Hot Topics

Monica Lewinsky, Bill Clinton, Hillary Clinton, Vanity Fair
How Much Bargaining Power Can Donald Sterling Garner from Asking the Question:
Why Does the NBA Get to Monopolize Who May Own a Basketball Team?
Post by CyberCiety 5/15/2014 - 10:00 CST -

We are all aware of the Donald Sterling debacle created by the leaking of tapes of private conversations conducted between Sterling and V. Stiviano. We are also all aware that Donald Sterling owns the Los Angeles Clippers, which is a basketball team in the National Basketball Association ("NBA"). Because of the racist nature of Donald Sterling's leaked communications with Ms. Stiviano, the NBA Commissioner, Adam Silver did the following: 1) he banned Donald Sterling from the NBA for life, 2) he levied a fine against Sterling in the amount of $2.5 Million and 3) he indicated that steps would be taken to sell Donald Sterling's team to some other individual or entity.

Many believe that Donald Sterling does not have a leg to stand on. I don't share this view for two reasons. 1) I'm convinced that the family trust and community estate issues are real barriers and 2) I'm now very intrigued by the anti-trust implications raised by Donald Sterling's newly-retained famed anti-trust attorney, Maxwell Blecher. Both of these issues really go to the idea of the unjust taking of property without due process. It seems many believe that the NBA is the judge and the jury, failing to bifurcate those issues that are within the purview of the NBA's jurisdiction from those issues that are not.

Bifurcating the Issues
I think we can all agree that the NBA has the power to ban Donald Sterling for life (though excessive) and to levy punitive fines against him. On this issue, I also agree that there is a probably an agreement that would bar Donald Sterling from litigating these decisions. However, the issue of selling Donald Sterling's (family-owned) team against his wishes amounts to a taking of property without due process. This is a justiciable issue. In other words, I believe it is up to the courts to decide the fate of Donald Sterling's property interests - not the NBA.

So why Does the NBA Get to Monopolize Who May Own a Basketball Team?
If you or I owned a basketball team that was a part of the NBA's league of teams and the NBA no longer wanted to associate with me, wouldn't the correct response be that we part ways - I take my team and go on about my business? True - there is probably not much that I can do with a basketball team that is not associated with the NBA, but who knows? Maybe I could start my own league. Or maybe I would want to sell my own team. Why does the NBA have the power to monopolize whether I can own property that belongs to me? Furthermore, why does the NBA have the power to dispose of property that belongs to me? We don't willy-nilly allow one phone company or one airline company to completely dominate the field, so why have we allowed the NBA, the NFL and the NHL to do so? Yes, I understand the nature of franchise organizations but even in a franchise situation, the franchisee can sell the franchise to someone else if he or she wants to do so.

Bargaining Power - Leverage
The questions raised above are serious anti-trust considerations that I'm sure the NBA would love to keep in the dark. So just as Donald Sterling was able to leverage the NBA to lower the amount of the fine assessed when he moved the Clippers from San Diego to Los Angeles, I really believe Donald Sterling may likely garner some bargaining power by suing the NBA on an anti-trust theory of recovery.

(c) 2014 CyberCiety - DTBlackmoreLaw

Does a Woman Like Monica Lewinsky Who is 40 Years Old
With No Husband and No Children Equal Failure?
Post by CyberCiety 5/7/2014 - 10:00 CST - - (Also available on HuffPo)

Monica Lewinsky is the infamous White House intern with whom former President Bill Clinton admitted to having an “inappropriate relationship” while in office. The scandal has been revisited because Lewinsky recently wrote an essay in Vanity Fair entitled “It’s time to burn the beret and bury the blue dress.” Prior to a morning discussion about Lewinsky on CNN’s Newsroom on May 7, 2014, Carol Costello inferred that Lewinsky has failed in life because she is 40 years old, has no husband and has no children. Why do women who are married and/or married with children impose their idea of success on women who are not married?

The response to Lewinsky’s essay has elicited feelings of pity and discussions about her seeming misfortune and failure. The following are a few notables about Lewinsky:

 B.A. – Lewis & Clark College
 M.S. – London School of Economics
 Fashion Designer of a line of handbags
 Former spokesperson for Jenny Craig
 Interviewed by Barbara Walters
 Interviewed by Larry King

This does not look like the curriculum vitae of a failure to me. Excerpts from the full version of Lewinsky’s essay, which will be released on May 8, 2014 reveal that because of her past “history” she has not been able to secure a job in the charity campaigns, communications and branding arena. Maybe she hasn’t secured jobs in this arena but it does not mean that she is jobless. How many people can say that they have had their own line of handbags? Lewinsky merely stated the fact that entities will not hire her in a particular job field but the excerpts do not reveal that she has failed or had overwhelming misfortune. Furthermore, the excerpts do not reveal that Lewinsky has any aspirations of having a husband and children.

