Author Archive

Crazy but True: It’s Legal to Listen in on a Pocket Dial

July 28th, 2015. By LucyC

How many times have you answered your phone only to find out that someone has ‘pocket dialed’ you by accident. Suddenly you find yourself privy to a conversation that really is none of your business…but you listen because…heh—you’re human! And you’re wondering the whole time, “could I go to jail for this?” Ok, not really, but you clearly feel like you’re eavesdropping…

Well, the law’s a funny thing, at the risk of stating the obvious. Take the recent case of an executive, one James Huff, who accidentally called his assistant and for the next 90 minutes not only did she listen to the call, she took notes. When Huff found out he sued her but the law ruled in her favor…finding that Huff did know how to prevent this kind of thing from happening and therefore had no expectation of privacy. What? Seriously?

Ok, the backstory, short version—well, shortish—in October 2013, Huff traveled to Bologna, Italy for a work conference along with his wife Bertha, and a colleague. At the time, Huff was chairman of a local board that oversees the Cincinnati/Northern Kentucky International Airport (CVG). At some point on their trip the two men went out onto a hotel balcony to discuss work-related issues and personnel matters. Huff calls his executive assistant Carol Spaw, on her cellphone, to ask her to make dinner reservations. (Wouldn’t an email have been a better idea—on a number of fronts?) The call didn’t go through so Huff calls Spaw on her office phone. All good there. BUT—a few moments later Spaw’s cell phone goes off and low and behold it’s Huff’s phone, which redialed the number and got through. That call was 91 minutes, and Huff was not aware of it—at all.

Spaw listened to the entire conversation (not a busy day I’m guessing) Huff was having with his colleague. Oh—BTW—Spaw realized her boss had no idea he’d redialed her and the call had gone through. Her interest got piqued when she heard the two men discussing the possible replacement of Spaw’s boss. Oh great.

Spaw believed that the conversation illustrated the two men’s attempt to unlawfully discriminate against her boss, and she felt that it was her duty to take handwritten notes of the call. She instructed another colleague to do the same. Wow.

About 70 minutes later the balcony meeting between the two men ended and Huff, still blissfully unaware that his cell phone is broadcasting his every word and deed, goes back to his hotel room and has a conversation with his wife. (Thank god that’s all they had). Huff and his wife discussed the conversation Huff had just had with his colleague and some personal matters as well. Spaw—still on other end back in Kentucky, managed to record the last four minutes of the conversation on an iPhone that was brought to her. She then shared the notes and the recording with other board members. Oh holy sh*tty sh*t sh*t!

Now, I would have thought that Spaw had violated the law but apparently not. Cut to a couple of months down the road and the proverbial sh*t hits the fan back in Kentucky. The Huffs sued Spaw for unlawfully intentionally intercepting the call and disclosing those interceptions, an alleged breach of the 1968 wiretap law known as “Title III.”

Are you sitting down? Spaw won summary judgment in January 2014. Predictably, the Huffs appealed. The District Court in Kentucky found that the Huffs did not have a reasonable expectation of privacy in that circumstance.

The court found that Huff could not sue Spaw for violating a federal wiretap law, largely due to the fact that he was aware of steps that he could have taken to prevent a pocket dial, such as locking the phone, which he failed to do.

“James Huff did not employ any of these measures,” the court concluded. “He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.” That seems a little far-fetched to me.

Interestingly, the Sixth Circuit overturned the portion of the suit pertaining specifically to Bertha Huff.

“Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to an outside audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited an expectation of privacy,” the judges found.

The appellate court agreed with the portion of the lawsuit pertaining to James Huff (dismissing it), but it reversed the lower court’s decision and sent back Bertha Huff’s portion for review.

The experts are concerned about this ruling, specifically about the role technology will play in civil liberties violations going forward, and how much onus is placed on the individual to protect their rights to privacy.

Regardless, the bottom line is Huff could have taken less than a minute to lock his phone and the whole thing would never have happened. While technology is changing our lives, we haven’t changed with it and human nature is—well—predictable—most people would probably listen in.

As for the Huffs pursuing any further action, their attorney, Aaron VanderLaan, wrote:  “We have not made a final decision as to seek further review by an en banc panel of the Sixth Circuit, and we are not aware of whether Ms. Spaw will seek further review.”

Now, where’s that lock function on my phone…

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Murder, Suicide, Money and One Last Argument over Smoking

July 23rd, 2015. By LucyC

A family affair, and a tragic one at that, is keeping the Fischler family attorneys busy. One murder, one suicide and two lawsuits, if I’ve got it right. The whole mess reads like a Greek tragedy. In fact, Daniel Gotlin, defense attorney for Jonathan Schwartz, the oldest son and alleged murderer of philanthropist Barbara Weiden Schwartz ­told the press, “This is a family tragedy.” That’s putting it mildly, I think.

