force in the U.S. economy, and a force to be reckoned with,” said Kenton Clarke, CEO of Computer Consulting Associates International, the company that built DiversityBusiness.com. This is a whole business segment that can carry its own, that provides jobs, products and services, and generates wealth for their communities. These are the new leaders in American business.”

“We are honored to be counted among such extraordinary women,” said Jo Ann Burk, CEO of Cuyler Burk, LLP.

The List

This List is a classification that represents the top small businesses in the U.S., in sectors such as technology, manufacturing, food service and professional services. Large organizational buyers throughout the country that do business with multicultural, small and women-owned businesses use the list. The List is produced annually by DiversityBusiness.com, the nation’s leading multicultural B2B Internet portal that links large organizational buyers to multicultural product and service suppliers.

The winning companies will be honored at a special awards ceremony at DiversityBusiness.com’s “9th Annual Multicultural Business Conference”, taking place April 29 – May 1, 2009 at the Disney’s Contemporary Resort in Orlando, Florida.

For the complete list of winning companies, please visit: www.diversitybusiness.com

Launched in 1999, DiversityBusiness, with over 46,000 members, is the largest organization of diversity owned businesses throughout the United States that provide goods and services to Fortune 1000 companies, government agencies, and colleges and universities. DiversityBusiness provides research and data collection services for diversity including the “Top 50 Organizations for Multicultural Business Opportunities”, “Top 500 Diversity Owned Companies in America”, and others.

Its research has been recognized and published by Forbes Magazine, Business Week and thousands of other print and internet publications. The site has gained national recognition and has won numerous awards for its content and design. It is a leading provider of Supplier Diversity management tools and has the most widely distributed Diversity magazine in the United States. DiversityBusiness.com is produced by Computer Consulting Associates International Inc. (CCAii.com) of Southport, CT. Founded in 1980.

The life of a sysadmin is never dull.  Last night, our Small Business Server had its usual “Patch Tuesday” slew of updates ready to go, so at 2 AM, I started the updates and rebooted the server as requested.

Upon reboot, the Exchange store wouldn’t mount.

Much teeth gnashing ensued.  I’ve recovered my fair share of Exchange stores, but this one just wasn’t coming back.

The event viewer was full of errors from the Exchange service:

Event Type:    Error
Event Source:    ESE
Event Category:    Logging/Recovery
Event ID:    494

Description:
Information Store (3860) First Storage Group: Database recovery failed with error -1216 because it encountered references to a database, ‘x:\pathtoourdatabase\priv1.edb’, which is no longer present. The database was not brought to a Clean Shutdown state before it was removed (or possibly moved or renamed). The database engine will not permit recovery to complete for this instance until the missing database is re-instated. If the database is truly no longer available and no longer required, procedures for recovering from this error are available in the Microsoft Knowledge Base or by following the “more information” link at the bottom of this message.

The frustrating part of all of this was the Exchange database was where it should have been (contrary to the above error).

Further struggle resulted in me throwing up my arms, catching a few hours sleep and attacking the problem in the morning.  I knew mail was being spooled on our mail gateway, so I wasn’t worried about losing any inbound mail.

In the morning, my luck was no better.  I did a quick Google search and turned up ExchangeRecovery.org

I made offline backups of the Exchange stores and gave them a call.  The receptionist answered promptly and transferred me over to “an Exchange specialist.”

I then spoke with Jon who was helpful as a fella could be.  I gave him access to our box and he ran thru the litany of tests I had, and then a few more too.   As a last resort, he tried moving the transaction log files out of the directory and that seemed to do the trick.  The store was in a clean state when it shutdown, so we didn’t lose any mail.

I can’t recommend Jon enough — he was good humored, professional and a joy to work with.  I give him an unqualified recommendation.

An article appeared recently in the Connecticut Law Tribune outlining how some redactions in PDF documents posted to PACER actually weren’t redacted all that well, and a simple select-all, copy, paste into your favorite word processor revealed what was hidden behind those redactions.

As you can imagine, there was some egg on some faces.

(This ties in, a tad, with my previous post about managing personally identifying information from your Word documents.)

The article goes on to point out a fact I think bears repeating: the new version of Acrobat (Version 8) does redaction right and actually removes the text hidden behind the redactions.

