Is Any Lawyer Advertising Good?

Running on Field NakedI’m not a fan of lawyer advertising. Likely because so much is dreadful  (though not all). Or ethically challenged.

But when The Fishtown Lawyers, Leo Mulvihill and Jordan Rushie, were contacted by the Philadelphia Eagles about advertising during their games, I think they missed the boat by saying “no” too quickly.

Maybe going over the top is OK — no, not with a flaming sledge hammer of justice.  Maybe you just have to go over the top the right way.

So I’ve taken the liberty of writing ad copy for their criminal defense firm…you guys can thank me later:
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Have you been falsely accused of running naked onto the field in front of 50,000 people?

Were you busted for recycling your pre-game beers down from the upper deck perch onto the heads of  choir boys and nuns below while the video cameras rolled? But you thought it was fresh beer, so it was OK?

Did you dis a cop at a crowded tailgate party, “You can only catch me in your dreams?”  Before collapsing into a pool of your own vomit?

Call The Fishtown Lawyers, Mulvihill & Rushie, to help save you from such well-documented, though no doubt scurrilous, accusations.

That’s The Fishtown Lawyers, Mulvihill & Rushie, who know from personal experience that consuming a mere 5 – 10 drinks can make others level all kinds of false accusations against you.

Why the Fishtown Lawyers? Because representing yourself might not be such a hot idea.

And we promise we’ll be sober in court.
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Too bad they don’t have the guts to run it.

Ebola and the Failure of Lawyering (Updated)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

A member of Doctors Without Borders dons protective gear at the isolation ward of the Donka Hospital in Conakry, Guinea, where people infected with the Ebola virus are being treated. (Photo: Cello Binani/AFP/Getty Images)

Gov. Chris Christie was the US Attorney for New Jersey. Gov. Andrew Cuomo was the Attorney General for New York. You’d think that, with those credentials, they’d be smarter.

Each of them knows that a long view must be taken with respect to many, many issues, often with extensive evaluation of complex issues.  It took them years, sometimes, to accomplish things with litigation.

As lawyers we cite to precedents that go back decades, sometimes centuries. This is part of critical thinking and analysis.

But when it comes to the Ebola virus, they’ve both capitulated to the concept of panic first and think second.

Both governors have now imposed a 21-day quarantine on medical workers who risk their lives to go to west Africa to help save lives and fight the virus. So in addition to an involuntary deprivation of liberty for those now returning, even if healthy, they have  also made the  job of helping more difficult for these particular brands of heroes. If a doctor or nurse was willing to squeeze out a 3-week trip to help, that just became a 6-week trip.

The ostensible reason is to make it harder for the virus to come here. But the result is the opposite.

Instead of fighting the disease where it is, it is now more likely to spread with less medical care. And folks who are visiting the region will simply vanish from sight (and potential monitoring) by routing themselves to other U.S. airports, via other countries, where they won’t be subject to the long arm of government.

Even if we stopped all people and flights, the proliferation of the disease if left unchecked would just as easily go to many a European or Asian nation. It could go anywhere, since disease knows no politics or borders.

Instead of 10,000 infected in Africa, it could grow to 1,000,000 if left unchecked.

The only logical answer is to stop the disease where it is. Does that mean risk that a few people might come back sick? Of course. But a few sick folks here now is a whole lot better than many sick people here later. It isn’t about picking a good course of action over a bad one, but picking the one that is less bad.

We should be encouraging people to help if they have the skills, not discouraging.

The short-sighted plan runs counter to the long-view training both Christie and Cuomo have as lawyers. They should both be embarrassed for their blundering pandering to the ignorant panicers.  The times call for the type of deliberative long-term evaluations and critical thought that they had been trained to do, and they failed.
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Updated: Elsewhere of interest on law blogs:

Experts Debate Legality of New Jersey’s Ebola Quarantine Policy (WSJ Law Blog)

Seized By Fear: The Ebola Quarantine(Simple Justice)

Constitutional challenge to quarantine unlikely to succeed (Volokh Conspiracy)

Which Privacy Protections Apply? HIPAA, FERPA and Ebola (HIPAA, HITECH & HIT)

Ebola and Privacy: Snooping, Confidentiality, and HIPAA (Daniel Solove)

 

RIP: Prof. David Siegel

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Professor David Siegel, from his Albany Law School biography page

Calling Professor David Siegel a giant of the New York legal world would not only be a bit trite, but would still be an understatement. His treatise on New York Practice, the bible of New York civil procedure, is a required text for anyone that works in this state’s courts on the civil side and is routinely cited by judges at all levels, both state and federal.

