Winter storm causes millions of Texas residents to go without gas or electricity

What Is ERCOT – The Texas Power Grid Explained

Legal AssistantAdministrative Law, Business Law, Regulatory Law

ERCOT has come under fire in recent months for the mass power outage experienced in several parts of Texas earlier in the year. According to the grid operator, this widespread outage was attributed to a surge in demand for electricity that resulted from the extreme weather conditions witnessed in the weeks leading up to the blackouts.

What is ERCOT, and why does the Lone Star state have its own grid? Here’s the Texas power grid explained.

What Does ERCOT Stand For

ERCOT is short for the Electric Reliability Council of Texas. Its mandate is to manage electric power flow on the Texas Interconnection. This alternating current (AC) power grid spans most of the state and is one of three minor grids that make up the power transmission network in North America. The other two minor ones are the Alaska Interconnection and the Quebec Interconnection.

Aside from the Texas Interconnection, the other two major grids that service the lower 48 states are the Eastern Interconnection and the Western Interconnection. The Texas power grid – which is sometimes also referred to as ERCOT – is managed and maintained separately from the other interstate grids for political reasons.

Since the Texas grid does not cross state lines, it is, for the most part, independent from federal oversight by the Federal Energy Regulatory Commission (FERC). This begs the question – Who owns ERCOT?

ERCOT is a non-profit corporation defined by section 501(c)(4) of the Internal Revenue Code. It is membership-based, governed by a directorate board, and is subject to oversight by the Texas legislature and the Public Utility Commission of Texas (PUC).

ERCOT’s membership comprises municipality- and investor-owned electric utilities (including both distribution and transmission providers), retail electric providers, power marketers, electric generators, cooperatives, and consumers.

What Does ERCOT Do

ERCOT is an independent system operator (ISO). It was the first of nine ISOs that are currently in operation in the United States. ERCOT works with the Texas Reliability Entity (TRE), which is one out of the eight regional entities under the North American Electric Reliability Corporation (NERC). NERC’s mission is to coordinate and enhance bulk-power electric grid reliability.

Being a North American ISO, ERCOT’s mandate revolves around the dispatch of power through the electric grid. This is done via an elaborate network of 46,000+ miles of power transmission lines and 500+ electric generation units. It also provides retail-switching services for 7 million+ premises in various sectors and conducts monetary settlements for the wholesale bulk-power market.

Why Does Texas Have Its Own Power Grid

The separation of the Texas Interconnection from the rest of the country dates back to the early years of the 20th century. In the decades that followed Thomas Edison’s 1882 commission of the country’s first-ever power plant in Manhattan, smaller power generation plants began to sprout across Texas to power the different cities within the state.

After World War I, many of these power utilities began to link together, and the resulting transmission network grew significantly by the time World War II was winding up. These intrastate-linked power utilities are what later became the Texas Interconnected System. This union allowed them to connect to the big dams constructed along the state rivers and send additional electric power to the factories supporting the war effort.

For a long time, two independent entities were responsible for the management of the Texas Interconnected System. One was charged with operations within the state’s northern region, while the other was responsible for the operations in the southern part. Their main focus was ensuring that the Texas power grid remained within state lines to avoid being subjected to federal oversight.

When President Franklin Roosevelt signed into law the Federal Power Act of 1935, the then Federal Power Commission (FPC) had no jurisdiction over the Texas Interconnected System. The state had significant resources in the form of natural gas, coal, and oil, which were sufficient to fuel its power plants independently.

ERCOT was established in 1970 after a major blackout in November 1965, which plunged the northeastern part of the state into darkness. The newly formed agency was tasked with managing the grid’s reliability and ensuring its adherence to national standards. Even after FERC succeeded the FPC, the ERCOT grid remained beyond the federal regulator’s reach.

Why Is Texas Power Grid Failing

Several parts of the country, including Texas, were hit by a series of severe winter storms earlier in the year. Millions of households and businesses across the state turned up their heaters to keep warm, subsequently causing a spike in power demand. Unfortunately, the state’s power-generating capacity was unable to meet this sudden spike. As a result, electric operators resulted in disconnecting entire neighborhoods to ease pressure on the state power grid.

At the peak of the Texas power shortage, an estimated 4.5 million homes went days without electricity in sub-zero temperatures, in a state with almost no experience dealing with freezing cold for prolonged periods.

According to reports, the marginalized segments of the state’s population were hardest hit by the crisis, resulting in dozens of deaths due to hypothermia. Several other fatalities were attributed to carbon monoxide poisoning when some residents turned to their stoves and grills to warm up their cold homes.

The blackout also left millions of residents without water after it froze within plumbing systems. Some lines ended up bursting in the process. The power outages resulted in staggering economic losses, which analysts estimate to be well over $129 billion.

Why did the Texas power grid fail, and why is it still unable to cope with the power demands placed on it by state residents? The root cause of this failure can be examined in three parts.

1. Energy Independence From Federal Oversight – A Double-Edged Sword

The United States – with the exception of Alaska and Hawaii – is served by three major power grids: The Eastern Interconnection, the Western Interconnection, and the Texas Interconnection. However, apart from a few peripheral areas, the majority of the Lone Star State and its 29 million inhabitants are served by a standalone grid that is largely isolated from the other two systems.

The Texas Interconnection, which is regulated by ERCOT, does not fall within the jurisdiction of federal oversight since no section of its transmission network falls beyond the state’s borders. Given that it has no connections to the other two major grids, ERCOT and other state-based electric transmission agencies can operate their grid any way they see fit.

This isolationist approach to energy production and transmission stems from the state’s long-drawn narrative of independence from the federal government. After all, the southern state was independent of the rest of the United States for nine years after gaining independence from Mexico.

Its stance was further fueled by the abundance of natural gas, coal, and oil reserves. The almost infinite supply of these carbon-based resources allowed it to hive itself off from the federal power grid.

Unfortunately, this autonomy also meant that the state did not have access to a lifeline supply of power when the electricity demand by state residents surged beyond the power grid’s capacity.

2. Energy Market Deregulation

What Is ERCOT
Image Source: Unsplash

In 2002, the Texas governor at the time – Rick Perry – implemented sweeping deregulation of the state’s energy market. The governor, alongside the Republican-majority legislature, embraced a free market that supported the auctioning off of electricity in an ERCOT-coordinated wholesale marketplace.

According to the neoliberal methodology to electricity distribution, the approach assumes that several coordinating markets are superior to a single one that relies on centralized planning.

The newly deregulated market meant that the main concern among energy providers was the price of electricity as opposed to the stability and reliability of its supply. The result? Power generators in the southern state competed relentlessly against each other to provide the cheapest possible electricity.

Unfortunately, this was done at the expense of major long-term investments into their power-generating infrastructure. Moreover, since protecting their power transmission networks against adverse weather conditions took a back seat, these systems were ill-equipped to withstand the snowstorms that plagued the state.

Additionally, this new auctioning marketplace was barely regulated. Electricity prices fluctuated widely in response to the economic pressure on the market. The surge in demand and inadequate supply in the midst of crippling winter storms saw the prices soar by a staggering 10,000 percent. Rates shot up from the previous $50 for each megawatt-hour to $9,000 per megawatt-hour.

Texas residents who were fortunate enough to have had power during the outage period received bills amounting to thousands of dollars for the peak demand days.

The San Antonio municipal electric provider sued the state’s power grid operator in the wake of the pricing controversy. The ERCOT lawsuit comes after the state legislature and governor pressure to retroactively review the rates billed during the peak demand period, citing that scarcity pricing was no longer applicable.

3. Failure to Learn From Past Crises

The final reason why the Texas power grid is failing has to do with the state’s energy regulators’ failure to heed the lessons learned from similar power crises that befell the state in the past. While the winter storms of 2021 were long and severe, they were not the first of their kind in the Lone Star state.

In 2011 and 2014, several parts of Texas were hit by similar snowstorms. Many of the state power transmission lines and equipment froze, leading to a widespread power outage that lasted several hours.

The results of a state-sanctioned investigation revealed that Texas energy providers failed to properly test whether their power transmission network designs could withstand sub-zero temperatures. The report contained several feasible winterization recommendations, but the energy providers largely ignored these, and compliance was not made mandatory.

Nonetheless, the city of El Paso in West Texas took those recommendations seriously, spending millions of dollars upgrading and winterizing its grid, which happens to be separate from the main Texas Interconnection. It constructed a sophisticated dual-use power station that runs primarily on natural gas, although it can also utilize oil when gas becomes unavailable. As a result, only a handful of homes in the city lost power in the Texas outages that occurred earlier in the year.

ERCOT Rolling Blackouts

According to a May 2021 report released by NERC, several parts of the country were at higher-than-average risk of energy deficits over summer, particularly during periods of high peak temperatures. This means that Texas residents should brace themselves for potential power outages.

The assessment report further indicated that ERCOT would have a sufficient amount of power supply under what it termed as “normal operating conditions.” It did caution state residents that this year’s summer would see above-normal temperatures, subsequently increasing the risk of drought across several parts of the state. This would drive up the demand for power, which would, in turn, put more stress on the grid.

Additionally, the drought brought about by extreme temperatures reduces the availability of the water required for cooling power plants. This increases the amount of strain the grid is subjected to, inevitably increasing the likelihood of electricity shortages.

To curb this, ERCOT would have no choice but to implement rolling blackouts to preserve power and offset a devastating and uncontrolled outage. What is a rolling blackout anyway?

A rolling blackout, also known as a rotating outage, is a systematically engineered temporary power outage that helps balance the supply of and demand for electricity in the marketplace. The energy provider administers a temporary outage to one area at a time while limiting the duration of the outage. This is usually the last resort when there’s a market shortage of power supply after all other emergency measures have been deployed.

The Bottom Line

While ERCOT has advised state residents to reduce their electricity usage, the agency has begun to implement controlled outages. The blackouts are expected to last 45 minutes at a time, although this may increase in more extreme circumstances.

For more information on the Texas rolling blackout schedule, consult your local electric utility website.

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Critical Race Theory

What Is Critical Race Theory?

Legal AssistantCivil Rights, Constitutional Law

In September 2020, a Trump executive order was issued to exclude any diversity and inclusion training in federal contracts. The presidential directive targeted programs whose subject matter revolved around concepts like “gender or race-based scapegoating,” “gender or race-based stereotyping,” and “divisive concepts.”

Among the notions deemed “divisive” is the Critical Race Theory (CRT).

In response to the controversial directive, the African American Policy Forum launched a campaign dubbed #TruthBeTold to shed light on the danger posed by the executive order. The presidential directive resulted in the cancellation of more than 300 diversity and inclusion programs.

What is Critical Race Theory, and what effect does its prohibition have on civil rights for minority groups in the country? Here’s everything you need to know.