Even if you’re not using redactions, to make sure you’re not passing along any hidden data in your PDF files, you’ll want to do the following:

Open your PDF in Acrobat, click on Document > Examine Document and Check all boxes and click “Remove All Checked Items” and that should strip out any of the stuff this guy is worried about.  (The dialog box is shown; click on it for a version you can actually read.)

Also, the redactions in Acrobat 8 are PERMANENT which means once they’re applied, there’s no getting at the underlying info. No cut-and-paste into Word is going to get it back.  This is why Acrobat prompts you to use a NEW filename for your redacted copy… once you redact, there’s no going back.  SAVE YOUR ORIGINAL.

Also, once you redact, Acrobat — for good measure — will prompt you do the “Examine Document” scrubbing, since if you’re redacting, you probably want the other stuff out too.

CAVEAT: Examine Document also deletes any Bates numbers; so you’ll want to scrub and THEN Bates number.

At the gym yesterday, I read an article in Forbes by Peter Huber which discusses how the system employed to record real property title, security interests, etc. is and should change due to technology.  I would also note that for reasons having nothing to do with digital data and electronic communications, title insurance isn’t used in many civilized countries outside the USA.

Mr. Huber’s article brought to mind a company Andrew Craig and I have been working with.  That company has a business that scrapes electronic and paper records to create alerts of threats to institutional and engineering environmental controls for historically-contaminated real property.

It works like this:  if you were to remedy historical contamination by placing a physical cap and recording a deed restriction, but then not be in a position to observe whatever may go on at the property thereafter (most likely you sell or close the factory and move away), as a subscriber to the tracking service you would receive an alert, by way of example, if reporting on the control goes out of compliance or someone applies for a permit that could interfere with it.   I think that one of Andrew’s clients or a responsible party predecessor at a remediated site is considering subscribing to the service for its site(s).  Mike and I are involved in a discussion with a similar company about how the information technology they have developed may have application to insurance claims.

What I think we are seeing is that these companies have cool products in search of drivers to make a market that is emerging.

Obviously, information technology is a game-changer for an information business like law.  Today’s consumer of legal services is increasingly unwilling to pay lawyers’ fees for service the consumer perceives to be at best “paperwork” and, at worst, clerical repackaging of data and analysis that already exists.  (Cisco’s general counsel, Mark Chandler, made a well-publicized speech addressing these themes.)   As Mr. Huber discusses, today’s technologies provide cost-effective means of performing that work and the law will adopt them.

Cuyler Burk, P.C., a New Jersey Law Firm, congratulates its partners, Rich Crooker and Ed Collins, its client, International Risk Group, LLC, the City of Downey (California), the National Aeronautics and Space Administration (NASA), the General Services Administration (GSA) and the other stakeholders and their advisors on the Downey, California redevelopment project’s receipt of the Phoenix Award for Region 9 of the USEPA at the Brownfields 2008 Conference in Detroit, May 5-7, 2008. The Phoenix Award is recognized as a top environmental award for development of significant brownfields sites using innovative and practical remediation processes to restore contaminated sites to productive use with positive impact for their communities.

This award stems from the successful return of the Former NASA/Downey Industrial Plant in Downey to productive use. The work, which has been progressing since 2003, involves environmental remediation and redevelopment of 160 acres of property located approximately 15 miles east of Los Angeles International Airport. The property was used by the military for airplane assembly during the World War II era and later by NASA in its Apollo and Space Shuttle programs. The property then became excess to NASA’s mission but remained contaminated, principally with solvents in soil and groundwater incidental to the work performed there over the years.

The transaction provides an illustration of Early Transfer of contaminated federal property in accordance with CERCLA. The structure demonstrates how vital site-controls needed for effective privatization of historical environmental clean up cost on a fixed budget must be balanced with the realities of real estate development, requiring that all stakeholders perform with a sound understanding of the degree to which all rights and interests are intertwined.

Mr. Crooker’s client, International Risk Group, worked closely with the GSA, NASA, the City and other stakeholders to build the required relationships and agreements. The Governor of California, advised by state regulators, then signed off on the transaction, setting in motion the process whereby the real property and improvements were transferred from Federal Government ownership to the City prior to completion of environmental cleanup with private ownership and redevelopment commencing simultaneously.