He died yesterday.

In an obituary at the New York Law Journal, former Chief Justice Judith Kaye is quoted thusly from a 2008 Albany Law School event honoring him:

“Who among us doesn’t know that he is the—absolutely the—preeminent authority on matters of civil practice in the entire universe?” Kaye said at the time. “There’s no one with a bit of good sense who would dare ever to cross you on matters of civil practice, David Siegel.”

Like many other local lawyers, I attended Siegel’s continuing legal education classes regarding our civil procedure many times. And here’s the thing: The guy wasn’t just smart and practical, he was funny.

That humor was reflected not only in his on-stage manner, but incorporated into his New York Practice book. I mean really, who the hell ever laughed out loud at something in a book about legal procedure? But Siegel could pull that off.

On a few occasions in this blog over the years I’ve mentioned that it sucks to be a test case, usually on the subject of our new and untested ethics rules regarding online conduct and solicitation. That mantra of “it sucks to be a test case” comes from Siegel, who used to preach that advice when lawyers would pose factual situations that might (or might not) comply with our procedure.

Ever the practical person, he knew that it wasn’t always whether some procedural issue would work or not, but that lawyers should avoid placing themselves into the position to have to make that decision. You might (or might not) win your test case, but it will cost you time, money and sleepless nights to get there.
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From appellate lawyer Jay Breakstone:

I suppose it’s to be expected.  A lawyer dies and we all gather around and describe him in the most glowing terms, whether he was a saint or a nasty bastard.  Sometimes, it’s like being at Hitler’s funeral.  ”All in all, what can we say?  He was a hell of a dancer.”  At the time of death, there is always something nice to say about anyone.

But the recent loss of David Siegel is something else.  It is the true loss of someone we needed, not just admired.  Prof. Siegel was that one tool on the belt of every working lawyer that we couldn’t live without.

He was the Vise-Grip plier that could wrap itself around a particularly nasty question and break it loose from our own ignorance.  And, just like that Vise-Grip plier, he was always there.  Except for now.

To those of us who write about the law, David Siegel had a very unique talent.  The Professor could make the law understandable.  What a gift!  After all, this is not John Grisham writing about steaming plot lines and attractive anti-heroes.  This is New York practice, about as entrancing as a heartburn.  Yet, David Siegel made it sing.

How did he do that?  To this day, I do not know.  In the master’s hands, New York practice was just about the most interesting thing in the world.  It involved real people and real lawyers and real problems and, best of all, real answers.  Like some ancient prophet, Prof. Siegel revealed all that came down from on high to those of us who lived below.

I first came across Prof. Siegel at a bar review course in 1976.  They said that his course on New York practice was essential.  I think I paid extra to take the course and they were right.  He lectured in a style that can only be called “conspiratorial.”  This was a lawyer talking to other lawyers (almost.)

It was him and us against the world.  At last, this was the real thing.  No theories, no big shot federal jurisdictional issues; this was blue collar lawyering at its best.  We listened enraptured, for we quickly understood that if by some slight chance we actually passed the bar exam, this was what we needed to know on the day after our admission. I can still hear David Siegel today:

“One day, as young lawyer, your boss will send you to court.  How exciting!  You will carry the nice new briefcase your parents bought you and head off to the courthouse at 60 Centre Street.  You will walk up the steps with the sun shining, ready to do battle for justice.  You will enter the beautiful lobby and, just as quickly, you will descend into the bowels of hell.  You have been sent to the Special Term, Part I courtroom.