The public saga began in 2011, when Barbara Weiden Schwartz Fischler was allegedly stabbed to death with a kitchen knife by Jonathan, who happens to be schizophrenic. Shortly thereafter, Schwartz–Fischler’s second husband (that would be Fischler) almost obliterated her $5.8 million estate on risky short-sales (is there such a thing as a safe short sale?) Then, a little while later, her second son committed suicide.

Recently, Jonathan was recommitted to the Department of Health and Mental Hygiene after results from his psychological testing showed he is not well enough to stand trial for the murder of his mother. “He has a history of psychological illness,” said Gotlin. In March, the 44-year old son was sentenced to an upstate psychiatric hospital after a jury found him “not criminally responsible by reason of mental disease” for the murder.

According to media reports, mother and son got into a row over his smoking habit. Out came the kitchen knife, which Jonathan apparently used to repeatedly stab his mother.

Now, Jonathan’s father, Steven Schwartz, is suing his son, The New York Post reports. Schwartz, who divorced Fischler years ago, is also suing on behalf of the second, deceased son, Kenneth Schwartz, who committed suicide in 2013 after learning that his stepfather, Burton Fischler, had nearly wiped them off the financial map. FYI—Barbara was the daughter of Norman Weiden, a financial guru who ran a charity which his daughter took over after his death.

Still with me?

By 2013, only about $700,000 was left in Barbara’s estate. Looks like somebody else made a killing here.

Last year, the management of Barbara’s estate was removed from the care of 63-year old Burton M. Fischler to husband number one. Steven Schwartz is a retired Merrill Lynch executive so one may hope he knows better. If all goes according to plan, the civil suit will provide Steven Schwartz with the younger son’s share of whatever money he may be awarded in his lawsuit against son number one.

Oh—there’s more.

Kenneth Schwartz committed suicide at 39, beside himself over his potential financial situation and grief, presumably. “For the last decade of her life, my mother generously paid all my bills and was my sole source of financial support, so much so that I rarely received mail at my own apartment,” he stated in his lawsuit against his stepfather.

“Believing that I would probably inherit a few million dollars from my mother, reassured me that in the midst of the tragedy, I would at least have enough money to live on,” he stated in the suit.

In January 2013, about six months after learning that he could no longer count on his mother’s support, Kenneth killed himself.  “I had lost both my brother and my mother to an act of unspeakable violence that I will never understand,” Kenneth wrote to the court six months before he committed suicide.

Adding to all this misery is the fact that Barbara was “almost completely housebound and largely bedridden with many health problems, including battles against addiction to the many painkillers she was prescribed for her medical problems,” according to Kenneth’s lawsuit.

Prior to killing his mother, Jonathan lived down the hall in the family’s luxury apartment. According to his brother, he was a total recluse, remaining locked in his room even when Kenneth came to visit.

The stepfather also had his problems. “Burt worked as a wealth management advisor, had been married twice before, and had relatively few financial resources of his own,” Kenneth stated. His stepfather approached Kenneth just days after Barbara’s death, asking him to relinquish control of his mother’s estate, which, against his better judgement and his deceased mother’s wishes, he did. Now the picture gets a little clearer. Barbara had signed a post-nuptial agreement with Burton that prevented him from overseeing her finances after her death.

According to court documents, Burton claimed that his wife “wanted to take higher than average risk” and said he was playing the market with a “long-term strategy.” And now there’s no one left to disprove that.

Ah but for the best laid plans of mice and men, and for the attorneys who must make sense of it all.

Posted in Crazy Sh*t Lawyers See | 4 Comments »

Tom Selleck Water Siphoning Case Settles

July 17th, 2015. By LucyC

When the going gets tough the tough get going—off to the public water fountain, in this case. California resident, Tom Selleck, of previous Magnum PI fame and lately Blue Bloods, decided to tackle the drought conditions in a creative, if not arguably illegal manner and made use of a public water hydrant to irrigate his parched farm in Southern California.

Selleck owns a 60-acre ranch and avocado farm in nearby Hidden Valley. The drought, which has been ongoing for the past four years, is likely decimating his crops.  While there could well be a lot of other people in the same boat, who either didn’t come up with idea or didn’t have the funds or balls to pull it off, Selleck did, and it didn’t go unnoticed.

What exactly did he do? He hired a commercial water tanker to fill up from a public hydrant in Thousand Oaks, CA, at least a dozen times over a two year period. Nice.  All this water poaching began in 2013, apparently. 

