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CABLE TV SERVICE IS NOT A UTILITY SUBJECT TO REESTABLISH SERVICE

In a decision yet to be published, the United States Court of Appeals, Fifth Circuit, has issued a decision in Darby v. Time Warner Cable, Inc. (Matter of Darby), No. 05-20931 (5th Cir. Nov. 14, 2006), which states that cable TV provider is not a utility governed by 11 U.S.C. § 366.  In a case of first impression appealed from the United States Bankruptcy Court of the Southern District of Texas, the 5th Circuit found:

The word “utility” as it is used in § 366 is not defined within the statute, but some guidance is provided by the legislative history of the provision. Both the House Judiciary Report and the Senate Report on the provision state in relevant part: “This section gives debtors protection from a cut-off of service by a utility because of the filing of a bankruptcy case. This section is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility”…We must decide if Time Warner stands in a “special position” with respect Because § 366 is a restriction on the general right of a creditor to cease doing business with a debtor for any reason, it seems logical that a strong justification, such as the need for continued access to essential services, underlies the provision…The services mentioned in the legislative history are considered “necessary to meet minimum standards of living,” and we hold that the necessity of a service is what creates a “special” relationship between a debtor and a utility…“cable television is not a necessity as millions of Americans continue to exist without such a service”… Therefore, cable service is not covered by § 366, and Time Warner is not required to reinstate Darby’s service despite his offer of adequate assurances of future payment …Because cable television is neither a necessity nor would Darby be faced with crippling inconvenience in obtaining alternate service, Time Warner is not a utility as contemplated by § 366.

VETERANS DAY PRAYER BY SUSAN KRAMER

"You gave for peace with courage
That families may be free
So children could grow strong
And safe they'd ever be.

In giving for the sake of peace
You may have suffered loss
Your body may still show its wounds
From taking up the cause.

May remembrance of your time away
Your sacrifice for peace
Spur us on to strive more strongly
For freedom, that there'll be release.

From causes that sent some away
To fight that we may freely live
With gratefulness we thank you, veterans
For all you gave and give!"

ABA SAYS IT IS OKAY FOR LAWYERS TO REVIEW AND USE METADATA

The Standing Committee On Ethics And Professional Responsibility of the American Bar Association (ABA) has issued an opinion saying that it is permissible for an attorney to use metadata obtained from documents provided to him or her.  According to the ABA, "The Model Rules of Professional Conduct do not contain any specific prohibition against any lawyer's reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent for an adverse party."

This opinion is important because attorneys often receive emails, archived documents, and word processed documents from others that contain embedded information, such as the person who drafted the document, and when it might have been drafted or updated.  In short, the history in the creation of the document.  This information can be reviewed (often by just using Word on a Word document transmitted to you by email).

I had this issue come up not long ago.  We sued a company for violating the automatic stay in a bankruptcy after it received notice of the bankruptcy.  The company had filed a lawsuit against the debtors before the bankruptcy was filed.  Sometime after the bankruptcy was filed the debtors were served with the lawsuit.  The company produced a letter in which it showed claimed to have communicated with the Court and demanded that service not issue.  The letter was sent regular mail.  Therefore, the company claimed that it took steps to prevent this service, and it was the court that made a mistake, which was out of the company's control.  The letter was faxed to us along with a Rule 9011 motion stating that if we did not dismiss the lawsuit, based upon this letter, that the company would pursue sanctions against my firm. In response, we demanded that the company produce the letter in its original, unscrubbed, Word format so we could authenticate when the letter was actually created or updated and by whom.  The company refused and settled the case.

Another issue might be one where the law firm involved might have created, corrected or reviewed a document the party sent out.  This would be disclosing privileged information, but it also could be used to have the law firm removed as counsel because it is reasonably a witness in the case.

If you do not wish for the metadata to be known to opposing counsel when emailing documents, there are programs that can scrub the documents before they are emailed.  Otherwise, you might wish to convert the documents to PDF right before you email them.

IT IS ELECTION DAY--SO VOTE!

Today is election day.  If you have not already done so, you need to go out and vote.  Bankruptcy attorneys especially understand the harm that can come when everybody does not perform their civic duty.  Everybody knows my position given my political blog, Liberal Sum' Bitch.  But it does not matter what I believe and want.  Vote for whatever and whomever you want.  The point is to just go VOTE!!!  DO IT NOW!!!!!