As you open the swinging doors, you will be assaulted by a scene out of Dante’s Inferno.  Hundreds of lawyers will be there, shouting out the name of hundreds of other lawyers.  You will sit down in the back of the courtroom and wait for the judge to take the bench and call your case.  But there will be no judge to hear your application for an adjournment.  Only the clerk will take the bench and he will begin to rattle off case after case in the order they are on the calendar taped to the wall outside the door – - the calendar you did not notice when you came in.  So, you will listen for your case to be called.

Quickly, the case names go by, and then, you think you hear yours!  You walk to the front of the courtroom, only to realize that in the time it took you to make that trip, fifty other cases went by.  There is no one to talk to; you are alone in a crowd, secure in the knowledge that once you get back to the office, you will be fired and have to pack up your desk in one of those cardboard boxes and go home, telling your mother you’re not a lawyer anymore.”

It was then that David Siegel, as he did until the day he died, rode in like a knight on horseback and saved our lives:

“This is what you have to know:  There are only three things you may yell out in Special I.  Nothing else will register in the mind of the clerk.  He or she is only programmed to respond to these three magical phrases.  Write them down now.  Memorize them.  Never forget them.   Here they are:  Ready for;  Ready against; Application.”

Prof. Siegel, I have never forgotten those words . . . or any of yours.

Loving Your Office

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Photo by Chris Petsos Photography. Many more great shots at his site. Click on image above to get there.

Lawyers have to make decisions on their offices: Make it nice? Or make it inexpensive? Rarely do the two concepts coincide.

We spend a lot of time in our offices.  Other than our homes, this is it.

This came to mind when I saw an article in the Sunday real estate section of the Times on my old stomping ground: The Woolworth Building.

My office was on the 8th floor, overlooking Broadway (and ticker tape parades) and City Hall Park (and the people who’d shout and scream at Mayor Guiliani).

I loved that building. As I walked into the office each day through the lobby of this gothic style skyscraper — once the world’s tallest, with its vaulted mosaic ceiling, gargoyles, and crowds of tourists gawking at its magnificence — I couldn’t believe I actually worked there.

And I enjoyed going in to work. It made me feel good to be there. I was productive. And it was a fine contrast to the windowless office that I started my solo career in, with a big mirror that I bought to give it the illusion of something bigger than a glorified closet.

Since leaving the Woolworth, each of my offices has been nice. Spacious. Welcoming. With pictures of my family filling the walls.  The diplomas are on the wall behind me, where I don’t need to look at them.

Today’s rumination isn’t just for those looking for offices for themselves, but those in charge looking for their staff. Do you want them to look forward to work or do you want them miserable coming in? While this formula isn’t ironclad, I think it has a lot of validity, both for lawyers and staff:

Comfortable office = productive lawyer

Don’t be cheap unless you absolutely have to. Remember how much time you’ll spend there, and make sure it’s a place you want to go to each day.

Apple, Privacy and Law

ApplePayYesterday Apple had its massive product presentation and one of the products it announced was a new pay system for credit cards, Apple Pay. Load the cards into an iPhone, and then just wave them in front of a techno-gadget at the check-out counter and you’re done. Simple.

Why might this be important? Currently, big business is tripping all over itself to gather as much information on you as possible, taking away big chunks of your privacy.

A 2012 New York Times piece on Target explained how, based on the buying patterns of a teenager — unscented lotions, vitamin supplements and other non-pregnancy related products — it knew she was pregnant early on and sent coupons for maternity clothes to her home. Her father was livid. And unaware of his daughter’s state.

Target is obviously not alone in doing everything possible to create massive data banks about you. Data banks that, perhaps, can then be hacked into (or subpoenaed).

Personally, I find myself using cash more and more often, as I cherish my privacy.

But Apple Pay may reverse that direction. According to CEO Tim Cook, the iPhone encrypts the card numbers, and when you make a purchase, the store can’t attach product information to your purchase.

That’s because the store doesn’t even get your name, much less your card number. Hacking the store’s computers should keep the consumer safe (again, see Target, and its loss of 40M credit card numbers).

And even Apple doesn’t get the information. From the Apple website, two key paragraphs:

Apple doesn’t save your transaction information.With Apple Pay, your payments are private. Apple doesn’t store the details of your transactions so they can’t be tied back to you. Your most recent purchases are kept in Passbook for your convenience, but that’s as far as it goes.

