In Brief – 8/14/2013

Bankruptcy Court revises Chapter 13 plan model form

The Bankruptcy Court for the Southern District of Indiana will require use of a revised Chapter 13 plan model form after Aug. 15, pursuant to Local Rule B-3015-1. The form is available on the court’s website and may be used immediately.

Revisions to the form follow a comment period on the model Chapter 13 plan that ended July 15. After reviewing comments, Bankruptcy Court Clerk Kevin Dempsey said the court opted to add language to paragraph 7(d) regarding the surrender of secured property, clarifying the status of the automatic stay post-confirmation. Other minor edits also make references to codes, trustees and debtors consistent.

Brizzi hit with another legal malpractice suit

Defrocked Secretary of State Charlie White has sued Carl Brizzi, the former Marion County prosecutor who represented White during a criminal case that led to his removal from office. White’s lawsuit makes a claim of legal malpractice.

White hired Brizzi in August 2011 to represent him in his criminal trial in Hamilton County, where he was convicted in Feburary 2012 of six of seven charges, including false registration, voting in another precinct and theft. The jury acquitted him of fraud on a financial institution. White subsequently was removed from office.

A 31-page complaint filed in Marion Superior Court claims Brizzi was ignorant of several areas of law and failed to mount a defense. The suit also claims Brizzi and his mother were experiencing health problems that delayed the trial, but he didn’t inform White.

The complaint filed by attorney Andrea L. Ciobanu mirrors many of those made in White’s petition for post-conviction relief. The complaint alleges legal malpractice, breach of contract, neglect or reckless infliction of emotional distress, constructive fraud, fraud and negligence.

The suit seeks award of damages for those equal to White’s claim of harm to reputation, loss of employment, mental anguish, and attorney fees and costs for his post-conviction action and his disciplinary action, in which his license to practice law was suspended.

The malpractice claim is the second that a former central Indiana officeholder has brought against Brizzi. Former Hancock County Coroner Tamara Vangundy sued Brizzi in May, claiming his faulty legal advice cost her an opportunity to seek re-election after she pleaded guilty to a felony count of official misconduct.

7th Circuit seeks comment on pattern jury instructions

The 7th Circuit Court of Appeals Committee on Federal Jury Instructions is seeking comments on an ongoing basis on existing pattern jury instructions as well as suggestions for new pattern instructions.

More information about those instructions is available at http://www.ca7.uscourts.gov/Pattern_Jury_Instr/pattern_jury_instr.html. Comments or suggestions may be sent to [email protected].

The committee also notes on the pattern jury instruction page that proposed instructions regarding the Family Medical Leave Act have been withdrawn due to regulatory changes and comments received. The committee expects to issue revised proposed FMLA instructions soon.

Liquor stores seek more regulation of convenience stores selling alcohol

A chain of 19 liquor stores in Indianapolis wants the drug, grocery and convenience stores that sell alcohol to be subject to the same strict regulations that govern package liquor stores.

21st Amendment, Inc., has filed a motion to intervene and file cross-claim in the lawsuit brought by Indiana convenience stores to change state law that currently allows only liquor stores to sell beer cold.

The Indianapolis chain argued that while convenience stores claim the prohibition on selling cold beer is “irrational and discriminatory,” these retailers ignore the other restrictions placed solely on package liquor stores.

Package stores are limited by state statute on where they can be located, what items they can sell and whom they can allow in their stores, 21st Amendment stated in its court motion. Also, package liquor store permits can cost hundreds of thousands of dollars and can only be purchased through a private sale or a state-run auction.

“If Plaintiffs desire to be ‘equal’ to package liquor stores under the law, they must also be willing to accept the other restrictions that the General Assembly has promulgated as necessary conditions for the sale of chilled beer,” 21st Amendment stated.

In May, a group of retailers filed a complaint in the U.S. District Court, Southern District of Indiana, Indianapolis Division, charging the state’s practice of regulating beer by temperature violates their constitutional rights.

21st Amendment filed its motion July 19 in the case, Indiana Petroleum Marketers and Convenience Store Association et al v. Huskey et al, 1:13-cv-0784-RLY-MJD.