Critical Race Theory Definition

CRT was developed at Harvard Law School several decades ago as an intellectual framework. It hypothesizes that racism goes beyond individual bias, putting forth the idea that it is deeply rooted in the policies and legal systems within society.

In January 2021, the Republican member of the New Hampshire House, Rep. Keith Ammon, introduced a bill that rides on the concepts introduced in the 2020 Trump executive order. The premise of the proposed legislation is to bar educational institutions and organizations with an existing contract or subcontract with the state from perpetuating and endorsing “divisive concepts.”

The bill specifically proposes banning concepts that:

  • Suggest the country is fundamentally racist at its core
  • Question the value of meritocracy
  • Promote gender or race-based scapegoating

The New Hampshire bill is one of several proposed state legislation across the country and in the US Congress that have been drafted with similar prohibitions.

Lawmakers in Arkansas recently passed a directive aimed at banning state contractors and subcontractors from offering training programs that promote social justice for, resentment of, and division between groups, on the basis of their gender, race, or political affiliation.

Similarly, the Idaho state legislature enacted a bill designed to bar public education institutions from making it compulsory for students to adhere, adopt, or personally affirm specific beliefs about gender, race, or religion. Even the Louisiana legislature has passed similar directives.

To get a firm handle on the spirit and repercussions of such laws and measures, you first need to understand the origin of the Critical Race Theory and what it proposes.

Who Developed Critical Race Theory

The origin of the CRT dates back to the 1970s in the publications of renowned American legal scholars like Mari Matsuda, Kimberlé Crenshaw, Alan Freeman, Derrick Bell, Patricia Williams, and Richard Delgado. By the 1980s, it had evolved into a movement that reworked the existing theories in Critical Legal Studies (CLS), placing more emphasis on race.

During that period, students of color enrolled in Harvard Law School organized a series of protests highlighting the curriculum, student population, and faculty’s lack of racial diversity.

Derrick Bell, who was a professor at Harvard Law before becoming the dean at the School of Law in the University of Oregon in 1980, crafted several new programs during his tenure at the institution. These courses were designed to study the American legal system but from a racial standpoint.

After Bell resigned from Harvard Law, citing the institution’s discriminatory practices, the university rejected requests from students of color who wanted the new courses taught. The reason given by the administration was that there was no Black faculty member qualified enough to teach Bell’s courses.

Instead, the university employed what the students described as an “archetypal white liberal” instructor. According to them, this move was yet another attempt to interdict the growth of African-American leadership.

The result? Several colored students, including Mari Matsuda and Kimberlé Crenshaw, boycotted and went on to create an “Alternative Course” drawing from the core concepts of Bell’s work.

Why Critical Race Theory Emerged

To draw connections between the theoretical concepts of Critical Legal Studies and the everyday reality of racial politics in America, the first formal workshop dubbed “New Developments in Critical Race Theory” was held in 1989. At the time, only Matsuda, Crenshaw, and a handful of other scholars knew that there were no “new developments” in the field and that it was just a made-up name.

Nonetheless, that was the turning point that marked the divergence of CRT from CLS, emphasizing the racial importance of the emerging field. While CLS did criticize the role that the American Legal System played in legitimizing and generating social constructs that were oppressive in nature, it did not offer any solutions or alternatives.

As a result, the gap left behind for failing to address race and racial prejudice in its analysis meant that CLS did not suggest any viable alternatives for social transformation.

This marked the Critical Race Theory origin.

A total of 24 American scholars of color attended the 1989 workshop, which was held at the University of Wisconsin-Madison. In the years following this landmark event, many scholars went on to publish higher volumes of literary works that centered on CRT, some notable ones being Bell’s Faces at the Bottom of the Well and Patricia Williams’ The Alchemy of Race and Rights.

What Are the Five Principles of Critical Race Theory

Critical Race Theory is constantly evolving. Below is an overview of the five key principles of CRT.

1. Intercentricity of Race and Racism

The initial premise of CRT posits that race and racial prejudice are a fundamental, permanent, endemic, and central part of explaining and defining the operation and functioning of US society.

It further proposes that racialized subordination based on class, gender, accent, phenotype, surname, immigration status, and sexuality is deeply embedded into the system, making it inextricable.

2. Challenge to Dominant Ideology

This second principle counters the concept of White privilege. It opposes the assertions educational institutions across the country make toward equal opportunity, objectivity, the neutrality of race, meritocracy, and color-blindness.

CRT exposes deficiently informed research that distorts, ignores, or silences the epistemologies of people of color. It further asserts that the traditional knowledge that exists serves to camouflage the privilege, power, and self-interest of the dominant groups within society.

3. Commitment to Social Justice

CRT offers a transformative and liberatory response to class, gender, and racial oppression. The social justice agenda as proposed by the Critical Race Theory aims to empower subordinated groups including people of color, eliminate poverty, sexism, and racism, and expose the “interest-convergence” of the educational “gains” as it pertains to civil rights.

4. Significance of Experiential Knowledge

CRT acknowledges that teaching, analyzing, and understanding racial-based subordination requires experiential awareness that only people of color would have. It further states that this knowledge is critical, appropriate, and legitimate and draws explicitly on the life experiences of people of color through methods such as family histories, storytelling, parables, scenarios, narratives, chronicles, and biographies.

5. Transdisciplinary Perspective

Critical Race Theory transcends all disciplinary boundaries to evaluate race and racial-based prejudice in contemporary and historical contexts. It draws on scholarships from various fields, including psychology, law, history, sociology, ethnic studies, theatre, film, and several others.

Critical Race Theory Criticism

Critical Race Theory Criticism

Opponents of the CRT framework contend that examining the role of race in the US legal system, structures, and society is not only divisive but racist as well. Some critics have gone as far as to state that the very nature of the Critical Race Theory draws on a Marxist ideology – whose whole premise revolves around the nation being fundamentally evil at its core and that White people should feel guilty about the color of their skin.

In May 2021, several Republican Congress members proposed a bill that bans CRT training programs in federal institutions, in addition to a resolution meant to highlight the “dangers” of teaching critical race theory in schools.

According to the representatives, the theory promotes division and discrimination. It preserves the idea of treating people differently based on the color of their skin, which undermines equal protection in the eyes of the law and civil rights as guaranteed by the Constitution.

Project PAC

A political action committee, also known as PAC, was established to support school board candidates opposed to CRT. PAC argues that supporters of this intellectual framework not only reject capitalism, but the principles created by the nation’s founding fathers as well. It further contends that the principles fronted by CRT are “hostile to White people.”

Although the Critical Race Theory may not be innately Marxist, a loose link exists between the two. Neo-Marxists and other oppositionist varieties in law schools were included in Critical Legal Studies – which was the precursor to CRT. Critical race theorists diverged from CLS and focused their studies on race and racial prejudice.

According to some factions of CRT proponents, racism continues to exist because of its profitability since fighting it also means suppressing capitalism. However, not all critical race theorists agree with this opinion.

Critical Race Theory and Law

CRT hypothesizes that the civil rights laws in the US have continued to serve the interests of White people. It emerged as part of CLS to specifically address the issues of racial subordination, racism, and discrimination and oppose all continued judicial considerations formed on those ideals. The relationship between Critical Race Theory and law has two fundamental viewpoints.

1. Derrick Bell Approach

Critical Race Theory founding father Derrick Bell put forward three major propositions related to the racial patterns observed in the American legal system.

  • Constitutional contradiction: In this argument, Bell maintained that those who framed the Constitution made the decision to choose the rewards that came with property acquisition rather than seek out justice.
  • The principle of interest convergence: In this argument, Bell proposed that White people support racial-based advances for Black people only when those advances also promote the self-interest of White people.
  • The price of racial remedies: The third proposition puts forward the idea that White people would never promote civil rights policies that may pose a threat to their social status.

2. Freeman Approach

According to Alan Freeman, the idea of racial prejudice and discrimination can be looked at from the perspective of either the victim or the perpetrator. Freeman argued that racial discrimination looks at the circumstances of social existence from the perspective of the victim belonging to a perpetual class. On the other hand, a violation as per the provisions of anti-discrimination law is rooted in the perspective of the perpetrator.

The Affirmative Action Law Through the Lens of the Critical Race Theory

Affirmative action in the US refers to a set of administrative practices, guidelines, and policies designed to end and rectify the impact of specific forms of discrimination. Some of the practices and guidelines include voluntary private programs, as well as government-sanctioned and government-mandated programs.

The idea behind these laws is to help even out the playing field by increasing opportunities in the education sector or the workplace for historically disadvantaged groups based on factors like their race, gender, color, national origin, or religion.

Affirmative action goals rely on “good-faith efforts” to seek out, select, and train qualified disadvantaged individuals and not necessarily conform to specific quotas.

Such goals in the university admissions context, for instance, use racial minority status positively to determine which applicants to accept into a program. Minority applicants would be awarded extra points to remedy the deeply-rooted societal discrimination rooted in certain protected characteristics.

CRT in affirmative action laws puts forward that such practices, guidelines, and policies compensate for the disparity that would otherwise perpetuate racial privilege, given that standardized tests are typically skewed in favor of White students.

The Way Forward

Although the former President issued an executive order to ban all Critical Race Theory-related training programs, a federal judge blocked this directive. President Joe Biden later rescinded the order once he took office, with his administration pushing for federal funding to support programs that “reflect diversity.”

Although some state legislatures – like those in Texas, Tennessee, Idaho, Oklahoma, and Arkansas – with Republican majorities have passed measures to ban CRT training, others have restricted the programs to lower-level classrooms and public colleges.

Despite the attempts to ban the teaching of CRT, the question of whether such actions infringe on the Constitutional right to free speech is still up in the air. For now, it is still unclear which way the courts will rule.

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Can Gun Manufacturers Be Sued

Can Gun Manufacturers Be Sued?

Legal AssistantBusiness Law, Consumer Law, Mass Torts, Personal Injury Law

Nearly every sector of the American economy could potentially face civil and product liability lawsuits if they’re found culpable. This has been used as a way to keep irresponsible manufacturers and rogue retailers in check. As with all things, however, there is an exception to that all-important rule, and that’s the gun industry.

In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act, which effectively gave manufacturers and sellers in the gun industry immunity from all forms of civil action. It meant that families of the victims of gun violence could not seek legal redress from the courts against the makers of firearms.

If the recent developments in New York are anything to go by, it looks like all that’s about to change.

Can gun manufacturers be sued? Here’s everything you need to know.

The Protection of Lawful Commerce in Arms Act

The Protection of Lawful Commerce in Arms Act (PLCAA) of 2005 is a federal statute that gives broad immunity to gun dealers and manufacturers in state and federal courts across the country. According to the provisions of the Act, any qualified civil liability action resulting from the unlawful or criminal misuse of ammunition or firearms is expressly prohibited by law.