Keep your cards in your wallet. Since you don’t have to show your credit or debit card, you never reveal your name, card number or security code to the cashier when you pay in store. This additional layer of privacy helps ensure that your information stays where it belongs. With you.

If this works as planned, it has the potential to (partially) reverse our headlong dumping of personal information about ourselves into the computers of Big Business, both with respect to the items we buy as well as the cards we use.

The less data that exists in the data banks, the less it can be abused.

Joan Rivers Death and ‘Risk of the Procedure’

Joan Rivers in 2010, via Wikipedia

Joan Rivers in 2010, via Wikipedia

The phrase grates on me big time, that a poor medical outcome was a “risk of the procedure.” And so it is now that we see in a couple places with the death of Joan Rivers after she stopped breathing during an out-patient endoscopic procedure, that the phrase “risk of the procedure” is popping up, as if to excuse what happened.

One leading possibility for death, of course, is that it was related to the anesthesia, which Ms. Rivers likely had numerous times considering all the jokes she made about her own plastic surgery.  A sudden allergic reaction wouldn’t exactly be on anyone’s list of possible causes.

At HCP Live, a medical website, they first look at the incidence of cardiac arrest from anesthesia, and it looks positively frightening, by starting out like this:

Although perioperative cardiac arrest due to anesthetics occurs just 10.8% of time, according to the Mayo Clinic, it represents the most serious complication and can have devastating results, as witnessed by the recent death of comedian Joan Rivers.

Wow!!! 10.8% of the time?!?

Well, not quite. That would be 10.8% of all cardiac arrests, which itself are quite rare. Not in the HCP article, but deep into the linked Mayo Clinic article is this:

At the Mayo Clinic, the incidence of arrest primarily attributable to anesthesia was 0.5 per 10,000 anesthetics, which represented 10.8% of cardiac arrests that occurred preoperatively…

So, the incidence of cardiac arrest is actually exceedingly rare.

Moving on, the article starts goes to the potential medical excuses for what might have happened:

The surgery was apparently a minor, elective procedure, but the complications Rivers suffered reminds patients and providers that there are always risks to be considered during surgery. Some of the factors that can increase the risk of cardiac arrest during surgery include coronary artery disease, cardiomyopathy, congenital heart disease, and heart failure.

And what is missing? The failure to properly ventilate or medicate the patient.

Want to know why excusing a bad outcome by simply saying it is a risk of the procedure is so awful? Think about getting hit in the rear by another car while driving. Hey, you knew that others on the road might not be paying attention, didn’t you? Isn’t an auto collision (not an accident) one of the risks of being on the road? Do we excuse that inattentive driver because you knew that being on the road was risky?

Senator Rand Paul pulled a similar stunt with BP’s gulf oil spill, dismissively saying “Sometimes accidents happen.” Sure.  Or maybe the company acted with “conscious disregard of known risks.

Sometimes a deer bolts into the road and can’t be avoided. But sometimes, someone is following too close and rear-ends you because they didn’t leave enough room to stop.

What is the standard here for the Rivers matter in evaluating possible medical malpractice? The standard to look for by investigators, be they New York’s Department of Health (now underway) or the family’s private lawyer, are twofold in looking at the acts or omissions of the medical staff:

Was the act (or omission) a departure from customary and usual medical practice?

Was that departure (or omission) a substantial cause of injury/death?

Simply calling something an “accident” or saying it is a “risk of the procedure” is the type of language that immunity-seekers use (i.e. defense lawyers in the courtroom). But it isn’t the law.

The press should take note in writing stories on the subject, and be careful of the highly dismissive “risk of the procedure” lingo that may flow from some places.

GPS is Making Us Dumber (And other thoughts on the law)

GPSMakingUsDumberSome folks want directions when they go someplace new. Others want a map.

The directions tell you lefts and rights. The map tells you where you came from and where you need to go.

Many GPS devices simply tell you to make those rights and lefts. They don’t tell you where you are. And thus we become unthinking followers.

GPS devices were wrong at least twice on last week’s family vacation in Maine, once while I followed a family member and a second time while sitting shotgun. The GPS said to go one way and my brain said to go the other. The only reason I overruled the GPS directives was because I’d looked at a map before leaving.