Indiana takes lead in asking SCOTUS to reverse legislative prayer ban

Indiana and Texas are the lead authors of an amicus brief that asks the U.S. Supreme Court to reverse a 2nd Circuit Court of Appeals ruling banning legislative prayer at the beginning of a government meeting.

Attorney General Greg Zoeller issued a statement on the brief joined by 21 other states in Town of Greece, N.Y. v. Galloway, 12-696, urging the justices to “craft an unambiguous ruling that prayer is permitted before legislative bodies without requiring legislative leaders to screen prayers for sectarian references.” The court is expected to hear the case in the term beginning in October.

Zoeller’s statement notes that since the high court ruling 30 years ago in Marsh v. Chambers, 463 U.S. 783 (1983), “government officials at all levels typically are faced with costly litigation whether they decide to permit legislative prayer or not.”

Other state AGs signing the brief are from Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, Utah, Virginia and West Virginia.

Indianapolis loses attorney and civic leader Edgar Lamb

An attorney who played an integral role in consolidating the governments of the city of Indianapolis and Marion County, making the Hoosier state capital the 11th largest city in the United States, has died.

Edgar H. Lamb passed away July 27, 2013, at his Indianapolis home. He was 78.

Lamb built a distinguished law career after graduating from Indiana University School of Law. He served as public defender for the Marion County Criminal Court in 1967 before being appointed by former mayors Richard Lugar and William Hudnut as Indianapolis city prosecutor from 1968 through 1975.

Also in 1969 he served as a key player in the establishment of Unigov, the term for the combined city-county government.

Lamb spent the majority of his career in private practice where he represented individuals and publicly traded as well as privately held businesses in civil matters. He was an attorney at Yarling Robinson Hammel & Lamb and, later, entered solo practice.

After nearly 50 years in practice, Lamb retired.

Prior to going to college, Lamb served in the U.S. military. He graduated from U.S. Air Force training in 1956 as a 2nd lieutenant with the aeronautical rating of pilot. He then became a fighter pilot and at the age of 22 and exceeded the speed of sound in the F-86 Sabre Jet. He served as a member of the Indiana National Guard from Hulman Field in Terre Haute. In 1961, he was recalled to active duty for 12 months during the Berlin Crisis. At that time, he was honored with the State of Indiana National Emergency Service Medal Award.

Lamb is survived by his wife Barbara and three children, Eric (Jackie) Lamb, Kristin (Michael) Marlowe and Jonathan Lamb. His three children all followed his lead into the practice of law.

Shepard paper cites ‘deeply flawed’ legal ed funding system

Former Indiana Chief Justice Randall T. Shepard’s task force looking at the future of legal education financing sees a “deeply flawed” system, according to a working paper presented at last week’s annual meeting of the American Bar Association in San Francisco.

“At present, the system faces considerable pressure prompted by rising tuition, large amounts of student debt, falling applications, and limited availability of jobs for law graduates,” according to the report overview.

Highlights of the Task  Force on the Future of Legal Education’s conclusions include:

• The top-scoring LSAT earners qualify for tuition discounts with little regard for need, shifting the loan burden to those scoring lower.

• The ABA should revise or eliminate accreditation standards that “sustain a far higher level of standardization in legal education than may be necessary to turn out capable lawyers.”

• ABA accreditation should better facilitate innovations in law school programs, and its variance processes should be open to public view “as an avenue to foster experimentation by law schools.”

• The balance between skills training and hands-on training “needs to shift still further toward the core competencies needed by people who will deliver legal services to clients.”

• State courts, bars and admitting authorities should find additional ways to deliver legal services, “such as licensing limited practitioners or authorizing bar admission for people whose preparation is not in the traditional three-year classroom mold.”

Created last year, the task force expects to produce a final report by Nov. 20, the filing deadline to be placed on the agenda for the ABA House of Delegates’ Midyear Meeting in Chicago in February 2014, ABA Journal reported.

Holiday World family takes dispute to Court of Appeals

An agreement meant to keep a popular amusement park in the family has sparked a bitter dispute that has reached the Indiana Court of Appeals.

Attorneys representing Koch family members presented oral arguments Aug. 6 before the appellate court in Koch Development Corp. and Daniel L. Koch v. Lori A. Koch, as personal representative to the estate of William A. Koch, Jr., deceased, 82A-4-1212-PL-612.