The PLCAA does, however, provide six exceptions in which the blanket legislation does not apply:

  1. A person who is directly harmed by gun violence can bring a civil suit against an individual who is convicted of knowingly transferring a gun, with full knowledge that the gun in question would be used to perpetrate a violent crime;
  2. An individual can bring a civil suit against a gun dealer on the grounds of negligence or negligent entrustment;
  3. If a gun violation is the proximate cause of the injury suffered by a plaintiff, they can sue the gun dealer or manufacturer if they knowingly violated an applicable state or federal statute with regards to the marketing or sale of the firearm used in the crime;
  4. Gun dealers or manufacturers can be sued for breach of contract or breach of warranty related to the purchase of a gun;
  5. A gun dealer or manufacturer can be sued for a defect in the design or manufacture of a gun if it causes death, physical injury, or property damage when used in a reasonable manner as intended. If a volitional act tied to a criminal offense led to the discharge of the firearm, resulting in death, physical injury, or property damage, the Act in question would be considered the proximate cause, and the gun dealer or manufacturer will not be liable in a civil suit brought against them;
  6. Gun dealers and manufacturers are not immune from legal action brought against them by the Attorney General if their actions violate the National Firearms Act or the Gun Control Act.

Sandy Hook Shooting – Background

On December 14, 2012, shortly after 9.30 a.m., Adam Lanza shot his way through the plate-glass window located next to the main entrance to the Sandy Hook Elementary School, located in Newtown, Connecticut. The 20-year-old gunman, who had previously attended the school, gained access to the premises, shooting dead six school employees and 20 first-graders aged between six and seven years old, before turning the gun on himself.

The Sandy Hook shooting went down in history as the second-deadliest mass shooting in the US after the Virginia Tech shooting of 2007. Lanza was in possession of two semi-automatic pistols, a semi-automatic rifle, and several rounds of ammunition.

Investigators later learned that the gunman had shot and killed his 52-year-old mother, Nancy Lanza, prior to the elementary school incident at the home they shared. She was the licensed owner of the firearms Lanza used during his deadly rampage.

In November 2013, a year after the mass shooting incident, the State Attorney released a report revealing that Lanza had been grappling with “significant mental health issues” that prevented him from properly interacting with others and living a normal life.

The mental health professionals who had worked with Lanza in the past refuted that report, stating that they had not noticed or witnessed any signs or behavior that would have signaled a problem.

Remington Lawsuit – Soto v. Bushmaster Firearms

The parents of the victims who lost their lives in the Sandy Hook shooting filed a lawsuit against Remington Arms – the manufacturer of the weapon used by Lanza in the mass shooting incident. The plaintiffs in the civil action alleged that the manufacturer’s marketing of the Bushmaster rifle played a causative role in the death of their loved ones.

They alleged that the company’s firearm marketing went against the Connecticut Unfair Trade Practices Act (CUTPA) since it promoted the unlawful use of a military-grade rifle by civilians.

In addition, details of the suit reveal that the gun maker’s advertisements upsold the assaultive and militaristic qualities of the weapon, even using phrases like, “…forces of opposition [will] bow down,” and “…you’re single-handedly outnumbered.”

The plaintiffs further stated in their suit that their CUTPA claim fell within the predicate exception provided for in the PLCAA since Remington Arms knowingly violated the state statute in its marketing and sale of the weapon. The violation in question was the proximate cause of the deaths and injuries that occurred at the school shooting, and, as such, the firm was no longer covered by PLCAA immunity.

The Connecticut Supreme Court ruling stated that while Congress passed the PLCAA to shield and protect gun dealers and manufacturers against criminal and civil liability for the conduct of third-party firearm users, the Act did not provide any indication that it was meant to absolve dealers and gun makers who marketed their weapons for illicit use, nor was it supposed to protect them from the injuries resulting from said use.

The Supreme Court ruling held that CUTPA could be applied to the PLCAA predicate exception, given Congress’ use of the word “applicable” in the statute. This implies that gun marketing violations were not limited to laws that exclusively, expressly, or directly go against the provision of the Act.

What Happened to Remington

In its ruling, the Supreme Court indicated that allowing the lawsuit to proceed would not be crippling to the PLCAA. The claim only targets one specific manufacturer marketing one specific type of firearm in an unlawful manner that promotes its appropriateness for use in illegal assaults.

Additionally, the court deemed that the deceptive advertising of guns is not traditionally regulated by unfair trade practices and consumer protection statutes. As a result, regulating marketing practices that threaten the public’s health, safety, and morals falls within the state’s policing mandate. It further stated that CUTPA falls within the scope of predicate statutes that strip PLCAA immunity from gun dealers and manufacturers alleged to have gone against the provisions of the state law.

The Supreme Court concluded that the plaintiffs in the suit were well within their legal rights to plead a claim under both CUTPA and PLCAA, and therefore, deserved the opportunity to prove their allegations of wrongful marketing.

In 2018 Remington filed for Chapter 11 bankruptcy after several years of litigating suits brought by the surviving kin of the 2012 Sandy Hook mass shooting. The lawsuit-related costs resulting from having to buy out investors and finance legal representation took a toll on the firm’s finances. Remington was able to offload an estimated $775 million it had accrued in unpaid debt.

In July 2020, the gun maker filed its second bankruptcy claim. This time, the company’s decline was attributed to mismanagement.

While the initial bankruptcy filing preserved the Remington lawsuit that the families of the victims launched in the school shooting, it was not immediately clear how the second filing would affect the progression of the case. The plaintiffs expressed concerns about the potential loss of the benefits, stating that the gun manufacturer should not be allowed to use bankruptcy as a crutch to escape financial liability.

Who Bought Remington Arms in 2020

Who Bought Remington Arms
Image Source: Unsplash

Despite the company’s slight upsurge due to increased demand for firearms during the COVID-19 pandemic, it was still struggling financially. As a result, various segments of the firm were hived off and sold to different buyers in a bankruptcy auction, injecting a $155 million cash inflow, which went towards helping the firm pay off its outstanding debt.

The largest purchase in the auction was made by Vista Outdoor Brands, which bought the Lonoke ammunition division for $81.4 million. Roundhill Group LLC spent $13 million on some segments of the firearm manufacturing division, while Sierra Bullets Inc. spent $30.5 million on another segment of the ammunition section of the business.

Remington’s financial troubles did not start recently. The company’s debt load dates back to the early 2000s when sales hit an all-time low. Cerberus Capital Management stepped in in 2007, taking ownership of the company after it failed to report a profit for almost a decade.

At the time, the capital management firm was looking to diversify its interests in the firearms industry by buying weapons-related companies and pooling them under the Freedom Group umbrella.

If you were wondering who owns the Freedom Group, the short answer is Cereberus. Some of the other companies owned by Cerberus Capital Management included ACC, Tapco, H&R, DPMS, Bushmaster, Marlin, and several others, turning it into the biggest firearms player in the industry at the time.

Later, the company decided to branch off into outdoor lifestyle products under the brand name Remington. At that point, Cerberus decided to change the subsidiary’s name to Remington Outdoor Company from the previous Freedom Group. The name change was done for two main reasons.

The first was to distance the private equity firm and its brand from the 2012 events surrounding the Sandy Hook school shooting. The second was for the umbrella company to get as much mileage as it could from the Remington brand.

Is Remington Still Making Guns

When Cerberus bought Remington in 2007, it also assumed the $252 million debt it had accrued by that time. When the gun maker filed for bankruptcy in 2018, a group of creditors took control of the business, effectively stripping Cerberus of its ownership in the firm. One of these creditors was JPMorgan Chase.

The 2020 bankruptcy auction resulted in the division of Remington’s assets and the brand, all of which are now owned by different companies including, Roundhill Group LLC, Vista Outdoors, JJE Capital Holdings, Franklin Armory, Ruger, and Sierra Bullets. These companies will continue to manufacture Remington guns under their respective companies.

Sandy Hook Lawsuit Settlement

In July 2021, attorneys for the now-bankrupt Remington tabled a $33 million settlement to some of the families of the victims who died in the Sandy Hook Elementary School shooting. Nine of the plaintiffs in the lawsuit are each being offered close to $3.7 million.

The initial court documents indicated that the wrongful death settlements were projected to reach $225 million, excluding punitive damages. Attorneys acting on behalf of the plaintiffs indicated that the amount on the table fell short of what the families were expecting. At the time of this publication, the plaintiffs requested time to consult widely before deciding on their next steps regarding the settlement offer.

The Way Forward

Can gun manufacturers be sued? Yes, they can, but the broad immunity that the PLCAA affords them makes it extremely difficult to bring civil lawsuits against them. New York is set to change all that.

The state legislature recently passed a first-of-its-kind bill designed to hold firearm manufacturers and dealers liable for the irresponsible and improper advertising of guns. The proposed law seeks to classify these types of marketing activities as a nuisance to curb the state’s ever-rising levels of gun violence. New Jersey has also proposed similar legislation.

The move came months after President Biden voiced his support over the proposal to repeal the 2005 PLCAA. The President stated that doing so would give victims and their loved ones an opportunity to hold gun manufacturers accountable for their role in the growing incidents of gun violence currently plaguing many states across the country.

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can you sue a country

Can You Sue a Country?

Legal AssistantCriminal Law, International Law, Personal Injury Law

In a 2019 ruling, a federal judge ordered Iran to pay Jason Rezaian and his kin almost $180 million in damages. The Washington Post reporter took to the courts to sue the Middle Eastern country for his unlawful detention, imprisonment, physical abuse, and the psychological torture he endured at the hands of Iranian authorities.

This ruling raised many questions, key among which was – Can you sue a country, especially if you’re doing it in an entirely different nation-state? Here’s what you need to know about it.

Foreign Sovereign Immunities Act

The 1976 Foreign Sovereign Immunities Act, or FSIA for short, is the legal framework that allows individuals or organizations to bring a lawsuit against foreign states or their agencies. The provisions of the Act set out a series of procedures to be followed when suing a foreign nation and how assets are to be attached for international debt recovery purposes.

While the spirit of the Act is to grant immunity to foreign countries against litigation, there are certain exceptions where this protection does not apply.

What Is Foreign Sovereign Immunity

Sovereign immunity is an international law doctrine that grants immunity to a foreign country against the jurisdiction of the courts in a foreign state. Until recent years, there weren’t many exceptions to this rule. It was almost entirely impossible for governments, their agencies, private organizations, or even individuals to sue foreign nations. This isn’t the case anymore.

As more governments engaged in commercial transactions with public and private entities alike, sovereign immunity gave them an unfair advantage. FSIA was created to provide exceptions where foreign governments would not be able to hide behind this veil when disagreements arise.

These exceptions allowed private parties to seek judicial remedies, including enforcing arbitration contracts in their commercial dealings with foreign states.

FSIA Exceptions

FSIA provides several exceptions to a foreign state’s immunity from US courts. Here’s a list of some notable ones.

