Posted on December 23, 2013 in Business Counseling, Litigation & Transactions

Companies often develop complimentary services that can enhance the consumer experience and build customer loyalty to their brand. Shrewd businesses recognize that these freebie benefits should come attached with exculpatory and indemnification agreements, so a courtesy for customers doesn’t end up being a colossal burden of additional liability. Even when faced with heartbreaking injuries to a small child, Maryland’s highest court recently ruled that exculpatory agreements are binding on children in Maryland, creating new law on an issue of first impression in BJ’s Wholesale Club, Inc. v. Rosen, No. 99, Sept. Term 2012.

The stage for the case was set when the Rosens permitted their 5-year-old son, Ephraim, to play at a free "Incredible Kids Club" area at a BJ’s Wholesale Club in Owings Mills, Maryland. Before Ephriam was permitted to play, Mr. Rosen had to execute an agreement releasing and indemnifying BJ’s from any related injuries that might arise. Cut to 15 months later, when Ms. Rosen returned to BJ’s to do a little shopping. Mrs. Rosen again dropped Ephraim off at BJ’s Incredible Kids Club, which featured a large toy hippopotamus to climb on.

"Harry the Hippo" sat atop a thin layer of carpet, which, unbeknownst to Mrs. Rosen, sat atop a hard concrete floor, as opposed to foam padding that was under carpet elsewhere in the Club. When Ephraim tumbled off, he landed on his head, and developed a hematoma that required life-saving surgery to remove part of his skull. The Rosens filed suit against BJ’s in the Circuit Court for Baltimore County, alleging that BJ’s was negligent.

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 Posted on December 23, 2013 in Business Counseling, Litigation & Transactions

Many of you have seen the following disclaimer made in connection with films or books: "All characters in this book are fictitious, and any resemblance to real persons, living or dead, is coincidental." The line between fact and fiction may not always be so clear, however, as Maryland’s Court of Special Appeals discovered in addressing the issues raised in Publish America, LLP v. Stern, No. 2965, September Term 2010.

Stern was a librarian at the Ludington Library in Ludington, Michigan. During her tenure at the Library, Stern developed a manuscript about some of the interesting people in her community. In 2008, Publish America offered to publish Stern’s manuscript. Publish America insisted that Stern either obtain waivers from the people appearing in the book or appropriately "fictionalize the work." Publish America’s concern was that the book disparaged real-life people who were recognizable within Stern’s community. Publish America instructed Stern to "make sure that all names, places, and events have been changed" so as to truthfully comply with the disclaimer and to "take care that there are no real-life people that are in the least bit recognizable." Stern agreed to fictionalize her characters, and she even confirmed via e-mail that she had done so.

When Publish America released Stern’s book, The Library Diaries, there was a nearly immediate flood of complaints from people who felt that the book had a little too much fact, and not quite enough fiction. The Director of the Library suspended Stern from work and her employment was terminated ten days later.

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 Posted on December 20, 2013 in Medical Malpractice

It should go without saying that a person who enters a hospital has certain expectations of the level of care they will receive and how the medical staff will behave. Hospitals can be frightening and intimidating, and patients rely on their physicians to ease their apprehensions and concerns. Above all, patients expect to receive the highest level of care, both quickly and meticulously. In this same vein, doctors are expected, and even trained, to make the proper decisions when the time comes to make a diagnosis or recommend the appropriate treatment.

Unfortunately, this standard of care sometimes is taken for granted. Across the country, surgical errors, misdiagnoses and hospital negligence happen all too often. The consequences of such mistakes vary widely – from no injury to the patient to sometimes permanent injuries. When a doctor misses important information, or ignores crucial signs, the result can be a serious misdiagnosis, often leaving a patient in a worse condition. No matter how small the error or resulting injury may be, these medical mistakes cannot be overlooked.

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 Posted on December 17, 2013 in Business Counseling, Litigation & Transactions

The technology questions and options surrounding cybersecurity and data storage in "The Cloud" can overwhelm even the savviest of CEOs. The legal issues, however, are often overlooked. Various federal and state laws govern certain types of data storage in the cloud and dictate what your business is required to do if your website or cloud storage is breached and customer data is lost. Failure to comply with breach notification laws can result in statutory damages of hundreds of thousands if not millions of dollars.

For these reasons, it is well worth the time and minor front end cost to review these laws and your online practices with a qualified attorney, but the brief checklist below provides common sense tools to make your employees, your online business activities and your cyber data practices more secure.