The Koch family owns Holiday World & Splashin’ Safari near Evansville. Will Koch, grandson of the park’s founder Louis J. Koch, was the majority owner in partnership with his brother Dan Koch, an attorney in Florida.

After Will Koch’s sudden death on June 13, 2010, Dan Koch was elected president of the business and took over operations.

Lori Koch, Will’s widow, and Dan Koch are fighting over the share price of the business under terms of a buy-sell agreement the brothers had. Both sides told the court that the purpose of the agreement was to keep Holiday World in the Koch family.

At the end of oral arguments, Judge John Baker said that from his point of view the situation looks as if this is a fractured family and there is probably nothing the courts can do.

The buy-sell agreement in place at the time of Will Koch’s death dictated the sale of their respective shares in the family business. In this situation, Koch Development Corp. had to purchase as much of the decedent’s shares as the capital of the company would lawfully permit while the remaining shares were to be purchased by the surviving shareholders.

KDC tendered an offer of $5 million and Dan Koch made a separate offer which brought the total amount to just under $27 million.

Lori Koch rejected both offers, claiming her husband’s shares were worth more than $32.5 million. She pointed to the brothers’ agreement in 2009 that the price per share was $653.07. Dan Koch and KDC countered that the shares were worth $541.93 each.

In January 2011, Lori Koch filed suit.

The trial court entered a judgment in favor of the estate. It found that KDC’s and Dan Koch’s actions materially breached the buy-sell agreement and concluded the estate was permanently excused from the obligation to sell its shares to KDC and Dan Koch.

On appeal, Dan Koch argued the trial court should be reversed. He claims he and KDC did not materially breach the agreement and that the trial court erred in excusing the estate from selling Will Koch’s shares.

During oral arguments, the appeals court judges questioned the attorneys about the specifics of the buy-sell agreement and the intent of that agreement. Jim Johnson, partner at Rudolph Fine Porter & Johnson LLP, represented KDC and Dan Koch. Terry Farmer, managing partner at Bamberger Foreman Oswald & Hahn LLP, represented Lori Koch.

Judge Paul Mathias raised the 180-day time limit included in the agreement and questioned Johnson as to why Dan Koch waited until the 178th day to tender an offer. Johnson replied his client was practicing law in Florida and Will Koch’s death put him in an unexpected position of running the park.

The judges also queried Farmer about the price Lori Koch is arguing each share is worth. Farmer explained that was the price agreed upon by the shareholders on Jan. 1, 2009.

Farmer explained that every two years the shareholders set the pricing mechanism within the agreement. The price of $653.07 agreed upon in Jan. 2009 would govern.

Clerk responds to attorneys’ concerns about personal security

Attorneys’ concerns over personal security have prompted the Indiana Clerk of Courts to offer an opt-out feature when updating attorney registrations on its registration portal.

The new feature was unveiled as part of the courts’ reminder to Indiana attorneys that this is the time to make their annual attorney registration fee payments and IOLTA certifications. The deadline is Oct. 1, 2013.

The registration portal now allows lawyers to not have their business addresses publicly displayed on the Roll of Attorneys website. According to Sarah Kidwell, outreach coordinator for the Indiana Supreme Court, the feature was offered in response to the number of attorneys who are working from their homes and do not want the address of their personal residences made public.

Attorneys can register and pay online through the Indiana Clerk of Courts Portal at http://appealsclerk.IN.gov. The web-based portal was introduced in 2011 and updated to its current version in 2012.

Attorneys who do not register by the deadline face fines up to $440 and possible suspension.

Judge tosses one of two stent patent suits against Cook Medical

A federal judge dismissed a patent dispute case against Cook Medical Inc. of Bloomington, but a Texas corporation continues to press its claim that the device maker infringed its patents on blood vessel stents and grafts.

Judge Larry McKinney of the U.S. District Court for the Southern District of Indiana granted a motion to dismiss one of two lawsuits filed against Cook by Endotach LLC of Plano, Texas. The company claims that Cook infringed its patents with multiple stent and internal blood vessel grafting devices it manufactures and markets under the registered trade names of Zenith, Zenith Flex, Zenith Renu and Zenith TX2.   