  • When a foreign country implicitly or explicitly waives its immunity
  • When a foreign state conducts commercial activities in, or when those activities directly affect the United States
  • When there’s a dispute over property taken in violation of international law
  • When there’s a dispute over the rights to property – immovable or otherwise – situated in the United States acquired by gift or succession
  • When monetary damages against a foreign country are sought for loss of or damage to property, death, or personal injury resulting from its tortious conduct in the United States
  • When enforcing an arbitration agreement between a foreign and a private entity
  • When there’s an admiralty lawsuit based on commercial activities enforcing a maritime lien on cargo or a vessel of the foreign country
  • When monetary damages against a foreign country are sought for death or personal injury resulting from acts of hostage-taking, extrajudicial execution, torture, aircraft sabotage, or material/resource support to such acts, if the country in question is a designated sponsor of terrorism

With that in mind, can an individual sue a country? The short answer is – yes, based on the exceptions provided by the Foreign Sovereign Immunities Act.

In the case of the Republic of Argentina v Weltover, the company filed a suit on the basis that Argentina had defaulted on the $1.3 million worth of bonds it had issued. The case was brought in a New York federal court on the grounds of breach of contract, based on the commercial activities exception created by FSIA. The bonds were commercial in nature, and the activities had a direct impact on the United States.

Can you sue a company in another country? Again, the answer is – yes, provided you can demonstrate that the harm you suffered was the direct result of activities that fall outside the scope of normal and legitimate commercial dealings. The provisions of FSIA apply to both foreign governments and foreign organizations alike.

Vatican Immunity Appeal Catholic Church Child Abuse Cases

In 2002, a plaintiff – known only as John Doe – filed a lawsuit against the Vatican alleging several counts of sexual abuse in his teenage years by a Roman Catholic priest identified as Fr. Andrew Ronan.

The Vatican appealed based on sovereign immunity under FSIA, which the US Supreme Court rejected, allowing the suit to proceed. In its decision, the Court cited an exception to the law stating that the priest was an employee of the Vatican. As a result, his actions fell within the scope of his employment, making the Vatican liable in the suit.

Justice Against Sponsors of Terrorism Act

In September 2016, Congress enacted the Justice Against Sponsors of Terrorism Act, or JASTA for short. Earlier that month, President Obama had vetoed the Act, but both the US Senate and House of Representatives voted overwhelmingly to override that veto, effectively making the Act law.

Before discussing why JASTA is significant, it’s important to provide a bit of context into how the law ties into the concept of foreign sovereign immunity. As mentioned before, the whole premise of sovereign immunity is that a country’s government, its agencies, and officials cannot be sued in the courts of another nation for actions they took in their sovereign capacity.

However, as seen in the previous section, the Foreign Sovereign Immunities Act was created to provide exceptions to the doctrine. JASTA was drafted to address the unfortunate events of September 11, 2001, to assist the victims and families in seeking legal redress against the Saudi Arabia government.

Nonetheless, the provisions of JASTA weren’t just limited to lawsuits against the Saudi nation. It was also enacted to facilitate potential actions by US courts against foreign states that qualify for legal liability. The Act further waters down the doctrine of sovereign immunity by introducing exceptions in situations involving acts of international terrorism in the US.

It’s important to note that JASTA doesn’t create a liability against foreign nationals for the actions taken by their home governments. Instead, the Act is meant to address lawsuits brought by US citizens against culpable foreign nations. It is designed to allow civil litigants to seek relief against foreign countries.

Exceptions to Sovereign Immunity Introduced by JASTA

The US already has several exceptions to sovereign immunity. One of them includes seeking monetary damages against a foreign country for death or personal injury resulting from acts of hostage-taking, extrajudicial execution, torture, aircraft sabotage, or material/resource support to such acts if the country in question is a designated sponsor of terrorism.

JASTA takes this particular exception one step further. Federal law states that any US citizen who is injured or whose property or business is harmed by an act of international terrorism, they or their surviving kin can file a lawsuit in any US district court for damages amounting to three times the cost of the losses they incurred, including the cost of the suit. This type of lawsuit is referred to as an International Terrorism Suit.

Before the enactment of JASTA, a US citizen could not bring an International Terrorism Suit against a foreign government, agency, employee, or officer of a foreign state acting in their sovereign capacity. JASTA changed all that.

Two of the most notable amendments it made to sovereign immunity law are:

  1. A US citizen can bring an International Terrorism Suit against a foreign government if the state in question doesn’t have immunity by virtue of (2) below.
  2. A US court may hear a case involving monetary damages sought against a foreign country for death, physical injury, or damage to property that occurs in the US as a result of:
    1. An act of international terrorism against the United States
    1. Tortious conduct of the foreign government, or any agency, employee, or officer of the foreign state, while performing duties that fall within the scope of their employment or mandate, regardless of where that tortious conduct occurs

It’s important to note that foreign nations don’t lose their sovereign immunity on the basis of what JASTA describes as “mere negligence.” The law requires the government, its agencies, employees, or officers to have carried out actions that go beyond that.

Antiterrorism and Effective Death Penalty Act

Antiterrorism and Effective Death Penalty Act

The 1996 Antiterrorism and Effective Death Penalty Act, or AEDPA for short, was enacted as one of several pieces of reform legislation designed to “get tough on crime.” The law was passed in response to a public outcry that prisoners were abusing the writ of habeas corpus by filing multiple petitions challenging their convictions.

These petitions were often filed on frivolous grounds, with several of them being lodged years after the convictions were finalized.

The writ of habeas corpus allows imprisoned individuals to use it as the last resort when seeking relief from the criminal sentences they receive. It is particularly important for those facing the death penalty as it is the last line of defense standing between life and death.

The provisions of AEDPA are designed to expedite the legal process from sentencing to execution. It significantly limits the avenues through which prisoners on death row or otherwise can seek using the “Great Writ.” The law also includes several other restrictive provisions that permit eligible states to adopt stricter sets of limitations.

Some of those “opt-in” provisions require a petitioner to file a habeas corpus application within an unrealistic and unattainable timeframe; other provisions of the Act strip federal courts of the power to reverse convictions. Prisoners in states that adopt those provisions will have no chance of getting their convictions overturned once their petitions reach the federal habeas review stage.

Antiterrorism Provisions of AEDPA

Although the Act is controversial for the changes and limitations it imposed on the writ of habeas corpus, it does have several provisions designed to deter terrorism and provide justice to victims of such attacks.

Here are some of the notable antiterrorism provisions of the legislation:

  • Designate foreign terrorist organizations and place funding limitations
  • Implement changes in criminal procedures and increase penalties for individuals involved in terrorist offenses
  • Jurisdiction clarifications and changes in funding for terror-threat-related law enforcement activities
  • Place limitations on chemical, biological, and nuclear weapons
  • Provide restitution for victims of international terrorism attacks
  • Remove or exclude alien terrorists and modify asylum procedures

Perhaps the biggest take-home is that AEDPA removed legal immunity in cases where foreign states were found to be sponsors of terrorism. It effectively gave US citizens the right to sue foreign state terrorism sponsors. Unfortunately, however, the Act did not include a provision for the collection of damages.

The Flatow Amendment

As a result of the gap left behind by AEDPA, Congress later enacted what is commonly referred to as the Flatow Amendment. This crucial change in legislation now granted US courts the power to award monetary damages to victims of foreign state-sponsored terrorist acts. The amendment states, in part, that foreign countries that sponsor terrorism would be liable for death and personal injury caused by terror activities.

What does this mean for victims of terror attacks? Can an individual sue a country that sponsors a terrorist attack? The answer to this question is – yes, if they can demonstrate the injury they suffered was as a result of terrorist activity.

National Defense Authorization Act for Fiscal Year 2008

In January 2008, President George W. Bush signed into law the National Defense Authorization Act for Fiscal Year 2008. The objective of the legislation was to authorize funding for the US defense forces, national-security programs, military construction, and US interests overseas.

The NDAA 2008 also expanded the scope of the foreign state immunity exceptions provided in the Foreign Sovereign Immunities Act. The creation of this law was set in motion after a 2004 DC Circuit Court ruling that foreign nations known to be designated sponsors of terrorism could not be held liable for what it termed as “private causes of action” under the provisions of FSIA – even with the Flatow Amendment.

The exceptions that were added to the Act include hostage-taking, extrajudicial execution, torture, aircraft sabotage, or material/resource support to such acts. These exceptions ensured that foreign countries that support state-sponsored terrorist activities were held liable for the actions of their agents and officials in what would be deemed as “private causes.”

Although foreign nations enjoy sovereign immunity, there are exceptions to the rule. Can you sue a country? Yes, you can – if its actions fall outside the scope of legitimate commercial and state-sponsored activities.

If you need legal advice on international debt recovery, international dispute resolution, or foreign litigation and arbitration, chat online with an experienced Laws101 attorney right now.

Builder working on top

How Long Is a Builder Liable for His Work?

Legal AssistantBusiness Law, Personal Injury Law

You’ve recently moved into your new home. Your local municipality, city, or town had a building inspector check that everything was built to code before issuing a certificate of occupancy. As far as you were concerned, that meant your new home was safe for occupation at the very minimum.

Unfortunately, this may not always be the case. An inspection certificate does not guarantee that everything in a new home will be in good working order. You’ll need at least a year’s worth of changing seasons to discover whether or not a brand new house is free from defects.

How long is a builder liable for his work? Can you sue a city building inspector for issuing a certificate of occupancy once you discover defects in your newly constructed house? Here’s everything you need to know.

What Constitutes a Construction Defect

It’s important to understand some critical legal concepts that will come in handy when evaluating liability. “Construction defects” happens to be one of them.

There are generally two principal types of defects you need to be aware of:

  1. Those that occur in a commercial or residential building’s design phase
  2. Those that occur in the construction phase

As a general rule, the building engineer or architect would be responsible for any defects in a construction project’s design. The builder, who is usually the contractor or subcontractor, would be responsible for the defects that occur if they fail to carry out the project based on the design specifications provided by the building engineer and architect.

The same applies to defects that arise when they fail to adhere to the accepted industry standards. Some of the issues that may result from construction defects include:

  • Incurring additional costs to rectify the problem
  • Injuries to the construction workers on site
  • Injuries to future occupants of the building, visitors to the property, or pedestrians walking past the building

Contracts

The laws governing construction defects all revolve around the concept of contracts. Any single building project will have several contracts in force. For instance:

  • The building owner enters into a contractual agreement with an architect to come up with the design for the property or renovation
  • The architect enters into a contract with a building engineer to ensure the designs they develop comply with engineering code and standards
  • The building owner gets into an agreement with a general contractor to execute the plans
  • The general contractor enters into contractual agreements with dozens of subcontractors to help with the plan implementation

Each one of those contracts would have clauses pointing to the party or parties responsible for specific types of defects. As a result, all parties have to pay close attention to the liability provisions in the contract during the negotiation phase.