It is, or was, a very wild-west kind of move on Selleck’s part. Or maybe it’s just called looking after your own a$$. However you want to call it, officials hit him with a lawsuit accusing him of pilfering water from a public hydrant to irrigate his farm.

According to the civil complaint filed by the Calleguas Municipal Water District in Ventura County Superior Court, the District documented seven separate occasions when a water tanker showed up, filled up and left. The complaint stated that the water was taken to “the Hidden Valley area, where the Selleck property is located,” between Sept. 20, 2013, and Oct. 3, 2013.

The district sent a cease-and-desist letter to Selleck and his wife, Jillie Mack, on Nov. 26, 2013, but all for nought, as the same truck again siphoned water on Dec. 16, 2013, according to the lawsuit. Ok, that takes some cojones. And not in a good way.

According to officials, Selleck’s ranch is located outside the Calleguas district, so he should be using his own groundwater supply. I’m betting he already thought of that.

Weirdly, the lawsuit is not about the money, apparently. The value of the water was next to nothing, that is in the eyes of the district. The actual cash value the district could reportedly sell 325,000 gallons of water for is as low as $1,200, according to Eric Bergh, manager of resources for the Calleguas Municipal district. The district was asking Selleck to pay $21,685.55 for investigators it hired and court costs. So, effectively, he got away with taking the water?

But low and behold—they’ve reached a settlement. I’m guessing it’s got something to do with the publicity—not the kind anyone wants, let alone a 70–year old actor—who plays a good guy on TV.

Interestingly, the local sheriff’s department investigated the claims but couldn’t establish that a crime had taken place, according to Capt. John Reilly. So stealing public property isn’t a crime? According to Bergh, “It’s about equity and fairness and protecting the resources for the people who are paying for it.” Isn’t that why we have laws? Or am I missing something here…

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Smartphone Catches Smarta$$ Docs During Colonoscopy

July 1st, 2015. By LucyC

And the doctors thought the patient was a pain in the ass before the colonoscopy? That’s before they got hit with a lawsuit by the patient whose phone recorded some very unsavory (not to mention unprofessional) remarks the doctors made while DB ( the patient/plaintiff) was under sedation. You know, this could be the beginning of something big….I can see the secret listening App now…

Meanwhile, back on the table, the doctors allegedly mocked DB while he was unconscious joking that he has syphilis and talking about firing a gun up his rectum. Oh dear. DB’s smartphone caught the entire conversation and has just paid for itself into the next millennium.

DB sued Safe Sedation LLC and Safe Sedation Management (you gotta love the name)  alleging defamation and infliction of emotional distress. OH yeah baby. According to the court documents:  “On April 18, 2013, during a colonoscopy, plaintiff was verbally brutalized and defamed by the very doctors to whom he entrusted his life while under anesthesia.”

Specifically, DB claims that Drs. Tiffany Ingham and Soloman Shah, who were not named as defendants, mocked him from the second he was actually sedated. DB claims he had inadvertently left his phone in the room, set to record, having neglected to turn it off after recording instructions for post-operative care. (I wonder if there are  lawyers rewriting the law right now to stop this from becoming standard practice—the recording part I mean.)

“The moment that plaintiff became unconscious, Tiffany Ingham, M.D. commented to all of the others in the operating room ‘Oh—Oscar Mike Goss.’ That is a thinly disguised substitute for the expression ‘OMG’, which is an expression of both exasperation and mockery, and is a well-known abbreviation for ‘Oh my God,'” the complaint states. Wait—there’s more—”Tiffany Ingham, M.D. started to mock, and then continued to mock, the amount of medicine required to anesthetize plaintiffs.”

“Referring to plaintiff, Soloman Shah, M.D. commented that a teaching physician known to both him and Tiffany Ingham, M.D. ‘would eat him for lunch.’ Yes, seriously.  “Tiffany Ingham, M.D. agreed that plaintiff would be ‘eaten alive’ and also jokingly discussed a hypothetical of firing a gun up a rectum.”

DB claims his phone caught Ingham talking to him while unconscious, saying, “And really, after five minutes of talking to you in pre-op I wanted to punch you in the face and man you up a little bit.”

And…”A female medical assistant at GMA recalled that plaintiff had earlier warned that he passes out when looking at the placement of an IV, to which Tiffany Ingham, M.D. asked ‘Well, why are you looking then, retard?’ the man claims. “Tiffany Ingham, M.D. also described plaintiff as a ‘big wimp.'” I don’t think that’s a recommended pre-op approach.