Endotach claims Cook is liable “in an amount that adequately compensates for its infringement, which, by law, cannot be less than a reasonable royalty, together with interest and costs as fixed by this Court.” Endotach asserts no specific dollar amounts.

McKinney ruled that Endotach lacked standing to pursue a claim arising from the disputed right to license the patents perfected in the 1990s by their inventor, the late Dr. Valentine J. Rhodes of Florida. Endotach signed agreements with Rhodes’ widow, but McKinney ruled that she “did not have a property interest in the Rhodes patents at the time she signed the relevant agreements and nothing was transferred thereby.”

Cook argued in court pleadings that Endotach’s filing of a second suit represented an insurance policy, and “the two cases involve the same parties, patents, and accused products, and seek the same remedies. … Endotach cannot have it both ways. Endotach’s gamesmanship should be rejected, and this case dismissed.”

Before McKinney could rule on Cook’s request to dismiss the case, Endotach earlier this month amended one lawsuit against Cook, anticipating the possible dismissal of its other suit. Endotach noted it was filed “out of an abundance of caution,” saying it would seek to consolidate the suits and correct defects in patent licensing agreements in the action that McKinney dismissed.

Despite the ruling, Cook only partially prevailed. McKinney left open the possibility for Endotach to argue to reinstate the dismissed case, saying the defects in licensing agreements could be corrected.

“Moreover, the grievances Cook raises with respect to Endotach’s litigation tactics do not amount to the kind of prejudice for which this court would grant the ultimate sanction of dismissal even if Cook had raised them in the context of a properly-filed and supported motion. Therefore, the Court will dismiss this cause without prejudice,” McKinney wrote.

Judge: Conour to stay behind bars before sentencing

Former attorney William Conour will remain jailed pending his sentencing in a little more than two months, a federal judge has ruled.

Chief Judge Richard Young of the U.S. District Court for the Southern District of Indiana denied Conour’s motion for release, indicating he will remain in custody of U.S. marshals pending sentencing on Oct. 17. Conour is being held in the Marion County Jail.

Conour pleaded guilty July 15 to government charges that he defrauded at least 25 personal-injury and wrongful-death clients of more than $4.5 million he received in negotiated settlements. He entered a plea a short time after he was jailed in June for dissipating assets in violation of terms of bond.

On Aug. 1, Young also approved an order clearing the way for Indiana University to deposit with the court $450,000 that Conour had donated to the Indiana University Robert H. McKinney School of Law, which since has excised the honorary naming of the William and Jennifer Conour Atrium.

IU Maurer law professor Craig Bradley dies

Craig Bradley, a longtime professor at Indiana University Maurer School of Law in Bloomington, died Aug. 7. He was 67.

The school announced Bradley’s death on its website, where a memorial has been established for those who wish to leave a remembrance. According to the school, Bradley, the Robert A. Lucas Chair of Law, served on the faculty for more than 30 years and was a respected scholar in criminal law and procedure as well as the death penalty.

“For more than 30 years, Craig Bradley was an indispensable part of the Maurer School of Law community,” said Hannah Buxbaum, interim dean. “He was an outstanding scholar, teacher, colleague, and friend, and he will be greatly missed.”

Bradley clerked for William Rehnquist at U.S. Supreme Court before he became Chief Justice. He also served as an assistant U.S. Attorney in Washington, D.C.

Sitting in four of Bradley’s criminal law classes, David Francisco remembered the stories and experiences the professor shared. Oftentimes, Bradley knew some of the participants or had some additional background information about the cases the class was reading.

“He had a dynamic presentation,” Francisco said, noting he expected the students to be prepared for class and made those who weren’t uncomfortable. “He just made it come alive.”

A member of the IU Maurer School of Law Class of 2005, Francisco pointed out that in addition to Bradley’s passing, the school also lost a popular faculty member, associate dean Leonard Fromm, in February.

“It unfortunate for the incoming students they will not get to meet two exceptional legends at Bloomington,” Francisco said. “Although, knowing the school and knowing the leadership, there are plenty of other legends and legends-to-be that they will get to learn from.”•