Posted on May 01, 2018 in Business Counseling, Litigation & Transactions

In the midst of the Great Depression, Congress enacted two laws to shore up practices that were considered to have led in part to the Market Crash of 1929: the Securities Act of 1933 ("1933 Act"), which governs initial securities offerings; and the Securities and Exchange Act of 1934 ("1934 Act"), which governs all subsequent trading. The 1933 Act permits both state and federal courts to hear claims brought under that Act, and bars defendants from removing such claims to federal court. The 1934 Act, however, grants federal court exclusive jurisdiction to hear claims brought under that Act.

In 1995, Congress passed the Private Securities Litigation Reform Act ("Reform Act") to curb apparent abuses of plaintiff’s use of the class action vehicle in litigation involving nationally traded securities. The Reform Act included substantive reforms in both state and federal court, and procedural reforms only in federal court. The Reform Act fell prey to the law of unintended consequences, and, following its passage, plaintiffs began circumventing the obstacles imposed by the Reform Act by filing securities class actions in state court. To prevent the run-around of the Reform Act, Congress responded in 1998 with the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"). In relevant part, SLUSA provided an exception to the 1933 Act’s general rule that state and federal courts exercise concurrent jurisdiction over claims brought under that Act. Following the passage of SLUSA, a split developed between state and federal courts as to whether SLUSA deprived state courts of subject matter jurisdiction over cases involving "covered class actions" (actions in which damage are sought on behalf of 50 of more people) asserting only 1933 Act claims.

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 Posted on February 16, 2018 in Criminal Defense

I recently represented a young man in Harford County Circuit Court who was charged with Possession of Child Pornography.  I am former prosecutor and career full time criminal defense attorney practicing exclusively criminal law for 22 years.  I have defended scores of individuals charged with Possession and/or Distribution of Child Pornography and have blogged many times about the increasingly harsh penalties that are being sought by both state and federal prosecutors in these cases.  The granting of probation before judgment in these cases is almost unheard of in recent times.

My client was just 18 years old when he was charged in this case.  He was caught up in the typical investigation that we see in these cases.  Undercover police officers identify a computer that shares child pornography on file sharing programs such as bitTorrent and watch it until a computer with an IP address within their jurisdiction connects to it and downloads Child Pornography.  The police will then subpeona the user data for that IP address and execute a search and seizure warrant looking for the device or devices that were used to download the illegal material.

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 Posted on October 24, 2017 in Estates, Trusts, Probate & Fiduciary Litigation

Ned Parent, a member of Silverman Thompson’s Business Litigation Group, published an article in the September 2017 issue of the Maryland State Bar Association’s “Bar Bulletin” publication.  Mr. Parent’s article discussed the “undue influence” standard used in Caveat proceedings (the formal term used for proceedings challenging the validity of a Will).  Specifically, the article discussed the challenges in successfully proving undue influence in such proceedings, and suggested possible solutions to address those challenges.

Mr. Parent leads STSW’s fiduciary litigation practice, handling disputes related to estates, trusts, and guardianships.  If you have any questions about this article, or would like to discuss a potential matter related to an estates and trusts dispute, Mr. Parent may be reached at nparent@silvermanthompson.com or at 443-909-7500.

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 Posted on October 03, 2017 in Criminal Defense

A few weeks ago I defended Baltimore County Police Officer Christopher Spivey in a use of force assault case.  After listening to 3 days of testimony and evidence, the jury took less than 30 minutes to find him not guilty of all charges.  Then at least six members of the  jury waited around to shake Officer Spivey’s hand and thank him for his 10 years of service to the community as a police officer.

A few days later the Editors of the Sun wrote what I view as an outrageous editorial in which they dismissed the juries’ verdict and all but lamented the fact that there were no demonstrations of social unrest as a result of the acquittal.  Below is a link to the editorial as well as the response that I sent to the paper.  Not surprisingly the editors lacked the journalistic integrity to print my response.

My Response:

The Sun began its editorial on the acquittal in the assault trial of Officer Christopher Spivey with these  two words,   "Thirty Minutes".   The editors were apparently pointing to the jury’s quick acquittal in this case as evidence that they failed to take the allegations in this case seriously.  The editorial went on to essentially tell its readers that these jurors must have made their decision based on something other than the evidence, because they (the editors) have seen the video so they know better than the jury who listened to three days of evidence.

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 Posted on August 30, 2017 in Criminal Defense

Representation in cases involving Possession and Distribution of Child Pornography require expertise that only an Aggressive Criminal Law Specialist can provide.  I am a full time Maryland Criminal Attorney and former Baltimore County Assistant State’s Attorney with more than 20 years of experience.  Throughout my career as a prosecutor and full time criminal defense attorney,  I have handled hundreds of cases involving the Possession and/or Distribution of Child Pornography in Baltimore County and across the State.  Over the last 20 years I am aware of no other criminal attorney in the state who has handled more of these cases than I have along with my partner, Former Assistant United State’s Attorney and Chief of the Sex Offense Unit,  Andrew C. White.   As I have written before on this blog, these cases are prosecuted extremely aggressively and often result in substantial state and federal prison sentences.  This is why is is so imperative to hire attorneys who specialize in these types of cases.

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 Posted on April 21, 2017 in Victim's Rights

Thanks to Delegate C.T. Wilson’s persistent effort, the Maryland General Assembly passed and Governor Larry Hogan signed into law House Bill 642 on April 4, 2017.  The new law provision extends the statute of limitations for victims of sexual abuse to sue offenders and the individuals, organizations and/or government entities who allowed the abuse to occur.