So what Carol Costello said this morning opens a larger discussion about a perception that many married women equate having a husband and children as success. The excerpts do not reveal that Lewinsky feels like a failure or experiences any misfortune because she is 40 and does not have a husband and children. Maybe Lewinsky has aspirations of having a husband and children. But does it mean that she should be pitied because she is 40 and does not yet have a husband and children?

There are many women who do not want a husband or children. There are many women who are successful in many other areas and who enjoy the freedom of not having a husband and children. Every woman is not looking for someone to put a ring on it! Women who are married and/or married with children should not feel as if they should pity those who do not nor should they assume that every woman wants the same life. Am I wrong - does a Woman Like Monica Lewinsky Who is 40 years Old With No Husband and No Children Equal Failure? I say it does not!

(c) 2014 CyberCiety - DTBlackmoreLaw

Mario Williams v. Erin Marzouki: The Case of the
Missing $785K Diamond Engagement Ring - IS HEATING UP!
Post by CyberCiety 7/5/2013 - 10:00 CST -

The lawsuit filed by Mario Williams against his former fiance, Erin Marzouki, demanding return of a $785K diamond engagement ring is heating up! Mario Williams was the number-one draft pick selected by the Houston Texans in the 2006 NFL Draft and is currently a defensive end for the Buffalo Bills. The lawsuit is pending in the Harris County District Court in Houston, Texas. The contenders have really come out swinging and Marzouki's attorneys are really going in!

On May 24, 2013, Ms. Marzouki filed a "Motion for Sanctions and Suggestion of Perjury" supported by an affidavit filed by her cyber/digital forensics expert/investigator. In the affidavit, the investigator asserts that he inspected Ms. Marzouki's cell phone and found communications made to and from Mario Williams' cell phones. The investigator's affidavit lists two cell telephone numbers, which Ms. Marzouki purports are assigned to Mario Williams. The investigator's affidavit makes reference to the following specific quotes made from text messages the investigator alleges were made by Mario Williams:

Sent on 1/31/2013 - 6:16 p.m.: "U said ud keep the ring then keep it I don't give a damn. I'm done with this materialistic stuff..."

Sent on 1/23/2013 - 10:17 p.m.: "It's nothing but money wasted I don't give a shit at this point it's money!"

Sent on 1/23/2013 - 10:16 p.m.: "KEEP IT!"

Sent on 1/23/2013 - 10:18 p.m.: "KEEP IT!"

Sent on 1/23/2013 - 10:18 p.m.: "Remember me by it."

Sent on 2/2/2013 - 11:48 p.m.: "Keep those material things. It means nothing to me anymore."

Sent on 2/2/2013 - 11:48 p.m.: "I said keep it."

Sent on 2/2/2013 - 11:46 p.m.: "Keep it."

The investigator's affidavit does not provide any quotes of messages sent by Ms. Marzouki and thus fails to provide the context of the above-referenced alleged messages sent by Mario Williams. In addition, the alleged messages sent by Mario Williams seem to indicate that, at some point, he requested that Ms. Marzouki return the engagement ring.

Meanwhile, Ms. Marzouki's attorneys have also served Mario Williams' attorneys with discovery requests in which she requests highly sensitive information. In response and objection, Mario Williams' attorneys have filed a "Motion for Protective Order". In the Motion, Mario Williams' attorneys have asked the court to quash Ms. Marzouki's requests for the following information:

- The identity of medical doctors who have (allegedly) prescribed hydrocodone to Mario Williams

- The identity of pharmacies that have filled prescriptions for hydrocodone(allegedly) prescribed to Mario Williams

- The identity of mental health professionals who have (allegedly) treated Mario Williams

- Financial records

- Mario Williams contract with the Buffalo Bills

- Information regarding (alleged) sexual relationships that took place since January 1, 2012 with 8 individuals identified as: Melissa Browning, Abbie Sims, Lacey Holm, Scout Albertson, Amanda Dinkel, Joann Brito, Gabby Piagiotti and Krista McGowen (ALLEGEDLY)