So how is this related to law? All too often I see it at depositions, where the other lawyer comes prepared with page after page of questions to ask — the same questions at every deposition.

The lawyer follows the directions given, dutifully jotting down the responses.

The highly detailed outline is like the GPS. It tells you which questions to ask, but doesn’t give you a road map of where you actually need to go.

But the road map exists. It’s in the instructions that the judge will give to the jury at the end of the case. This is the map of what you need to prove, and thus needs to be the focus of the questions. It isn’t just that you need those instructions before the deposition, but that you need them before you file suit (or when retained to defend).

This requires thinking, not following. The lawyer that thinks, instead of follows, will do a deposition that is half as long and twice as useful.

It’s OK to have a general outline, of course, as you wouldn’t want to miss out on an important topic. But becoming a slave to the outline is the danger. Topics are good, specific questions from stock outlines, not so much.

My advice: Leave the directions, take the map.

Cops in Tanks vs. Cops on Bikes

Police Shooting MissouriThe juxtaposition of the pictures couldn’t be more stark.  Out in Ferguson, Missouri, in the wake of  an unarmed teen being shot dead by a cop, we see a militarized police force racing in to use all their toys of crowd control: Tear gas, rubber bullets, armored personnel carriers and, of course, the military-style uniforms with riot armor. Everything about it screams, “Stay the hell away from us.”

And the other picture is one I noted on the Gothamist a couple weeks back: A cop on a bike. The article is ostensibly about being caught riding on the sidewalk, but that isn’t what captured my eye. No, I looked and saw an extremely approachable human.

073014nypdbikeWhich cop do you want on your street? The one that says stay away, or the one that waves hello?

Which cop is more likely to be a calming effective?

Which cop is more likely to antagonize and make a situation worse?

Which one is more likely to infringe on the rights of others?

Which one will cost the taxpayers more money, both in hardware and lawsuits?

Which cop is the one that people would most likely to approach with important information?

Do we pay the cops to protect us, or protect themselves?

And now, the local cops are gone from Ferguson and the highway patrol cops have come in. And what did they do? They walked around in regular cop uniforms without all the toys and chatted with the protestors and worked to calm things down. Some protestors got hugs.

The Ferguson cops seem to have done everything they could to make the situation worse, though this is helped with the dumping of excess military hardware into our police departments. Hey, if you have toys, don’t those toys have to get used?  (See, Rise of the Warrior Cop, The Militarization of America’s Police Forces, by Radley Balko.)

One can only hope that police departments around the country are taking studious notes on crowd control, and leaning what not to do.  The use of military weapons in civilian areas is a horrible trend, and the fall-out from it can affect any one of us.

More Motions to Dismiss Against Dr. Michael Katz

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Justice Hart’s opinion of Dr. Katz.

Your familiarity with the defamation suit against me by Dr. Michael Katz will be presumed. Very briefly, he’s the guy that sued me because Justice Duane Hart called him a liar about 25 times and I reported it. He can’t sue the judge, so he figured he would sue me. I’ve moved to dismiss and have him sanctioned for his frivolous suit, frivolous conduct, and making an improper demand for $200 million.

My co-defendants have now also made motions to dismiss. Samson Freundlich did a “me too” motion (Affid – Freundlich) that includes this gem of a sentence that gave me a laugh:

I hereby reiterate, stress, pinpoint, underscore, focus, resonate, emphasize and magnify their same, similar and identical legal posture to myself, defendant SAMSON FREUNDLICH and incorporate into this affirmation all of their said motion papers-including, but not limited to, their memorandum of law with their annexed respective exhibits previously submitted to this honorable court and heretofore respectfully adopt, restate and recapitulate, without exception, all of their legal and factual arguments presented therein in their entirety.

And co-defendants Lester, Schwab, Katz & Dwyer and its partner Paul Kassirer, cross-moved with this filing today: Memo of Law. Theirs is a bit different than ours since we did an original publication of blog posts and theirs deals primarily with an email that Kassirer sent.