Maryland’s previous statute of limitations provided that child sex abuse victims only had to age 25 to sue (seven years from the date the victim reached the age of majority). The new law extends the statute of limitations to age 38. Although the law is a huge step forward, there are a couple of important things to note.

The Law Requires Gross Negligence to Sue Responsible Third Parties

The law treats claims against perpetrators of abuse differently from claims against organizations who enabled, fostered and/or failed to prevent the abuse—such as churches, schools, daycare centers, camps, pools, etc. Specifically, it provides that victims whose abuse occurred more than seven years after age of majority (mostly 25) can only sue third-parties for actions arising out of the sexual abuse if the victim can show (1) the person or governmental entity owed a duty of care to the victim; (2) the person or governmental entity employed or exercised some degree of responsibility or control over the alleged perpetrator; and (3) there is a finding of gross negligence on the part of the third party.[1] "Gross negligence" is defined as "an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them."[2] The law contains no such limitations for direct lawsuits against perpetrators.

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 Posted on April 07, 2017 in Medical Malpractice

A Salt Lake City jury last month awarded $2.9 million to the family of a 55 year-old man who died after physicians failed to diagnose and treat a life-threatening heart condition.  After developing chest pains one evening – which quickly spread to his abdomen – the man presented to a clinic where he was seen by a Physician’s Assistant (PA).  The PA diagnosed him with constipation and discharged him with instructions to drink a bottle of over-the-counter magnesium citrate and take a suppository.

Nine days later, the man returned to the clinic after being awakened by sudden onset of sweating and severe heartburn which, again, radiated to his abdomen.  He also was found to have high blood pressure on exam.  Nevertheless, he was again diagnosed with constipation and instructed to increase his daily intake of fruits and vegetables and to follow up in two months.  Four days after this second visit to the clinic, the man passed away while at his home.  An autopsy determined that he had died of aortic dissection, a serious condition in which the inner layer of the aorta, the large blood vessel branching off of the heart, tears.

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 Posted on March 28, 2017 in Complex Civil Litigation

Concern regarding "waste, fraud and abuse" in government spending is everywhere these days, it seems.  Even in 2017, it is a solidly bi-partisan concern.  A quick internet search reveals that think tanks from the progressive Center for American Progress to the libertarian Cato Institute have published on the topic, and politicians as ideologically diverse as Rep. Elijah Cummings (D-Md.) and Rep. Paul Gosar (R-Az.) host pages on the official House of Representatives domain, house.gov, addressing wasteful or fraudulent government spending.

It may be more accurate to call the issue "non-partisan" rather than "bi-partisan" – relatively apolitical groups like AARP have weighed in, as has nearly every federal executive agency, including the Office of Personal Management, the Government Accountability Office, and the Department of Health and Human Services (which oversees Medicare and Medicaid – more about those two programs in a future post).

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 Posted on March 21, 2017 in Business Counseling, Litigation & Transactions

Omni Imaging, LLC ("Omni"), a Maryland limited liability company, filed its lawsuit against our clients, Blue Ridge X-Ray Co., Inc. ("Blue Ridge") and Richard A. Wilson, in the U.S. District Court for the District of Maryland, on or about October 12, 2016, alleging breach of contract, tortious interference with contract and tortious interference with prospective business advantage.  Omni is an LLC in the business of selling and maintaining x-ray facilities and radiology products, accessories, supplies and services in Maryland, Virginia, Delaware, Pennsylvania and the District of Columbia.  Mr. Wilson was formerly employed by Omni prior to joining Blue Ridge X-Ray Co., Inc.  Blue Ridge is a North Carolina corporation and a national supplier of x-ray imaging equipment, service and supplies.  Omni sued our clients over a dispute concerning a non-compete agreement signed by Mr. Wilson prior to leaving his employ with Omni.  STSW was able to defend Blue Ridge and Mr. Wilson and reach a fair and reasonable settlement with the assistance of the Honorable Beth P. Gesner, U.S. Magistrate Judge for the U.S. District Court for the District of Maryland.

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 Posted on March 20, 2017 in Medical Malpractice

After two weeks of testimony, a medical malpractice jury in Arkansas awarded $46.5 million to a toddler whose family alleged that her doctors’ negligence resulted in catastrophic and irreversible brain damage.  The family alleged that the doctors failed to properly manage and treat the newborn baby’s jaundice following birth which led to the development of kernicterus in the child’s brain.  Kernicterus is a rare brain damage that occurs in a newborn experiencing severe jaundice.  It can be prevented by treating jaundice early.

Jaundice is a yellow discoloration in a newborn baby’s skin and eyes.  The condition results from an excess amount of bilirubin, a yellow-colored pigment of red blood cells, in the blood.  A high bilirubin level associated with severe infant jaundice or inadequately treated jaundice can result in brain damage, as it did in this case.  According to the family’s medical malpractice lawyers, the infant’s initial blood test demonstrated elevated levels of bilirubin, but no follow up blood testing was done and no phototherapy lights to treat the jaundice were administered.  The reason, the lawyers say, is because the child’s bilirubin levels, which were tested at 2 hours after birth, were compared against those which are normal for a two-day old child.  Death or brain damage caused by the failure to treat high levels of bilirubin in newborns is considered a "never event" in the healthcare industry, meaning it should never happen because it is identifiable, preventable and serious.

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