The parties entered into an agreement on Ms. Marzouki's Motion for Sanctions and Suggestion of Perjury. The hearing on Mario Williams' Motion for Protective Order is set to take place in mid July, which would most likely be held in the judge's chambers if it goes forward. In a previous affidavit filed by a process server during the proceedings on Mario Williams writ of sequestration against Ms. Marzouki, she indicated that does still have the ring and it is in a safe deposit box at the bank. It seems Ms. Marzouki is very pissed about her allegations that Mario cheated on her. As such, Ms. Marzouki seems justified in keeping the ring and doesn't seem to have any intention of returning it. Ms. Marzouki previously alleged that Mario Williams called off the engagement. I can't see that the judge or jury won't see that Ms. Marzouki became angry, that she called off the engagement, that Mario Williams requested return of the ring, and that she kept it. In either case, the gloves have definitely come off in this attorney slug-fest! (c) 2013 CyberCiety - DTBlackmoreLaw

Is UT's Admissions Policy Based on Race
And Was Abigail Fisher Denied Admission Because of Race?
by CyberCiety - 6/10/2013 - 20:30 CST -

The quick answer to both questions is no and no. Prior to 1997, the University of Texas ("UT") used the following admissions protocol:

1."AI"Student's High School Rank & Standardized Test Scores
2."AA""Affirmative Action" Race-Based Policy to Create Balance

A group of students filed a lawsuit complaining that race-based affirmative action admissions policies were discriminatory. In the Hopwood case, the 5th Circuit Court of Appeals held that race could not be used as a factor in school admissions practices. In response, UT kept the "AI" component and replaced the "AA" (Affirmative Action) component with a "Personal Achievement Index" ("PAI"). So post-Hopwood, UT used the following admissions protocol:

1."AI"Student's High School Rank & Standardized Test Scores
2."PAI"Personal Achievement Index

In 1997, in response to the Hopwood decision, the Texas Legislature passed the "Top 10 Percent Law", which grants automatic admission to ANY public state university (including UT) for ALL public high school seniors in the top 10% of their class at the time of application. Although Hopwood was not appealed to the U.S. Supreme Court, the Supreme Court heard another case -- Grutter v. Bollinger and held that universities have a "compelling governmental interest" in creating a diverse student body and may use race as one of many factors in the admissions process. In an effort to comply with the Top 10% Percent Law and in response to the Grutter decision, UT changed its admissions protocol to reflect the following:

1."AI"Student's High School Rank & Standardized Test Scores
2."PAI"Personal Achievement Index - [which includes Race as One of Many Factors]
3.Top 10% LawState Law Enforced by All State Universities in Texas

Ten years later, Abigail Fisher, a Caucasian high school senior attending Stephen F. Austin High School in Sugar Land, Texas, applied for admission to UT's Fall 2008 class. In 2008, the "Top 10% Law" accounted for 81% of the entering class. The remaining 19% was apportioned to the "AI" (non-race) and "PAI" (small portion based on race) components. In addition, Texas residents are NEVER denied admission to UT if they meet the application deadline. In this case, if not admitted to the Fall 2008 class via the "AI", "PAI" or "Top 10% Law", students are offered admission to UT via: (1) the "Summer Program" or (2) the "CAP" Program (which requires the student to attend a UT System college/university and complete 30 hours with a GPA of 3.2 or higher before being admitted to UT Main Campus).

Fisher did not qualify for admission under the "Top 10% Law". Of the remaining 19% availability, race played a small role in the decision-making process in the "PAI" component of the process. Fisher filed suit against UT complaining that she was denied admission because of race. The main reason Fisher was not admitted to UT's Fall 2008 class was due to the "Top 10% Law", which Fisher admits is not discriminatory and not the basis of her lawsuit. In addition, Fisher could have entered UT by way of either the "Summer Program" or the "CAP" Program. Instead, Ms. Fisher chose to attend LSU and she has, since, graduated.

UT's admissions protocol would not include affirmative action at all, but for its desire to come into compliance with the U.S. Supreme Court's decision in Grutter, which the U.S. Supreme Court, at that time, said would be good law for over 20 years. If the U.S. Supreme Court over-rules Grutter and holds that UT's admissions policy is unconstitutional, it will only apply to the "PAI" component of UT's admissions protocol. (c) 2013 - CyberCiety

Was John Boehner's Plan B Really an Unsuccessful Proposition
or Will it Clear the Way for a Last Minute Fiscal Cliff Bill to Make it to the House Floor?
Post by CyberCiety 12/30/2012 - 08:30 CST -