As a general rule, liability usually goes down the chain. This means that the building owner lays blame on the general contractor in the event of any defects. The general contractor may then lay blame on the subcontractor for the defects.

The Concept of Indemnification

This process of passing liability down the chain is generally done in line with indemnification provisions. Here’s what that means.

If a subcontractor “indemnifies” a general contractor for certain defects liabilities, they (the subcontractor) would have to pay for any judgment rendered against the general contractor in the event of a lawsuit.

To cushion themselves against this eventuality, subcontractors often take out insurance policies to protect against potential defects liabilities. As a result, it is the insurance companies that usually pay for construction defects in liability lawsuits.

How Long Is a Builder Liable for His Work – Call Back Warranties

Construction contracts usually have a call-back warranty that details the duration during which a property owner can “call back” a builder to rectify any work that may not have been done correctly. In most cases, the call-back period is usually one year, although different contracts may specify longer or shorter durations.

That being said, call-back warranties are often one of the most notoriously misunderstood provisions in the construction sector. Most builders believe that they’re absolved from all potential defects liabilities that may arise beyond that period once they pass the one-year mark. This is a gross misinterpretation of how call-back provisions work.

In the event of a construction defect, the call-back warranty details the duties and obligations of each party in the contract. The property owner has the right to notify the contractor of any issues within the development and allow them to carry out repairs on their own accord.

On the flip side, once notified, the contractor has the right to repair the defect in question before the owner takes matters into their own hands and embarks on (more expensive) measures to get the faults fixed.

Defects That Fall Outside the Call Back Duration

Suppose you contracted a builder to install a new roof in your home. 10 months later, you notice a leak due to an improperly sealed skylight. Since you noticed the defect within the standard one-year call-back period, the contractual obligations will still be in force. You’ll need to inform the contractor of the leak in your roof and allow them to return to the site to repair it.

At this point, the contractor can proceed in one of three ways:

  1. They could show up to your home and repair the leaking roof
  2. They could inspect the roof and decide to dispute it, perhaps blaming you for the leak
  3. They could ignore the notice you gave them altogether

Now, this is the point where things may get a little sticky. If the contractor decides to ignore your notice, you’ll be left with no choice but to fix the defect at your own cost. This may involve finding another contractor to carry out the repairs, most likely at a higher cost.

Once they complete the work, you can sue the original contractor in small claims court to recover the costs you incurred by retaining the new contractor. On the other hand, if you discovered the leak after the call-back period elapsed, you are effectively released from the obligation to notify the contractor of the problem. As a result, you can go ahead and seek the same legal remedy outlined above.

The call-back period doesn’t apply to all warranties under the contract. It only applies to the specific provision of the contract – the right to cure.

This right only refers to the owner’s obligation to notify the contractor of the defect. It affords them an opportunity to rectify their mistakes.

Just because the call-back period has elapsed doesn’t mean the contractor is off the hook. They are still liable for their defective work, meaning that a property owner can still sue them for damages over breach of contract, accidents, or bodily injuries resulting from the defect.

The statute of limitations for such claims ranges anywhere between 3 and 10 years in most states across the country.

Are Home Inspectors Liable for Anything

Are Home Inspectors Liable for Anything

First off, what does a building inspector do? Their work revolves around examining a property’s basic structural system, plumbing, electrical system, mechanical systems, and other critical parts of residential or commercial developments to confirm that everything is in good working order.

It is the responsibility of a residential or commercial building inspector to identify any material defects in the property in question and indicate them in their inspection report. A material defect is anything that affects the safety, occupancy/livability, or value of the property.

Can You Sue a City Building Inspector

The short answer is – yes, you can. A building code inspector is required to conduct residential and commercial inspections in a manner that would be considered “consistent with the existing industry standards.” That’s part of their job description.

That being said, if they fail to identify a critical material defect, which goes on to affect the building itself or its occupants, the residential or commercial building inspector can be sued for damages arising from their negligence.

Depending on the party that employed their services, a building code inspector can also be sued for breach of contract.

Keep in mind that the law prohibits building inspectors from:

  • Altering the findings in their report based on financial incentives
  • Inspecting properties their employer has an interest in
  • Inspecting properties that they have an interest in
  • Making repairs to the property that they are inspecting
  • Waiving contract liability with any party in the transaction

Condo HOA

More often than not, any residential community will usually have a homeowner’s association (HOA). This structure serves to ensure that the neighborhood maintains a clean and cohesive living atmosphere.

Membership to a condo HOA is mandatory for all property owners within the condominium. However, there are some associations where membership may be voluntary. In such instances, the laws and regulations in these HOAs differ from those that require mandatory membership.

What Do Condo HOA Fees Cover

Condominium associations collect fees from all unit owners within the development. This monthly assessment usually maintains the shared living spaces, enforcing the applicable restrictions within a particular residential area, addressing safety and legal issues within the development, and anything else that would serve the interests of the condo residents.

HOAs not only have the right to assess monthly fees; they can also levy fines and liens on members that go against the provisions of the association’s rules and bylaws.

Condo Association Liability

A condo association is a lot like any other homeowners association. It sets regulations and restrictions that building tenants are required to adhere to.

Every condo association has an elected board whose leadership roles revolve around meeting the responsibilities and carrying out the association’s functions. This responsibility comes with several strings attached.

If something goes awry and a tenant or visitor gets injured in a common area, the condo association is held liable. The same thing applies if shared living spaces get damaged.

Condo Board Liability

As long as a claimant can demonstrate impropriety, the directors and officials of the condo association can be held liable for damages to and accidents or injuries that occur on the property. Even if the board members are legally at fault, the costs of fighting such disputes in court are significantly higher than what typical insurance companies would cover.

Some of the most common causes of condo board liability include:

  • Breach of contract
  • Discrimination
  • Funds misuse or misappropriation
  • Negligence
  • Wrongful foreclosure

In addition to the liability placed on the association, there are two other types of legal responsibilities following property or bodily injury that occurs at a residential condominium building.

  • Unit Owner Liability – When property damage or bodily injury is the direct result of the condo owner’s negligence
  • Joint Liability – When both the condo association and unit owner are jointly responsible for property damage and bodily injury that occurs on the property

When matters of joint liability arise, court involvement is often necessary to address the proportion of liability assigned to each party.

Florida Condo Collapse

Contractors were scheduled to carry out major roof repairs on the Champlain Towers South condominium in Surfside, Florida, on the morning of June 24, 2021. In an unfortunate turn of events, the building collapsed at around 1.30 a.m. earlier that morning, hours before the workers were supposed to show up on-site. At the time of publication, the death toll had risen to 97, with at least a dozen people unaccounted for.

Survivors and victims’ family members have taken to court to sue, among others, the condo association, the project architects ( SD Architects), and the structural engineering firm (Morabito Consultants) for failing to warn residents of the building’s potential collapse. Others have filed lawsuits against the condo HOA on the grounds that failed maintenance was responsible for the June 24th disaster.

The Bottom Line

How long is a builder liable for his work? Depending on the state you reside in, the statute of limitations could be anywhere between 3 and 10 years. If you’ve suffered injuries due to a construction defect, get in touch with a personal injury attorney as soon as you can to explore all the legal remedies available to you.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

fire is burning at the ExxonMobil Olefins Plant

Worst Industrial Accidents in Texas

Legal AssistantPersonal Injury Law, Regulatory Law

They say everything’s bigger in Texas – and with good reason. The Lone Star state is the second-largest in the country after Alaska, and with a resident population of roughly 29 million, it also happens to be the second most populous state in the nation.

Boasting a GDP of $1.7 trillion, Texas has one of the most advanced economies in the United States and is the single largest exporter of goods in the country. On a global scale, the Texas economy ranks the 10th largest in the world.

With an economy of that magnitude, the industries operating within the state are equally as massive. As a result, when accidents occur, the workers bear the brunt of it all. This article explores the worst industrial accidents of all time in Texas.

Main Causes of Industrial Accidents

The term “industrial accident” generally refers to an accident that an industrial employee suffers in the course of performing their day-to-day tasks. It also refers to an accident that occurs in an industrial company, affecting the people working and living within a large geographic zone.

The major cause of industrial accidents is negligence. In Texas law, an injured party can pursue monetary compensation (damages) resulting from the negligence of another party. Plaintiffs in personal injury claims in Texas have to demonstrate five key elements to prove negligence.

  • Duty – The plaintiff will have to demonstrate that the defendant was obligated to act (or not act) in a particular manner.
  • Breach of duty – The defendant failed in their responsibility to act (or not act) in the manner in question.
  • Cause in fact – The injury suffered by the plaintiff was the direct result of the defendant’s breach of duty.
  • Proximate cause – This addresses the question of whether a “reasonable person” would find the breach of duty obvious.
  • Damages – The plaintiff has to provide factual proof of the hardship they suffered as a result of the injuries and the compensation they are entitled to.

Once an injured party is able to establish each of these five elements, the Texas civil justice system will be able to award damages to the plaintiff in a lawsuit. Keep in mind that the Lone Star state adopts a modified comparative fault system. According to this standard, the courts apportion fault proportionally when awarding damages to the victim.

Worst Industrial Accidents in Texas

Firefighters battle blaze after explosion at the ExxonMobil Baytown Olefins chemical plant

With that brief background in mind, here’s an overview of some of the deadliest industrial disasters in the Lone Star state.

The Texas Chemical Plant Accident at LyondellBasell La Porte

One of the most recent chemical plant accidents occurred in July 2021 at LyondellBasell in La Porte, killing two people and leaving 42 others injured. According to the company chemical plant operator and other site officials, the accident was due to a leak that released approximately 100,000 pounds of acetic acid into the atmosphere.

While officials are yet to identify the root cause of the Texas chemical plant leak, a lawsuit filed by one of the victims alleges that the company was made aware of the leak earlier in the day but failed to take the appropriate steps to have it sealed before the fateful incident later that night.

In another suit, one of the victims cited the company’s failure to properly train the workers on safety procedures, particularly those stationed in the chemical plant zone. It also listed the failure to provide a safe working environment and the lack of adequate safety equipment as contributory causes of the industrial accident.

The injuries sustained by the victims include physical bodily harm as they scampered to safety and respiratory injuries from inhaling the toxic fumes emanating from the Texas chemical plant leak.

The Texas City Disaster

In April 1947, a ship containing 2,300 tons of ammonium nitrate caught fire, causing one of the biggest non-nuclear explosions in the country’s history. Five hundred eighty-one people lost their lives in the accident, with as many as 4,000 others suffering grievous injuries. One hundred thirteen victims were marked “missing,” and their remains were never found.

Eight thousand four hundred eighty-five victims directly and indirectly linked to the Texas City Disaster filed a class-action suit against the US government for compensation.