At SilverMcKenna, we recommend you turn to independent cyber-security experts to develop a secure infrastructure for your data and online practices, but we also urge our business clients to take the following SIX PRACTICAL STEPS to protect business data in the cloud, to secure customers’ data and sensitive information, and to make sure employees and management are working together to do so effectively and efficiently while preserving employee and customer privacy.

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 Posted on December 16, 2013 in Real Estate

Governments in recent years have developed some ingenious ways of financing huge real estate projects without having to front the money for it. One such method is so-called "ground lease financing" arrangements, in which private companies pay for the construction and then lease the improvements back to the government for some period of time. It’s a great way for governments to get new digs and spread out the cost, but it can lead to sticky questions when the taxman comes to collect.

Such issues were recently tackled by the Court of Special Appeals of Maryland in Townsend Balt. Garage, LLC v. Supervisor of Assessments of Balt. City, No. 2922, November 19, 2013. The wheels of the case were set in motion when the State of Maryland decided to build that big "BioPark" research complex in downtown Baltimore. As what typically happens in these ground lease financing deals, there was a mountain of leasing and subleasing arrangements in play, so try to bear with us here as we work through them…

To get the project off the ground, the State acquired some land from the City of Baltimore and leased it to UMB Health Sciences Research Park Corporation ("RPC") – a tax-exempt non-profit organization created by the University System of Maryland – under a ground lease. RPC then subleased a parcel of the property Baltimore LSRP One Business Trust ("BLSRP"), a for-profit entity that agreed to finance and construct an office building and laboratory that would be leased back to the State of Maryland to house the University of Maryland, Baltimore, School of Medicine. Another parcel was subleased to Townsend Baltimore Garage, LLC ("Townsend"), another for-profit entity that agreed to finance and construct a parking garage.

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 Posted on December 16, 2013 in Complex Civil Litigation

Would you like to be identified by name in a federal court case that alleges you illegally downloaded, watched and shared pornography? Probably not.

Would it affect your job, your career, your reputation? Probably so.

Suing Marylanders by the hundreds, Malibu Media is using strong-arm litigation tactics to intimidate unsuspecting Marylanders to pay money to settle alleged copyright violations they may not have even committed. Malibu Media, LLC, is a California company that produces and/or owns the copyright to adult "soft-porn" movies and video content. Much of this content is available for viewing on the Internet.

Hundreds of Marylanders have received or will receive a letter from their Internet Service Provider (ISP), such as Comcast or Verizon, telling them that they’re being sued for copyright infringement by Malibu Media. Attached to the letter you receive from your ISP is a subpoena that requires the ISP to give Malibu Media your name, address and account information unless you "move to quash" the subpoena by a certain date. Also attached is a Complaint suing the "John Doe" account holder of a certain IP address. That "John Doe" IP address is linked to your Internet account with your ISP. The Complaint alleges that the "John Doe" has downloaded Malibu Media-owned porn films and seeks hundreds of thousands of dollars in damages. Once the ISP turns over the account information and your name, your name ends up on the pleadings as the named defendant.

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 Posted on December 13, 2013 in Criminal Defense

As an Aggressive Baltimore Maryland Criminal Defense Attorney I have represented hundreds of people charged with Sex Offenses. Many of these case deal with adults (typically men) having sexual contact with underage victims (typically girls) – so call Statutory Rape Cases – although Maryland Law does not use that specific terminology. The basic rule is that if a child is under the age of 16 – which is the age of consent in Maryland – it is illegal for an adult who is at least 4 years older than the child to have an form of sexual contact with the child. These crimes are prosecuted very aggressively throughout Maryland and typically result in jail time as well as requirement to register as a sexual offender for 15 to 25 years or even for life.

What makes these cases even more difficult to defend is that they are so called "Strict Liability" offenses, which means that it does not matter if the adult was aware that the child was underage. This applies even in circumstances in which the child affirmatively lies about or conceals her age. As unfair as this may sound, it is the law in Maryland and in many other states. It also does not matter who initiates the sexual contact. The adult will be held liable even if he was aggressively pursued by the child to have sex. I successfully resolved a case that falls into this latter description last week in Baltimore County Circuit Court. Here are the facts:

My client was accused of having sexual intercourse with a 13 year old girl. On its face this fact may conjure up mental images of Chester the Molester or some other equally despicable pervert or dirty old man. The truth, however, in this case was that my client is 18 years old and doesn’t look (or act) most older than 15. In fact, the incident occurred just the night after his 18th birthday and involved a young girl who didn’t act so young. In most people’s view, there is a big difference between an 18 year old boy having sex with a 13 year old, and a 40 year old man doing so, but the law technically makes no such distinction. It is up to the prosecutor to exercise her discretion as to how aggressively she wants to prosecute these cases. Indeed the Legislature necessary counts on prosecutors to do just that as each case is different and must be viewed in light of the facts and circumstances of that case.