Additional documents in that filing are Kassirer’s Affidavit and this July 29 Order where the defendants in the underlying action tried to get a different doctor to do a new defense medical exam after Justice Hart made mincemeat out of Katz, out of concern that Katz would be shredded on cross-examination due to the judicial findings by Justice Hart that he had lied. That application for a new medical-legal exam was denied.

Motion to Dismiss/Sanction Against Dr. Michael Katz

DrMicheaelKatz-Pinocchio

This is what Justice Duane Hart thinks of Dr. Michael Katz

Remember how I reported that I’d been sued again for defamation? Justice Duane Hart in Queens had ripped Dr. Michael Katz a new one in open court for acting like Pinocchio. And the good doctor, not being able to sue the judge for calling him a “liar” about 25 times or so, figured he would sue me instead for reporting it. (Shooting the Messenger (I’ve Been Sued Again))

Both Scott Greenfield (Turkewitz Sued By “Liar” Doctor, Michael Katz) and Marc Randazza (Judge Admonishes Expert Witness – Expert Witness Sues Blogger Who Reported On It) mocked the lawsuit.

Well, the motion to dismiss was filed this morning. And with it, the motion for sanctions. Against both the doctor and the lawyers who drafted this misbegotten, ill-advised, mongrel of a suit destined for the trash heap of history.

Having sued me on five separate causes of action, the memo runs a bit long. But this is the lede from the Memo of Law:

Last year Justice Duane Hart in Queens made numerous acidic comments about well-known defense orthopedist Michael J. Katz, calling him a liar at least 25 times (among other things). Eric Turkewitz reported on these extraordinary court proceedings on his law blog. Since Katz can’t sue the judge, he sued Turkewitz instead for reporting on what the judge said, claiming defamation, as well as a kitchen sink of other claims based on the exact same protected conduct. Not only must the case be dismissed since such reportage is absolutely protected by the law, but sanctions should be imposed against the plaintiffs for each of the clearly frivolous claims.

Part of that kitchen sink of claims that were alleged, to act as a bastard surrogate for defamation, is prima facie tort. About this, the brief says:

Prima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy. It is not a catch-all alternative for every grievance, annoyance, gripe and squawk  that is not independently viable.  There is no cause of action for saying mean things about someone on the Internet. Not in this country.

For those that care about the sanctions part, and what it means in New York, the brief gets there at page 28 after deconstructing each of the causes of action, and includes this piece:

It is important to note that the CPLR sanctions are set at $10,000 per prevailing party and each individual claim.  For the purposes of this matter, there are two plaintiffs and two defendants and five frivolous claims, thus subjecting the plaintiffs to as much as $200,000 in costs under CPLR 8303-a.  A long analysis of this subject was done by Justice Lebedeff in In Re Entertainment Partners Group, Inc. v. Davis,.

The complaint he filed is here, where Katz confesses in exquisite and meticulous fashion about the judicial reaming he got. You’ll find it on pages 15-30. Yeah, you read that right, it took him 15 pages to describe all the times he was called a liar.

Having confessed, conceded, declared, attested and otherwise sung to the world that Justice Katz did, in fact, call him a liar, it is remarkable that any lawyer would take this matter and sue me for reporting on what happened in court. Any lawyer worth a damn knows the suit is empty, which means to me that the only logical reason it could have been taken is either because Katz offered the firm enough money to do so, or Katz is a friend/relative of someone at the firm. But friends don’t let friends file frivolous suits.

Which is why the most important word a lawyer needs to know is “no.” Placing your client, and yourself, in the line of fire for sanctions is, as we say in legalese, an ill-considered, imprudent, insane, misguided, half-baked, bird-brained, blockheaded, short-sighted and otherwise dumb-ass thing to do. I’ve said this before my friends, and I’ll say it again: I have a thesaurus and I’m not afraid to use it.

For those that care about such things, this is the transcript of the original testimony on April 12 2013.

The transcript of the July 1st proceeding is here.

The transcript of the July 8th proceeding is here.

A supporting affidavit from my counsel is here.

The video of the one minute and 56 second exam that Katz did was up on YouTube, but YouTube took it down, despite it being part of a legal proceeding.
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Update (7/31/14): My co-defendants have now also moved to dismiss.
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