The Phillips Disaster

The phillips disaster 1989

In October 1989, several explosions were witnessed at the Houston Chemical Complex facility located close to the Houston Ship Channel in Pasadena, Texas. The fire that resulted from the initial blast took 10 hours to put out. Unfortunately, 23 employees were killed in the explosion, with 314 others suffering injuries ranging from minor to major.

Investigations into the incident revealed that the detonations occurred when highly flammable process gases were released into the atmosphere from one of the reactors in the plant. The reactors were used in the production of high-density polyethylene, a key ingredient in the manufacture of plastic containers. Phillips paid a $4 million fine for OSHA-related violations.

The Texas City Refinery Explosion

In March 2005, an explosion occurred at the Texas City Refinery, resulting in 15 fatalities and 170+ injuries. The blast that took place in the state’s second-largest refinery was attributed to a host of organizational shortcomings and a multitude of technical failures.

The poor communication between the refinery employees, alongside the apparent lack of supervision and training, were found to be the root causes of the deadly explosion.

The West Fertilizer Plant Blast

In April 2013, ammonium nitrate in storage at the West Fertilizer Company plant caught fire and exploded, killing 15 people and injuring 160 others. The explosion, which occurred in West, Texas, damaged and destroyed more than 150 buildings in the area. It later emerged that OSHA officials had last inspected the fertilizer plant in 1985.

If you get injured in an industrial accident in Texas, you can file for workers’ compensation. According to the Texas Labor Code, you would be entitled to income, medical, vocational rehabilitation, and death benefits to your next of kin.

If you are not covered under workers’ compensation, ensure you consult with an experienced industrial accident lawyer to get the compensation you deserve.

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Writing note showing Hipaa

What Is HIPAA Law?

Legal AssistantAdministrative Law, Consumer Law, Regulatory Law, Resources

Several federal laws govern health insurance. The Health Insurance Portability and Accountability Act (HIPAA) happens to be one of them. The Act provides a wide range of protections to millions of workers in the US who have some type of underlying health condition that exposes them to the risk of discrimination, limitation, or exclusion in group health coverage.

More often than not, when people talk about the HIPAA law, they are usually referring to the Privacy Rule provision that was established in 2003. However, this is just one facet of the broader law that Congress initially passed in 1996.

So, what is HIPAA law, and why does it matter? Here’s everything you need to know.

What Does HIPAA Stand For

HIPAA is short for the Health Insurance Portability and Accountability Act. The law mainly applies to employer-based health coverage. It is designed to protect you if you have an underlying health characteristic or preexisting medical condition that an insurance company would deem undesirable when it comes to providing you with health insurance.

Additionally, the law also requires doctors, other healthcare professionals, and service providers to ensure that patient medical records are kept confidential.

Today, many of the provisions of HIPAA are no longer required because of the protections provided by the newer 2010 Affordable Health Care Act. Nonetheless, if you are currently on an older healthcare plan, you and your family can still benefit from the protections HIPAA offers.

How Does HIPAA Treat Preexisting Conditions

HIPAA defines a preexisting medical condition as a health characteristic for which you have received a medical diagnosis, treatment, care, or advice in the six-month period leading up to your enrolment in an existing insurance plan.

The law confines insurance providers to a six-month “look-back” limit as far as identifying preexisting conditions goes. It essentially means that a health insurer cannot exclude coverage for a condition you received a medical diagnosis, treatment, care, or advice longer than six months before enrolling in your current plan.

On the other hand, if the condition occurred within the look-back window, a healthcare provider can exclude it from coverage.

The whole premise of HIPAA is to regulate how health insurance providers operate by placing restrictions on the number of ways available to them to exclude coverage for certain underlying medical conditions. Here are some of the notable protections HIPAA provides to American workers.

Protections for Pregnant Women

Before HIPAA was enacted, pregnancy was considered a preexisting condition if you enrolled in a new healthcare plan. This is no longer the case. Pregnant women can now switch to a different group health plan without running the risk of being excluded from coverage.

Protections for Newborn and Adopted Children

Before the enactment of HIPAA, preexisting exclusions applied to newborn children and minors who were adopted or put up for adoption. The provisions of the Act now allow newborns, adopted children, or children put up for adoption to be entered into the health plan provided that it is done within 30 days of birth, adoption, or adoption placement.

Genetic Information

The Act bars health insurance providers from treating genetic information as a preexisting condition if there is no accompanying diagnosis. Additional protections under state law may be available to individuals on a plan provided via a health maintenance organization or private insurance company.

Shorter Exclusion Periods

Individuals with preexisting medical conditions on group coverage can now enjoy shorter exclusion periods. The maximum exclusion duration is typically 12 months from the date of enrolment in your existing plan.

Protections When Changing Jobs

If changing jobs results in switching from one health plan to a different one, the provisions of HIPAA protect you from any new preexisting condition exclusions, provided that the break within your coverage is no more than 63 days.

Protections Against Discrimination

HIPAA prohibits insurance providers from discrimination based on any health-related characteristics a patient may have. Health insurers cannot exclude you from coverage or charge you more because of your existing health status.

HIPAA Privacy Rule

In most cases, when people talk about HIPAA compliance, they are generally referring to the provisions of the Act’s Privacy Rule. This federal law prohibits healthcare providers, businesses, and medical professionals, including health insurers, laboratories, pharmacies, administrative staff, and so forth, from disclosing your information to third parties without your authorization.

Congress enacted the Privacy Rule after the sale of country singer Tammy Wynette’s medical records to the tabloids and the public revelation of tennis star Arthur Ashe’s HIV status. The two incidents raised public concerns about the safety of their genetic information, particularly because the internet made it easier for privacy breaches to occur.

Why Is the Privacy Rule Important

HIPAA’s Privacy Rules give individuals the right to control the way their health information is disclosed to third parties. It’s important to note that HIPAA doesn’t protect all kinds of health data. It applies to medical information held by specific kinds of health care providers.

For instance, the Act doesn’t cover the data stored on your Fitbit or Apple Watch. The same applies to the genetic data entered on DNA match websites like Ancestry.com. While the privacy disclosures required on such apps may be governed by other laws, HIPAA does not protect that information.

What Is Protected Health Information

HIPAA defines protected health information (PHI) as personally identifiable information related to an individual’s present, past, or future health status. This information can only be collected, created, maintained, or transmitted by a HIPAA-covered entity, for use in healthcare operations and the provision or payment of healthcare services.

Examples of protected health information include:

  • Demographic information such as gender, ethnicity, and birth dates
  • Diagnostic information
  • Medical test results
  • National identification numbers
  • Prescription information
  • Treatment information
  • Emergency contact information

PHI generally refers to physical records, while ePHI refers to health records created, stored, or transmitted in electronic format.

An important distinction to make here is that protected health information doesn’t relate to data contained in employment or educational repositories, even for HIPAA-covered entities in their capacities as employers. Instead, it only applies to the health information on patients or members of a health plan.

The rule of thumb when determining whether or not a piece of information is considered PHI is if the data in question can be used to identify the individual to whom it belongs. If the health data is stripped of all identifiers, the information is no longer considered protected, and HIPAA’s Privacy Rule no longer applies.

What Is a HIPAA Violation

What Is a HIPAA Violation

A HIPAA violation occurs when the access, acquisition, disclosure, or use of PHI results in a substantial personal risk to the patient.

There are two categories of HIPAA violations:

  • Criminal, where the individual committed the violation with malicious intent. This attracts stiff penalties, including fines, jail time, or both.
  •  Civil, where the individual committed the violation without malicious intent, mainly as a result of negligence or ignorance. Penalties consist of fines ranging between $100 and $50,000 for each count of the violation.

Some examples of HIPAA violations include getting hacked, phishing attacks, lack of encryption, loss/theft of company devices, unauthorized access, improper PHI disposal, unsecured access, among others.

What Is Health Insurance Portability

Title I of HIPAA grants individuals certain rights pertaining to how insurance and health plan providers treat preexisting conditions. Title I also contains provisions related to portability rights.

Health insurance portability refers to an individual’s option to retain their health plan benefits when changing employers. HIPAA provisions give an employee the right to be provided with health coverage without exclusions, provided they meet certain enrollment criteria. These portability requirements are detailed below.

Title I:

  • Requires health-plan and insurance providers to provide coverage and limit the restrictions placed on benefits for preexisting conditions. A group health plan can only decline coverage related to preexisting conditions for 12 months after an individual’s enrollment.
  • Requires group health plans to take into account the duration of coverage an individual had before enrolling into a new plan, inclusive of any breaks. That way, workers can limit the exclusion period related to their preexisting conditions.
  • Requires the application of “creditable coverage” to the exclusion periods related to preexisting conditions. Creditable coverage refers to previous health plans that meet certain criteria. Health-plan and insurance providers can apply it as a day-for-day credit against that of the exclusion period for a preexisting condition when an employee migrates from one health plan to another.
  • Requires the application of day-for-day creditable coverage by health plan providers to minimize exclusions on preexisting conditions, provided the individual’s break in coverage is no more than 63 days.
  • Allows group health plans to apply the maximum length of exclusion for a preexisting condition if the individual had a “significant break” in coverage during their transition from one group plan to the other. Title I defines a “significant break” as 63 days or more.
  • Requires health insurance providers to offer policies with no exclusions to employees exiting from group health plans that had creditable coverage spanning more than 18 months.

HIPAA’s portability requirement as provided by Title I means that insurers are obligated to provide policies without exclusion to individuals transitioning from one job to another, allowing them to retain their right to be enrolled in group health plans.

Who Enforces HIPAA and Who Does It Apply To

There is often a lot of confusion over who HIPAA applies to since the Privacy Rule – which requires healthcare entities to protect personally identifiable health information for every individual – forms a very small section of the entire law.

First, it’s important to understand that the Health Insurance Portability and Accountability Act is a federal law. The Department of Health and Human Services (HHS) is the federal agency responsible for enforcing it.

With that in mind, who does HIPAA apply to? Broadly speaking, the short answer would be – everybody in the United States. Nonetheless, the scope of HIPAA for healthcare providers is a lot smaller. According to the HHS, the rules set out by HIPAA apply to any entity and business associate covered by the Act.

A covered entity is any healthcare provider whose operations consist of electronic transactions. Examples of covered entities include healthcare clearinghouses and health plans.

On the other hand, a business associate, as defined by the Act, is an individual conducting business with covered entities and whose operations include exposure or access to protected health information from the entities in question.

HIPAA and Telehealth

Does HIPAA cover telehealth? Yes, it does.

The HIPAA guidelines for telehealth apply to any healthcare entity or medical professional that offers remote services to patients outside their designated health facility. HIPAA compliant telehealth requires secure channels of communications between patients and their providers that meet the following criteria.