Several weeks ago President Barack Obama and Speaker of the House, John Boehner initiated a post-election (pre-confirmation) round of Fiscal Cliff negotiations. In other words, Obama and Boehner took on the task of negotiating one of the most taxing (no pun intended) set of issues in recent history during a lame duck session of congress that includes the most recalcitrant members of any time in recent history. Those who specialize in negotiations know that one required component of any successful negotiations requires that the negotiating parties have a reasonable range of settlement authority provided by their principles. As a starting point, it seemed everyone knew that Obama wanted to raise tax rates on individuals earning more than $250K per year. I will not get into the issue of the expiration of the full range of Bush-era Tax Cuts because that encompasses a whole host of things in addition to the raising tax rates. But as time went on, we began to see Obama use language like raising the rates on the "top 2 percent of wage earners." Notwithstanding the fact that many tie this language to the "top 2 rates", we began to realize that Obama was beginning to make room to negotiate the $250K number. This was also an indication of the likely range of authority that the Democratic Caucuses of House and Senate provided to Obama. One of the problems that emerged in the negotiations was Obama's failure to appreciate the lack of authority that the Republican House Caucus provided to Boehner. At some point in the negotiations, Obama moved his $250K number to $400K and put it on the negotiating table. I think if Obama fully realized Boehner's lack of authority, he would not have made the offer to raise the tax rates on individuals earning more than $400K per year. Now that number is out there and it is even a part of the late-hour Senate negotiations taking place right now. So at this point, everyone expected Boehner to come back to the table with a number. Boehner could see where this line of negotiations was going and he knew he would never have the authority from his Caucus to make such an offer. So rather than make the same mistake that Obama made by putting a number on the table, Boehner did something that only a lawyer and/or a person who knows politics could really recognize. Notwithstanding the fact that many people are saying that Boehner is weak and can't control his caucus, in my opinion, Boehner's move was intriguing to the negotiations/politics palette!

Plan B

Boehner knew his caucus would never let him bring a number to the table that would allow for raising the tax rates on individuals/households earning anything less than $1 million per year. So the question becomes: why bring any number to the table when you know you'll never be able to bring a number that would result in a deal? If Boehner did this, he would run the risk of him and his caucus-members suffering the sting of the eventual soundbites in the 2014 and 2016 primaries. So lets take a look at the makeup of Boehner's caucus.

--PositionSub-Caucus IdentityIntransigence Level
1.Far RightTea Party Lame DucksMost Intransigent
2.RightConservative to Moderate Republican Lame DucksIntransigent
3.RightRepublicans in Conservative Districts up for Primary in 2014Intransigent
4.Moderate to RightRepublicans Stepping Down from OfficeLess Intransigent
5.Moderate to RightRepublicans from Moderate to Far Right Voting Districts not up for Primary in 2014Intransigent to Less Intransigent

So when you have a caucus like this, who can really have control? I give Boehner credit for being a skilled politician. Boehner knew he did not have authority from his caucus to negotiate further. Boehner also knew that someone (the American People) would force him to bring something to the floor. So what does he do? Plan B! Boehner brings Plan B to the floor - not because he thought it would ever pass - but because he knew he would later need clearance to bring a bill to the floor and allow it to pass by a simple majority rather than applying the Hastert Rule requiring the bill to pass by a vote of the majority of his caucus. Furthermore, if someone has something that is so great and they really want to sell it, they're not going to call it Plan B! They would call it Plan A Plus or something. Boehner brought Plan B to the floor to show everyone in the world including his own caucus what it would pass by a Hastert Majority. Boehner was not able to get the required number of votes to pass Plan B, which he should have been able to get since his caucus represents a majority of the full House. Notwithstanding Boehner's failure to pass Plan B, he gained clearance from his caucus. With Plan B, Boehner has illustrated to his caucus that it can trust that he will not exceed its will or authority. Plan B also gives Boehner's caucus the ability to say that it dug its heels in on the tax rates issue. In return, Boehner will have the blessing of his caucus to bring a bill to the floor, if forced to do so, that may pass by a simple majority of the entire House rather than a Hastert Majority. In addition, the members listed in the chart above as Most recalcitrant to recalcitrant won't have to get their hands dirty at all.