WHOOP ASS

I saw the movie Borat over the weekend.  My son wanted to go for laughs.  I am not saying that I did not laugh, but it was probably the most inappropriate and irresponsible movie I have seen in a decade. That said, I do not feel as bad about using the word "asshole", which makes up the title of the book by Bob Sutton. Despite the title, the book has rave reviews and really has substance. At first I thought Prof. Sutton should have called it the "No Jerk Rule", but the more I think about it, I cannot see how that term properly relays the image these people deserve.

I understand that most everybody probably has these tendencies and have lost it on occasion.  However, we are talking about people in general, and lawyers and judges in particular, that do not guard against it and being an "asshole" have become a way of life.  To them it is the norm.  The problem is they ruin, or at least dilute, the quality of our lives in having to put up with their sorry asses.

I dealt with one lawyer in Houston on a small issue that was always out of control, except while appear in front of the judge.  He was like Jekyll and Hyde.  This of course meant to me that he knew better and knew the extent of his behavior.  Over the phone and in person, I do not say he lost his temper in so much as he always began yelling in the most uncontrolled and frightening way imaginable.  He would threaten and cuss to the point I thought he would go into some kind of seizure. When I mentioned it to other lawyers, and one judge off the bench, their answer was universal.  "Oh (so-in-so), that's just he way he is.  Just ignore him".  During one temper fit he was having over the telephone I asked him if he was "off his medication".  That got him started, but I think maybe he needs to be on medication, and I was truly concerned.  I have to admit I have never seen him throw a punch, but he often appeared on the verge.  All I can say is that I am not going to his funeral if I outlive him.

Further, there a few large firms that I think put their new attorneys through "asshole" training before they can work there.  You know the ones I mean, they almost all act like "assholes".  It is the culture of the firm.

This said, Guy Kawasaki posts Sutton's laundry list of "everyday asshole actions".  Do you recognize any of these in you, me, or an attorney or judge that you have to deal with:

1. Personal insults;
2. Invading one’s personal territory;      
   
3. Uninvited personal contact;
4. Threats and intimidation, both verbal and non-verbal;
5. Sarcastic jokes and teasing used as insult delivery systems;        
6. Withering email flames;        
7. Status slaps intended to humiliate their victims;        
8. Public shaming or status degradation rituals;        
9. Rude interruptions;        
10. Two-faced attacks;        
11. Dirty looks; and/or        
12. Treating people as if they are invisible.        

THE NO ASSHOLE VIDEO

Now there is a video of Robert Sutton discussing the problem with "assholes", how the subject of his book came up, and what people can do about the "asshole" factor.  It is worth watching.  Click here to see the video.

THE NO ASSHOLE RULE

Hey, do not blame me for the harsh, rude language.  I was not the one who used it as a title of a book.  That said, how am I going to review the book without using the word.

Bob Sutton recently released his new book, No Asshole Rule: Building A Civilized Workplace And Surviving One That Isn't.  Robert Sutton is Professor of Management Science and Engineering in the Stanford Engineering School, where he is Co-Director of the Center for Work, Technology, an active member of the Stanford Technology Ventures Program, and a cofounder of the new Hasso Planter Institute of Design, a multi-disciplinary program at Stanford that teaches and spreads "design thinking."

Very little attention is devoted to a  problem that plagues every workplace: Assholes.  As I recently pointed out in one of my own posts on another blog that these people (which I more politely call bullies and jerks, among other titles) not only exist in your immediate workplace such as law firms, but survive in your extended workplace, such as in dealing with clients, opposing counsel and judges.  Sutton just tags these people and the problem a little harder than I did.

Professor Sutton showed how assholes are not just an office nuisance, but a serious and costly threat to the workplace.  This would include the law firm and the legal system as a whole (pun intended).

The Book reveals the huge TCA (Total Cost of Assholes) in today's workplaces. He shows how to spot an asshole, and provides a "self-test" to determine whether you deserve to be branded as a "certified asshole." And he offers tips that you can use to keep your "inner jerk" from rearing its ugly head.  (Okay, I might need that later advice).

So despite the obvious shock value of the title, it should be on everybody's reading list.