July 19, 2019

Archives for February 29, 2012

Tenth Circuit: Panel Decision Affirmed Granting Lifetime and Survivor Benefits under Black Lung Benefits Act

The Tenth Circuit Court of Appeals published its opinion in Bridger Coal Co. v. United States Dep’t of Labor on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the panel decision. Under the Black Lung Benefits Act, a coal miner who is totally disabled due to pneumoconiosis from coal mine employment is entitled to lifetime benefits. If the miner dies due to pneumoconiosis from coal mine employment, the miner’s surviving spouse is entitled to benefits. Pursuant to the Act’s administrative provisions, an Administrative Law Judge awarded lifetime benefits to Merrill D. Lambright and survivor benefits to his widow in 2005. Lambright’s claims arose out of his employment with Petitioner Coal Company. In 2006, a three-member panel of the U.S. Department of Labor Benefits Review Board vacated the ALJ’s decision and remanded for reconsideration. In 2008, the ALJ denied benefits on both the lifetime and survivor claims. In 2009, a three-member panel of the Board reversed this decision and reinstated the 2005 ALJ’s award of benefits. On reconsideration en banc, the full five-member Board was unable to reach a disposition in which at least three permanent members concurred. As a result, the 2009 panel decision stood. Petitioner appeals, challenging the scope of the 2009 panel’s authority to review the 2008 ALJ decision, the standard used in determining whether to award benefits, and the onset-date determination. The Court affirmed the 2009 panel decision.

Tenth Circuit: Tribe Failed to State a Claim that Oklahoma Cigarette Sale and Tax Laws Violate Federal Law or Tribal Sovereignty

The Tenth Circuit Court of Appeals published its opinion in Muscogee (Creek) Nation v. Henry on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner Tribe sued the Oklahoma Tax Commission seeking declaratory and injunctive relief based on numerous claims challenging three Oklahoma statutes that tax and regulate the sale of cigarettes and other tobacco products. “In Oklahoma, cigarette and other tobacco product sales to tribal members in Indian country are exempt from state taxes. To prevent non-tribal members from avoiding taxes on their purchases of such products in Indian country, Oklahoma adopted a tax-stamp scheme to ensure that taxes are collected for those sales. Oklahoma also requires tobacco product manufacturers either to enter into and make payments under a Master Settlement Agreement with the State or to pay a certain percentage of each sale into an escrow fund. Any brand of cigarette produced by a manufacturer that does not comply with these requirements is deemed contraband.” Petitioners object to these requirements as violative of federal law and tribal sovereignty, claiming that they are preempted by the Indian Trader Statutes and violate violate their right to tribal self-government. The district court dismissed the claims “based on the State’s Eleventh Amendment immunity or, alternatively, for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).”

The Court held that, based on Supreme Court precedent, the Tribe “has failed to state a plausible claim that the Excise Tax Statute is not valid and enforceable based either on preemption or on infringement of [their] right of tribal self-government.” The Tribe similarly failed to state a plausible claim that the Escrow Statute and the Complementary Act are invalid and unenforceable. While the district court erred in finding that immunity under the State’s Eleventh Amendment, it properly dismissed the claims for failure to state a claim.

Tenth Circuit: Lengthy Delay from Conviction to Entry of Final Judgment Exceeded Norm But Did Not Rise to Level of Constitutional Speedy Trial Violation

The Tenth Circuit Court of Appeals published its opinion in United States v. Gould on Tuesday, February 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a former prison guard, was convicted of two counts of depriving an inmate of his rights under color of law and two counts of filing a false report. These convictions arose out of Petitioner’s use of excessive force against two inmates in two different detention centers, and his subsequent filing of false reports to cover up the incidents. Petitioner “seeks reversal of his convictions and dismissal of all charges against him, arguing 1) that the delay between his conviction and the entry of final judgment violated his Sixth Amendment right to a speedy trial; and 2) that the district court erred in excluding from evidence three memoranda he wrote.”

The Court state that, to determine whether a particular delay violates a defendant’s right to a speedy trial, a four-factor test must be applied: “(1) the length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.” Balancing these factors, the Court concluded that Petitioner has not established a Sixth Amendment speedy trial violation. “While this result is troubling given the lengthy delay from conviction to the entry of final judgment, a delay which certainly exceeded the norm of timely criminal case processing, it does not rise to the level of a constitutional speedy trial violation.” Additionally, the exclusion of the memorandum evidence was harmless because Petitioner testified about the content of the documents and the content was not disputed.

Tenth Circuit: Unpublished Opinions, 2/28/12

On Tuesday, February 28, 2012, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.


Leo v. Garmin Int’l, Inc.

United States v. Rodriguez-Garcia

Leo v. Garmin Int’l, Inc.

United States v. Sletten

Leo v. Garmin Int’l, Inc.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tom Matte: Distinguish Your Law Firm on Your ‘About Us’ Page

Take control of your valuable online turf with a great ‘About Us’ page or you’ll waste a prime opportunity to define your firm’s strengths and unique niche.

What’s the most important part of your law firm’s web site? Your home page of course, but it may surprise you to learn that for smaller firms the runner-up is your ‘About Us’ page, according to Kevin Levi. He lays out some great ideas to boost the utility of this critical space in his article on Marketing Profs.

You don’t want to throw everything into one overstuffed jumble of a page, but you do need to include clear and well-crafted distinguishing messages on that precious high-profile web space. Marketing legal services to small business relies heavily on Internet searches. Once a search has brought potential customers to your site, if they’re interested in what your law firm offers they are likely to head for your ‘About Us’ page to learn more. Give them the information they need to understand what makes your firm and attorneys special. Here are four key elements on which to focus:

Positioning statement.  This is the elevator pitch that you carry around in your head. It lets readers know in a very few words (under 35 is the general rule) exactly what you do, for whom and why they want it. Being concise helps ensure that your message comes through clearly and sticks with readers.

Primary Differentiator. Here’s your chance to explain what it is that makes your firm perfectly suited to handle a potential client’s business. Do you focus on a particular industry or practice area that no one else does or is it the way you deliver your services? Do you serve a very specific client base? Whatever you do, don’t resort to generic claims of excellence or quality. Instead, focus on the most important element of your unique profile, whether that’s based on exceptional experience, unmatched skill, unusual services for a highly specialized legal market or something else. Let people know the real reason your law firm is the best choice out of the many options they find.

Secondary Differentiator. This is a chance to share more about your company’s defining characteristics. Again, limit it to aspects of your services and attorneys that aren’t likely to be shared by the competition.

Company Description.  Include objective information about your company such as location, longevity, history, goals and formative experiences.

A page with this level of description should add to and expand on the first impression readers received from your home page. Make sure what you say here agrees but also further educates instead of simply repeating what you’ve already shared. It’s the ideal place to market your law firm because almost anyone who lands here is already interested in legal services in general or your firm in particular.

To make this space even more valuable in terms of legal marketing, take the time to compare your ‘About Us’ page to those of your competitors. Pay attention to what they have to say in the four areas you’ve articulated (and if that isn’t clear, smile to yourself). You’ll know you’ve got a successful page when readers can easily determine what sets you apart from all the rest just by reading this and your home page.

Tom Matte is CEO of Max Advertising, and focuses his endless enthusiasm on crafting creative and lasting marketing and advertising for law firms, helping them to ultimately grow their practices. Whether a 10-person firm or one of the Am Law 100, he works with firms of all sizes. Tom blogs at the The Matte Pad, where this post originally appeared on November 28, 2011.