Tax Legislation Mechanics

One of the most pressing questions is how can we complete the required legislative work in time to avert the Fiscal Cliff set to take place on January 1, 2013? All tax legislation must originate in the House of Representatives. In the recent past, the GOP-led House passed Fiscal Cliff legislation with a Hastert Majority and sent it to the Senate. After Plan B failed to pass just prior to leaving for the Christmas holiday, Boehner urged the Senate to act and stated that the ball was in the Senate's court. In this regard, Boehner was urging the Senate to vote on the legislation that had already passed the House. President Obama also made remarks just prior to leaving for his Christmas holiday. Obama returned from his Christmas holiday and met with the House and Senate leadership on Friday, December 28, 2012. Obama emerged from the meeting slightly pissed off! In my opinion, Obama seemed as if he'd had it! He took to the bully pulpit and let congress have it! Obama laid the blueprint for how the Fiscal Cliff fiasco will end. Obama urged Senate Majority Leader, Harry Reid (Democrat) to put 1 of 2 bill proposals on the Senate floor for an up or down vote. The first proposal could be a deal agreed to by Senate Minority Leader, Mitch McConnell (Republican) and Harry Reid. The second proposal would be Obama's proposal (which includes raising tax rates on individuals earning more than $250K per year and extension of unemployment insurance for the long-term unemployed). I have to admit, this action by Obama shows that he is a very shrewd politician as well. Going back to the mechanics of tax legislation having to originate in the House, the Senate will have to gut the House bill that has already passed the House. Then the Senate will have to pack the House bill with either of the 2 proposals urged by Obama. The Senate has its own (Hastert) technique also known as the filibuster, which if instituted, would require a bill to pass in the Senate by 60 votes rather than a simple majority of 51. Many believe that if McConnell and Reid come to an agreement and the senate packs the House bill with Proposal 1, McConnell is not likely to exercise a filibuster. Now that Obama has urged his very crafty and political Fiscal Cliff blueprint, it will be interesting to see if McConnell will exercise the filibuster in the face of the long-term unemployed who will meet him at the polls during his 2014 primary campaign season. If the bill can pass the Senate by a simple majority, it will go back to the House. Apparently, Obama has set a deadline of Monday, December 31, 2012 for Senator Reid to bring either of the proposals to the Senate floor.

The Beauty of Plan B

If the bill makes it back to the House, this is where the beauty of (the highly unpopular) Plan B will be realized. If anyone could see what Boehner was really trying to do with Plan B, people may have returned earlier from their Christmas holidays and worked more diligently. As stated above, the failure of Plan B gives Boehner clearance to bring the bill to the floor and allow it to pass by a simple majority of the entire House rather than a Hastert Majority allowing a majority of his caucus to emerge w/tax-free clean hands. Now that Plan B has failed, Boehner already knows the identity of the 30 or so members of his caucus who may have to vote with the House Democrats to pass the bill; and he will have already began to work with these members to help with convincing them to vote in favor of the legislation. In addition, McConnell will have already advised Boehner of the contents of the bill. Plan B cuts down the amount of time the House Republicans will need to determine who will vote to pass the bill. This group will come from members of Boehner's caucus who are stepping down from their seats and Republicans from more moderate voting districts who are not up for Primary in 2014 referenced in the chart above. While credit will be given to President Obama for having his "I've had it" moment laying the blueprint for the Fiscal Cliff deal, we must give credit to Boehner as well because Plan B will cut a considerable amount of time out of the late-hour legislative maneuvering. Because of crafty politics exercised by President Obama and Speaker Boehner's Plan B, I believe we will avert the Fiscal Cliff!

Obamacare Bureaucracy:Commerce Clause or General Welfare Tax?
Is it a Tax or Penalty?
Post by CyberCiety 7/4/2012 – 07:30 CST -

For weeks, CyberCiety has tweeted and told anyone who would listen - "The Supreme Court will uphold Obamacare as Constitutional and it will not be because of the Commerce Clause." I was never moved by statements made by people like Jeffrey Toobin and Bill O'Reilly who were so emphatic in their opinions that the Supreme Court would strike down Obamacare. Jeffrey Toobin based his opinion on statements made by the Justices during oral arguments. I believe Justices use oral arguments as an opportunity to say what they can't write! And who knows what Bill O'Reilly's justification is for anything! At least Jeffrey Toobin came out the same day and acknowledged being wrong.
I always knew the Supreme Court would uphold Obamacare on Congress' authority to act on behalf of the "general welfare," "health" or "safety" of the citizenry. I became even more sure the decision would turn on this ground when on similar grounds, two days prior to the Supreme Court's Obamacare decision, the D.C. Circuit Court of Appeals issued an opinion upholding government regulation of greenhouse gases.

CyberCiety is also of the opinion (pre and post-decision) that the mandate is a tax. It seems elementary that money collected by the IRS cannot be categorized as anything other than a tax. On the issue of repealing the legislation, even if it meets the budget reconciliation test to elude filibuster and the 60-votes requirement in the Senate and the Senate can generate 51 votes in favor of repeal, it can only apply to the mandate - not the entire legislation. Furthermore, if anyone remembers, President Obama did not start off loving the manadate and agreed to it as a bi-partisan effort to negotiate getting the legislation passed. Therefore, CyberCiety does not believe President Obama would consider it a loss if Congress repealed the mandate.
Notwithstanding the published nature of my opinion on the matter, I was not surprised that after all of my tweets, emails and discussions - very few individuals (men) want to give me any credit for being right.