Private redevelopment includes the Downey Studios (a major motion picture and television studio), a retail power center (Downey Landing) and a Kaiser Permanente regional hospital center and related complex. The transaction was facilitated by an environmental risk assumption agreement undertaken by a subsidiary of International Risk Group, by which it agreed to perform the required environmental clean up to no further action and to insulate the exiting federal government and incoming stakeholders, including the City of Downey, from financial risk associated with historical environmental conditions. Manuscripted environmental insurance products were utilized to secure these obligations.

Since the real estate and environmental risk assumption transaction closed in 2003, numerous major films, as well as the television series Smash Lab, have been made at the Studio, the retail center has opened and continues to operate at or near full occupancy, and construction of the hospital complex continues. Kaiser Permanente’s medical facilities are scheduled to commence full operations in 2010. Development has occurred simultaneously with ongoing environmental remediation at the site.

For further information, contact Richard Crooker at 973.734.3200 or rcrooker@cuyler.com.

So, you have decided you have better things to do with your money than to pay your lawyer the fees he has incurred in representing you.  The lawyer sues you for his fees.  You make the further decision to file a counterclaim for legal malpractice even though you know there is no basis for the malpractice claim.  Your strategy is that the malpractice claim will induce the lawyer to drop his suit for fees or to settle the claim cheaply.  At the very worse, the countersuit will delay the day you actually have to pay your former lawyer. 

What could go wrong? 

Read the rest of this entry »

The New Jersey Appellate Division recently affirmed a grant of summary judgment to High Point Insurance Company in High Point Insurance Company v. J.M., et al., ___ N.J.Super. ___, (App.Div. 2008), Docket No. A-0829-06T50829-06T5 (March 12, 2008) declaring that it was not obligated to defend or indemnify a pair of insureds under a homeowner’s policy in a personal injury lawsuit stemming out of sexual abuse.

As a result of events that occurred between August 1999 and April 2000 involving two minors, Sheryl Van Dyke (“Sheryl”) pled guilty to one count of second degree sexual assault and one count of endangering the welfare of minors. In a subsequent personal injury action brought by guardians of the involved minors, Sheryl faced allegations of sexual molestation and emotional injury. In addition, the complaint alleged that George Van Dyke (“George”), Sheryl’s husband, knew or should have known of Sheryl’s behavior and did nothing to prevent it. The Van Dykes were insured pursuant to a homeowner’s policy issued by High Point. High Point defended George subject to a reservation of rights, but declined to defend Sheryl. The case eventually settled.

Subsequently, a coverage action was commenced to determine whether the settlement was covered. The trial Court found Sheryl’s actions to be intentional based on an objective approach thus precluding coverage pursuant to an expected/intended exclusion within the policy. The trial court also denied coverage to George on public policy grounds, asserting that liability coverage should not be provided to spouses of sexual molesters, especially if he knew or should have know about his wife’s sexual proclivities.

George argued on appeal that the trial court should have applied a subjective test to determine an insured’s intent to injure. He further argued that if such a test was applied, summary judgment would have been denied because High Point could not demonstrate that he had any intent to injure. Quoting the New Jersey Supreme Court in Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 184 (1992), the Court stated “[w]hen the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure.” Furthermore, the Court reasserted its public policy stance stated in J.C. v. N.B., 335 N.J.Super. 503, 509-10 (App.Div. 2000) that allowing coverage for a spouse in a sexual molestation case would provide that spouse “with an undue incentive to value the stability and privacy of the marriage over the well-being of the child-victim.” Therefore, the Court found that public policy warranted application of an objective approach and as such George’s behavior cannot be labeled an ‘accident’ consistent with the policy’s definition of ‘occurrence’. The award of summary judgment relative to George was thus affirmed.

Also on appeal, Sheryl argued that High Point had a duty to defend and indemnify her based on her lack of subjective intent to cause any harm. Sheryl cited her assertion of a duress defense as support for her argument. The Court found this reasoning unpersuasive, stating that the elements of the crimes for which Sheryl pled guilty to reflect culpability for injury to the minors involved. As a result, the Court found that it did not matter which test (subjective or objective) the Court used to evaluate coverage and affirmed the award of summary judgment relative to Sheryl.