  • ePHI should only be accessible to authorized users
  • The integrity of ePHI should be protected by secure systems of communication
  • A communication monitoring system should be implemented to prevent malicious or accidental ePHI breaches

Is FaceTime HIPAA Compliant for Telehealth

No, it’s not. Using unsecured channels of communication such as FaceTime, Skype, Zoom, email, or SMS goes against the HIPAA guidelines for telehealth. These should not be used for ePHI communications. Here’s why.

When electronic-based protected health information is created by a covered entity (healthcare organization) or healthcare professional, third-party providers store this information. The covered entity and the third-party service need to have a Business Associate Agreement (BAA) in force, detailing the methods used to store and protect the integrity of the data. It also contains provisions for regular security audits.

Copies of communications containing personally identifiable health information sent via FaceTime, Skype, Zoom, email, or SMS are stored on the service provider’s servers. To comply with the HIPAA guidelines for telehealth, a covered entity would need to have BAAs with each of these third-party providers (such as Apple Inc., Skype, etc.).

Since no agreements exist with these providers, the covered entity would be liable for civil action should a breach result in the unauthorized disclosure of ePHI.

Get Help From an Attorney

Knowing whether your HIPAA-guaranteed healthcare rights have been violated can be quite difficult, particularly when switching jobs. It’s always a good idea to consult with an experienced lawyer to ensure your health coverage rights are protected.

Do you have any legal questions for us? Chat online with a Laws101 attorney right now.

U.S. Secret Service agent stands guard

What Does the US Secret Service Do?

Legal AssistantAdministrative Law, Resources

You’ve seen them in the movies. The dapper agents in crisp black suits, dark sunglasses, fancy earpieces, and a stoic superhero demeanor. You can tell they mean business—their mission: To guard the President and his family against any potential threat.

But, the mandate of the US Secret Service goes beyond what is usually depicted on TV. The agency employs more than 3,000 special agents, over 1,000 officers of the Uniformed Division, and more than 2,000 professional, administrative, and technical support personnel.

What does the US Secret Service do, and who do its agents report to? Here’s everything you need to know.

When Was the Secret Service Created?

The Secret Service history dates back to 1865, making it one of the country’s oldest federal law enforcement agencies. It was originally created as an investigative branch of the US Treasury Department to combat counterfeiting, which was running rampant at the time. It was such a huge problem that an estimated 33-50 percent of the currency in circulation was believed to be counterfeit money.

Following President William McKinley’s assassination in 1901 in Buffalo, New York, the Secret Service’s mission expanded to include providing protection to the President, Vice President, and their families.

What Does the Secret Service Do

The US Congress tasked the Secret Service with two critical and distinct missions: To protect the country’s leaders and keep the nation’s critical and financial infrastructure safe. Here’s a detailed look into the agency’s two primary mandates.

Protective Mandate

The Secret Service’s protective mission involves working with local and state law enforcement personnel in the coordination of logistics and manpower, conducting advance venue and site assessments for protectees, and carrying out intelligence operations to identify and investigate all potential risks they may be exposed to.

It’s also important to note that the Secret Service is the lead agency charged with the planning, coordinating, and executing of National Special Security Events (NSSE). Part of its mission revolves around the prevention of incidents before they occur, reliance on the rigorous threat assessments developed by the agency’s Intelligence Division to identify, eliminate, or mitigate all potential risks for the ultimate safety of the individuals they are supposed to protect.

Who Does the Secret Service Protect

The law authorizes the Secret Service to protect:

  • The President and Vice President of the United States
  • The President-elect, Vice President-elect, or any other individual next in line for succession to the Office of the President
  • The immediate families of the individuals listed above
  • Major candidates for the presidency and vice presidency in a general election and their spouses for the 120 days leading up to the election date
  • Former presidents and their spouses except when any of their spouses remarry
  • The children of former presidents up until they turn 16 years of age
  • A visiting head of a foreign state or government and their spouse traveling with them
  • Any distinguished foreign visitor to the United States
  • Any official representative of the US on special missions duty abroad
  • Any other individual designated by way of a presidential executive order
  • Any event designated as an NSSE by the Secretary of the Department of Homeland Security

In 1994, Congress enacted a law that required former presidents who held office before January 1, 1997, to receive Secret Service presidential detail for the rest of their lives. On the other hand, presidents who held office after that date would receive protection for a maximum of 10 years after leaving office.

Investigative Mandate

In addition to its protective mission, the US Secret Service also has an investigative mandate that centers on safeguarding the nation’s financial and payment systems from cyber-based crimes and all manner of financial crimes.

The Secret Service investigates:

  • Counterfeiting of US currency and any other government obligation
  • Theft or forgery of US Treasury securities, including bonds and checks
  • Telecommunications fraud
  • Credit card fraud
  • Computer fraud
  • Identity theft or fraud
  • Crimes that affect federally-insured financial institutions
The Secret Service and Cyber Crime
Secret Service and Cyber Crime
Image Source: Unsplash

An increasing number of Secret Service agents and specialists are stationed in field offices worldwide to curb financial crimes, many of which are perpetrated via cyberspace. While the agency’s investigations are designed to address counterfeiting of the US currency, the focus of its investigative work has shifted to address banking fraud, wire fraud, credit card fraud, ransomware, network intrusions, and internet-enabled financial crimes.

The Secret Service’s Cyber Fraud Task Forces (CFTFs) were created in partnership with other law enforcement agencies, state and federal prosecutors, academia, and private industry players to detect, investigate, prevent, and mitigate cybercrime.

The agency also set up an integrated Global Investigative Operations Center (GIOC) to monitor, coordinate, and support strategic local and international investigations into activities that threaten the integrity of the country’s financial infrastructure. The GIOC analyses both traditional and non-traditional sources of data and works collaboratively with various CFTFs to combat transnational organized criminal associations.

The cybercrimes that the Secret Service investigates include:

  • Access device fraud – The illicit transfer of funds involving credit cards, debit cards, or other devices that provide access to financial accounts
  • ATM attacks – Involves network breaches and the manipulation of access devices
  • Business email compromise – The compromise of legitimate business emails to conduct unauthorized or illicit wire transfers
  • Identity theft – The illegal theft and use of personally identifiable information for monetary gain
  • Money laundering and illicit financing activities – The investment of illicit monies in an attempt to disguise them as legitimate proceeds
  • Point-of-Sale system compromise – The unauthorized access to cashier or checkout systems that rely on electronic payment transfers for products and services
  • Ransomware – Malicious software (malware) designed to lock users out of computers or networks until a ransom is paid to restore access

Who Does the Secret Service Report To

The US Secret Service is a federal law enforcement agency. It is maintained as a separate entity within the Department of Homeland Security. Its functions and operations are not and cannot be merged with any other functions of the Department.

Secret Service agents report to the Director of the US Secret Service, who, in turn, reports directly to the Secretary of Homeland Security.

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Organized Crime

What Is Organized Crime?

Legal AssistantCriminal Law

Movies have an incredible way of making anything look glamorous – even the dangerous world of organized crime. You would be surprised by the number of people who’ve contemplated becoming a mobster after watching Robert De Niro pulling up in front of a nightclub in his shiny, vintage Aston Martin moments before shooting up the entire place.

Make no mistake about it, though. This is not a world you want to get caught up in. The legal repercussions that come from a criminal conviction are hefty and will no doubt change your life forever.

What is organized crime, and what happens if you’re found guilty of engaging in such activity?

Organized Crime Definition

Organized crime is often described using sweeping phrases like “mafia-related,” “mob-linked,” and other suggestive terms that differentiate this category of illegal activity from conventional crimes.

The FBI defines organized crime as illegal activities carried out by groups or associations seeking to obtain monetary gains, power, and influence. If these criminal activities extend beyond the geographical borders of any single country, it becomes Transnational organized crime.

The structure of these associations varies based on their networks, cells, and hierarchies and may even evolve into more elaborate models. The majority of organized crime groups are insular. They protect and perpetuate their criminal operations by employing various methods, including violence, corruption, coded communication mechanisms, and international commerce. They may even adopt an organizational structure that exploits national boundaries.

More often than not, the primary goal of most organized crime associations is economic gain. As a result, they rely on a wide range of both legal and illicit schemes to generate revenue and turn a profit. The law criminalizes participation in organized crime in two ways: Criminal association and conspiracy.

It means that any individual, who willfully participates in or contributes to the criminal activities of organized crime groups, is criminally liable for their actions. The penalties are designed to hold individuals who associate with such groups responsible even if they have not directly committed any offense. In other words, criminal liability extends to situations where a crime is anticipated to occur, but a specific violation has not yet materialized (conspiracy).

Organized Crime Examples

As mentioned before, the primary goal of any organized crime association is to generate profit. To do this, they employ a wide range of illicit schemes, including:

  • Drug trafficking
  • Counterfeit goods
  • Cybercrime
  • Extortion
  • Human trafficking
  • Illegal gambling
  • Migrant smuggling
  • Money laundering
  • Trafficking of firearms
  • Cultural property and wildlife smuggling

Because of the massive sums of cash involved in these activities, organized crime directly impacts government agencies with corrupt officials and even compromises legitimate economies.

What Is Racketeering

The legal racketeering definition is – criminal activity in which an organization runs illegal businesses (rackets) or uses legitimate business enterprises to embezzle funds. A “racket” comes about when a criminal organization creates a problem for other entities or individuals for the sole purpose of using extortion to “solve” that particular problem.

Examples of racketeering include criminal activities such as embezzlement, kidnapping, arson, bribery, drug trafficking, extortion, counterfeiting, prostitution rings, tax evasion, blackmail, forgery, trading in illegal weapons, illegal gambling, etc.

Given the devastating effects that such criminal activities have on both public and private institutions, federal and state governments have developed a system of laws designed to prosecute individuals who may otherwise slip through the cracks of the American criminal justice system. One of these laws is the RICO Act.

What Is the RICO Act

In 1970, Congress established the Racketeer Influenced and Corrupt Organizations law, or RICO, for short. This federal legislation makes it illegal to make money from or participate in organized criminal activity.

According to the Act, a racketeering conviction can result in imprisonment and government seizure of illegally obtained revenues. It also allows the injured parties that suffered financial harm to file lawsuits against the perpetrators and sue for damages.

RICO targets organized criminal associations such as the Mafia and Mexican Cartel and legitimate enterprises or associations that engage in illicit activity. Some of the offenses that have been the target of RICO include political corruption, fraud, and white-collar crime.

Criminal Activities Targeted by RICO

RICO makes it a federal crime to:

  • Use any proceeds obtained from racketeering activity or from illicit debt collection to establish, operate, or acquire any organization or business that affects interstate commerce;
  • Maintain an interest in or acquire any organization or business through racketeering activity;
  • Use racketeering activity to conduct the lawful or illicit affairs of an organization or business;
  • Conspire to participate in any of the activities listed above.

A successful conviction requires federal prosecutors to prove to a jury that:

  1. A pattern of racketeering exists
  2. A criminal enterprise exists
  3. The crimes had an impact on interstate commerce

The sections below explore these three elements in detail.