Back to the table…apparently, the docs went on to discuss DB’s prescription medication and an irritation on his penis. “A medical assistant at GMA touched plaintiff’s penis during the colonoscopy,” the complaint states. “Although plaintiff’s penis is not involved in a colonoscopy, the medical assistant noted there was not ‘much of a penile rash.’ Tiffany Ingham, M.D. responded, ‘No, you’ll accidentally rub up against it. Some syphilis on your arm or something.’ Solomon Shah, M.D. responded, ‘That would be bad. That would be real bad.'”

Ok—do these people not golf? Isn’t that what physicians are supposed to discuss while at work?

The complaint goes on to claim: “Tiffany Ingham, M.D. then stated to all present in the operating suite that, ‘It’s probably tuberculosis in the penis, so you’ll be all right.'”

DB denies having either of those diseases, which you think a pre-op medical screen would have caught, had one been done… I digress.

This next big is particularly worrying. According to the complaint, the doctors talked about “misleading and avoiding” DB after he woke up.

According to the lawsuit, the doctors continued to discuss how to avoid DB after he woke up, and mocked him for going to Mary Washington College, suggesting that “it was unsurprising that plaintiff attended a college that at one time was a ‘women’s college,’ a ‘girl’s school,’ and wondered if plaintiff was gay.” Ok—really?

The complaint states: “Tiffany Ingham, M.D. stated, ‘Are you implying that he’s gay? Because I know gay men that have more manliness than’ the plaintiff. ‘And I’m sure I know gay men in the military who just haven’t let it be known that they’re gay who are manly.'”

In a final remark caught on tape, Ingham allegedly said she would make a note on the man’s file that he had hemorrhoids even though he didn’t. Oh, I would so be suing….

Poor old DB claims that he and his wife discovered the recorded conversation during their ride home, I sure hope he wasn’t driving at the time…

“Plaintiff has suffered distress, including embarrassment, loss of sleep, and mental anguish, as a direct and proximate result of the conduct of defendant’s agent Tiffany Ingham, M.D.,” according to the complaint. Ya think?

DB was looking for $1 million in compensatory damages and $350,000 in punitive damages for defamation, infliction of emotional distress and illegally disclosing his health records. And he got $500,000 including $200,000 in punitive damages awarded by the jury hearing the case. Ok—where’s that App?

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‘Slut’ Actress has Mommy Sue for False Arrest

June 17th, 2015. By LucyC

A 17-year old girl, sorry, actress, who was arrested last August for possession of alcohol by a minor and disorderly conduct, is suing the NYPD for false arrest. Sounds simple enough, right? Well, Winnifred Bonjean-Alpart alleges the evidence was planted. Noteworthy here, is that the charges against her were dropped by Manhattan Criminal Court Judge Ann E. Scherzer.

Winnifred, a “rising star in feminist theater and star of Slut: The Play” (source NYPost), (soon to be Slut: The Movie? – I think that one’s likely been done, but maybe not from the feminist viewpoint) isn’t satisfied with getting off ‘scott free’ as it were (pardon the pun). She and her mother, a lawyer (is that the sound of a penny dropping?) are alleging the NYPD violated Winnifred’s constitutional rights and planted evidence in her purse.

The backstory, Winnifred had a few friends over and they were drinking. Apparently it got loud and a neighbor called the police, as one does. When the police arrived they asked for identification from the party-goers but Winnifred apparently took it upon herself to inform her guests that they didn’t have to comply with that request.

Big surprise, the police responded by arresting Winnifred, claiming they found a fake Maryland’s driver’s licenses in her purse and a couple of empty bottles of booze. She claims the booze and ID were planted because she asserted her First Amendment rights. Um. Possible. But is it probable? Or does it even matter now?

Apparently it does. Winnifred and her mother have filed a civil suit. I guess she really does want her day in court. She and her mother are alleging the police cuffed her too tightly, slammed her against a wall, and put her in a holding cell with men for 18 hours in central booking. Mother and daughter are suing the city for $2 million. Wow—that’s some payday.

Only problem, mummy forgot to get the filing in by the deadline. Jennifer Bonjean, an experienced defense attorney who has apparently won lawsuits against the authorities in the past, missed a 90 day deadline. Seems, in New York, you must file a Notice of Claim with the city within 90 days of the incident. Once the notice is filed, you have one year to actually file the lawsuit. Bonjean missed the 90 day deadline. Now, she must petition the court for permission to proceed with her lawsuit against the city, according to the Post.

So will Winnifred fire her mother—or wait to see if the situation improves? We’ll have to wait and see. One thing’s for sure—the publicity can’t be hurting her. Might even improve ticket sales—or launch a sequel.

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