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 Posted on December 10, 2013 in Business Counseling, Litigation & Transactions

On December 9, 2013, STSW lawyers Bill Sinclair and Ned Parent obtained a half million dollar judgment in a complex construction arbitration before the American Arbitration Association. After pre- and post-arbitration briefing and a four-day hearing before Arbitrator J. Snowden Stanley, which included a comprehensive site visit and fact and expert witness testimony, Sinclair and Parent convinced Mr. Stanley that their client, the Edgewood American Legion Service Post 17, should receive money and credits from the architect and general contractor who failed to complete a re-build of the Legion’s hall in Edgewood, Harford County, Maryland.

This case began during the "Snowmageddon" of February 2010, when record Maryland snows caused the roof of the Edgewood American Legion hall ("Hall") to collapse. The Legion obtained bids from several local contractors to re-build the Hall and ultimately went with Burton Pfund, Inc. to design and rebuild the Hall. Burton Pfund agreed to do this work through two trade names — Burton Pfund Architecture would design the re-build, while MasterPlan Design Build (collectively, "Burton Respondents") would perform the reconstruction services. The parties signed a guaranteed maximum price contract for the Burton Respondents to perform the necessary work for $840,000.00, plus selective demolition services for a GMP of $50,000.00. Work began in the Fall of 2010 and continued through Spring 2011.

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 Posted on November 27, 2013 in Criminal Defense

As a Former Assistant State’s Attorney and Baltimore Maryland Criminal Attorney for almost 20 years, I have prosecuted and defended thousands of people charged with Second Degree Assault and/or First Degree Assault. For reasons that I cannot understand, there is a very common misperception in the general population and even with some in law enforcement, that Maryland does not recognize the concept of Self-Defense. This is simply not the law. The State of Maryland and every other State for that matter, absolutely does recognize the legal doctrines known to every first grader as Self-Defense and Defense of Others.

The right of people to defend themselves against violent attack goes back at least to English common law and probably as long as people have gathered together in organized societies. It is an obvious fundamental human right so it is difficult to understand how how widespread this misunderstanding has become in Maryland. The only theory I can come up with is that people are confusing the concept of a Mutual Affray which Maryland does not technically recognize with the universally recognized theory of Self-Defense. I had a client come in and meet with me this week that I think illustrates this misunderstanding of Maryland Law on this subject well. Here are the facts:

My client is a 35 year old woman who has been involved in a relationship with her current boyfriend for about 3 years. They moved in together within a few months of the beginning of the relationship and have been living together ever since. The relationship started out very well (as most do) but has been deteriorating over the last year, and has recently started to become physical. As is typical in domestic violence cases, once verbal arguments become physical, the violence tends to escalate. My client advised me that although she had not previously called the police, her boyfriend had shoved her several times during arguments and in the argument immediately preceding the one that cause her to be in my office, he had held her down on the bed and choked her. Needless to say this was a frightening experience for her that caused her legitimate concern for her safety.

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 Posted on November 25, 2013 in Criminal Defense

As an Experienced Criminal Defense Attorneys https://criminal.silvermanthompson.com/lawyer-attorney-1741744.html we often witness people make the big mistake of representing themselves in criminal court. The old adage is, "he who represents himself, has a fool for a client". Truer words have never been spoken, particularly when dealing with criminal charges

The typical scenario is that someone is arrested and charged in a case that that they view as minor or at least something that they can handle themselves. Sometimes it actually works out and the person gets away with the mistake. Sometimes it blows up in their face immediately and they know it. But sometimes the mistake is latent and the person doesn’t realize how badly he messed up his life until years later. I had a case last week in the Circuit Court for Baltimore County in which my client was charged with Illegal Handgun Possession that fell into this last category. Fortunately, I was able to successfully resolve the current case but not before it cost the defendant far more than it would have cost to resolve the original matter had he contacted me then. And I was unable to undue the original conviction which will continue to cause collateral consequences for my client for many years to come and perhaps for the rest of his life. Here are the facts:

My client is a 49 year former Marine with no prior criminal record. He is an electrician by trade and is an avid outdoorsman and hunter. In 2006, he was involved in a relatively minor domestic incident with his wife of 25 years. An argument between the two allegedly became physical causing only minor injury to his wife. He decided that he would handle the matter himself both for financial reasons and because he believed that since it was his first offense, he would be treated with leniency. He plead guilty and was sentenced to a suspended jail term and probation with domestic violence counseling.

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