Pattern of Racketeering

For a RICO prosecution to stick, federal prosecutors must prove that the organization or individual in question has displayed several instances (a pattern) of criminal wrongdoing. Racketeering charges consist of underlying illegal acts referred to as “predicate crimes.”

A predicate crime may include anything from a drug crime, bribery, money laundering, and embezzlement; to robbery, kidnapping, and murder.

Prosecutors have to show that the defendant committed a minimum of two such violations within a 10-year period, excluding any imprisonment term they may have been serving at the time. For a pattern to exist, prosecutors have to show that the accused engaged in ongoing criminal activity.

For instance, a single bank robbery would be considered an isolated crime. However, if several bank robberies occur over a specific time frame, by the same group of criminals, using the same tactics, that shows a pattern.

Keep in mind that several criminal acts committed when perpetuating a single illegal scheme would not constitute a pattern.

A pattern of illegality needs to have the following components:

  • The number of illegal acts
  • The methods used to carry out these acts
  • The duration over which these crimes are committed
  • The number of victims
  • The number of perpetrators involved
  • The number of criminal schemes
  • The nature and complexity of the criminal schemes in question

For instance, one successful act of murder, regardless of the number of unsuccessful attempts leading up to it, would not constitute a pattern.

On the other hand, two attempts to extort money from a public official would be considered a pattern. One attempt to extort money and one successful act of bribery would also be considered a pattern.

Criminal Enterprise

RICO defines a criminal enterprise as a group of associated individuals working together informally (such as a criminal gang) or a distinct legal entity (such as a union, partnership, or corporation).

For a group or legal entity to be considered a criminal enterprise, it needs to:

  1. Be an ongoing association that operates as a single unit
  2. Exist separately from the criminal activity of the members
  3. Have a common purpose

An enterprise may have a legal and valid purpose or an illegal objective. For instance, if two criminals collaborated to kidnap someone, this would not constitute a criminal enterprise.

On the other hand, if a group of businesspeople held regular meetings and even worked together for several years to (among many things) bribe public officials to receive lucrative city contracts, this would fall in the realm of a criminal enterprise.

A successful conviction would require federal prosecutors to prove that the defendant(s) in question participated in the management or operation of the criminal enterprise. To do this, they would have to show that the defendant(s) had some level of influence over the group’s activities.

Even if the defendant was merely a mid-level dealer in a drug cartel, as long as they had some level of decision-making power and acted with some level of discretion (for instance, setting drug prices), prosecutors could use this fact to show control.

Interstate Commerce

Last but certainly not least, a successful RICO conviction would require federal prosecutors to show that the violations in question had some effect on interstate commerce. Criminal organizations that move significant amounts of money, commodities, or people from state to state, or have a significant economic impact, will usually meet this requirement.

Punishment for Racketeering

Punishment for Racketeering

Each count of racketeering is punishable by a prison term of up to 20 years. If the underlying predicate crime is punishable by life imprisonment, the racketeering offense in such instances is punishable by life imprisonment as well.

Additionally, the court can use its discretion to impose a fine worth double the illegal profits amassed by the defendant. RICO also allows government seizure of all assets acquired or controlled through racketeering, giving it legal title to the assets in question.

If a criminal enterprise owned property such as land, vehicles, and equipment, the ownership rights to those assets would now belong to the government.

Civil Remedies

In addition to federal criminal prosecutions, RICO also allows private citizens to sue defendants if they suffered financial harm due to racketeering activities. For example, suppose a competitor was undercutting the owner of a private nightclub due to them engaging in illegal business practices such as prostitution and gambling. In that case, the club owner could sue for damages.

A plaintiff in a civil suit would have to prove that the RICO violation was directly responsible for the economic harm they suffered. To do this, they have to demonstrate the same things that federal prosecutors show in criminal court proceedings. That is:

  1. A pattern of racketeering exists
  2. A criminal enterprise exists
  3. The crimes had an impact on interstate commerce

In such suits, the federal court may order the defendant to:

  • Pay the plaintiff three times the amount in damages they incurred
  • Pay the plaintiff’s lawyer’s fees
  • Cease and desist from engaging in certain businesses or activities

The courts may also provide equitable relief by dissolving the defendant’s organization.

What Is a Cartel

The general definition of a cartel is – a group of independent organizations or enterprises that collude to manipulate the prices of commodities in the market. Their goal being – total market domination. In the world of organized crime, the word “cartel” takes on a slightly different meaning. In most cases, it always has a drug connotation to it.

A drug cartel can generally be defined as an association that is significantly involved in, controls, or promotes drug trafficking. The elaborate structure and organization of cartels make them extremely dangerous. Mexican cartel rings such as the Sinaloa, Los Zetas, and Jalisco are known to wield an incredible amount of power and influence, capable of destabilizing entire communities.

Cartels are known to not only engage in the illegal drug trade but also in racketeering activities, including extortion, embezzlement, murder, intimidation, money laundering, fraud, gambling, and more.

What Is Extortion

Attempting to obtain monies or assets from an individual using the threat of violence, threatening to publicize damaging or private information about them, or threatening to falsely accuse the victim of a crime are all acts that fall within the realm of extortion.

Is extortion a crime when it targets private citizens? It ultimately boils down to what the law in your state has to say about it.

Generally, extortion applies to public officials. Some states define extortion as acts committed by government officials, whereas blackmail refers to acts committed by private citizens – even though the activities involved in both instances are the same.

With that in mind, what is considered extortion? There are four main elements to consider:

  • Threats – Extortion must involve the perpetrator threatening to injure or commit a harmful action against the victim.
  • Intent – The threat is made with the specific intention of forcing the victim to part with something of value, such as money or property.
  • Fear – The threat must elicit fear in the victim. It could be based on social stigma, economic loss, the fear of violence, or anything else that may cause the victim to yield to the perpetrator’s demands.
  • Property – The asset that the perpetrator tries to obtain when extorting their victim encompasses anything that would be considered valuable to either party.

The penalties for extortion vary by state. However, more often than not, it is punished as a felony offense with a fine of up to $10,000, a minimum sentence of one year behind bars, or both.

Organized crime charges are severe and carry severe legal consequences. Oftentimes, organized criminal groups coerce or deceive unwitting accomplices in their criminal scheme. If you find yourself in this situation, get in touch with a competent criminal defense attorney to get the best possible outcome in your case.

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discovery in law concept

What Is Discovery in Law?

Legal AssistantPersonal Injury Lawyers, Resources

Civil lawsuits are often protracted, drawn-out processes riddled with progressive phrases, legal jargon, and an infinite amount of prodding that seems foreign to all but those in the legal fraternity.

Understanding how the entire process works and the responsibility that comes with each phase can be daunting for anyone without a legal background. One of the most important stages of a lawsuit is the discovery process.

What does discovery mean in law, and why is it so important? Here’s everything you need to know.

What Is Discovery in Law

The trial process is designed to be fair to all parties involved in a lawsuit. One side presents a series of questions/accusations, and the other side gets the chance to come up with an appropriate rebuttal to each of them. This also means that there can be no surprises in court. Forget everything you’ve watched in courtroom dramas.

That’s where the discovery process in a lawsuit comes in. It refers to the formal exchange of information between both parties to a civil lawsuit based on the witnesses and evidence they intend to present at trial.

The whole idea behind any legal discovery process is to prevent either party from getting ambushed during the trial, aptly christened “trial by ambush.” This might occur when one of the parties only learns about the other side’s witnesses and evidence during the trial. As a result, they’re denied the time and opportunity to gather answering evidence.

Additionally, the legal discovery process allows the trial to proceed uninterrupted once each side receives all the information pertinent to the case beforehand. This avoids holding up the trial process, which would otherwise drag on for longer than necessary.

That being said, the discovery process does have its limits. Privileged information (including trade secrets, and attorney-client, doctor-patient, and husband-wife communications) and the work product of the opposing side are excluded from discovery.

Depending on the type of case being litigated, other types of protected information that cannot be included in the discovery process are certain psychiatric and other medical records, juvenile criminal records, among others.

If the information under discovery is stored in electronic formats, such as in a smartphone or computer, this process is known as electronic discovery or e-discovery for short.

Types of Discovery in a Civil Case

Below is an overview of some of the most common modes of discovery.

Interrogatories

An interrogatory is a list of written questions that one party submits to the opposing side to be answered in written format under oath. Once the opposing side receives the interrogatory, they have a maximum of 30 days to provide answers. This period is subject to Rule 29 of the Federal Rules of Civil Procedure or can otherwise be adjusted by court order.

Depositions

Depositions

These are one of the most common modes of discovery. A deposition or “depo,” for short, is a statement submitted under oath, outside of a court of law, by one or more of the participants in a civil case. This can be made via video or written transcript and can be used in the preparation phase of a trial or during the trial itself. All parties to a suit have the right to be present during the deposition process.

A court deposition – which typically takes place in attorneys’ offices – has two principal purposes:

  1. To find out what a witness knows about a particular case; and
  2. To preserve witness testimony

By the time a case goes to trial, all parties are usually aware of the evidence that will be presented during the proceedings, the witnesses who will testify, and what they’ll say during their testimony.

Keep in mind that a deposition isn’t solely about obtaining favorable testimony. It’s about providing an opportunity for both parties to gain deeper insight into a case to identify the weak areas of their arguments and find ways to rebut them or avoid them entirely during the trial.

Requests for Admissions

A “request for admission” from one of the parties asks the opposing side to admit or deny a series of very specific, meticulously-worded questions to prove their liability. The allegations the opposing side is required to admit to or deny are typically stated in the original document (the petition or complaint) that was used to file the lawsuit.

While it may seem redundant, this method of discovery allows the opposing side to delve deeper into the issues that go beyond those required to state a cause of action. That way, depending on the answers provided, the court can draw reasonable inferences that may influence the outcome of a civil suit.

Requests for Production

This is undoubtedly one of the most popular modes of discovery and is particularly useful in the e discovery process. In a request for production, one party asks the opposing side to provide tangible evidence including documents or information that may be stored in electronic format.

Most of the physical evidence both parties use at trial is obtained using this process. It can become quite an expensive component of civil suits. Some responses to production requests are capable of filling entire warehouses.

A subpoena can be used to direct requests for production to non-parties.

Informal Discovery

Aside from the information gathering techniques detailed so far, other less formal methods might include collecting evidence from third parties to support the case, due diligence on the opposing side, taking photographs of the incident site, etc.

The discovery process is a rigorous undertaking. At some point, everything will surface in the course of the proceedings. It’s only a matter of time.

Discovery can be a complicated and expensive process and warrants the professional expertise of an attorney. While it may be a time-consuming phase in the litigation process, it is arguably the most important as far as the outcome of a civil suit is concerned.

Ensure you retain an experienced and competent attorney to guide you through the entire process.

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